LAND LAW – LAL 260s

INTRODUCTION

1. What is law?
Law are rules that are enforced by a country or state that regulate human conduct and
can be enforced by fines/penalties or imprisonment.
The law serves diverse functions in society, but its hallmark is the stipulation of rights
and duties, which f uncertain or not complied with are determined in court and if
necessary, enforced on the authority of court order.
The law provides reasoning for acting in prescribed ways and hold people responsible to
each other and society at large when they fail to comply with such reasons.
The law also claims authority ie they demand people act on the basis of legal rights and
duties and that they do so because these are legal.

A distinction can be made between religious and legal rules ie the way in which they are
enforced.

Legal rules are enforced by the state and religious rules are enforced by religious
sanctions. (students to provide understanding and examples.

All rules are normative – attempts to motivate people to act according to a certain
standard. Therefore, religious, moral, ethical and legal rules are all normative but legal
rules are enforcd by the state.

It is important to understand that law does not only give one obligations not to act in a
specific way, but also gives one the right not to suffer harm when the law is broken. Ie
Justice which means to give people their due.

2. HISTORY OF SOUTH AFRICAS LEGAL SYSTEM

South Africa has a mixed legal system – a hybrid of Roman Dutch civilian Law, English
common law ad religious and personal law.
The Roman Dutch civilian law and English common law influence reflects South Africa’s
history of colonial governance by the Dutch and English.
In 1994 a new constitutional dispensation came into effect. For the first time all South
Africans could participate in the Law making process via democratic elections and were
guaranteed equal before the law.
With this new order of law, customary law and common law was to be different and the
content and institutional framework of law also changed. It was now characterized by
constitutional supremacy and courts with new powers.
STATE AND GOVERNMENT

Reference has been made above to the word ‘state’. It is important to distinguish
between the terms state and government. State refers to the ‘organs of state’ e.g. the
civil service, the different state departments (e.g. education) and the persons working
for the state. On the other hand government refers to the political government of the
day. This will include the president, cabinet and provincial governments, which may be
replaced in the next election.

3. CLASSIFICATION OF THE LAW

Law can be classified in various ways. It can be classified in terms of its sources and
content.

3.1 Sources

With respect to sources a distinction can be drawn between legislation, the common
law, custom and judicial precedent.

3.1.1 Legislation

Legislation refers to those laws passed by the government in order to govern its
subjects. One can distinguish between original and subordinate legislation:

● Original legislation: Original legislation refers to legislation passed by those

bodies which have direct authority from the Constitution to make laws. In South
Africa original legislation may be passed by two bodies, firstly, parliament itself,
and, secondly, the provincial legislatures. Neither parliament nor the provincial
legislatures may pass legislation that is contrary to the Bill of Rights. It has now,
however, also become arguable that the legislation passed by local authorities by
virtue of powers given to them in the Constitution should be regarded as original
legislation.
● Subordinate legislation: Subordinate legislation refers to legislation passed by
those bodies which have been authorised by original legislation to pass laws on
certain specific matters. For example, one often finds that a minister of
parliament or a local government is authorised by a statute or law to pass
regulations or by-laws on matters of a comparatively minor nature. Thus the
minister of finance may pass regulations pertaining to the increase in the VAT
 rate or a local government (for example a local council) may pass by-laws
pertain¬ing to the fees in respect of dog licences as well as impose fines against
persons failing to obtain such licences. It should therefore be clear that those
bodies are only able to legislate on the basis of powers delegated to them from
bodies having original legislative power, such as parliament.

The importance of the above distinction therefore lies therein that whenever legislation
is passed by an authority it should, unless directly authorised thereto by the
Constitution (that is original legislation), not be in conflict with existing original
legislation. If subordinate legislation is in conflict with original legislation the
subordinate legislation is void and the provisions of the original legislation are valid.

3.1.2 Common Law

It is often said that the legal system in South Africa is based on the Roman Dutch legal
system. The reason for this is that our common law is rooted in Roman law. This relates
back to the time more than 2 000 years ago when Rome was said to have ruled Europe.
As a result of the Romans’ advanced civilisation they also had an advanced legal system
to order the lives of its people. With the passage of time, much of the Roman law was
received into Holland and from there into South Africa. The Roman and Roman Dutch
law has been recorded in various text books which are still consulted by lawyers when
trying to solve legal problems. Whenever a legal problem cannot be solved by consulting
the laws of parliament (legislation), the common law (that is the Roman Dutch law) may
hold the solution. For example, the common law crimes of murder and robbery are not
contained in any act of parliament but their origins are to be found in our common law.

3.1.3 Custom

It sometimes happens that a community forms habits of behaviour which are not laws
and which are not enforced by the state initially. The courts have, however, in certain
circumstances decided to give such a habit (or custom) the force of a law, for example,
the court decision of Van Breda v Jacobz 1921 AD 330. In this court case a community of
fishermen ap¬proached the court on the following facts. It was a custom amongst the
fishermen in the community that the fishermen were not allowed to cast their nets
where other fishermen had first seen a school of fish and had already cast their nets.
The fishermen approached the court to enforce this custom. The court said that in order
for a custom to become law (that is enforceable by the state) it must comply with the
following four re¬quirements:
● It must be reasonable;
● It must have existed a long time;
● It must be generally recognised and observed by the community; and
● The extent of the custom must be clear and certain.

Customs can therefore also become legal rules.

3.1.4 Court Decisions (judicial precedent)

Law is generally enforced by the courts which make decisions when a breach of the law
or a legal dispute is referred to them. To make decisions the courts have to apply the
existing law to the facts before them. Although the courts can only apply the law it
sometimes happens that the law so applied needs to be interpreted. When interpreting
the law it can be said that the courts create law. A law may, for example, determine that
foreigners entering the country have to comply with certain conditions. If the law does
not specifically define the meaning of the word ‘foreigners’ the court will have to give its
own interpretation of the meaning of the word and may rule that ‘foreigners’ can have a
number of meanings which people may not have expected.

Furthermore, if no existing legislation exists to order a specific dispute before it, the
court will then look at the common law to make a decision regarding such a dispute. The
court in so doing will have created a prece¬dent having the force of law which other
courts will be obliged to enforce.

3.2 Content

In South Africa law is divided into two broad categories known as public law and private
law. Private law governs the relationship between private individuals, for instance, a
man and his wife. Public law, on the other hand, governs the relationship between the
state and the legal subject on a vertical plain, in other words, where the state exercises
authority over the legal subject. As was seen earlier the law is not only a set of norms of
conduct but also grants rights to people. There¬fore, rights are also categorised under
private law rights and public law rights.
 3.2.1 Private Law Rights

Private law rights (normally referred to as subjective rights) relate to those rights one
has against another person not to cause him or her harm, for instance, if Person A has
agreed to build a wall around Person B’s house against payment of an amount then A
can ask the court to order B to pay when A has finished the wall and B refuses to pay.
Through our courts private law rights have been categorised in four categories namely
real rights, personality rights, immaterial property rights and personal rights:

● Real rights relate to the individual’s rights in respect of his or her things. Things are any
material thing which is of value to a person, for example, a person’s house, car, hi-fi
etcetera. A person therefore has a right not to have his or her things damaged or stolen
by another person. The most significant real right is one’s right of ownership. There are
also other limited real rights, for example where one hires the property of another
person.
● Personality rights relate to personal aspects of a person, for instance, a person’s good
name, physical health, dignity et cetera. A person therefore has a right not to be injured
by another person.
● Immaterial property rights relate to the intellectual creations of a per-son, for example,
if a person has written a book he or she has copyright thereof, in other words, he or she
will have a right to claim from a person who copies his or her book. Trademarks and
copyright are the most well ¬known examples of immaterial property rights.
● Personal rights relate to the rights a person acquires when he or she enters into a
contract. Each party to a contract has a right to the perform¬ance of the obligations
which the other party undertook to do in the agreement. The example of A and B
entering into a building contract discussed above is an example of a personal right.
Furthermore, a personal right also refers to a claim a person may acquire when any of
the above subjective rights have been infringed.

3.2.2 Public Law Rights

Public law rights relate to the rights of the individual in a community against the state
and mainly consist of criminal law, administrative and constitutional law. Criminal law
gives all individuals in a community, as well as the community as a whole, the right to be
protected from crime. A crime is a shameful unlawful and blameworthy act which
outrages the community. Therefore there is a police force and courts to apprehend and
punish criminals. Administrative and constitutional law gives the individual and
 community as a whole the right to be treated fairly by the state, for instance if a
building plan is submitted for approval to a local government council and such council
refuses to approve it without good reason, then the court can be asked to order that the
disapproval be set aside and the council reconsider the plan properly.

3.2.3 The Bill of Rights (Constitutional Law)

In terms of the new Constitution the basic rights of all people in the community are
protected. The Constitution does not refer to specific categories of rights (also called a
system of rights) as discussed above. What it does say, however, is that the rights
created therein applies against the state (that is public law) and against private
individuals and institutions (that is private law). As the rights created in the Constitution,
especially the Bill of Rights can apply to both public and private law it is submitted that
there is a need to formulate a new system of rights which consists of a combination of
public and private law rights flowing from the Constitution. The Constitution
furthermore provides that use may be made of foreign law to interpret the Constitution.
It is therefore possible that our courts may formulate a new system of rights not based
entirely on our common law but on the court decisions and legislation of other countries
which is more suitable to the structure of our Constitution. However, until a new system
of rights is formulated by our courts the existing system as discussed above will apply
insofar as it is not contrary to the provisions of the Constitution.

4 LEGISLATIVE AUTHORITY
The constitution provides for 3 spheres of government
1. National Government – deals with issues that concern the whole country eg: home
affairs, foreign affairs, public services, administration etc.
2. Provincial government – deals with issues I each of its 9 provinces such as schools,
health, provincial roads etc.
3. Local government- deals with issues of municipal services such as water, sewage,
refuse, electricity etc.

The constitution vests legislative authority in respect of each in a particular body.

Therefore, SA has

1. National legislation – made by Parliament assented to by the president. Consists of

National assembly and national council of provinces
 NA – represent the country and make sure the laws of the constitution are kept
NCOP- represent the 9 provinces.
2. Provincial legislation – made by legislature of 9 provinces and assented to by their
respective premiers
3. Local legislation – made by municipal councils.

3 levels of government

1. Executive – they are the cabinet, president and they are responsible for ruling the
country through different departments eg health, education, sport etc
2. Legislature - parliament consisting of NA and NCOP
3. Judiciary – the courts: make sure that those who break the law are punished. They
apply the laws that the legislature creates. They are separate and independent from
the government.

5 LEGISLATIVE PROCESS

The law-making process begins when a Minister of the Cabinet (who is in charge of a
government department) decides that a new draft law (called a “bill”) is necessary.

The Minister submits the proposed Bill to Cabinet. If Cabinet agrees to the Bill, the
Minister formally introduces it to Parliament. It is then referred to a Committee in
the National Assembly or NCOP for consideration. For example, if the Bill concerns
health matters, it will go to the health Committee.

Bills that affect provinces are now usually introduced in the NCOP and then sent to
the NA.

A portfolio Committee consists of members of all the political parties in the National
Assembly. The Committee meets to study and discuss the Bill in detail. It can make
changes to the Bill if the majority of the committee agrees. It is also published in the
Government gazette for public comment.

The Bill then goes to the National Assembly to be debated by all political parties. All
members then vote on the Bill and, if it is passed, it is sent to the NCOP.

The same process is followed in the NCOP, if the National Assembly and the NCOP
agree on the Bill, it is passed and goes to the President for signing.
 If the NCOP disagrees with the National Assembly about a Bill which affects
provincial powers (for example, a Bill on Welfare, Education or Health), a mediation
committee must try to solve the disagreement. (The mediation committee consist of
9 members from the Nat. Assembly and one for each province from the Council of
Provinces.) If the mediation committee fails, the National Assembly can send the Bill
to the President for signing, provided that two-thirds of all it’s members vote in
favour of the Bill. Otherwise the Bill falls away. If the NCOP disagrees with the
National Assembly about a Bill that does not affect provincial powers (for example, a
Bill of Defence, or Justice), the National Assembly can again discuss the Bill and
agree to send it to the President for signing.

A Bill becomes a law when it is signed by the President and promulgated (declared
official) in the Government Gazette. It is now called an Act of Parliament.

The Constitution can only be changed if two-thirds of all members of the National
Assembly agree. If the change affects the Provinces directly, or amends the Bill of
Rights, tow-thirds of the provinces in the NCOP must also vote in favour of it.

6. THE COURT SYSTEM

The courts fulfil the function of creating law by setting precedents and the functions of
the judiciary as explained above respectively. There are basically four different classes of
courts in our country. These are:

● The magistrate’s courts (also referred to as the ‘inferior courts’).

● The high courts (these used to be called the ‘supreme court’.
● The high court of appeal (this court used to be called the ‘appellate division of the
supreme court’).
● The constitutional court.

The high court of appeal (with the exclusion of constitutional matters) is the highest
court in our country. In other words, if one is dissatisfied with the decision of the high
court of appeal, there is no higher court which one can appeal to. When the high court
of appeal makes a decision on the law, the high courts and the magistrates’ courts have
to follow its decision.
 In respect of constitutional matters, which could briefly be described as any matter
which involves any provision of the Constitution, the constitutional court is the highest
court, even higher than the supreme court of appeal.

Apart from what has been stated above, all the courts of our country are obliged to
follow the doctrine of judicial precedent. This means that until a higher court gives a
different interpretation on a matter of law, each court is bound to consistently apply the
law as interpreted by the higher courts. In other words, a magistrate’s court or a high
court cannot interpret a certain law to have one meaning today and to have a different
meaning tomorrow. The reason for the application of this doctrine of judicial precedent
is that there must be certainty in legal proceedings and that the subject of a country
should have a reasonable idea of how the courts apply the laws.

To summarise briefly how the courts are bound by decisions of a higher court the
following hierarchy of courts exists in terms of the Constitution.

● The highest court on constitutional matters is the constitutional court, the decisions of
which have to be followed by the supreme court of appeal, the high courts and the
magistrates’ courts.
● The highest court on non-constitutional matters is the supreme court of appeal, the
decisions of which have to be followed by the high courts and the magistrates’ courts.
● A decision of a high court (constitutional or otherwise) which is not appealed on to the
supreme court of appeal or constitutional court has to be followed by the magistrates’
court.
● Magistrates’ courts have no power to bind any other courts by its decisions.
As was seen earlier judicial precedent is also regarded as a source of law in certain
circumstances. Although it is the function of the courts to interpret the laws and not to
create laws, our courts in the interpretation of laws sometimes do create new legal rules
thereby. It must however be noted that existing precedents which are contrary to the
Constitution will now be invalid.
7. LEGAL PRACTITIONERS

Judge
Magistrate
Advocate
Advocates mainly appear in the High Court where they represent their clients in criminal
or civil cases. They do not get cases directly from clients, but attorneys bring cases to
them. To become a practising advocate a person must go to university to obtain an LLB
degree, and complete “articles”.

Attorney
Attorneys are responsible for general legal work e.g., drawing up legal documents like
agreements and wills, doing commercial work and criminal law work. They must have
an LLB or B.Proc. degree and completed “articles”.

Conveyancer
Conveyancers are attorneys who have passed a special examination in conveyancing,
which deals with how to prepare documents for the transferring of land or immovable
property, and the registration of mortgage bonds. The work of a conveyancer is to
prepare for registration certain legal documents called deeds of transfer, title deeds and
mortgage bonds.
Notary public
Notaries public are attorneys who have passed a special notaries examination. The
work of a notary public is to draw up, (and make sure that the proper people sign),
certain legal documents like contracts entered into before marriage (called “ante-
nuptial contracts”), or other documents called notarial deeds.

8. CIVIL, CRIMINAL AND CONSTITUTIONAL PROCEDURE

The main differences between civil and criminal cases are as follows. In a civil case a
plaintiff or applicant sues a defendant or respondent for damages or to rectify a
situation. They appear before the court as equals. In a criminal case the state institutes
proceedings against an accused person for an alleged crime in order to punish him or
her. The state acts on behalf of society (and the injured party, if applicable) and as the
bearer of government authority. In order to suc¬ceed in a civil case, the plaintiff must
prove his or her claims or contentions on a balance of probabilities. This means that a
reasonable degree of probability must be established. The court must be able to say ‘we
think it more probable than not’. In a criminal case the state must prove the guilt of the
accused beyond reasonable doubt, which is a much stricter test. It does not mean that
guilt must be proved beyond all doubt; it means that if there is a reasonable possibility
that the accused is not guilty, he or she must be acquitted. A constitutional case
concerns any dispute involving the interpretation, protection and enforcement of the
Constitution.

8.1 Civil Cases

When a person is aggrieved by another, for example, when the other is in breach of a
contract between them, the aggrieved person may approach a legal practitioner for
advice. Normally the person first approaches an attorney, who may consult an advocate
if necessary. In the past there were marked dif-ferences between the two professions.
Attorneys were members of the side bar and advocates belonged to the bar. Attorneys
were not required to have the same academic qualifications as advocates, and the latter
were the only legal practitioners allowed to appear in the Higher Courts. Pursuant to the
notion of greater access to justice and also to legal practice, the differences between
these professions are being phased out, for example under certain circum¬stances
attorneys may now also appear in the High Court. Depending on the advice given by the
attorney, the aggrieved party may decide to institute civil proceedings against the other
party. The attorney assists him or her in the pro-ceedings.
8.2 Criminal Cases

8.2.1 Prosecution

When a crime is allegedly committed, the police investigate the matter either on their
own initiative or following on a complaint by the injured person. A dock-et is opened for
the case and all evidence gathered by the investigating officer is filed in it. When
sufficient evidence has been found a decision to prosecute the culprit must be taken.
The Constitution provides for a single prosecuting authority in the Republic, consisting
of a National Director of Public Prosecutions appointed by the President, directors of
public prosecutions and prosecutors (§ 179). Previously called attorneys-general (in the
High Court) and prosecutors (in the magistrates’ courts), they must be suitably
qual¬ified persons and exercise their functions without fear, favour or prejudice.

When the prosecutor decides to prosecute, the accused is arrested or ordered to appear
in court. Arrested and detained persons have a number of constitutional rights (§§ 35
(1) and (2)). They have the right to be informed of all their rights, to remain silent, not to
make a confession and to be brought before a court within 48 hours after the arrest. A
detained person has the right to be informed of the reasons for the detention, to
choose a legal representative, to challenge the lawfulness of the detention, to be
detained under dignified conditions and to be visited by family, a religious counsellor
and a medical practi-tioner. The prosecutor draws up a charge sheet and when the
accused appears in court on the appointed date, he or she is confronted with it and is
asked by the court to plead guilty or not guilty. The accused has the right to a fair, public
and speedy trial, to be informed of the charge with sufficient detail, to be pre-sent when
tried, to be represented by a legal practitioner (an attorney or an advocate), to be
presumed innocent, to remain silent and not to testify, to pro-duce and challenge
evidence, and to be tried in a language that he or she understands (§ 35 (3)).

8.2.2 Trial

The trial in court consists of the first stage during which the accused must be found
guilty or not guilty, and the second stage during which the proper sen-tence is
determined. When the accused pleads guilty, the court must make sure that he or she
understands the charges and has intended to plead guilty to them.
Only then may the court find the accused guilty as charged. When the accused pleads
not guilty, the prosecutor leads all the evidence and refers to other evi-dential material
to prove the case. The legal representative of the accused may cross-examine the
witnesses and the prosecutor may re-examine them. After the prosecutor has closed the
state’s case, the defence may call witnesses to rebut the evidence presented by the
prosecutor. The prosecutor may cross-examine these witnesses and the counsel for the
defence may re-examine them. When both sides have finished the prosecutor and the
advocate or attorney for the defence deliver their closing arguments, after which the
court delivers its judgment. This may also be preceded by an adjournment during which
the magistrate or judge considers the decision.

8.2.3 Sentencing

If the accused is found guilty by the court, the proper sentence must be deter-mined.
The court has wide discretion in this regard. The prosecutor will there-fore present
evidence, for example of previous convictions, which can be regard¬ed as aggravating
circumstances. The defence will present evidence in mitiga¬tion, for example with
regard to the convicted person’s good character. Eventually, the court will pass
sentence which, depending on the offence, may include a period of imprisonment, a
fine of any appropriate amount, or both. The convicted person may also be sentenced
to some form of community ser-vice. In the case of serious crimes such as murder, rape
and armed robbery, the maximum sentence is life imprisonment.

8.2.4 Constitutional Cases

A constitutional case may be a civil case, for example, when one organ of state institutes
proceedings against another on the grounds that the latter has violated its constitutional
status or powers, or when an individual sues the state for the violation of his or her
constitutional rights. However, a constitutional dispute may, and often does, also arise
in a criminal trial when the accused complains that one of his or her procedural rights
has been infringed upon. In the case of the infringement of a constitutional right, the
courts follow a two-stage approach. First, it must be established whether the right has
in fact been infringed upon and, second, it must be established whether the limitation of
the right can be justified in terms of the limitation clauses in the Constitution (in
particular § 36). During the first stage, the person complaining of the infringement of
the right must prove that he or she is a bearer of that right, that the conduct or interests
protected by the right have been infringed upon, and that the person or body who
allegedly has infringed upon the right is bound by the Bill of Rights. Once this has been
established, the person or body bound by the right must prove during the second stage
that the infringement complies with the requirements for the lawful limitation of the
right. When a court declares invalid a law of Parliament or a provincial legislature or an
action by an executive body, it may suspend its decision to allow the responsible body
time to rectify the law or action.