South African Law: Quick Reference

WHAT IS THE ‘LAW’?

  • Law = set of rules made by the state to order society; stems from the social contract; reinforced by the state; sets out rights and obligations (what you have to do, what you may not do, what others are not allowed to do to you).

WHAT DOES IT MEAN THAT SOMETHING IS ‘LEGAL’?

  • Legal = generally accepted standards of conduct supported by the law to make it binding.
  • Legal principles = you must comply with the law or be held responsible in court.

THE RELATIONSHIP BETWEEN THE LAW AND MORALS

  • Morals are influenced by beliefs, culture, religion; they can be dynamic.
  • Examples of overlap: legal rules that are morally right; immoral laws historically (e.g., apartheid-era rules).
  • Examples of moral rules not enforceable legally.
  • Should morals influence legal decision-making? There is a connection, but morality and law are not identical.

LAW v ETHICS

  • Legal rules = laws everyone must obey; breaking a law leads to punishment.
  • Moral/ethical rules = personal standards of right and wrong; shaped by belief systems; vary across individuals and generations.
  • Can law and ethics be the same? They can overlap but are not identical in source or enforceability.

THE ROLE OF THE STATE

  • Laws are rules of a state; the state creates and enforces them.
  • The state has three parts essential to law:
    • Legislature / Parliament
    • Executive (Cabinet)
    • Judiciary

THE ROLE OF THE STATE — LEGISLATURE (Parliament)

  • First arm of government; highest elected law-making body.
  • Creates legislation (statutes/acts).

THE ROLE OF THE STATE — EXECUTIVE (Cabinet)

  • Second arm; consists of the President and ministers.
  • Makes policies to implement legislation or create new laws.

THE ROLE OF THE STATE — JUDICIARY

  • Third arm; court system.
  • Decides whether laws have been followed and makes findings.
  • Hierarchy of courts to be covered later.

DIFFERENTIATE BETWEEN NATURAL AND JURISTIC PERSONS AS LEGAL SUBJECTS

  • Natural persons = human beings.
  • Juristic persons = entities (e.g., companies) with separate legal existence from their directors, shareholders, or members.

DIFFERENTIATE BETWEEN A LEGAL SYSTEM BASED ON PARLIAMENTARY SOVEREIGNTY AND CONSTITUTIONAL SUPREMACY

  • Parliamentary sovereignty (pre-1994) = Parliament is untouchable; limited challenges in court.
  • Constitutional supremacy (post-1994) = protects fundamental human rights; law by constitution and rule of law.

THE HISTORY OF SOUTH AFRICAN LAW

  • Prior to 1652: indigenous law governing relationships.
  • 1652 onwards: Roman-Dutch Law (Dutch) and English Law (British).
  • Apartheid era: parliamentary sovereignty.
  • Post-Apartheid (1994 onwards): constitutional supremacy.

SOURCES OF SOUTH AFRICAN LAW

  • Primary sources = original, binding sources.
  • Secondary sources = writings about primary sources; persuasive.

PRIMARY SOURCES OF SOUTH AFRICAN LAW

  • The Constitution of the Republic of South Africa, 1996
    • Supreme law; overrides other sources; values guide interpretation.
    • Bill of Rights (Chapter 2) = core human rights; rights may be limited under Section 36.
    • Interim Constitution (1994) followed by Final Constitution (1996).
  • Legislation (statutes/acts)
    • National laws by Parliament; provincial laws by provincial legislature; by-laws/regulations by local government.
    • Law-making process: 50% of the legislature must vote in favour; published in the Government Gazette.
  • Common law
    • Developed over time; includes Roman-Dutch and English law; uncodified.
    • Developed via superior court decisions; may incorporate foreign law; can be amended by legislation.
  • Customary law
    • Traditional rules; not codified; passed by oral tradition.
    • Valid if consistent with the Bill of Rights; applied in traditional courts; equal to common law.
  • Customs (trade practices)
    • Unwritten; long-established usage that becomes law through practice.
  • Judicial precedent / Case Law
    • Doctrine of stare decisis; ratio decidendi = legal principle in a decision.
    • Higher court judgments create precedent; lower courts follow in similar cases.

SECONDARY SOURCES OF SOUTH AFRICAN LAW

  • Public International Law
    • Treaties, customary international law, general principles; applies between states.
  • Foreign Law
    • Laws of another country; courts may refer to it when domestic sources are silent.
  • Modern Writing
    • Academic writings and textbooks; courts may consult for guidance.