Elzé IURI 171

What is Law
1

◊ Law governs human behaviour

◊ Obeyed by all of society

◊ It is enforced by state organs

◊ Disobeying the law you may be prosecuted and punished.

SA Law Has Two Main Divisions

Public law & Private law

Public Law: Deals with the relationship between the state and

individuals

Private Law: Deals with the relationship between individuals

and other individuals.

The Law can also be divided:

 Elzé IURI 171

Formal Law: deals with the procedures that must be followed in

2
legal proceedings (the way we act in court,

evidence allowed)

Substantive Law: part of law that determines the content and

the meaning of different legal rules.

The Law and other normative systems.

Normative systems are systems other than the law that govern

human behaviour.

Religion:
 Elzé IURI 171

 Every religion has a code by which the people who follow it

3
live by.

 Every religion also has a sanction (punishment) if this code is

broken.

 It is not the states task to enforce religious norms but

religious freedom must be made possible by the state.

 Their are similarities between law and religion like the

regulation of sexual relationships and murder and so forth

 Their are also differences like adultery is not a crime but it is

a sin.

 Their are certain aspects that the SA law is in favour of like in

criminal law Blasphemy is a crime but only with the Christian

God

 Blasphemy= the act of insulting or showing contempt to a

God.

Individual Morality:

 This is the norms and standards that each person sets for

himself.
 Elzé IURI 171

 A individuals morality may sometimes coincide with their

4
religion or with certain legal rules, like not telling a lie or

being dishonest with fraud.

 The sanction for disobeying these rules are personal and self

imposed

Community Mores:

 Norms of a whole community, they are collective morals.

 Law and community mores may also coincide like the

possession and sale of harmful drugs, it is disapproved by

the community and it is a criminal offence.

 The sanction for breaking these norms may be rejection.

The Question of Justice

Justice = “equality before Law”

In SA Law there are two types of justice Formal Justice and

Substantive Justice.

Formal Justice
 Elzé IURI 171

 Formal law deals with the procedures that must be

5
followed in legal proceedings.

 If formal law is applied exactly the same way and it meets

requirements we say that Formal Justice has been

achieved.

 Requirements to achieve Formal Justice are the following:

 Explicit rules of how people should be treated on

specific cases.

 The rules must apply generally

 The rules must be applied impartially by a legal

institution. (the judge must not be biased)

Substantive Justice

 In certain cases there can be formal justice without there

being “real justice”

 Substantive justice concerns the content of the Rule and not

in the way it is applied.

 Substantive Law is the part of law which determines the

content of the legal rules, therefore to establish whether

Substantive justice is done the content of the rule itself is

looked at to determine whether it is just and fair

 Elzé IURI 171

Formal Law and Substantive Law connect, formal law is the part of

law which regulates the enforcement of Substantive Law

What is a Right?

 When we speak of rights we speak of how people relate to

one another

 In law when you have a right you are the holder to that right.

 Therefore when dealing with rights we are dealing with the

holder of the right and its relationship with the object if the

right and other legal subjects that have to respect that right.

 Every right concerns a relationship of two parts:

 Relationship

beween the legal

subject and the

object of the right

 Relationship

between the legal

subject who is a

holder of the right

an other legal

subject
 Elzé IURI 171

Legal Subjects = anyone who is subject to the norms of the law

and who may also be the bearer of the right.

In Modern SA every person is a legal subject.

The object of the right (legal object) is anything that is of economic

value to someone because it costs a lot of money, it is scarce or

useful.

Four Classes of Rights!

Real rights

 Rights to physical, material things

 There are three types of real rights namely: Rights of

ownership , rights of Pledge , Rights of servitude.

 Elzé IURI 171

 In the rights of ownership the person my freely use and enjoy

8
their property, it does not matter if it is moveable or not , they

can use it destroy it or alienate(sell or give away) it.

 With the right of pledge you give a moveable thing as security

for debt, the powers of the pledge over the pledged thing are

limited.

 The rights of servitude is basically the right of way. One

person has been given the land of another person to use as a

pathway, her powers (content of the right) are also limited.

Thus the servitude holder has a limited right to the property

of the other person.

Personality rights

 The right to physical integrity, the right to a good name and

the right to your honour.

 This right has economic value in a broad sense, it has no

market value BUT it is scarce and not freely obtainable.

Intellectual property rights

 The right to the creation of the human mind.

 Eg: work of art , invention , or trademark

 Elzé IURI 171

 These rights are sometimes called immaterial property

9
rights.

Personal rights

 It is a right to performance , it is also called a claim

 When we speak of performance we speak of human action

either doing something or not doing something

 May either be the delivery of something , the payment of a

purchase , or the service of an employee.

The connection between Law and Rights

 The content of a right is limited

 Law and Right are connected because it is the rules of the

law that decide on what the powers of the holder of the right

are and what the limits to the content of the right is.

 When a legal subject has a right the other legal subjects have

a duty.

 Their always has to be that balance

 If this balance did not exist , the law would have no meaning.
 Elzé IURI 171

10

The history of our Law-a three layered cake

First Layer: Roman law becomes Roman-Dutch Law

 Latin is the language of the Roman empire , and the most

important thing the Roman empire gave us which lasted till

today is their legal system.

 The history of Rome started 753BC and ended 476AD

 When the Roman empire was at its height during the second

half of the first century BC and for the first two centuries AD

it became the master of all the people around the

 Elzé IURI 171

Mediterranean sea. The Roman law that was applied in this

11
period is usually referred to as “classical Roman Law”

 At the end of the fourth century AD , the roman empire split

into two parts: Western Roman empire(Rome as its capital)

and Eastern Roman Empire also known as Byzantium and

now a days called Istanbul as its capital. After this period

Roman law began to decline.

 Various Germanic tribes from Northern Europe gradually

took over the Western Roman empire and in 476 AD a

Germanic ruler took the throne of Rome, as a result

Germanic customs replaced Roman customs and Roman law

became weaker yet it remained alive.

 Germanic rulers allowed there Roman subjects to be

governed by Roman law however this was not pure Roman

law but thus Roman law which was influenced by Germanic

Law

 Old classical Roman law survived more successfully in the

eastern Roman empire. The emperor of the Easter Roman

empire in the sixth century was called Justinian, he wanted

to bring order to the legal system.

 He decided to codify Roman law as a whole, this collection of

Roman law by Justinian was called the Corpus Iris Civilis. By

 Elzé IURI 171

codifying the Roman law Justinian kept Roman Law alive and
12
made it possible for Roman Law to be received in Europe in

the 12th century AD

 In the 12th century their became a new interest in Roman

Law, the University of Bologna in Italy studies these laws and

in later centuries that the reception of Roman law took place

in the Netherlands, this is what caused the creation of

Roman Dutch Law

 Some of the most important Roman-Dutch Jurist are Hugo de

Groot and Johannes Voet. Their writings today are still used

as reference in our courts.

Second Layer: Roman-Dutch Law comes to the cape

 In the early days of the business of the Dutch East India

Company at the Cape, the affairs of the Cape were regulated

in terms of the artyckelbrief .

 The artyckelbrief was a document that set out the rules and

regulations governing the service of those employees of the

Company who were on official duty in the Company’s

overseas territories.
 Elzé IURI 171

 Only later that when the Cape became a settlement that the
13
lives of the people living there were governed by legislation

or Placaeten

 Placaeten were like posters that were stuck on the walls of

public places.

 Roman-Dutch law still today forms the backbone of most of

our law

 Our Roman-Dutch legal system makes it easy for modern

South African lawyers to communicate and interact with

lawyers in many countries across the world.

Third layer: English Law and South African Customary Law

◊ The British occupied the Cape first in 1795 and then later in

1806, this resulted in the reception of English Law.

◊ The British government decided that they would not change

the rules of their new colony but English law was still felt.

◊ This influence was felt in the administration of justice and in

the rules of law.

◊ For example, the British government slowly got rid of the

existing court structure and replaced it with the English

court structure. It was decided that judges and advocates

 Elzé IURI 171

had to receive training in England, because of this judges

14
and advocates started turning to English law instead of

Roman Dutch authorities to resolve legal problems.

◊ When Jan van Riebeeck arrived in the Cape in 1652 there

were many black tribes in South Africa who lived according

their own Laws

◊ These Laws are called indigenous law or South African

Customary law.

◊ Today, indigenous law is still largely unwritten

◊ In KwaZulu Natal, much of the indigenous law is now

contained in a code which is formally recognised.

◊ In the past indigenous law was recognised as a special law

that only applied to blacks, however this has changed, in

terms of the Constitution of 1996 the courts must apply

indigenous law where it is applicable.

 Elzé IURI 171

15

Families of Law

Classification of Legal systems

Over the years various scholars have suggested standards we

should use or criteria for grouping the different legal systems into
 Elzé IURI 171

families or legal cultures. Some of the criteria for grouping is as

16
follows:

 Style and technique of the particular system

 The philosophy on which the particular system is based

 Economic elements

Most important legal families:

Romano-Germanic or Civil-Law family:

 Some systems grouped in this family are the French, German

, and Dutch legal systems.

 Roman legal science played an important part in the

development of these legal systems.

 Thus we can say that the part played by Roman law is the

most important characteristic common to legal systems

within the group.

Anglo-American or common Law family

 The legal systems in England and America belong to this

family.
 Elzé IURI 171

 One of the most important characteristics in this family is

17
case law

 Decisions taken in court cases were recorded, these

dicisions are so important and form what we call family law

Socialist Family

 The development of these legal systems has been influenced

by historical and political elements.

 The law is there to serve social and economic policies in

these legal system, Doctrine of Marxism is common to all

these legal systems.

Other Legal Families

Religious Legal Family

 These systems have their origin in religious sources

 Grouping includes Islamic, Hindu, and Jewish legal systems.

Indigenous Legal Family

 This Law consists of the African family

 Unwritten customary laws

 The focus is on the community in these systems.

 Elzé IURI 171

Hybrid Legal Family

18

 Hybrid grouping is a mixture of various parts, it is mixed legal

systems and are founded in South Africa, Scotland and Sri

Lanka

South African Law is classified as an Hybrid legal system because

various components or legal systems played a role in its

development.

Roman Dutch law (forms part of civil law), English Law (forms part

of Common law) , and African Indigenous Law played a role

 Elzé IURI 171

The Main divisions of South African Law

19

Two of the main divisions of South African Law are Private Law

and Public Law.

Private Law

Private Law deals with the relationship between individual and

individual for example, a husband and wife are the parties of a

contract ( their marriage) and this relationship is governed by

private law.

Public Law

Public Law deals with the relationship between the State and the

Subject of the state ( Citizen)

The Divisions of Private Law

Law of persons concerned with persons as subjects of law and as

legal subjects
 Elzé IURI 171

Family Law concerned with the relationships between

20
spouses, children’s, guardians and so forth

Law of Personality concerned with personality rights, eg your

body, reputation and so forth

Law of Patrimony Law is concerned with a person and

their means, in other words things people own

that can be given a value in money. Law of

Patrimony can be sub divided

 Law of things: moveable’s and immovable’s

cars,house.

 Law of Succesion: inheritance

 Law of Obligation: can be further divided into Law

of contract, Law of Delict and Unjustified

enrichment

The Divisions of Public Law

Public international Law concerned with relations between

states

Constitutional Law concerned with the institution of the

state and its organisation, it also

governs the power of the state

 Elzé IURI 171

Administrative Law Controls the administration of the state

21
Criminal Law states which acts are crimes and their
penalties

Law of procedure Divided into sub divisions:

 Law of civil procedure, how private law

disputes are brought forward in court
 Law of criminal procedure, process of
someone who is prosecuted tried
 Law of evidence, how evidence must be
presented in court.

Other areas of Law

Mercantile Law not purely public or private law, tax law company
law and so forth

Labour Law has connections with private law and public law,
concerned with the relations of employee and
employer

Conflict of Laws is concerned with which private law system applies

if more than one private law system is involved

Legal Philosophy looks at law from a philosophical point of view