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Study Unit 4 - Factors which influence status - Coggle Diagram
Study Unit 4 - Factors which influence status
Status
It is a persons standing in the legal world
This standing is determined by all those attributes a person has, or the condition in which he finds himself to which the law attaches consequences
Status is influenced by
Which results in being treated differently
1) Differentiation on grounds of Section 9 of the constitution (justified discrimination)
Domicile
Age
Sex
Child of unmarried parents
Mental illness
Prodigality
2) Puberty and conclusion of marriage
Persons status is closely related to legal subjectivity
And status determines the extent of being a legal subject in legal interaction
The law of persons is that part of private law which inter alia determines the legal status of the legal subject
Horizontal and vertical application of the Bill of rights
Vertical application
Binds the state with the respect of every legal subject
Applicable in the entire bill of rights
Horizontal application
Applicable between legal subjects
Bill of rights - If and to the extent it can be applicable to legal subjects
Important concepts
Justice
Principle that all people are equal before the law
Unfair discrimination
Differentiation that has no valid ground for justification
Illegal - (domicile, age, sex, child of unmarried parents, mental illness, prodigality)
Differentiation
Treating people differently
Valid ground for differentiation = legal (e.g. marriage above puberty)
Unfair discrimination = illegal
Discrimination is allowed, but not unfair discrimination
Section 9 of the Constitution of the Republic of South Africa 1996
1) Everyone is equal before the law and has the right to equal protection and benefit of the law
2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken
3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including, race, gender, sex. pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth
4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 3. National legislation must be enacted to prevent or prohibit unfair discrimination
5) Discrimination on one or more of the grounds listed in subsection 3 is unfair unless it is established that the discrimination is fair
Age and children's rights
Child - person under the age of 18
Bill of rights Section 28 - Best interest of child is of paramount importance in every matter affecting the child
Children's act 38 of 2005
Extended protection and right to participation in decision making
Legal capacities
Capacity to act
Not all legal subjects have the capacity to act
Limited - protection by law for the consequences
The capacity to participate in legal interaction - to perform valid juristic acts
Capacity to litigate
This is the capacity to appear in court as a party to a suit - to bring and defend an action at law
Not all legal subjects have the capacity to litigate
There is usually a close correlation between capacity to act and capacity to litigate
Legal capacity
Every person has legal capacities regardless of their status
Not all persons legal capacity is extended equally - may be restricted
The capacity to have rights duties and capacities
Something that can never have rights, duties or capacities is not a legal subject but can rather be a legal object
Accountability
Influenced by a person's age and mental condition, because fault in the form of either intent or negligence is, generally speaking, a requirement for criminal and delictual liability
Capacity to be held accountable for crimes and delicts
Criminal and delictual liability