Law Notes

Introduction to South African Law: Fresh Perspectives - 3rd Edition

Authors and Publication Information

Editors: L Meintjes-Van der Walt
Authors: A Barratt, H van Coller, A Govindjee, S de Freitas, PF Iya, H Kruuse, K Pillay, M du Preez, PP Singh, L Tshingana, L Meintjes-Van der Walt
Title: Introduction to South African Law Fresh Perspectives 3rd Edition
Publisher: Pearson South Africa (Pty) Ltd
Edition: Third Edition (2019)
ISBN (print): 978-1-776-10223-5
ISBN (epdf): 978-1-485-70211-5

The book is divided into five sections, each exploring a different aspect of South African law. The sections are structured metaphorically around the image of a tree, with the roots, trunk, branches, and fruit representing different elements of the legal system.

Section 1: The Roots of Our Law

Chapter 1: What is the Law? (Lirieka Meintjes-Van der Walt)
Chapter 2: History and Development of South African Law (Amanda Barratt)

Section 2: The Trunk That Supports Our Law

Chapter 3: The Constitution (Shaun de Freitas)
Chapter 4: Legislation (Luzuko Tshingana)
Chapter 5: Legal Ethics and Professional Responsibility (Helen Kruuse)
Chapter 6: Case Law (Monique du Preez)
Chapter 7: Common Law (Amanda Barratt)
Chapter 8: Customary Law (Amanda Barratt and Philip Francis Iya)
Chapter 9: Secondary Sources (Karmini Pillay)
Chapter 10: The Court Structure (Monique du Preez)
Chapter 11: The Legal Profession (Monique du Preez)

Section 3: The Branches of Our Law

Chapter 12: Constitutional Law and Human Rights (Avinash Govindjee and Shaun de Freitas)
Chapter 13: Administrative Law (Helena van Coller)
Chapter 14: Criminal Law (Priya P. Singh)
Chapter 15: Law of Persons, Family Law, and Law of Succession (Priya P. Singh)
Chapter 16: Law of Property and Law of Intellectual Property (Priya P. Singh)
Chapter 17: Law of Obligations (Priya P. Singh)
Chapter 18: Commercial Law (Priya P. Singh)
Chapter 19: Law of Evidence (Lirieka Meintjes-Van der Walt)
Chapter 20: Criminal Procedure (Lirieka Meintjes-Van der Walt)
Chapter 21: Civil Procedure (Lirieka Meintjes-Van der Walt)

Section 4: The International Branch

Chapter 22: Public and Private International Law (Shaun de Freitas)

Section 5: A Changing Tree

Chapter 23: AIDS and the Law (Priya P. Singh)
Chapter 24: Thinking About the Law: Jurisprudence (Lirieka Meintjes-Van der Walt)

About the Authors

The book is authored by a team of legal experts from various South African universities:

Amanda Barratt: Acting Head of the Department of Private Law at the University of Cape Town (UCT).
Helena van Coller: Associate professor in the Faculty of Law at Rhodes University.
Shaun de Freitas: Professor in Public Law at the Faculty of Law, University of the Free State, and adjunct professor at the University of Notre Dame Law School, Sydney, Australia.
Avinash Govindjee: Professor of Law and Executive Dean of the Faculty of Law, Nelson Mandela University.
Philip F. Iya: Professor of African and Comparative Law at the Indigenous Knowledge System (IKS) Centre, North West University (NWU).
Helen Kruuse: Senior lecturer in the Faculty of Law at Rhodes University and an attorney of the High Court of South Africa.
Lirieka Meintjes-van der Walt: Adjunct professor of Law at the University of Fort Hare.
Karmini Pillay: Academic at the School of Law, University of Witwatersrand.
Monique du Preez: Director, Knowledge Management at DLA Piper South Africa and senior lecturer at the University of Johannesburg.
Priya P. Singh: Lecturer in the School of Law at the University of KwaZulu-Natal.
Luzuko Tshingana: Law lecturer at the University of Fort Hare (UFH).

Section 1: The Roots of Our Law

Overview

This section explores the foundational aspects of South African law, examining its historical influences and the characteristics of a good legal system. It covers the influence of Roman and Roman-Dutch law, as well as English law, on the South African legal system.

Key Concepts

Characteristics of a Good Legal System: This chapter discusses the essential attributes of a functional and just legal system.
Influence of Roman and Roman-Dutch Law: It details how Roman legal principles were adopted and adapted in Holland, eventually making their way to South Africa.
Influence of English Law: It explains how English law became integrated into South Africa's official written law.
Unwritten Indigenous Laws: The section acknowledges the existence of pre-colonial legal systems among the indigenous people of South Africa.

Tree Analogy

The law is compared to a tree with roots, a trunk, and branches:

Roots: Represent the historical foundations and influences, including Roman, Roman-Dutch, and English law, as well as indigenous legal systems.
Trunk: Symbolizes the sources of law that support the legal system, such as the Constitution, legislation, case law, and common law.
Branches: Represent the different areas or divisions of law, such as constitutional law, criminal law, and commercial law.
Flowers and Fruit: Represent the outcomes and products of the legal system.

Chapter 1: What is the Law?

Main Ideas

Law is Made by the People, for the People: In a democracy, laws are created by elected representatives to address society's needs and problems.
Functions of the Law: The law serves to combine and balance freedom and order in society.
How a Legal System Functions: The legal system maintains and enforces the law through various institutions and processes.
Factors that Determine Effectiveness: The chapter also covers what makes a law successful, such as public understanding and acceptance.
Nature of Law: The chapter explores different theories about the nature of law, including natural law and positivist theories.

Main Skills

Understanding the functions of the law.
Recognizing the law's pervasiveness in everyday life.
Describing and contrasting natural law and positivist theories.
Understanding the origins of and need for laws.
Explaining factors that could prevent effective dispute resolution.

Key Points

The Law is Made by the People, for the People
- As societies developed, rules were needed to guide relationships between individuals.
- Early rules were based on customs and spiritual beliefs, enforced by powerful individuals.
- As societies became more complex, formal laws became necessary to limit behavior that infringed on others' freedom.
- In a democracy, elected representatives create laws to meet societal needs and solve problems.
- The law aims to preserve and develop the interests of individuals and the community.
- The law applies to everyone equally; no one is exempt.
Functions of the Law
- The basic task of the law is to combine and balance freedom and order.
- The seven main functions of the law are:
  1. Setting pre-existing, impartial rules to judge and settle conflicts.
  2. Protecting the rights and freedoms of the individual.
  3. Facilitating change.
  4. Protecting society by defining orderly conduct.
  5. Providing a mechanism to legitimize actions by the state.
  6. Protecting and preserving the legal system.
  7. Providing institutions and procedures to settle disputes.
Apartheid as a Violation of Rights
- The South African legal system enforced apartheid from 1948 to 1994, classifying people into racial groups and setting out their rights.
- Key apartheid laws included:
  - The Population Registration Act 30 of 1950: Required citizens to be registered as black, white, or colored.
  - The Group Areas Act 41 of 1950: Mandated segregated residential areas for different population groups.
  - The Extension of University Education Act 45 of 1959: Segregated education for different population groups.
  - The Black Homeland Citizenship Act 26 of 1970: Allocated separate homelands to different indigenous groups.
- Today, individual rights and freedoms are entrenched in the Constitution, the supreme law of the country.
Categories of Human Rights in the Bill of Rights
- Personal liberty and equality (sections 9, 10, 11, 12, 13, 14, 15, and 21)
- Economic and social progress (sections 22, 24, 25, 26, 27, 28, and 29)
- Administration of justice (sections 12, 32, 33, 34, and 35)
- Freedom of expression (sections 15, 16, 17, 30, 31, and 32)
- Political freedom (sections 7, 19, and 20)
Facilitating Change
- The law must adapt to accommodate changes in values, attitudes, needs, technology, science, and medicine.
- Laws must be amended or replaced when outdated or contradictory.
Regulation of Social Relations
- Laws regulate social relations, such as marriage, partnerships, custody of children, and labor relations.
- The law also determines when a person can be held responsible for crimes and sets age restrictions for certain actions.
Legitimizing Actions of the State
- The law orders the ways in which the state should function.
- Public law and procedural law play an important role in founding legitimacy for state actions and legal procedures.
Protecting and Preserving the Legal System
- The Constitution is the supreme law of the land and regulates the entire legal system.
- Respect for the law is guaranteed by criminalizing contempt of court and perjury.
Providing Institutions and Procedures to Settle Disputes
- The law establishes institutions, people, procedures, and processes to settle conflicts between individuals, between individuals and the state, and between states.
How a Legal System Functions
- The legal system consists of people and institutions responsible for law-making, legal interpretation, adjudication, law enforcement, legal administration, and giving legal advice and representation.
Law-Making
- The legislative organs are Parliament, the provincial legislatures, and the municipal councils.
- The Constitution specifies how legislatures should conduct law-making processes.
- The Constitutional Court has a testing right for legislation.
Interpretation and Adjudication
- The courts, judges, and magistrates are responsible for adjudicating and interpreting the law.
- Courts are independent and subject only to the Constitution and the law.
- Section 39(2) of the Constitution grants law-making powers to every court.
Law Enforcement
- The South African Police and other law enforcement agencies, such as the Hawks, enforce the law.
Legal Administration
- The Constitution determines how the government and government administration should operate.
Legal Advice and Representation
- The legal profession, consisting of attorneys and advocates, provides legal advice.
- South Africa has a system of legal aid to assist financially needy clients.
Factors Determining the Effectiveness of the Law
- Public awareness, understanding, and acceptance of the law
- Enforcement of the law
- Consistency in the law
- Clarity in the drafting of the law
- Changes and stability in the law
Public Awareness, Understanding, and Acceptance of the Law
- It is important for society to understand how the law regulates aspects of life.
- For the law to be effective, the majority of citizens should accept it.
Enforcement of the Law
- Law that is not enforced will not operate effectively.
- Factors complicating law enforcement include:
  - Difficulty in detecting breaches of the law
  - Violations not reported by the public
  - Difficulty in gathering evidence of the crime
  - Inappropriate sanctions or punishments
  - Long delays between the dispute arising and the trial conclusion
Clarity in Drafting the Law
- If the law is not drafted clearly, it cannot be used or applied effectively.
Consistency in the Law
- Lawmakers must ensure that laws do not contradict each other and maintain a connection between the severity of a breach and the sanction imposed.
Changes and Stability in the Law
- There is tension between the need for law to be stable and the requirement for it to be responsive to new demands.
- Legal systems must have an effective method of changing and amending laws.
The Nature of Law
- The chapter explores the nature of law by addressing questions such as whether unjust laws are truly laws, whether one can disobey unjust laws, and whether individuals can be excused for committing atrocious deeds in the name of the law.
- Natural law and positivism are important ideologies that form the foundation of the law.
What is Natural Law?
- Natural law theory regards natural law as fundamental and superior to other theories of law.
- Natural law consists of universal and eternal norms derived from humankind’s reason or from a God figure.
- Principles of natural law apply to everyone, for all time and in all circumstances.
- Man-made laws are just and authoritative only if they accord with principles of natural law.
- Natural law acts as a guide when written law is unclear.
What is Positive Law?
- Positivists rely on written law as the only authority.
- In a legal dispute, it does not matter if an act is right or wrong; what matters is whether the law says it is right or wrong.
- Legal authority must come from written law, not from other sources such as religion, morality, philosophy, or science.
- Positivists view the law as a product of the state.
Thinking Critically About Natural Law and Positive Law Theories
- Legal studies require ongoing evaluation:
  - Must the law always be followed as it is written?
  - Must natural law be applied to assist where written law is vague?
  - Must the law be in line with fundamental natural law principles?
  - What are these natural law principles?

Chapter Summary

A state creates laws to maintain order in society.
Legal rules are made by the people, for the people.
Legal rules develop and change in response to individual, social, and economic problems and society’s needs.
The purpose of the law is to preserve and develop the interests of individuals and the community.
The law provides a framework for orderly conduct.
The law orders the way in which the state must function.
The law serves to protect and preserve the legal system.
The legal system provides institutions and procedures to settle disputes.
The law balances the rights and freedoms of individuals.
The law regulates the way we live together.
The law facilitates change.
The law defines relationships and creates authority.
The law provides for and controls accountable administrative action.

Review Your Understanding (Exercises)

The end of this transcript provides several exercise questions for the readers:

Provide examples of laws resulting from the activity of people.
Identify factors that prevent legal systems from efficient dispute resolution.
Outline how an unemployed single mother can sue for taxi accident injuries without affording a lawyer.
As a natural law supporter, decide the fairness of fining Mr. Peterson and giving justification.
Analyze a situation of fining someone parked longer than allowed due to municipal workers blocking their car where the person could not move their car.
Collect and discuss articles illustrating a specific function of law or why a given law is not working effectively.
Prepare a paper on examples where natural law norms have been ignored.
Propose rules to make a street safer for children on bikes, giving reasons for each rule's efficacy.