Death
The Final Gate
Personality ends at death.
Brain death
Legal personality terminates at death — the accepted criterion is brain death (irreversible cessation of all brain function), not mere cessation of heartbeat (which matters for organ donation and life support).
Consequences
The estate devolves on heirs/legatees (testate or intestate succession) and is administered by an executor; any marriage is dissolved; most personal rights and duties extinguish. Death must be registered (BDRA 51 of 1992).
Key Rule
Personality ends at brain death. Estate devolves; marriage ends; most personal rights lapse. Register the death (BDRA).
Common Mistake
Using mere cessation of heartbeat as the legal standard. The modern criterion is brain death.
Missing persons
The Hall of the Missing
Presumption of death
If a person disappears with no proof of death, an interested party may apply to court for an order presuming death. The court weighs the length and circumstances of absence, exposure to danger, and the probability of survival. There is no fixed waiting period.
Two routes (know the difference)
- CIVIL / COMMON-LAW application — an interested party asks the High Court to presume death, weighing the evidence; the court may also make a death order under the Dissolution of Marriages on Presumption of Death Act 23 of 1979.
- INQUEST route — under the Inquests Act 58 of 1959 a judicial inquest into an unnatural or unexplained death (or a disappearance presumed to involve death) can result in a formal finding that the person has died.
Effect
The order may direct the division of the estate, often with security in case the person returns; a presumption-of-death order may also dissolve the missing person's marriage.
Key Rule
Presumption of death = a court order on the evidence (absence + danger + improbability of survival). No fixed period. Two routes: a civil/common-law court application vs a statutory Inquests Act finding.
Common Mistake
Treating the civil court application and the Inquests Act inquest as the same thing — they are two distinct routes to establishing or presuming death.
Common disaster
The Common Disaster
No survivorship presumption
Where several people die in a common disaster (commorientes) and the order of deaths cannot be established, SA law applies no presumption that one survived the other.
Effect
The matter is decided on the evidence; where it cannot be resolved, the deaths are treated as simultaneous — which determines the path of inheritance.
Key Rule
Commorientes: SA has no survivorship presumption — deaths are treated as simultaneous if the order is undeterminable.
Common Mistake
Importing a foreign survivorship presumption. SA applies none — it rests on the evidence.
After death
The Resting Place
The law of the dead.
Corpse & dignity
A corpse is not a legal subject — it holds no rights — but the law affords the dead a residual dignity (s 10 of the Constitution). Disposal follows the deceased's lawful wishes, then the heirs/family, with courts resolving disputes.
Donation & protection
Under the National Health Act 61 of 2003, the body, organs or tissue may be donated (by the person in life, or by relatives after death). Post-mortems follow the Inquests Act 58 of 1959. Grave-robbery and necrophilia are crimes.
Post-mortems & human tissue
A post-mortem may be ordered where death is unnatural, unknown or under investigation (Inquests Act 58 of 1959). The use of tissue and organs is governed by the National Health Act 61 of 2003 — only with proper consent, and trade in human tissue for profit is prohibited. Interfering with the dead is criminal: grave-robbery and necrophilia are crimes.
Key Rule
The dead are not subjects but retain dignity (s 10 of the Constitution). Disposal: wishes → heirs → court. Donation under the National Health Act. Succession closes the arc.
Common Mistake
Treating the corpse as a 'subject' that owns property. It does not — but residual dignity is protected.