Revision Unit 1 and Unit 2

STUDY UNIT 1 – What is “law”?

KEY QUESTIONS:

1. What is the “law”?

The law:
→ is a set of rules / norms that governs human behaviour / conduct.
→ should be obeyed by all of society & is binding
→ is enforced by the state / state organs &
→ when you do something wrong, you may be prosecuted & punished or be ordered to
compensate the other party you have injured

2. Identify events that have legal relevance, in other words, that has something to do with the
law?
Examples from the story→ examine legal norms to find out whether:
Employment → retrenchment→ lawful / not lawful
Payment of school fees → obligation

3. Understand the part played by law in daily life?

The law plays a very important role in daily life.
→ parenting → legal norms relevant to parenting→ schooling / medical care
→ age of children → infan → steals → not liable for crime

4. Divide the events that have legal relevance in divisions?

There are 2 methods used to divide South African law:
(1) 2 main divisions → Public law & Private law
(2) 2main divisions → Formal (procedural) law & Substantive (material) law

 Public law & Private law → deals with:

 → Public Law → relationship → state & individual
 → Private Law → relationship → individual & individual
 Formal / procedural law & Substantive / material law→ deals with:
 →Formal law → procedures that must be followed in legal proceedings
 → Substantive law → determines the content & meaning of different legal rules

5. Explain the difference between legal norms and other norms?

Some law→ norms (rules) → determine how one should interact and behave with another.
This is what separate laws from those that are not norms.
Therefore: A legal norm (law) binds all people.
Other norms / other laws → law of chess→ bind only those who are playing.
6. Explain the difference between formal justice and substantive justice?
Formal Justice:
Formal law → deals with the procedures that must be followed in legal proceedings.
→ certain basic requirements must be met,
→ when these basic requirements are met, always applied, in exactly the same way
→ Formal Justice→ achieved
→ basic requirements:
 Explicit rules→ how people must be treated in specific cases
 Rules applied generally→ all people→ same circumstances
 Rules must be applied impartially→ judge may not apply rules unequally / no
bias decisions
Substantive Justice:
When there is formal justice that’s not really ‘real justice’, substantive justice is raised.
→ Concerned with → content of rule → not how rule applied
Substantive law → determines content & meaning of different legal rules
→ to determine if substantive justice done:
→ content of these rules itself must be looked at.
Often substantive law complies with the rules of formal law→ but may still be unjust
Therefore formal justice and not substantive justice are achieved.
Example → Apartheid years
→ laws specific, applied to all in specific group & impartially applied
→ cannot be said that it served justice→ content of rules→ unjust

7. Distinguish between the different normative systems?

Normative systems that governs human behaviour:
→ Religion / Individual Morality / Community Mores

Religion:
Each religion has → code (a set of rules) to live by
→ sanction (punishment) for those disobeying
There are many questions with regard to the relationship between religion and law. Although there are
many differences and similarities, they might overlap, and cannot often be divided into separate
categories.
There are different view points in this regard:
 Religion and law should be mutually exclusive
 Religion and law should have the same content.

These views may be criticised as follow:

 There are many similarities & differences
Differences:
Religion → 10 Commandments → not convey neighbour’s possessions
Law → this is not enforced
Religion → Adultery is a sin
Law → Adultery is not a crime
Similarities:
→ Western legal tradition is influenced by Christian thought (canon law)
→ Canon law is the basis of:
 Modern Matrimonial law
 Regulation of sexual relationships
 Contracts may be concluded by mere agreement
→ Content of law & religion same → offences in: Murder / Fraud / Theft / Perjury
→ Both religion & law → studied by interpreting authorotative text:
 Ritual formalities & fixed procedure → NB role
→ SA law favour Christian Religion:
 In criminal law Blasphemy → criminal offence & pertains to Christian God
 Christian holidays → Christmas / Good Friday

Individual morality (personal morality / ethics) → not enforced by law

→ They are personal, self- inflicted rules of each individual
→ Norms / standards of behaviour each person sets for himself
 not to drink too much / honesty / not to lye
→ can form part of religious convictions
 not to tell lies (both individual &religious norms)
→ May go hand in hand with certain legal rules
 honesty is violated when crimes of fraud are committed
→ Where a norm of individual morality coincide with a legal norm → only then will the law step in /
intervene

Community mores
→ Collective morals of a whole community / group in that community.
→ Different from religion & morality → not private matters of specific individual
→ Mores differ from each community→ ex. Unmarried couples living together
(some may accept & others not)
→ Origin of some community mores→ may be found in religious convictions (gay-forbidden)
→ Law & community mores may coincide→ possession & sale of harmful drugs
(disapproved by community & criminal offence)
→ Law & community mores may differ → law may not support these mores
(there may not be laws good enough to prevent distribution of child pornography)
→ community may feel that present censorship laws
 are too strict & should be relaxed

KEY CONCEPTS:

Norm → a standard of human conduct / a rule of human behaviour

The law versus other laws → Different things at different times.
→ Law → binds community (private law)
→ other laws → binds people participating (law of cricket)
Justice → Equality before the law

STUDY UNIT 2 – The story of our Law

KEY QUESTION:

1. Explain the composition of South African law against its historical background?
The history of our legal system goes back to the Romans. It can be divided into 3 phases.
-Phase 1: The way Roman law formed part of the law of Europe & how roman law became part of the
Netherlands. This law in Netherlands became known as Roman-Dutch law.
-Phase 2: Movement of Roman-Dutch law from the Netherlands to the Cape.
-Phase 3: The way Roman-Dutch law developed after brought to Cape.

(1) Roman law becomes Roman-Dutch Law

 753BC – 476AD (Roman law history started & ended)
→ Latin: language of Roman Empire→ today part of our legal system
→ Roman Empire gave us its legal system
 2nd half of 1st Century BC & 1st 2 Centuries AD – Roman Empire at its height
→ Roman civilisation / culture ate height of development & Roman law reached peak
→ Efforts of Roman jurist→ result of peak
→ Roman law applied→ Classical Roman law
 End of 4th century AD – Roman Empire split
→ Western Roman Empire (Rome: capital) & Eastern Roman Empire (Byzantium: capital)
 Western Roman Empire
→ Roman law decline→ yet remains alive → helped reception of Roman law into Europe
→ Germanic tribes invaded W.R.Empire→ Survival of Roman law→allowed Romans to be
governed by Roman law. (not pure Roman law→ it has a Germanic influence)
 Role of Roman Catholic Church
→ Roman law →basis of Canon law→influence on modern law→ agreement=contract
 6th century Eastern Roman Empire→ Roman law survived successfully
→ Emperor Justinian codify the law → Corpus Iuris Civilis→ kept Roman law alive → written
down & made possible to be received in Europe 12th century AD.
→ Corpus Iuris Civilis→ collection of earlier writings of classical jurists & all laws passed during
period of emperors.
 12th century- renewed interest – Roman law studied at medieval schools
→ studied Corpus Iuris Civilis → law spread throughout Europe
→ Roman law received in Europe→had existing legal system→unsystematic&unscientific
→ jurists used Roman law to fulfil needs of practice.
 Reception of Roman law throughout Europe
→ Roman law as explained by medieval jurists→ joined existing law→received in Europe
 Roman-Dutch law
→ Roman law received in Netherlands→ creation of Roman-Dutch law
→ in Netherlands jurists wrote commentaries on Roman-Dutch law (student notes / legal practice
guides). Roman-Dutch Jurists (old authorities) → H.De Groot / J.Voet : writings still consulted

(2) Roman-Dutch law comes to the Cape

 Dutch settlements at the Cape
→ J. v Riebeeck (employee- Dutch East India Company (VOC)) → came to cape in 1652
→ VOC at Cape→ affairs regulated→ in terms of the Artyckelbrief
→ Artyckelbrief: document→ set out rules & regulations of VOC employees
→ When Cape became settlement→ lives of people living there governed by legislation /
placaeten
→ Placaeten→ like posters→stuck on the walls of public places
 Roman-Dutch law becomes governing law at the Cape
→ When there were disputes→ R.D law (as discussed by old authorities) we consulted
→ Roman-Dutch law applied by courts →became part of our legal tradition
→ Writings of H. de Groot & J. Voet → still used in our courts today
a → Our Roman-Dutch law system makes it easy for SA lawyers to communicate and interact
with international lawyers
→ Roman law→ basis of almost all laws of countries in western & eastern Europe / South
America / Japan.

(3) English law & African customary law

 British occupations of the Cape: Influence of English law
→ British occupied Cape first in 1795 and later in the 1806
→ British government don’t want to deliberately change law→influence of English law was still
felt→ particularly after the 1820 settlers arrived in South Africa
→ Influence felt in both the administration of justice & in the rules of law.
→ Example → Court structure replaced by English court structure
→ English became the official language at Cape.
→ Also decided that judges & advocates had to receive training in England.
→ These judges and advocates often turned to English law rather than to Roman-
Dutch authorities when resolving a legal problem.

→ English law was more formally received through legislation:

→ Example → English law of procedure & evidence/ jury system / company law
→ English law received in Natal & after annexation of Transvaal& Freestate Republics by Britain
(1838-1910) spread throughout rest of SA.

 Indigenous African law / African customary / indigenous law

 → Unwritten laws → during 2nd half of 19th century→ these laws were officially recognised by the
colonial authorities
→ Today→ still largely unwritten → in KwaZulu-Natal much of the indigenous law is now contained
in a code, which is formally recognised.
→ In past→ indigenous law → recognised as a special law→ only applied to blacks
→ This has changed→ In Constitution of 1996→ courts must apply indigenous law where
applicable
→ Indigenous law→ community based→ regulates individual relationships between members of
the family → a dynamics system that is capable of change
 In 1996→ the first democratic Constitution of the republic of South Africa was adopted.