Law of Persons · Lexicon

Lexicon

Key terms explained in plain language — filter by letter or search below.

Legal personality: The quality of being a subject of rights and duties in law. For natural persons, legal personality begins at live birth and ends at death. A stillborn child never acquires legal personality, and a foetus in the womb has none. Juristic persons (companies, etc.) acquire legal personality upon incorporation. Legal personality is distinct from capacity to act — a person may have full legal personality yet have limited or no capacity to perform juristic acts independently.
Nasciturus fiction: A rule of law that treats the conceived but unborn child (nasciturus) as if already born, provided this operates to the child's advantage and the child is subsequently born alive. Three requirements must be satisfied: (1) the child must have been conceived at the relevant time; (2) the legal position must benefit the child; and (3) the child must ultimately be born alive. Applied in the law of succession (e.g. Ex parte Boedel Steenkamp). In the law of delict, the fiction is not required — a child born alive may sue for ante-natal injuries in its own right (Road Accident Fund v Mtati).
In ventre matris: Latin: “in the womb of the mother.” Describes the legal position of a foetus that has been conceived but not yet born. Such a foetus has no legal personality. It may, however, benefit from the nasciturus fiction, which deems it already born where doing so operates to its advantage — provided it is subsequently born alive. The phrase is used in succession and family law contexts to identify the class of persons who may potentially benefit.
Born alive: The threshold condition for the acquisition of legal personality at the beginning of life. A child is born alive if it is (1) fully delivered from the mother's body and (2) shows signs of life after delivery (e.g. breathing, heartbeat, movement). A stillborn child — one that shows no signs of life after delivery — never acquires legal personality and cannot inherit or be the bearer of rights. The born-alive requirement also governs the retrospective application of the nasciturus fiction.
Legal capacity (status): The capacity to be the bearer of rights and duties. Also called rechtspersoonlikheid or legal subjectivity. All natural persons have full legal capacity from the moment of live birth until death, regardless of age, mental state, or other factors. It is distinct from capacity to act (handelingsbevoegdheid), which concerns the ability to perform valid juristic acts independently. A person may therefore have full legal capacity yet have diminished or no capacity to act.
Capacity to act (handelingsbevoegdheid): The capacity to perform valid juristic acts independently. Unlike legal capacity (which all persons share), capacity to act exists on a spectrum: (1) Full — majors of sound mind; (2) Limited — minors (need guardian's assistance), prodigals (need curator's assistance); (3) Absent — persons of unsound mind during a period of mental illness; severely intoxicated persons. A person who lacks capacity to act cannot enter into binding contracts or perform other juristic acts without the intervention of a representative or assistant.
Capacity to litigate: Also called locus standi in iudicio — the capacity to act as a party in legal proceedings in one's own name: to sue or to be sued. Distinct from: (1) passive legal capacity (merely holding rights); (2) the capacity to perform juristic acts (conducting private legal transactions); and (3) criminal capacity (being accountable for crimes). Minors lack full litigation capacity and must be assisted or represented by a parent or guardian. The court may raise a litigant's lack of capacity of its own accord as a procedural bar.
Juristic act: A lawful, voluntary act directed at creating, varying, or terminating a legal relationship. Examples include concluding a contract, making a will, entering into marriage, and accepting or repudiating an inheritance. A juristic act differs from a delict (which is unlawful) and from a mere factual act (which has legal consequences irrespective of intent). The validity of a juristic act may depend on the capacity to act of the person performing it.
Major / Majority: A person who has reached the age of majority, set at 18 years by s 17 of the Children's Act 38 of 2005 (previously 21 years at common law). Upon attaining majority a person acquires full capacity to act and may independently conclude contracts, litigate, marry, and perform all other juristic acts without assistance. A minor may also be regarded as having majority capacity in respect of matters for which they have been emancipated.
Minor / Minority: A person under the age of 18 years. A minor has limited capacity to act and generally requires the assistance (co-operation) of their guardian to conclude binding juristic acts. Exceptions: a minor may act independently in strictly personal acts (e.g. making a will from age 16 under the Wills Act; consenting to medical treatment in some circumstances). An unassisted minor's contract that falls outside the exceptions is void. A minor's capacity to act may be extended by emancipation.
Infans: A child under the age of 7 years at common law. An infans has absolutely no capacity to act — they cannot perform any juristic act whatsoever, even with the assistance of a guardian. The only legally valid way to conclude a juristic act for an infans is for the guardian to act entirely on the child's behalf as contracting party — not merely to stand alongside the child while the child acts. Critical rule: (1) Infans buys alone → invalid; (2) Infans buys with guardian standing by → invalid (child remains the party); (3) Guardian buys on the infans's behalf → valid; (4) Infans accepts a donation alone → invalid (must be accepted by the guardian, court, or Master). Distinguished from a minor (ages 7–18), who has limited but existing capacity to act.
Guardian (voog): A person with the authority and duty to act on behalf of a minor and to manage the minor's person and property. Guardianship is primarily vested in the parents of the child (both parents for a child born in wedlock; mother automatically for an extra-marital child, with the father acquiring rights via s 21 of the Children's Act). A court may appoint a guardian where both parents are deceased or otherwise unable to act. The guardian may either assist the minor (who then acts) or represent the minor (acting in their place).
Assistance (bystand): The co-operation of a guardian in a juristic act performed by the minor themselves, making that act legally binding. Assistance is contrasted with representation, where the guardian acts entirely in the minor's place. Assistance may be given before the act (toestemming) or, in some cases, ratified afterwards. Where assistance is required and absent, the resulting act is void at common law (subject to the rules on enrichment liability and restitutio in integrum for assisted contracts that are prejudicial).
Benefit theory: The discredited proposition that an unassisted minor's contract is binding if it was beneficial to the minor, on the basis that the rule requiring guardian's assistance is for the minor's protection. Definitively rejected in Edelstein v Edelstein 1952 (3) SA 1 (A): benefit is legally irrelevant to the question of validity. An unassisted minor's contract that falls outside the recognised exceptions is void, regardless of how favourable its terms may be. The appropriate remedy where a minor was enriched is an enrichment action, not enforcement of the contract.
Restitutio in integrum: An equitable remedy that restores the parties to the position they were in before a prejudicial contract was concluded (status quo ante). Available to a bound minor (i.e. a minor whose guardian assisted in the transaction) where three requirements are met: (1) the contract was inherently prejudicial at the time of conclusion; (2) the minor was not fraudulent or wilfully dishonest; and (3) the prejudice existed at the time of conclusion and was not brought about by subsequent events (Skead v Colonial Banking). The remedy is discretionary and equitable — a court will not grant it where it would be inequitable to do so.
Void / Voidable: Void: a nullity ab initio — the act has no legal effect from the outset and cannot be ratified or confirmed (e.g. an unassisted minor's contract outside recognised exceptions; a contract concluded during a period of mental incapacity). Voidable: valid and effective unless and until set aside by the affected party or a court (e.g. a bound minor's contract that is prejudicial, which remains enforceable until the minor obtains restitutio in integrum; a prodigal's contract concluded without the curator's consent under Phil Morkel Bpk v Niemand). The distinction is significant for third-party rights and the availability of ratification.
Ratification: The subsequent approval of a juristic act that was initially defective, which validates it retrospectively from the date of the original act. In the context of minority: a contract concluded with guardian's assistance during minority (and thus voidable rather than void) may be ratified by the minor upon reaching majority, either expressly or by conduct consistent with acceptance (Stuttaford & Co v Oberholzer). Ratification is not available for contracts that were void (e.g. concluded entirely without assistance where assistance was required).
Tacit emancipation: The implied release of a minor from parental authority, inferred from the guardian's active consent to the minor's independent life — as opposed to mere passive acquiescence. Courts consider factors such as: the minor living independently; having regular employment; financial self-sufficiency; and the duration of the independent lifestyle (Dickens v Daley). Tacit emancipation does not grant the minor universal majority status — it extends capacity only to those areas of life to which the emancipation relates. The onus of establishing tacit emancipation rests on the party alleging it.
Emancipation: The release of a minor from parental authority, conferring on the minor capacity to act independently in the areas covered by the emancipation. May be express (a formal declaration by the parent or court) or tacit (inferred from conduct — see tacit emancipation). Emancipation is not equivalent to majority: it does not automatically grant full majority status across all legal matters, but rather expands the minor's capacity in relation to the specific sphere of independence that has been recognised.
Estoppel: A common law doctrine that prevents a person from asserting a fact inconsistent with a position they previously represented as true, where the other party detrimentally relied on that representation. In the context of minority: a minor who fraudulently misrepresents their age (claiming to be a major) may be estopped from later relying on their minority to escape liability — but only if three requirements are met: (1) the minor made a false representation; (2) the other party reasonably relied on it; and (3) the other party suffered prejudice as a result. Estoppel does not make the contract valid; it prevents the minor from using minority as a shield.
Delictual accountability (culpae capax / incapax): Whether a person has the capacity to incur delictual liability — i.e. whether they are culpae capax (capable of fault) or culpae incapax (incapable of fault). For children, this is assessed subjectively with reference to the particular child's age and development (Jones NO v Santam Bpk). Once a child is found to be culpae capax, their conduct is judged against the objective reasonable adult standard — not against a fictitious reasonable child. Very young children (generally under 7) are presumed culpae incapax; the zone of 7–14 years involves a rebuttable presumption of incapacity.
Enrichment liability of minors: Where an unassisted minor's contract is void, the minor is not contractually liable, but may incur enrichment liability in respect of any benefit received under the void transaction. The minor is liable only to the extent that they remain enriched at the date of the action — the measure is the lesser of (a) the minor's remaining enrichment and (b) the other party's remaining impoverishment (Edelstein v Edelstein). This prevents the minor from being worse off than if the contract had never been made, while ensuring they do not retain an unjustified benefit.
Prodigal (verkwister): A person against whom a court has made a prodigality order, declaring that they are squandering their assets to the detriment of their dependants or family. A prodigal's capacity to act is analogous to that of a minor: contracts concluded without the consent of the court-appointed curator bonis are voidable (not void) and may be ratified by the curator (Phil Morkel Bpk v Niemand). The order may be lifted when the prodigal demonstrates reform. The prodigal retains full legal capacity in personal matters (e.g. marriage, voting).
Curator bonis: An officer of court appointed to manage the property of a person who lacks the capacity to do so themselves — typically a person under mental illness or a prodigal. Distinct from: (1) a curator ad litem, appointed to represent a person in litigation; and (2) a curator personae, appointed to manage the person's welfare rather than their property. The curator bonis may ratify or repudiate contracts entered into by the person under curatorship, and must account to the court for the administration of the estate.
Curator ad litem: A person appointed by a court to represent a party in litigation who cannot represent themselves — typically a minor, an unborn child (to protect the nasciturus's interests in pending proceedings), or a mentally incapacitated person. Distinct from a curator bonis (manages the estate) and a curator personae (manages personal welfare). Where the interests of an unborn or minor child are at stake in legal proceedings, a court may appoint a curator ad litem to ensure those interests are independently and properly represented before the court.
Curator personae: A curator appointed to manage the personal welfare and daily life of a person unable to care for themselves — typically by reason of mental illness, intellectual disability, or severe incapacity. Distinct from a curator bonis (manages property and finances) and a curator ad litem (represents in litigation). A court may appoint both a curator bonis and a curator personae for the same person where both the estate and the person's physical welfare require management. All curators are officers of the court and must account for their administration.
Lucidum intervallum: A “lucid interval”: a period during which a person who suffers from a mental illness or is under curatorship is, in fact, mentally competent. Juristic acts performed during a genuine lucid interval are valid, provided the person had actual capacity at the moment of the act (Pienaar v Pienaar's Curator). The onus of proving that a lucid interval existed and that the act was performed during it rests on the person seeking to uphold the act. A certificate of curatorship does not conclusively establish incapacity for all moments within the period of the order.
Cognitive limb of mental-illness test: One of two grounds for lack of contractual capacity by reason of mental illness. Under the cognitive limb, a person lacks capacity if, at the time of the transaction, they were unable to understand the nature and consequences of what they were doing (Pheasant v Warne). This limb focuses on intellectual understanding — a person may appear coherent yet still fail to grasp the legal effect of the act. Where this limb is satisfied, the contract is void.
Volitional limb of mental-illness test: The second ground for lack of contractual capacity by reason of mental illness. Under the volitional limb, a person lacks capacity if their apparent consent is motivated by an insane delusion — even if they appear to understand the nature of the transaction (Lange v Lange). The delusion must be causally connected to the decision to contract. This limb recognises that mental illness may distort the will rather than the intellect. Where satisfied, the contract is equally void.
Compos mentis / Non compos mentis: Compos mentis: “of sound mind” — having full mental capacity to perform juristic acts. Non compos mentis: “not of sound mind” — lacking such capacity. A person non compos mentis through mental illness at the time of a transaction lacks capacity to act, rendering the transaction void (subject to the lucidum intervallum exception). Severe intoxication may equally negate capacity: in Van Metzinger v Badenhorst, a contract concluded in a state of severe drunkenness was held void on the basis that the party was non compos mentis at the material time.
Domicile: A person's permanent legal home, which serves as the connecting factor for personal law matters including marriage, succession, and legal status. Governed by the Domicile Act 3 of 1992. Three foundational principles apply: (1) Singularity — a person can have only one domicile at any given time; (2) Necessity — no person can be without a domicile; and (3) every person has a domicile that is ascertained according to the Act's rules. Domicile differs from residence (which may be temporary) and from citizenship (a public-law concept).
Domicile of origin: The domicile assigned by operation of law at birth. For a legitimate child born during the father's lifetime, the domicile of origin is the father's domicile at the time of birth; for all others (extra-marital children, children born after the father's death), it is the mother's domicile. The domicile of origin is superseded when the person acquires a domicile of choice. However, it revives automatically as a safety net if a domicile of choice is abandoned without a new one being simultaneously acquired — preventing a person from being without any domicile.
Domicile of choice: A domicile acquired voluntarily by a person with full capacity. Two concurrent elements are required: (1) Factum — physical presence at the place; and (2) Animus manendi — the intention to settle there for an indefinite period (Domicile Act 3 of 1992). Both must coexist at the same moment (Grindal v Grindal). The pre-Act common-law standard required a fixed deliberate intention to remain permanently (Eilon v Eilon); the Act replaced this with the more flexible “indefinite period” standard, lowering the threshold for acquisition.
Animus manendi: The intention to remain at a place, required for the acquisition of a domicile of choice. Under the Domicile Act 3 of 1992, this means the intention to settle at a place for an indefinite period — a lower threshold than the pre-Act requirement of an intention to remain permanently. The intention must be genuine and settled, not merely contingent or provisional. A person who is present at a place for a fixed or limited purpose (study, employment under contract, etc.) generally does not have the requisite animus manendi.
Domicile Act 3 of 1992: The statute that currently governs the law of domicile in South Africa. Key reforms introduced by the Act: (1) Abolished the domicile of dependence for married women — each spouse now has their own independent domicile, overturning the common law rule that a wife automatically took her husband's domicile; (2) Replaced "permanently" with "for an indefinite period" as the intention standard for acquiring a domicile of choice; (3) Minors acquire their own domicile on reaching the age of 18, at which point their domicile is no longer dependent on their parents.
Presumption of death: A court order declaring that a missing person is presumed to be dead. The enquiry is flexible and factual — there is no fixed minimum period of absence, and the court weighs all circumstances on a balance of probabilities (Re Beaglehole). The order is not a finding of actual death — it raises a rebuttable presumption only, and may be set aside if the person reappears. The order has practical consequences for the missing person's estate, marriage, and dependants, but does not have the same absolute legal effect as a death certificate.
Commorientes: Persons who die simultaneously, or in circumstances where the order of their deaths cannot be determined (e.g. both parties to a car accident). The legal presumption in South African law is that they died at the same moment, with the result that neither can inherit from the other (Ex parte Graham). The presumption is rebuttable by evidence establishing a sequence of death. The commorientes rule is particularly significant in succession, where the timing of death determines whether a legacy lapses.
Sex description: The official designation of a person's sex as recorded in the population register (Home Affairs). Historically binary (male/female). May be altered under the Alteration of Sex Description and Sex Status Act 49 of 2003 following the completion of sex reassignment. The sex description on the register determines how a person is legally classified for all purposes, including the validity of marriage — overriding the previous position established in W v W that a post-operative transgender person could not contract a valid marriage in their reassigned sex.
Alteration of Sex Description and Sex Status Act 49 of 2003: The statute that allows a person who has undergone sex reassignment to apply to the Director-General of Home Affairs to have their sex description altered in the population register. Once altered, the new description governs all legal matters in which sex is relevant, including the right to marry in the reassigned sex. The Act overrides the common-law position established in W v W. It represents a statutory acknowledgment that legal sex is not immutably fixed at birth but may be formally changed following medical intervention.
Intersex: A person born with variations in sex characteristics — chromosomal, hormonal, or anatomical — that do not fit the typical binary definitions of male or female. Intersex is distinct from transgender. SA Law of Persons engages with intersex primarily in the context of sex description and registration. The case of Caster Semenya v IAAF illustrated the complex discrimination issues that arise when regulatory frameworks impose burdens on individuals based on natural biological characteristics — particularly the intersection of sex, gender, and sport eligibility.
Transsexual: The specific legal and medical term for a person who has undergone surgical or medical reassignment of sexual characteristics — a sex change operation. Governed in South Africa by the Alteration of Sex Description and Sex Status Act 49 of 2003. Distinguished from: transgender (a broader term for persons who identify with a gender different from their birth sex but may not have had surgery); and intersex (persons born with naturally occurring variations in sex characteristics). A transsexual who successfully completes the statutory procedure acquires a changed legal sex description that applies for all legal purposes, including the right to marry in the reassigned sex.
Rei vindicatio: The real action in Roman-Dutch and South African law available to an owner to reclaim possession of their property from any person in possession of it without their consent — including an innocent third-party purchaser. It is one of the most powerful remedies in private law because it flows from ownership (a real right), which is enforceable against the whole world. To succeed, the owner must prove: (1) that they own the specific thing; (2) that the defendant is in possession of it; and (3) that the defendant has no right to retain possession as against the owner.
Stipulatio alteri: A contract for the benefit of a third party, in which two contracting parties agree that one of them will render a performance to a third party who is not a party to the contract. The third party acquires an independent right to claim the performance once they accept the benefit. In the context of the nasciturus: because a foetus has no legal personality, a parent cannot contract on behalf of an unborn child. However, a parent may conclude a stipulatio alteri that keeps an offer open for the unborn child to accept once born.
Juristic person: A legal entity other than a natural person that is recognised as having legal personality — i.e. the capacity to be a bearer of rights and duties. Examples include companies, close corporations, universities, municipalities, and certain associations. A juristic person can own property, conclude contracts, sue and be sued in its own name, and incur delictual and criminal liability in appropriate circumstances. Its legal existence is separate from that of its members (the Salomon principle). Legal personality is acquired upon incorporation or recognition, not merely upon association.
Separate legal personality: The foundational principle of company law (and juristic persons generally) that a juristic person is a legal entity distinct from the individuals who compose it. Upon incorporation, a company has its own rights and obligations; its members or shareholders are not personally liable for the debts of the company merely by virtue of membership (Salomon v Salomon & Co Ltd [1897] AC 22 (HL)). Separate legal personality may be "pierced" (the corporate veil lifted) in exceptional circumstances — fraud, abuse of the corporate form, or express statutory provision — to impose personal liability on those behind the entity.
Extra-marital child: A child born outside of a valid marriage. Under modern South African law, the Children's Act 38 of 2005 abolished all status distinctions between marital and extra-marital children — both have equal rights and are treated identically for succession, maintenance, and other purposes. An unmarried father does not automatically acquire full parental responsibilities and rights; he acquires them if he meets the criteria set out in s 21 of the Children's Act, including: (a) having consented to be identified as the father; (b) contributing to the child's upbringing and maintenance; or (c) by court order.
Parental responsibilities and rights: The rights and duties that a parent holds in respect of a child, comprising: care (day-to-day residence and nurturing); contact (spending time with and communicating with the child); guardianship (managing the child's property and legal affairs, giving or withholding consent for juristic acts); and maintenance. Under the Children's Act 38 of 2005, both parents of a child born within a marriage automatically have full parental responsibilities and rights. An unmarried father acquires them by meeting the requirements of s 21 — or by court order. The best interests of the child are the paramount consideration in all matters affecting parental rights.
Pater est quem nuptiae demonstrant: Latin: “the father is he whom the marriage indicates.” A rebuttable legal presumption that where a child is born of a married woman, her husband is presumed to be the child's father. The presumption arises automatically from the existence of the marriage. It may be rebutted by: (1) proof of the husband's impotence; (2) proof of his sterility; (3) proof of absence of sexual intercourse during the probable period of conception; (4) the exceptio plurium concubentium; or (5) DNA evidence — now the most conclusive and widely accepted method in modern courts. The onus of rebuttal rests on the party challenging paternity.
Exceptio plurium concubentium: A defence (exceptio) raised by a man alleged to be the biological father of a child, by which he argues that the mother had sexual intercourse with multiple men during the probable period of conception — thereby casting reasonable doubt on whether he is the actual father. It is one of the recognised methods of rebutting the pater est presumption. The defence does not deny that the defendant had intercourse with the mother; it argues that multiple potential fathers existed, making it uncertain that this defendant specifically is the biological father.