ec101

• Law


  Set of rules made by state to order way people in society must behave
• Commercial law


  • Laws that control a business relationship
• Key definitions related to the study of law

  • Legal
  • Legal principles
  • Legally binding
  • Legal rules
• Breaking a law - criminal or civil sanction e.g., imprisonment or damages
• Moral rules


  Personal standards of behaviour based on people's beliefs
• The Constitution


  • Sets out and regulates the powers and functions of the State (government)
  • Section 7(2) states the State must respect, protect, promote, and fulfil the human rights in the Bill of Rights
  • Section 8 (1) states the Bill of Rights applies to all law, and binds the legislature, executive, judiciary and all organs of state
• Separation of powers


  • Legislature makes legislation
  • Executive and administration enforce the law
  • Judiciary = courts and judges – apply the law to disputes which can be resolved by law
• Legal subject


  Any person to whom the law applies. There are two types: natural persons (human beings) and juristic persons (entities)
• Legal object


  An object that has economic value and in which a legal subject can have legal rights, duties and obligations
• Legal rights


  • Personal rights: rights that one person can exercise only against specific people
  • Real rights: can be enforced against the whole world
• South Africa's legal system reflects parts and values of our history
• From 1652 onwards, Jan van Riebeeck/Dutch settlers took over the Cape and Roman-Dutch Law was received as the official law in the Cape
• Parts of English law which was introduced in the 1800s when the British settlers came to the Cape
• Common law


  Roman-Dutch and English law that forms the basis of modern South African law and has binding authority whereby courts have adapted them to suit SA conditions
• Sources of SA law

  • Primary sources: Constitution, Legislation, Common law, Customary law, Custom (Trade practices), Judicial precedent, International law
  • Secondary sources: International law, Foreign law, Modern writings (Academic textbooks and journals)
• The Constitution


  • Is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled
  • Previous legal system was based on parliamentary sovereignty vs current legal system based on constitutional democracy
• Legislation


  • Laws embodied in writing are called statutes/legislations
  • The Constitution of the Republic of South Africa, 1996 is a supreme legislation – stands as a separate source of law on its own
  • Parliament is responsible for making and passing laws. Parliament consists of two Houses called the National Assembly and National Council of Provinces
  • Provincial and local levels of parliament also have the power to create legislation
  • A law-making body may delegate legislative power
  • Legislature must not act ultra vires
• Common law


  • South African common law is a set of laws derived from other legal systems and that developed over time (not only restricted to Roman-Dutch law)
  • Primary source of law and is binding
  • Not entirely written and may be difficult to ascertain
• Customary law


  • Many groups of people follow particular rules that are customary or traditional in their culture
  • Based upon oral tradition. Develops from the belief systems of a community and is carried down from generation to generation
  • Customary law is recognised in terms of section 211(3) of the Constitution as a primary source of law and is binding
  • Living customary law vs official customary law
  • Customary Law vs the Constitution
  • Customs/trade practices other than "customary law" (fishing case)
  • Must be reasonable (not causing harm to anyone), must be long established, must be recognised and observed by the community, must be clear and certain
• Judicial precedent


  • Relates to the principle of stare decisis = 'to stand by previous decisions. It means that courts should decide similar cases in a similar way for fairness and consistency
  • When one of the higher courts interprets and applies the law in a particular way, that judgment sets a judicial precedent meaning that the same court or lower courts dealing with similar cases must decide them in the same way
  • Judgements of higher courts must be reported to be accessible. Law reports provide efficient system of case reporting that makes precedents easily accessible
  • You must understand the court structure/hierarchy of courts (lower vs higher courts) to understand which courts' decisions are binding on other courts, as not all courts create judicial precedent
  • You must understand the structure of individual judgments helps us understand which part of the judgement is binding. Obiter dictum: any statement that falls outside the ration decidendi or an incidental remark/remarks made in passing. Ratio decidendi: The reason for the decision. Ratio decidendi creates a precedent
• Case law citation


  • Civil case law (starts with names of litigants) vs Criminal case law (starts with "S v")
  • Smith v Jones 2005 (1) SA 412 (SCA) - Smith and jones are names of the litigants, 2005 denotes the year of the case, (1) indicates the first part of the law report in that year (volume number), "SA" indicates that the case is reported in the South African Law Report (publication series), 412 reflects the page number on which the case is reported, SCA means the case was heard in the Supreme Court of Appeal
• International law


  • Section 39 (1) (b) Must consider international law, e.g. Universal Declaration of Human Rights, Primary source of law and is binding
• Foreign law


  Section 39 (1) (c) of the Constitution, Courts have discretion to apply foreign law, Not binding but persuasive, Impacts on drafting and interpretation of statutory law
• Academic textbooks and journals

  Academic writing and publication, Reflects the current law as received from other sources of law
• The Judicial System


  • Section 165 (2) of the Constitution: "The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice."
  • Section 166 of the Constitution establishes the courts in the hierarchy
  • Jurisdiction is a dual concept: Refers to the courts authority to adjudicate or rule on cases based on subject area or geographical region, Refers to the limits of the orders, or decisions, that the court can make such as max fines or prison terms
• The SA Court System

  • Superior courts bound by own decisions or until overruled by a higher superior court (unless previous decision manifestly wrong)
  • Lower courts bound by decisions of Superior Courts in their area/jurisdiction
• Legal Positions


  • Attorneys and advocates
  • Prosecutors (National Director of Public Prosecutions) – decisions to prosecute or not
  • Registrars and clerks of the court
  • Sheriffs/Messenger of the court
  • Magistrates
  • Judges