INFL all chapters

What is law

body of rules/regulations that facilitate and regulate human behaviour

orders society and gives certainty

keep peace and order

Structure of law

parliament - makes laws

courts - applies laws

cabinet - enforces laws

Hybrid legal system

civil, common and customary law

(roman-dutch, english and indigenous law)

Legal rules in earlier times

developed by legislation, magistrates/judges, and the jury

Legal system functions

provides dispute settlement procedures

maintains order and peace

facilitates change

protects society

What determines effective law

fairness

clarity

public trust

accountability

What is a social contract

also known as a tacit agreement

implicit agreement among members of a society that accept governments authority and obey laws in return for protection of their rights and social order

What are normative systems

rule-based systems that guide human behaviour

law, religion, individual morality, community mores

How do social contracts and normative systems relate to each other

social contracts help justify why legal norms exist and why people should obey them

Justice as a part of the legal system

the goal of the legal system

Types of justice

distributive - equal distribution of justice

corrective - restore equality

What does legal positivism entail

law is a social fact

the validity of law depends on authority and legal procedures, not morality

courts should apply law as prescribed

What is customary law

system based on traditions and customs of indigenous Africans

What is common law

roman-dutch law based

flexible and evolving

fills gaps where legislation exists

Hybridity as a characteristic of SA law

mixed jurisdictions and laws

Reasons for hybridization in SA

colonisation

expansion

re-settlement

What is codification

the process of collecting and organizing laws into a structured document

Roman law codification

codified for the first time in the Law of 12 tables

basis of SA common law

Corpus iuris civilis and its 4 parts explained

Emperor Justinian gathered roman law into one system

institutiones - textbook for law students

digesta - writings of legal experts

codex - laws made by emperors

novellae - new laws added

Reception of roman law

using roman law in places it didn’t originally apply

roman law merged with germanic law in western europe

Meaning of gloss

commentary margins between lines of a text

Roman law in a fragmented feudal society

became a subsidiary legal system

used as a backup if local laws didn’t cover a situation

Important dutch jurists

Hugo de Groot

Johannes Voet

Simon van Leeuwen

Johannes van Linden

British in Cape of Good Hope occupation

1st: 1775-1806

2nd: 1806 +

Inhabitants who established independent territories

Natal, Transvaal, Orange Free State

Legal and legitimate with reference to apartheid

legality - something being in accordance with the law

legitimacy - concerned with ethical justification of a law

Ways SA law reconstructed abolishment of apartheid

legal system now able to adapt to challenges

constitution required to constantly develop

Transformative constitutional democracy

long term of constitutional enforcement committed to transforming a country’s institutions

Primary sources of SA law

legally binding on courts

(legislation, case law, constitution, customary and international law)

Secondary sources of SA law

don’t create new law

(legal textbooks, articles, case notes, dictionaries)

What is legislation

law that is written down and published in a statute

made by a legislative authority

The 3 spheres of government and their roles

legislature - parliament passes the act

executive - carries out policies

judiciary - base rulings on relevant legislation

Importance of legislation

quickest way to create new laws

provides for changing needs of society

orders behaviour of society

The legislative process

limitation of a bill - introduction to parliament - first reading - scrutiny by portfolio committee - second reading - voting - assent - publishing

Ways of interpreting legislation

textual approach - look at wording + grammar

purposive approach - why it was created

contextual approach - place in context of real-life

What is ratio decidendi

reasons for courts decision

create binding precedent for lower courts

What is obiter dictum

remarks made in passing

not essential to the decision

may be persuasive

When may courts deviate a precedent

when earlier decision was clearly wrong and facts are materially different

What does doctrine of stare decisis et non quieta movere mean

let the decision stand and do not disturb settled matters of the law

Substantive law

determines the content + application of rights an individual has

Divisions of substantive law

public law

commercial law

private law

What is procedural law

rules in which a court hears a legal proceeding

Divisions of procedural law

law of evidence

civil procedure

criminal procedure

Common specialisations in public law

administrative law

constitutional law

criminal law

Common divisions of private law

law of persons

law of succession

law of obligations

law of delict

Branches of commercial law

law of insurance

tax law

law of insolvency

law of sale and lease

labour law

Most important SA courts

constitutional court

supreme court of appeal

high court

magistrates court (district + regional)

Superior courts

labour court

labour appeal court

land claims court

competition appeal court

electoral court

Inferior courts

small claims court

courts of chiefs and headmen

equality courts

water tribunal

Appeal

plea for matter to be judged again

decision was legally/factually incorrect

can confirm/change/overturn decision

Review

applied in same court where original decision was made

examines the procedure followed

determines the fairness/legality of the process

What is a court of first instance

legal case is heard for the first time

facts are presented, witnesses testify, and evidence is examined

What is ADR

alternative dispute resolution

ways of resolving disputes without going to court

Arbitration

arbitrator hears both sides + makes binding decision

Negotiation

parties talk + find a mutual agreement

only binding if agreement is formalised

Mediation

mediator assists and encourages the parties in finding a solution

depends on cooperation

Litigation

resolving disputes through formal court system

judge makes legally binding decision after hearing both sides

3 categories of human rights

blue rights (right to life + freedom of speech + right to vote)

red rights (right to housing + education + health)

green rights (right to healthy environment)

4 peoples effect on the development of human rights

their theories about natural law, government and liberty helped shape modern democratic systems and human rights principles

(john locke, hugo de groot, jean-jacques rousseau, thomas hobbes)

Limitation of a fundamental right and the requirements

two/more constitutionally protected rights weighed against each other

must be in the form of a law that is generally applicable

What is constitution

a body of fundamental principles which govern a state/organisation

What is constitutionalism

doctrine that a governments authority is determined by a body of laws or by a constitution

Importance of constitutionalism in SA

protects rights of people in the country

explains people’s obligations

defines institutions of SA

Principles of constitutional law

cooperative governance

separation of powers

checks and balances

rule of law

democracy

What is transformative constitutionalism

addressing past injustices and promoting social, economic and political equality

Institutions that strengthen our democracy in chapter 9

the public protector

the human rights commission

commission for the promotion + protection of the rights of cultural, religious and linguistic communities

commission for gender equality

the auditor-general

the independent electoral commission

Legal practitioners

practice law as attorneys or advocates

provides professional service to the public

Case involving a legal practitioner

Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC)

What is an attorney

person with whom to make first contact with in seeking legal advice

all attorneys are Ex Officio and commissioners of oaths

Requirements to be admitted as an attorney

complete LLB degree

at least 21 years old

must be fit and proper

serve articles of clerkship

must complete 4 board exams

What is an advocate

present cases in court and draft court documents

(advocates with trust accounts + referral advocates)

Requirements to be admitted as an advocate

over the age of 21

SA citizen or permanent resident

serve an unpaid apprenticeship of a max of 12 months

What is a prosecutor

public official in charge of instituting criminal proceedings

Two types of attorneys

conveyancer - deals with transfer of property/land

notary - authentication and registration of specific legal documents

Legal advisor

provide legal services in the business world

State attorney

represent state departments when being sued, entering into contracts or selling property

State legal advisor

gives legal advice to specific state departments

undertakes legal research, drafting new statutes and checking existing legislation

Public protector

investigates allegations of maladministration at all levels of government

What is the role of ethics in the legal profession

LP’s conduct must always be professional and ethical

if LP is not ethical - risk of being struck off the roll of attorneys/advocates

The three-fold enquiry employed in striking off proceedings

court decides whether the alleged offending conduct has been established on a balance of probabilities

whether the practitioner is fit and proper to continue practice

whether practitioner should be removed or suspended