Persons 6'.ppt

7/28/2019 'Persons 6'.ppt

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Law of Persons 2011

Lecture 6: CTOP and the end of legal personality


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Agenda

Choice on Termination of PregnancyAct:

When does legal personality begin in the

context of the Constitution? (viz. does the fetushave a constitutional right to life?)

End of legal personality

1. Significance2. Legal requirements for death

3. Registration of death

4. Presumption of death


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CLSA v Minister of Health

Legalquestion

Findings:

everyone = every person

No qualification or internal limitation in s12(2)

Intention would have been made unequivocally =s11 & s28

Anomalous consequences


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Is pre-natal life worthy of protection?

Heaton (and Sinclair) Dworkin (Lifes Dominion)

State and community interests

Intrinsic value of life

Meyerson (SALJ1999 (116) 50)

Value of dignity

International instruments re: use ofembryos and fetuses in scientific

research


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Factual scenario

You are an attorney. Mary Watkins and hermother (Sylvia) approach you for advice. Mary, a17 year old student at Rhodes University, is veryoverweight due to a thyroid problem and explainsto you that she has irregularmenses (ie. shedoes not have regular periods). She advises thatshe was raped at a party a few months agowhere she had been given a drink spiked with adrug. She has just discovered that she is 22

weeks pregnant. She wishes to terminate thepregnancy. Her mother, on the other hand, wantsher to keep the baby and has threatened towithhold parental consent to the termination.

Advise Mary and Sylvia fully.


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The end of legal personality

(1) SIGNIFICANCE Legal personality is terminated by death

Dead persons have no rights or obligations

Law still protects the deceaseds body

Handling and disposing of a dead body? Interests of public health

Out of respect for the dead

Significance?


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(2) LEGAL REQUIREMENTS

No general legal definition of death

In the past: test was the irreversibleabsence of natural heart and lung activity

Now: no precise moment death is aprocess which may extend over time

Three sources:

S v Williams National Heath Act definition of death

SALC Discussion Paper on Euthanasia


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(3) REGISTRATION OF DEATH

Registration of death is governed by theBirths and Deaths Registration Act of 1992

No helpful definitions in Act

MUST report death to D-G of Home Affairs

D-G will register the death and issue deathcertificate

If natural causes, anyone present or aware ofthe death must notify the D-G

If suspected unnatural causes, must report tothe police as well

Burial? Crossley v National Commissioner


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Common law

Any interested person may approach HC

Proof on a balance of probabilities

Roman-Dutch Law = unclear, especiallyas regards the period of absence;

therefore SA initially followed the EL rule

(absence of 7 years)

In Re Beaglehole

Now consider a variety of factors

Ex Parte Pieters


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Statutory procedure

S5(2) Inquests Act:

if a magistrate considers a persons death

to be due to unnatural causes, must take

necessary steps to ensure an inquest is heldby a judicial officer

Judicial officer to record findings

Record submitted for review to the HC If HC confirms findings, has same effect

as if HC had made the order


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Effect of the order

Not declared dead only PRESUMED

dead

Rebuttable presumption: In re

Kannemeyer

Can be set aside later

Once order granted, persons estate maybe dealt with as if he/she were dead

Termination of marriage???

Dissolution of Marriages on Presumption ofDeath Act


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For next week:

Stated problem: When one person, and

another who would benefit by the first

persons death, die in circs rendering the

order of their deaths uncertain. (read ExParte Graham)

Status and capacity

Introduction to domicile

Documents

Persons 6'.ppt