Introduction to South African Law - Learning Unit 1: Theme 1

WHAT IS THE LAW?

Law is a set of rules made by the state to order how people behave; it stems from the social contract and is reinforced by the state. It sets our rights and obligations by establishing what you have to do, what you may not do, and what others are not allowed to do to you.

WHAT IS THE RELATIONSHIP BETWEEN THE LAW AND MORALS?

There is a connection between law and morals since both are concerned with upholding standards. Morals influence legal rules and moral judgments can be dynamic; some legal rules overlap with moral beliefs, while others do not, and some moral rules have no legal enforcement. There is also a history of immoral legal rules (e.g., during apartheid) that raises questions about whether morals should influence legal decision making.

LAW V ETHICS

Two types of rules exist: legal rules (laws) and moral or ethical rules. Legal rules are binding and enforced by the state; breaking a law leads to punishment. Moral rules are personal standards of right and wrong, shaped by belief systems and religion, vary between people and over time; they are not universally enforceable by the state. Sometimes law and ethics align, but they are not identical.

THE ROLE OF THE STATE

Laws are state rules and the state enforces them through a system of three arms: the Legislature (Parliament) makes legislation; the Executive (Cabinet, including the President and ministers) puts legislation into practice or creates new laws; the Judiciary (courts) interprets laws and determines if they have been followed, with other organs enforcing them.

DIFFERENTIATE BETWEEN NATURAL AND JURISTIC PERSONS AS LEGAL SUBJECTS

A natural person is a human being; a juristic person is a legal entity (e.g., a company) that has its own separate rights, duties, and obligations distinct from its directors, shareholders, and members.

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

Parliamentary sovereignty existed during apartheid, where Parliament’s laws were largely unchallengeable. In the post-apartheid era, constitutional supremacy protects fundamental human rights and the rule of law, allowing laws and actions to be challenged in court when they conflict with the Constitution.

THE HISTORY OF SOUTH AFRICAN LAW

Before 1652 indigenous law governed relationships. From 1652, Dutch Roman-Dutch Law and English law influenced the system. During Apartheid, parliamentary sovereignty limited challenges to laws. From 1994, constitutional supremacy emerged with the Interim Constitution (1994) and the Final Constitution (1996).

SOURCES OF SOUTH AFRICAN LAW

Sources are divided into primary (binding) and secondary (persuasive).

PRIMARY SOURCES OF SOUTH AFRICAN LAW

The Constitution of the Republic of South Africa, 1996 is the supreme law and overrides other sources; the Bill of Rights (Chapter 2) contains human rights and must be interpreted to align with the Constitution; Section 36 allows rights to be limited in certain circumstances. Legislation (statutes/acts) is created by Parliament for national and provincial levels, with by-laws and regulations set by local governments. Common law (including Roman-Dutch and English) is uncodified and develops through cases; Customary law is traditional rules recognized as valid if consistent with the Bill of Rights and applied in traditional courts. Customs are long-established trade practices that are not written. Judicial precedent (case law) is built on stare decisis, with ratio decidendi guiding later similar cases; higher court judgments form binding precedents.

SECONDARY SOURCES OF SOUTH AFRICAN LAW

Public International Law includes treaties, conventions, customary international law, and general principles. Foreign law refers to other countries’ laws and may be consulted when domestic sources are silent. Modern Writing consists of academic texts; courts may consult them as persuasive authority.