South African Law/Persons/Legal personality

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The law of persons is the branch of private law which govern:

  • The determination of legal personality
  • What beings are legal subjects (persons)
  • The status of legal subjects
  • The effect of various factors on a legal subject.
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A legal subject is any entity which has rights, duties and capacities. Sometimes those rights, duties and capacities are limited for various reasons, for example, a minor has limited capacity to act; a company can only act through its members or through its board of directors; a universitas has no feelings. There are two classes of legal subject recognised in South african law.

  1. Juristic persons and
  2. Natural persons.

Traditionally the Law of persons deals with natural persons. Accordingly we will mention juristic persons in the briefest form and move on to natural persons as soon as is decently possible.

Juristic persons

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In roman law, the only persons recognised as having any rights and duties were natural persons. The concept was developed in Roman Dutch law to include juristic persons.

A juristic person has a separate legal personality from the persons who created it. Thus for example, a company can sue in its own name; a mutual society would have rights and obligations separate from its members; A university could have duties towards its employees...etc. For a comprehensive discussion on legal personality see Jones & Buckle: The Civil Practise of the Magistrate's Courts in South Africa' Ninth Edition. Volume II The Rules Rule 6 and commentary thereto.

A juristic person can come into being in various ways:

  1. By Legislation.
    1. Associations incorporated by general enabling legislation have legal personality. Examples of such jursitic persons are:
      • Companies: Incorporated in terms of the Companies Act Act 61 of 1973.
      • Close Corporations: - The Close Corporations Act 69 of 1984
      • Banks: - The Banks Act 124 of 1993
      • Co-operatives: - The Co-operatives Act 91 of 1981
    2. Associations incorporated in terms of specific legislation E.g.
      • Universities
      • Semi-state organisations.
      • Escom
      • SABC
  2. Associations which comply with common law requirements. These persons are known as universitates (singular: universitas).
      • The association must have continuous existance - even though the people controlling it may differ from time to time.
      • It must have rights, duties and capacities separate from its members
      • Its objects must not be for gain. If it were for gain, it would have to be registered as a company in terms of the Companies Act.
      • Examples are: Churches; Political parties; Trade unions:
  3. Trusts and partnerships are not legal persons. The trustees and partners of a trust or a partnership are personally liable for the liabilities of the entity, although limited personality is given by virtue of other acts, for example the Trust Property Control Act, the Income Tax Act and the like.