Unit 1: Basic Principles of Law

Flashcards covering the basic principles of South African law, its divisions, legal rights, and authoritative sources based on the lecture transcript.

Law

A set of rules or norms that govern human behaviour which the whole of the community sees as binding and which must be obeyed by all of society.

Legal norm

A rule involving the whole community, which separates it from a moral norm (such as adultery).

Public law

Law that deals with the relationship between the State and the Individual.

Private law

Law that deals with the relationship between individuals and other individuals.

Law of Persons

A division of Private Law that deals with persons as subjects of the law.

Family law

A division of Private Law that governs marriage and its consequences and relationships within the family.

Law of personality

A division of Private Law that deals with personality rights.

Law of Patrimony

A division of Private Law dealing with persons and their means, including the Law of things, Law of Succession, and Law of Obligations.

Formal (or procedural) law

The part of the law dealing with procedures followed during legal proceedings, such as rules for court cases and presenting evidence.

Substantive (or material) law

The part of the law which determines the content and meaning of the different legal rules.

Mercantile Law

Also known as Commercial Law, it is recognized as a specific area of law in South Africa over and above Private and Public law.

Legal Subject

Anyone who is subject to the norms of the law and who may be a holder of rights and duties.

Legal Object

Anything of economic value to people over which a legal subject may have a right.

Real rights

Rights where the object is a thing, such as the Right of Ownership, Right of Pledge, or Right of Servitude.

Personality rights

Rights where the object is personality property, including the right to physical integrity, good name, or honour.

Intellectual property or immaterial property rights

Rights where the object is a non-tangible creation of the human mind, such as Copyright or Patent rights.

Personal rights

Rights where the object is performance in terms of an agreement.

Authoritative Source of law

Sources that give power and weight and can be relied upon before a court of law, including legislation, case law, common law, and customary law.

Legislation

Also referred to as Statutory Law, these are rules laid down by parliament and considered the most important authoritative source of law.

The Constitution of the Republic of South Africa, $1996$

Act No. $108$ of $1996$, which is the supreme law of the land; any law or conduct inconsistent with it is invalid.

Supremacy clause

Contained in section $2$ of the Constitution, it provides that the Constitution is the supreme law and all legislation may be challenged in terms of it.

Separation of Powers

The division of state power into three branches: legislative authority (makes laws), executive authority (carries out laws), and judicial authority (decides disputes).

Procurement Clause

Contained in section $217$ of the Constitution, it requires state organs to procure goods and services in a manner that is fair, competitive, equitable, transparent, and cost-effective.

Bill of Rights

Contained in Chapter $2$ of the Constitution, it protect fundamental rights such as equality, human dignity, life, and housing.

Judicial Precedent

A system where lower courts are bound by the decisions of higher (superior) courts.

Ratio decidendi

The reasons for a court decision, which are binding under the system of judicial precedent.

Obiter dicta

Casual remarks made by a Judge that are not binding but may be persuasive.

Common Law

Law not contained in legislation, specifically the writings of $17^{th}$ and $18^{th}$ century Roman-Dutch jurists as interpreted by South African courts.

Customary Law

Unwritten rules developed within a community and passed down through generations, which must be reasonable, long-standing, and certain to be recognized.

African Indigenous Law/ Indigenous African Law

Largely unwritten law recognized as a source of law by the Constitution which courts must apply where it is applicable.