a system

of rights
Notes: ILW1501
a system
Study Unit 1: What is ‘law’ of norms
and rules
The relevance of law in daily life
The Law
Explain what the ‘law’ is:
 The law governs behaviour/conduct,
 Should be obeyed by all of society and
 Is enforced by state organs
 By ignoring or disobeying the law we may be prosecuted and punished or ordered to pay compensation for
damage or injury

Two methods used to divide SA law into two main divisions:

1. SA law can be divided into the two main divisions of public law and private law

Public Law Individual(s) State

The Law
Private Law Individual(s)  Individual(s)

2. SA law can be divided into two main divisions of formal (procedural) and substantive (material) law.

Deals with the procedures that must

Formal/Procedural Law be followed in legal proceedings
(rules, conduct, evidence)
The Law
Determines the content & meaning
Substantive/Material Law
of the different legal rules

Normative systems that rule/govern human behaviour:

To whom do the rules apply? Sanction for non-compliance Enforcer of sanction
The Law Norms which the whole *Prosecution or punishment State organ
community regards as binding *Compensation to an injured
and must be obeyed party
Religion A set of rules in accordance Every religion has its own Each separate
with the people who practice sanction or punishment religion
that religion
Individual morality Norms/standards that every The sanction is personal and The individual
individual sets for himself self-imposed
Community mores Norms of a whole community Varying degrees of The Community
(collective morals) or group within that disapproval/rejection /
community discrimination by other
members of the community

1 Introduction to Law (ILW1501)

 The connection:
The content of a right is limited.
The rules of law decide what the powers of the holder of a right are and
what the limits to the content of the right are

Study Unit 3: The History of our law Basic knowledge of the history of SA law

Classical Roman law: When the Roman Empire (culture and civilisation) was reaching its highest level of development
Canon Law: Roman law formed the foundation of church law (Roman Catholic Church).
The Corpus Iuris Civilis: The Emperor of the Eastern Roman Empire (Justinian) ordered the codification of early writings
of the classical jurists and all the laws which had been passed during the time of the emperors (collected and written
down as a code).

Roman Law (753BC – 476AD) Roman-Dutch Law (17th Century) South African Law (1652 - )
- Classical Roman law - Roman law merged with existing - Roman Dutch Law
- Canon law laws over Europe to help solve - English Law
- Justinian’s codification particular problems - Indigenous law

Study Unit 4: Families of law The different legal families of the world

LEGAL FAMILIES MOST IMPORTANT FEATURES

Romano-Germanic Strong Roman-law basis as it played an important role in the development of these systems.
(civil law) Examples: French, German, Dutch legal systems
Anglo-American Case law played an important role in the development of these systems and case law still
(common law) plays an important part in their application.
Examples: England, America, Australia, New Zealand
Socialist Development influenced by historical and political elements (Marxism).
The law is to there to serve social & economic policies in these systems.
Examples: former USSR, Communist China
Religious Has their origin in religious sources.
Examples: Islamic, Hindu, Jewish legal systems
Indigenous Mainly made up of unwritten customary laws with a focus on the community.
Examples: African Indigenous Law
Mixed / Hybrid Influenced and made up of various components or legal systems.
Examples: South Africa, Scotland, Sri Lanka

SA law is classified as a hybrid legal system as it comprises of various legal systems:

 Roman-Dutch law (civil-law legal family)
 English law (common-law family)
 African Indigenous law (indigenous family)

3 Introduction to Law (ILW1501)

 Regulates relationships between individuals
PRIVATE LAW Plaintiff versus Defendant

•Concerned with persons as subjects of the law: Legal subject's beginning, status
Law of persons and end

•Concerned with the legal relationship of spouses, parents & child, guardianship.
Family law •Governs mariage and its consequences, as well as relationships within the family

Law of •Concerned with 'personality rights' and the consequences of infringing on these
personality rights (damage to reputation, dignity, etc.)

Law of •Concerns persons & their means (property of a person with monetary value).
patrimony •Subdivided into:

Law of things: Movables (car, etc) and Immovables (land, house)

Law of succession: resolution of an estate or testament (inheritance)

Law of obligations: the legal relationship between parties i.t.o performance.

Three subdivisions:
1. Law of contract: performing and receiving
2. Law of delict: compensation for damage
3. Unjustified enrichment: obtaining a benefit at the expense of another

Study Unit 6: Where to find the law

Know what the authoritative sources of law is and demonstrate this understanding in examples

The death penalty in SA: The death penalty is regarded as cruel, inhumane and degrading and is in conflict with the
provisions of the Constitution as set out in the Bill of Rights.

Where to find the law? Different sources:

(1) Authoritative sources
a. Legislation, statutory law, acts of parliament.
Examples: The Companies Act, Labour Relations Act
ALL law is subject to the Constitution (the supreme law of the land). No other law may conflict with it.
The acts (laws) passed by parliament are contained in the Government Gazette
b. Court decisions to substantiate the above or substitute lack thereof.
The cases of the higher courts are reported in law reports – best one is the South African Law Reports.
The ratio decidendi (the reasons for the decision) will bind lower courts dealing with the same disputes.
 A decision of the Supreme Court of Appeal will be binding on all High Courts and lower courts
 Decisions by High Courts will be binding on lower courts
 Decisions of the Constitutional Court bind ALL other courts

5 Introduction to Law (ILW1501)

Our Constitution broadly entails:
 Governing of the country at national, provincial and local level
 Legislative powers and processes of each of the above
 Administration of justice by all the different courts
 Rules relating to regular elections
 Function of the police, the army and other security services
 Manner of which the finances of the country must be managed
 Provisions regarding the powers of national leaders
 Establishment of institutions such as the Human Rights Commission to support our democracy
 Sets out the 9 provinces of the country, the 11 official languages, the national symbols (flag)
 The Bill of Rights (list of all fundamental (basic) rights protected by our Constitution

Why is the Constitution important?

It is the foundation of our democracy. To ensure that our democracy succeeds, a number of special features are built
into our Constitution:

Features to take note of:

 It is the supreme law of South Africa and ALL are ruled by it
 All legislation may be challenged i.t.o. the Cons, in a court, and changed / removed if found to be in conflict with
the Cons
 The state has a separation of powers:
o The legislative authority (makes laws)
o The executive authority (applies & carries out laws)
o The judicial authority (decides legal disputes)
 The Cons sets out the structure of the judiciary
o Constitutional Court
o Supreme Court of Appeal
o High Courts
o Magistrates’ Courts
 The Cons has set up state institutions to support our democracy:
o The Public Protector
o The Human Rights Commission
o The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
o The Commission for Gender Equality
o The Auditor-General
o The Electoral Commission
o The Independent Authority to Regulate Broadcasting
These institutions are independent and serve to protect the people from power abuse
 It includes the Bill of Rights which protect the fundamental rights of each person

7 Introduction to Law (ILW1501)

 Assembly, demonstration, picket and petition: to be peaceful and unarmed
 Freedom of association
 Political rights: Every citizen is free to make political choices and has the right to free and fair elections where
everyone can vote
 Citizenship: No person may be deprived of citizenship
 Freedom of movement and residence: this includes leaving the country or residing anywhere of choice within SA.
Every person has the right to a passport
 Freedom of trade, occupation and profession: Although everyone has a right to this the practice thereof may be
regulated by law
 Labour Relations: Everyone has the right to fair labour practices, including joining a union
 Environment: Everyone has a right to an environment that is not harmful to their health/wellbeing and to have the
environment protected for the benefit of present and future generations
 Property: No one may be deprived of property except i.t.o. law of general application and no law may prevent
arbitrary deprivation of property
 Housing: Everyone has the right to have access to adequate housing and may not be unlawfully evicted or have their
homes demolished
 Healthcare, food, water and social security: Everyone has a right to these benefits and no one may be refused
emergency medical treatment
 Children: Aimed at the best interests concerning children younger than 18 years
 Education: Everyone has the right to basic education and further education must be made accessible
 Language and Culture: Everyone has the right to use the language and to participate in the cultural life of their choice
 Cultural, religious and linguistic communities
 Access to information: Everyone has the right of access to information held by the state or any information held by
anyone required for the exercise of protection of any rights
 Just administrative action: which is lawful, reasonable and fair
 Access to courts
 Arrested, detained and accused persons: Any person arrested for allegedly committing an offense has the right to
remain silent, be duly informed of rights and reasons for detention, may not be coerced to confess, to be brought
before a court asap, has the right to a legal practitioner, may challenge the lawfulness of proceedings, has a right to
decent upkeep while detained, has the right to contact and be visited by person of choice, has the right to a fair trial

Study Unit 9: Limitation of Fundamental rights

The ways in which fundamental rights may be limited in examples

1. The law that limits the right must be of general application (apply to everyone)
2. The limitation must be reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom (there must be good reason to limit the right within the context of democracy)
3. The following must be taken into account:
a. Nature of the right
b. Purpose of the limitation and its importance
c. Nature of the limitation and the extent thereof
d. The relation between the limitation and the purpose of the limitation must be justifiable
e. Is there an alternative, less restrictive way of setting the limitation?

9 Introduction to Law (ILW1501)

State Prosecutor: Also referred to public prosecutor conducts the state’s case in magistrate’s court
State Advocate: Conducts the state’s case in the High Court
May also serve as legal advisor to the state and be involved in drafting legislation
Presiding Officer: In Magistrate Court (civil or criminal) it is a magistrate
In High Court (civil or criminal) it is a judge

Our judicial system is made up of:

* Constitutional Court (only constitutional matters)
* Supreme Court of Appeal
* High Courts (has different divisions)
* Magistrates’ Courts (district and regional courts)
* Other courts established/recognised i.t.o. an act of parliament
3 Basic legal principles that form part of the legal process:
 Principle of judicial precedent:
 An effective system of law reporting (to enable lower courts to establish what higher courts have held)
 A hierarchy of courts where each court is bound to the decisions of the courts above it
Common law
Custom law
African Indigenous law
 Appeal:
In a civil matter a party may lodge an appeal with a higher court if not satisfied with the lower courts’ decision
In a criminal matter an appeal may be lodged against the conviction and/or sentence with a higher court
The higher court merely studies the recordings of the court a quo and then listens to arguments made by legal
representatives
An appeal is upheld: the decision of the court a quo is set aside
An appeal is dismissed: the decision of the court a quo is confirmed
Appellant: person(s) lodging the appeal
Respondent: responding to the appeal
 Review:
If there has been an irregularity in the procedure, the case can be reviewed by a higher court (translation
concerns, accused not given opportunity to present case, etc)

11 Introduction to Law (ILW1501)