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The End of Legal Personality

The document discusses the legal implications of death, defining it as brain death according to the National Health Act. It outlines the termination of legal personality upon death, the proof of death via death certificates, and the presumption of death for missing individuals. Additionally, it covers the administration of the deceased's estate, the dissolution of marriages, and the process for setting aside a presumption of death if the individual is found to be alive.

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5 views7 pages

The End of Legal Personality

The document discusses the legal implications of death, defining it as brain death according to the National Health Act. It outlines the termination of legal personality upon death, the proof of death via death certificates, and the presumption of death for missing individuals. Additionally, it covers the administration of the deceased's estate, the dissolution of marriages, and the process for setting aside a presumption of death if the individual is found to be alive.

Uploaded by

xobongondiphiwe
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Law of Persons

The end of legal personality


The end of Legal Personality
• Definition of “death”
Section 1 of the National Health Act 61 of 2003 adopted the criterion of
brain death as the legal standard in so far as the provision of health
services, donation of corpse or organs and other issues related to are
concerned. This Act uses brain death as a criterion for determining
when a person is legally dead. It is important to note that the definition
of death under the Act is only limited to matters that are governed by
the Act.
• Legal Personality
The consequences of death on a person is that their legal personality is
terminated. This means dead people do not have rights and
obligations.
• Protection of the deceased’s assets
Upon the death of a person, their assets are protected, however these
assets are protected for the benefit of the creditors or heirs.
Proof of Death

The usual way to prove death is by issuing a death


certificate. A death certificate is a prima facie proof
of the person’s death.
There are two reasons why proof of death is
important:
(a) The deceased’s estate may be administered
and distributed.
(b) The surviving spouse or civil union partner may
enter into new marriage or civil union.
Presumption of Death
This occurs in a situation where a person disappears and there is no certainty
as to whether they are still alive or dead. A presumption of death can be
pronounced on these individuals. This can be done in terms of Common Law or
Statute.
1. Common-law procedure
In terms of the common law procedure, any interested party, be it a creditor,
heir, or surviving spouse of the missing person may approach the High Court in
whose jurisdiction the person was domiciled at the time of the disappearance
for an order presuming the person’s death.
The case is brought by way of an application. The applicant must prove on a
preponderance of probabilities that the missing person is dead.
Circumstances under which an application is granted
It is important to note that no fixed time period of time is required when
considering presumption of death. Although this is a factor that is taken into
consideration, it is not a decisive or the only factor.
Contii…..
Typically, the law looks at the following:
(a) Age – the fact that a missing person would
have reached an advanced age at the time of
the application is important.
(b) Health- the fact that a person was in bad health
at the time of their disappearance is important.
(c) Suicidal inclinations- the fact that a person
manifested suicidal inclination is important.
The effect of an order of presumption of death
(a) Rebuttable presumption
When the court pronounces a presumption of death, this does not mean that
the person is dead, however there is a rebuttable presumption that the person
is dead.
(b) Distribution and the administration of the missing person’s estate
After the order of presumption is granted, the missing person’s estate may be
distributed as if the person is dead. However, often times, the courts adopt a
cautious approach where it demands security for the restoration of the property,
or its value in the event the presumed death is rebutted.
(c) Dissolution of the missing person’s marriage or civil union.
The dissolution of Marriages on Presumption of Death Act 23 of 1979 regulates
the position pertaining to presumption of death. In terms of Section 1 the Act
provides that A court that grants an application for the presumption of death,
must equally pronounce that the marriage between the parties is dissolved by
death. However, the surviving spouse must be the one to initiate the
dissolution.
Setting aside an order of presumption of death
We did mention that presumption of death is rebuttable,
therefore, the court that pronounced presumption of death
may set aside the order if it becomes apparent that the
person presumed to be dead is in fact alive.
Any interested person, including the missing person may
approach the court for an order that the person’s estate not
be further divided and the order presuming their death be
set aside.
The results of setting aside an order of presumption of
death is that people who benefitted from the missing
person’s estate must return the benefits or their value
thereof. Failure to do so, the missing person has an
enrichment claim against them.

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