South African Law Sources, Courts, and Dispute Resolution

What must legal rules have to fulfill their purpose in society?

An origin that provides authority and legitimacy.

What do sources of law tell us?

Which institutions in society can develop and pass prescriptive norms that are recognized as law.

What is legal certainty?

The requirement that the law be reasonably accessible, clear, and predictable.

What are primary sources of law?

Laws generated by institutions vested with law-making authority, such as Parliament and provincial legislatures, or judgments of the courts.

What is the supreme law of the country?

The Constitution.

How does the Constitution serve as a standard for other laws?

It evaluates all other laws and conduct against its constitutional standards.

What happens to laws that do not meet the constitutional standard?

They are considered unconstitutional and therefore invalid.

What does the Constitution recognize and legitimize?

Other sources of law.

What are the constitutional values and fundamental rights provided by the Constitution?

They form the basis of the legal framework and the organization, operation, and powers of government.

What are the three spheres of government established by the Constitution?

National, provincial, and local government.

What are the different arms of government according to the Constitution?

Legislative, judicial, and executive.

What is the role of the legislature?

To pass laws and oversee the executive.

What is the function of the executive?

To implement laws passed by the legislature and manage day-to-day societal issues.

What does the judiciary do?

Resolves disputes according to the law as interpreted by it.

What is legislation?

Written legal rules made or promulgated by the recognized legislative authority in the state.

What are statutes?

Another term for legislation or Acts.

What is judicial precedent?

Law made by the judicial authority, consisting of court judgments that interpret statutes and other sources of law.

What does the term 'stare decisis' mean?

To stand by a previous decision.

What is the significance of previous judgments in judicial precedent?

They create binding law that must be followed by present courts unless materially wrong.

What is meant by 'judicial law-making'?

The process by which courts interpret the law and create legal analysis through their judgments.

What is the role of the judiciary in relation to statutes?

To resolve legal disputes arising from statutes by hearing cases and delivering judgments.

How does the Constitution affect the law-making domain of the legislature?

It establishes the boundaries within which the legislature can regulate human activity.

What is the significance of reported cases in South African law?

Reported cases are an important binding source of South African law, ensuring that information is accessible to legal practitioners, presiding officers, law students, and the public, promoting fairness and uniformity in the application of the law.

Where can South African cases be found?

South African cases can be found in law reports published by various publishers and on the internet.

What are secondary sources of law?

Secondary sources provide further information on primary sources of law, are not binding, and serve as supplementary authority, often reflecting or critically commenting on primary sources.

What types of materials are considered secondary sources?

Secondary sources include materials created by lawyers, academics, guidelines, rules, circulars, and directives used within government institutions.

What is international law?

International law comprises the rules and principles governing relations between nations, states, individuals, and international organizations.

In what areas is international law used?

International law is used in diplomatic relations, international trade, transportation of goods, humanitarian intervention, and cross-border extradition.

How is international law created?

International law is created collectively by many countries and is influenced by institutions like the UN and the AU.

What is international customary law?

International customary law consists of unwritten customs supported by states, such as the prohibition on crimes against humanity.

Which sections of the South African Constitution relate to international law?

Sections 231, 232, 233, and 39 of the South African Constitution relate to international law.

How does international law influence South African law?

International law has a direct influence on South African law, impacting the creation of laws and potentially influencing court decisions and judicial precedent.

What is public law?

Public law regulates the structural organization of the state and the relationships between different state organs and between the state and its subjects.

What does public law govern?

Public law governs how the state interacts with the people it regulates and the relationships between state institutions and officials.

What is constitutional law?

Constitutional law constitutes the state and is contained in the Constitution of the Republic of South Africa, 1996.

What does the Constitution of South Africa set out?

The Constitution sets out the nature of the state, its constituent organs, foundational authority, and regulates the interrelationship between state organs.

What is the role of cooperative government in South Africa?

Cooperative government refers to the regulation of the interrelationship between various organs of state as provided by the Constitution.

What is the supreme law of the Republic?

The Constitution.

What does constitutionalism protect?

It protects subjects of the state from arbitrary rule and ensures efficient operation within constitutional limits.

What are the key components of constitutional law?

The separation of powers, independence of the judiciary, review of the constitutionality of laws, and control over constitutional amendments.

What does administrative law regulate?

It regulates the exercise of public authority and the impact on the governed.

What does administrative law not regulate?

It does not regulate legislative, judicial, political, and policy-making power.

What is the focus of criminal law?

It deals with matters where individuals are accused of committing crimes.

What is procedural criminal law?

It lays down the procedures for bringing accused persons before a court and trying them for alleged offenses.

What rights does the Constitution provide for arrested persons?

The right to remain silent, to be brought before a court within 48 hours, to be charged or informed of reasons for detention, and to communicate with a spouse or partner.

What is substantive criminal law concerned with?

It is concerned with the substance of legal rights, duties, and obligations, setting out legal norms that must be complied with.

What are the general principles of criminal law?

The act must be unlawful, conducted by one or more people, the conduct must be at fault, and causation is often required.

What does private law regulate?

It regulates relationships between private persons and entities, such as contracts, family matters, and compensation claims.

What is substantive private law?

It is broken into various subdivisions that govern legal relationships between private entities.

What does the law of persons determine?

It determines what a person is in the eyes of the law, including issues of status, domicile, citizenship, and legal capacity.

What issues does the law of persons address?

It addresses domicile, citizenship, adoption, minority, prodigality, curatorship, insolvency, and legal capacity.

What does family law cover?

It covers the legal rules applicable to family relationships.

What is required for criminal liability?

The act must be unlawful, conducted by a person at fault, and causation must be established.

What are some specific requirements for certain crimes?

Specific crimes may have unique requirements for criminal liability and defenses.

What is the role of administrative law in government?

It regulates how the state performs its administrative duties and powers.

What is the significance of constitutional law?

It establishes the framework for governance and protects citizens from arbitrary state actions.

What are the implications of constitutionalism?

It ensures that government operates within the limits set by the Constitution.

What is the relationship between private law and public authority?

Private law governs interactions between private individuals and entities, distinct from public authority.

What does family law regulate?

It regulates the origin, content, and dissolution of legal relationships between husband and wife, parties in a civil union, parents or guardians, and children, as well as relationships between other relatives.

What is the law of patrimony?

It regulates the relationship between a person and their patrimony, encompassing the totality of that person's assets and liabilities.

What are some branches included in property law?

Property law includes intellectual property, law of obligations, law of contract, law of delicts, law of succession, and personality law.

What characterizes hybrid sub-disciplines of law?

They do not exclusively belong to public or private law and often transcend the public-private law divide and the national-international divide.

What is environmental law?

A new subdiscipline that became popular in the 20th century, dealing with sustainable development and environmental issues such as climate change and pollution.

What does commercial law encompass?

Also known as business law or mercantile law, it deals with various branches of law important for commerce, trade, and industry.

What is the role of banking and finance law?

It regulates the powers and functions of banks and financial service providers using statutes.

What is the significance of the 2008 Companies Act in South Africa?

It acts as the backbone for company law, covering registration, incorporation, and management of companies.

What does the law of insolvency cover?

It covers insolvent estates, bankruptcy, business rescue, winding up and liquidation, and debt counselling.

What does labour law regulate?

It regulates the relationship between employers and employees, including conditions of employment and the recognition of trade unions.

What is taxation law concerned with?

It deals with the payment and collection of taxes and the relationship between taxpayers and the South African Revenue Service (SARS).

What does insurance law regulate?

It regulates South Africa's insurance industry, including the requirements for and rights and duties arising from insurance contracts.

What is the focus of educational law?

As the youngest sub-discipline, it sets out the rights and duties of those involved in South Africa's education system, including the administration of schools and higher education.

What does information and technology law address?

It sets out rules regarding the use of the Internet, protection of electronic information, and electronic agreements.

How is African law characterized within the South African legal system?

It is a hybrid field that encompasses both public and private characteristics, including aspects of criminal law, family law, and property law.

What are some other sub-disciplines of law mentioned?

Other sub-disciplines include competition law, medical law, sports law, local government law, aviation and space law, and child law.

What is substantive law?

Substantive law concerns the substance of legal rights, duties, and obligations, regulating what individuals can do and what they are entitled to.

What does substantive law determine?

It determines which facts need to be proved and creates or defines rights, duties, obligations, and causes of action enforceable by law.

How is substantive law divided?

Substantive law is divided into public law and private law.

What is the focus of public law?

Public law regulates the relationship between the state and individuals.

What does private law govern?

Private law focuses on the relationship between private individuals.

What is procedural law?

Procedural law, or adjectival law, addresses the rules governing how courts conduct legal proceedings.

What areas does procedural law encompass?

Procedural law encompasses the law of evidence, criminal procedure, and civil procedure.

What is the primary focus of substantive law?

Substantive law focuses on the essence of legal rights, duties, and obligations.

What does substantive law outline?

Substantive law outlines the rules that define what individuals can and cannot do, or what they are entitled to do.

What principle ensures that no person or organ of state may interfere with the courts?

The principle of independence ensures that no person or organ of state may interfere with the functioning of the courts.

What does the independence of the judiciary prohibit?

It prohibits any person or organ of state from exercising power in a way that improperly influences the functioning of the courts.

How is impartiality defined in the context of the judiciary?

Impartiality is defined as the absence of bias and involves the court's state of mind or attitude towards the issues and parties in a case.

What is the objective test for impartiality?

The objective test for impartiality asks whether a reasonable person would apprehend that the judge has not or will not bring an impartial mind to the case.

What is the requirement of 'reasonableness' in the context of bias?

A reasonable person must apprehend bias, and the apprehension of bias itself must be reasonable.

What is the hierarchical structure of the judiciary?

A higher court can overturn a decision of a lower court in an appeal or review procedure.

How many levels of courts are there in South Africa?

There are four levels of courts.

What is the highest court in South Africa?

The Constitutional Court.

Who comprises the Constitutional Court?

The Chief Justice, the Deputy Chief Justice, and nine other judges.

What jurisdiction does the Constitutional Court have?

It decides on constitutional matters and must confirm orders of constitutional invalidity from lower courts.

Under what conditions can the Constitutional Court hear a matter?

If it grants leave for appeal due to an arguable point of law of general public importance.

What exclusive matters can only the Constitutional Court decide?

Disputes between organs of state, constitutionality of provincial acts and acts of parliament, amendments to the Constitution, obligations of the President or Parliament, and certification of a provincial constitution.

What are the presiding officers of the Constitutional Court called?

Justices.

How many justices must preside over a matter in the Constitutional Court?

At least 8 justices.

Who presides over the Supreme Court of Appeal?

The President of the SCA, the Deputy President, and other judges.

How many judges typically hear a matter in the Supreme Court of Appeal?

A panel of three to five judges.

What type of matters does the Supreme Court of Appeal decide?

Appeals and issues connected with appeals from the High Court, except for labour or competition matters.