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Study Unit 3 - The termination of legal personality / legal subjectivity -…
Study Unit 3 - The termination of legal personality / legal subjectivity
Death
The legal personality of a person is terminated by death, dead people can have neither rights nor obligation
Legal subjectivity ends at death:
Somatic death => occurs when brain permanently stops functioning (there can still be a heartbeat - allows fir organ donation)
Molecular death => organs start undergoing irreversible changes
Proof and consequences of death:
Death certificate:
=> Doctor - may only issue death certificate if having seen the body and having proof of death
=> Magistrate
=> High Court
=> Serves as prima facie proof (at first glance) - When a person disappears and it is uncertain whether he/she is alive a death certificate is prima facie proof of death
Direct evidence
=> Sometimes it isnt always possible for a medical practitioner to see the body
=> Proved by the direct evidence of another person who saw the deceased body
Admissible evidence
=> By means of an affidavit, evidence can be submitted
=> Hear say evidence cant be used in court
Presumption of death
Factors considered by the court:
English law => General law - missing for a period of 7 years
Re Beaglehole 1908 TS 49
Missing for 15 years
Would be 46 at the time of the application
Was a Miller in England
Application unsuccessful = not enough evidence
Confirmed that we do NOT follow English law
Roman Dutch Law => Uncertain, no fixed period of time missing
Position
South African Law
Discretion of the High Court
Two possibilities
=>Statutory law
=>Common law
The health of the missing person
1) Ex parte Holden 1954 () SA 128 (N)
Bad health
Depression
Order granted
Circumstances of disappearance
1)Ex parte Parker 1947 (3) SA 285 (C)
Applicant - MRS Parker
Husband on ship to India sunk by enemy submarine
2 years later - application is made
Clear from evidence that he was on the ship
People testified saying he was on board a lifeboat
Others testified that the lifeboat capsized
Conflict in evidence
Order is NOT issued
2) Ex parte James 1947 (2) SA 1125 (T)
Applicant - mother of Jack James
Suspicious disappearance circumstances
James embezzled money, owed money to a broker
Goes for a swim in the sea and disappears
People testify that they saw him
Claims that he had joined the navy under a different name
Order NOT issued
The length of the missing persons absence
Along, not enough to base a presumption of death
1)Ex parte Williams 1937 CPD 391
Elderly lady went for a swim
Not found
2 months later - application made
Not ordered
3 moths later reapplied
Order granted
The age of the missing person
1)Ex parte Rungasamy 1958 (4) SA 688 (D)
Mrs Rungasamy would have been 84 at the time of the application
She has not collected old age pension in 4 years
Order granted
Exposed to danger / risk
Date of disappearance
The trade or occupation of the person presumed to be dead
Effect of the presumption
Estate administered cautio de restituendo (subject to providing security) After death has been officially presume,the person's estate may in principle be dealt with as if he/she were dead and divided among the heirs. Subject to, in certain instances, security for the restoration of the property or its value, should the missing person return
Curator bonus - administers another persons property
Rebuttable presumption - set aside - The presumption of death order does not mean that the person concerned is dead. It is only a rebuttable presumption (reversal)
Marriage
Same court that issues order can at the same time, or anytime thereafter, dissolve marriage
Discretion - It may not dissolve the marriage
Surviving partner must bring application for marriage to dissolve = not automatic
Date of dissolution = typically the same date as the presumption of death order
Effect - the marriage is permanently dissolved - cannot be set aside
Introduction:
Application must be made to High Court for a presumption of death => High court does not pronounce a person dead, merely presumes
Presumption of death can either be ordered in terms of:
=> Common law
-Private person approaches the court
-Must be proved on a balance of probabilities that the person is dead
=>Statutory law
-State takes the initiative
-Magistrate must be certain beyond reasonable doubt
Any person who is interested in the death of a missing person can apply for an order presuming the death of the missing person, the onus of proof rests on the applicant on a balance of probabilities
When circumstances exist where a missing person is probably dead:
Person may have an estate administered
Heirs may insist on inheritance
Spouse may want to remarry
Statutory law procedure
State plays leading role in both circumstances:
Police officer must investigate the circumstances of death
Reports matter to the magistrate of district concerned
Section 16 - onus of proof - evidence beyond reasonable doubt that death has occurred
Death may be due to unnatural causes
Body may or may not be available for post mortem
Magistrate holding inquest must record findings on ID of deceased
Inquests Act 58 of 1959
Consequences:
Automatic dissolution of marriage
Section 2 of the Dissolution of Marriages on Presumption of Death Act
Legal consequences of death
Marriage dissolved
No longer taxable
Life policies become due
Ceases to hold any office
Rules of law of succession
Private law actions for compensation at time of death lapse unless stage of litis contestatio is reached (closing pleadings)
Common law procedure
Apply to the High Court with jurisdiction where person was domiciled
Onus of proof on a balance of probabilities - more likely dead than alive
Interested party - Creditor or surviving spouse
After the application has been heard, a return date is set on which the final order will be made. It is then ordered by the court that all parties should be given notice of the rule nisi and it must also be published in the local press and the Government Gazette. In doing so it is ensured that opportunity is given to any interested parties to bring any further relevant facts or possible objections to the notice of the court before the order is finalized
Missing person
Discretionary capacity of the courts
Initial 7 year rile was suspended by the rule that no fixed period of time is required
Commorientes
English law => Seniority decides
South African law
=> Accepted as if died simultaneously unless the contrary is proved
=> Onus of proof is on a balance of probabilities
Persons who died more or less simultaneously in the same disaster
Relevant Acts
SS 5(1) 16 & 18 of Inquests Act 58 of 1959
Death may be due to unnatural causes
a. Body may or may not be available for post-mortem
State plays leading role in both circumstances
a. Police officer must investigate the circumstances of death
b. Reports matter to the magistrate of district concerned.
Section 16: Onus of proof – evidence beyond a reasonable doubt that death has occurred
Magistrate holding Inquest must record findings on ID of deceased
Consequences:
a. AUTOMATIC dissolution of marriage
b. Section 2 of Dissolution of Marriages on Presumption of Death Act.
Section 18 of the Act provides that if the corpse of the person concerned has not been found or if it has been destroyed, and the evidence proves beyond a reasonable doubt that the person concerned is dead, the magistrate’s findings in regard to the case concerned may be confirmed by a judge of the High Court and that this order will have the same effect as an order presuming the death of the person by that judge.
Two important aspects of this act must be emphasised:
I. The state takes the initiative in these cases as an unnatural death is suspected and this means that it is not necessary for a private person to approach the court with regard to an order for the presumption of death
II. The Judicial officer must be certain beyond a reasonable doubt that the person is dead before he can record a finding that the person is presumed dead. (In common law procedure differs = proved on a balance of probabilities)
Civil Aviation Act 13 of 2009 (chapter 4)
Provides that an enquiry into an aviation accident above the Republic of South Africa or South African territorial waters or in which a South African aircraft was involved, can make use of the procedure in sec 18 as explained as above.
S 1 and 2 of the Dissolution of Marriages on Presumption of Death Act 23 of 1979
1 Court may declare certain marriages to be dissolved
Any provincial or local division of the Supreme Court of South Africa making an order that the death of any married person shall be presumed, may, when making that order or at any time thereafter, on the application of such person's spouse, make an order that the marriage in question shall be deemed to have been dissolved by death as from a date determined by the court, whereupon that marriage shall for all purposes be deemed to have been dissolved by death as from the date so determined.
2 Effect of certain findings on marriages
Whenever an inquest has been held in accordance with the provisions of the Inquests Act, 1959 (Act 58 of 1959 ), in respect of the death of any married person, and any finding in respect of that death has the same effect in terms of section 18 (2) or (2A) of that Act, as if it were an order granted by the relevant reviewing court or judge or by the relevant provincial or local division of the Supreme Court of South Africa, as the case may be, that the death of the person concerned shall be presumed in accordance with such finding, the marriage in question shall for all purposes be deemed to have been dissolved by death as from the date of death of the said person as recorded in terms of section 16 (2) (c) of that Act in that finding.
Ex parte Pieters 1993 (3) SA 379 (D)
73 year old went missing
No health or emotional problems
Retired
Visiting daughter
The court did not grant the order, however, they did divide his estate among his children
The children did not have to provide security
Ex parte Stoter 1996 (4) SA 1299 (E)
The court held that proof that the missing person suffered from depression and high blood pressure was not sufficient to presume his death, and his absence for a period of two years was deemed insufficient for this person.
Main differences between the common law and the Inquests Act procedures
Standard of proof
Common law => on a balance of probabilities
Inquests Act => Beyond a reasonable doubt
Effect on marriage
Common law => Does not automatically dissolve marriage, separate application required under Dissolution of Marriages upon Presumption of Death Act
Inquests Act => Automatically dissolves marriage
Initiated by....
Common law => Interested party e.g. spouse, family, offspring, heir, creditor
Inquests Act => State actors, such as police, minister of transport
Court
Common law => Application to High Court, rule nisi and final order
Inquests Act => Police investigate, magistrate makes finding, High court confirms, making final order
Causa
Common law => Disappearance of a person
Inquests act => Death by unnatural causes suspected, associated with disappearance of natural person