DIVISIONS OF SOUTH AFRICAN LAW & Distinguishing between ratio decidendi and obiter dictum.docx

International Law

(the law between states — concerned with areas such as:

• boundaries between states

• the law of the sea

• the law of airspace and outerspace

• treaties

• diplomats

• humanitarian law (law during war)

National law

(the law peculiar to a specific land or state—the law enforced within the boundaries of a state)

Substantive Law

(law which deals with creation, operation and extinction of rights and duties)

Public Law

(the law that governs the relations between the state and individuals)

Constitutional Law

The law that governs the distribution of legal power in the three branches of the state, the functions of the various organs of government and the rights of individuals that may not be abused by the state.

Administrative Law

(the rules governing how all administrative power is to be exercised)

Criminal Law

(the rules prescribing which conduct is worthy of punishment by the state)

Private Law

(the law that governs the relations between individuals, and their status)

The Law of Persons

(rules relating to the definition, classification and status of human beings in law; marriage; parent and child, etc)

Mercantile Law

(a collection of different branches of law dealing with commercial matters; company law; the law of negotiable instruments (cheques); the law of insolvency, etc)

The Law of Property

(rules governing relationship between persons and things)

The Law of Succession

(rules governing devolution of person's property on his/her death either in terms of a will or the rules of intestate succession)

The Law Of Obligations

(personal rights having a proprietary value)

The Law of Delict

(rules governing payment of compensation for harm caused by wrongful acts)

The Law of Contract

(agreements which create legally enforceable rights and duties)

Unjustified Enrichment

(rules governing the recovery of benefits received without any valid underlying cause)

Conflicts of Law

(how to reconcile disputes where different national laws may be applicable)

Procedural Law

(body of law governing the enforcement of rights and duties + of substantive law)

Civil Procedure

(procedures governing the enforcement of civil rights and duties)

Criminal Procedure

(procedures governing the way in which the state prosecutes people for criminal offences)

Law of Evidence

(the law governing the way in which facts are to be proved in civil or criminal cases)

Labour Law

(The rules governing the relationship between the employer and the employee, collective bargaining and emplyment in general)

The Law of Taxation

(Provides for collection of revenue by the state)

What must a court determine on a case-by-case basis regarding public policy?

What public policy will or will not allow.

What does a court consider when determining public policy?

Generally accepted values, social norms of the time, relevant policy considerations, and settled principles in related fields.

Why is the Constitution important in determining public policy?

Because the values and norms enshrined in the Constitution are of considerable importance.

Which case confirmed that public policy is rooted in the Constitution?

Brisley v Drotsky 2002 (4) SA 1 (SCA).

Who made the statement about the modern basis of public policy in Brisley v Drotsky?

Cameron JA.

According to Brisley v Drotsky, where is modern public policy rooted?

In the Constitution and the fundamental values it enshrines.

What constitutional values underpin modern public policy?

Human dignity, equality, human rights and freedoms, non-racialism, and non-sexism.

Does a court easily declare an agreement contrary to public policy?

No

When will a court declare an agreement contrary to public policy?

Only if the agreement is manifestly harmful to the interests of the community as a whole.

What level of harm must an agreement cause before it is contrary to public policy?

It must be manifestly harmful.

Whose interests must be harmed for an agreement to be contrary to public policy?

The interests of the community as a whole.

Complete the statement: "Public policy is now rooted in our ________ and the fundamental values it enshrines."

Constitution.

List the five constitutional values identified in Brisley v Drotsky.

• Human dignity

• Equality

• Human rights and freedoms

• Non-racialism

• Non-sexism

What is the key principle from Brisley v Drotsky?

Public policy must be interpreted in light of the Constitution and its fundamental values.

Why is public policy determined on a case-by-case basis?

Because it depends on the values, norms, policy considerations, and legal principles relevant to each particular case.

Reasons for the court’s decision (how the court arrived at that finding) –

ratio decidendi

Creates judicial precedent as a source of law → legally

binding

Obiter dictum

Opinion of the court / remarks made in passing by the

court → does not create judicial precedent →not legally binding, merely

persuasive