Law - 1-7

What is law

A body of rules and regulations governing human conduct that is recognised as binding by the state and which the state, will if necessary enforce.

public policy

the legal(moral) convictions of the community

Moral

to do with goodness/badness of character or distinguishing right and wrong

Morality

moral principles, ethics, specifc set of morals

Ethical

relating to morals,moral questions,or the principles of right conduct.

Govt branches

the three divisions of government: legislative -parliament-( makes laws)

-Subsequent branches play a “reviewing” role. Raise concerns then send BACK to national assembly

executive- enforces/implements laws , signs bills to make them binding - President,Ministers,Police,Admin

and judicial- diff Courts

State

Party that governs SA and its ppl - like RSA

Seperation of powers

the division of govt responsibilities into diff branches to limit any one branch from exercising the core functions of another.

Hold each other to account to make sure each branch is excercising their function

civil law

between persons. Damages recovered from guilty persons

criminal law

state has claim against individuals for offences

Cause of action

what makes the ability to take a matter to court. No cause of action; cant go to court. Requirements that must be met for a legal wrong to be recognised as such . (E.g- Stealing an apple- cause of action bcz theft is criminal)

Action vs Application proceedings

action - case where theres dispute of facts- This is where witnesses testify in court,cross examination

application- no dispute of facts, more so dispute of interpretation of scenario

Appeal vs review

Appeal = you disagree w a judgemnet based on the merit of that judgement (you think the judge incorrectly applied the principles of the law) - You take matter to a different court or same court but with more judges (like High court w more judges)

Review = you disagree w HOW the verdict was reached

Attorney vs Advocate

Attorney = person you go to when youre looking for legal advice . Compliles a briefing document for the advocate

Advocate = the person who will represent you in court/appear in front of a judge

Civil v Criminal

civil = between persons

Criminal = interaction between state and person

Court structure

constitutional court (11 justices)

→ Supreme court of appeal (5 sitting judges) (only 1 in SA)

→ High courts (9 in SA) (can have 1 or 3 judges)

→ Magistrates courts (District and Regional - diff jurisdictions based on subject matter,jail time,damages)

constitutional court

the highest court of the republic and may decide constitutional matters and any other matter which raises arguable point of law of general publlic importance

superior courts

All the courts above the magistrates court.

They have the power to do appeals

Magistrate courts jurisdiction

look at venn diagram for this

District vs Regional

District Civil Claim: under 200K

District criminal claim : under 120K & or 3 years (limit)

Regional civil : between 200-400K

Regional criminal : less than 600K &/or 15 yrs (limit)

Sources of law

Constitution, Legislation,Roman-Dutch/common law, African customary law ,Custom, Judicial precednet(case law)

constitution

the supreme law. Any law or conduct in conflict with it is invalid

Bill of rights (“Cornerstone of democracy”) - in constitution (chap 2)n

The rights everyone has:

9.Equality - everyone equal in the law and has right to equal protection and benefit of law

10. Human dignity

11. Life- right to life

When can a BOR right be overturned

S36: when its reasonable or justifiable

original & delegated Legislation

• 100 000’s of legislations

• Original = authority comes from constitution (overturned if unconstitutional). Eg - Acts passed by parliament

• Delegated = authority comes from original law (overturned if unconstituional or ultra vires(done by someone w out that power)) .Eg - Regulations passed by a Minister

Unconstitutional legislation

laws that dont uphold the big 3 (equality,dignity,right to life)

Patrimonial loss

a calculable financial loss that reduces a person's total wealth (patrimony). It represents tangible damage that can be measured in monetary terms, such as loss of income, property damage, or medical expenses.

Roman-Dutch / common law

when dutch settlers came to SA , SA was governed by Roman law, dutch kept this law, just added to it

African customary law

Courts MUST apply customary law in appropriate cases as outlined in constitution and other legislation

Customary law defn

customs/usages traditionally observed among indigenous african peoples of SA and which form part of the culture of those peoples

Xhosa customary law

1. Bride’s consent

2. Brides’s dad/guardian’s consent

3. iLobolo

4. Handing over of the bride

Pedi customary law

1. Appointing messenger

2. Grooms fam visit bride’s fam

3. Lobola negotion and partial payment

4. Animal slaughter

5. Crucial element : Handing over bride

Lawful polygamous marriage

First wife must consent to subsequent customary marriages

Living law

Important to note that Customary law was not written somewhere, its passed down, and is ever evolving

Legal Custom requirements

A custom must be:

Certain(clear + unambigous) , Reasonable, Long-established(proven to be done for a long time) & uniformly observed (followed in the same way)

How courts make laws when they dont have law making powers under the constitution

• They interpret, develop, & apply other laws (legislation, common law, customary law)

• Do Stare decisis (let the decision stand) doctrine - following the decision of previous court cases to ensure consistency and certainty in the law.

Motor vehicle (according to RAF )

Any vehicle designed or adapted for propulsion or haulage on a road by means of fuel,gas,electricity incl trailer,caravan, agricultural vehicles dragged by these motor vehicles

Conditions of stare decisis

1. Bound by Ratio decendendi (reason for the decision) of a judgement. Its the binding part of a judicial decision followed by lower courts

2. Bound only by certain courts . Cant be enforced in other provinces UNLESS their supreme court doesnt have a pprotocol for that matter

obiter dictum

Obiter dictum: when the judge makes a comment in passing not relevant to verdict of THIS case

Ratio decidendi binding scope of diff tiers of courts

1. CC = every court

2. SCA = everyone but CC

3. HC = Other HCs & MCs in that province. Sometimes MCs in other provinces

4. MC= no one

Court of equal standing NOT bound if earlier decision was unlawful

Superior courts act

Settling confllicting court division desires in civil cases : Ministers sends the matter to Chief justice who makes the matter be argued before CC or SC to reach a decisiob

right

an interest conferred by and proteected by law

right of a child - maintenance

real /personal/other right

real:in relation to property.absolute right enforceable against whole world

personal : enforceable against a particular person/s only. Right to do or refrain from doing smth

other: intellectual property, constitutional etc

praedal v personal servitude

praedial → right fixed to land , not owners

personal→ ONLY btwn them ppl. Can be renegotiated (farm example)

Reason for distinctions of legal persons

Rights, duties & capacities differ

importance of distinctions btwn legal persons

1. Natural person

2. Juristic (artificial) person - companies

• rights , duties , and capacities differ

Juristic vs persons rights

Juristic - rights governed by legislaton/ memo of inc.

Natural persons - Sometimes governed by age (criminal , delictual, legal capacity) ,nationality (Right to Equality + Freedomn of trade,occupation,proffesion) ,marital status(lim by community of prop),gender,race

• outlined in BOR

• effective birth - death

• ALL humans

Branches of law

public(applies between state and its citizens) - constitutional ,admin (citizen ensuring proper/fair use of public power),criminal

private (between citizens) - family,contract (law of agreements),delict (damages),property (law of real rights enforeceable upon whole world) , law of succesion

commercial (bizz to bizz or bizz to citizen)- company,banking,competition(monopoly prevention)

crime

wrongful conduct thats specifically prohibited by common law/statute & is punishable by the the state.

• its specific

• State vs accused

• murder,rape,robbery , theft , fraud , arson , treason

• must be proven Beyond reasonable doubt

• outcome : Punishment (jail time & or money goes to state)

4 legs of Delict

1Wrongful conduct ( an ommision (failure to act) or commision (act)) done 2.intentionally or negligently (thru fault) that 3.causes 4.harm to a person, property,personality

• More of a general duty (not to cause harm to someone else)

• Plaintiff(accuser) vs Accused

• Balance of probabilities-Just have to prove its the MOST probable thing that happened

• Outcome : Compensation(damages) or told not to do again

How do we make sure its delict (and not crime) (main diff is remedy )

• “Wrongful conduct( omission -refraining from acting + commision - doing an act)” thats..

• committed “Intentionally or negligently” ie through FAULT

• which “causes” - element of causation essential

• “Harm” to person/property of plaintiff

criteria for Negligence

• A reasonable person in defendendants position

• would expect/foresee that their conduct would most likely injure another &

• would take reasonable measures to prevent such harm happeninf &

• Defendant failed to do this

contract

an agreement between 2 parties giving rise to legally binding & enforceable rights + duties between these parties (question over which agreeements cause obligations)

Unjustified enrichment

Benefits confered upon another @ expense of other person w no legal ground for this transfer of bennies( Shopping spree mistake example)

• enriched party will have obligation to → compensate or restore

• criteria for obligation → Nature of benefits

whether/not benefit still exists

reason why benefit got confered to person b

• Similar to contract → situation where minor gets benefits from unassited contract

property/money changing hands in invalid agreement

Contract vs Delict

Contract:

• its a agreement

• of specific contractual undertakings

• where you get compensated for FINANCIAL LOSS ONLY

Delict

• its Harm

• where you have a general duty not to harm

• where compensation is for FINANCIAL LOSS AND/OR NON-FINANCIAL DAMAGES (Pain + Suffering)

Constitution section 9

Right to equality : everyone is equal before the law and entitled to equal protection and benefit of the law. It prohibits unfair discrimination—direct or indirect—by the state or individuals on grounds like race, gender, sex, sexual orientation, disability, and culture

Section 36 of Constitution

That limitation clause in the Bill of Rights

Section 39 in Constitution

Framework for interpreting the Bill of Rights : Courts, tribunals, and forums must promote the values of an open and democratic society based on human dignity, equality, and freedom.

International law (public international law)

Body of law governing between state relations , in times of peace , war , neutrality , + treaties

• Looks at : State boundaries , status + treatment of diplomats , human rights vios, territorial waters

• no single body/country has authority to MAKE int law

• UN prosecutes violaters in International court of justice

National law (law of the land)

• body of legal rules governing that specific state / country - only binding in those boundaries

Public + Priv law

under Substantive law (outlines values of society + how we should / shouldnt behave. Determines limits of acceptable conduct, making/enforcing/recinding rights + duties btwn individs or btwn state & individuals)

Public law (taccl) = governs state + its powers. looks @ relations btwn state and its subjects + Functions/division of power in govt.

• CC law - rlts btwn state + citizens , rights of citizens , society @ large

• admin law - make sure State dont excerscise power over subjects / private persons unfairly + arbitrarily. For citizens to hold state to account

• criminal law - looks at types of conduct that = crimes, punishments state applies

• labour law

• law of taxation

Private law = rules governing rls btwn private individuals (eg priv businesses & individuals rlts , families)

1. Family law

2. Mercantile law - trade + commerce

3. Property law

4. Law of succession