Introduction to South African Law - Learning Unit 1: Theme 1

Flashcards covering key concepts from the lecture notes on South African law, including the nature of law, sources, state roles, and historical context.

What is the law?

A set of rules made by the state to order behavior in society; reinforced by the state and based on a social contract; it sets our rights and obligations.

Law stems from what social concept?

The social contract that members of society agree to for order.

What rights and obligations does law establish?

What you have to do; what you may not do; what others are not allowed to do to you.

What does it mean that something is legal?

That it is allowed or required under the law and backed by legal authority.

What is the relationship between law and morals?

There is overlap; moral rules influence legal rules; some moral rules are not legally enforceable; debates on whether morals should influence legal decision making.

What are legal rules?

Laws that everyone must obey; breaking them leads to penalties such as fines or imprisonment.

What are moral or ethical rules?

Personal standards of right and wrong; subjective; shaped by beliefs; not always legally enforceable.

Name the three arms of the State in creating and enforcing laws.

Legislature (Parliament), Executive (Cabinet), Judiciary (Courts).

What is Parliament's role?

Create legislation; the highest elected law-making body; legislation = statutes or acts.

What is the Executive's role?

President and ministers; implement policies to put legislation into practice or create new laws.

What is the Judiciary's role?

Court system; decide whether laws have been followed; interpret laws; make findings; includes a hierarchy of courts.

What is a natural person?

A human being.

What is a juristic person?

A legal entity (e.g., a company) with separate legal existence from its directors, shareholders, or members.

What does 'parliamentary sovereignty' refer to?

The idea that Parliament's laws were untouchable during apartheid; challenges were difficult or rare.

What does 'constitutional supremacy' mean?

The Constitution is the supreme law; protects fundamental rights; laws and government actions must comply; established post-1994.

What are the historical eras of South African law mentioned?

Pre-1652 indigenous law; 1652 onwards Roman-Dutch and English law; Apartheid era with parliamentary sovereignty; Post-Apartheid era with constitutional supremacy.

What are the primary sources of South African law?

Constitution (including the Bill of Rights); Legislation (statutes/acts, provincial by-laws, local regulations); Common law; Customary law; Customs; Judicial precedent / case law.

What is the Constitution's status?

Supreme law of the land; overrides other sources; interpretation must align with constitutional values.

What is the Bill of Rights?

Chapter 2 of the Constitution; contains human rights; rights may be limited under section 36; interpretation must uphold the Constitution's spirit.

What is legislation?

Laws passed by the legislature; national laws by Parliament; provincial laws by provincial legislatures; by-laws and regulations by local government; can be amended.

What is the law-making process for new legislation?

At least 50% of the legislature must vote in favour; the full text is published in the Government Gazette.

What is common law?

Laws developed over time; uncodified; includes Roman-Dutch and English law; developed through case law and can be influenced by foreign law.

What is customary law?

Traditional rules passed by oral tradition; not codified; valid if consistent with the Bill of Rights and applied in traditional courts.

What is customs (trade practices)?

Unwritten practices based on long-established trade usage; can become law if long-standing, reasonable, and uniformly observed.

What is judicial precedent / ratio decidendi?

Doctrine of stare decisis; ratio decidendi is the legal principle behind a decision.

Where can case law be found?

Judgments of higher courts; law reports/journals (online); ratio decidendi helps identify the controlling principle.

What are secondary sources of South African law?

Public international law, foreign law, and modern writing (scholarly works).

What is public international law?

Law between states; includes treaties and conventions, customary international law, and general principles.

What is foreign law?

Laws of another country; SA courts may refer to it when domestic sources are silent.

What is modern writing?

Academic writings and textbooks; used by courts to inform decisions.