Law of Persons 2011

Lecture 6: CTOP and the end of legal personality

Agenda
Choice on Termination of Pregnancy Act:
When does legal personality begin in the context of the Constitution? (viz. does the fetus have a constitutional right to life?)

End of legal personality

1. 2. 3. 4. Significance Legal requirements for death Registration of death Presumption of death

CLSA v Minister of Health

Legal question Findings: everyone = every person No qualification or internal limitation in s12(2) Intention would have been made unequivocally = s11 & s28 Anomalous consequences

Is pre-natal life worthy of protection?

Heaton (and Sinclair) Dworkin (Lifes Dominion)

State and community interests Intrinsic value of life

Meyerson (SALJ 1999 (116) 50)

Value of dignity

International instruments re: use of embryos and fetuses in scientific research

Factual scenario
You are an attorney. Mary Watkins and her mother (Sylvia) approach you for advice. Mary, a 17 year old student at Rhodes University, is very overweight due to a thyroid problem and explains to you that she has irregular menses (ie. she does not have regular periods). She advises that she was raped at a party a few months ago where she had been given a drink spiked with a drug. She has just discovered that she is 22 weeks pregnant. She wishes to terminate the pregnancy. Her mother, on the other hand, wants her to keep the baby and has threatened to withhold parental consent to the termination. Advise Mary and Sylvia fully.

The end of legal personality

(1) SIGNIFICANCE Legal personality is terminated by death Dead persons have no rights or obligations

Law still protects the deceaseds body

Handling and disposing of a dead body?
Interests of public health Out of respect for the dead

Significance?

(2) LEGAL REQUIREMENTS

No general legal definition of death In the past: test was the irreversible absence of natural heart and lung activity Now: no precise moment death is a process which may extend over time Three sources:
S v Williams National Heath Act definition of death SALC Discussion Paper on Euthanasia

(3) REGISTRATION OF DEATH

Registration of death is governed by the Births and Deaths Registration Act of 1992 No helpful definitions in Act MUST report death to D-G of Home Affairs D-G will register the death and issue death certificate If natural causes, anyone present or aware of the death must notify the D-G If suspected unnatural causes, must report to the police as well Burial? Crossley v National Commissioner

(4) PRESUMPTION OF DEATH

Person disappears and there is no certainty whether he/she is still alive Not presumed lightly Two ways in which HC may grant a presumption of death order: (1) common law (2) statutory procedure

Common law
Any interested person may approach HC Proof on a balance of probabilities Roman-Dutch Law = unclear, especially as regards the period of absence; therefore SA initially followed the EL rule (absence of 7 years)
In Re Beaglehole

Now consider a variety of factors

Ex Parte Pieters

Statutory procedure
S5(2) Inquests Act:
if a magistrate considers a persons death to be due to unnatural causes, must take necessary steps to ensure an inquest is held by a judicial officer

Judicial officer to record findings Record submitted for review to the HC If HC confirms findings, has same effect as if HC had made the order

Effect of the order

Not declared dead only PRESUMED dead Rebuttable presumption: In re Kannemeyer Can be set aside later Once order granted, persons estate may be dealt with as if he/she were dead Termination of marriage???
Dissolution of Marriages on Presumption of Death Act

For next week:

Stated problem: When one person, and another who would benefit by the first persons death, die in circs rendering the order of their deaths uncertain. (read Ex Parte Graham) Status and capacity Introduction to domicile