Theory

• Scientific law


  Statements about what people observe repeatedly in nature. They describe what we are able to perceive in the physical universe. E.g. Gravity exists even if we do no want it to!
• Scientific laws


  • Laws of physics, chemistry, economics, and even psychology
• Practical laws


  Rules of conduct - set out courses of action for rational human beings. Tell us how thinking people should behave in particular situations - set out standards to which human beings ought to aspire
• Practical laws


  • Rules of law, ethics, honour, and even sport rules
• Legal law


  The body of rules governing human conduct, recognised as binding by people and enforced by the State
• Law


  Is influenced by natural, social and moral codes of conduct
• Where does law come from?

  • Made by a formal process and enforced by the State
  • Naturally inherent in people and originate from the community. Accepted by the public on an informal basis
• Compulsory or voluntary


  • Must be obeyed by all
  • Individuals are free to accept or reject
• Purpose of law


  • To facilitate order and justice
  • To uplift all humankind and to advance civilization
• Formalities of law


  • Controls human conduct by formal rules and procedures, and processes such as courts
  • Guides human conduct by setting standards, and functions through the consciences of individuals
• Legal subject


  Any person, or entity, who can hold rights and duties in terms of the law
• Right


  Your ability to claim or protect something in which you have a legal interest from another
• Legal rights


  • Corporal things (movables and immovables)
  • Incorporeal things (e.g. shares in a company)
  • Intellectual property (creation of the mind – e.g. patents copyright and trademarks)
• Duty


  A requirement to do something or not to do something
• Real right


  A right that you hold in a thing, e.g. you own a car. You can protect a real right against anyone in the whole world who tries to interfere or cause you loss
• Personal right


  A right you hold against a specific person, e.g. someone who owes you a debt. You can protect a personal right against that legal subject only
• How real rights are created

  The most important real rights are those of ownership and possession. Real rights are generally created by agreement (i.e. contract)
• How personal rights are created

  Personal rights may be created by agreement (i.e. contract); one person getting an unfair benefit at the expense of someone else (i.e. unjustified enrichment), or by one person to another that causes injury to their body or damage to their property (i.e. delict)
• How real rights are transferred

  Real rights may be transferred from a person to another by delivery in the case of a movable (e.g. car) or by registration in case of an immovable (e.g. land, house)
• How personal rights are transferred

  Personal rights may be contractually transferred from one person to another by means of an agreement called 'cession'
• Legal personality


  Refers to entities which may hold rights and duties in terms of the law
• Types of legal subjects

  • Natural persons: All human beings have the capacity to bear rights and duties from the time they are born. The legal personality of a human being ends automatically on death
  • Juristic persons: These are non-living associations which are given the capacity for rights and duties by law, for example corporations
• Purpose of law: Order

  Main purpose is to maintain order and peace in the community. Law limits what people may do. By placing rules on people, the law makes it possible for people to live together peacefully, even if they have competing interests
• Purpose of law: Justice

  Refers to the general sense of people as to what is fair and right. The closer a legal system comes to being just, the more willingly it will be obeyed by people. Law must be seen to be just and fair. An unjust system of law can only be enforced by strong punishment, and the people ultimately will rebel against that
• Postulates of justice


  • Reasonableness: Legal rules must be reasonable to achieve justice. Random, senseless, or silly rules bring the legal system into disrepute
  • Generality: Legal rules must apply equally and consistently to all legal subjects
  • Equality: Legal rules must apply equally in similar circumstances. However, this does not mean absolute equality for everyone - e.g. it would not be rational to treat adults in the same way as minors, or the insane in the same way as sane people. But different rules must not be random, unpredictable, or unreasonable - e.g. Racial discrimination does not treat people equally in similar circumstances
  • Certainty: The same result must be achieved if the circumstances are similar. The law should generally be predictable so that people can anticipate the legal consequences of their conduct
  • Due process: An independent, unbiased judiciary must apply the law. Judges must apply justice after giving serious thought to the facts and the law, and their decisions must be made in the interests of the law and of justice, and not to favour one side or the other. Courts should be open to the public, and the loser of a court case should be allowed to take a decision on appeal or review. Courts must be impartial and judges should not be influenced by outsiders, such as a political group or the government. A judge should not hear a matter in which he or she has a personal interest. The legal profession a must be competent and independent; able to represent unpopular causes without fearing the consequences. To operate effectively, courts need people to be obedient and respectful towards the authority and dignity of both the court and officers of the court.
• Contempt of court


  Behavior that disrupts, obstructs or interferes with the administration of the court. The court may hold someone "in contempt of court" if he or she: Does not obey a lawful court order, Shows disrespect to anyone in the court, Behaves improperly or disrupts proceedings, Attempts to influence participants in the proceedings, Publishes something that tends to either prejudice the fait trial of a case, or that undermines public confidence in the administration of justice by a particular judicial officer or court.
• Sources of law


  The origins of South African law
• Sources of law


  • Codified (written)
  • Uncodified (unwritten)
• Codified sources


  Recorded in a comprehensive code
• Uncodified sources


  Not recorded and scattered across many different sources
• Sources of law


  • Legislation
  • Common law
• Common law


  All law considered by South African courts as being persuasive or binding, except for legislation
• Common law


  • Judicial precedent
  • Judicial interpretation of statutes
  • Commentaries
  • Customs
  • Customary law
  • Foreign law
• Legislation


  The setting down of binding rules of law in a formalised way, by an authority that has the legal capacity to do so
• The Constitution is the supreme law in the Republic of South Africa and prevails over all other laws
• How a Bill becomes an Act of Parliament


  1. There are 2 houses of the national parliament: The National Assembly and The National Council of Provinces

  2. Bills come from government departments and may result from previous consultation through the publishing of green papers and white papers

  3. Draft Bills may be published for comment in the Government Gazette

  4. Bills may be amended many times as a result of discussion in a portfolio committee or select committee

  5. When a Bill has been passed by both houses of Parliament it goes to the State President for agreement and signature

  6. Then it is published in the Government Gazette as an Act of Parliament
• Judicial precedent


  The body of law resulting from decisions on points of law made by other courts with regard to the same circumstance
• Doctrine of precedent


  The authority given to past decisions of courts
• The doctrine of precedent comes to us from the Latin expression 'stare decisis et non quieta movere' which means to 'stand by the decisions and do not disturb the undisturbed'
• Advantages of the doctrine of precedent


  • Enables legal subjects to plan their private and professional lives
  • Decreases litigation
  • Provides guidance to judges and magistrates and reduces the possibility of partial or prejudicial decisions
  • Promotes public confidence in the judicial system
  • Saves time and reduces the costs of litigation
  • Promotes certainty in the law, as well as predictability, reliability, equality, uniformity, and convenience