[14] Under Roman law, the legal subjectivity of prisoners of war was also usually revoked, while children born with severe deformities—they were known as monstra—could be killed with the permission of a magistrate.
[15][16] A juristic person is a social entity, a community or an association of people which has an independent right of existence under the law.
[17][18] It can be 'the bearer of judicial capacities and subjective rights,’ and the accompanying legal entitlements and obligations, just like a natural person.
[30] A third requirement, that the child be viable, has occasionally been mooted,[32] whereby the foetus must have reached the point in gestation at which it could live (with or without aid) independent of its mother's bloodstream.
[37]For the determination of whether or not a child took breath after birth, questions such as whether or not it cried or registered heart activity, and especially the hydrostatic test, are considered.
'[41] These considerations were of especial significance for the important case of S v Mshumpa, where it was determined that the definition of murder did not extend to the intentional killing of a foetus.
This was the result of the case of J v Director-General, which found unconstitutional section 5 of the Children's Status Act, which held that a child was only to be regarded under the law as 'legitimate' when its birth mother was married.
[45] Although in general, being without legal subjectivity, the foetus has no rights or duties or capacities, there are certain measures in South African law which provide for its protection if it is subsequently born.
Dit verseker slegs dat voordele wat die ongebore vrug na geboorte mag toeval in suspenso gehou word tot sy geboorte'[54]In English, roughly speaking: No legal personality is actually granted to the foetus by deployment of the nasciturus fiction; it remains without legal subjectivity, and does not have a right (to life, for instance) that can be enforced on its behalf.
Were this rule left to stand on its own, and strictly applied, a conceived but unborn child would be unqualified for intestate inheritance.
[58] Testate succession covers those rules which apply if the deceased left behind a legally valid will to determine who would inherit his assets.
[61] The role of the nasciturus fiction in wrongful life actions may best be understood with reference to the cases of Stewart v Botha and Friedman v Glicksman.
[62] Among the other common-law methods available in South Africa for the preservation of the interests of unborn children is their nomination in wills and trust deeds.
[63] Statutory measures for the protection of unborn children may be found in the following legislation: Abortion, legal in South Africa, is regulated by the Choice on Termination of Pregnancy Act.
Length of absence is one, and often it is decisive, but the court will also take into account the circumstances in which the person disappeared, his age and his health.
Ex parte Pieters cited the general rule, established in In re Cuthbert,[85] that prolonged absence is not enough in itself persuade the court to make a presumption of death, especially where there is absolutely no evidence otherwise to suggest it.
In addition to the common law on presumption of death, there is the Inquests Act, which provides for circumstances in which there is a suspicion of unnatural causes.
[87] A record of the findings, if they establish the deceased's identity and date of death, must be submitted to the relevant High Court for review.
[92] It is not always required for this, however, that a court be willing to grant a presumption of death; the court also has the option of appointing a curator bonis to administer the missing person's affairs without granting a presumption-of-death order, the precedent for which was established in In re Kannemeyer, where the heirs were required to give security for the inherited estate in the event that the missing person reappeared.
A second consequence is that the missing person's life policies are paid out to the beneficiaries, on the condition that cautio de restituendo be provided.
The necessary implication of a successful application for the dissolution of a marriage or civil union is that it will remain dissolved even if the missing person reappears.