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. / Thesis (LLD)--PU for CHE, 1983
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/381 |
| Date | January 1982 |
| Creators | Pienaar, Gerrit |
| Publisher | Potchefstroom University for Christian Higher Education |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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