Chapter 1

INTRODUCTION TO THE
SOUTH AFRICAN LEGAL
 1. THE RELEVANCE OF THE LAW
1.1 Purpose and function of the law in a society

• Body of rules to facilitate and regulate human interaction

• Maintain order and give certainty

• Prevent arbitrariness, inequality, uncertainty, unfairness,

unreasonableness and self-help

• Establish a system whereby disputes are dealt

1.2 Law and commercial activity

The law…

1.2.1 … articulates minimum standards

1.2.2 … recognises different kinds of property

1.2.3 … facilitates and upholds business agreements

1.2.4 … is the foundation of corporate activity

1.2.5 … legitimates state regulation of commercial activity

1.2.6 … provides authoritative mode of dispute resolution

 2. FUNDAMENTAL CONCEPTS
2.1 Law

• “A set of prescriptions for orderly conduct in society.”

• Law is distinguished from:

i. religion; and
ii. morality
2.2 Jurisprudence

• The study of the philosophy of law

• Questions:

- What is the law?

- What should the law be?

Promotes
certainty Ensures
responsiveness

Rules of
obligation

Adjudication
Promotes
efficiency
2.3 The state and the rule of law

“The state”

• the legislature

• the executive; and

• the judiciary
 Branch of State Authority to:

Legislature Make laws

(Parliament, provincial (Acts of Parliament, Provincial Acts
legislatures, municipal By-laws)
councils)
Implement laws
Executive (Proclamations, regulations,
(President, Ministers, MEC’s, directives, authorisations)
Mayors)
Adjudicate (and interpret) laws
Judiciary (Judgments)
(Higher and lower courts)

Bound by:

• Constitutional values (fairness; equality; non-racism;

non-sexism; openness; transparency; democracy etc.
• Rights and freedoms in the Bill of Rights
 2.4 Legal relationships

Public legal Private legal

relationships relationships

• One of the parties • Element of state

bears state authority power is absent
• Vertical (unequal) • Horizontal (equal)
relationship relationship
 Private legal relationships

Recognised legal objects in South African law:

• Corporeal things (movable or immovable)

• Incorporeal things

• Intellectual property

• Performance of services

• Aspects of personality
 Real and personal rights

REAL RIGHTS PERSONAL RIGHTS

Definition • A right in a thing • A right to performance
• Enforceable against • Enforceable against a
anyone specific person
Examples • Ownership; rights of • Can be created by
servitude; real contract, undue
security rights enrichment, delict
Method of • Movable property by • Cession
transfer delivery
• Immovable property
by registration
 2.5 Legal liability

• Criminal liability

• Civil liability

- Contractual liability
- Delictual liability
- Liability based on unjustified
enrichment
 2.6 Legal personality

Allows one to act in the legal world and thus acquire

rights and duties:

Natural persons

Juristic persons
Juristic personality

Juristic personality can be acquired:

• by general enabling statute

• by specific statute

• by meeting requirements for legal

personality set out in common law
 3. SOURCES OF LAW

Constitution
Legislation

Judicial precedents

Customary law
Common law
3.1 The Constitution

Right/Freedom Section Content

Equality 9 Prohibits unfair discrimination.

Assembly, 17 Collective labour law - recognition of trade unions and the

demonstration, picket right to strike.
and petition

Freedom of 18
association

Freedom of trade, 22 Every citizen has the right to choose their trade, occupation
occupation and and profession.
profession

Fair labour practices 23 Includes the right of the employees to form trade unions
and to strike, and the right of employers to form and join
employers’ organisations.

Property 25 Protects private property.

Development of land distribution and reform programmes.

Just administrative 33 All administrative action must comply with the standards of
action legality, reasonableness and procedural fairness.
 3.2 Legislation

Legislature Executive
2. Bill submitted to
Parliament for debate 1. Drafting of Bill by line
Ministry

3. Parliament votes on
Bill
5. Law implemented by
executive who may draft
4. President signs Bill regulations
and it becomes law

Primary legislation Secondary legislation

Area of commercial Most important statutes
activity

Business entities • Companies Act 71 of 2008

Taxation • Income Tax Act 58 of 1962
• Value-Added Tax Act 89 of 1991

Credit • National Credit Act 34 of 2005

Insurance • Long-Term Insurance Act 52 of 1998
• Short-Term Insurance Act 53 of 1998

Intellectual Property • Copyright Act 98 of 1978

• Patents Act 57 of 1978
• Trade Marks Act 194 of 1993

Insolvency • Insolvency Act 24 of 1936

Competition • Competition Act 89 of 1998
Employment • Labour Relations Act 66 of 1995
• Basic Conditions of Employment Act 75 of 1997
• Occupational Health and Safety Act 85 of 1993
• Compensation for Occupational Injuries and Diseases
Act 130 of 1993
• Employment Equity Act 55 of 1998

Consumer Protection • Consumer Protection Act 68 of 2008

 3.3 Judicial precedent

• When a judge decides a case and the decision

creates a new law or extends an existing law.

• Doctrine of stare decisis:

- “to stand by previous decisions”

- The courts are bound by the decisions of courts
higher in the court hierarchy
- Similar cases must be decided in a similar way
3.4 Other sources of law

3.4.1 Common law

3.4.2 Custom

3.4.3 Customary law

3.4.4 Foreign law

4. CATEGORIES OF LAW

The Law

International
National law
law

Substantive Procedural
law law

Private law Public law

5.1 Litigation

CIVIL TRIAL CRIMINAL TRIAL

Object To resolve a dispute To seek retribution and
between two or more protect society against
parties criminals

Initiating Plaintiff or Applicant The state

party

Standar On the balance of Beyond a reasonable

d of probabilities doubt
proof
Different types of civil trial

Application Action
proceedings proceedings

• Ex parte application • Plaintiff and defendant

• Application with an • Dispute involves
applicant and a questions of fact or
respondent questions of fact and
• Only disputes of fact law
• No submission of oral • Oral evidence is led
evidence
 Appeal and review

Appeal Review

• Party is not satisfied with • Party is dissatisfied with the

the judgment manner in which a decision
• Place merits of decision was taken
before higher court • Higher court is approached
• Do not lead evidence again to rule on validity of
decision-making process
 5.2 The court system

Constitutional Court
Court hierarchy
Supreme Court of Appeal

High Courts
(Provincial and Local Divisions)

Magistrates’ Courts
(Regional and District Courts)
 Jurisdiction

Jurisdiction is determined by the following factors:

• Authority to hear constitutional matters

• Geographical territory

• Amount of the claim in civil proceedings

• Severity of sentence in criminal proceedings

• Nature of the proceedings

• Appeal jurisdiction
5.3 Legal professionals

• Attorneys

• Advocates

• Legal Practice Act 28 of 2014