Die gemeenregtelike regspersoon in die Suid-Afrikaanse privaatreg / deur Gerrit Johannes Pienaar
It is a fundamental characteristic of his existence that man will establish associations. This phenomenon is acknowledged in all spheres of life, in eluding the juridical. The purpose of this thesis is to examine the distinctive way in which jurisprudence characterizes human association conferring legal subjectivity (legal personality) upon it. Prominence has been given to aspects of legal subjectivity (legal personality) of associations in private law with ideal or non-profit intent. The legal status of the associative legal person in private law is not governed by statute at the moment and is therefore determined by the rules of Common law. Although there is no explicit acknowledgement of the legal person as a separate legal entity in Roman law, the Roman jurists did record certain features of co-operative institutions like corpora, collegia. universitates and eodalitates. Early Roman-Dutch jurists did not consider the legal person to be a separate legal entity either, but they applied the inherited features of the Roman co-operative institutions to other associative groups like guilds and churches. The legal person has been acknowledged as a separate legal entity (legal subject) since the eighteenth century, although the term legal person only originated towards the end of that century. The historical part of the investigation reveals the significant fact that the legal person was already recognized as a separate legal entity in Medieval canon law. The Medieval Roman-Catholic and the Reformational concept of the church exerted an important influence on the view held by later jurists concerning the legal person. The historical part of the investigation further demonstrates that the following features of the common law legal person (association or foundation) in South Africa derive from Roman law, canon law and Roman-Dutch law: It is composed of people (members or administrators); It has perpetual succession, i.e. it exists notwithstanding changes in membership; It is vested with rights and obligations independent of its constitutive members or administrators; It participates in the processes of law through organs; Through its organs it can exercise an independent volition, and therefore it has the capacity to act, the capacity to appear in court in its own name, and to be accountable for its actions; For its continued existence it has to comply with the requirements for the conferment of legal personality as laid down by positive law; It has to have a lawful objective that is not contra bonos mores. It is noticeable that no authority exists at common law for the current supposition that the associative legal person is contractually founded, and also that, at common law, the legal position of the associative legal person was as a rule distinguished from that of societates (societies or partnerships), which are contractually founded. Against this historical background the underlying principles concerning the legal person were investigated. Since the beginning of the nineteenth century the Pandectists, in particular, have attempted a theoretical analysis of the legal person. This gives rise to a number of theories concerning the legal person. Most of the legal theorists, however, tend to over-emphasize one aspect or the other. Von Savigny, for example. stresses the fact that only the individual person (as a moral entity) can act as an actual legal subject and that the legal person as such is merely a legal fiction. Von Gierke, on the other hand, argues that the legal person is composed of organs and that it participates in the processes of law as a super organism with human capacities. Brinz declares that a separate estate can act as a subject in the processes of law. Molengraaff brings the actions of the legal person in connection with the members thereof in their personal capacity; and advocators of juridical realism consider the legal person to be a nominal reality that really exists, but only as an immaterial construction of the mind. From the organ theory of Von Gierke and the functional societal theory of Dooyeweerd, two conclusions, which I would like to endorse, can be drawn: Both these jurists agree that the legal person is founded not on con~ tract, but on internal corporate law (interne verbandsreg). Therefore the statute or constitution is not a contract between the members, but the internal corporate law on which all legal relations between members mutually, and towards outsiders. is based. The legal person is capable of volition and action through organs, and when the organs will and act, juridically speaking it is the legal person that wills and acts. This renders the legal person capable of acting, of appearing in court in its own name, and of being accountable for its actions. In my opinion the nature of the legal person can only be determined by an analysis of legal Subjectivity. Using the transcendental-empirical method as methodological basis, it is imperative in the investigation of legal subjectivity to take both the theoretical analysis of the concept and its practical application into account. The South African legal practice requires the following for the existence of a legal person: there must be an entity vested with rights and obligations independent of its constitutive members or administrators; this entity must continue its existence notwithstanding changes of membership; the entity must pursue lawful objectives that are not contra bonos mores, To this can be added (although it is not explicitly required) that there should be an internal structure of authority, arising from the internal corporate law according to which the organs function. The lack of authority for the supposition made by the South African legal practice (according to some verdicts) that the common law legal person is contractually founded, has already been pointed out. Legal subjectivity is the capacity of an entity to act in a subject in the processes of law. In my opinion only man can act as a legal subject. Seen from a Christian point of view, God created man in His image, and placed him on earth as the pinnacle of creation, to subject, cultivate and protect that creation. Man owes his ability to take part in the processes of law to this God-given status, and he derives his legal capacities from this status. All people are bearers of these capacities, though not always to the same extent. If we deny the legal subjectivity of man, we lose sight of a given fact of creation. Owing to the demand made by God in his creation, only man can be a legal subject. To confer legal subjectivity upon something else than man would be a negation of God's commands and would detract from man's God-given status. Due to the occurrence of associating, however, man does not act as a legal subject only in his individual capacity, but also in association with an organised group. The important difference, however, is that legal subjectivity accrues to the natural person as a matter of course, while the acquisition of legal subjectivity (legal personality) by associations is established according to the legal principles whereby the state regulates society. When legal subjectivity (legal personality) is conferred, an entity comes into being (in actual fact consisting of people) that is more than the sum of its constitutive members or administrators. It is an entity that will continue its existence notwithstanding any changes of membership and it is vested with rights and obligations independent of those of its constitutive members or administrators. Legal subjectivity, therefore, can be defined as that characteristic of man by which he participates in the processes of law either individually (as a natural person) or in association with others (as a legal person), in a distinctive way as a real, concrete organic legal subject), by being vested with capacities (from which arises Subjective rights and legal obligations); this capacity of the legal person exists quite independently of that of each of the individuals that associated to form the legal person. This is an implicit God-given characteristic of every natural person, while the positive law vested the legal person with the same Characteristic in accordance with the legal principles whereby the state regulates society. The legal person of the common law, vested with legal subjectivity (legal personality), displays the following features: It is a real. distinct associative person that participates in the processes of law as a legal subject. It is constituted of members and/or administrators (organs) and although it is similar in some instances to the natural person with regard to the way in which both participate in the processes of law, not all human capabilities can be found in the legal person, and even similar capabilities differ in some respects. In other words, this is no super organism, but a distinct associative person; It is a concrete legal entity, because it is constituted of members and/or administrators. It is not a legal fiction or a mental construction, but a real, existing entity. Even in the case of the foundation the associative person is situated in the success ion of (an) administrator(s) that control(s) or administer(s) an estate with a view to reaching (al predetermined objective(s) within the processes of law; It is a separate entity that, although constituted of members and/or administrators. exists notwithstanding the succession of members and/or administrators, and it is vested with separate rights and obligations; It participates in the processes of law by means of organs. The volition or acts of the organs are the volition or acts of the legal person, juridically speaking. if it is performed in accordance with the internal corporate law (as described in the statute or constitution). This gives the legal person as legal subject the capacity to act, to appear in court in its own name. and to be accountable for its actions. The non-statutory associative legal person at common law is not, in my opinion, contractually founded. but is based on internal corporate law. This legal phenomenon has to be distinguished from the association with~ out legal personality (which is contractually founded). Features of the associative legal person are the following: By virtue of the internal corporate law reciprocal claims are established between members and the legal person as a result of which performances can be demanded between the members and the legal person respectively; The associative legal person is the owner of a separate associative estate that is engaged and administered by the organs. By virtue of their claims against the legal person the members have the capacity to control and to have a say in the management of the estate; The associative legal person is capable of a separate volition and it therefore has the capacity to act, to appear in court in its own name and to be accountable for its actions; In my opinion the associative legal person can lay claim to personality rights as a persona. and demand satisfaction in some cases of prejudice to those rights; The associative legal person as an entity can not only be held liable for lawful acts of the organs, but also for the unlawful acts of the organs, in cases where the legal person directed its volition to effect a certain unlawful action, or acted with unacceptable negligence. As it is possible for the legal person to form its own volition, it can also disclose a guilty inclination. It is furthermore possible for the legal person to be held liable by means of vicarious liability. am .of the opinion that the underlying principles of the legal person at common law present the most suitable basis on which the legal position of cooperative institutions in private law, like churches, political parties. charitable institutions, unions and social associations of the corporative type can be constructed. In doing this the internal legal relations among the members and external legal actions towards outsiders is accounted for in the most satisfactory manner. The legal position of churches is quite distinctive. but in essence it still complies with the requirements for the acquisition of legal personality at common law. In my opinion churches should for this reason be acknowledged as legal persons at common law. The legal position of associations without legal personality (clubs) should be distinguished from the position of legal persons at common law. Associations without legal personality, like the English clubs. are contractually founded; their members are co-owners of the separate club estate and no distinct entity (perosona) is formed. Although the prerequisites for acknowledging legal personality at common law have, in my opinion. been defined satisfactorily in the South African case law, it is not always easy to determine whether these prerequisites are present, especially in the case of informal associations. In order to achieve certainty about the law, I would like to propose that a simple system of registration be introduced for associations and foundations. Those associations and foundations that would like to confirm their legal personality to the outside world, can do so by means of registration. This ought to remove the uncertainties of outsiders (and sometimes members themselves) as to the question whether an informal social association or club is a legal person at common law, and if it is, who the authorized organs are. Such a system of registration, that would naturally have to be instituted by statute, should comprise the following: Legal personality is still conferred according to the requirements laid down by common law; An association that complies with the requirements of common law, is indeed a legal person before registration, but members and administrators can be held responsible personally for actions taken by the organs on behalf of the legal person; Registration serves the purpose of proclaiming the legal personality to the outside world and of indemnifying members and administrators from being held responsible personally for actions taken by the organs. This will make it possible to distinguish the following co-operative institutions: Registered associative legal persons, the members and administrators of which cannot be held responsible personally for actions taken by the organs; Unregistered associative legal persons, the members and administrators of which can be held responsible personally for actions taken by the organs; Clubs or societies that do not qualify for legal personality, because of their contractual nature. Most of the local churches, and without doubt the local Reformed churches, comply with the requirements for legal personality at common law. Because of the adoption and application by the South African courts of the English concept of a church, a conflicting situation has arisen by which local Churches, although they have indeed been defined as common law legal persons at times are considered by the courts to be based on contractual legal relations. No common law authority exists for this point of view, because legal persons are not contractually based according to Roman-Dutch law, and the English unincorporated associations that are indeed contractually based, are not acknowledged as legal persons in English law. To establish the legal position of churches on a purely common law base. one should, in my opinion, characterize the local churches as common law legal persons (based on internal corporate law). Such a point of view would also be in accordance with the fundamental views of Reformed theologians about local churches. As a result of the Reformed dogmatics the connection between local Reformed churches cannot be Seen as a base for an institutionalized body or legal person, but rather as an experience of the unity existing between local churches (with the same articles of faith and church government) because of the fact that all Christians are members of the universal church (the body of Christ). This means that the Reformed Church in South Africa (as a group of churches) is not a legal person and therefore it cannot own land or participate as an entity in the processes of law in any way. It is therefore suggested that the Administrative Bureau of the Reformed Church(es) and the governing body of the Theological Seminary of the Reformed Church(es) act as common law legal persons to perform all the combined legal actions of the individual local churches. The result is that the national synod or religious denomination (kerkverband) itself need not be vested with legal personality. The national synod is a temporary, more comprehensive (meerdere) meeting of the local Reformed churches that is dissolved at the end of each session. Through the meeting of local churches in the national synod and other comprehensive meetings. the religious denomination as such is visibly experienced. In such a way the Reformed concept of church is taken into account. without losing sight of the necessity that local Reformed churches sometimes have to enter into combined legal actions.
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