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Law of persons textbook 3rd Edition

law of persons (University of the Witwatersrand, Johannesburg)

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Law of Persons
and the Family
3rd Edition

Edited by A Barratt
A Barratt, R Denson, W Domingo,
JD Mahler-Coetzee, F Osman

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Maskew Miller Learning (Pty) Ltd

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First published in 2023

ISBN: 9781485721253 (print)
ISBN: 9781485721383 (epdf)

Publisher: Amelia van Reenen

Managing editor: Monique Maartens
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Acknowledgements:
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permission from Kauffman; p105, Arena Holdings; p118, Arena Holdings; p125, with kind
permission from Bloomsbury; p329, What religion want by Jonathan Zapiro

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Contents
ABOUT THE AUTHORS xiii

PART 1 Law of persons

Chapter 1 INTRODUCTION
– Amanda Barratt 3

Chapter 2 THROUGH THE LOOKING GLASS – DEFINING WORDS AND CONCEPTS IN LAW
– Amanda Barratt 5
1 Defining words and concepts 5
2 What is a ‘person’ – and why does this matter? 6
3 What are rights, duties and legal objects? 6
3.1 Real rights 7
3.2 Personal rights 7
3.3 Personality rights 7
3.4 Constitutional rights 8
4 What is ‘capacity’? 8
4.1 Passive legal capacity 8
4.2 Capacity to perform juristic acts 8
4.3 Capacity to be held accountable for wrongdoing (delicts and crimes) 9
4.4 Capacity to litigate 10
5 What is ‘status’? 10
6 Forms of liability 11
6.1 Contractual liability 11
6.2 Delictual liability 12
6.3 Unjustified enrichment 12
7 Useful remedies, defences and doctrines 13
8 Succession 14

Chapter 3 THE BEGINNING OF LEGAL PERSONALITY

– Jacques Mahler-Coetzee 17
1 Preliminary considerations – Birth and its legal significance 18
1.1 Natural persons, juristic persons, status, capacity, legal subjects, and legal objects 18
1.2 The legal system – Living with the law, the power to change legal rules, and
the ‘rule of law’ 19
2 Nasciturus fiction – Origins in succession – Limitations of its application 19
2.1 Termination of pregnancy in relation to legal personality 24
3 Consequences of the beginning of legal personality 24
3.1 Natural persons – Proof of birth and the medical evidence 24
3.2 Proof of paternity – How can we prove who the biological parents of a child are? 25
3.3 Registration and the naming of natural persons 25
3.4 Identity in the context of naming 26
3.5 Changing a child’s name 26
3.6 Juristic persons – How do juristic persons come into existence? 26
4 The status and protection of non-human animals or environmental entities 28

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Chapter 4 MINORITY – HOW AGE AFFECTS STATUS AND CAPACITY

– Amanda Barratt 31
1 The effect of age on status 32
2 Passive legal capacity 32
3 Capacity to perform juristic acts 32
4 Contracts 33
4.1 Infants 33
4.2 Minors who are seven years and older 34
4.3 The guardian’s assistance 34
4.4 The unassisted contract 36
4.5 The assisted contract 41
4.6 Ratification 45
4.7 The fraudulent minor 46
5 Acquiring and alienating property 48
5.1 Capacity to transfer ownership – Contracts and ‘real agreements’ 48
5.2 Infants 49
5.3 Minors who are seven years and older 49
6 Getting married 50
6.1 Children below the age of puberty 50
6.2 Children over the age of puberty 50
6.3 Consent required for the marriage of a minor 51
6.4 Absence of consent 51
7 Consenting to medical treatment 52
8 Capacity to hold offices and perform certain functions 54
9 Capacity to make a will 54
10 Specific juristic acts governed by statute 54
10.1 Statutes which give minors full capacity to act 54
10.2 Statutes which forbid minors’ juristic acts 55
11 Capacity to be held accountable for wrongdoing (crimes and delicts) 55
11.1 Infants 55
11.2 Minors who are seven years or older 55
12 Capacity to litigate 56
12.1 Infants 57
12.2 Minors who are seven years and older 57
13 The emancipated minor 58
13.1 The scope of the emancipation 58
13.2 The guardian’s consent 58
13.3 Proving emancipation 59
13.4 Other consequences of emancipation 59
14 Termination of minority and attainment of majority 60

Chapter 5 SEX AND GENDER – STATUS AND CAPACITY

– Amanda Barratt, Jacques Mahler-Coetzee and Razaana Denson 64
1 What do we mean by ‘sex’ in a legal context? 65
2 When does the law treat people differently because of their sex? 66
3 Can you change your legal sex? Transsexualism and sexual reassignment 66

Chapter 6 OTHER FACTORS AFFECTING STATUS AND CAPACITY

– Razaana Denson 70
1 Mental illness – What the law says 71
2 Sources of law applicable to mental illness and mental disability 72
3 What is mental illness? 72
4 How is mental illness proved? 73

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5 What is the impact of mental illness on capacity? 74

5.1 Capacity to perform juristic acts 74
5.2 Capacity to litigate 75
5.3 Capacity to hold office 75
5.4 Other statutory limitations imposed on mentally ill persons 75
5.5 Curatorship and administration 75
5.6 Administrator in terms of the Mental Health Care Act 17 of 2002 77
6 Mental illness in the commission of delicts and crimes 78
7 Intoxication from drugs and/or alcohol 78
7.1 Capacity to perform juristic acts 78
7.2 Capacity to litigate 79
7.3 Capacity to hold office 79
7.4 Curatorship 79
7.5 Delictual and criminal liability 79
8 Prodigality 80
8.1 What is a prodigal? 81
8.2 Applying for an order of prodigality 81
8.3 The capacities of a prodigal 81
8.4 The effect of the Bill of Rights on an interdicted prodigal 83
9 Insolvency 84
9.1 Definition of insolvency 84
9.2 Consequences of insolvency 84
9.3 The legal capacities of an insolvent 85
10 Physical disability 86
10.1 Appointment of curators 87
10.2 Legal capacities of a person for whom a curator has been appointed 87

Chapter 7 DOMICILE
– Amanda Barratt 89
1 What is domicile? 89
2 When is it important to know where a person is domiciled? 89
2.1 Which legal system applies? ‘Choice of law’ or ‘conflict of laws’ or ‘private
international law’ 90
3 Where is a person domiciled? Domicile Act 3 of 1992 92
4 Domicile of choice 92
4.1 Is the person competent to establish a domicile of choice? 93
4.2 Has the person in fact established a domicile of choice? 93
5 Domicile of closest connection 95
6 Domicile of origin 96
7 Proving domicile 96
8 Exclusivity and tenacity of domicile 97
9 Excluding renvoi 98

Chapter 8 THE END OF LEGAL PERSONALITY

– Jacques Mahler-Coetzee 101
1 Death and its legal significance 101
1.1 Juristic persons 102
1.2 Natural persons 102
2 Proof of Death 102
3 Presumption of death and its effect – What if there is no corpse to examine? 105
3.1 The common law presumption of death 106
3.2 The statutory procedure – Inquests Act 58 of 1959 108
3.3 Commorientes – Presumptions about the order in which people died 109
4 Registration of death 109
5 Returning from the dead? 110

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Chapter 9 LAW AND THE DEAD

– Jacques Mahler-Coetzee 112
1 Burial and other duties 112
2 Post-mortem examination 114
3 Crimes involving the human corpse 114
3.1 Body snatching and grave-robbery 114
3.2 Necrophilia 115
3.3 The use of human tissue pre- and post-mortem 116
3.4 Approved use of human tissue and human organs 117
4 End note – returning from the dead? 120

PART 2 Family law

Chapter 1 INTRODUCTION – FAMILY LAW IN 21ST-CENTURY SOUTH AFRICA
– Amanda Barratt and Wesahl Domingo 125
1 The ‘sexual family’ … or families based on ‘shared commitment’? 127
1.1 Single mothers and single fathers 127
1.2 Extended families 128
1.3 Polygynous families 128
1.4 Unmarried families 128
1.5 Same-sex families 129
1.6 Child-headed households 129
1.7 Diverse families 129
2 Families and the Constitution 130
2.1 Inherent human dignity and the right to family life 130
2.2 Embracing diversity 131
2.3 Marriage-centrism? 132
2.4 Equality, fairness and respect within the family 132
3 The objectives of family law 133
3.1 Protection 133
3.2 Promote fairness within the family 134
3.3 Promote legal certainty and predictability 134
3.4 Value system for society 134
3.5 Symbolism 134
4 Defining ‘family law’ 134
5 The chapters in this part of the book 135

Chapter 2 PARENT AND CHILD

– Amanda Barratt and Wesahl Domingo 137
1 The rights of the child 139
1.1 The child’s best interests 139
1.2 What does ‘paramount’ mean? 141
1.3 The child’s views 142
2 Parental responsibilities and rights 143
3 What are parental responsibilities and rights? 144
3.1 What is guardianship? 144
3.2 What does ‘care’ mean? 144
3.3 What does ‘contact’ mean? 147
3.4 What is maintenance? 147
4 How do people acquire parental responsibilities and rights? 150
4.1 Parental responsibilities and rights of married and unmarried mothers 151
4.2 Parental responsibilities and rights of married fathers 152
4.3 Parental responsibilities and rights of unmarried fathers 155
5 Co-holders of parental responsibilities and rights 156
5.1 Co-guardians 157
5.2 Sharing parental responsibilities and rights 157
5.3 Parenting plans (section 33) 157

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5.4 What happens if a person refuses access or prevents a person from exercising their
parental responsibilities and rights? 158
6 Termination, extension, suspension or restriction of parental responsibilities and rights 158

Chapter 3 ADOPTION, ARTIFICIAL FERTILISATION AND SURROGATE MOTHERHOOD

– Wesahl Domingo 162
1 Adoption 162
1.1 When can a child be adopted? 163
1.2 Who can adopt a child? 163
1.3 Who must consent to the adoption? 164
1.4 Gathering information about the required consent and giving notice of the
proposed adoption 164
1.5 When is consent to the adoption not required? 165
1.6 How does one give consent to the adoption? 165
1.7 What are post-adoption agreements? 166
1.8 What are freeing orders? 166
1.9 What are the procedural requirements when applying for an adoption order? 166
1.10 What does the court consider in an adoption application? 167
1.11 What are the effects of an adoption order? 167
1.12 How do you cancel an adoption order? 168
1.13 What are the effects of cancelling an adoption order? 168
1.14 Are payments allowed for an adoption? 169
1.15 Can an adopted child find their biological parents? 169
1.16 What are intercountry adoptions? 169
2 Artificial fertilisation 170
2.1 What is artificial fertilisation? 170
2.2 What is the status of a child conceived by artificial fertilisation? 170
2.3 Access to biographical and medical information concerning genetic parents 170
3 Surrogate motherhood 171
3.1 What is a surrogate mother? 171
3.2 What is a surrogate motherhood agreement? 171
3.3 Do you have to enter into an agreement with the surrogate mother? 171
3.4 Whose consent is required in the case of a surrogate agreement? 171
3.5 Genetic origin of the child 171
3.6 Confirmation by the court 172
3.7 What is the status of a child born of a surrogate motherhood agreement? 173
3.8 Can a surrogate motherhood agreement be terminated? 173
3.9 What is the effect of termination of a surrogate motherhood agreement? 173
3.10 Can a surrogate mother terminate her pregnancy? 174
3.11 Can a surrogate mother receive payment? 174
3.12 Access to biographical and medical information concerning genetic parents 174

Chapter 4 ENGAGEMENTS
– Jacques Mahler-Coetzee 177
1 Common law and the contents of an engagement 177
2 Capacity to conclude a contract of engagement 178
3 Termination of the contract of engagement 178
4 Breach of contract of engagement 179
5 Damages for breach of contract of engagement 179
5.1 Breach of contract 179
5.2 Delictual damages – The actio iniuriarum 181
5.3 Reconsidering damages for termination of engagement 182
6 Returning of the engagement gifts 182
7 The fate of children 183

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Chapter 5 REQUIREMENTS FOR CIVIL MARRIAGES

– Amanda Barratt 184
1 What is a civil marriage? 184
2 Requirements for civil marriage 185
3 Capacity 185
3.1 Capacity to marry (absolute capacity) 185
3.2 Capacity to marry each other (relative capacity) 186
4 Consensus – Voluntary informed consent 189
4.1 Lack of capacity to give consent 189
4.2 Metus (duress or intimidation) 189
4.3 Material mistake or fraud 190
5 The prescribed formalities 191
5.1 Marriage officers 191
5.2 Objections 192
5.3 Proof of age and identity 192
5.4 The marriage formula 192
5.5 Witnesses 193
5.6 Place and time of the wedding 193
5.7 Registration of the marriage 194

Chapter 6 VOID, VOIDABLE AND PUTATIVE MARRIAGES

– Razaana Denson 196
1 Void marriages 196
1.1 Legal consequences of a void marriage 197
1.2 Grounds for nullity of marriage 197
2 Voidable marriages 197
2.1 Legal consequences of voidable marriages 198
2.2 Grounds for voidability 198
3 Putative marriages 199
3.1 Requirements for a putative marriage 199
3.2 Consequences of a putative marriage 200

Chapter 7 PERSONAL CONSEQUENCES OF CIVIL MARRIAGE

– Amanda Barratt 202
1 The consortium omnis vitae 202
1.1 Protection of the consortium omnis vitae 203
2 Reciprocal duty of spousal support 206
2.1 General principles of the common law duty of support 206
2.2 Scope and content of the duty of support 207
2.3 Enforcing the duty of support between the spouses 207
2.4 Termination of the duty of support 208
2.5 Liability to third parties who have provided spousal support 208
2.6 Liability of third parties for loss of support 211
3 Managing the common household – Household necessaries 211
3.1 ‘Household necessaries’ 211
3.2 Duty to pay for ‘household necessaries’ 212
3.3 Power to bind the other spouse in contract for provision of ‘household necessaries’ 212
3.4 Requirements for the power to incur debts for household necessaries 213
3.5 Defences against claims based on provision of household necessaries 214
3.6 Overlap between the duty of support and the duty to provide household necessaries 214
4 The matrimonial home 215
4.1 Circumstances in which the court may order ejectment of a spouse 216
5 Parental responsibility and rights 216
6 Other personal consequences of marriage – The ‘marital status’ 216

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Chapter 8 MARITAL PROPERTY

– Amanda Barratt and Wesahl Domingo 219
1 What is marital property? 219
2 Why is it important to have rules about marital property? 220
3 Matrimonial property systems 220
4 Marriages in community of property 220
4.1 The default matrimonial property system 220
4.2 Sharing everything – The basic rule of the in-community-of-property system 221
4.3 Separate property – Assets that do not fall into the joint estate 223
4.4 Liability for debts 224
5 Delicts committed by or against spouses married in community of property 224
5.1 When a spouse pays delictual damages to a third party 224
5.2 When third parties pay delictual damages to one of the spouses 226
5.3 When spouses commit delicts against each other 227
6 Administration of the joint estate 228
6.1 Sole administration and marital power 228
6.2 Abolition of marital power 229
6.3 Equal powers to deal with the joint estate 229
6.4 Transactions that need spousal consent 229
6.5 What is the legal effect of section 15(2) and section 15(3) transactions performed
without spousal consent? 233
6.6 What remedies does the non-consenting spouse have? 234
6.7 Protecting third parties – ‘Deemed consent’ in terms of section 15(9)(a) 235
6.8 Protecting spouses when spousal consent is ‘deemed’ – Section 15(9)(b) 236
6.9 When a spouse cannot give consent or unreasonably refuses to give consent 239
6.10 When a spouse deals with the joint estate in an irresponsible way 239
7 Capacity to litigate when married in community of property 240
8 Marriages out of community of property without accrual 240
8.1 Sharing nothing? The basic rule of the out-of-community-of-property system 240
8.2 The antenuptial contract 241
8.3 Sharing expenses 241
8.4 Sharing property 242
9 Marriages out of community of property including the accrual system 242
9.1 Sharing eventual gains – The basics of the accrual system 242
9.2 Background – Reasons for introducing the accrual system in 1984 243
9.3 How much do the spouses share? 244
9.4 Complicating the calculation – Exclusions from the accrual 244
9.5 Complicating things still further – Commencement values 246
9.6 Protecting spouses’ interests in the accrual 248
9.7 Liability for household necessaries 248
9.8 The antenuptial contract 248
10 Changing the matrimonial property system during the marriage 249

Chapter 9 DISSOLUTION OF CIVIL MARRIAGES

– Amanda Barratt 251
1 Personal consequences of the dissolution of a marriage 252
2 Division of the marital property when the marriage is dissolved by death 252
2.1 Marriages in community of property 252
2.2 Marriages out of community of property 253
2.3 Marriages out of community of property with the accrual system 254
3 Claims of the surviving spouse 254
3.1 Claims based on inheritance 254
3.2 Claims based on the Maintenance of Surviving Spouses Act 255

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Chapter 10 GROUNDS FOR DIVORCE

– Amanda Barratt 257
1 Divorce as a widespread social and legal practice 257
2 What is the purpose of divorce law? 258
2.1 Promote social stability 258
2.2 Protect the economic interests of the spouses 259
2.3 Protect the best interests of children 259
2.4 Provide divorce procedures that are efficient and inexpensive 259
2.5 Provide divorce procedures that do not escalate hostility and bitterness 259
3 Grounds for divorce 259
3.1 The move from fault-based divorce to no-fault divorce 259
3.2 Grounds for divorce in terms of the Divorce Act 70 of 1979 260
3.3 The irretrievable breakdown of marriage (section 4(1)) 260
3.4 Listed circumstances that might indicate an irretrievable breakdown (section 4(2)) 261
3.5 Mental illness and continuous unconsciousness (section 5) 262
3.6 Does the court have discretion to refuse to grant a divorce? 263

Chapter 11 ECONOMIC CONSEQUENCES OF DIVORCE

– Amanda Barratt 265
1 The economic context of divorce 265
2 Written agreements (section 7(1)) and the ‘shadow of the law’ 266
3 Dividing the property according to the matrimonial property system 267
4 Forfeiture of patrimonial benefits of the marriage (section 9(1)) 268
4.1 How does forfeiture work? 268
4.2 When will the court order forfeiture of benefits? 270
4.3 How does the court decide if a spouse will be unduly benefitted? 270
5 Transfer of assets (section 7(3)) 271
5.1 When will the divorce court make a transfer order? 273
5.2 How much will the court transfer? 274
5.3 Is section 7(3) unconstitutional? 277
6 Spousal maintenance after divorce (section 7(2)) 278
6.1 What is spousal maintenance? 278
6.2 The ‘clean break’ model 278
6.3 Reasons to award spousal maintenance 279
6.4 Section 7(2) 280
6.5 Changing a spousal maintenance order 282
7 Pension interests 282

Chapter 12 CHILDREN AFTER DIVORCE

– Amanda Barratt and Wesahl Domingo 285
1 What is an order for ‘care’ or ‘custody’? 286
2 What is an order for ‘contact’ or ‘access’? 289
3 Maintenance orders 289
4 Guardianship 290
5 Arrangements for children and the ‘child’s best interests’ standard 290
5.1 What are the ‘child’s best interests’? 291
5.2 How do we ascertain the ‘child’s best interests’? Procedural mechanisms 292
6 What about the rights and interests of parents? 295

Chapter 13 CUSTOMARY MARRIAGES

– Fatima Osman 297
1 The nature of customary marriages 297
2 The legal status of customary marriages 299

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3 Requirements for formation of a valid customary marriage 301

3.1 A marriage negotiated and entered into or celebrated in accordance with
customary law 301
3.2 Prohibited degrees of relationship 303
3.3 Existing civil marriages 303
3.4 Requirements for the formation of a polygynous marriage 303
4 Registration of the marriage 304
5 Personal consequences of marriage 304
6 Matrimonial property system 305
6.1 Monogamous marriages 305
6.2 Polygynous marriages 306
7 Divorce 308
7.1 Grounds for divorce 308
7.2 Children and divorce 308
7.3 Economic consequences of divorce 308
8 Converting a customary marriage into a civil marriage 309
9 Single marriage statute 310

Chapter 14 RELIGIOUS MARRIAGES

– Fatima Osman 311
1 The difference between a religious marriage and a civil marriage 311
2 When can parties enter into a religious marriage and a civil marriage? 312
3 Are religious marriage rules recognised and enforced as rules of South African civil law? 312
3.1 Couples married by both religious law and civil law 312
3.2 Couples married by religious law only 313
4 ‘Mutually respectful coexistence’ – Religious marriages and the Constitution 314
5 Patchy legal recognition for Muslim and Hindu marriages 315
5.1 Religious marriages as universal partnerships 315
5.2 Rules of custom? 316
5.3 Regulation in terms of the rules of contract 316
5.4 Statutory recognition of religious marriages 316
5.5 Extension of benefits to spouses in religious marriages in court cases 317
6 Legal integration of religious and civil law 320
6.1 Legal nature of a Muslim marriage 321
6.2 The Muslim Marriages Bill 323
7 Single marriage statute 323

Chapter 15 CIVIL UNION

– Wesahl Domingo 325
1 What is a civil union? 326
2 Who can solemnise a civil marriage or a civil partnership in terms of the Civil Union Act? 327
3 When can a marriage officer refuse to solemnise a civil marriage or a civil partnership? 327
4 Who is allowed to get married or civil partnered in terms of the Civil Union Act? 328
5 Can a person object to a proposed civil union? 328
6 What is the civil union solemnisation formula? 328
7 How is a civil union registered? 329
8 What are the legal consequences of a civil union? 329

Chapter 16 DOMESTIC PARTNERSHIPS

– Amanda Barratt and Razaana Denson 332
1 The legal status of domestic partnerships 333
2 Express private contracts and wills 333
2.1 Formal domestic partnership agreements 334
2.2 Wills 334

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3 Tacit contracts 334

3.1 Partnership agreements 335
3.2 Support agreements 337
4 Legislation 338
5 Constitutional challenges to the legal status of life-partners 339
5.1 Successful constitutional challenges by same-sex domestic partners 339
5.2 Constitutional challenges by heterosexual partners 340
6 The Draft Domestic Partnerships Bill of 2008 342
6.1 Registered domestic partnerships 342
6.2 Unregistered domestic partners 344
6.3 Thinking about the draft Bill 346

Chapter 17 DOMESTIC VIOLENCE

– Wesahl Domingo 348
1 Who can apply for a protection order? 349
2 Who is in a domestic relationship? 349
3 Forms of domestic violence 350
4 How do you stop the abuse? Protection orders 352
5 Considering the application 353
6 Issuing an interim protection order 354
7 Issuing a protection order 355
8 Can a protection order be varied or set aside? 356
9 Role of the police 356
10 Problems with implementing the Domestic Violence Act 358

BIBLIOGRAPHY 360
TABLE OF STATUTES 372
TABLE OF CASES 379
INDEX 388

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About the authors xiii

About the authors

Amanda Barratt is an associate professor in the Department of Private Law at the University of Cape Town and
teaches Family Law.
Razaana Denson is a lecturer in the Department of Private Law at Nelson Mandela Metropolitan University. Her
field of speciality is family law.
Wesahl Domingo is an associate professor at the University of the Witwatersrand, School of Law. She is also an
accredited family law mediator.
Jacques Mahler-Coetzee is a senior lecturer at the Nelson Mandela School of Law, an attorney of the High Court
of South Africa and an instructor at the Law Society’s School for Legal Practice.
Fatima Osman is a lecturer in the Department of Private Law where she teaches African customary law and the
law of succession. She is also an attorney of the High Court of South Africa.

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Part
1 Law of persons
Chapter 1: Introduction 3
Chapter 2: Through the looking glass – Defining words and concepts
in law 5
Chapter 3: The beginning of legal personality 17
Chapter 4: Minority – How age affects status and capacity 31
Chapter 5: Sex and gender – Status and capacity 64
Chapter 6: Other factors affecting status and capacity 70
Chapter 7: Domicile 89
Chapter 8: The end of legal personality 101
Chapter 9: Law and the dead 112

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1 Introduction
Most South African universities offer a course called ‘The law of persons’ in the first year of the LLB degree. Many
new law students are somewhat perplexed by the course name – surely all law is ‘the law of persons’? After all,
people make the law, and the law regulates human behaviour. Students soon discover that the law uses many
puzzling or esoteric terms. In law, things are often not quite what they seem at first glance.
For a start, the word ‘person’ when used as a legal term, does not mean exactly the same thing as the word
‘person’ in everyday language. The first thing that law students learn in their law of persons course is a new
definition of ‘person’ – a legal definition of person. Students are ‘persons’ in the eyes of the law – but so is their
university. In law, a university is also a ‘person’.
Much of the law of persons course examines ‘status’ and ‘capacity.’ A person’s status (their standing in the eyes
of the law) depends on the class or group to which the person belongs. The most important status is ‘minority’
(the status of people who are below the age of 18). Typically a law of persons course will look at minors in detail
and will examine the various capacities that minors do or do not have in the eyes of the law. The law of persons is
also concerned with the capacities of other groups of persons, for example, those who are mentally ill, or people
who are intoxicated.
Many law schools use a course on the law of persons as a general ‘Introduction to Law’. Law of persons is
often the first substantive law course that students do at law school, and this is where students first encounter the
many legal principles and concepts that they will use throughout their LLB (and in legal practice if they choose to
become lawyers). These principles and concepts are the ‘building blocks of law’ – they enable the law to work in
the way that it does.
Fortunately for law teachers and students, the law of persons provides many opportunities for using the
foundational building blocks of law: What is a ‘right’? What does it mean to have a right? How does the law protect your
rights or enable you to assert them? What is a legal ‘remedy’? What can you do with a remedy, and when, and how?
This book is intended primarily for new law students. One of the book’s purposes is to explain how to ‘think
like a lawyer’ and how to ‘work with the rules’. Thus the purpose of the book is not merely to present or state the
rules. Rules are easy enough to find using the internet ... anyone can do that. The primary purpose of a law school
is not to ‘teach rules’. Instead, students come to law school to learn how to use the rules. One of the purposes of
this book is to demonstrate why the rules and principles are useful and important, and how they can be put to use
when solving legal problems.
Law students also learn that all rules are not equal, and all sources of rules are not equal. Rules found in the
Constitution, Acts of Parliament, court judgments, or the writings of the Roman-Dutch writers are more
‘authoritative’ and important than rules found in a textbook. Constitutional rules are more important than rules
found in the other authoritative sources. It is important that you understand the sources of law, and learn how to use
them well. We provide examples of important legal sources and include activities intended to familiarise you with
the various types of legal literature. Again, the emphasis is on how to use the sources when solving legal problems.
The book contains several design features which make it a useful learning resource for law students: there are
activity features in all the chapters and a ‘review your understanding’ section at the end of each chapter. We also
list core ‘Further reading’ at the end of each chapter and the book has a full bibliography for those who wish to
read beyond the ‘Further reading’ lists. We use the index instead of a formal, separate glossary. Some of the terms
in the index are typed in bold, and we provide the page number where you can find a full definition and
explanation of the term.
We use the ‘Obiter’ feature for additional information and discussion. Many of the Obiter discussions
originate from questions asked by students during our lectures. The answers we gave were not core to our lectures,
but students found them interesting or useful, and we thought it would be worthwhile to include parts of those
discussions in this book.
Another core aim of a law school is to invite students to think critically about the law and its rules. Everyone
who works with the law should ask questions such as: ‘Is this a good rule?’; ‘Why does the rule look like this?’; ‘Is
this rule unfair?’; ‘Does this rule have the desired effect?’ In Part 1 of the book, we often use the Obiter boxes to
ask critical questions like this.

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4 Part 1: Law of persons

Here is an overview of the chapters in the first part of the book.

Chapter 2 has two parts. The first part discusses the question: ‘What is a person … and why does this matter?’
In the first part of Chapter 2 we define and discuss the concepts ‘person’, ‘rights’, ‘legal object’, ‘capacity’ and ‘status.’
These are foundational concepts for the law of persons.
The second part of Chapter 2 is really a reference resource. Here we discuss concepts that are not core to the
law of persons as such, but which originate in other branches of law, such as the law of obligations, the law of
property, and the law of succession. In particular, we examine forms of civil liability, important legal remedies,
and the basic rules of succession. You will need to know something about these concepts as you work through the
book. In our experience, students do not always find it meaningful to read the sections on forms of liability and
remedies before they start working with these concepts in the more focused contexts of the later chapters. You
might find it more useful to return to these sections later when you really need an explanation. However, we have
found that students find it very practical to have the forms of liability and the most important remedies grouped
together in one place. This enables them to see an overall structure, and makes it easier to find (or compare) forms
of liability or remedies when this is relevant while reading other chapters in the book.
Chapter 3 expands on the concept ‘person’ or ‘legal subject’. We discuss how someone becomes a ‘person’.
What does the law regard as ‘live birth’ and why is this important? We learn that the unborn can never have rights,
but that under some circumstances, the law will take note of the unborn and protect their potential interests. In
the last part of the chapter we distinguish between people (legal subjects) and other animals (legal objects). We
end the chapter by making you think carefully about this distinction by considering the position of non-human
animals in relation to the legal system.
Chapter 4 is the longest chapter in Part 1. Here we focus on ‘minors’ – people below the age of 18 – and
explore how and why the law restricts the legal capacity of minors. How does the law protect minors from the
consequences of foolish or irresponsible acts? What about the other people involved? Does the law offer them any
protection when dealing with minors?
Chapter 5 looks at sex and gender. In the past, the law discriminated against women because of their sex,
particularly in the context of marriage law. Nowadays men and women are equal in the eyes of the law, and the
Constitution forbids any unfair discrimination against women. Interestingly however, it does permit some
discrimination that is not unfair. We will examine situations where the law treats people differently because of
their sex and ask whether this discrimination is fair or unfair. We will also explore how the law deals with gender
and the issue of sexual reassignment in those who are born with the physical signs of one sex, but who believe and
feel themselves to be the opposite sex to the one they are biologically.
Chapter 6 looks at the limitations that the law places on the capacity to act of some other categories of
people. Here we focus particularly on the capacity of people who are mentally ill. Can mentally ill people make
valid wills? What about people who are so drunk that they don’t know what they are doing? Can you get drunk
and wake up legally married? We will also examine restrictions on the capacity to act of people who are insolvent
or have been declared prodigals. In the last part of the chapter we look at how the law deals with people who have
some physical disability that makes it difficult for them to manage their affairs.
So far we have examined how age, sex and factors such as mental illness influence a person’s capacity in the
law. Chapter 7 deals with a factor that also has a significant effect on a person’s status in the law – their place of
domicile. As you will see, your domicile affects such matters as your personal status, the property system under
which you are married and what judicial system operates in deciding how your estate will be settled when you die.
Chapter 8 is about death and the end of legal personality. Of course, death has important legal implications.
However, there is no clear and unambiguous legal definition of ‘death’.
What happens if someone disappears and everyone believes that they must be dead but can’t produce a
corpse to prove it? How can we create legal certainty about the death – and why is this important? These are some
of the questions we will examine in the section on presumption of death.
Chapter 9 looks at the law regarding the human corpse. Dead people have no rights. So why is the law so
concerned about the treatment of dead bodies? In this chapter we examine organ donations and transplants and
the problem of trafficking in human tissue for commercial gain.

As your first ever ‘using law’ task, think about the following:
USING LAW

What legal rules concerning legal personhood and legal status are you already aware of?
Think back to your school days. Do you remember needing written permission from your parents to
go on a school trip? What about vaccinations that were given at the school? Did your parents need to
sign a permission form? Did you have a cellphone during your school days? Who had the cellphone
contract for this phone?

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Through the looking

2 glass – Defining words
and concepts in law
‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t – till I tell you. I meant: “there’s a nice knock-down
argument for you!”’
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean –
neither more nor less.’1

Words and concepts are the tools of the law. Unlike Humpty Dumpty in Through the Looking Glass, we are not free
to decide what the words and concepts mean. In law, words and concepts have very precise meanings – and they
mean exactly that; ‘neither more nor less’ as Humpty Dumpty might say.
Lawyers are deeply concerned with definitions of words and concepts. They want to know precisely what the
words mean ... whole court cases sometimes hinge on the meaning of a particular word.2 You will notice that Acts
of Parliament often begin with a lengthy section called ‘definitions’. This section explains precisely what the words
mean in the context of the statute.3
The first book on Roman-Dutch law, Introduction to the Jurisprudence of Holland (Inleiding tot de
Hollandsche Rechtsgeleertheyd) was written by Hugo Grotius. The first official publication of this book (in 1631)
began with a foreword addressed to ‘Dear Reader’, which explained that the reason for publishing the book was
that unscrupulous publishers had been printing unauthorised copies that were ‘all imperfect and full of mistakes’.
The reader is assured that this author ‘has been careful to make definitions correspond with the words defined, a
matter in which the jurists often go wrong.’4 There is therefore evidence of the need to define legal words and
concepts precisely on the first page of the very first published work on Roman-Dutch law.

1 DEFINING WORDS AND CONCEPTS

In this chapter we define and explain some of the foundational concepts used in private law. We begin by asking,
‘What is a person … and why does this matter?’ The most important consequence of being recognised as a ‘person’
in the eyes of the law is that a person can have legal rights and duties. We explain why this is so important to the
operation of our legal system by examining the concepts ‘rights’ and ‘duties’ in some detail.
The rights and duties of a legal person depend in part on that person’s ‘status’ in law and on the ‘capacities’
that such status gives the person. ‘Status’ and ‘capacity’ are core concepts in the law of persons, and are the subject
of the longest chapter in the book. It looks, in particular, at the capacities of people who have the status of ‘minors’.
This introductory chapter provides an introduction to the concepts ‘capacity’ and ‘status’ as background to this
part of the book.
We also use this chapter to introduce and define words and concepts from other areas of private law. It is not
possible to study the law of persons without referring to ‘liability’. All the chapters in Part 1 require the reader to
have a basic knowledge of what it means to be ‘liable’, for example, ‘liable in contract’ or ‘delictually liable’. In this
chapter, we provide introductory explanations for three forms of liability: (a) contractual liability, (b) delictual
liability, and (c) liability for unjustified enrichment.

1 The quotation above is from Through the Looking Glass, a still popular book that was written for children in the nineteenth century.
(Carroll, 1998: 186).
2 See, for example, Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) where the Constitutional Court considers the legal meanings of
the words ‘husband’, ‘wife’, ‘spouse’, and ‘marriage’.
3 See, for example, section 1 of the Children’s Act 38 of 2005, which has several pages of definitions.
4 The quotations in this paragraph are from the Dear Reader foreword to Grotius’s Introduction to the Jurisprudence of Holland as
translated by R.W. Lee (Oxford University Press, 1926). Lee writes about the publishing history of Grotius’s work in his own preface. He
explains that Grotius wrote his book while imprisoned at the Castle of Loevenstein between 1619 and 1621. Grotius did not intend to
publish this work: he wrote it to teach his own children about the laws of their country. However, defective copies of the book began to
circulate in the 1620s, and it was in response to this that Grotius decided to authorise the first official publication of the book in 1631.

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6 Part 1: Law of persons

Many of the chapters in Part 1 refer to important legal ‘remedies’ that arise from contract, delict, or unjustified
enrichment. We have grouped together some of the most important remedies at the end of this chapter where we
explain them briefly.
Finally, we provide a brief introduction to the law of succession because readers will require some knowledge
of this area of law when reading later chapters.
When you have worked through this chapter, you should be able to answer the following questions:
• What is a person (legal subject)?
• What is a legal object?
• What are the various classes of rights?
• What is legal capacity?
• What are the various types of legal capacity?
• What is legal status?

The last three sections of the chapter are intended primarily for future reference. As you work through this book,
you can return to these sections for introductions to:
1. Forms of liability:
a) contractual
b) delictual
c) unjustified enrichment
2. Useful legal remedies
3. Introductory rules for the law of succession.

2 WHAT IS A ‘PERSON’ – AND WHY DOES THIS MATTER?

The word ‘person’ as defined in law, does not mean exactly the same thing as ‘person’ in everyday language. The
law defines a ‘person’ as someone or something that can have legal rights and duties.5 As Boberg puts it, ‘A person
may be defined as a being, entity or association which is capable of having legal rights and duties.’6
This definition includes natural persons (human beings). But, as discussed in later chapters, the law also
regards other kinds of entities as ‘persons’. These are called ‘artificial persons’ or ‘juristic persons’ and include
entities, such as commercial companies, banks and universities.7 Some writers prefer to use the term ‘legal
subject’ rather than ‘person’.8 The term ‘legal subject’ means exactly the same thing as ‘person’, as Boberg defines
it. In other words, a legal subject is a being or other entity which is capable of having legal rights and duties.
You will also encounter the term ‘legal personality’. All persons have legal personality. This phrase describes
the quality of being a person (as defined above). Some writers prefer the term ‘legal subjectivity’, which
emphasises the legal aspects of a person’s activities and existence. Legal subjectivity is a synonym for legal
personality.9
The importance of being a ‘person’ in the eyes of the law is that the law recognises that you can have legal
rights and duties. Only persons can have legal rights and duties. In law, ‘this is the essential characteristic that
distinguishes a person from a thing’,10 or from ‘legal objects’ more specifically.

3 WHAT ARE RIGHTS, DUTIES AND LEGAL OBJECTS?

Private law deals with various kinds of rights, for example, real rights, personal rights and personality rights. We
distinguish between the various classes of rights by looking at the legal objects to which the rights relate.11
There are three12 main types of legal objects, giving rise to the three main categories of rights:
• Physical things (for example, houses, farms, cars, cats and pencils). Where the object of the right is a
physical thing, the right is a ‘real right’.

5 Wille’s Principles (2007: 145).

6 Boberg (1999: 6). Very similar definitions appear in Hahlo and Kahn (1973: 103) and Hahlo and Kahn (1960: 345). See also
Paton (1972: 391).
7 Boberg (1999: 4); Wille’s Principles (2007: 145); Hahlo and Kahn (1973: 104).
8 See, for example, Boezaart (2020: 4); Heaton (2021: 3); Hosten (1980: 281–283) using both terms.
9 See Boezaart (2020: 6), providing the following definition: ‘Legal subjectivity concerns the characteristic of being a legal subject in legal
intercourse.’ She contrasts this with their social or commercial activities.
10 Boberg (1999: 3).
11 This approach is clearly set out in Hosten (1980: 277–278); Boezaart (2020: 3) and Heaton (2021: 2–3).
12 Not all private law rights fit comfortably into these categories. Many writers also identify ‘immaterial property rights’ as an independent
category of rights. The objects of these rights are patents, copyrights, or other forms of intellectual property protection (see, for example,
Boezaart (2020: 3); Heaton (2021: 2) and Hosten (1980: 278)). Whether the literary work or invention to which the copyright or patent
relates is in itself the object of the right is an extremely complex and controversial issue. For a useful overview see Kamina (2001: 383).

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Chapter 2: Through the looking glass – Defining words and concepts in law 7

• Performances (for example, babysitting, a taxi-ride, or the payment of money). Where the object of the
right is a performance, the right is a ‘personal right’.
• Aspects of your personality (for example, your reputation or your privacy). Where the object of the right is
an aspect of your personality, the right is a ‘personality right’.

All legal rights give rise to corresponding legal duties. The kind of duty or obligation to which the right gives rise
depends on what kind of right is involved. This can be illustrated by means of specific examples such as those
discussed below.

3.1 Real rights

Where the object of a right is a physical thing, the right is a real
right. Ownership of a physical thing is an example of a real right. Legal objects of ‘real rights’
The most interesting aspect of a real right is that it operates
against the whole world. For example, if a person owns a thing, John’s Everyone else
right has a duty
everybody else in the world has a corresponding duty towards
to respect
them – they must not interfere with their real right of ownership.
John’s right
Here we see a real right, its corresponding duty, and the
object of the right.
We classify the right as a ‘real right’ because the object of the House
right is a physical thing (the house). (legal object)
It’s John’s house, so he has a real right of ownership.
Everybody else has a duty towards John – their duty is to Figure 2.1: Legal objects of real rights
respect John’s right and not to interfere with it (for example, they
should not enter John’s house without his permission).

3.2 Personal rights

Where the object of the right is a performance, the right is a personal right. Personal rights behave differently
from real rights. We saw that real rights operate against the whole world – everybody has a duty to respect a real
right. Personal rights, however, operate primarily against a particular person – the person who owes the
performance. Good examples are the performances owing in terms of a contract.
Here we see a typical contract: John and Mary have agreed
that Mary will babysit John’s children one Saturday afternoon Legal objects of ‘personal rights’
and that John will pay her R200.
This agreement (contract) creates two personal rights: John has John’s Mary’s
right to duty to
a personal right to the performance of babysitting (and Mary has
babysitting babysit
the corresponding duty to babysit). Mary has the right to be paid
R200 (and John has the corresponding duty to pay Mary R200).
We classify both these rights as personal rights because in
both cases, the object of the right is a performance: Performance of babysitting
• performance of babysitting, and (legal object)
• payment of R200.
Figure 2.2: Legal objects of personal rights (a)
3.3 Personality rights
The law protects various aspects of a person’s personality. Every
Legal objects of ‘personal rights’
person has the right to these aspects of personality and may
claim damages if they are infringed. The personality interests
Mary’s John’s
protected in South African law include: right duty to
• physical integrity (the body) to R200 pay Mary
• bodily freedom, for example, protection against unlawful R200
arrest
• reputation (good name)
• dignity Performance – payment of R200
• privacy.13 (legal object)

Figure 2.3: Legal objects of personal rights (b)

13 See generally Neethling (2005); Burchell (1998).

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8 Part 1: Law of persons

Where the object of the right is one of these aspects of personality, the right is a personality right. Personality
rights operate against the whole world. Everyone else in the world has a corresponding duty to respect these rights
and must not interfere with them.

3.4 Constitutional rights

The rights we have examined above (real rights, personal rights, and personality rights) are private law rights.
Constitutional rights are public law rights. They are set out in the Bill of Rights in the South African Constitution,
1996 (sections 7–39).14
The Constitution is the supreme law of the country and, in principle, no rule of law (whether it comes from
common law or from a statute) should violate any of the constitutional rights. In this book, we will discuss what
happens when common law or statutory rules are ‘unconstitutional’. What happens when existing rules infringe
someone’s constitutional rights?

4 WHAT IS ‘CAPACITY’?
In general terms, ‘capacity’ means ‘ability’ or ‘competence’. This is close to its legal meaning. In law, ‘capacity’
refers to what a person is capable of doing in terms of the law. In other words, what are the person’s legal abilities
or legal competencies? Capacity is a complex legal concept and has given rise to considerable debate among legal
commentators.15
Boberg has a clear and straightforward approach to capacity: first, he distinguishes between ‘passive legal
capacity’ and ‘active legal capacity’. Then he divides ‘active legal capacity’ into various types or forms of active legal
capacity. This chapter follows Boberg’s approach. This is the overall structure:
• passive legal capacity
• capacity to perform juristic acts (for example, enter into contracts, get married, transfer ownership of
property)
• capacity to be held accountable for wrongdoing (crimes and delicts)
• capacity to litigate.

4.1 Passive legal capacity

To be ‘passive’ means to be ‘inert’ or ‘acted upon’.16 Passive legal capacity means the capacity merely to have legal
rights and duties. No effort or positive action is necessarily required of you; sometimes the law automatically gives
you rights and duties, or somebody else acquires the rights and duties on your behalf.
Boberg defines passive legal capacity as ‘the capacity merely to have rights and duties.’17All persons have
passive legal capacity. All persons can be the bearers of rights and duties. This is obvious from the very definition
of a person as ‘someone (or something) that can have legal rights and duties’.18
Even newborn babies can have rights and duties. For example, babies are born with the personality right to
physical integrity – everyone else has a duty not to injure or harm the baby’s body.19 A newborn baby might even
have obligations. Boberg gives the example of the child’s duty to support their parents if the child has the means
to do so and the parents are in need of support (for example, if the child has a large inheritance).20

4.2 Capacity to perform juristic acts

Juristic acts are voluntary human acts which have intended legal consequences.21 The capacity to perform
juristic acts refers to a person’s capacity to actively change his or her legal position, for example, by doing things
to acquire legal rights or incur legal obligations.22 In law, juristic acts are regarded as ‘expressions of will’ of the
person performing the acts23 – the person concerned actively intends certain legal consequences to result from

14 Human rights are often understood to give rise to three kinds of state obligations: states have obligations to respect, protect and fulfil
people’s human rights. Section 7(2) of the Constitution provides that ‘The state must protect, promote and fulfil the rights of the Bill of
Rights.’ This particular approach is often called the ‘tripartite typology’. See, for example, Steiner and Alston (2000: 181). The rights in the
South African Constitution also apply to relationships between private individuals (see Currie and De Waal, 2013: 45).
15 See the discussion in Boberg (1999: 65–74).
16 This is part of the definition in the Oxford English Dictionary.
17 Boberg (1999: 66).
18 See the definition of ‘person’ above.
19 See, for example, the discussion in Road Accident Fund v Mtati 2005 (6) SA 215 (SCA).
20 See Boberg (1999: 66 fn 8). See Part 2, Chapter 2 for more information on the reciprocal duties of support between parents and children.
21 See Wille’s Principles (2007: 146) defining juristic acts as ‘voluntary human acts to which the law attaches at least some of the legal
consequences willed by the party or parties performing the act’.
22 See Boberg (1999: 746).
23 Wille’s Principles (2007: 173).

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Chapter 2: Through the looking glass – Defining words and concepts in law 9

their acts. For this reason, the law only recognises capacity to perform juristic acts if the person is capable of
understanding the legal nature and legal consequences of their acts.24
Some people have full capacity to perform juristic acts; other people have none. If, on the one hand, an
unmarried, 45-year-old man of sound mind enters into a contract, he will be bound by that contract.25 He has full
capacity to act and the law will attach all the intended legal consequences to his actions. A man like this is capable
of understanding the legal nature and legal consequences of his acts. On the other hand, if a six-year-old enters
into a contract the contract will be void and will have no legal effect. This is because the law does not recognise the
contracts of six-year-olds. In the eyes of the law, six-year-olds can never understand the legal nature and
consequences of their acts. Six-year-old children have no capacity to perform juristic acts.
Boberg has a useful way of organising the various kinds of juristic acts.26 He lists them as follows:
• entering into contracts
• getting married
• acquiring and alienating property
• making a will
• consenting to medical treatment
• holding office.

We will discuss whether or not various categories of people have the capacity to perform these juristic acts in the
various contexts of the chapters in this book. The longest discussion in the following chapters concerns the
minor’s limited capacity to perform juristic acts. There, we will look specifically at the minor’s capacity to incur
binding contractual obligations.

4.3 Capacity to be held accountable for wrongdoing (delicts and crimes)

We will examine the capacity of various groups of people to be held accountable for their wrongdoings. When
does a person have the capacity to be held liable in delict27 or be found guilty of a crime?
A person can only be found guilty of a crime or liable for a delict if they acted with ‘fault’ (a blameworthy
state of mind).28 Specifically, the person must have acted with either intention or negligence.

Intention and negligence are complex concepts. They are defined simply here:
People act with intention if they do something ‘on purpose’ or deliberately: they know what will
happen, and they purposefully go about achieving this result. For example, person Z knows that
OBITER

Mr Smit’s cat will die if he shoots it and he deliberately achieves the death of Mr Smit’s cat by
shooting it.29
Negligence means ‘carelessness’ of a particular kind. In law, person X will be found to have acted
negligently if a reasonable person in X’s position (a) would have foreseen the possibility that his action
might cause damage to someone else, and (b) would have taken steps to avoid this consequence, and
(c) X failed to take such steps.30

In this book, however, our concern is not so much whether people acted with intention or negligence, but whether
they were even capable of having legal intention or negligence. If the person is capable of having the mental states
of intention or negligence they can be held accountable for their crimes and delicts. If they are not capable of
having these mental states, they can never be accountable for crimes or delicts.31
A person will be accountable (that is, capable of having ‘fault’ in the form of intention or negligence) if
a) the person has the mental ability to distinguish between right and wrong, and
b) the person is able to act in accordance with this understanding.32

24 Boberg (1999: 747).

25 As we discuss in the following chapters, age and mental disability have an enormous impact on a person’s capacity to act. Marriage
might impact on a person’s capacity to act (we look at this in Part 2). Sex has very little impact on a person’s capacity to act (we discuss
this in Part 1, Chapter 5 on sex and gender). Sometimes a man like the one described here might be legally prohibited from entering
into certain contracts. This might be the case if he is an interdicted prodigal or insolvent. We discuss this in Part 1, Chapter 6 on diverse
factors that might influence a person’s status and capacities.
26 The list is modelled on Boberg’s table of contents.
27 For more information about delictual liability see section 6.2 of this chapter.
28 Note the exception of the actio de pauperie and similar delicts that do not require fault. We discuss this in Part 1, Chapter 4 on minority.
29 This form of intention is defined as ‘dolus directus’ or ‘direct intention’.
30 See Kruger v Coetzee 1966 (2) SA 428 (A) at 430.
31 There are a few exceptions to this rule, such as the actio de pauperie which we discuss in Part 1, Chapter 4.
32 Wille’s Principles (2007: 1122) citing Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 403.

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10 Part 1: Law of persons

As you will see in the following chapters, some people are not regarded as accountable in this way (for example,
very young children and people suffering from mental illness). Because these people are not accountable and
cannot form the mental states of intention or negligence, they cannot be held liable in delict33 or be found guilty
of a crime. In Latin, if a person is accountable (that is, capable of fault in the form of negligence or intention) they
are culpae capax.34

4.4 Capacity to litigate

The capacity to litigate means the capacity to be a party to a lawsuit, either as a plaintiff (the person who brings
the case) or as a defendant (the person against whom the case is brought). The question is not whether the person
has a good case in law – it is whether that person can bring the case to the court.
A person might have an excellent case, for example, it might be clear that X has committed a delict against
them by driving through a red robot and crashing into their car. But if they have no capacity to litigate, they will
not be able to sue X in court.
In Latin, people’s capacity to litigate is referred to as their locus standi in judicio.

5 WHAT IS ‘STATUS’?
In the legal context, the word ‘status’ means your standing in the eyes of the law.35 People’s legal status determines
their ‘ability or capacity to relate to the legal system’.36 Specifically, a person’s status determines which legal
capacities a person has in the eyes of the law37 – how do we know if a person has the capacity to conclude contracts,
get married, or litigate? This will depend on their ‘status’.
A person’s legal status (and their consequent legal capacities) is based on membership of a particular class or
group.38 The law is not concerned with all kinds of groups. Paton points out that it is possible to identify various
groups of people – he uses the example of people with blue eyes, or people who play bridge.39 But the law is not
concerned with such groups.40 As we explain in the following chapters, the law is primarily concerned with groups
of people defined in terms of age and mental disability (we also look at sex and gender, intoxication, prodigality,
insolvency and physical disability as factors that might affect status and capacity). Marriage also affects people’s
status and might affect their legal capacities. People who marry in community of property, for example, have
limited capacity to perform some juristic acts.41
On the whole, it is not possible to choose which of these groups you belong to.42 All 17-year-olds fall into the
class ‘minors’ for example.43 Furthermore, once the law assigns you to a class and thus gives you a particular
status, you cannot change the capacities conferred by this status.44 The various capacities associated with a status
are ‘conclusively fixed’ by the law; not chosen by the people who have a particular status.45 All minors have limited
capacity to bind themselves in contract.46 This is the legal consequence of their minority status.
The law decides which groups will be associated with legal status. In South African law, for example,
membership of the group ‘minors’ affects legal status; membership of the group ‘blue-eyed people’ does not. South
African law also decides which people fall into the various groups – how do we know that a 17-year-old is a
minor? This is a rule of South African law. The Children’s Act provides that the age of majority is 18.47

33 With the exception of strict liability delicts. See the discussion in Part 1, Chapter 4.
34 For a general discussion on accountability as requirement for delictual liability, see Neethling (2010: 125–126). For a discussion on the
requirements for criminal accountability, see Burchell (2005: 455–554); Snyman (2020: 25–30).
35 Boberg (1999: 68).
36 Boberg (1999: 68).
37 Boberg (1999: 68). See also Boezaart (2020: 7); Hosten (1980: 284).
38 Paton (1972: 399).
39 Paton (1972: 400)
40 Paton (1972: 400). See also Hosten (1980: 284).
41 See Part 2, Chapter 8 on marital property.
42 See Paton (1972: 400). However, there are obvious exceptions to this general rule: for example, people can choose whether to marry or
not, and people who marry can decide whether or not they wish to marry in community of property. We explain this in Part 2, Chapter 8
on marital property.
43 Unless they are married.
44 Paton (1972: 399). Again, the obvious exception is marriage. It is possible to change some of the consequences of marriage (see Part 2,
Chapter 8 on marital property). There are also invariable consequences of marriage that cannot be changed (see Part 2, Chapter 7 on
personal consequences of marriage).
45 Paton (1972: 399).
46 We discuss this in Part 1, Chapter 4 on minority. Minors need their guardians’ assistance to incur binding contractual liability.
Emancipated minors have more ‘general assistance’, but they are subject to the limited capacities of their minority status.
47 Children’s Act 38 of 2005, s 17. The age of majority was changed in July 2007. Before this date, the age of majority was 21 and
20-year-olds were thus minors. Since July 2007, 20-year-olds are majors in the eyes of the law.

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In South African law, a person’s status is determined by their legal domicile.48 The law of the country of
domicile determines which groups are important, and which group the person belongs to. We discuss this in
Chapter 7 on Domicile.

6 FORMS OF LIABILITY
Many of the chapters in the law of persons’ part of this book refer to various forms of civil liability. The most
important forms of civil liability discussed in this part of the book are:
• contractual liability
• delictual liability
• liability for unjustified enrichment.

As background to the discussions in the following chapters, we set out some of the foundational principles of
these forms of liability here. You might prefer to postpone reading this section on liability until you need to
understand a particular form of liability in the context of another chapter.

6.1 Contractual liability

A contract is an agreement between two or more people that can be enforced by legal mechanisms if necessary. A
contract is a juristic act through which the parties agree that one or both of them will incur legal obligations to
carry out certain performances – for example, to give something or do something.49 Most contracts are reciprocal.
This means that the parties agree that their performances will be offered in exchange for the other party’s
performance.50 A typical example of this is a contract of sale.
For example, Mr Lee is selling a special underwater camera in his shop for R10 000. Trixie offers to buy the
camera. Trixie and Mr Lee enter into a contract in terms of which Mr Lee will deliver the camera to Trixie and
Trixie will pay Mr Lee R10 000. These performances are reciprocal.
Suing someone ‘ex contractu’ (that is, on the basis of contract) is a very powerful claim. In principle, you can
use a contractual claim to get everything the person agreed to pay or do in terms of the contract. The court can
order specific performance from the other contracting party. For example, the court can order that person to pay
all the money they owe in terms of the contract; or deliver the goods they promised; or perform the services they
promised.51 In our example, a court could order Mr Lee to hand over the camera, or order Trixie to pay R10 000.
Where there has been a breach of contract, the court can order the breaching party to pay damages. These
damages can be extensive; they are aimed at putting the innocent party in the same position they would have been
in if the terms of the contract had been fully and faultlessly performed.52

Damages for breach of contract

Trixie is a professional photographer. She urgently needs a very special underwater camera when she
joins a team excavating a famous wreck in the South Atlantic. If she has this camera, Trixie will be able
to photograph the historic excavation and sell the unique photographs to National Geographic
USING LAW

magazine for R100 000.

Mr Lee promises to deliver the special underwater camera before 5 January (the day the expedition
team leaves). Unfortunately, Mr Lee fails to do so. There is no other suitable camera available in the
whole of South Africa. Trixie is unable to take the unique photographs, and loses the opportunity to
earn the R100 000.
What damages can Trixie claim from Mr Lee? How much money could Trixie claim to put her in the
position that she would have been in if there had been full and faultless performance of the contract
(that is, if Mr Lee had delivered the camera in good time)?

48 Wille’s Principles (2007: 53); Hosten (1980: 284–285).

49 See Hutchison (2012: 7).
50 Hutchison (2012: 7).
51 See Wille’s Principles (2007: 738). Note, however, that the court will not always order a specific performance. There are ‘some types of
performance that the law cannot enforce, and others that it will not enforce’ (see Wille’s Principles, 2007: 738). See also Eiselen (2012:
322–324).
52 The aim of these damages is to put the person in the position that he would have been in if there had been ‘full and faultless
performance’ of the contract (Hosten, 1980: 427–428). See Victoria Falls and Transvaal Power Co v Consolidated Langlaagte Mines Ltd
1915 AD, holding that ‘the rule to be adopted is that it should be put in as good position by the award of damages as it would have been
in if the defendant company had carried out its contract’ (at 46); see also Wille’s Principles (2007: 882–883); Eiselen (2012: 329–340). We
say that the person suing for breach of contract is entitled to positive interesse. See Boezaart (2020: 59 fn 79).

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12 Part 1: Law of persons

This book focuses on people who either lack contractual capacity altogether, or who have limited capacity to
contract. People who have limited capacity to contract (for example, unassisted minors between the ages of seven
and 18) cannot incur binding contractual obligations. This means that the other party to the contract will be
unable to sue them ex contractu (on the basis of contract) and will not have the benefit of the powerful contractual
remedies. In some cases (for example, if the contract involves an infant under seven or a person who is mentally
ill), the contract will be entirely void in the eyes of the law. As far as the law is concerned, there is no contract at
all – nothing happened. The parties must be put back in the same position that they were immediately before the
purported (apparent) contract was entered into.53

6.2 Delictual liability

Delicts are civil wrongs.54 A good example of a delict is a car accident. For example, if Sophia drives her car
through a red light and crashes into Mr Larney’s BMW, Mr Larney might be able to sue Sophia in delict. To bring
a delictual claim against a person, you must prove all the ‘elements of delict’.

Essentially, you must prove:

1. Conduct: the person did something (or failed to do something they should have done), and
2. this act is deemed to be wrongful in the eyes of the law, and
3. the person acted with fault (intention or negligence),55 and
4. their action caused …
5. some form of damage to you.56

You use specific delictual remedies to claim damages for different kinds of harm.57 We discuss some of these
delictual remedies in the section on ‘remedies’ below. In general, the law distinguishes between ‘patrimonial’ and
‘non-patrimonial’ damages. You sue for patrimonial damages when the defendant’s act causes you financial or
monetary loss. In our example, Mr Larney can bring a delictual claim for the money he spends fixing his car and
for receiving treatment in hospital. The aim of these patrimonial damages is to put the plaintiff (Mr Larney) in the
same financial position that he would have been in if the delict had not been committed.58
You can also sue in delict for non-patrimonial damages (for non-monetary harm). For example, Mr Larney
might have experienced considerable pain and suffering as a result of his accident. Mr Larney’s pain does not
cause him any financial loss. However, the law will still award him delictual damages (in the form of money) as
compensation for the pain caused by Sophia’s wrongful and negligent act.59 These are non-patrimonial damages.
The aim of non-patrimonial damages awarded for pain and suffering is to compensate the plaintiff – to somehow
‘make good the loss, and to amend the injury’.60 People can also sue for non-patrimonial damages if other
personality interests have been infringed, for example, if someone damages their reputation, invades their privacy,
or harms their body. The aim of an award of damages under the actio iniuriarum is to ‘compensate for impairment
of personality rights’.61

6.3 Unjustified enrichment

Unjustified enrichment claims are the ‘Cinderella claims’ of our legal system. In practice, these tend to be the
claims you use when all else fails.62 Compared to the powerful contractual claims, unjustified enrichment claims
are very weak. Sometimes you will see these claims referred to as ‘quasi-contractual’ claims. It is important to
remember, however, that these are not contractual claims. Also, you should note that if a party does have a valid
contractual claim, they must sue in contract (ex contractu) and cannot use an enrichment remedy.63

53 See Wille’s Principles (2007: 738–739), noting that the purported contract is ‘worthless and non-existent’.
54 Boberg (1989: 1).
55 As explained above, infants (for example) are not legally capable of acting with either intention or negligence. This means that this
element of delict cannot be satisfied when the act of an infant causes damage to someone else.
56 These ‘elements of delict’ are set out on page 1094 in Wille’s Principles and briefly discussed on pages 1094–1095. See also Boberg (1989:
24–25). The question of ‘wrongfulness’ is particularly complex and controversial. For a brief introduction and overview of wrongfulness
see Wille’s Principles (2007: 1096–1102). See also Neethling (2010), generally.
57 See Wille’s Principles (2007: 1092).
58 Wille’s Principles (2007: 1133); Boberg (1989: 478).
59 Boberg (1989: 516); Wille’s Principles (2007: 1161).
60 Per Moseneke DCJ in Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) at para 41.
61 Burchell (1998: 435).
62 See Visser (2008: 9), pointing out that enrichment claims are used ‘where the rules of contract, delict, and property “run out”,’ but
arguing that unjustified enrichment should be seen as ‘an autonomous area of obligations’. See also Sonnekus (2008: 29), discussing the
view of enrichment remedies as offering ‘the last ray of hope’.
63 See BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391. However, see also Visser’s discussion on
unjustified enrichment claims as ‘subsidiary’ to contractual claims (2008: 56–59).

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Chapter 2: Through the looking glass – Defining words and concepts in law 13

In general,64 an action on the grounds of unjustified enrichment arises where ‘one person’s estate is increased
at the expense of another without legal cause’.65 The basic requirements for the remedy are:
1. The defendant has been factually enriched, and the plaintiff has been factually impoverished.
2. There is a causal link between the defendant’s enrichment and the plaintiff ’s impoverishment (in other
words, the defendant has been enriched at the plaintiff ’s expense).
3. There is no valid legal reason (cause) that justifies the enrichment of the defendant at the plaintiff ’s
expense, or that justifies the retention of the enrichment by the defendant.66

You can already see some of the reasons why this claim is weaker than a contractual claim. If a person sues in
contract, they can sue for the full amount owing in terms of the contract. In unjustified enrichment, however,
their claim is limited to the amount of the plaintiff ’s factual impoverishment (see point 1 above).67 Imagine, for
example, that a certain Mr Lee sells an iPhone to Bibi and the purchase price is R2 000. If Bibi is bound by the
contract and doesn’t pay, Mr Lee can sue Bibi ex contractu for the full amount owing. Therefore, if Bibi has not yet
paid anything, Mr Lee can sue Bibi for R2 000.
If Mr Lee is unable to sue Bibi on the contract (for example, if Bibi is an unassisted minor) then Mr Lee could
potentially bring a claim based on unjustified enrichment. Unjustified enrichment claims are limited to the factual
amount of the plaintiff ’s impoverishment.68 As it happens, the real worth of the iPhone is only R1 500. This means
that the most Mr Lee will be able to claim is R1 500. In fact, Mr Lee has only been impoverished to the amount of
R1 500-worth of iPhone, and the unjustified enrichment claim is based on factual impoverishment and not on the
contract price (that is, the enrichment claim is not based on the purchase price of R2 000).69
Another weakness of the unjustified enrichment remedy is that the plaintiff can sue only for the amount that
the defendant in fact remains enriched by, on the day that the plaintiff institutes their action.70 This could be a
problem for Mr Lee. Imagine, for example, that Bibi drops the iPhone into the ocean and it gets swept out to sea;
now Bibi is no longer enriched by R1 500-worth of iPhone. This is unfortunate for Mr Lee – they are using an
unjustified enrichment remedy, and their claim is limited to the amount of Bibi’s factual remaining enrichment.
Unfortunately for Mr Lee, Bibi’s remaining enrichment is now zero.71

7 USEFUL REMEDIES, DEFENCES AND DOCTRINES

In this section we provide an introduction to some of the legal remedies that we refer to in the following chapters.
You might prefer to postpone reading this part of the chapter until you need to understand a particular remedy in
the context of another chapter.
Many of our most important common law remedies have Latin names because we have inherited them from
Roman law. One of the reasons that these remedies have endured is that they are very useful.
The rei vindicatio is one of the most powerful remedies in private law. The owner of a physical thing (for
example, a car or a necklace) can use this remedy to recover their thing from anyone who is in possession of it
without cause.72 The rei vindicatio is an action ‘in rem’ (a property-based remedy).
A condictio is used to recover money when one person has been unjustly enriched at the expense of another.
There are several specific condictiones in our law.73
The exceptio non adimpleti contractus is a defence that can be used when parties owe reciprocal obligations
in terms of a contract. If A sues for performance without performing or offering to perform, B can raise the
defence of exceptio non adimpleti contractus. This defence gives B the right to withhold his performance until A
has performed their side of the deal.74

64 It appears that South African law does not have a general ‘unjustified enrichment’ claim and that strictly speaking, enrichment claims
arise only in certain recognised situations (see Visser, 2008: 4–5) and Sonnekus (2008: 17). These, however, are the general principles
that underpin the claim in these situations.
65 Visser (2007: 1041–1043), quoting Lotz & Brand.
66 Visser (2007: 1041–1046). See also Visser (2008: 157) and Sonnekus (2008: 1).
67 This is because of the ‘double cap rule’ (see, for example, Visser (2008: 8)). The plaintiff ’s claim is limited to the extent of his
impoverishment.
68 Visser (2008: 158–159).
69 But see Part 1, Chapter 4 discussing the rule that the contract price will set a maximum cap on what can be claimed in situations where
the true value of the thing is more than the contract price.
70 This is the other side of the ‘double cap rule’. Wille’s Principles (2007: 1049–1050) and Visser (2008: 163).
71 We will look at other ways in which factual enrichment might be reduced or wiped out in Part 1, Chapter 4 on minority.
72 See Wille’s Principles (2007: 539); Silberberg (2006: 242–246).
73 See generally Visser (2008); Visser (2007: 1041–1090) and Sonnekus (2008).
74 U-Drive Franchise Systems (Pty) Ltd v Drive Yourself (Pty) Ltd 1976 (1) SA 137 (D) at 149D. See Wille’s Principles (2007: 827–828). This
remedy is available only if A has contracted to perform before B or at the same time as B. See Skead v Conradie 1995 (2) SA 111 (A) at
118I. See also Eiselen (2012: 316–321).

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14 Part 1: Law of persons

The Aquilian action (called the actio legis Aquiliae in Latin) is a delictual remedy. A plaintiff can use this
remedy to claim damages for patrimonial loss caused by the defendant’s wrongful act. The defendant must have
acted with either intention or negligence.75
The actio iniuriarum is a delictual remedy. A plaintiff can use this remedy to claim non-patrimonial damages
when their personality rights have been infringed.76 The actio iniuriarum requires fault in the form of intention;
the plaintiff cannot use this remedy if the defendant has been merely negligent.77
The action for pain and suffering is a delictual remedy. A plaintiff can use this remedy to sue for non-
patrimonial damages arising from physical injury (for example, caused in a car accident). They can sue for pain,
suffering, disfigurement, disability and loss of amenities of life, and shortened life expectancy.78 The defendant
must have acted with either intention or negligence.79
The doctrine of estoppel provides that:
1. where A has lied, and
2. B has relied on A’s lie to B’s disadvantage, then
3. A will be prevented (‘estopped’) from relying on the truth in their defence.80

Note that some of these remedies are ‘actions’. X takes the initiative and brings the case to court using the remedy,
for example, the actio iniuriarum or the rei vindicatio. The exceptio non adimpleti contractus, however, is only a
defence (i.e., not an ‘action’). B can use this exceptio only if and when A sues them for performance.
You should also distinguish between the property-based claim (the rei vindicatio) and the personal claims.
The rei vindicatio is part of the law of property. The rei vindicatio is based on ownership of the thing. It can be
brought against anyone who is in possession of the thing without cause. It is a claim in rem (rem means, ‘thing’, in
Latin).81 It is based on a real right.
Claims based on contract, delict, or unjustified enrichment Intestate succession if unmarried
are part of the law of obligations. The contractual, delictual, and and without children:
enrichment remedies cannot be brought against just anyone –
they can be brought only against a particular person. These are A
claims in personam. Leaves R12 000

8 SUCCESSION
This is the area of private law governing what happens to your
Mother gets Father gets
property when you die. You will need a basic knowledge of the R6 000 R6 000
law of succession as you work through some of the chapters in
this book.82
Figure 2.4: Example 1 Intestate succession
The property of the person who dies is referred to as ‘the
estate’. Your estate means everything you own: this includes all
your physical property, for example, house, farm, car, clothes, Intestate succession married
with two children:
book collection, and so on, and all the money you have in the
bank.
B
If you die without a valid will, you die ‘intestate’ and your Leaves R12 million
estate will be divided up according to the rules of ‘intestate
succession’. ‘Intestate succession’ means inheritance where there
is no valid will. Wife gets Child D gets
The basic rule of intestate succession is that the estate must R4 million R4 million
be divided among the deceased’s next of kin (closest family).83
Here are some typical examples: Child C gets
In Example 1, A is unmarried and she has no children. R4 million
However, both her parents are still alive. In this situation, her
next of kin are her parents and they will share her estate equally. Figure 2.5: Example 2 Intestate succession

75 Boberg (1989: 268–269). In practice, most claims are based on negligence rather than intention (Boberg, 1989: 269). See also Neethling
(2010: 8).
76 Wille’s Principles (2007: 1166); Neethling (2010: 12).
77 Boberg (1989: 18).
78 See Boberg (1989: 516); Wille’s Principles (2007: 1161); Neethling (2010: 15).
79 Boberg (1989: 516).
80 See, for example, the definition provided in Miller v Dannecker 2001 (1) SA 928 (C) at para 18. See also Wille’s Principles (2007: 552).
81 The Latin word for ‘thing’ is res. In Latin, the form of the word changes depending on the context. Rem is the same word, and so is rei.
82 For more information on the law of succession see Jamneck and Rautenbach (2017); De Waal (2008) and Palekar (2007: 666–729).
83 See Wille’s Principles (2007: 679–682) for a full explanation of who the ‘next of kin’ are in terms of South African Law of Succession.

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Chapter 2: Through the looking glass – Defining words and concepts in law 15

In Example 2, B is married and has two children. His wife and two children share the estate equally.
Testate succession means succession in terms of a will. The basic rule is that the wishes expressed in the will
must be carried out.84 The person who writes the will is called the testator. If the will fails for some reason (for
example, the person who is supposed to inherit the entire estate in terms of the will is already dead), then the rules
of intestate succession will apply.85
For all forms of succession, the estate ‘vests’ (becomes due) on the day of the deceased’s death.86

Review your understanding

1. Mary agrees to babysit Akhona’s children on Saturday afternoon. Mary agrees that she will not enter
Akhona’s study (Akhona has confidential work documents in there). After Akhona leaves, Mary enters
Akhona’s study. She finds Akhona’s ID document. Mary is amazed that Akhona is much older than she
seems. Mary posts a photo of Akhona’s ID to their WhatsApp group.
Which of Akhona’s rights are infringed by Mary’s actions (if any)? More than one might apply.
a) a real right
b) a personal right
c) a personality right.
2. Mary and Jacob enter into an agreement in terms of which Mary will babysit Jacob’s children on Saturday
afternoon, and Jacob will give Mary his old iPhone. When Mary arrives on Jacob’s doorstep at lunchtime on
Saturday, which of these rights do they have (if any)? More than one might apply.
a) a real right to the iPhone
b) a personal right to delivery of the iPhone
c) a personality right to delivery of the iPhone.
3. Classify the following remedies as (1) property remedies (actions in rem), (2) contractual remedies, (3)
delictual remedies, or (4) remedies to recover unjustified enrichment:
a) specific performance
b) actio iniuriarum
c) condictio indebiti
d) actio legis Aquiliae
e) rei vindicatio
f) breach of contract
g) condictio sine causa specialis
h) action for pain and suffering.
What can you claim with each of these remedies?

Further reading and a note on sources

Boberg’s Law of Persons and the Family. Many of the chapters in Part 1 of this book refer repeatedly to P. Q. R.
Boberg’s Law of Persons and the Family which was first published in 1977. The latest edition (2nd edition, Juta,
1999) was edited by B. Van Heerden, A. Cockrell, and R. Keightly and has contributions by a number of other
people. On the whole, the ideas that we attribute to ‘Boberg’ are Professor Boberg’s own ideas, and appear in
identical form in the first edition. We cite the second edition for convenience.
Boberg’s is an outstanding source on the law of persons and we recommend that you consult it regularly as
you work through this textbook. It is also an excellent source for recommended further reading. He cites hundreds
of cases; you can read these for further elaboration on and illustration of the rules concerned. He also cites the
Roman-Dutch writers, which is very useful if you want to follow up on the Roman-Dutch origins of our common-
law rules.
Wille’s Principles of South African Law (9th edition, edited by F. Du Bois, Juta, 2007). The first edition of
Wille’s Principles was published in 1937. It was 426 pages long. The most recent edition is 1 269 pages long. Clearly,
there are a lot of new ideas in this book that cannot be attributed to Professor Wille. However, it is extremely
difficult to trace the original authors of the ideas through nine editions of the work. We therefore just cite the
abbreviated name of the book Wille’s Principles.

84 See Wille’s Principles (2007: 683–684).

85 Wille’s Principles (2007: 679).
86 Wille’s Principles (2007: 679).

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16 Part 1: Law of persons

Other useful books on the law of persons

Boezaart, T. (2020) Law of Persons, 7th edition, Cape Town: Juta.
Heaton, J. (2021) The South African Law of Persons, 6th edition, Durban: LexisNexis.

Useful introductions to other areas of law

Contract
Hutchison, D. and Pretorius C-J. (eds) (2012) The Law of Contract in South Africa, 2nd edition, Cape Town: Oxford University
Press.
See also the chapters on contract in Wille’s Principles.

Unjustified enrichment
Visser, D. (2008) Unjustified Enrichment, Cape Town: Juta.
See also the chapters on unjustified enrichment in Wille’s Principles.

Delict
Neethling, J. and Potgieter, J. (2010) Law of Delict, Durban: LexisNexis.
See also the chapters on delict in Wille’s Principles.

Criminal law
Burchell, J. (2008) Principles of Criminal Law, 3rd edition, Cape Town: Juta.
Snyman, C. (2020) Criminal Law, 7th edition, Durban: LexisNexis.

Property law
Pope, A. du Plessis, E. (eds) (2021) The Principles of the Law of Property in South Africa, 2nd edition, Cape Town: Oxford
University Press.
See also the chapters on property law in Wille’s Principles.

Succession
Jamneck, J. and Rautenbach, C. (eds) (2017) The Law of Succession in South Africa, Cape Town: Oxford University Press.
See also the chapter on succession in Wille’s Principles.

Constitutional rights
Currie, I. and de Waal, J. (2013) The Bill of Rights Handbook, 6th edition, Cape Town: Juta.

Useful foundational introduction to South African law

If you are a first-year law student, you might find it useful to consult:
Meintjes-Van der Walt, L. (ed) (2019) Introduction to South African Law: Fresh Perspectives, 3rd edition, Cape Town: Pearson
Education. [This book provides a useful overall introduction to the South African legal system, and is intended for
first-year undergraduate law students.]

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