Introduction To Sa Law

Introduction to Law
ITL152
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ASSIGNMENT
SEMESTER 2023 02
MODULE INTRODUCTION TO LAW
MODULE CODE ITL152
DUE DATE 22 SEPTEMBER 2023
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ITL152
INTRODUCTION TO LAW
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ITL152
INTRODUCTION TO LAW
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ITL152
INTRODUCTION TO LAW
Question 1 [10]
Consider the following list of statements. Each statement is either true or false. You must
read each statement carefully and then select the option that you believe is correct as your
answer. Write down only the question number and either “true” or “false” next to the
number. Where the answer is false, you must provide a reason as well.
Example: If you believe Sub-question 1.11 is false, then write down: 1.11 False, because ...
1.1 Admissible evidence is evidence that is not allowed in court. (1)

1.2 In a criminal case, the parties are known as the State and the defendant. (1)
1.3 Legal positivism prescribes to the idea that law and morality are mutually exclusive. (1)
1.4 Public companies end with the abbreviation “(Pty) Ltd”. (1)
1.5 There are still close corporations in existence today. (1)
1.6 An infans has full contractual capacity. (1)
1.7 Legislation is the primary source of law used in criminal law. (1)
1.8 A crime can consist of an act or an omission. (1)
1.9 A sole proprietorship is a separate juristic person. (1)
1.10 Affidavits are used in application proceedings. (1)
Question 2 [15]
2.1 Discuss the difference between African customary law and common law. Your answer
should include an example of each. (6)
2.2 Provide a definition and example of the different sources of law. (6)
2.3 The Bill of Rights can be found in Chapter 2 of the Constitution. Discuss the
importance of the Bill of Rights for South Africans. (3)
Question 3 [10]
Mercantile law, also known as commercial law, includes different branches of law. Provide a
definition of any five of these branches and include an example of relevant legislation
applicable to each branch. (For example: Environmental law – National Environmental
Management Act 107 of 1998.)
Question 4 [15]
4.1 Match Column A to Column B. Write the number and matching letter as your answer.
Example: 6. F. (4)
Column A Column B
1. Things A. Personal rights
2. Aspects of personality B. Intellectual property rights
3. Performance C. Personality rights
4. Intellectual property D. Real rights
ITL152
INTRODUCTION TO LAW
4.2 X buys a motor vehicle from B for R50 000. X later discovers the proprietary energy
drink that B created for long-distance athletes was left in the car. X decides to sell the
energy drinks as if it were his creation.
4.2.1 What type of right does X have toward the car and why? (2)
4.2.2 What type of right does B have toward X regarding the purchase of the car and why? (2)
4.2.3 What type of right does B have toward X regarding the selling of the energy drinks
and why? (2)
4.3 In order for a contract to be valid, certain requirements must be met. List the
requirements and define each. (5)
ASSIGNMENT TOTAL: 50
Table of Contents
Heading Page number
MODULE PURPOSE AND OUTCOMES 1
TOPIC 1 THE LAW 2

Prescribed Reading 2
1.1 Introduction 2
1.2 The law 2
1.2.2 The law and other normative systems 3
Summary 13
Self-Assessment Questions 14
TOPIC 2 HISTORY OF SOUTH AFRICAN LAW 15

2.1 Introduction 15
2.2 History of South African Law 15
2.3 Roman Law 17
2.4 Roman-Dutch Law 21
2.5 The influence of English Law 22
2.6 Apartheid and the Law 24
2.7 Reconstruction of the Law in a constitutional era 28
2.8 Indigenous Law 28
Summary 29
TOPIC 3 SOURCES OF SOUTH AFRICAN LAW 30

3.1 Introduction 30
3.2 Sources of South African Law 30
Summary 35
© STADIO (Pty) Ltd Introduction to Law ITL152

TOPIC 4 CLASSIFICATION OF THE LAW 37
4.1 Introduction 37
4.2 Classification of the Law 37
Summary 41
TOPIC 5 ASPECTS OF PRIVATE LAW 42

5.1 Introduction 42
5.2 Aspects of private law 42
Summary 45
TOPIC 6 ASPECTS OF CIVIL PROCEDURE 46

6.1 Introduction 46
6.2 Aspects of civil procedure 46
Summary 47
TOPIC 7 ASPECTS OF CRIMINAL LAW 48

7.1 Introduction 48
7.2 Aspects of criminal law 48
Summary 52
TOPIC 8 LAW AND BUSIHNESS 53

8.1 Introduction 53
8.2 Law and business 53
Summary 55
TOPIC 9 COURTS AND ALTERNATIVE DISPUTE RESOLUTION 56

9.1 Introduction 56
9.2 Courts and alternative dispute resolution 56
Summary 60

TOPIC 10 THE LEGAL PROFESSION 61

10.1 Introduction 61
10.2 The legal profession 61
Summary 63
TOPIC 11 THE CONSTITUTION 65

11.2 The constitution 65
Summary 71
TOPIC 12 HUMAN RIGHTS 72

12.2 Human rights 72
Summary 79
TOPIC 13 LEGAL COMPARISON 80

13.2 Legal comparison 80
13.3 The constitution and legal comparison 82
Summary 83
TOPIC 14 LANGUAGE AND THE LAW 84

14.2 Language and the law 84
Summary 86

TOPIC 15 LEGAL ARGUMENT AND LOGIC 87
15.2 Legal argument and logic 87
Summary 90
References 91
Books 91
Legislation 91
Case law 91

Module purpose and outcomes
In this foundational module, you are introduced to the law as it stands, in

accessible terms, with reference to the different sources of law and the
classification of the law. This module demonstrates how the law affects the
everyday lives of individuals and groups in South Africa. The module exposes
you to the complexities of the law, the contestability of the law and uncertainties
that may exist in the law. You are further exposed to human rights, legal
comparison, aspects of legal language, and critical voices on existing law to
enable you to form informed opinions about the law and legal systems. The
module also exposes you to the courts, the legal profession and the implications
of the transformative Constitution of the Republic of South Africa, 1996.
On the successful completion of this module, you will be able to:
1. Demonstrate an understanding of what the law is.

2. Describe and explain the structure of the law and the different fields of the
law.
3. Solve basic legal problems and apply the sources of law to a set of facts.
4. Rely on the sources of law to answer a jurisprudential question.
5. Demonstrate knowledge of the impact of the Constitution of the Republic of
South Africa, 1996, and different perspectives of the law.
6. Solve basic legal problems related to the jurisdiction of courts.
7. Formulate basic legal arguments and identify fallacies in respect of legal
arguments.
Prescribed Reading
The prescribed textbook for Introduction to Law (ITL100) is:

• Kleyn, D., Viljoen, F., Zitske, E. & Madi, P. 2019. Beginner's Guide for Law
Students. 5th ed. Juta: Cape Town
ISBN: [978–1–485–12834-2]

1
Topic 1
The Law
Prescribed Reading
Kleyn et al Beginner’s guide for law students 5ed (2018) 1-25; 338-350; 395-
316
1.1 Introduction
This topic relates to the following module outcomes:
• Demonstrate an understanding of what the law is.

• Demonstrate knowledge of the impact of the Constitution of the Republic
of South Africa 1996, and different perspectives of the law.
1.2 The law
1.2.1 Legal norms and other norms
What is “law”?
• Law consists of a body of rules and principles facilitating and regulating

human interaction.
• It orders society and gives some degree of certainty.
• The rules are often applied or interpreted by institutions of state for

example the police and prison authorities. In most democratic legal
systems, the legislative authority makes laws; the judicial authority
applies these laws and other legal principles; the executive authority
enforces the law as a whole. Enforcement means that some form of
sanction will follow upon non-compliance with a legal rule. A sanction can
be in the form of punishment or the form of an order for example in the
case of a breach of contract.
• The content of the law depends on the history of the specific country
concerned.

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Activity 1.1
Explain the term “law”.
1.2.2 The law and other normative systems
Kleyn et al show the difference between the following normative systems that
govern or rule human behaviour:
• religion
• individual morality
• community mores
We will now explain what connection each of these systems has with the law.
1.2.2.1 Religion
Kleyn et al deal with all forms of religion regardless of whether the religion is
Christian, Muslim, an African religion or any other religion. Every religion has a
code or a set of rules in accordance with which the people who practise that
particular religion live. Every religion also has a sanction or punishment for those
who disobey its particular religious norms. Burning in hell is an example of one
punishment.
There is much discussion about the relationship between religion and law. One
of the questions asked is: When the system of religion and the system of law
clash, whose laws should you obey? Religion is often an emotional subject and
can lead to extreme views. This also applies to the relationship between law and
religion. Kleyn et al 6 explain these different views as follows:
• On the one hand, some people are of the opinion that religion and law
should be mutually exclusive. This is the secular approach to law. To them
religion is a personal matter only concerned with the individual’s private
sphere of conscience. It determines the individual’s destiny after death.
• On the other hand, it is sometimes accepted that religion and law should
have the same content. In terms of African Legal Philosophy, African law
and religion are inextricably linked to one another.
According to Kleyn et al 6 and 7 both extremes can be criticised and explained

as follows:
• There are many similarities between law and religion. The Western legal
tradition is strongly influenced by Christian thought. The content of
religious and legal rules is also often the same.

3
Examples are found in the offences of murder, fraud and theft that are
prohibited by many different religions alike. In addition, both law and
religion are studied by interpreting authoritative texts. Both ritual
formalities and fixed procedures play an important role. We should also
bear in mind that the Constitution of the Republic of South Africa, 1996,
protects the right to freedom of religion in section 15. See the case of
Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner of
Gender Equality Intervening) 1999 (4) SA 1319 (SCA).
• Kleyn et al 7 and 8 explain that there are, however, also many differences.
These two normative systems do not overlap completely. For example,
adultery is not a crime in South Africa although it may be regarded by
some religions as a sin. See Christian Education South Africa v Minister of
Education 2000 (4) SA 757 (CC).
1.2.2.2 Individual morality (personal morality/ethics)
When we speak of individual morality we are speaking about the norms or

standards of behaviour that each person sets for himself for example being
honest. Individual and personal norms can overlap. The essential point that you
must understand, as far as individual morality is concerned, is that it has to do
with the individual and that the sanction for disobeying these rules is personal
and self-inflicted for example being upset with yourself.
1.2.2.3 Community mores
Kleyn et al 10 explain community mores as the norms of a whole community or

group within that community. They are collective morals. Etiquette, fashion and
views about free love or interracial marriage all form part of this. They differ from
religion and morality in that they are not private matters concerning only a
specific individual. The sanction for non-compliance is varying degrees of
disapproval by other members of society.
In some instances, the law and community mores may be found in that
community’s religious convictions. For example, gay marriage may not be
acceptable in a certain community because their religion forbids such marriages.
In some instances, the law and community mores may coincide – they may be
the same. For example, possession and sale of harmful drugs are disapproved of
by the community and they are criminal offences.
Activity 1.2
Explain the connection between law and religion.

4
1.2.3 Being a legal practitioner in South Africa
The Legal Practice Council (LPC) is a national, statutory body established in terms
of section 4 of the Legal Practice Act 28 of 2014. The LPC is mandated to set
norms and standards, to provide for the admission and enrolment of legal
practitioners and to regulate the professional conduct of legal practitioners to
ensure accountability. The LPC and its Provincial Councils regulate the affairs of
and exercise jurisdiction over all legal practitioners (attorneys and advocates)
and candidate legal practitioners.
1.2.3.1 Introduction
This section describes the actors in the traditional divisions of legal practice, the
officers of the courts and other important legal functionaries operating in the
South African legal system. They include:
• Private practitioners such as attorneys, advocates, notaries, conveyancers
and paralegals.
• Public practitioners such as public prosecutors, state attorneys, state
advocates and state legal advisers.
• Presiding officers such as judges and magistrates.
• Court officials and functionaries such as the Master of the High Court, the
Registrar of the High Court, the Clerk of the Court, the family advocate and
the sheriff.
• Protectors such as the Public Defender, the Public Protector and the
ombudsman.
• Other bodies such as the South African Law Reform Commission and the
South African Human Rights Commission.
1.2.3.2 Professionalism
The legal system is service-oriented. Legal professionals participate in an

important societal function - that of service to fellow citizens. This is not just a
private service to individuals, but a public service in the larger meaning of this
term. The conduct of people who work in the legal arena determines the
character of the legal system as well as its ultimate success and acceptance as
a positive organising force in society.
1.2.3.3 Private legal practitioners
Private legal practitioners include:

• Attorneys
• Notaries public
• Conveyancers
• Advocates
• Paralegals

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1.2.3.3.1 Attorneys
An attorney:
• Is a general legal professional practitioner, admitted under the Legal Practice
Act 28 of 2014.
• May practise as a sole practitioner or in partnership with other attorneys in a
law firm.
• Deals directly with members of the public who are called clients.
• Is a professional whose operations are regulated by the LPC.
• Is represented by the Law Society of South Africa (LSSA).
A juristic person may also conduct an attorney’s practice in what is termed a

professional company (personal liability company) designated by 'Inc' after its
name.
The work of an attorney encompasses, amongst others:

• Dispute resolution and litigation.
• The drafting of contracts, wills and other legal documentation.
• Advising on regulatory requirements.
To become an attorney, it is necessary to (in chronological order):

• Obtain an LLB degree.
• Undertake a two-year contract of articles of clerkship (practical legal training)
with a principal attorney.
• Write and pass the Attorneys Admission (Side Bar) exams.
• Apply to the High Court for admission as an attorney.
A professional assistant or associate is an admitted attorney who is usually a

salaried junior lawyer in a firm and does not share in the profits of the
partnership. A partner or director is usually a senior lawyer in a firm who shares
in the profits of the partnership.
Attorneys can normally only appear in the lower courts. However, the Right of
Appearance in Court Act provides that an attorney who has an LLB and three
years of professional practise can apply to the High Court for the right of
appearance in that forum.
1.2.3.3.2 Notaries public
A notary public:
• Is an attorney who has passed the notarial practice examinations and
performs notarial work in addition to that of an attorney.
• Is required to execute a variety of deeds before he or she can be registered
with the Deeds Registry.

6
• Is responsible for the accuracy of the information contained in the documents
executed and for the verification of the authority and capacity of persons
acting as representatives of various juristic persons.
A notary’s protocol is an official register of all deeds dealt with by the notary. It
contains original copies of these deeds in numerical and date order and serves
as a public record of these legal documents which must be kept safe and secure.
1.2.3.3.3 Conveyancer
A conveyancer:
• Is an attorney who has passed the conveyancing exams and is therefore
entitled, after admission by the High Court, to perform the work of a
conveyancer.
A conveyancer’s work:
• Centres on facilitating transfers of immovable property and the registration of
such changes of ownership with the Registrar of Deeds.
• Includes the preparation and drafting of certain documents, most notably
mortgage bonds, related powers of attorney, deeds of transfer and certificates
of title, among others.
• May include having to deal with municipalities, the South African Revenue
Service (SARS), banks, the Deeds Office and estate agents.
1.2.3.3.4 Advocates
Advocates:
• Are specialist pleaders – they are skilled litigators, arguing matters before
presiding officers (judges in the High Courts).
• Associate with other advocates in groups of offices called advocates
chambers, but do not practise in partnerships.
• Take their instructions from attorneys who pay them an honorarium (fee) for
their services. They are not briefed directly by clients.
• Must serve pupillage before being admitted as an advocate.
1.2.3.3.5 Paralegals
A paralegal:
• Works beside attorneys and in other legal environments.
• Assists legal practitioners with tasks supplementary to legal matters such as
legal research, debt collection and the managing of a professional practice.
• Is not admitted as an attorney.
• Receives training from a variety of organisations and at different levels under
the auspices of the National Paralegal Institute of South Africa.

7
1.2.3.3.6 Public legal practitioners
Humby et al (2017) state that people employed by the state are strictly speaking
not professionals as the independence inherent in the definition of a professional
is naturally lacking in formal terms (that is, they are accountable to the state
and government, which is at any one time managed by a particular political
party). They are, however, in every other way part of the larger family of legal
professionals and subject to the ethics inherent to performing essential roles in
the judicial arena and the administration of justice. Public and legal practitioners
include:
• Prosecutors and state advocates
• State attorneys
• State legal advisers
1.2.3.3.7 Prosecutor and state advocate
The prosecuting authority is established by the Constitution. Legal actors who

exercise this authority exist in the following hierarchy:
• The National Director of Public Prosecutions (NDPP), who has the power to
institute criminal proceedings on behalf of the state.
• Directors of Public Prosecutions, who decide which matters to proceed with.
• Individual state advocates and public prosecutors, who prosecute these cases,
representing the state’s interest in the prosecution of criminal offenders.
1.2.3.3.8 State attorneys
• Are civil servants, representing government departments in civil legal matters

or disputes by bringing or defending actions and applications.
• Are governed by the State Attorney Act 58 of 1957.
• Can represent, by arrangement with the Minister of Justice and Constitutional
Development and the relevant agency, entities such as Transnet or Eskom.
• Perform the normal work of attorneys, notaries and conveyancers, such as
drafting contracts and appearing in court, but exclusively for the government
or its agencies.
1.2.3.3.9 State legal advisors
State legal advisers provide the following specific services:
• Drafting of legislation.
• Providing advice to the state at a national level on legal matters, including
policy-related matters.
• Scrutinising all Constitutional Court judgments and making recommendations
to the executive.
• Assisting provinces and municipalities to limit legal costs and to obtain second
opinions.

8
• Assisting municipalities with the drafting of by-laws and training in the
drafting of by-laws.
• Translating and drafting in indigenous languages.
1.2.3.3.10 Presiding officers
Presiding officers include:

• Judges
• Magistrates
• Small claims court commissioners
• Traditional leaders
1.2.3.3.11 Court officials and related roles
Court officials and related roles include:

• The Master of the High Court
• The Registrar of the High Court
• The Clerk of the Court
• Family advocate
• The sheriff
• The police
Other legal officers and functionaries include:

• The Registrar of Deeds
• Commissioner of Oaths
• Marriage officer
1.2.3.3.12 The protectors
The protectors include:

• Public defenders
• Public protectors
1.2.3.3.13 Public defender
A public defender is:

• A legally qualified civil servant, an attorney or an advocate.
• Appointed by the state to represent accused persons in criminal matters
where the accused is unable to provide financially for his or her own defence.
• Someone appointed by the Minister of Justice and operates under the auspices
of the Legal Aid Board.

9
1.2.3.3.14 Public protector
The Public Protector:

• Is a state institution that supports constitutional democracy provided for by
the Constitution.
• Is appointed by the president.
• Has powers to investigate impropriety and prejudice in state affairs or the
public administration, to report on these and to take remedial action in the
form of recommendations on receipt of complaints from the public.
Other legal institutions include:

• The South African Law Reform Commission
• The South African Human Rights Commission
• Other important statutory bodies
1.2.3.4 The South African Law Reform Commission
The South African Law Reform Commission (SALRC):

• Performs an important function in targeting serious legal issues that need
reform or thorough research.
• Consists of legal practitioners and other jurists such as legal academics.
• Makes regular calls for lay and professional comments on legal matters as
part of such research.
• Has done a vast amount of work over the years including a Report on
Customary Marriages, an Issue Paper on Islamic Marriages and Related
Matters and a Project concerning Access to Minor Children by Interested
Persons.
1.2.3.5 The South African Human Rights Commission (SAHRC)
The South African Human Rights Commission:

• Is created under the Constitution and is regulated by the Human Rights
Commission Act 54 of 1994.
• Has powers to investigate and report on instances of the violation of human
rights in South Africa.
• Undertakes research and education initiatives regarding human rights, and
constitutional and democracy issues.
1.2.3.6 Other important statutory bodies
• The Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities (CPPRCRLC) is created under the
Constitution. It reports to the SAHRC and has powers to monitor, investigate,
research, educate, lobby and advise on the issues of cultural, religious and
linguistic rights.

10
• The Commission for Gender Equality has similar powers to the CPPRCRLC
concerning gender rights.
There are several other statutory bodies empowered under the Constitution that
perform broad control and policing roles that affect the legal system by protecting
aspects of our constitutional democracy. These include:
• The Public Service Commission, which acts as a watchdog over most aspects
of the public service to ensure proper performance and is accountable to the
National Assembly.
• The Auditor General
• The Electoral Commission
• The Independent Broadcasting Authority
1.2.3.7 Legal academics or academic jurists
The role of academics in the legal system is not limited to teaching legal theory
in the LLB course to aspirant lawyers at university. Their writings are often
considered secondary sources of law alongside other primary sources of law by
judges in their decisions. Legal academics have been at the forefront of designing
and founding the institutions necessary for the South African constitutional
democracy as well as the development of new sources of law and the maturation
of the noble and ancient inherited legal principles that underpin our legal system,
its rights-based culture and the rule of law.
Activity 1.3
Explain the concept of professionalism.
1.2.4 Perspectives on the law
1.2.4.1 An illustration of judicial approaches: the case of the Speluncean

Explorers
Len Fuller, an American legal philosopher published an article in the 1949

Harvard Law Review. He created a hypothetical case, the case of the Speluncean
Explorers, which took place in the commonwealth in the year 4299. Five separate
judgments were given. Each of these represents a particular approach to the law.
See Kleyn et al 395-396 for a discussion of the case and the outcome of the case.
1.2.4.2 Judicial deference
Truepenny is the Chief Justice (CJ) in Fuller’s original article. His judgment speaks
of judicial deference. Judges or their judgments are often broadly categorised
into two strands: those who represent judicial activism and those representing

11
judicial restraint and therefore deference to the other branches of government.
In South Africa, the executive’s interference with sentences has in the past led
to resistance by many, including judges. For example, amnesty awarded to
criminals by the government since the 1994 election has been a common
occurrence.
1.2.4.3 Natural law
Foster J invokes natural law. He maintains that the law is not valid merely
because certain rules have been placed on the statute book. Positive law should
be based on certain values. The validity of the law depends on whether universal
values are contained in legal rules. If not, the legal rules are invalid. See Kleyn
et al 398-399.
1.2.4.4 Legal positivism
This school of thought places the most emphasis on the formation of legal rules.
The question is whether a legal rule has been given positive content in a valid
way. The will of the legislature represents the law. That must be given effect.
Legal positivism is based on the assumption that law and morality can be
distinguished and separated.
1.2.4.5 American legal realism
The judgment of Handy J (Judge) in the Fuller article is representative of the

legal realists, and it originated earlier in the twentieth century in the USA. They
regarded law as something abstract but as courts’ decisions in concrete cases.
To Handy J the solution lies in common sense. He takes a very pragmatic
approach and refers to opinion polls as a guideline for his decision.
1.2.4.6 Feminist legal studies
Feminism is a movement stemming from, among other things, the recognition

that men dominate women in various spheres of society. Feminists claim that
the law has traditionally been approached from a male point of view. Feminists
maintain that behind men’s claims of neutrality and objectivity lies the reality
that law is an instrument of women’s subordination. See Kleyn et al 402-406.
1.2.4.7 Critical race theory
This theoretical perspective started in the USA. According to this approach, there
often lurks racial prejudice and structural advantage in ostensibly neutral legal
rules and concepts such as reasonableness, neutrality, and equality and in the
application of the criminal justice system.

12
1.2.4.8 Critical legal studies
The traditional view of law as being neutral and logically ascertainable is

criticised. The neutrality and objectivity of law are unmasked as a smokescreen
behind which deep-rooted political, social and economic conflicts are veiled. The
fixed formulas of finding the law in the words of a statute and then applying it to
specific cases are unmasked as meaningless. In the USA the critical legal studies
represent a critical legal perspective.
1.2.4.9 African constitutional jurisprudence
In South Africa, judges would from time to time be confronted with the question
of whether their judgments resonate with the values of the majority of South
Africans whose world views are to varying extents rooted in African soil. The
1993 Constitution opened the possibility to adopt a particular African
jurisprudence. It introduced the concept of ubuntu into South African law by
providing in its preamble that there is a need for understanding but not for
vengeance, a need for reparation but not for retaliation, and a need for ubuntu
but not for victimisation.
1.2.4.10 African decolonial jurisprudence
An African philosopher, Mogobe Ramose’s approach is Pan-African and therefore

reflects a decolonised version of the African jurisprudence that aims to deal much
more decisively with the injustices that stem from colonisation. As such he is
much less celebratory about the constitutional ubuntu explained above.
Activity 1.4
Write a brief paragraph on African constitutional jurisprudence.
Summary
This topic explained the distinction between law and other normative systems as
well as the relationship between law and society, law and history, law and politics
and law and language. Certain perspectives on the law were also explained. You
should now understand the concept of being a legal practitioner in South Africa
and

13
Self-Assessment Questions
1.1 Distinguish between law and other normative systems.
1.2 Describe the relationship between law and politics.
1.3 Discuss “feminist legal studies”.
1.4 What is the role of an attorney?
1.5 What are the different perspectives on the law?

14
Topic 2
History of South African law
Prescribed Reading
Kleyn et al Beginner’s guide for law students 5ed (2018) 26-54
2.1 Introduction

• Solve basic legal problems and apply the sources of law to a set of facts.
of South Africa, 1996, and different perspectives of the law.
2.2 History of South African Law
2.2.1 The importance of legal history
According to Kleyn et al:
• Legal history explains the present character of law. The present is, in
many respects, a product of the past. History explains why the present
situation is as it is. It is the same with the law. Knowledge of legal history
leads to a better understanding of modern law.
• An understanding of legal history facilitates necessary change in the law.
A society’s values and needs change with time and this creates a need for
the legal system to change and adapt as well.
• Our legal history is living law. One of the historical components of South
African law is called South African “common law”. It is important because
parts of it are still in force in South Africa today. It is “living” law that is
still applied by our courts. The same can be said about customary law
which is also evidence of the fact that our legal history is still alive in South
Africa today.

15
• Our legal history links us to other countries. The history of the South
African legal system links South Africa to various countries in Africa and
Europe as well as to Britain and other countries in the world. This is
because South Africa shares a common legal history with these countries.
See Figure 2.1 Kleyn et al 29.
Activity 2.1
Explain the importance of legal history.
2.2.2 Phase one: Africa first
According to Kleyn et al, the first people of the space today known as Sub-
Saharan Africa were black people. Those people lived according to their own
African legal systems. This law is called indigenous or customary law. Customary
law remains an important source of law in South Africa today. It displays the
following characteristics:
• It usually consists of unwritten customs that are passed on orally from

generation to generation.
• It differs on a tribal and territorial basis.
• It mainly regulates the relationships between individuals and not the
relationships between individuals and the state.
• It is a communal or group-orientated system in contrast with the more
individualistically orientated Western law.
Activity 2.2
Explain the characteristics of customary law.
2.2.3 Phase two: Dutch colonisation
In 1652 Jan van Riebeeck came to the Cape to establish a refreshment station
for the ships on their journey between the Netherlands and the Far East. Later
on, the Dutch colonised the Cape. Despite the existence of legally developed
black communities in the space today known as South Africa, the Dutch took
control over the Cape in accordance with the international law of the time.

16
According to international law at that stage one state could occupy a territory
and exercise sovereign power over it:
• if the territory was res nullius (meaning it had no previous owner); and
• if the state had the intention of colonising it.
Kleyn et al 31 explain that in deciding that the territory at the Cape had no
previous owner, the Dutch reasoned that the black people living there were not
Christian and did not recognise private ownership. They could therefore not be
described as a “civilisation” in the eyes of the Dutch. As such, they reasoned that
colonisation was justifiable. The Dutch colonists at the Cape lived according to
Roman-Dutch law because that was the legal system with which they were
acquainted. The official sources of law in the Cape under Dutch rule were:
• The Roman-Dutch law of Holland;

• Batavian Placaaten (legislation from the Dutch colony of Batavia that is
today known as Jakarta (capital of Indonesia);
• the Statutes of India.
Activity 2.3
Write a paragraph on Dutch colonisation.
2.3 Roman Law
Roman legal history is typically divided into the following five periods:
• Ancient law (753 BC-250 BC)
• Pre-classical law (250 BC-27 BC)
• Classical law (27 BC-284 AD)
• Post-classical law (284-527 AD)
• Justinian law (527-565 AD)
2.3.1 Ancient law (753 BC-250 BC)
• The law was mainly customary law and comprised rules of conduct and
customs that were generally accepted and handed down over a long period.
• The most important compilation of legal rules and written sources of law in
the ancient period was the Law of the Twelve Tables ( Lex Duodecim
Tabularum).

17
2.3.2 Pre-classical period (250 BC-27BC)
• The Roman Republic became a world power. A distinction was made between
citizens of Rome and non-citizens.
• Ius civile was the strict, formalistic law that applied to Roman citizens.
• Ius honorarium was formulated by magistrates by way of edict or included
laws not strictly defined in statutes.
• Ius gentium was the law of all people – it was customary law that applied to
Romans and non-Romans. It was an informal law based on good faith ( bona
fides) and equity (aequitas).
• The praetores were Roman magistrates charged with the administration of
justice. The legal remedies introduced by the praetores and still in use today
include the bonorum possessio, the actio legis Aquiliae utilis, the exceptio
metus causa, the exceptio doli and the exceptio pacti conventi.
• Jurists emerged to interpret the law. The most important jurists of the pre-
classical period were Catus and Cicero.
2.3.3 Classical law (27 BC-284 AD)
• The classical period is known for its development of the law as an instrument
to promote equity.
• As a magistrate, the emperor had the right to issue edicts called constitutiones
that later had the same validity as legislation.
• The work of jurists broadened the scope of the law as they served on an
advisory council that advised the emperor. The work of the jurists became
important as they were granted the right to give advice (ius respondendi).
• The most well-known jurists during this period were the so-called five great
jurists - Gaius, Papinian, Paul, Uipian and Modestinus.
2.3.4 Post-classical law (284-527 AD)
• The post-classical period coincided with the Dominate or the period of

absolute monarchy. Diocletian divided the Roman Empire into an eastern and
a western section.
• Roman law continued to exist in the West but was characterised by a decline,
the so-called vulgarisation of the law or vulgar law.
• Post-classical jurists generally followed the majority of the five great jurists
and did not attempt to interpret the law themselves.
• The Citation Act (Lex Citationis of 426) was an attempt to restore the
importance of the works of the five great jurists and to prevent further
simplification of the law.
2.3.5 Justinian law (527-565 AD)
• Justinian played a seminal role in the development and codification of Roman

law.
• In 528, Justinian ordered that the imperial legislation be codified. The
compilations included the Codex Justinianus, the Quinquaginta Decisiones,
the Digesta and the Institutiones.

18
2.3.5.1 Germanic tribes and legal development
Germanic tribes and legal development are typically divided into the following
three periods:
• Early Germanic law (up to 400)
• Frankish period (400-800)
• Feudal period (800-1100)
2.3.6 Early Germanic law (up to 400)
• In 476, the Germanic people conquered Rome.

• All members of the tribe attended the tribal meeting or thing.
• The legal system was primitive and based on the law of the thing, as well as
customary law that was handed down from one generation to another.
2.3.7 Frankish period (400-800)
• A monarch ruled over large groups of Germanic people. In times of war, he

had absolute power. Otherwise, he could issue legislation only if the people
approved it.
• Compilations made of Germanic customary law were known as the Laws of
the Barbarians (Leges Barbarorum).
2.3.8 Feudal period (800-1100)
• The feudal period was characterised by a breakdown in the established order

that had gained momentum by the end of the Frankish period.
• The new rules were known as feudal law and were recorded in books about
feudal law (Libri Feodorum) that were studied by the jurists of the Middle
Ages, together with Justinian’s codification.
2.3.8.1 High to late Middle Ages (1000-1500)
The high to late Middle Ages legal development is typically divided into the
following five periods:
• Glossators
• School of Orléans
• Post-Accursiani
• Post-Glossators
• Canon law
2.3.9 Glossators
• Glossators were the jurists of the twelfth century who worked at the University
of Bologna.
• They wrote glosses (glossa) or brief descriptive notes between the lines in the
text of the Corpus Iuris Civilis (Justinian’s codification).
• lmerius was regarded as the father of the Glossators. He was followed by
Bulgarus, Martinus, Jacobus and Ugo.

19
• Accursius compiled all the different Glossators’ notes in the Glossa Ordinaria
or Accursian Glossa.
2.3.10 School of Orléans
• Students studied canon law, which was based on Roman law, at the University
of Orléans in France.
• The method of work of the School of Orléans was similar to that of the
Glossators. Their glosses were known as the Glossa Aureliensis.
• The two most important members of the school were Jacques de Révigny and
Petrus de Bellaperche/Bellepertica.
• The School of Orléans is today famous for having laid the foundation for the
term “legal perso”, as well as for the action of the negligent causation of pain
and suffering, both of which continue to be used in South African law. The
school also laid the foundation of the rules of international private law.
2.3.11 Post-Accursiani
• The post-Accursiani continued the work of the Glossators in Italy.

• The most important theorist was Dinus.
• Wilhelm Durantis was a member of the practitioners. The practitioners made
Roman law usable for practice and wrote mostly on legal procedures.
2.3.12 Post-Glossators
• Legal studies revived in Italy in the fourteenth century. A new group of jurists
called the post-Glossators with a new approach appeared.
• The most important members of the school were Bartolus and Baldus.
• The post-Glossators studied mainly the Glossa Ordinaria and wrote
commentaries on them.
• They studied both Roman law and its applicability in practice. This was known
as the mos italicus.
• The most important post-Glossators were Dinus, Cinus, Bartolus, Baldus and
Salicetus.
• The post-Glossators are important because they laid the theoretical
foundation for the integration and systematisation of Roman law and
Germanic customary law.
2.3.13 Canon law
• Canon law can generally be described as those legal and normative rules
issued by the Roman Catholic church to regulate matters peculiar to the
church, matters arising from the relationship between the church and the
state, and matters relating to the relationship between the church and the
secular sphere.
• Roman law was not the only source of canon law. Other sources included the
Bible, the writings of the Church Fathers, edicts issued by general church
meetings of bishops (canones), papal decrees (decretales) and legislation
issued by kings for the church (nomoi).
• Various compilations were made of church law, for example, the Decretum
Gratiani and the Corpus Iuris Canonici.

20
• The most important Canonist was Gratianus, the author of the Decretum
Gratiani.
• The influence of canon law is far-reaching.
Activity 2.4
Write a paragraph on Justinian law.
2.4 Roman-Dutch Law
Roman-Dutch Law became the law of South Africa. As you know Jan van Riebeeck
established a refreshment station at the Cape in 1652. In light of the dominant
position of the province of Holland in the Netherlands, it should not come as a
surprise to you that the Dutch East India Company applied Roman-Dutch law in
its colonies or that the administration of the Cape applied the law of Holland. This
does not mean that van Riebeeck brought a volume on Roman-Dutch law along
with him to the Cape. On the contrary, Roman-Dutch law became applicable in
the Cape through custom. Just as Roman law was gradually accepted as law in
the province of Holland so the law of the province of Holland came to be accepted
as the law of the Cape through custom. This law, which was later influenced by
English law eventually became the basic common law of South Africa.
Simon van Leeuwen first used the term Roman-Dutch law by coincidence in 1652.
But what is Roman-Dutch law? The meaning of Roman-Dutch law may be
interpreted in two ways: both a narrow interpretation and a broad interpretation
are possible.
In a narrow sense, Roman-Dutch law may be understood as the law of the

province of Holland as it existed in the seventeenth and eighteenth centuries.
This means that it consists of:
• Roman law received in the province of Holland was amended by

• customary law and legislation of Holland as they existed in the
seventeenth and eighteenth centuries.
In a broad sense, Roman-Dutch law may be interpreted as including the law of

all seven Dutch provinces as well as elements of the European ius commune.
Until 1988 there was a conflict of opinion – not only among academics but also
in the courts – on whether the narrow or broad interpretation of Roman-Dutch
law should be followed.

21
Then the Supreme Court of Appeal settled this old dispute in Du Plessis v Strauss
1988 (2) SA 105 (A) by deciding in favour of the narrow interpretation.
The narrow interpretation of Roman-Dutch law ignores the influence of canon

law and Germanic customary law.
Narrow interpretation of Roman- Broad interpretation of Roman-Dutch

Dutch law law
• Roman law • Roman law
• Customary law • Customary law
• Legislation • Legislation
As applied in the province of Holland • European ius commune
in the seventeenth and eighteenth As applied in the province of Holland
centuries. in the seventeenth and eighteenth
centuries.
- Canon law
- Roman law
- Germanic customary law
2.4.1 The sources of Roman-Dutch law are
• the old writers (the most important source of Roman-Dutch law)

• statute or legislation
• collections of court decisions
• collections of opinions
• custom
2.5 The influence of English Law
• In 1823, a commission consisting of Majors Colebrooke and Bigge was

appointed to investigate the administration of justice at the Cape and they
gave a rather negative assessment. The Colebrooke-Bigge Commission
proposed that the legal system should not be replaced by the English system
immediately, but that it should gradually be replaced by English law through
legislation. On the recommendation of the Commission, English civil and
criminal laws of procedure were introduced.
• In 1828, they further proposed that only advocates of the English, Scots and
Irish bars be appointed as judges and be allowed to practise in the courts.
• The Court of Justice was replaced by the Supreme Court in 1828.
• A Court of Appeal was instituted in 1886. It was moved to Bloemfontein in

1910 where it still resides today.

22
English law also influenced substantive law in addition to its influence on
procedural law. As a result of the increase in trade with England after the first
and second British occupations, merchants based their contracts on English law.
The courts began to refer to English authorities and principles in such cases. An
increasing number of advocates schooled in English law began to practise in the
Cape. They referred to English law when they either did not know Roman-Dutch
law or did not understand it.
Humby et al state that they then argued in court that there was no difference
between English and Roman-Dutch law, or that Roman-Dutch law had no solution
to offer. In some instances, trials were based purely on English law.
Legislation played an important role in the anglicisation process. In this manner

the English law of evidence, constitutional law and mercantile law were
introduced. The mercantile subjects replaced by English legislation were:
• The law of negotiable instruments

• The law of insolvency
• The law of insurance
• Patent law
• Trademarks and copyright law
English law also partially influenced the law of contract and the law of delict.
English law did not have a major influence on:
• The law of property

• The law of succession
• The law of persons and family law
In the case of the law of succession, the institutions of trusts and executors were
adopted from English law. British people living in the Cape drew up their wills in
terms of English law and the estate then had to be administered in terms of
English law. In this way, the rules pertaining to wills were also influenced by
English law.
Activity 2.5
Explain the influence of English law on South African law.

23
2.6 Apartheid and the Law
2.6.1 Apartheid in a nutshell
Klein et al explain that apartheid has its origins in our colonial past. But it was
only in 1948 when the National Party (NP) came to power that a political policy
of racial segregation and consequential racial discrimination was enshrined in a
multitude of statutes. This legislation had to be applied by the courts and
enforced by state organs such as the police. Some pieces of apartheid legislation
include:
• Population Registration Act 30 of 1950: All people in South Africa had to be

registered according to their race as either white, black, Indian or coloured.
• Group Areas Act 41 of 1950: Different race groups had to live in different
areas.
• Separate Representation of Voters Act 46 of 1951: The franchise was denied
to the majority of the population.
• Reservation of Separate Amenities Act 46 of 1951: Public amenities were
reserved for the various race groups.
• Prohibition of Mixed Marriages Act 55 of 1949: People from different races
were prohibited from marrying each other.
• Bantu Education Act 47 of 1953: A separate and inferior system of black
education was created.
• Suppression of Communism Act 44 of 1950 and Internal Security Act 74 of
1982: Opposition to the system of apartheid was controlled utilizing state
security legislation, one aspect of which was detention without trial.
2.6.2 Characteristics of apartheid law
Kleyn et al 47 explain that apartheid law was characterised by four main types
of oppression:
• Political autocracy which means that the apartheid state was run by a
domineering government that had absolute political control.
• Land dispossession which means that black people were not allowed to own
land.
• Civil liberty deprivation means various rights that some of us take for granted
in South Africa today were denied to the majority of people.
• Opportunity destruction which means that the apartheid government
employed various legal strategies to prevent black people from obtaining an
education that would equip them for a thriving professional career.
2.6.3 Apartheid and the common law
Kleyn et al 49 explain that even though apartheid was mostly given effect
through legislation, the ideology of apartheid made its way into other areas of
law as well, notably the common law.

24
The interaction between English law and Roman-Dutch law provoked a debate
among South African jurists. This split them into two camps: the modernists and
the purists. The modernists used English law to “modernise” Roman-Dutch law.
The mouthpiece of the modernists was the South African Law Journal. The purists
considered the modernists to be contaminators of Roman-Dutch law. The
mouthpiece of the purists was the Tydskrif vir Hedendaagse Romeins Hollandse
Reg.
2.6.4 Positivists and non-positivists
The influence of apartheid on the legal system led to a second debate among
South African jurists. The positivists regard law as something detached from
politics and economics. They apply the law as they find it and do not ask whether
it is fair or just. They believe that a judge when applying the law can be absolutely
objective and can remain impartial and unbiased. The non-positivists again
regard law as part and parcel of the social-political environment. The most
important question for them is whether the law is just and fair.
2.6.5 Apartheid falls
This table shows a summary of the key events leading to the fall of apartheid,
Lerm.
DATE EVENT KEY ASPECTS

• President F.W. de Klerk announced that South Africa was
on the road to drastic change and that only a negotiated
understanding among the representative leaders of the
02/02/ Opening of entire population would ensure peace in a South Africa that
1990 parliament was on the brink of a full-scale civil war.
• He unbanned the African National Congress (ANC) as well
as other political movements that the government had
banned in order for apartheid to continue.
11/02/
• Nelson Mandela was released after 27 years in prison.
1990
• This was the starting point of negotiations for a democratic
South Africa.
• The NP government and ANC committed themselves to the
Groote
04/05/ resolution of the climate of violence and intimidation in
Schuur
1990 South Africa.
Minute
• There was a removal of practical obstacles to the
negotiations (indemnity from prosecution for returning
exiles as well as the release of other political prisoners).
06/08/ Pretoria • The ANC formally suspended the armed struggle against
1990 Minute apartheid.
National • The National Peace Accord prepared the way for the first
14/09/
Peace Convention for a Democratic South Africa (CODESA), a
1991
Accord formal round of negotiations.

25
• Took place at the World Trade Centre in Kempton Park.
20/12/
CODESA • Nineteen (19) political groups from across the political
1991
spectrum were represented.
• The ruling NP lost three important by-elections to the right-
02/19 wing Conservative Party (CP), the official opposition party.
90 to Opening of • The CP boycotted CODESA, and more forcefully slated its
02/19 Parliament argument that the NP did not have a mandate from the
92 white electorate to negotiate a transition to democratic rule
with the ANC.
• To test support among the white electorate for the
transitional measures taken by the NP government over the
National previous two years, voters had to indicate whether they
17/03/ whites-only supported the continuation of the reform process that the
1992 referen- state president began on 2 February 1990 and which was
dum aimed at a new constitution through negotiations.
• More than 68% of whites voted ‘yes’, and De Klerk stated
that the book on apartheid was closed.
• CODESA’s crucial working group (Working Group 2), tasked
with considering constitutional principles and the
functioning of a constitution-making body, reached a
05199
CODESA deadlock on the voting percentages that were required for
2
a constitution-making body to adopt a new constitution. The
deadlock could not be broken and the ANC announced that
it is withdrawing from the negotiations.
• The ANC firmly restated its withdrawal from the
17/06/ Boipatong negotiations, because they had reason to believe that the
1992 massacre NP was, through police involvement, complicit in the
massacre in which 46 people were killed.
• The breakdown in the negotiations caught the attention of
the United Nations (UN) Security Council. It convened a
02/08/ special session and adopted Resolution 765 which
1992 United condemned the Boipatong massacre. They called for a
Nations
special representative to be sent to South Africa to monitor
(UN)
the situation.
Security
Council • The UN delegation arrived and proceeded to play an
Late
important monitoring role that contributed to preventing
08/19
the violence from spiralling out of control in the months
92
leading up to the conclusion of the negotiations.
07/09/ Bisho • Twenty-nine people were killed.
1992 massacre • The ANC and the NP returned to the negotiation table.
• An understanding was instrumental to an agreement
26/09/ between the ANC and the government. The agreement
1992 restarted the negotiations in the form of the Multiparty
Negotiation Forum (MPNF).
01/04/
MPNF • The MPNF gathered for the first time.
1993

26
• The assassination of Chris Hani, Secretary General of the
South African Communist Party (SACP) and a senior ANC
leader brought the country to the brink of a racial war.
Chris Hani • Two rightwing supporters, Clive Derby-Lewis and Janusz
10/04/
assasina- Waluś, were arrested for Hani’s murder after an eyewitness,
1993
tion a white Afrikaner woman, came forward.
• Nelson Mandela reacted immediately after Hani’s death and
addressed the whole nation with an impassioned plea for
calm.
• Approximately 3 000 members of paramilitary right-wing
groups, led by the Afrikaner Weerstandsbeweging (AWB),
stormed the World Trade Centre at Kempton Park where the
MPNF was meeting. They took control of the negotiation
chamber.
25/06/
MPNF • After extended negotiations, it was agreed that no arrests
1993
would be made at the World Trade Centre that day and that
the AWB supporters would leave peacefully.
• A number of arrests followed later and the Goldstone
Commission condemned the attack and welcomed the
arrests.
• The apartheid parliament enacted the interim Constitution
18/11/ into law.
1993 • The date for the first non-racial general election was set for
27 April 1994.
The first • The ANC won the election with a majority of just over 62%
27/04 non-racial and Mandela became the first democratically elected
1994 general president of South Africa. De Klerk and Thabo Mbeki were
election his deputies.
24/05/ • Nelson Mandela was inaugurated as South Africa's first
1994 black president after centuries of white rule.
Lerm explains that after the 1994 elections the Truth and Reconciliation
Commission (TRC) was established to investigate gross human rights violations
between 1960 and 1994. The TRC also investigated the role of the legal
profession during that period.
Activity 2.6
Provide a brief history of apartheid and the law.

27
2.7 Reconstruction of the Law in a constitutional era
The interim Constitution introduced a new era in South African legal history. This
constitution introduced the principle of democratic constitutionalism into our
legal system for the first time. The concept of human rights is an inseparable
part of the principle of constitutionalism. Constitutionalism means that the
government of a country is obliged to act in accordance with the prescriptions
laid down in a constitution.
The inclusion of a bill of human rights in a constitution is considered the best

means of protecting the rights and freedoms of the individual against the tyranny
of rulers, the intolerance of majorities, and the social power wielded by private
individuals and institutions. A bill of rights contains certain minimum standards
to which all legislation must adhere.
The Constitution is the foundation of our democracy. To ensure that our

democracy succeeds, a number of special features have been built into our
Constitution:
• The Constitution is the supreme law of South Africa. Therefore, all legislation
may be challenged in terms of the Constitution in a court and changed or
removed if it is found to be inconsistent.
• The powers of the state are separated and divided into three sections namely
the legislative authority, the executive authority and the judicial authority.
This is known as the separation of powers.
• The Constitution sets out the structure of the judiciary and the judicial system.
The judiciary deals with the courts.
Activity 2.7
Write a paragraph on the reconstruction of the law in a constitutional era.
2.8 Indigenous Law
Indigenous law is a form of unwritten customary law, which means that it has
become law through customary use, and it cannot be found in a statute. Long
before the Dutch and British brought their legal systems to South Africa, many
indigenous African people inhabited the country and lived according to their
indigenous legal systems. While many of these indigenous law rules have fallen
into disuse over the centuries, people still faithfully observe, enforce and comply
with some of these indigenous rules.

28
The Law of Evidence Amendment Act 45 of 1988 orders that parties may choose
to rely on indigenous law before a court of law. The advantage for parties seeking
to rely on indigenous law is that they do not have to prove that an indigenous
law rule is a custom as is the case with customary law. Courts obliged to develop
indigenous law in agreement with the constitutional standard – no rule or
principle in indigenous law may contradict any of the provisions contained in the
Constitution.
Activity 2.8
Briefly describe indigenous law.
Summary
In this topic, we explained the importance of legal history, Roman law and
Roman-Dutch law. You should also now understand the influence of English law
on South African law as well as apartheid and the law. We further explained the
reconstruction of the law in a constitutional era and indigenous law.
2.1 Why is legal history important?
2.2 Describe the role of apartheid in common law.
2.3 Explain the influence of English law on South African law.
2.4 Name the sources of Roman-Dutch law.
2.5 Write a short paragraph on indigenous law.

29
Topic 3
Sources of South African law
Prescribed Reading
3.1 Introduction
• Rely on the sources of law to answer a jurisprudential question.
3.2 Sources of South African Law
3.2.1 Overview of the sources of South African law and its components
Kleyn et al 55 explain that by sources of law we mean the “places” where law
originates and where it can be found.
There are, therefore, two questions:
• Where does the law come from?

• Where does the student, the legal practitioner or the judge find the laws
to apply them to a specific case?
It is important to realise that we have an uncodified legal system. This means

that there is not only one primary source where the law originates and can be
found: South African law has more than one source:
• The Constitution of the Republic of South Africa, 1996

• legislation (statutes)
• precedent (court decisions)
• common law
• custom
• customary law
• works of modern authors
• foreign law
• international law

30
Not all the sources of the law have the same authority. Some sources have
binding authority which we call primary sources. Others have merely persuasive
authority, called secondary sources in that they assist us to understand the
primary sources.
See Kleyn et al 56-135 for examples of the sources of law.
Activity 3.1
Provide an overview of the sources of South African law and its components.
3.2.2 The Constitution of the Republic of South Africa, 1996, and its
development
See Kleyn et al 142-143;165-167;181.
The Constitution forms the basis of Constitutional law. Constitutional law

determines the nature of the state, its constituent organs or bodies and
relationships between the different bodies of the state. Constitutional law divides
state authority into three branches:
• the legislature
• the judiciary
• the executive
The following characteristics of the South African Constitution can be identified:
• It is written and is contained in a single codified source.

• In general, it is inflexible because a 75 per cent majority in the National
Assembly and the support of six provinces in the National Council of
Provinces are required to change the basic points of departure of the
Constitution.
• It has federal features in that a system of cooperative government
functions at three levels.
• It has replaced Parliament as the source of sovereign authority.
• It is regarded as being transformative.
Activity 3.2
What are the characteristics of the South African Constitution?

31
3.2.3 Customary law and its development
Only the colonial and post-colonial periods have been recorded in terms of the
recognition of customary law. African customary law:
• Consists of customs and traditions that have been recognised over time,
evidencing a legal history that has spanned centuries.
• Customs and traditions were adapted to changing economic, geographical and
climatic factors.
• Social, cultural and religious factors also played a role in the development of
African customary law.
Colonisers seldom took the general philosophies, cultures and customs of

Africans into account in their interpretation of customary law. These factors
include:
• The notion of totality implies that matters should be dealt with holistically.
Detail was important to establish the truth or to analyse the facts of a case.
As there were no written materials, people had to rely on their memories for
detail. A case before a traditional court would be discussed in detail before a
matter would be resolved.
• Time, from an indigenous perspective, influenced customary legal
proceedings and led to many misunderstandings between traditional
communities and the colonisers. It was regarded as the convergence of the
past, the present and the very near future, which consisted of only those
events that could be foreseen. Typical examples are the birth of a baby or a
harvest that would be gathered soon.
• The traditional beliefs regarding the Supreme Being and the role of the
ancestors. These relate to African religion and also play a major role in the
development of legal rules and the concept of justice.
Some African communities recognised a Supreme Being, ancestors,

witchdoctors, and witchcraft. The Supreme Being:
• Is considered the creator and provider of all that is good on Earth.
• Was the highest authority, the keeper of law and order, morals and
behavioural codes. Traditional leaders or kings applied laws and justice as the
Supreme Being would have. The leaders and kings were subject to the rules
of the community and could not regard themselves as being above the law.
• The Supreme Being acted through the ancestors, who were the departed and
the unborn. A deceased person had to be remembered to remain an ancestor.
Therefore, it was important to keep in contact with the ancestral land where
the ancestor was buried. People feared that once the bond was broken,
misfortune would occur.
The relationship between the ancestors and the Supreme Being has to be
understood. It was believed that:
• Many laws were derived from the Supreme Being or the ancestors.
• Ancestors had to preserve law and order in the community.

32
• Community misfortune was brought about by a problem with law and order
and that someone had angered the ancestors.
• The person had to be punished by the ancestors and the Supreme Being,
otherwise more misfortune might occur. Some of the actions that were
punished were, for example, murder, robbery, defamation and cruelty to
women.
• Communities developed more and more rules regarding law and order in an
attempt to prevent the anger of the ancestors.
• Communities developed their own way of restoring peace. Their measures
included the payment of cattle, banning, whipping and the provision of labour
to another person. The purpose of the punishment was to restore peace in
the community rather than to have a winner who takes all and a loser who
may feel hatred. If the punishment was not severe, the final aim was
reconciliation. A person would rather accept less than he or she claimed to
restore peace in the community.
Gradually, the different colonial authorities started interfering with the customary
law of the African communities:
• Amendments were made to the system of inherited traditional leadership and
related institutions. Legislation, appointing traditional leaders was passed,
allowing them to appoint leaders that supported the colonial authorities. This
resulted in a loss of confidence in the traditional courts as the true traditional
leaders no longer headed these courts.
• The Black Administration Act 38 of 1927 allowed for other judicial
amendments that determined that the presiding officer may apply customary
law if it was not contrary to public policy or the rules of natural justice.
• Separate courts (commissioner courts) were introduced to deal with
customary law. This included the traditional customary courts. The courts
were prohibited to rule that the custom of lobola was against the rules of
public policy.
• In 1986, the commissioner courts were abolished and the magistrates could
take judicial notice of customary law. The result was that they could recognise
that this law existed without its existence having to be proved. In all other
courts, the existence of a customary law had to be proved in the court.
• By 1988 all courts could take judicial notice of, and apply customary law if it
was not contrary to public policy and the rules of natural justice.
• Currently, section 212 of the Constitution determines that customary law
must be applied, except if it is found to be contrary to the Constitution.
From colonial times, both the authorities and the courts amended the customary
law of procedure. Some examples are:
• They determined that a person who was the subject of a trial should be
present at the trial.
• In the then Natal, there was an attempt to codify Zulu law in the Natal Code
of Zulu Law. This Code was compiled without consulting the AmaZulu and
many misinterpretations were included in the Code. The Zulu customary law
was changed to suit the English colonisers of that time. The Governor of Natal
ignored all petitions against the introduction of the Code.

33
Although African customary law, Roman law, Germanic law and South African
law contain several similarities, there are significant differences as well. Some
examples are:
• Roman and Germanic heads of families had the right to life and death over
their family members, while this rule did not exist in African customary law
or South African law. Under the influence of Christianity, the rule was
eventually abolished in Roman and Germanic law.
• In Roman law and African law, the head of the family may disinherit his heir
if the heir acts disrespectfully towards him. In Roman law, South African law
and African customary law parents are liable for the contractual and delictual
actions of their children. Tests for the truth existed in both Germanic and
African customary law.
• In early Germanic law, the truth test of water was used. In the early African
customary law, persons accused of witchcraft had to drink poison to prove
their innocence. If they became sick and lived, they were regarded as
innocent. If they died, they were guilty. Another test was to take a metal ring
out of a pot of boiling plant oil and put it on their tongue. If they did not burn,
they were not guilty.
Initially, the ‘judges’ were not qualified – that was the situation in all
communities. In current South African law it is different. African communities,
however, knew the law and knew whether justice had or had not been done.
Both African customary law and Germanic law worked towards reconciliation as
opposed to the winner-takes-all system in Roman and present-day South African
law.
African communities have family courts where family matters are discussed
privately. Family matters are also dealt with in South African courts, however,
not necessarily in private. An exception is that the press may not publish
information on divorce cases. Although the possibility of dedicated family courts
has been under consideration since 1986, these courts have not been introduced.
A lot can be learned from African communities with their use of family courts
where these types of disputes are dealt with in privacy and between members of
the family.
Activity 3.3
Although African customary law, Roman law, Germanic law and South African
law contain several similarities, there are significant differences as well. Name
some examples.
3.2.4 Common law and its development
The South African legal system is mainly based on seventeenth and eighteenth
century Roman-Dutch law as influenced by English law.

34
Common law is therefore an important historical source of modern South African
law. The importance of common law is underestimated most often in the fields
of contract, delict, property and criminal law.
The legislative or judicial authority can amend the common law position on a
specific matter despite its historical status. This is done by enacting a new statute
or passing a binding judgment which may vary significantly from the common
law position.
It is important to know where legislation does not regulate a specific issue or it

is not sufficiently regulated, the common law can be relied on. It is, however,
important not to create the impression that legislation and the common law are
mutually exclusive. While it is possible that legislation could amend or change
the common law position, many common law principles have ultimately been
incorporated into South African legislation.
In terms of sections 8 and 39 of the Constitution, there is an obligation on South

African courts to develop the common law in light of the provisions of the
Constitution, specifically the Bill of Rights. The development of the common law
may be necessitated by changing social conditions, values and contemporary
legal needs of society.
Activity 3.4
Discuss the development of the common law.
Summary
This topic provided an overview of the sources of South African law and its
components. It referred to mixed legal systems. You should now have a good
knowledge of the Constitution of the Republic of South Africa, 1996, and its
developments. You should further know customary law and its development as
well as common law and its development. We further explained primary sources
of law and sources of modern law. We also explained the application of the
sources of law.

35
3.1 What are the sources of South African law?
3.2 What are the primary sources of law?
3.3 Name the modern sources of law.
3.4 From colonial times, both the authorities and the courts amended the
customary law of procedure. Provide a few examples.
3.5 Colonisers seldom took the general philosophies, cultures and customs
of Africans into account in their interpretation of customary law. What do
these factors include?

36
Topic 4
Classification of the law
Prescribed Reading
4.1 Introduction
• Describe and explain the structure of the law and the different fields of
the law.
of South Africa, 1996 and different perspectives of the law.
4.2 Classification of the Law
4.2.1 Overview of the different branches of the law
The distinction between the different branches of the law is sometimes quite
artificial. Authors also differ considerably among themselves as to where exactly
some divisions of law fit into the whole classification. However, any classification
of law at least has the advantage that it provides an overview of the different
divisions or areas of law.
Activity 4.1
Name the different divisions of the law.
See figure 4.1 Kleyn et al 137
4.2.2 International and national law
International law is also known as the law of nations, or public international law.

37
International law is continuously used in, for example:
• Diplomatic and consular relations;

• International trade transactions;
• Inter-country transportation of goods by sea and air as well as the cross-
border extradition of criminals.
The core focus of international law is the regulation of the relationships between
states at an international and/or regional level (supra-national level). The issues
that international law seeks to regulate usually affect more than one state.
When studying international law, you will learn more about:
• The history of international law.

• The different sources of international law, including treaties (conventions) and
international customs.
• International relations.
• International human rights protection after World War II and humanitarian
law.
• Specific branches of international law, including, but not limited to
international environmental law, international trade law, international
criminal law and international private law.
• International law issues such as the rules for the recognition of a state, state
sovereignty, international crimes, jus cogens (compelling law) as a doctrine
dealing with peremptory international norms accepted and recognised by the
international community of states as being fundamental to the maintenance
of international legal order.
• The difficulties with enforcing international law rules.
National law constitutes rules of national or domestic law that only apply within
the territorial area of South Africa. Domestic law of other states is referred to as
foreign law.
There is a distinction between public and private law in South Africa. The main
distinctions lie in the following:
Public law regulates

• the structural organisation of the state.
• relationships between different organs of state, for example government
departments, and between the state and its subjects, natural persons and
legal persons like banks and other private sector corporations.
Private law regulates

• the relationship between the subjects of the state, in other words between
different natural and/or juristic persons.
A variety of hybrid sub-disciplines also exist. These hybrid sub-disciplines have

characteristics of both private and public law.

38
Activity 4.2
Distinguish between international and national law.
4.2.3 Substantive and procedural law
South African national law is divided into substantive and procedural law.
Substantive law (also called material law) is that part of the law that determines
the content and meaning of the different legal rules. It prohibits us, for example,
from committing criminal offences and it determines which human acts constitute
criminal offences such as murder. It also determines the content and application
of the different rights which an individual may have. For example, substantive
law will determine how an individual can obtain ownership of a motor vehicle.
Procedural law (also called adjective law) is that part of the law which regulates
the enforcement of substantive law. It determines the way a case must be
practically handled when a legal rule has allegedly been violated.
Activity 4.3
Define procedural law.
4.2.4 Public and private law
Public law determines the extent of state authority. It regulates the organisation
of the state, the relationship between the different organs of state and the
relations between the state and its subjects. In this area of law, the state acts
with state authority.
Private law regulates the relationships between persons (legal subjects). It

determines the different rights and duties that persons may have toward one
another. These rights and duties may find their origin in contracts, delicts,
marriage or ownership.
None of the parties in the private law relationship act with state authority or
power. We have seen that the state/government is the main actor in the public
law domain as it has power and exercises political authority. This does not mean
that it cannot also be a party to the private law domain in certain instances where
it does not act as the state with public, political authority.

39
As with criminal law, private law can also be divided into substantive private law
and adjectival private law.
The distinction between public and private law is often artificial and unrealistic.
Often the state, with state authority, encroaches upon the area of private law for
example when the state through legislation dictates certain contractual
relationships between an employer and employee.
Activity 4.4
Define private law.
4.2.5 Commercial law
Commercial law:
• Can also be referred to as business law or mercantile law.
• It deals with a hybrid of branches of the law important for commerce or trade
and industry in South Africa.
• Fits in equally with private law as it does with public law.
• Encapsulates many different branches of the law including the following:
- Banking law – regulating the powers and functions of banks.
- Company law – dealing typically with issues such as the
registration, incorporation and management of companies.
- The law of insolvency – is concerned with insolvent estates,
bankruptcy, the winding up and liquidation of companies and debt
counselling.
- Labour law – regulating the relationship between employers and
employees and the conditions of employment.
- Taxation law – dealing with all matters related to the payment and
collection of taxes and the relationship between taxpayers and the
South African Revenue Service (SARS).
- Insurance law - the regulation of the South African insurance
industry as well as the requirements for and rights and duties
arising from insurance contracts.
Activity 4.5
Which branches of the law does commercial law encapsulate?

40
4.2.6 Supplementary disciplines
Certain disciplines serve as a backdrop for or are supplementary to the study

and application of the law. Some of them are:
• Private international law

• Legal philosophy
• Legal interpretation
• Comparative law
• Legal history
Activity 4.6
Name the disciplines that serve as a backdrop for or are supplementary to the
study and application of the law.
Summary
This topic provided an overview of the different branches of the law. You should
now also be able to distinguish between international and national law as well as
substantive and adjective law, public and private law, commercial law and
supplementary law disciplines.
4.1 Provide an overview of the different branches of the law.
4.2 Explain what commercial law entails.
4.3 Distinguish between public and private law.
4.4 Explain the divisions of South African National law.
4.5 Write a short note on international law.

41
Topic 5
Aspects of private law
Prescribed Reading
5.1 Introduction
This topic relates to the following module outcome:
the law.
5.2 Aspects of private law
5.2.1 Legal subjects
See Kleyn et al 208-210
Private law concerns the relationships between “persons”. Persons, therefore,

are the subjects of private law. The correct legal term to indicate a person in
private law is a “legal subject”. This term embraces human beings as well as
juristic persons. Therefore, a legal subject is anyone of anything that can be the
bearer of rights and duties. There are two kinds of legal subjects:
• Human beings (natural persons); and

• Juristic persons.
See Blacker v University of Cape Town 1993 4 SA 402 (C); and sections 8(2) and
8(4) of the Constitution of the Republic of South Africa, 1996.
Activity 5.1
Name the two kinds of legal subjects.

42
5.2.2 Capacities
5.2.2.1 Legal capacity
Legal capacity is the capacity to be the bearer of rights and duties in other words
to be a legal subject.
5.2.2.2 Capacity to act
The capacity to act is the capacity to perform juristic acts. A juristic act is a lawful
act to which the law attached at least some of the consequences envisaged by
the acting parties. Factors such as age and mental health determine a person’s
capacity to act in three categories:
• No capacity to act
• Limited capacity to act
• Full capacity to act.
5.2.2.3 Capacity to take part in legal proceedings
This is the capacity to appear in court (standing or locus standi). In other words,
to be a party to civil proceedings.
5.2.2.4 Accountability
This is the capacity to be held liable for unlawful acts (delicts). It refers to the
ability to distinguish between right and wrong.
Activity 5.2
Define “capacity to act”.
5.2.3 Subjective rights and the protection of these rights
The existence of a subjective right presupposes two kinds of relationships:
• A relationship between the legal subject and a legal object; and

• A relationship between the legal subject and other legal subjects.

43
5.2.3.1 Relationship between legal subject and legal object
A characteristic of a legal object is that it has a monetary value. Traditionally

private law distinguishes between four legal objects:
• Things
• Performance
• Intellectual property; and
• Aspects of personality.
We distinguish between four different subjective rights which a legal subject can
have with respect to the traditionally recognised legal objects:
• Real rights
• Personal rights
• Intellectual property rights; and
• Personality rights.
Private law must protect subjective rights. It must enable the legal subject to
enforce his rights in case of a violation. Private law provides the legal subject
with certain legal remedies. These are the instruments through which a
subjective right can be enforced. Where there is a right there is a remedy.
Activity 5.3
Describe the relationship between a legal subject and a legal object.
5.2.4 The relationship between legal subjects
A subjective right creates a relationship between a legal subject and a legal

object. At the same time, it also gives rise to a relationship between the legal
subject and other legal subjects (third parties). This relationship confers a duty
on the other legal subjects to respect the subject-object relationship.
Activity 5.4
Describe the relationship between legal subjects.

44
Summary
This topic explained legal subjects and capacities. You should also now
understand subjective rights and the protection of these rights and the
relationship between legal subjects.
5.1 Discuss the case of Blacker v University of Cape Town 1993 4 SA 402
(C).
5.2 Define “accountability”.
5.3 We distinguish between four different subjective rights which a legal

subject can have with respect to the traditionally recognised legal
objects. Name them.
5.4 Name a few private law remedies.
5.5 Explain the term “capacity to act”.

45
Topic 6
Aspects of civil procedure
Prescribed Reading
6.1 Introduction
the law.
• Solve basic legal problems related to the jurisdiction of courts.
6.2 Aspects of civil procedure
6.2.1 Action proceedings
Action proceedings – proceedings by way of summons – are used when there are
fundamental differences between the parties concerning the facts of the case.
The two parties are referred to as the plaintiff and the defendant. The plaintiff is
the person who initiates the case and institutes an action to claim a performance,
for example, the payment of damages. The defendant is the person against
whom the action is instituted and who may raise a defence against the action.
The action procedure is more time-consuming and expensive than the application
procedure.
Activity 6.1
Explain what “action proceedings” are.

46
6.2.2 Application proceedings
Application proceedings (proceedings by way of notice of motion) are used where

there are no fundamental differences concerning the facts. This procedure will
be used when the court is approached for an interdict. The two parties are known
as the applicant and the respondent. The applicant is the person who initiates
the case and who approaches the court for a particular kind of relief. The
respondent is the person against whom the relief is sought.
See Figure 9.1 Civil proceedings Kleyn et al 240.
Activity 6.2
Explain what “application proceedings” are.
Summary
This topic relates to aspects of civil procedure. You should now be able to
distinguish between action and application proceedings.
6.1 Explain what action and application proceedings are.

47
Topic 7
Aspects of criminal law
Prescribed Reading
7.1 Introduction
the law.
7.2 Aspects of criminal law
Kleyn et al 257-283
7.2.1 The distinction between criminal and civil cases
Criminal law forms part of public law in the traditional classification of law. Private
law is concerned with the legal relationships between subjects. In public law, the
state with state authority is always a party to the proceedings. A criminal trial
takes place between the state and the accused.
Activity 7.1
Distinguish between criminal and civil cases.
7.2.2 The burden of proof in criminal proceedings
The burden of proof in a criminal trial also differs.

48
In a civil case, the onus is on the party that alleges that there is guilt to provide
proof. The onus in a civil case is met if the allegations are proved on a balance
of probabilities.
In a criminal case, the state initiates the prosecution, therefore, the state carries
the burden of proving the guilt of the accused. In a criminal case, a heavier
burden is placed on the state to prove the case. The case must be proved beyond
reasonable doubt.
Although there are definite differences between a criminal and a civil case, in
practice the same set of facts may lead to both a civil and a criminal trial. The
watertight and simple distinction between the two often falls away. Read Oscar
Pistorius made payments to Reeva Steenkamp’s parents, court told, Kleyn et al
259-260.
Activity 7.2
Explain the burden of proof in criminal proceedings.
7.2.3 Sources of criminal law
Kleyn et al 260-263
• Common law is the primary source of criminal law.

• Legislation. Certain forms of human conduct become unacceptable as time
goes by. In these instances, the legislature creates new offences. These
crimes are referred to as statutory offences. See Kleyn et al 262 for
examples.
Activity 7.3
What are the sources of criminal law?
7.2.4 Specific crimes
Kleyn et al 263-265
Crimes can be categorised into four fields depending on the interest threatened:
• Murder or culpable homicide. Assault or assault with the intent to do

grievous bodily harm.

49
• Crimes against another’s property, robbery, housebreaking with the intent
to steal, and malicious damage to property.
• The most serious crime against the state is treason. Contempt of court
also amounts to a crime.
• Morality in the form of community mores is sometimes enforced by law.
An example is incest. A person will be found guilty of public indecency if
his conduct lowered the morality of the public or shocked its sense of
propriety.
Activity 7.4
Explain how crimes are categorised.
7.2.5 Elements of a crime
Kleyn et al 265-275
Before one can say someone committed a crime at least all three of the following
elements must be present:
• conduct (act) or omission;

• which is against the law (unlawful); and
• where the accused was at fault. Negligence is another form of fault.
Sometimes a causal link is also required between the wrongful act and the
eventual consequence of the act.
Activity 7.5
Name the elements of a crime.
7.2.6 Punishment and sentence
Kleyn et al 275-283
The aim of a criminal trial is to punish offenders. This does not, however, explain
why offenders are punished:
• Punishment aims to rehabilitate or reform.

• Punishment serves as a deterrent.
• Punishment can be directly preventative.

50
• Originally the principal aim of punishment was revenge.
• It seems that restoration will become more important as an aim of
punishment.
Activity 7.6
Explain how offenders are punished.
7.2.7 Appropriate sentence
Fixed sentences are not prescribed for common-law offences. The presiding
officer must therefore use his discretion to determine an appropriate sentence.
According to S v Zinn 1969 2 SA 537 (A) the following three aspects or “triad”
must be considered:
• the seriousness of the offence;

• the interests of the community; and
• the particular personal circumstances of the offender thereby
individualising the sentence.
See S v Rabie 1975 4 SA 855 (A).
The court must decide on the most appropriate form of punishment. The
following forms of punishment can be imposed in appropriate circumstances:
• Imprisonment
• Fine
• Correctional supervision
• Order for compensation
• Postponed sentence
• Caution and discharge
• Alternatives for youthful offenders for example attending a reform school.
They can also be placed under the supervision of a probation officer (social
worker).
Activity 7.7
Name the different forms of punishment.

51
Summary
This topic explained the distinction between criminal and civil cases. You should
now understand the burden of proof in criminal proceedings. We further
explained the sources of criminal law, specific crimes, the elements of a crime,
punishment and sentence.
7.1 Explain what criminal law entails.
7.2 Explain the burden of proof in civil cases.
7.3 According to S v Zinn 1969 2 SA 537 (A) three aspects or “triad” must
be considered. Discuss these three aspects.
7.4 Discuss the case of S v Rabie 1975 4 SA 855 (A) with regard to
punishment.
7.5 Name the different forms of punishment.

52
Topic 8
Law and busihness
Prescribed Reading
8.1 Introduction
the law.
8.2 Law and business
8.2.1 Requirements of a contract
Kleyn et al 219-236
A contract is an agreement that is enforceable by law and which creates rights

and duties between the parties.
To ensure that their agreement is legally binding the parties must comply with
the following requirements:
• There must be consensus.

• The parties must have the capacity to contract.
• It must be physically possible to fulfil the agreement.
• When the law requires certain formalities, these have to be complied with.
Activity 8.1
Define a contract.

53
8.2.2 Forms of business enterprises
8.2.2.1 Single-owner enterprise (sole proprietorship)
Only one person contributes to the capital and only that person will receive the
income. Only that person will suffer any loss. He is the sole owner of the
enterprise and manages the business himself. If he gets sued, he will be sued in
his personal capacity.
8.2.2.2 Partnership
A partnership is a contractual relationship between persons (partners) to make

a profit and share in it. A partnership may be established between two or more
(with a maximum of 20) members. The partners agree in the contract on how
they will divide the profit (or loss) between them. Usually, all the partners
participate in the management of the business. The natural persons remain liable
to creditors in their personal capacity and may lose everything they have.
8.2.2.3 Company
According to the Companies Act 71 of 2008 there are two broad categories of
companies: profit and non-profit companies. A non-profit company’s name ends
with “NPC” and is usually established for some charitable goal. Profit companies
can take on the form of, among others, state-owned companies (the name of the
company will end with “SOC Ltd”). See Kleyn et al 221 for examples of
companies.
8.2.2.4 Close corporations (CC)
Since the Companies Act 71 of 2008 came into existence it is no longer

permissible to establish a CC. CCs that were formed before the introduction of
the Act remain in existence or they could be converted into companies.
8.2.3 Accountancy/bookkeeping
After a business has been established and it has contracted with employees and
customers, the business will produce and income. From that income expenses
must be paid. Examples are rent and wages. Whatever money remains after
those expenses have been paid constitutes the profit. From the profit several
different things could and should happen:
• The profit is taxable and the business entity will have to pay taxes to the
South African Revenue Services.

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• Businesses also have corporate social responsibility in the sense that they
owe ethical duties to promote the well-being of society and the
environment. See Kleyn et al 231-236.
Activity 8.2
What are the two broad categories of companies?
Summary
This topic relates to law and business. You should now know the requirements of
a contract and forms of business enterprises.
8.1 Discuss the requirements of a contract.
8.2 What is a partnership?
8.3 What is a single-owner enterprise?

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Topic 9
Courts and alternative dispute resolution
Prescribed Reading
9.1 Introduction
9.2 Courts and alternative dispute resolution
9.2.1 Jurisdiction of courts
In terms of the Constitution of the Republic of South Africa 1996, the South
African judicial system is made up of the following courts:
• The Constitutional Court

• The Supreme Court of Appeal
• The High Courts
• The Magistrate’s Courts
• Other courts that may be established or recognised in terms of an act of
parliament, including any court which has a status similar to that of either
the High Courts or the Magistrate’s Courts.
Jurisdiction means the competence of a particular court to hear a specific case.

The types of factors that are relevant in determining jurisdiction are:
• the type of case;

• geographical area; and
• whether the case is appearing before a court for the first time or not.

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Activity 9.1
What does “jurisdiction” mean?
9.2.2 Type of case
We can distinguish between a criminal case, a civil case and a constitutional

matter:
• In a criminal case, the court’s jurisdiction is determined by the kind of offence

and the possible sentence.
• The decisive factors in determining jurisdiction in civil cases are the amount
claimed and the nature of the relief sought.
• Constitutional matters concern any issue involving the interpretation,
application or enforcement of the Constitution. These may involve alleged
infringements of human rights, the constitutionality of conduct of an organ of
state or the constitutionality of legislation and other laws. This classification
is important because for example, the magistrate’s courts cannot declare
invalid conduct and laws that violate the Constitution. The Constitutional
Court is the highest court in all matters.
Activity 9.2
What determines the court’s jurisdiction in a criminal case?
9.2.3 Geographical area
Each court has jurisdiction within a specific geographical area in the country. In
criminal cases, the area where the crime is committed is usually where the
accused is tried. In civil cases the place where the cause of action arose, or the
defendant’s domicile generally provides the clue as to which courts could have
jurisdiction over the dispute:
• The Magistrate’s Court: Each province is divided into regional divisions which
again are subdivided into magisterial districts. A Regional Court has
jurisdiction within a particular regional division and a District Court within a
particular magisterial district.
• The High Court: Each of the nine provinces has its own seat of the High Court.
• The Supreme Court of Appeal has jurisdiction within the whole geographical
area of South Africa. It has its seat in Bloemfontein, Free State.
• The Constitutional Court has jurisdiction within the whole geographical area
of South Africa. It has its seat in Braamfontein in Johannesburg, Gauteng.

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Activity 9.3
Explain the jurisdiction of a regional court.
9.2.4 Courts of first instance, appeals and reviews
• Courts of first instance: The question here is can the case start in a particular
court? Each court has its own rules about whether it can hear certain matters
as a court of first instance.
• Appeal: An appeal is lodged when the court has allegedly erred in its decision.
The court studies the typed record of the court of first instance in which all
the evidence is documented and listens to the argument by the legal
representatives.
• Review: Review takes place in the case of a possible irregularity in the
proceedings.
Activity 9.4
When is an appeal lodged?
9.2.5 Special courts
Special courts have been instituted for specialised litigation. Special courts can
decide constitutional matters only if an Act of Parliament allows it.
• Chief’s and Headmen’s Courts: If a civil dispute arises in a community headed

by a chief or headman, the dispute may be decided by the relevant chief or
headman sitting as a court. See Kleyn et al 329.
• Small Claims Court: the purpose of this court is to settle disputes concerning
small civil claims of not more than R20 000 speedily and inexpensively.
• Children’s Court: Each magistrate’s court functions as a children’s court within
its particular magisterial district. The proceedings in such a court are
confidential and may not be published without permission.
• Maintenance Court: Each magistrate’s court functions as a maintenance court
within its particular magisterial district.
• Labour Court and Labour Appeal Court: These courts were established in
terms of the Labour Relations Act 66 of 1995. This court can adjudicate labour
disputes.
• Land Claims Court: This court was instituted by the Restitution of Land Rights
Act 22 of 1994. The function of the courts is to restore land rights to people
who have been dispossessed of such rights in terms of racial discrimination
after 19 June 1913.

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• Equality Court: The Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 provides for the establishment of equality courts.
Anyone who alleges a violation of his right to equality may approach an
equality court.
Activity 9.5
Name a few special courts.
9.2.6 Alternative dispute resolution (ADR)
Humby et al state that alternative dispute resolution refers to all ways of

resolving disputes other than by litigation through the courts. The South African
Law Reform Commission stresses that:
“The field of ADR [...] covers a broad range of mechanisms and processes
designed to assist parties in resolving disputes creatively and effectively. In so
far as this may involve the selection or design of mechanisms and processes
other than formal litigation, these mechanisms and processes are not intended
to supplant court adjudication, but rather to supplement it. The most common
types of ADR include negotiation, conciliation, mediation and arbitration”.
The court system in South Africa generally suffers from an inability to provide
many South Africans with appropriate access to courts. Litigation is expensive,
time-consuming and often lengthy. The justice system is, therefore, under
enormous pressure from many different interest groups in society who are
seeking faster, more effective, less cumbersome, less expensive and often less
conflicting ways of resolving disputes and problems.
The primary forms of ADR and the differences between them (Lerm)
ADR FORM DESCRIPTION DIFFERENCES

Involves a process where the
parties enter directly into
In negotiation and
communication with each other
Negotiation mediation, the resolution
with the common goal of resolving
can be pragmatic rather
the dispute through private
than based on the parties’
decision-making.
legal rights.
An independent and impartial
Negotiation, mediation
third party called a mediator is
Mediation or and conciliation are not
responsible for facilitating the
conciliation forms of adjudication.
resolution of the dispute between
the parties.

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The mediator helps the parties to
resolve the dispute through
private decision-making by acting
as a go-between during the
mediation.
A mediator can be asked to
recommend a solution, but the
solution is only binding once the
parties consent to it.
An independent and impartial Arbitration awards are
third-party acts as a private final and binding and
judge in the dispute. The therefore not subject to
arbitrator: appeal to the courts.
• Hears the different versions. There is a review
Arbitration • Applies the relevant law. jurisdiction for the courts
• Decides the dispute by making where a party believes
an award. that there was a material
The Arbitration Act 42 of 1966 error in the arbitration
regulates arbitration in South process.
Africa.
Activity 9.6
Write a brief paragraph on alternative dispute resolution.
Summary
This topic dealt with courts and alternative dispute resolution. You should now
know the jurisdiction of courts, special courts and understand alternative dispute
resolution.
9.1 Our judicial system consists of specific courts. Name these courts.
9.2 When does a “review” take place?
9.3 What does “negotiation” involve?
9.4 Explain what arbitration means.
9.5 Discuss mediation or conciliation.

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Topic 10
The legal profession
Prescribed Reading
10.1 Introduction
• Solve basic legal problems and apply the sources of law to a set of
facts.
• Demonstrate knowledge of the impact of the Constitution of the
Republic of South Africa 1996, and different perspectives of the law.
10.2 The legal profession
Kleyn et al 338-350
10.2.1 Traditional careers in the private sector
• Attorney
• Advocate
• Attorney in the High Court
• Conveyancer
• Notary
• Office personnel
• Legal advisor
For a full discussion see Topic 1 “Being a legal practitioner in South Africa”.
10.2.2 Professions in the public service
• Prosecutor
• Presiding officer
• State attorney

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• State legal advisor
• Registrar of the High Court
• Clerk of the Court
• Master of the High Court
• Registrar of Deeds
• Registrar of Patents and Trademarks
• Family advocate
• Law Reform Commission
• Public Protector
• Human Rights Commission
• Public defender
• Legal academic
For a full discussion see Topic 1 “Being a legal practitioner in South Africa”.
Activity 10.1
What are traditional careers in the private sector and professions in the public
service?
10.2.3 Legal representation
10.2.3.1 Costs (fees)
The amount that lawyers may charge as a fee for their services is regulated by
statute and by the profession. A fair amount must be charged. The Legal Practice
Act requires attorneys and advocates to provide their clients with a “cost estimate
notice” when the client tells them what legal assistance is being sought.
10.2.3.2 Existing legal aid
Section 35 of the Constitution provides for the right of an accused person to

appoint a legal representative of his or her choice at his or her own expense. The
section further states that an accused must be afforded legal representation at
state expense if substantial injustice would otherwise result. This right places a
great burden on the legal profession and state funds, which the Legal Aid Board
administers.
Various forms of legal aid are available:
• Pro Deo representation: The state appoints legal representatives from among
practicing advocates to represent indigent accused in serious criminal cases
heard in the High Court. They are paid by the state.
• Pro Amico legal aid: Free legal aid for friends and acquaintances.

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• Pro bono legal aid: This is a service to the community.
• Legal Aid Board: This Board is a statutory body that provides legal aid to
indigent people.
• Legal aid clinics: At some universities there are legal aid clinics that provide
free legal services and legal aid.
• Advice bureaux: Various non-governmental organisations have founded legal
aid clinics or advice bureaux in certain areas of the country, especially rural
areas. These offices are sometimes staffed by paralegals.
• Public defender: A programme of public defending was launched in
Johannesburg in 1992. Legal representation is given to indigent accused
persons in criminal trials which take place in the Magistrate’s Court.
Activity 10.2
Name the various forms of legal aid.
10.2.4 Ethical rules
Practicing attorneys and advocates must comply with the ethical rules of the
profession. According to the Legal Practice Act, the LPC can take disciplinary
steps in cases of unprofessional, dishonest and improper conduct. For examples
of ethical issues see Kleyn et al 349-350.
Activity 10.3
Provide a few examples of ethical issues in the legal profession.
Summary
This topic as well as Topic 1 deals with the legal profession. You should now know
the traditional careers in the private industry, professions in the public service,
legal representation and understand the applicable ethical rules.
10.1 Briefly discuss section 35 of the Constitution.
10.2 What is the role of the Human Rights Commission?

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10.3 What is “pro Deo” representation?
10.4 Discuss the role of the family advocate.
10.5 What is the Legal Aid Board?

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Topic 11
The Constitution
Prescribed Reading
11.1 Introduction

11.2 The constitution
11.2.1 The Constitution of the Republic of South Africa 1996, and its
development
Schedule 4 of the interim Constitution contained 34 predetermined constitutional

principles. The interim Constitution, in terms of sections 68 and 71, tasked the
new government, in its capacity as the Constitutional Assembly, with drafting
and adopting a final Constitution that would comply with the 34 predetermined
constitutional principles.
In addition, section 71(2) of the interim Constitution provided that the final
Constitution would only have force and effect once the Constitutional Court had
certified that the proposed text complied with the 34 principles.
Important dates - from interim to final Constitution (Lerm)
DATE KEY ASPECTS

• The Constitutional Assembly adopted and submitted a final
version of the text to the Constitutional Court for certification.
8 May
• The Constitutional Court declined to certify the submitted text,
1996
concluding that the proposed final text did not fully comply with
the requirements of the 34 principles.
11 October • The Assembly adopted an amended version of the final text and
1996 referred it to the Constitutional Court for certification.

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DATE KEY ASPECTS
• The Court concluded that the text complied with the 34 pre-
determined constitutional principles.
10
December • President Mandela signed the text into law at Sharpeville.
1996
4 February • The new Constitution came into effect.
1997 • The post-apartheid legal order became a fully-fledged reality.
The interim Constitution which came into operation on 27 April 1994, brought
about several essential changes to the South African constitutional system. For
this study unit, the most important of these changes included the following:
• The right to vote was conferred on all South Africans irrespective of their
race. The right to vote, together with a wide range of other fundamental
human rights, was set out in a new Bill of Rights.
• The system of parliamentary sovereignty that had applied in South Africa
since 1910 was replaced by a system of constitutional supremacy.
• A new Constitutional Court was established and was given the power of
judicial review.
• The Bill of Rights was included to deal with much of the harm caused by
apartheid.
The Final Constitution is a detailed plan (a blueprint) for the running of our
country on a sound democratic basis. It is a very long document. In broad terms
it covers the following: the governing of the country at the national, provincial
and local levels, and the legislative powers and processes at each of these levels;
the administration of justice by all the different courts, the rules relating to
regular elections; the functioning of the police, the National Defence Force and
other security services; how the finances of the country should be managed;
provisions regarding the powers of traditional leaders; as well as the
establishment of institutions to support our constitutional democracy. The
Constitution also describes the nine provinces of the country; as well as the
national symbols, such as the flag. Our Constitution has a Bill of Rights which is
very important. The Bill of Rights which is found in Chapter 2 of the Constitution
lists all the fundamental rights that are protected by our Constitution, for
example, the rights to dignity etc.

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Contents of the Constitution
Preamble
Chapter 1 Schedule 1
Founding provisions National Flag
Bill of Rights Oaths and Solemn Affirmations
Co-operative Government Election Procedures
Parliament Functional Areas of Concurrent
Chapter 5 National and Provincial Legislative
The President and National Competence
Executive Schedule 5
Chapter 6 Functional Areas of Exclusive
Provinces Provincial Legislative Competence
Local Government Transitional Arrangements
Courts and Administration of Laws Repealed
Justice Index
Chapter 9
State Institutions Supporting
Constitutional Democracy
Chapter 10
Public Administration
Chapter 11
Security Services
Chapter 12
Traditional leaders
Chapter 13
Finance
Chapter 14
General Provisions
The Constitution is the foundation of our democracy. Several special features

have been built into our Constitution:
• The Constitution is the supreme law of the Republic of South Africa.

Therefore, everyone, every organisation or institution as well as all laws
are ruled by the Constitution. All state organs are subject to the
Constitution. All legislation may be challenged in terms of the Constitution
in a court and changed or removed if it is found to be inconsistent with
the Constitution.

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• The powers of the state are separated and divided into three sections
namely the legislative authority, the executive authority and the judicial
authority. This is known as the separation of powers. The separation of
powers is essential in a democratic state because if too much power is
concentrated in any one branch of the state this may easily lead to abuse.
• The Constitution has set up many state institutions to support our
democracy. These institutions are:
o The Public Protector
o The Human Rights Commission
o The Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities
o The Commission for Gender Equality
o The Auditor-General
o The Electoral Commission
o The Independent Authority to Regulate Broadcasting.
These institutions are independent, and their job is to protect the people
from abuse of state power and to make sure that the government does its
work properly.
• The Constitution sets out the structure of the judiciary and the judicial
system. The judiciary deals with courts. The main courts are the
Constitutional Court, the Supreme Court of Appeal, the High Courts and
the Magistrate’s Courts.
Activity 11.1
Name the special features that have been built into our Constitution.
11.2.2 Summary
Kleyn et al 181 summarise the characteristics of the South African Constitution

as follows:
• It is written and is contained in a single codified source.

• In general, it is inflexible because a 75 per cent majority in the National
Assembly and the support of six provinces in the National Council of Provinces
are required to change the basic points of departure of the Constitution.
• It has federal features in that a system of cooperative government functions
at three levels.
• It has replaced Parliament as the source of sovereign authority.
• It is regarded as being transformative, roughly because it aims to serve as a
bridge between the authoritarian past and the current political culture where
there should ideally be no abuses of power without serious consequences.

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Activity 11.2
Summarise the characteristics of the South African Constitution.
11.2.3 Traditional leaders
Kleyn et al 178-179
In many parts of Africa, including South Africa, traditional leadership has long
been a prominent feature of governance and is still of great importance in many
people’s lives, in particular those living in rural areas. African systems of
government through chieftaincy predate European conquest and occupation and
the introduction of constitutionalism and democracy as developed in the West.
Kleyn et al 178 explain that one of the challenges of African democracy is how
to ensure synergy between democratic institutions and traditional leadership to
create an authentic “African democracy”. The Constitution recognises the
position of traditional leaders and the validity of indigenous law. However,
traditional leaders exercise their functions and indigenous law is applied subject
to the Constitution, including the Bill of Rights.
See Shilubana v Nwamitwa 2009 2 SA 66 (CC).
The National House of Traditional Leaders was established (National House of

Traditional Leaders Act 10 of 1997) to promote traditional leadership within the
democratic constitutional dispensation by for example advising the national
government on traditional leadership and indigenous law. The Traditional
Leadership and Governance Framework Act 41 of 2003 confirms the recognition
of traditional leadership and further establishes a Commission on Traditional
Leadership.
Activity 11.3
Write a short paragraph on traditional leaders.

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11.2.4 Languages
Kleyn et al 179-180
The Constitution recognises eleven official languages. They are:
• Afrikaans
• English
• isiNdebele
• SiSwati
• isiXhosa
• isiZulu
• Sepedi
• Sesotho
• Setswana
• Tshivenda; and
• Xitsonga
• Sign language has recently been listed in the 18th Constitutional
Amendment Bill (published in July 2022) as South Africa’s 12th official
language.
The state must take positive measures to advance indigenous languages which
have been disadvantaged in the past. A Pan South African Language Board has
been established to develop the official languages as well as Khoi, Nama, San
and sign language. This Board must also promote respect for other languages
commonly used in South Africa. The national and provincial governments must
use at least two official languages for the purposes of government.
In its choice of languages, the following factors have to be considered:
• usage;
• practicality;
• expense;
• regional circumstances.
Local-level municipalities must consider the language usage and preferences of

their residents.
Activity 11.4
Name the official languages of South Africa.

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Summary
This topic dealt with the Constitution of the Republic of South Africa 1996, and
its development. We explained spheres of government, institutions supporting
constitutional democracy. We further provided information on traditional leaders
and languages.
11.1 The interim Constitution which came into operation on 27 April 1994,
brought about several essential changes to the South African
constitutional system. Discuss these changes.
11.2 The Constitution is the foundation of our democracy. Many special

features have been built into our Constitution. Discuss these special
features.
11.3 Summarise the case of Shilubana v Nwamitwa 2009 2 SA 66 (CC).
11.4 The Constitution has set up several state institutions to support our
democracy. Name these institutions.
11.5 Discuss “traditional leadership”.

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Topic 12
Human rights
Prescribed Reading
12.1 Introduction
• Demonstrate knowledge of the impact of the Constitution of the

Republic of South Africa 1996, and different perspectives of the law.
12.2 Human rights
12.2.1 Background to human rights
12.2.1.1 Philosophical background
Kleyn et al 183-184
The philosophical basis of human rights is often found in natural law. In natural-
law thinking, these fundamental rights are part of a higher set of norms on which
the validity of man-made laws depends. Sometimes the basis of these rights is
found in religion for example the idea that humans are made in the image of God
and must do unto others as they would like others to do unto them. After the
Middle Ages the source of these rights was increasingly being found in human
rationality. John Locke was the founder of modern human-rights philosophy. His
ideas contributed to the adoption of a Bill of Rights in England in the seventeenth
century. Jean-Jacques Rousseau’s thoughts found concrete form in the American
Declaration of Independence and the Declaration of the Rights of Man and Citizen
in France during the eighteenth century. See The best idea of the millennium,
Kleyn et al 183.
Kleyn et al 184 explain that after the French Revolution, the law was codified
first in France and thereafter in many other countries. A belief in a higher set of
norms (human rights) gave way to the certainty of codified legal rules.

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This movement relegated human-rights philosophy to a lesser position. It took
the inhuman infringement of the most basic right to life of millions of Jews and
others during World War II to restore natural law and human rights to
prominence.
12.2.2.2 Internationalisation of human rights
Kleyn et al 184-185
Kleyn et al 184 explain that the atrocities committed during World War II
revealed the necessity for the protection of individual rights against state power.
• Modern human-rights protection was initiated on an international level.

The United Nations (UN) was founded in 1945 and its purpose was to
promote international peace and the protection of human rights. The
General Assembly of the UN adopted the Universal Declaration of Human
Rights in 1948. This document lists the basic rights of each individual
throughout the world. Some subject-bound or group-based human-rights
protection is also afforded on the international level. An example is the
protection of women and children in the latter part of the twentieth
century. The Convention on the Rights of the Child was approved as an
instrument of the UN in 1989. The plight of refugees for example is
addressed in UN multi-lateral human rights treaties. Once a treaty is
ratified and formally accepted by a state, it becomes legally binding on
that state. South Africa has ratified (and thus become a state party to)
most UN human rights treaties.
• Kleyn et al 185 further explain that at the regional level mechanisms and
organs also exist to protect human rights. The oldest and most successful
regional system is the European one. Almost all European states are party
to the European Convention on Human Rights (1950). The regional system
for human-rights protection in America is known as the Inter-American
system. It consists of a Commission and a court. The Organisation of
African Unity in 1981 adopted the African Charter on Human and People’s
Rights sometimes referred to as the Banjul Charter.
• International and regional protection of human rights is only subsidiary.
An infringement of rights can be addressed in the most direct way and
with the least delay internally in the courts of each country. The United
States was one of the first countries in which a Constitution with a Bill of
Rights was adopted. After World War II, many states decided to enshrine
fundamental rights in their constitutions.
Activity 12.1
Describe the philosophical background on human rights.

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12.2.2 Generations of rights
Kleyn et al 186
12.2.2.1 First-generation rights
These rights are sometimes called “blue rights”. They are civil rights, procedural
rights and political rights. These are the rights that protect the individual from
the abuse of state power. They protect us for example from officials who might
use the power that they have been given by the state disgracefully. Examples of
such rights are the right to equality, the right to human dignity, the right to life,
the right to freedom of expression and the right to freedom and security of the
person.
12.2.2.2 Second-generation rights
These rights are sometimes called “red rights”. They are called this because they
became important during the socialist revolutions. They relate to socio-economic
issues, that is issues that concern the society and the economy. These rights
allow people to demand that their basic socio-economic needs must be examined
and dealt with by the government. Examples of these rights are the right to
education and the right to access health care services and to sufficient food and
water.
12.2.2.3 Third-generation rights
These rights are sometimes called “green rights”. They are different from first-
generation rights and have more to do with the group than with the individual.
An example is the right to clean or unpolluted air.
Activity 12.2
What are first-generation rights?
12.2.3 Overview of the Bill of Rights in South Africa
Kleyn et al 188-191
The Constitution consists of 243 sections grouped into fourteen chapters. One of
these, Chapter 2, comprises a list of human rights referred to as the Bill of Rights.
See Director of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others 2009 (4) SA 222 (CC).

74
Legislation and executive conduct may also be in conflict with provisions in other
chapters of the Constitution. Section 2 of the Constitution stipulates that the
whole Constitution is the supreme law of the Republic. See Executive Council
Western Cape Legislature and Others v President of the Republic of South Africa
and Others 1995 (4) SA 877 (CC).
A total of 27 sections containing rights are listed in the Bill of Rights. In essence,
civil and political rights are protected. See Kleyn et al 189-190. See also August
v Electoral Commission and Others 1999 (3) SA 1 (CC).
Activity 12.3
Provide an overview of the Bill of Rights in South Africa.
12.2.4 Bearers and duty-holders of rights
Kleyn et al 191-193
Section 8 of the Constitution is the relevant section that bestows rights and
duties. It reads as follows:
“8. Application
(1) The Bill of Rights applies to all laws and binds the legislature, the
executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if,
and to the extent that, it is applicable, taking into account the nature
of the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a court –
(a) in order to give effect to a right in the Bill, must apply or if
necessary develop, the common law to the extent that
legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right,
provided that the limitation is in accordance with section 36
(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the
extent required by the nature of the rights and the nature of that
juristic person.”
All persons in South Africa and not only South African citizens are holders of most
of the rights in the Bill of Rights. Access to the courts is made as wide as possible.
Juristic persons are also entitled to the rights in the Bill of Rights in certain
instances. The rights in the Bill of Rights can be claimed against the state but
also in some instances against non-state actors including private persons.

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As human rights operate primarily between the individual and the state, the
rights may be claimed against the legislature and executive and all other organs
of the state. This means that the Bill of Rights has full vertical application.
Full horizontal application means that an individual may enforce these rights
directly against another person.
Section 9(4) requires that national legislation be enacted to prevent or prohibit

unfair discrimination. Such legislation was passed in the form of the Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
Activity 12.4
Discuss section 8 of the Constitution.
12.2.5 Limitation of Rights
Kleyn et al 193-196
Humby et al state that in those cases in which a court has found that an ordinary
rule of law does infringe on one of the rights in the Bill of Rights, that rule of law
may still be constitutionally valid if it satisfies the requirements of the limitation
clause (section 36). The limitation clause was included in the Bill of Rights
because the drafters of the Constitution recognised that fundamental rights are
not absolute or unrestricted. Instead, they may be restricted by the rights of
others and the legitimate needs of society. The right to life, for example, may be
limited by the right to self-defence and the right to freedom of expression may
be limited by the right to dignity.
The limitation clause, consequently, sets out the grounds on which the rights in
the Bill of Rights may be lawfully restricted. It provides that the rights in the Bill
of Rights may be limited only in terms of a law of general application and if that
limitation is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom. To determine whether a limitation is
reasonable and justifiable in an open and democratic society, the limitation
clause goes on to provide that a court must take the following factors into
account:
a) The nature of the right.
b) The importance of the purpose of the limitation.
c) The nature and the extent of the limitation.
d) The relation between the limitation and its purpose.
e) Less restrictive means to achieve the purpose.

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When the courts apply the limitation clause, they usually begin by examining
each of these factors and then go on to engage in a balancing exercise. During
this balancing exercise, they weigh the purpose, the effect and the importance
of the limitation against the importance of the right and the nature and extent of
the limitation. The more extensive the limitation is the more convincing the
reasons for the limitation must be.
This means that where the right in question is important and where the
infringement is serious, the limitation will only be justified if the reasons for the
infringement are important and there are no other less restrictive means
available. However, where the right in question is not so important or where the
infringement is not so serious, the limitation may be justified even if the reasons
for the infringement are not very important or there are other less restrictive
means available.
If the infringement is not justifiable, what is the most appropriate remedy? In

those cases, in which a court has found that an infringement does not satisfy the
requirements of the limitation clause, it must determine what the most
appropriate remedy would be. A constitutional remedy is as follows:
• One that focuses not only on the harm to the person in question but also
on the harm to the constitutional goal of creating a just and fair society.
• It must vindicate the Constitution and deter future infringement.
Activity 12.5
Discuss section 36 of the Constitution.
12.2.6 Interpretation of the Bill of Rights
Kleyn et al 196-198
The rights in the Bill of Rights must be interpreted differently from ordinary
legislation. The underlying values and objectives of the Constitution must be
given effect. Section 39 deals with the interpretation of the Bill of Rights.
Section 39 of the Constitution (part of the Bill of Rights) states that when a court
interprets the Bill of Rights, it must consider international law and may consider
foreign law. Where a court has to resolve an issue dealing with human dignity
(section 10 of the Constitution), for example, it is obliged to consider
international law dealing with human dignity.

77
Therefore, where a foreign country has some legal provisions that might inform
the South African courts on how to solve the legal problem here in South Africa,
a court may use this foreign law provision to interpret the Bill of Rights. It is,
however, not obliged to do so.
There are two reasons why international law has a direct effect on South African
law and specifically the sources of South African law.
• The creation of legislation is influenced.
• Decisions of the courts and judicial precedent can be influenced.
Activity 12.6
Discuss the interpretation clause of the Constitution.
12.2.7 Remedies for human rights violations
Kleyn et al 198-200
Section 38 of the Constitution prescribes that an “appropriate” remedy should be

granted following a finding that a right has been violated. When a statute has
been found to be unconstitutional, the appropriate remedy is its invalidation. It
is also sometimes appropriate that a court makes a declaration of rights only. An
award of damages to compensate for unconstitutional conduct is also possible. A
court may also order an interdict for example to compel a government official to
take certain steps (a mandatory interdict) or to prevent the official from acting
in an unconstitutional way (prohibitory interdict). A court may also order a
structural or supervisory interdict. The Constitutional Court is however reluctant
to adopt such interdicts because this course of action requires that the court
becomes involved in the day-to-day operations of government. See Black Sash
Trust v Minister of Social Development and Others (Freedom Under Law
Intervening) 2017 3 SA 335 (CC).
Activity 12.7
What are the remedies for human rights violations?

78
Summary
This topic dealt with human rights. We explained the background of constitutions,
and the generations of rights and gave an overview of the Bill of Rights in South
Africa. We further looked at bearers and duty-holders of rights, limitation of
rights, the interpretation of the Bill of Rights and remedies for human rights
violations.
12.1 Discuss the internationalisation of human rights.
12.2 What are third-generation rights?
12.3 In those cases, in which a court has found that an infringement does not
satisfy the requirements of the limitation clause, it must determine what
the most appropriate remedy would be. Discuss constitutional remedies.
12.4 To determine whether a limitation is reasonable and justifiable in an open

and democratic society, the limitation clause goes on to provide that a
court must take certain factors into account. Discuss these factors.
12.5 Discuss the different forms of interdicts.

79
Topic 13
Legal comparison
Prescribed Reading
13.1 Introduction

13.2 Legal comparison
13.2.1 Reasons for legal comparison
Kleyn et al 351-365
Legal comparison is the study of foreign legal systems for the sake of comparing
them with one’s own. Kleyn et al 352 explain that it is becoming more important
for the following reasons:
• We have daily contact with foreign legal systems. This process is furthered by
international organisations such as the UN, the EU and the AU. These bodies
promote international cooperation in various fields. See Nelson Mandela The
challenge facing the new world order, Kleyn et al 353.
• Growing internationalism is also advanced by common problems which
threaten the world as a whole. Solutions to these problems call for cooperation
between different countries and the creation of new laws.
• Internationally accepted ideologies such as the protection of human rights
encourage countries to conform to or move closer to international norms.

80
• Legal comparison is necessary for the development of one’s own legal system.
Much may be gained by looking at how other countries apply corresponding
principles or address certain problems.
• See Example from case law , Kleyn et al 355-357 and see Example from
legislation Kleyn et al 358.
Activity 13.1
What are the reasons for legal comparison?
13.2.2 Different legal systems
Kleyn et al 359-362
13.2.2.1 African systems
The traditional law of the various African communities have the following
characteristics:
• African law is based on oral tradition – the laws are not formally written down.
• It is based on traditions and customs, which sometimes have a religious
origin.
• Like religious systems it is aimed at harmonising society. It is community-
orientated. In the case of disputes, mediation is the norm rather than the
Western concept of litigation.
13.2.2.2 Anglo-American (common law) systems
English law forms the basis of these systems. It is applied in most English-
speaking countries such as the USA, Canada, Australia and New-Zealand. English
law has its origin in two sources: common law and the law of equity. Anglo-
American law is in essence judge-made law or case law. The law is not derived
from abstract principles of general application. The Anglo-American systems are
not codified. In South Africa, the term “common law” usually refers to our South
African common law (Roman-Dutch law). It must not be confused with English
common law.
13.2.2.3 Romano-Germanic (civil-law) systems
It is mainly the countries of Western Europe that belong to this legal family. All
these systems have been influenced by Roman law (civil law). Today these
systems are codified. Legislation and not case law or custom is the most common
source of law.

81
13.2.2.4 Scandinavian systems
Denmark, Norway, Sweden, Finland and to some extent Iceland form part of this
legal family. During the seventeenth century, this law was codified in most of
these countries. This legal family is distinguished by the cooperation between
these countries in respect of the unification of the law. Legislation also in the
form of the old codes is the most important source of law. A characteristic of
Scandinavian law is that it is quite progressive.
13.2.2.5 Religious systems
Islamic, Hindu and Jewish law are religious legal systems. These systems have
the following characteristics:
• They have their origin in religious sources.
• No sharp distinction is drawn between the law, mores, morality and personal
ethics. The emphasis is on the individual’s moral duties and his duties to
society.
• These legal systems apply on a personal level to all believers irrespective of
where they find themselves. They are not connected to a specific territorial
area.
• Many developing countries today have a complex legal nature. For example,
in India a mixture of Hindu and Muslim religious systems has developed.
13.2.2.6 “Mixed” or “hybrid” systems
The South African legal system is a hybrid (mixed) system in the sense that
various legal systems have played a role in its development. Customary law is
applied as the law of the African people. Both Roman-Dutch law and English law
have influenced our legal system since colonisation. To varying degrees, South
African law accommodates those people who wish to follow their religious laws,
to the extent that the constitutional order allows it.
Activity 13.2
Write a short paragraph on religious legal systems.
13.3 The constitution and legal comparison
Kleyn et al 362-365
Section 39(1) of the Constitution provides specific guidelines for legal comparison
as far as the protection of human rights is concerned.

82
It stipulates that in interpreting the Bill of Rights, a court –
• must consider international law; and
• may consider foreign law.
Where a court has to resolve an issue dealing with human dignity (section 10 of
the Constitution), for example, it is obliged to consider international law dealing
with human dignity. Therefore, where a foreign country has some legal provisions
that might inform the South African courts on how to solve the legal problem
here in South Africa, a court may use this foreign law provision to interpret the
Bill of Rights. It is, however, not obliged to do so.
There are two reasons why international law has a direct effect on South African
law and specifically the sources of South African law.
• The creation of legislation is influenced.
• Decisions of the courts and judicial precedent can be influenced.
Activity 13.3
Discuss section 39(1) of the Constitution concerning legal comparison.
Summary
This topic dealt with legal comparison and provided the reasons for it. It
described the different legal systems and provided an explanation based on the
Constitution and legal comparison.
13.1 Write a short paragraph on “mixed or hybrid” systems.
13.2 Name the characteristics of traditional law.
13.3 Why is legal comparison necessary?
13.4 How does the Constitution influence legal comparison?
13.5 There are two reasons why international law has a direct effect on South
African law and specifically the sources of South African law. Name these
reasons.

83
Topic 14
Language and the law
Prescribed Reading
Kleyn et al Beginner’s guide for law students 5ed (2018) 366-381.
14.1 Introduction

• Formulate basic legal arguments and identify fallacies in respect of legal
arguments.
14.2 Language and the law
Kleyn et al 366-381
14.2.1 Formal legal language
Formal legal language is intended for a small group of people who have
specialised knowledge or interest in the law.
See the few excerpts from chosen legal texts in Kleyn et al 367-368.
• Formal language and often archaic or foreign words and phrases are
used for example “novation”.
• The formal style is apparent.
• Sentences are written in passive form.
• The sentences are long and complicated.
• Long and complex sentences require extensive punctuation.
• Legal language tries to cover all possibilities by being overly specific.
• Verbs are often formed into nouns for example “the lodging” of the bond
instead of “lodging the bond”.
• The word “shall” is used repeatedly.

84
A few reasons why legal language is so formal and complex:
• Legal language is an instrument for legal certainty.

• Law is built on authority and tradition.
• Language helps in building an illusion of consistency.
• Complex and difficult language keeps the law inaccessible, ensures
lawyers’ indispensability and enhances their status.
Activity 14.1
What is “formal legal language”?
14.2.2 Simple/plain legal language
According to Kleyn et al 369, a world-wide movement in English-speaking

countries criticising complex language has recently started. This movement is
known as the “Plain English” movement. In South Africa, the government
increasingly used English as the official medium of communication.
Kleyn et al 370 provide a few hints for simpler language:
• Writing should be brief and concise.

• Avoid the passive form.
• Write in paragraphs.
• Avoid negative formulations. See Ex parte Speaker of the KwaZulu-Natal
Provincial Legislature 1996 4 SA 1098 (CC).
• Use punctuation functionally but not excessively.
• Write in ordinary English as far as possible.
• Good writing makes communication easy. See Kleyn et al 371.
Activity 14.2
Refer to Kleyn et al and provide a few hints for simpler legal language.
14.2.3 Translations
As previously mentioned, the Constitution recognises eleven official languages.

Each accused has the right to a trial in the language he understands.

85
Otherwise, he has a right to an interpreter. See S v Matomela [1998] 2 All SA 1
(Ck); S v Mafu 1978 1 SA 454 (C).
Activity 14.3
Discuss the case of S v Matomela [1998] 2 All SA 1 (Ck).
Summary
This topic dealt with language and the law and explained legal language as well
as simple/plain legal language. It also referred to translations.
14.1 Why is legal language so formal and complex?
14.2 Discuss the case of S v Mafu 1978 1 SA 454 (C) in the context of an
interpreter.

86
Topic 15
Legal argument and logic
Prescribed Reading
15.1 Introduction
• Formulate basic legal arguments and identify fallacies in respect of

legal arguments.
15.2 Legal argument and logic
Kleyn et al 382-393
15.2.1 Induction
Kleyn et al explain that induction is the thought process by which a general

conclusion is drawn from specific facts. This represents a search for generally
applicable truths from specific observations. In law, inductive arguments are
common. This is especially true when factual findings are made:
• A court makes a general finding about the credibility of witnesses based

on a series of observations.
• Presumptions help prove facts.
• Some facts are so well-known and accepted that evidence is not necessary
to prove them. The presiding officer may then take judicial notice of such
facts. See R v Tusini 1953 4 SA 406 (A).
• Conclusions drawn from circumstantial evidence are also reached through
a process of induction. See R v Blom 1939 AD 188 (202-203); R v Mlambo
1957 4 SA 727 (A). Also see Kleyn et al 385-386.

87
Activity 15.1
What is “induction”?
15.2.2 Deduction
Kleyn et al explain that deduction differs from induction as it works the other
way around. A general statement is applied to specific circumstances to arrive at
a conclusion. For examples see Kleyn et al 387-388.
Activity 15.2
How does “deduction” differ from “induction”?
15.2.3 Use of authority
A legal opinion on any issue is based on authority (or “sources”), be it legislation

or a previously decided case, or the opinion of an expert. Authority is used to
bolster an argument or to support a point of view. In some cases, the authority
claimed is not quite authoritative. See Clarke v Hurst 1992 4 SA 630 (D).
Activity 15.3
Why is “authority” used in legal matters?
15.2.4 Fallacies of argument
15.2.4.1 Manipulation of words
Arguments are necessarily made up of words. Words may be used in their

ordinary meaning. Words also have an emotive meaning or connotation which
can be used for purposes of manipulation. See S v Khanyile 1991 2 SACR 595
(A). See also Miller v Jackson [1977] 3 ALL ER 338 (340-341).
Not only the words but how they are woven together in sentences can be a
powerful tool to persuade others. These techniques of verbal persuasion are
rhetorical language. Rhetoric is the use of language to move or persuade readers
or listeners to a specific decision, judgment or action.

88
15.2.4.2 Playing the player
A participant in a debate might shift the attention away from the issue to be
argued to the person arguing. This is often an attempt to sidestep thorny issues.
Lawyers must always be wary of getting involved in personal vendettas with
court opponents. See Free to choose what I like – a letter concerning a debate
on censorship, Kleyn et al 390.
15.2.4.3 Shifting the goalposts
Another technique is to extend the issue so that it falls outside the initial
boundaries. This is an attempt to avoid addressing the issue.
15.2.4.4 Extreme alternatives
Kleyn et al 391 describe it as a very sly technique to reformulate an issue as a

stark choice between two extreme alternatives.
15.2.4.5 Circular argument
A circular argument is most easily recognised as an argument where the

conclusion is already contained in the starting point. Something claiming to be
proof is exactly the issue that has to be proved. It may also be referred to as an
argument that “begs the question”. See Jacobellis v Ohio 378 US 184 (197).
15.2.4.6 Non sequitur (it does not follow) arguments
Sometimes a conclusion is portrayed as the necessary consequence of one event

or statement when it is in fact not the case. A typical instance would be when
two events are illogically linked as cause and effect. See Sibanyoni v University
of Fort Hare 1985 1 SA 19 (CkS).
Activity 15.4
What is a circular argument?
15.2.5 Policy considerations
Sometimes logic is substituted with a choice between opposing policy

considerations or value judgments. See S v A Juvenile 1990 4 SA 151 (ZS) and
Kleyn et al 392-394. Policy considerations in law are today informed by
constitutional norms. See Carmichele v Minister of Safety and Security 2001 (4)
SA 938 (CC) (par 56).

89
Activity 15.5
Discuss the case of Carmichele v Minister of Safety and Security 2001 4 SA 938
(CC) (par 56).
Summary
This topic dealt with legal argument and logic. It explained induction, deduction
and the use of authority. It referred to fallacies of argument and policy
considerations.
15.1 In the context of “fallacies of argument”, discuss the phrase

“manipulation of words”.
15.2 In the context of “fallacies of argument”, discuss the phrase “non

sequitur” (it does not follow) arguments.
15.3 Discuss the case of S v A Juvenile 1990 4 SA 151 (ZS) in context of

policy considerations.

90
References
Books
Humby et al (eds) Introduction to law and legal skills in South Africa (2017)
Cape Town: Oxford University Press Southern Africa
Kleyn et al Beginner’s guide for law students 5ed (2018) Claremont: Juta
Lerm Introduction to South African law and legal skills study guide (2015)
(Southern Business School)
Legislation
Bantu Education Act 47 of 1953

Companies Act 71 of 2008
Constitution of the Republic of South Africa, 1996
Group Areas Act 41 of 1950
Human Rights Commission Act 54 of 1994
Internal Security Act 74 of 1982
Labour Relations Act 66 of 1995
Law of Evidence Amendment Act 45 of 1988
Legal Practice Act 28 of 2014
Population Registration Act 30 of 1950
Prohibition of Mixed Marriages Act 55 of 1949
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Reservation of Separate Amenities Act 46 of 1951
Restitution of Land Rights Act 22 of 1994
Separate Representation of Voters Act 46 of 1951
State Attorney Act 58 of 1957
Suppression of Communism Act 44 of 1950
Traditional Leadership and Governance Framework Act 41 of 2003
Case law
Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner of Gender

Equality Intervening) 1999 (4) SA 1319 (SCA)
Ex parte Speaker of the KwaZulu-Natal Provincial Legislature 1996 (4) SA 1098
(CC)
August v Electoral Commission and Others 1999 (3) SA 1 (CC)
Black Sash Trust v Minister of Social Development and Others (Freedom Under
Law Intervening) 2017 (3) SA 335 (CC)
Blacker v University of Cape Town 1993 (4) SA 402 (C)
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)
Clarke v Hurst 1992 (4) SA 630 (D)

91
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional
Development, and Others 2009 (4) SA 222 (CC)
Du Plessis v Strauss 1988 (2) SA 105 (A)
Executive Council Western Cape Legislature and Others v President of the
Republic of South Africa and Others 1995 (4) SA 877 (CC)
Jacobellis v Ohio 378 US 184
Miller v Jackson [1977] 3 ALL ER 338
R v Blom 1939 AD 188
R v Mlambo 1957 (4) SA 727 (A)
R v Tusini 1953 (4) SA 406 (A)
S v A Juvenile 1990 (4) SA 151 (ZS)
S v Khanyile 1991 (2) SACR 595 (A)
S v Mafu 1978 (1) SA 454 (C)
S v Matomela [1998] 2 All SA 1 (Ck)
S v Rabie 1975 (4) SA 855 (A)
S v Zinn 1969 (2) SA 537 (A)
Shilubana v Nwamitwa 2009 (2) SA 66 (CC)
Sibanyoni v University of Fort Hare 1985 (1) SA 19 (CkS)

92

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1.1 Admissible evidence is evidence that is not allowed in court. (1)

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MODULE PURPOSE AND OUTCOMES 1

TOPIC 1 THE LAW 2

TOPIC 2 HISTORY OF SOUTH AFRICAN LAW 15

TOPIC 3 SOURCES OF SOUTH AFRICAN LAW 30

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TOPIC 14 LANGUAGE AND THE LAW 84

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