IIE Learn Module Outline FSAL5121 / FSAL5121p

Fundamentals of the South African Legal System

FSAL5121 / FSAL5121p
MODULE OUTLINE 2021
(First Edition: 2020)

This guide enjoys copyright under the Berne Convention. In terms of the Copyright Act, no 98 of 1978, no
part of this manual may be reproduced or transmitted in any form or by any means, electronic or
mechanical, including photocopying, recording or by any other information storage and retrieval system
without permission in writing from the proprietor.

The Independent Institute of Education (Pty) Ltd is registered with the

Department of Higher Education and Training as a private higher education
institution under the Higher Education Act, 1997 (reg. no. 2007/HE07/002).
Company registration number: 1987/004754/07.

© The Independent Institute of Education (Pty) Ltd 2021 Page 1 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Table of Contents

Introduction ............................................................................................................................................... 3
Using this Module Outline ......................................................................................................................... 4
This Module on Learn ................................................................................................................................ 5
Icons Used in this Document and on Learn ............................................................................................... 6
Module Resources ..................................................................................................................................... 7
Module Purpose ......................................................................................................................................... 9
Module Outcomes ..................................................................................................................................... 9
Assessments ............................................................................................................................................. 10
Module Pacer ........................................................................................................................................... 13
Glossary of Key Terms for this Module .................................................................................................... 32

© The Independent Institute of Education (Pty) Ltd 2021 Page 2 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Introduction

The purpose of this module is to introduce you to the South African legal system: its origins,
history, background, structure and methods. You will learn about how the Constitution, 1996, as
the supreme law of the land, has impacted the various different fields of law that you will
encounter in this module and the way in which we interpret the law as well as human rights
issues within those fields. The module is comprehensive and covers a lot of content, spanning
different fields of South African Law. It is, therefore, important that you start working from the
beginning of the year.

As with all professional modules, law has its own vocabulary. Language is the single most
important tool of the trade. It is therefore of extreme importance that you continuously study
the legal terminology. Not only do a lot of terms/phrases sound similar but with each
term/phrase having a very distinct meaning in law, the South African Law also contains a lot of
foreign terms (primarily Latin with some interspersion of Dutch).

We hope that you will enjoy the module and we hope that you will find its content useful in your
future chosen career.

© The Independent Institute of Education (Pty) Ltd 2021 Page 3 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Using this Module Outline

This module outline has been developed to support your learning. Please note that the content
of this module is on Learn as well as in the prescribed material. You will not succeed in this
module if you focus on this document alone.

• This document does not reflect all the content on Learn, the links to different resources,
nor the specific instructions for the group and individual activities.
• Your lecturer will decide when activities are available/open for submission and when these
submissions or contributions are due. Ensure that you take note of announcements made
during lectures and/or posted within Learn in this regard.

© The Independent Institute of Education (Pty) Ltd 2021 Page 4 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

This Module on Learn

Learn is an online space, designed to support and maximise your learning in an active manner.
Its main purpose is to guide and pace you through the module. In addition to the information
provided in this document, you will find the following when you access Learn:

• A Module Pacer;
• A list of prescribed material;
• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.)
in each learning unit that will further help to explain theoretical concepts;
• Critical questions to guide you through the module’s objectives;
• Collaborative and individual activities (all of which are gradable) with time-on-task
estimates to assist you in managing your time around these;
• Revision questions, or references to revision questions, after each learning unit.

Kindly note:
• Unless you are completing this as a distance module, Learn does not replace your contact
time with your lecturers and/or tutors.
• FSAL5121 / FSAL5121p is a Learn module, and as such, you are required to engage
extensively with the content on the Learn platform. Effective use of this tool will provide
you with opportunities to discuss, debate, and consolidate your understanding of the
content presented in this module.
• You are expected to work through the learning units on Learn in your own time –
especially before class. Any contact sessions will therefore be used to raise and address
any questions or interesting points with your lecturer, and not to cover every aspect of
this module.
• Your lecturer will communicate submission dates for specific activities in class and/or on

Learn.

© The Independent Institute of Education (Pty) Ltd 2021 Page 5 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Icons Used in this Document and on Learn

The following icons are used in all your modules on Learn:

Icon Description

A list of what you should be able to do after working through the learning
unit.

Specific references to sections in the prescribed work.

Questions to help you recognise or think about theoretical concepts to be

covered.

Sections where you get to grapple with the content/ theory. This is mainly
presented in the form of questions which focus your attention and are aimed
at helping you to understand the content better. You will be presented with
online resources to work through (in addition to the textbook or manual
references) and find some of the answers to the questions posed.

Opportunities to make connections between different chunks of theory in the

module or to real life.

Real life or world of work information or examples of application of theory,

using online resources for self-exploration.

You need to log onto Learn to:

• Access online resources such as articles, interactive graphics,
explanations, video clips, etc. which will assist you in mastering the
content; and
• View instructions and submit or post your contributions to individual or
group activities which are managed and tracked on Learn.

© The Independent Institute of Education (Pty) Ltd 2021 Page 6 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Module Resources
Prescribed Kleyn D, Zitzke E, Madi P and Viljoen F. Beginner’s Guide for Law Students.
Material (PM) 5th Edition (2018) Juta. ISBN: 9781485128342
for this
Module The IIE Law Style Referencing Guide and the IIE Intellectual Integrity Policy
(IIE023): Both at https://iielibraryconnect.iie.ac.za/e-shelf/referencing-and-
plagiarism

Recommend Please note that a number of additional resources and links to resources are
ed Readings, provided throughout this module on the Learn platform. You are
Digital, and encouraged to engage with these as they will assist you in mastering the
Web various objectives of this module. They may also be useful resources for
Resources completing any assignments. You will not, however, be assessed under
examination conditions on any additional or recommended reading material.

Prescribed • Christian Lawyers Association of South Africa v Minister of Health 1998

additional (4) SA 1113 (T).
readings for
this Module: • Bhe v Magistrate Khayelitsha and Others 2005 (1) SA 580 (CC).
Case Law
• De Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) and Others (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC);
2003 (12) BCLR 1333 (CC) (15 October 2003)
Prescribed • Van Niekerk, L. Exploring the difficult dialogues technique as a tool for
additional value-added law teaching and learning 2019 Stellenbosch Law Review
readings for 138.
this Module:
Journal • Klare, K. Legal Culture and Transformative Constitutionalism 1998 14
articles South African Journal of Human Rights 146.

Prescribed • Chapter 2 of the Constitution of the Republic of South Africa, 1996.

additional
readings for
this Module:
Legislation
Recommend
ed Reading: • Meintjes-Van der Walt (ed.), et al. 2019. Introduction to South African
Law – Fresh Perspectives. 3rd edition. Pearson: Cape Town

• De Vos, P. and Freedman, W. (eds) South African Constitutional Law in

Context (2020) Oxford University Press: Cape Town.

© The Independent Institute of Education (Pty) Ltd 2021 Page 7 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

• Edwards A.P. The History of South African Law – An Outline 1st ed

(1996) LexisNexis: Durban.

• Thomas P.J, Van der Merwe C.G. and Stoop B.C. Historical Foundations
of the South African Private Law 2nd ed (2000) LexisNexis: Durban.

• Marnewick CG. 2012. Litigation Skills for S.A Lawyers 3rd edition.
LexisNexis: Durban.

Essential • Jutastat legal-resource database accessible through your IIE campus

Web library: https://jutastat-juta-co-
Resources za.ezproxy.iielearn.ac.za/nxt/gateway.dll?f=templates&fn=default.htm
&vid=Publish:10.1048/Enu
• The Southern African Legal Information Institute (SAFLII) publishes
legal information for free public access which comprises mainly of
case law and legislation from South Africa: http://www.saflii.org
(Please note – the SAFLII cases are published in an unedited format.)

Useful Web • Refer to the library website on this URL:

Resources https://iielibraryconnect.iie.ac.za/e-shelf/law-resources
(You will also find the resources online under “Library/e-shelf”.)

• The Legal Practice Council (LPC)

www.lpc.org.za
• The Constitutional Court
www.concourt.org.za
• The South African Judiciary
www.judiciary.org.za
• Parliament of the Republic of South Africa
www.parliament.gov.za
• The National Prosecuting Authority of South Africa
www.npa.gov.za
• South African Government
www.gov.za

Module You will find an overview of this module on Learn under the Module
Overview Information link in the Course Menu.

Assessments Find more information on this module’s assessments in this document and
on the Student Portal.

© The Independent Institute of Education (Pty) Ltd 2021 Page 8 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Module Purpose
The purpose of this module is to introduce students to the South African law and legal
system, whilst developing relevant competencies required for studying law and conducting
legal research.
Module Outcomes
MO1 Demonstrate knowledge of the historical antecedents of the South African law.

MO2 Identify and explain the sources of South African law.

MO3 Classify the various sub-disciplines of the South African law.

MO4 Explain the structure of the South African courts.

Evaluate the role of the new Constitution in the South African law and legal
MO5
system.

MO6 Demonstrate legal research and practical legal skills.

© The Independent Institute of Education (Pty) Ltd 2021 Page 9 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%

Assessments Test 1 Assignment Examination

Weighting 30% 25% 35%
Duration 1 hour 10 hours 2 hours
Total marks 60 100 120
Open/Closed book Closed book N/A Closed book
Resources required Prescribed Prescribed Prescribed
textbook, textbook, textbook,
Prescribed case Prescribed case Prescribed case
law and journal law and journal law and journal
articles articles articles
Learning Guide Learning Guide Learning Guide
Learning Units covered 1–5 1–7 All

© The Independent Institute of Education (Pty) Ltd 2021 Page 10 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Assessment Preparation Guidelines

Format of the Assessment Preparation Hints
Test 1
The test for this module will • Ensure that you work through all the relevant activities,
assess your understanding exercises and revision questions on Learn and in your
of Learning Units 1 to 5 of textbook.
this module and will include • Brainstorm possible questions based on the learning
a series of short and outcomes and objectives provided. Then complete these as
medium-length questions, practise tests.
as well as one longer • Engage with your lecturer on any questions that you may
question. You will be have with the coursework.
expected to apply, as well as • During both your preparation for the test and during the
recall information as per test itself, pay attention to the instruction words (like
your objectives for these analyse, apply, describe, evaluate, etc.) and to the mark
learning units. allocations of each question to ensure that you are able to
provide the correct depth and detail in your answers.
• Ensure that you have mastered the objectives in Learning
Unit 1,2,3,4 and 5.

Assignment
• Read through the prescribed chapters and content in
The assignment will assess Learning Units 1,2,3,4,5,6 and 7 and ensure that you have
your ability to integrate and engaged in close reading of the indicated content before
apply the content in you proceed with your written analysis.
Learning Units 1 – 7 of this • Engage with your lecturer on any questions or concerns
module. that you may have with the course work.
• Remember to analyse all elements required and ensure
that your assignment is proofread and polished for style,
language and syntax.
• Improve the quality of your assignment by using the
provided rubric and addressing any areas of concern prior
to submitting it for marking.
• Remember to reference your sources in your assignment
accordingly by using The IIE Legal Referencing Guidelines,
which you may obtain from your campus library.

© The Independent Institute of Education (Pty) Ltd 2021 Page 11 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Examination
The examination will assess • Consult your examination brief for this module, which will
all learning units in this be made available prior to your examination. Make sure
module and will include both that you practise answering the sample questions in the
theory and application-type brief so that you become familiar with the kinds of
questions. questions likely to appear in the examination itself.
• Ensure that you work through all the activities, exercises
You will be expected to and revision questions on Learn and in your textbook. You
respond to short, theory- must have completed close readings of your prescribed
based questions, as well as material to ensure that you have prepared adequately for
to essay-type questions. your examination for this module.
• Pay close attention to the instruction words (like analyse,
apply, describe, evaluate, etc.) and to the mark allocations
of each question to ensure that you provide the correct
depth and detail in your answers.
• Engage with your lecturer on any questions or concerns
that you may have with the course work.
• Make sure that you are comfortable in responding to all the
objectives for all learning units.
• Brainstorm possible questions based on the learning
outcomes and objectives provided.

© The Independent Institute of Education (Pty) Ltd 2021 Page 12 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Module Pacer
Code Programme Contact Sessions Credits
FSAL5121 BAL1; HLE1 47 15
FSAL5121p HLE1p 27 15
Learning Unit 1 The Law

Overview:
Before we start our study of law as such we will first consider some questions about the
nature of law. Law is made for and by people. It is not cast in stone. Neither is it elevated
above criticism. The law is constantly being recreated. It is thus not a completed monument
from which the student must only lift a veil, but rather an unfinished statue which he must
help complete. (Kleyn and Viljoen 2018: 1)

In this learning unit, we consider what is meant by ‘The Law’ and look at its relationship to
concepts like justice, morality and religion.

If you are a contact student, you will likely spend 4 sessions on this learning unit.
If you are a part-time student, you will likely spend 2 sessions on this learning unit.

Please work through Theme 1 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please also ensure that you complete the following activities on Learn:

Activity Estimated Time

on Task
1.1.1 Discuss the rule of law and morality 90 minutes
1.2.1 Legal positivism versus natural law 90 minutes
Estimated total time for this learning unit’s activities 3 hours

You will be learning new terminology and new concepts that apply specifically to the law.
The terminology and concepts learnt throughout this module will be important for your
future studies and future legal careers. Be sure to work through all the prescribed material
and start your own glossary of terms that you add to when encountering new concepts
and words used in the legal field.

© The Independent Institute of Education (Pty) Ltd 2021 Page 13 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 1: Theme Breakdown

FSAL5121 Theme 1: The Law Prescribed Material (PM)
Sessions:
1–4
FSAL5121p LO1: Motivate an opinion on what the law PM: Chapter 1
Sessions: is and what is meant by the
1–2 concepts ‘law’ and ‘rule of law’.
Related LO2: Distinguish between the concepts
Outcomes: ‘law’ and ‘morality’.
MO001 LO3: Distinguish between the concepts
MO002 ‘law’ and ‘justice’.
LO4: Discuss judicial discretion in the
context of law and certainty.
LO5: Briefly describe the natural law
approach.
LO6: Discuss legal positivism.

© The Independent Institute of Education (Pty) Ltd 2021 Page 14 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 2 History of South African Law

Overview:
An understanding of the history of South African law is important foundational knowledge to
anybody considering a career in the South African legal system.

In this learning unit, we investigate the various systems and sources of law – Roman-Dutch,
English, canon and indigenous – that contributed to the development of the South African
law and legal system as we know it today.

If you are a contact student, you will likely spend 4 sessions on this learning unit.
If you are a part-time student, you will likely spend 3 sessions on this learning unit.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
2.1.1 Roman-Dutch law 20 minutes
2.2.1 Characteristics of indigenous law 90 minutes
Estimated total time for this learning unit’s activities 1 hour 50
minutes

An imperative aspect of this learning unit relates to understanding the relevance and
importance of South African legal history. The history of South African law is indicative of its
present character and can provide us with the information we need to implement and
facilitate the necessary changes to our legal system. Learn your legal history.
“Those who cannot remember the past are condemned to repeat it.” – George Santayana

© The Independent Institute of Education (Pty) Ltd 2021 Page 15 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 2: Theme Breakdown

FSAL5121 Theme 1: Origins of the South African Prescribed Material (PM)
Sessions: legal system
5–8
FSAL5121p LO1: Explain the importance of legal PM: Chapter 2
Sessions: history to the SA law student.
3–5 LO2: Briefly describe the general
Related characteristics of African customary
Outcomes: law.
MO001 LO3: Briefly describe the development of
law during the various historical
phases of the Roman Empire.
LO4: Explain what is meant by the
reception process of Roman law in
Western Europe.
LO5: Critically evaluate the role of the
Glossators in the re-discovery and
study of the Roman-law heritage in
Europe.
LO6: Explain what is meant by the concept
‘Roman-Dutch law’.
LO7: Evaluate the relative importance of
the English-law influence in the
development of the SA legal system.
LO8: Briefly describe the four
characteristics of apartheid law.
LO9: Distinguish between legal positivists
and non-positivists.
LO10: Explain what is meant by the term
‘transformative constitutional
democracy’.
LO11: Explain what is meant by the
synthesis comprising the South
African law.

© The Independent Institute of Education (Pty) Ltd 2021 Page 16 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 3 Sources of South African Law

Overview:
South African law is not codified and is formed by the mixing of several distinct legal
traditions as we have seen in the previous learning unit. Sources of South African law include
authoritative sources such as the Constitution, legislation, court decisions (precedent),
common law, customary law, indigenous law; and persuasive sources including the works of
modern authors and legal scholars in legal textbooks and law journals.

In this learning unit, we explore the different sources of South African law and consider the
legal research skills that are necessary to any student of the law when looking up case law
and law reports.

If you are a contact student, you will likely spend 5 sessions on this learning unit.
If you are a part-time student, you will likely spend 4 sessions on this learning unit.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
3.1.1 Sources of South African law 20 minutes
3.2.1 South African law and African customary law 90 minutes
3.3.1 Conducting legal research 180 minutes
Estimated total time for this learning unit’s activities 4 hours 50
minutes

It is important to understand the various sources of South African Law and to be able to
distinguish between authoritative and persuasive sources of the law and where to find them.
The South African legal system is uncodified, which means there is not one primary source of
law. Legal research is therefore an integral part of the legal profession and being able to find,
evaluate and interpret the legal information required is one of the central skills applied by
lawyers every day in their respective professions. The sources you will engage with as law
students will be the basis of the opinions you will write and the arguments you will deliver.
These skills are important for all the law modules you will engage with during your legal
studies.

© The Independent Institute of Education (Pty) Ltd 2021 Page 17 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 3: Theme Breakdown

FSAL5121 Theme 1: Sources of South African law Prescribed Material (PM)
Sessions:
9 – 13
FSAL5121p LO1: Differentiate between primary and PM: Chapter 3
Sessions: secondary sources of South African
6–9 law.
Related LO2: Discuss the sources of the South
Outcomes: African law in detail.
MO002 LO3: Describe the content (i.e. the various
MO006 components) of a statute.
LO4: Give an account of the general
principles applied during the
interpretation of a statute.
LO5: Discuss the hierarchy and structure
of the most important/utilised SA
courts.
LO6: Explain the various distinct parts
comprising a reported judgement.
LO7: Distinguish between the ratio
decidendi and the obiter dicta of a
court’s decision.
LO8: Discuss the pros and cons of judicial
precedent.
LO9: Explain the meaning of each part of a
case citation.
LO10: Explain in which ways common law,
custom, African customary law and
the writings of modern authors are
sources of the South African law.
LO11: Explain how the Constitutional
Court now advocates for a
transformative approach to sources.
Theme 2: Legal research PM: Chapter 3 and 19

LO12: Find sources of law on The IIE’s

library website by accessing the
Jutastat and LexisNexis subscription
databases.

© The Independent Institute of Education (Pty) Ltd 2021 Page 18 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

LO13: Demonstrate a basic proficiency in

reading and summarising a case by
making use of the FIRAC method.
LO14: Apply the sources of the law to a
set of facts and advise accordingly.
LO15: Apply the IIE’s style of legal
referencing to a one-page essay on a
given topic in law.

© The Independent Institute of Education (Pty) Ltd 2021 Page 19 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 4 Classification of South African Law

Overview:
The law as we find it in the different sources cannot be studied as an incoherent and
disorderly mass of rules. The Romans started a tradition of classifying the law into different
disciplines or branches, but there is no perfect and ideal classification of the law. The
distinction between the different branches of the law is sometimes quite artificial. Authors
also differ considerably among themselves as to where exactly some divisions of law fit into
the whole classification. But any classification of law at least has the advantage that it
provides an overview of the different divisions or areas of law. To a large extent it also shows
how the law fits together and how it functions. (Kleyn and Viljoen 2018: 136)

In this learning unit, we consider the different branches of South African law and explore the
different types of substantive and adjective law.

If you are a contact student, you will likely spend 4 sessions on this learning unit.
If you are a part-time student, you will likely spend 3 sessions on this learning unit.

Please work through Theme 1 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
4.1.1 Substantive and adjective law 15 minutes
4.2.1 Public and private law 15 minutes
4.3.1 Branches of South African law 180 minutes
4.4.1 Subject areas of South African law 90 minutes
Estimated total time for this learning unit’s activities 5 hours

Different branches of the law are classified according to the different disciplines that exist.
These classifications are somewhat artificial because there is a great deal of overlap between
the branches. This learning unit will provide a bird’s eye view of how the different branches
fit together and interact. Make sure that you familiarise yourself with the different branches
and subcategories because this will later enable you to determine which field of law you will
need to examine and apply to a specific legal problem or set of problems.

© The Independent Institute of Education (Pty) Ltd 2021 Page 20 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 4: Theme Breakdown

FSAL5121 Theme 1: Classification of South African Prescribed Material (PM)
Sessions: law
14 – 17
FSAL5121p LO1: Distinguish between the different PM: Chapter 4
Sessions: branches of the law.
10 – 12 LO2: Provide a schematic overview of the
Related major subject-areas of the SA legal
Outcomes: system.
MO003 LO3: Distinguish between international
law and national law.
LO4: Distinguish between substantive and
adjectival law.
LO5: Describe the divisions of adjective
law.
LO6: Distinguish between public and
private law.
LO7: Describe common specialisations
encountered in public law.
LO8: Describe common divisions of
private law.
LO9: Critically distinguish between the
various component parts comprising
commercial (mercantile) law.
LO10: Explain in which ways private
international law, legal philosophy,
comparative law, legal history, and
Roman law are distinct and valuable
areas of legal research.

© The Independent Institute of Education (Pty) Ltd 2021 Page 21 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 5 The Constitution, Human Rights and Comparative Law

Overview:
Before 1994, the sole objective of the Constitution (and Constitutional Law) was to regulate
the way in which government functioned. With the advent, first of the interim Constitution
(1993) and then the final Constitution (1996), this changed. Under the new constitutional
dispensation, our constitutional law now regulates both the way government functions and
the way our basic, fundamental, human rights are protected.

In this learning unit, we take a closer look at the new constitutional order after 1996 and the
protection of human rights in the Bill of Rights. We also consider legal comparison as an area
for fruitful study and in particular, how legal comparison may help with the protection of
human rights.

If you are a contact student, you will likely spend 6 sessions on this learning unit.
If you are a part-time student, you will likely spend 4 sessions on this learning unit.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
5.1.1 Constitutional Court ruling on the death penalty 90 minutes
5.2.1 Human rights 120 minutes
5.3.1 Comparative law 90 minutes
Estimated total time for this learning unit’s activities 5 hours

South Africa is a constitutional democracy based on the following values: human dignity, the
achievement of equality and the advancement of human rights and freedoms; non-racialism
and non-sexism; the Supremacy of the constitution and the rule of law and; universal adult
suffrage, a national common voters roll, regular elections and a multi-party system of
democratic government, to ensure accountability, responsiveness and openness. These
values are central to our democracy and to our legal system. These are the values you must
keep in mind as law students and as future lawyers when engaging with the law and in
future practice.

© The Independent Institute of Education (Pty) Ltd 2021 Page 22 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 5: Theme Breakdown

FSAL5121 Theme 1: The Constitution Prescribed Material (PM)
Sessions:
18 – 23
FSAL5121p LO1: Explain what is meant by the PM: Chapter 5
Sessions: ‘separation of powers’ doctrine.
13 – 16 LO2: Distinguish between the executive
Related and judicial authorities.
Outcomes: LO3: Distinguish between flexible or
MO002 inflexible constitutions.
MO005 LO4: Distinguish between sovereign and
subordinate constitutions.
LO5: Indicate who the primary legislative
authority is in South Africa.
LO6: Describe the various legislative
authorities provided for in the
Constitution.
LO7: List and briefly describe the roles of
seven state institutions supporting
constitutional democracy (the so-
called Chapter 9 institutions).
LO8: Critically discuss the role of
traditional leaders in South Africa.
LO9: Motivate to what extent you believe
the aims of a transformative
constitutionalism are being achieved
in South Africa.
Theme 2: Human rights PM: Chapter 6
LO10: Name and describe the three
generations of rights that human
rights are usually divided into.
LO11: Distinguish between civil and
political rights on the one hand and
socio-economic rights on the other.
LO12: Critically discuss what is meant by
the justifiable limitation of a
fundamental right.
LO13: Give an example of the impact of
the Bill of Rights on SA law and legal
precedent.

© The Independent Institute of Education (Pty) Ltd 2021 Page 23 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Theme 3: Legal comparison PM: Chapter 15

LO14: List four reasons for engaging in
legal comparison.
LO15: List and briefly describe five
different legal systems.
LO16: Explain the importance of section
39(1) of the Constitution in the
context of comparative law.

© The Independent Institute of Education (Pty) Ltd 2021 Page 24 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 6 Subject areas of South African Law

Overview:
In previous learning units we considered the concepts of private law, the law of civil
procedure, criminal law, and the law of criminal procedure.

In this learning unit, we will take a closer look at all these disciplines and discuss their areas
of overlap. We start with an explanation of the key aspects of private law before considering
a more practical discussion of how a private law dispute between persons can be solved by
means of the (adjective) law of civil procedure.

We then look at the key aspects of criminal law, followed by an examination of the way in
which a criminal case is conducted, according to the (adjective) law of criminal procedure. A
closer look at the law of evidence follows this discussion before concluding the learning unit
to consider the role of law in the business world.

If you are a contact student, you will likely spend 7 sessions on this learning unit.
If you are a part-time student, you will likely spend 4 sessions on this learning unit.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
6.1.1 Civil procedure and criminal law 15 minutes
6.2.1 The cautionary rule in the law of evidence 90 minutes
6.3.1 Legal basis of a partnership agreement 90 minutes
Estimated total time for this learning unit’s activities 3 hours 15
minutes

The challenge you may experience with this learning unit may be distinguishing between the
rights, rules and processes that apply to civil procedure and criminal procedure respectively.
Make sure that you are familiar with the procedural elements and the parties that would be
involved in either type of dispute or proceeding.

© The Independent Institute of Education (Pty) Ltd 2021 Page 25 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 6: Theme Breakdown

FSAL5121 Theme 1: Key theoretical aspects of Prescribed Material (PM)
Sessions: private law
24 – 30
FSAL5121p LO1: Distinguish between positive law and PM: Chapter 7
Sessions: law in the subjective sense.
17 – 20 LO2: Explain the concepts “legal subject”
Related and “legal capacity”.
Outcomes: LO3: Describe the functioning of
MO003 subjective rights.
LO4: Explain how subjective rights may be
protected.
Theme 2: Civil procedure and criminal law PM: Chapters 9, 10, 11 and
LO5: Distinguish between action 12
proceedings and application
proceedings.
LO6: Distinguish a criminal case from a
civil case.
LO7: Explain under which circumstances
the law of criminal procedure finds
application.
LO8: Describe the role and content of the
law of evidence.
LO9: Explain the circumstances in which
the principles of natural justice may
find application in our legal system.
Theme 3: Law and the business world PM: Chapter 8
LO10: Explain the purpose of a validly
concluded contract in the business
world.
LO11: Briefly describe the five basic
requirements for a legally binding
contract.
LO12: Distinguish between different forms
of entrepreneurship.

© The Independent Institute of Education (Pty) Ltd 2021 Page 26 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 7 Courts, Alternative Dispute Resolution (ADR) and the Legal Profession

Overview:
Not all disputes are settled in court, but when they are, there are a number of people who
work there to make sure proceedings run smoothly.

In this learning unit we consider the structure of the South African system of courts and the
structure and job descriptions of the people who staff, run and appear in the courts.

Alternative Dispute Resolution (ADR), as an alternative to going to court is also discussed and
so are ethical issues commonly confronting both attorneys and advocates.

If you are a contact student, you will likely spend 6 sessions on this learning unit.
If you are a part-time student, you will likely spend 3 sessions on this learning unit.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
7.1.1 The hierarchy of South African courts 30 minutes
7.2.1 Alternative forms of dispute resolution 60 minutes
7.3.1 Understanding law careers 120 minutes
Estimated total time for this learning unit’s activities 3 hours 30
minutes

The courts play a central role in the administration of justice. The Constitution has created a
new hierarchy of courts with the Constitutional Court as the apex court. It is important as a
law student to know all the courts and the jurisdiction of each of these courts because
certain courts only hear certain matters. This learning unit will introduce you to the courts,
the alternative methods of resolving disputes and the officers and practitioners of the law.
This will give you an idea of future career possibilities within the field of law.

© The Independent Institute of Education (Pty) Ltd 2021 Page 27 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 7: Theme Breakdown

FSAL5121 Theme 1: South African Courts Prescribed Material (PM)
Sessions:
31 – 36
FSAL5121p LO1: List the most important and utilised PM: Chapter 13
Sessions: South African courts in hierarchical
21 – 23 order.
Related LO2: Distinguish between cases of appeal
Outcomes: and review.
MO004 LO3: Briefly discuss the meaning of ‘a
MO005 court as a court of first instance’ and
discuss when a court may act as
such.
LO4: Discuss the ways in which a court
may be seized of jurisdiction in a
matter.
LO5: Discuss the matters in which the
Constitutional Court has exclusive
jurisdiction.
LO6: List at least seven special courts.
Theme 2: Alternative or Appropriate PM: Chapter 13
Dispute Resolution
LO7: Distinguish between litigation,
arbitration, negotiation and
mediation.
LO8: Critically evaluate the importance of
Alternative Dispute Resolution (ADR)
in the SA legal system.
Theme 3: The Legal Profession PM: Chapter 14

LO9: Describe the type of work most

commonly performed by attorneys
and advocates.
LO10: Distinguish the respective roles and
functions of the attorneys’ and
advocates’ professions.
LO11: Describe the functions of a
prosecutor.

© The Independent Institute of Education (Pty) Ltd 2021 Page 28 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

LO12: Describe the role and functions of a

conveyancer, notary, legal advisor,
state attorney, state legal advisor
and the Master of the High Court.
L013: Comment critically on the role of
ethics in the legal profession.
LO14: Describe three forms of legal aid
available.
LO15: Evaluate various scenarios that
describe the ethical questions
sometimes facing practicing
attorneys.

© The Independent Institute of Education (Pty) Ltd 2021 Page 29 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 8 Legal language, argument and logic

Overview:
Language and comprehension are key tools in a lawyer’s arsenal. The legal professional
needs to be able to communicate clearly and concisely in the courtroom while being able to
understand and interpret case law and legislation with insight and discernment outside of it.

In this learning unit we consider the nature of legal language and legal argumentation as it is
applied in the courtroom. We look at the two most common forms of reasoning; i.e.,
inductive reasoning and deductive reasoning.

If you are a contact student, you will likely spend 6 sessions on this learning unit.
If you are a part-time student, you will likely spend 3 sessions on this learning unit.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete the following activities on Learn:

Activity Estimated Time

on Task
8.1.1 Simplify legal language 120 minutes
8.2.1 Legal argument and logic 90 minutes
Estimated total time for this learning unit’s activities 3 hours 30
minutes

Language is the tool of the lawyer. Lawyers draft documents and opinions and they present
well-reasoned arguments in court. Lawyers must be able to communicate clearly, effectively
and convincingly. The language skills you acquire throughout your legal studies will be
invaluable to your future legal careers. These skills can only be improved through practice,
so read every source and think about how you write and formulate answers. Pay attention to
the rules of simple legal language and consistently improve on your reading and writing
skills.

© The Independent Institute of Education (Pty) Ltd 2021 Page 30 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Learning Unit 8: Theme Breakdown

FSAL5121 Theme 1: Legal language Prescribed Material (PM)
Sessions:
37 – 42
FSAL5121p LO1: Identify the characteristics of PM: Chapter 16
Sessions: ‘typical’ legal language/legalese.
24 – 26 LO2: Give reasons for legal language being
Related so formal and complex.
Outcomes: LO3: Provide a motivation for why you
MO002 think legal language should be
MO006 simplified.
LO4: Describe various methods by which
legal language may be simplified.
Theme 2: Legal argument and logic PM: Chapter 17
LO5: Explain the process of inductive
reasoning.
LO6: Critically evaluate the process of
deductive reasoning.
LO7: Briefly describe five fallacious
methods of argument in the
courtroom.

© The Independent Institute of Education (Pty) Ltd 2021 Page 31 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

Glossary of Key Terms for this Module

TERM DEFINITION
A quo From which. Often used in the phrase ‘the court a quo …’ which
usually refers to the decision of the previous court, most often a
lower court, which has now reached, on appeal, a higher court.
The higher court then refers to the lower court as ‘the court a
quo’.
Ab initio From the beginning.
Addendum Something added or appended to the main thing, e.g. a document
supporting an argument or case.
ADR Alternative dispute resolution, which include negotiations,
mediation and arbitration.
Bona fide In good faith
Canon law Church law, the law of the Roman Catholic Church.
Circa about
Codex/Codex All compiled imperial law from the time of Hadrian (reigned 117
Justinianus AD – 138 AD) contained in Justinian’s Corpus Iuris Civilis.
Conferre Compare.
(Abbr. cf)
Consuls Officials elected by the Roman Popular Assembly to exercise
control over the state, legislator and army.
Contra bonos mores Against the good morals of society
Corpus Iuris Canonici Codification of church law.
Corpus Iuris Civilis The ‘Code of Justinian’, a codification of mostly classical Roman
law, issued from 529 – 534, by the emperor Justinian, who reigned
from 527 AD – 565 AD in Byzantine (Eastern Roman Empire).
Initially the Corpus Iuris Civilis comprised three sections, viz. the
Codex, the Digesta and the Institutiones. (All three sections had
the force of law.) Laws passed by Justinian, known as Novellae,
were also later incorporated into the Corpus Iuris Civilis.
De facto In fact; or judged according to a factual position.
De iure According to the law.
De minimus curat lex The law does not concern itself with trivialities.
Digesta/Pandects Writings of Roman jurists contained in Justinian’s Corpus Iuris
Civilis.
Equity In England: A parallel system of law developed to remedy the
shortcomings of the English common law. If no writ was available,
parties could approach the Lord Chancellor for relief.

© The Independent Institute of Education (Pty) Ltd 2021 Page 32 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

TERM DEFINITION
Et alia And others; often used in legal referencing, especially when
(Abbr. et al) referring to authors of a text.
Et sequitur And the following; often used in legal referencing, especially in
(Abbr. et seq.) footnotes.
Ex lege By operation of law.
Ex officio By right of office.
Ex parte Appearing in the case as the only interested party.
Ex post facto Seen in retrospect.
Ibidem In the same source; often used in footnotes indicting that the
(Abbr is ibid or id.) reference comes from the same source as the source cited in the
immediate preceeding footnote.
In casu In this case.
In personam With reference to the circumstances of the person(s) involved.
In re In the case of.
In rem With reference to the thing/article (non-human or inanimate)
involved.
Inter alia Among other things.
Intitutiones Legal text book for scholars contained in Justinian’s Corpus Iuris
Civilis.
Ius Pronounced ‘jus’. Law, more specifically secular (non-religious)
law.
Ius civile The law of the state; originally the earliest system of Roman law.
Very formalistic and therefore strict and sometimes unfair in
application. In another context it may also refer to the laws
enacted by the people living on a certain territory.
Ius commune The ‘common law’ of certain jurisdictions, mainly countries in
continental western Europe. The ius commune is generally
thought of as a combination of canon law, Germanic customary
law and Roman law which formed the basis of a common system
of legal thought in Western Europe after the rediscovery and
reception of Justinian's Digest after the 12th century. It comprises
abstract legal rules linked in a logical and orderly way and general
in application, hence suitable for codification.
Ius dicere, non facere Speak or interpret the law, don’t make it (the legal positivistic
approach).
Ius gentium The Law of Nations consisting of rules common to all legal systems
(all nations), including Roman law. Less formal than the ius civile
and based on ‘reasonableness.’

© The Independent Institute of Education (Pty) Ltd 2021 Page 33 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

TERM DEFINITION
Ius naturale Similar to the ius gentium and to be found in the common reason
of mankind. Valid everywhere and also common to mankind.
Ius non scriptum ‘Law not written’. Unwritten law. Customary law.
Ius respondendi A right granted by the emperor Augustus to only a very select
number of jurists allowing them to give authoritative legal
opinions in the name of the emperor.
Ius scriptum Written law. Also used to refer to the ius commune that originated
from Justinian’s Code.
Judicial precedent A source of law based on decisions made by Higher (Superior)
Courts that must be followed by Lower Courts.
Jurisprudence Legal philosophy.
Juristic persons A person created by legislation (either its own Act or by means of
the general enabling Act, i.e. the Companies Act 71 of 2008) , e.g.
a company, a close corporation, a university, etc.
Lex A written law promulgated by competent authority.
Lex Duodecim The Twelve Tables. First Roman codification of existing customary
Tabularum law. According to legend, the laws of the people were collected
and inscribed on twelve large stone slabs or ‘tables’.
Mores Values.
Natural persons Human beings.
Non sequitur It does not (logically) follow.
(Abbr. non seq.)
Novellae Laws enacted by Justinian.
Obiter dicta As an aside. A remark made by the judge only in passing and not
binding as is the ratio decidendi but it may be persuasive in an
argument.
Opus citatum The work cited; often used in legal referencing, especially in
(Abbr. op cit.) footnotes.
Personal right This right is only enforceable against a specific person, e.g. the
rights derived from a contract.
Placaeten Dutch legislation in the 17th and 18th centuries.
Praetor First instituted in 367 BC, this official handled the administration
of justice in Rome and Roman Italy. The Praetor was a magistrate
who ranked below the Consul but has approximately the same
duties/functions as a Consul. Appointed by the Popular Assembly.
Praetor Peregrinus A praetor tasked to handle cases arising between foreigners (i.e.
non-Roman citizens). The praetor peregrinus relied on the ius
gentium.
Praetor Urbanus A Praesor tasked with handing cases between Roman citizens.

© The Independent Institute of Education (Pty) Ltd 2021 Page 34 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

TERM DEFINITION
Prima facie At face value; at first sight.
Pro amico Free legal aid that is provided by lawyer to friends and
acquaintances.
Pro bono Legal aid that is performed free of charge to the community.
Pro deo Where the state appoints and pays a lawyer to represent an
indigent (poor) accused in a serious criminal case in the High
Court.
Qua As; in capacity of.
Quaere ‘It is doubtful’ – usually in a reported court case where the court
questioned a certain point of view but did not make a decision.
Quid pro quo Giving ‘something in exchange for something’; mutual
consideration.
Ratio Reason or ground for thinking something.
Ratio decidendi Reason for the (court’s) decision; this is used in the application of
judicial precedent as source of law (in the application of the
doctrine of stare decisis).
Ratio recta (Logical) reason.
Re In connection with or in the case of.
Real right A right that can be protected against any person, e.g. the right to
ownership.
Res Thing. A material object.
Res ipsa loquitur The matter speaks for itself.
Semble ‘It seems’ or ‘it appears’. Where the editors of a law report try to
indicate what the impact of a decision will be where the judge did
not indicate this.
Sic Exactly like that. Often used to show that an incorrect formulation
is taken from the original source of the quotation.
Stare decisis The rule that lower courts have to abide by – and follow – the
decisions of the higher courts. (Direct translation: stand by
previous decisions.)
Status quo ante The previous legal position. Return to the previous situation.
Sub iudice Pending litigation or completion of the litigation.
Sui generis Of its own kind.
Trias politica The three legs or pillars of state that support and maintain the
equilibrium of the constitutional order. Ideally, a balance is
achieved between the executive, legislative and judicial branches
of government.

© The Independent Institute of Education (Pty) Ltd 2021 Page 35 of 36

IIE Learn Module Outline FSAL5121 / FSAL5121p

TERM DEFINITION
Ubuntu African humanism.
A sense of shared humanity, a spirit of humaneness, social justice
and equity. It implies that a person should live in harmony with
other people, nature, the gods and the ancestors. The community
and the existence of both rights and obligations are emphasised
as opposed to the idea of focusing on the individual’s rights and
freedoms.
Voetstoots As is – with or without defects.
Usually used in the context of an agreement of sale where the
article is sold voetstoots, meaning as is, with or without defects.

© The Independent Institute of Education (Pty) Ltd 2021 Page 36 of 36