law

• Topics covered in Legal Theory Semester 1 for first years


  • Dispute Resolution and Law
  • Structure of the Courts
  • Legal Profession
  • Criminal Procedure
  • Civil Procedure
  • Importance of Legal History
  • Sources of Law
  • Twelve Tables
  • Praetorian Edict
  • Aedilitian Remedies
  • Justinian's Codification
  • Canon Law
  • Glossators and Commentators
  • Roman Dutch Law
  • English Law
  • South African Common Law
  • Constitution
  • Legislation as a Source of Law
  • Judicial Precedent
  • Custom and Indigenous Law
• Dispute


  Conflict that arises when rules are broken/not adhered to/unclear (allow for different interpretation) e.g. when somebody does not respect the rights of another
• Types of disputes

  • Dispute of FACT: e.g. different versions of story, in order to apply law, must find truth
  • Dispute of LAW: different interpretations, e.g. Swart v Shaw
• Ways to resolve disputes in a lawful fashion


  • Litigation
  • ADR (Alternative Dispute Resolution)
• Factors to consider when resolving a dispute


  • COST
  • TIME taken up by process
  • (ADVERSE) PUBLICITY
  • IMPACT of process on relationship
  • STRENGTH of case
• Litigation


  Resolution of dispute through application in PUBLIC FORUM
• Models of litigation


  • Adversarial
  • Inquisitorial
• Adversarial model


  Battle between equals (assumption), parties in control of proceeding, civil matter e.g. breach of contract/dispute/no law broken, defendant and plaintiff argue, judge listens and makes decision, applies law after finding of fact, plaintiff usually dominus litis, must prove the case, criminal setting: prosecutor is dominus litis, burden of proof always rests on the state (beyond a reasonable doubt)
• Inquisitorial model


  Presiding officer (judge/magistrate) active: 'descends into the arena,' questions witnesses, decides who they will be, aim is to find truth, legal representatives
• Litigation


  • Judicially imposed resolution to dispute
  • Standardised public means of resolution
  • Public
  • Outcome imposed
  • Judiciary controls process
  • Can be expensive
  • Can take a long time to get court date
• Alternative Dispute Resolution (ADR)


  Serves to complement (not replace) resolution of dispute through litigation, PRIVATE resolution of dispute through application of law
• ADR


  • Private
  • Voluntary
  • Controlled by parties (except outcome not controlled in arbitration)
  • Shaped to suit the needs of particular parties
• Negotiation


  Verbal exchange to resolve dispute between parties – no third party, willingness to resolve dispute (voluntary), process must not create more conflict, aim: compromise/trade-offs (giving and taking, win-win outcome with both parties satisfied), parties can get lawyers to negotiate on their behalf, sometimes already involved in litigation and settlement is reached just before court gives judgement, rules should be set regarding time constraints (if dispute not resolved in x amount of time, litigation)
• Advantages of negotiation


  • Parties control process
  • Can save time and costs
  • Potentially cheap and fast
  • Potentially win-win (mutually acceptable solution)
  • Relationship can be maintained/restored
  • Private
• Disadvantages of negotiation


  • Can bring about more conflict, aggravate dispute (emotional element is a risk)
  • Could have high costs/take long if constraints not set
  • Mistrust and past conflicts can jeopardise process
• Mediation


  Facilitated/guided negotiation: voluntary process in which independent third party facilitates negotiations between disputing parties, parties in control – agreement to mediate (called mediation agreement) to shape process and outcome, and can agree whether or not to have representatives, mediator must be agreeable to both parties (be trusted by both), often used to resolve disputes in commercial sector and international politics, family advocate worked well in divorce cases (parties can avoid considerable divorce costs)
• Mediator's role


  Facilitates settlement between parties, provides neutral assistance, gathers information, persuades parties to reassess positions, releases tension (NB personality), sets framework for dispute resolution, does not impose a solution, encourages parties to create own solution
• Agreement flowing from mediation


  Contract (all requirements must be met), may be made an order of court
• Advantages of mediation


  • Solution not imposed
  • Can save time and costs
  • Potentially cheap and fast
  • Potentially win-win (mutually acceptable solution)
  • Relationship can be maintained/restored
  • Private
• Disadvantages of mediation


  • Difficult to find an ideal mediator (mediator will have to be paid, usually a lawyer)
  • Could be drawn out
  • Might fail (neither party willing to compromise)
• Arbitration


  A procedure of dispute resolution whereby parties refer disputes to a third party, common law vs statute: law passed by parliament, complementary nature of ADR (does not seek to replace litigation), private arbitration (not flowing from statute), voluntary process, flexible, arbitration agreement (contains names of parties, arbitration issue to be decided, powers of arbitrator, procedure to be followed, how cases will be dealt with, how awards will be made) – sets framework in which arbitration takes place, parties agree that 3rd party will resolve their dispute through application of law after hearing both cases, choice of arbitrator NB – usually an expert in the field, parties must consider nature of dispute, usually follows judicial-like procedure: ADVERSARIAL (opposing sides), arbitrator listens to both sides and makes decision, arbitration award: after hearing sides, judicial evaluation, in writing, final, not appealable, but subject to review
• Advantages of arbitration


  • Solution guaranteed (NB)
  • Can save time and costs
  • Participants choose nature of proceedings (also choose arbitrator) – maintain some control
  • Not public (private)
• Disadvantages of arbitration


  • Win-lose
  • Could be alienating (legal formalities/jargon)
  • Relationship might be destroyed
  • No right of appeal
• Courts in the judicial system


  • Constitutional Court
  • Supreme Court of Appeal
  • The High Courts, incl. any high court of appeal that may be established by an Act of Parliament to hear appeals from High Court, previously provincial/local divisions of the Supreme Court
  • Magistrates' courts (regional and district)
  • Any other court established or recognized in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the magistrates courts
• Types of courts


  • Constitutional Court
  • Ordinary courts (SCA, high courts, magistrates courts)
  • Special courts
• Jurisdiction


  The competence of a particular court to hear a specific case AND to grant appropriate relief in the instance of a civil matter or impose an appropriate instance of a criminal matter
• Factors that influence jurisdiction


  • Court of first instance: can this court hear a particular case for the first time?
  • Type of case: CRIMINAL - jurisdiction determined by kind of offence and possible sentence, CIVIL - amount claimed and nature of relief sought, CONSTITUTIONAL - any issue involving interpretation/protection/enforcement of the constitution, courts can declare invalid conduct
  • Geographical area: in instance of criminal, person must have been domiciled (residing) in the area/crime must have been committed there, SCA has jurisdiction in whole of SA, its seat is in Bloemfontein, High courts: most of 9 provinces have their own seat of the HC, sometimes HC travels and sits in towns in the countryside of its area of jurisdiction
• Jurisdiction of higher courts


  • SCA: Appeal only, whole of SA, ALL matters except those within strict jurisdiction of CC
  • HC: Appeal and first instance, specific provincial areas, All offences, including treason, More than 15 years, More than R300 000, More than R100 000, Specific performance only, Status matters, divorce, wills
• Jurisdiction of lower courts


  • Regional Court: First instance only, specific regional division, All offences, excluding treason, Not more than 15 years, Not more than R300 000, Only if empowered by Statue, never on constitutionality of legislation or conduct of president
  • District Court: First instance only, specific magisterial division, All offences excluding treason, murder, rape, Not more than 3 years, Not more than R60 000, Not more than R100 000, Consent to increased jurisdiction, Specific performance with damages in the alternative, Not matters of status, divorce, wills
• The new hierarchy of courts is: Constitutional Court (highest), Supreme Court of Appeal, High Courts, Magistrates' Courts
• The doctrine of precedent is connected to the hierarchy of courts
• Appeal


  When the court has allegedly erred in its decision, court from where appeal is lodged (lower court) referred to as a quo, court does not hear evidence, only studies record of court a quo, appeal can be upheld or dismissed
• Review


  In the case of possible irregularity of proceedings, criminal cases with heavy sentences automatically reviewed
• Steps to determine jurisdiction


  1. State what jurisdiction is

  2. State the 3 factors that influence jurisdiction: court of first instance, type of case, geographical area

  3. Apply the 3 factors to the particular set of facts
• The procedure for appointment of judges is outlined in Section 174 of the Constitution
• Criminal cases


  Created in terms of a statute: theft/murder (common law), money laundering (legislation)
• Factors considered in criminal cases


  • Kind of offence
  • Possible sentence
  • Geographical area
  • Court of appeal or review
• Procedure for appointment of judges


  1. Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer

  2. The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed

  3. The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice

  4. The President, as head of the national executive, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal

  5. The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly

  6. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President

  7. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made

  8. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list

  9. At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court

  10. The President must appoint the judges of all other courts on the advice of the Judicial Service Commission

  11. Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without fear, favour or prejudice

  12. Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution
• Appointment of acting judges


  1. The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent

  2. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice

  3. The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve
• Terms of office and remuneration of judges


  • A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge
  • Other judges hold office until they are discharged from active service in terms of an Act of Parliament
  • The salaries, allowances and benefits of judges may not be reduced