PART A:

Understanding the Basics of Legal

Systems and Judicial Structures
WHAT IS LAW?

“Law is invisibly present, everywhere and at all times.”

What does that mean?

• Nasciturus fiction
• Registration of Births and Deaths Act 1992
• Wills Act 1953; Estate Duty Act 1955
• Administration of Estates Act 1965
• ‘De Bloedige Hand Erft Niet’ (Bloody hand does not inherit)
 WHY IS THIS RELEVANT TO YOU?

PRESUMED TO KNOW LAW, EVEN THOUGH IMPOSSIBLE

– BUT MUST KNOW AND UNDERSTAND LAWS THAT
REGULATE YOUR PROFESSION.

• Income Tax Act 58 of 1962

• National Credit Act 34 of 2005
• Consumer Protection Act 68 of 2008
• Promotion of Access to Information Act 2 of 2000
• Protection of Personal Information Act 4 of 2013

3
THE LAW, MORALITY & ETHICS

LAW is NOT just simple rules and regulations.

It includes principles that need to be interpreted and

applied in hard cases.

It often involves difficult questions.

4
 PRACTICAL EXAMPLE
“The tired surgeon”
A 45-year-old patient died during a routine appendectomy due to a surgeon's error. The
surgeon, known for a high success rate, had been working a double shift and was
fatigued at the time of the procedure. They also had recently started a family – they had
a 4-month old child. The surgeon and the patient were from families that knew one
another.
Although the patient's medical records noted a history of complications, this information
was overlooked during the pre-surgery briefing. The hospital had previously received
warnings about overworking their staff, which contributed to the situation. Consequently,
the patient's family filed a lawsuit against the hospital for wrongful death, alleging
negligence and unsafe working conditions.

If you were the family of the patient, what would

you do? Would you sue the doctor? The hospital?
Both? None?
5
 THE LAW, MORALITY & ETHICS

A law is still ‘law’ even if it is morally repugnant:

• Apartheid laws;
• Detention without trial;
• Laws that permit/require discriminatory treatment women and girls.

Many laws are morally ‘neutral’:

• Duty to obey speed limit;

• Instructions of a traffic official;
• To pay taxes etc.

6
 THE LAW, MORALITY & ETHICS

Many laws are based on community conceptions of right and wrong (also known as the ‘boni
mores’ of society):
• Criminalisation of murder and rape;
• Duty to support family;
• Prohibition on marriage between certain relatives;

**NB – you will notice this a lot!

• Public policy (i.e. the legal (moral) convictions of the community) play a significant influence in
certain branches of the law (contract; succession; delict).
• Laws change as community morals/values change.

7
 PRACTICAL EXAMPLE: LAW & PROFESSIONAL ETHICS
“The negligent auditor”
A buyer set his sights on acquiring a promising company. Eager to close the deal, he
consulted with the company's auditor to confirm the financial health of the business.
Without conducting a thorough review and proper due-diligence, the auditor assured the
buyer that the company had been consistently profitable, providing a false sense of
security.
This statement was made without any verification, leaving the buyer unaware of
potential financial pitfalls lurking beneath the surface.
As the transaction proceeded based on the auditor's assurance, the buyer soon
discovered the harsh reality that the company was not profitable and was, in fact,
struggling financially. This revelation placed the buyer at risk of significant financial
losses and prompted considerations of legal action against the auditor for negligent
misrepresentation.

Is this ethical? Should the auditor be held liable for

misconduct? What about their practice license?
8
 CODE OF CONDUCT FOR ALL LEGAL PRACTITIONERS,
CANDIDATE LEGAL PRACTITIONERS AND JURISTIC ENTITIES -
PUBLISHED ITO S36(1) OF THE LEGAL PRACTICE ACT 28 OF 2014

- maintain the highest standards of honesty and integrity;

- honour any undertaking given by them in the course of their business or practice, unless
prohibited by law;
- advise their clients at the earliest possible opportunity on the likely success of such clients' cases
and not generate unnecessary work,
nor involve their clients in unnecessary expense;
- remain reasonably abreast of legal developments
- refrain from doing anything which could or might bring the legal profession into disrepute;
- not overreach a client or overcharge the debtor of a client, or charge a fee which is
unreasonably high, having regard to the circumstances of the matter

Failure to comply with code or Act = misconduct

9
SUMMARY: WHAT IS LAW?

Law is a body of rules governing human behaviour, recognised

and enforced by the state and/or government.
It differs from rules of sport or religion, which the state does not
enforce.
Purpose: Law maintains order, resolves disputes, protects liberties
and rights, and establishes standards.
KEY LEARNING:

Functions of Law
• Law maintains order by preventing anarchy and chaos.
• It resolves disputes by providing mechanisms for dispute resolution.
• It protects liberties and rights by ensuring protection of individual
freedoms.
• It establishes standards by setting behavioural norms and expectations.

11
BRANCHES OF
GOVERNMENT
THE STATE

The state is synonymous with government. It includes the

Legislature, which makes laws (Parliament); the Executive, which
enforces laws (President, ministers, civil service, police); and the
Judiciary, which applies and interprets laws (courts, magistrates,
judges).

13
THREE ELEMENTS/BRANCHES OF THE STATE

1.The Legislature:
• Role: Responsible for making laws.
• Structure: Includes the National Parliament, which is divided into the National Assembly and the
National Council of Provinces.
• Function: Debates and passes legislation, oversees the executive, and represents the electorate.
2.The Executive:
• Role: Responsible for implementing and enforcing laws.
• Components: Comprises the President, Deputy President, Ministers, and the civil service.
• Function: Develops and executes government policies, administers public services, and ensures the
laws passed by the Legislature are implemented.
3.The Judiciary:
• Role: Responsible for interpreting and applying the law.
• Components: Consists of various courts, including the Constitutional Court, Supreme Court of
Appeal, High Courts, and Magistrates' Courts.
• Function: Ensures justice is administered, resolves disputes, and interprets laws in accordance with
the Constitution.
IMPORTANCE OF JUDICIAL
INDEPENDENCE

Judicial independence means that the judiciary must be free from

external pressures. This ensures fair and unbiased administration
of justice.

JUDICIAL ACCOUNTABILITY

Judicial accountability means that judges are accountable for

their actions and decisions. Mechanisms for accountability include
codes of conduct and disciplinary procedures.
KEY LEARNING:

Three Elements of the State MUST KNOW EXAMPLES

• The Legislature: • The Legislature:
• Parliament
• Makes laws • National Assembly
• National Council of Provinces
• The Executive: • The Executive:
• Enforces laws • President
• Ministers
• The Judiciary: • Civil Service
• Police
• Applies and interprets laws • The Judiciary:
• Courts
• Magistrates
• Judges

16
EXAMPLE OF LAW IN ACTION

Scenario:
Legislature enacts a law against drug dealing. The process involves
the police enforcing the law and apprehending the dealer, the
courts trying the dealer to ascertain guilt or innocence, and if
guilty, the court imposing a punishment.

17
THE COURT
STRUCTURE
THE JUDICIAL SYSTEM

Court Structure includes the Constitutional Court, Supreme Court of

Appeal, High Courts, Magistrates' Courts (Regional and District),
and Specialist Courts such as Consumer Courts and Rental Housing
Tribunal. Each court has different roles and jurisdictions.
COURT STRUCTURE

Constitutional Court
(CC)

Supreme Court of Appeal

(SCA)

High Courts Other Specialised Courts:

• National Consumer Tribunal

• Consumer Courts
• Rental Housing Tribunal
Magistrates Courts • Specialist Courts
• Regional Magistrates’ Courts
• District Magistrates’ Courts

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 THE CONSTITUTIONAL COURT

• The Constitutional Court decides constitutional matters and points of law of general public importance.
• Jurisdiction:
• It has nationwide jurisdiction and is based in Johannesburg.
• Composition:
• It comprises 11 judges, with a minimum of 8 judges per case. If the full court sits it is known as a ‘full bench’.
• Cases:
• The Constitutional Court hears cases involving human rights issues, governance issues, and appeals on constitutional
matters. It is known for landmark judgments impacting human rights and democracy.

Most important thing:

• Constitutional Court only hears cases and appeals of a constitutional nature or cases of general public
importance
21
 SUPREME COURT OF APPEAL
Jurisdiction:
• The Supreme Court of Appeal is purely an appeal
court, and the final for non-constitutional matters. It is
located in Bloemfontein.
• The SCA hears appeals from High Court and cannot
appeal further unless a constitutional matter is
involved. Examples include commercial disputes and
significant criminal appeals.
Composition:
• It comprises 23 judges, with cases heard by 3-5
judges. A full bench sits with 5 judges.
Most important thing:
Under no circumstance will the Supreme Court of
Appeal sit as a court of first instance. It is only a
court of appeal.
22
 HIGH COURTS
• High Courts are structured with one for each province, including main and local divisions. The
High Court’s hear any case which Exceeds the jurisdiction of the Magistrates’ Court or when a
person or organisation goes to the court to change a decision of a Magistrates’ Court, which
means appealing a case.
• Cases of the High Court are listened to by one Judge, meaning a person with many years of
practical experience. However, if it is a case on appeal, then at least two Judges must hear the
case.
Jurisdiction:
• They have geographical jurisdiction and cover all types of matters (civil, criminal, constitutional).
There is a High Court for each of the nine provinces.
• Some provinces have more than one High Court, simply because of the size of the province or its
population and the need for more courts in the area.
• They function as trial courts and handle serious cases.
Composition:
They can sit as either a single judge, two-judges, or a full-bench (3 judges). High Courts typically
comprise one judge and two assessors for criminal cases. They handle serious criminal cases (i.e.
murder, rape), significant civil disputes, and appeals from Magistrates' Courts. If they are hearing
appeals from a magistates’ court then at least two judges must be on the bench.
HIGH COURTS
High Courts hear appeals from the magistrates' courts within their area, and act as a court of first
instance for cases outside the jurisdiction of the magistrates' courts.
There are currently 14 Provincial Divisions of the High Court. They are situated in the following areas:

DIVISION COURT AND ITS MAIN SEAT COURT AND ITS LOCAL SEAT(S)
Eastern Cape Eastern Cape High Court, Grahamstown Eastern Cape High Court, Bhisho
Eastern Cape High Court, Mthatha
Eastern Cape High Court, Port Elizabeth (Gqeberha)
Free State Division Free State High Court, Bloemfontein

Gauteng Division North Gauteng High Court, Pretoria South Gauteng High Court, Johannesburg

KwaZulu-Natal Division KwaZulu-Natal High Court, Pietermaritzburg KwaZulu-Natal High Court, Durban
Limpopo Division Limpopo High Court, Polokwane Limpopo High Court, Lephalale
Limpopo High Court, Thohoyandou
Mpumalanga Division Mpumalanga High Court, Mbombela Mpumalanga High Court, Middelburg
Northern Cape Division Northern Cape High Court, Kimberley
North West Division North West High Court, Mahikeng
Western Cape Division Western Cape High Court, Cape Town
 MAGISTRATES' COURTS

Magistrates' Courts are divided into District and Regional courts. They
have geographical jurisdiction and handle limited types of cases.
- District courts cannot hear serious crimes (e.g., murder) and have limited
sentencing powers;
- Regional courts have broader criminal jurisdiction and higher sentencing
limits.

Magistrates' Courts have monetary limits on the claims they can hear.
Examples include minor criminal cases and small civil disputes.
 KEY LEARNING:
Limits on Magistrates’ Courts Jurisdiction
• It has no jurisdiction to hear constitutional matters.
• These courts have no appeal jurisdiction.
MUST KNOW DIFFERENCES BETWEEN REGIONAL
AND DISTRICT COURTS
• Regional Magistrates’ Courts only deal with criminal cases whereas the District Magistrates’ Courts deal with criminal
and civil cases. The Magistrate makes the decisions in a Magistrates’ Court; sometimes with the support of lay
assessors.
• The Regional Magistrates’ Courts deal with more serious cases than the District Magistrates’ Courts - for example,
murder, rape, armed robbery and serious assault.
• Regional Magistrates’ Court can sentence a person who has been found guilty of offences that include murder or rape
to imprisonment for life. The Court can also sentence people who have been found guilty of certain offences such as
armed robbery or stealing a motor vehicle to prison for a period up to 20 years. A Regional Magistrates’ Court can
impose a maximum fine of R300 000.
• District Courts try the less serious cases. They cannot try cases of murder, treason, rape, terrorism, or sabotage. They
can sentence a person to a maximum of 3 years in prison or a maximum fine of R100 000. District Magistrates’ Courts
can hear civil cases when the claims are for less than R100 000. They cannot deal with certain matters, such as:
• Divorces;
• Arguments about a person's will;
• Matters where it is asked if a person is mentally sane or not. 26
 • Specialist Courts handle
specific types of disputes
and have limited jurisdiction.
• Examples include:
• Labour Courts,
• Equality Courts,
• Small Claims Courts,
• Consumer Courts, and
• Rental Housing Tribunal.

SPECIALIST
COURTS
 COURTS FOR CHIEFS AND HEADMEN

• These courts have jurisdiction to hear certain matters at the level of

Magistrates’ Courts. They are designed to deal with customary issues in
terms of customary law.
• An authorised Headman or his deputy may decide cases using indigenous
law and custom (for example, disputes over ownership of cattle or lobolo),
brought before him parties within his area of jurisdiction.
• These courts are commonly known as Chief’s Courts. A person with a claim
has the right to choose whether to bring it to a Chief’s court or in a
Magistrates’ Court. Any person who is not satisfied with the decision in a
Chief's or Headman's court can take their matter to the ordinary courts.
 OTHER SPECIALIST COURTS
• Labour Court
• The Labour Court has the same status as a high court. The Labour Court adjudicates matters relating to
labour disputes. Appeals are made to the Labour Appeal Court.
• These orders may deal with various dispute types including:
• unfair dismissals for misconduct;
• poor performance;
• Illness; and
• operational requirements.
• In addition, the Basic Conditions of Employment Act (BCEA) gives the Labour Court the power to
determine disputes relating to employment contracts.

• Equality Court
• Equality Courts are courts designed to deal with matters covered by the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000, also known as the Equality Act.
• Court with any complaint about:
• Unfair discrimination
• Publication of information that unfairly discriminates
• Harassment
• Hate speech
 CONSUMER COURTS
&
THE NATIONAL CONSUMER TRIBUNAL

• Consumer Courts resolve disputes between consumers and suppliers. They have jurisdiction over consumer protection issues, such as
unfair trade practices.
• The National Consumer Tribunal sits in Centurion in Gauteng and has jurisdiction over the whole country.
• Should be at least one Consumer Court in each province
• The main function of the Tribunal and Consumer Courts is to judge complaints made in terms of:
• National Credit Act (Bus Law 2); and
• Consumer Protection Act (Bus Law 1)
• Parties can also use normal courts (i.e Magistrates Courts, High Courts) but this is quicker and cheaper).
• The Tribunal has the jurisdiction, amongst other things, to
• impose fines;
• order repayment of excess amounts charged to consumers; or
• to suspend a person’s registration.
 RENTAL HOUSING TRIBUNAL

• The Rental Housing Tribunal provides a free service to tenants and landlords. Its main function is to settle
disputes between tenants and landlords.
• The tribunal seeks to:
• Harmonise relationships between landlords and tenants in the rental housing sector.
• Resolve disputes that arise due to unfair practices.
• Inform landlords and tenants about their rights and obligations in terms of the Rental Housing Act.
• Make recommendations to relevant stakeholders.
• Its objectives are:
• To promote stability in the rental housing sector in the Western Cape.
• To create mechanisms to deal with disputes in the rental housing sector.
• To facilitate, investigate, mediate and conduct hearings to resolve disputes.
• To inform landlords and tenants of their rights and obligations should unfair and unlawful practices arise.
• Other types of disputes dealt with by the tribunal include:
• Failure to adequately maintain the rental property.
• Unlawful repossession of property and unlawful evictions.
• Failure to accept notice and to vacate the premises.
• Unlawful notices to vacate.
• Unilateral changes to lease agreements.
• Failure to provide monthly statements or issue receipts.
• Unlawful seizure of possessions.
• Failure to provide municipal services.
COURT STRUCTURE

Constitutional Court
(CC)

Supreme Court of Appeal

(SCA)

High Courts Other Specialised Courts:

• National Consumer Tribunal

• Consumer Courts
• Rental Housing Tribunal
Magistrates Courts • Specialist Courts
• Regional Magistrates’ Courts
• District Magistrates’ Courts

32
COURT STRUCTURE

33
 KEY LEARNING: TERMINOLOGY

the accurate use of terminology for the parties involved in court cases is
crucial for clarity, precision, and proper administration of justice.
Understanding the roles and titles of the parties ensures that legal
documents, proceedings, and communications are correctly interpreted and
executed. This clarity prevents misunderstandings and procedural errors
that could affect the outcome of a case.
Terminology:
1.Plaintiff: The person who initiates a lawsuit in a civil case.
2.Defendant: The person being sued in a civil case.
3.Appellant: The party who appeals a court decision.
4.Respondent: The party against whom an appeal is filed.

34
PRACTICAL EXAMPLE
Sarah files a lawsuit against John for breach of contract in the Western Cape High Court.
• Sarah
• Plaintiff - She brings the lawsuit against John.
• John
• Defendant - He is the party being sued by Sarah.
The lower court finds in favour of John. Sarah decides to appeal the decision to a higher court.
• Sarah
• Appellant - She appeals the lower court's decision, seeking a different outcome.
• John
• Respondent - He responds to Sarah's appeal, defending the lower court's decision.

In this example, Sarah's role changes from plaintiff to appellant when she decides to appeal, and John's role
changes from defendant to respondent. Properly identifying these roles ensures that all parties understand their
responsibilities and positions within the legal process, maintaining the integrity and efficiency of the judicial
system.

35
BINDING SOURCES OF
SOUTH AFRICAN LAW
MUST KNOW THE
DIFFERENT
BINDING SOURCES
OF LAW
• Legislation (Constitution, Acts of
Parliament);
• Roman-Dutch Law (Common Law);
• Judicial Precedent (Case Law);
• African Customary Law;
• Custom; and
• Customary International Law.
LEGISLATION
LEGISLATION

Legislation includes statutes and acts of parliament, which take precedence

except over the Constitution.
Types of legislation include the Constitution, which is the supreme law that
invalidates inconsistent laws, Original Legislation, such as Acts of Parliament
(e.g., Matrimonial Property Act 1984), and Delegated Legislation (e.g.,
Regulations giving effect to Original Legislation)
Practical Example:
Under Roman Dutch Law (a facet of the Common Law), there was marital power
which meant that when a woman married she was reduced to the legal status of
a child (i.e. she could not enter into contracts without her husband’s consent; she
also could not start legal action without husband’s consent (i.e. sue someone).
This was changed in 1984 when parliament passed the Matrimonial Property Act
(course reader) which abolished the marital power.
 KEY LEARNING: CATEGORIES OF LEGISLATION
• The Constitution

• Supreme law of South Africa; Guides all legal frameworks; Ensures consistency with human rights principles
• Original Legislation

• Acts of Parliament
• Nation-wide application
• Examples: Matrimonial Property Act, Companies Act

• Provincial Legislation
• Enacted by provincial legislatures

• Addresses regional matters such as healthcare, housing, and town planning

You need to know the
differences between
• Municipal Legislation
the different categories
• By-laws or Ordinances of legislation!
• Passed by municipal councils
• Regulate local issues, e.g., public safety ordinances

• Delegated Legislation
• Formulated by government departments
• Includes detailed regulations under the authority of enabling acts

• Ensures practical application and compliance with laws

THE CONSTITUTION

The Constitution is the supreme law of South Africa. It provides

the framework for governance and protection of rights.
Courts ensure that all laws are consistent with the Constitution
through interpretation.
 KEY LEARNING: The Constitution

These are the critical elements that you need to

know and understand:

• The Constitution is itself a piece of legislation. The Constitution’s detailed

framework ensures the protection of rights and the balanced distribution of
power across different levels of government, reinforcing South Africa's
commitment to democracy and justice.
• Proper name is Constitution of Republic of South Africa Act 108 of 1996.
• It is the supreme law of South Africa:
• Any law or conduct inconsistent with the constitution is of no force and
effect.
• It is structured into several key components that outline the framework of the
nation's democratic governance and the protection of human rights.

42
 KEY LEARNING: The Constitution
This is how the Constitution is structured:
• Preamble
The Constitution begins with a preamble that sets forth the foundational values and aspirations of the nation, including the pursuit of justice, equality, and the
well-being of all citizens.
• Founding Provisions (Chapter 1)
This chapter establishes the Republic of South Africa as a democratic state founded on values such as human dignity, equality, and the advancement of human
rights and freedoms.
• Bill of Rights (Chapter 2)
The Bill of Rights is a cornerstone of the Constitution, enshrining the rights of all people in South Africa and affirming democratic values of human dignity,
equality, and freedom. It includes civil, political, economic, social, and cultural rights.
• Government Structure
• Parliament (Chapter 4): Comprising the National Assembly and the National Council of Provinces, responsible for legislative functions.
• President and National Executive (Chapter 5): Describes the election, powers, and responsibilities of the President and the national executive.
• Judiciary (Chapter 8): Ensures the independence and impartiality of the courts, including the Constitutional Court, which has the final authority on
constitutional matters.
• Provinces (Chapter 6)
Defines the structure, powers, and functions of provincial governments.
• Local Government (Chapter 7)
Outlines the organisation and administration of municipalities.
• Other Key Components
• Co-operative Government (Chapter 3): Establishes the principles of co-operative governance across national, provincial, and local governments.
• Traditional Leaders (Chapter 12): Recognises the role of traditional leadership according to customary law.
• Amendments (Chapter 13): Provides the procedures for amending the Constitution.

43
 KEY LEARNING: TYPES OF ORIGINAL
LEGISLATION

You need to know the differences between the different forms of

original legislation:

1. Acts of Parliament (also known as ‘statutes’);

2. Provincial Legislation (legislation passed by Provincial Legislatures);
and
3. Municipal Legislation (also referred to as ‘by laws’; legislation
passed by Municipal Councils.)

The three bodies that make original legislation get their power to do so directly
from the Constitution (i.e. in Constitution it says they can make laws; their law
making power is derived directly from the Constitution, NOT another piece of
legislation)
 KEY LEARNING: DELEGATED LEGISLATION
• Definition:
Laws or regulations made by an authority other than Parliament, under the power granted by Parliament.

• Bodies Involved:
Primarily government departments.

• Nature of Delegated Legislation:

Key Learning:
Known as regulations when passed by government departments. Original legislation:
Directly passed by Parliament.
• Source of Authority:
Delegated legislation: Created
Power is delegated by Parliament through specific Acts, not directly from the Constitution. by government departments
under Parliament's authority.
• Example:
Tobacco Products Control Act (original legislation by Parliament).
• Authorises the Department of Health to create detailed regulations.
• Minister of Health passes regulations, e.g., allowing smoking in designated public areas.
INTERPRETATION OF LEGISLATION

Courts play a key role in interpreting legislation to ensure

alignment with the Constitution.
Methods of interpretation include literal, purposive, and
contextual interpretation.
KEY LEARNING: WHY THE DISTINCTION
BETWEEN ORIGINAL AND DELEGATED
LEGISLATION?

Ultra Vires Doctrine (“beyond the powers”)

Ways that legislation can be ‘struck down’ by courts:

• Original Legislation:
• Judicial Review (Constitutional Court) – ‘declared unconstitutional’
• If a law is inconsistent with the Constitution, it may declare that law
invalid and of no force or effect.

• Delegated Legislation:
• Judicial Review; AND
• Ultra Vires
THE COMMON LAW
1. ROMAN-DUTCH LAW
2. ENGLISH LAW
3. JUDICIAL PRECEDENT
 ROMAN-DUTCH LAW

Roman-Dutch Law is the basis of common law in South

Africa. It is applied in the absence of statutory law.

Key Points:
• Core Areas:
It covers essential aspects of civil law, including property, contracts, and family law.
• Judicial Decisions:
Many contemporary court rulings in South Africa are still based on principles derived
from Roman-Dutch law.
• Legal Framework:
Provides a stable and coherent legal framework that supports the country's legal and
judicial systems.
 ENGLISH LAW

Key Points:
English law significantly shapes South Legal Influence: It significantly shapes criminal
law, civil procedure, and evidence in South
Africa's legal system by influencing criminal Africa.
law, civil procedure, and evidence. Its Dual Heritage: Contributes to the unique blend
principles and terminology have profoundly of Roman-Dutch and English law in the country.
impacted court structures and operations. Court System: Influences the structure and
Most importantly, it ensures consistency functioning of South African courts.
and stability in judicial decisions through Legal Terminology: Introduced many legal
the doctrine of precedent, making it terms and concepts used in South African law.
integral to the development and Doctrine of Precedent: Established the practice
application of common law in the country. of using past judicial decisions to guide future
cases, ensuring consistency.
Common Law Development: Plays a key role in
the ongoing development and application of
common law in South Africa.
 JUDICIAL PRECEDENT (CASE LAW)

You HAVE TO KNOW the principle of Stare Decisis!

Stare decisis is a Latin term meaning "to stand by things decided"

Principle: Stare decisis is the principle that a judge or magistrate must follow a
previous decision or ratio decidendi of a higher court when the facts and legal issues
of the cases are similar.
Key Points
• Consistency: Ensures similar cases are decided in the same way.
• Predictability: Provides a reliable legal framework for individuals and businesses.
• Fairness: Promotes equal treatment under the law.
 JUDICIAL PRECEDENT (CASE LAW)
Judicial precedent, also known as case law, is the law created by judges when they apply the
law to the facts of a case before them. This law can derive from various sources, including
legislation, common law, custom, and judicial precedent itself.
Critical Difference: Ratio Decidendi & Obiter Dictum
Ratio Decidendi:
• Definition: The legal principle or reasoning forming the basis of the court's decision on the
main issue.
• Binding Effect: Becomes binding precedent for future cases with similar facts and legal issues.
• Example: Court ruling that it is justifiable to kill in defence of property.
Obiter Dictum:
• Definition: Additional observations or comments made by the judge that are not essential to
the decision.
• Legal Weight: Does not have the same binding effect as the ratio decidendi.
• Example: Suggestion that warning signs should be posted in all official languages if setting up
a defence mechanism.
KEY LEARNING: JUDICIAL PRECEDENT (CASE
LAW)
Purpose:
Judicial Precedent involves case law and past
judgments used as a reference. It ensures consistency
and predictability in law.

Key Terms (must know the difference!):

Stare decisis: The principle that a judge or magistrate must follow a previous
decision or ratio decidendi of a higher court when the facts and legal issues of the
cases are similar.

Ratio Decidendi: Binding and forms part of the law.

Obiter Dictum: Persuasive, not binding, and serves as illustrative remarks.

OTHER BINDING SOURCES
OF LAW IN SOUTH AFRICA
AFRICAN CUSTOMARY LAW
CUSTOM
CUSTOMARY INTERNATIONAL LAW
 AFRICAN CUSTOMARY LAW

African customary law is a vital component of South African law,

reflecting the traditions, customs, and values of various African
communities.
• Recognised by the South African Constitution;
• NOTE: Must align with the Constitution – in particular the Bill of
Rights!
• Operates alongside statutory and common law, ensuring that the legal
system is inclusive and representative of the country's diverse cultural
heritage.
• Plays a crucial role in areas such as family law, inheritance, and land
rights, providing a framework that is familiar and relevant to many (if
not most!) South Africans.
 CUSTOM

Custom includes established practices that are not legislated but accepted. It is accepted by
courts as long as it is not in conflict with statutory law.

Requirements for a Custom to be Legally Binding

•Long-Standing: Must have been practiced for a significant period.
•Certain: Clear and specific in its terms and application.
•Reasonable: Should be fair and just, not arbitrary or oppressive.
•Consistent Practice: Regularly and uniformly observed by the community.
•Not in Conflict with Existing Laws: Must align with statutory and common law, and principles of
justice.
Example:
•A town's custom of neighbours sharing the costs of maintaining a boundary fence may be legally
binding.
CUSTOMARY INTERNATIONAL LAW
Customary International Law includes international norms and treaties. It influences
domestic law, especially in areas such as human rights.

Requirements for Customary International Law to be Legally Binding

•State Practice: Widespread and consistent practices by states over time.
•Opinio Juris: Belief by states that the practice is legally obligatory.
•Duration: Must be practiced over a considerable period.
•Uniformity: Practice should be generally uniform among states.
•Acceptance: Recognised by the international community as binding.
Example:
•The prohibition against torture is considered customary international law because it is
widely practiced by states, believed to be a legal obligation (opinio juris), consistently
followed over time, and accepted by the international community as a binding norm.
LEGAL RIGHTS &
INTERESTS
DIFFERENCE BETWEEN LEGAL RIGHTS & LEGAL
INTERESTS

Legal Right Legal Interest

• Right: A right given and protected by law. • Interest: A concern without legal rights attached.

o Example: A child's right to claim financial o Example: Parental love is an interest, not a
maintenance from a parent, enforceable by legal right.
courts.
o Explanation: While parental love is crucial for a child's
o Explanation: This right is legally protected and can be emotional development, it is considered an interest
enforced through the courts. If a parent fails to provide rather than a legal right. The law does not enforce
financial support, the child can take legal action to parental love in the same way it enforces financial
compel the parent to fulfil their obligation. For example, support. If a parent neglects to show affection, the child
a court may order a parent to pay monthly maintenance cannot seek a legal remedy to compel the parent to
to ensure the child's well-being. provide love and attention.

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KEY LEARNING: RIGHTS & INTERESTS

Key Learning:

Legal Right: Enforceable through legal mechanisms (e.g.,

financial maintenance from a parent).

Mere Interest: A concern valued by individuals but not legally

enforceable (e.g., parental love).

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TYPES OF LEGAL
RIGHTS

• Personal Rights
• Real Rights
• Constitutional Rights
• Intellectual Property Rights
 TYPES OF RIGHTS
Personal Rights
• Definition: Enforceable against specific individuals.
o Example: If X agrees to sell Y a car for R150,000 and delivers the car, X has a personal right to
payment from Y only.
Real Rights
• Definition: Enforceable against anyone, not just specific individuals.
o Example: X owns a car. If A steals it and sells it to B, who then sells it to C, X can reclaim the car
from C because X's ownership (a real right) is enforceable against the world.
Constitutional Rights
• Definition: Contained in the Bill of Rights.
o Examples: Right to life, privacy, freedom of expression. These rights apply to both natural and
juristic persons.
Intellectual Property Rights
• Definition: Unique (sui generis) rights protecting creations of the mind.
o Types:
§ Copyright: Protects literary works, music, art, software.
§ Patent: Protects new inventions (e.g., a shoe with built-in skates).
§ Trademark: Protects logos and symbols (e.g., Nike swoosh, McDonald's arches).

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 TYPES OF RIGHTS – PRACTICAL EXAMPLES

Damage to your car caused by a friend’s negligent driving Personal Right

Nandi’s medical bills resulting from an assault at a nightclub Personal Right

A child’s claim for maintenance from their parent Personal Right

Return of your TV sold without permission by your friend to Personal Right &
pay their gambling debt Real Right

Right to practice your religion freely on campus Constitutional Right

UCT’s right to monetise your academic research Intellectual Property

Right

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 TYPES OF RIGHTS - PRACTICAL SCENARIO

Scenario: Ownership and Sale of a Car

You own a car and leave it with your father while overseas. Your father sells the car to Thabo, who then sells it to
Zanele.

•Your Rights:
• Type: Real Right
• Explanation: You retain a real right in the car. This right is enforceable against anyone, including Thabo and Zanele,
regardless of their involvement in the sale.

•Zanele's Rights:
• Type: Personal Right
• Explanation: Zanele has a personal right to the car based on the transaction with Thabo. However, your real right takes
precedence over Zanele's personal right.

•Thabo's Rights:
• Type: Personal Right
• Explanation: Thabo may have a personal right to claim against your father for selling the car without permission, as Thabo
was misled about the ownership status

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LEGAL PERSONALITY
WHO IS A LEGAL PERSON?
 WHO IS A LEGAL PERSON?
• Legal Persons:
o Natural Persons: Human beings from birth to death.
o Juristic Persons: Entities like companies, universities, and clubs with rights and obligations
separate from their members.
• Nasciturus Fiction: Recognises the rights of a foetus once born, applied retrospectively from the time
it was a foetus (e.g., suing for damages if a pregnant woman is injured).

Relevance of Legal Personality

• Rights and Obligations: All legal persons have these, separate from their members.
o Example: If Jane is injured in a shopping centre owned by XYZ (Pty) Ltd, she sues the company,
not its shareholders, directors, executives or employees.
• Partnerships: Not juristic persons. Partners are sued individually.
o Example: If a shopping centre is owned by Mr Lemon and Mrs Apple, you must sue both
personally.

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LEGAL CAPACITY
***DON’T CONFUSE WITH
PERSONALITY!
 LEGAL CAPACITY
Legal capacity refers to the ability of a person to engage in legal actions (i.e. enter into legally binding
agreements.) It determines whether an individual has the capacity (i.e. competence) to perform acts with legal
consequences, such as signing contracts, suing or being sued, and committing legal acts.

Factors Affecting Legal Capacity:

1.Age: Critical to Know the

1. Minors (under the age of 18) generally have limited legal capacity: Exceptions!!
§ 0-7: No capacity.
§ 7-14: Presumed to lack capacity (rebuttable).
§ 14+: Normal capacity unless otherwise impaired. **Fraudulent Minor -
2. Adults (18 and older) are presumed to have full legal capacity unless otherwise impaired. claim in DELICT
2.Mental Health:
1. Individuals with mental health conditions that impair their ability to understand the consequences of their actions may
have restricted legal capacity.
3.Marital Status:
1. Married persons may have certain legal capacities affected by their marital regime (e.g., community of property vs.
antenuptial contracts).
4.Insolvency:
1. Insolvent individuals may have restrictions on their legal capacity to manage their own finances.

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 LEGAL CAPACITY – FRAUDULENT MINOR
In South African law, the fraudulent minor concept addresses situations where a minor, who
generally has limited legal capacity, misrepresents their age or capacity to contract and causes
harm or loss to another party. While minors typically cannot be held to their contractual
commitments due to their limited capacity, they can still be held liable for wrongful acts (delicts)
they commit.
Example: Consider Thandi, a 16-year-old who wants to buy a smartphone. Knowing she has
limited legal capacity to enter into contracts, Thandi falsely claims to be 18 years old (by using a
cousin’s ID) and successfully signs a purchase agreement with a store. Later, she refuses to pay for
the phone, and the store discovers her true age.

Contractual Liability:
• Scenario: The store tries to enforce the purchase contract against Thandi.
• Outcome: Since Thandi is a minor, the contract is voidable. Her limited legal capacity
protects her from being held liable under the contract. The store cannot enforce the
payment or any terms of the contract.
Delictual Liability:
• Scenario: Thandi accidentally damages another customer's laptop while in the store.
• Outcome: In this case, Thandi can be held liable under the law of delict. Even though she is
a minor, she is responsible for wrongful acts that cause harm or damage. The other
customer can claim damages from Thandi for the repair or replacement of the laptop.

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SUMMARY

Key Learning:
• Legal Rights: Protected and enforceable by law. Must be able to distinguish
between the various types of
• Interests: Non-enforceable concerns.
rights; and DO NOT CONFUSE the
• Types of Rights: Personal, Real, Constitutional, concepts of PERSONALITY and
Intellectual Property. CAPACITY!
• Legal Personality: Distinction between natural
and juristic persons, affecting rights and
obligations. **We will address contractual
• Capacity: Legal ability to act, influenced by age, capacity later in the course.
mental state, and other factors.

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BRANCHES OF LAW
NATIONAL &
INTERNATIONAL
LAW
 **NB – NOT foreign case law

INTERNATIONAL LAW
International law governs the relationships between states, not individuals. It regulates issues such as state
boundaries, airspace, diplomatic treatment, and extradition.

There are two main sources of international law:

• Customary International Law: Similar to customary law within a country, these are practices that states have
followed over time and have become obligatory.

o Example: It is customary international law that one state cannot invade another independent state without
justification.

• Treaties and Conventions: These are formal agreements between states. South Africa is a signatory to many
such treaties, like the United Nations Convention and the Law of the Sea Convention.

Key Learning:

Even if a country is not a signatory to a convention, it can still be bound by the principles of customary
international law.

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 NATIONAL LAW

Law of
Obligations
Constitutional
Law
Law of
Succession

Administrative
Public Law Private Law Property Law
Law

Law of Persons
and Family
Criminal Law

Mercantile Law

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 PUBLIC LAW
Public law governs the relationship between the state and its citizens,
and the organization and function of government entities. It includes:

Constitutional • Constitutional Law: Deals with the structure and functions of

government and the rights of individuals.
Law
• Administrative Law: Governs the activities of administrative
agencies of government.

Administrative • Criminal Law: Concerns crimes and their punishments. Crimes

Public Law are acts specifically prohibited by law and prosecuted by the
Law state.

o Example: In a criminal case where Jones is accused of theft,

the case will be cited as S v Jones.

Criminal Law

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 PRIVATE LAW
Private law regulates the relationships between Law of
individuals. It includes: Obligations

• Law of Obligations: Divided into delict, contract,

and unjustified enrichment. Law of
Succession
• Law of Succession: Governs the distribution of a
person's estate after death.
Private Law Property Law
• Property Law: Concerns ownership and other
rights over property.
Law of Persons
• Law of Persons and Family Law: Deals with
family-related issues and legal status of and Family
individuals.

• Mercantile Law: Includes company law, Mercantile Law

insolvency, secured transactions, banking, and
insurance.
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 PRIVATE LAW - LAW OF OBLIGATIONS

Contract

Private Law Law of Obligations Delict

Unjustified
Enrichment

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 LAW OF CONTRACT

Contracts are agreements between parties that create mutual obligations. Breach of contract occurs
when one party fails to fulfil their obligations under the agreement.

• Example: If Jones agrees to buy Brown's car for R100,000 but fails to pay, Brown can sue Jones
for breach of contract.

**This is the focus of this course

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 LAW OF DELICT

A delict is a wrongful and culpable act that causes harm to another person or their property. The elements of delict are:

• Wrongfulness: The act violates a legal duty not to harm others.

• Culpability (or Fault): The act was done intentionally or negligently.

• Intention
• 3 Forms of Dolus: directus, indirectus, eventualis

• Negligence
• ‘Reasonable Person’ standard

• Causation: There must be a direct link between the act and the harm caused.

• Harm: Actual loss or damage must be proven.

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KEY LEARNING:
TEST FOR NEGLIGENCE – REASONABLE PERSON STANDARD

1. Would a reasonable person in the position of the defendant have

foreseen the possibility that their conduct might harm another?
2. Would a reasonable person in the position of the defendant have taken
steps to guard against such harm?
3. Did the defendant fail to take such steps?

In order for the court to find the defendant negligent all three
components must be satisfied.

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 PRACTICAL EXAMPLE - DELICT
Scenario:
Emily slips and falls at a supermarket because the floor was wet and no warning signs
were posted. She sues the supermarket for the injuries sustained.
Questions:
1.Who are the parties in this delictual action?
1. Plaintiff: Emily
2. Defendant: The supermarket
2.What elements must Emily prove to succeed in her claim?
1. Wrongfulness: The supermarket had a duty to keep the floor safe and failed.
2. Culpability: The supermarket was negligent by not posting warning signs.
3. Causation: The wet floor directly caused Emily's fall.
4. Harm: Emily suffered injuries (loss).
3.Is this an example of negligence or intent?
1. Negligence, because the supermarket did not foresee the harm but a
reasonable person would have.

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 UNJUSTIFIED ENRICHMENT

Unjustified enrichment occurs when one party is unjustly enriched at the expense of another.

• Example: If you mistakenly pay someone R200 when you only owed them R180, you can claim the
excess amount back.

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 CRIMINAL LAW / CIVIL LAW

The law can also be divided into criminal and civil law:

Criminal Law

Criminal law deals with acts that are offenses against the state or public. The state prosecutes the
accused, and if found guilty, the accused may face imprisonment or fines.

Civil Law

Civil law deals with disputes between individuals or entities. It includes contract disputes, delict (tort)
cases, and matters of unjustified enrichment. The burden of proof in civil cases is on the balance of
probabilities.

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 KEY LEARNING: CIVIL V CRIMINAL LAW
Understanding the distinctions between civil and criminal law is essential
for grasping how the legal system operates in South Africa.

1. Case Citation and Parties Involved

•Criminal Cases
• Case Citation: Cited as S v Jones 2016 (1) SA 798 (GP).
• Parties: The state prosecutes the accused.
• Example: S v Jones indicates that the State is prosecuting Jones for a criminal act.
•Civil Cases
• Case Citation: Cited as Brown v Jones 2016 (1) SA 798 (GP).
• Parties: The plaintiff sues the defendant. In appeals, they are known as the
appellant and the respondent.
• Example: Brown v Jones indicates that Brown is suing Jones in a civil matter.
• Suing the Government: For civil matters involving the government, the citation
would be X v President of the Republic of South Africa 2016 (1) SA 798 (GP) or X v
Minister of Health 2016 (1) SA 798 (GP).
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 KEY LEARNING: CIVIL V CRIMINAL LAW

2. Outcomes and Terminology

•Criminal Cases
• Outcome: If the court finds the accused committed the crime, the accused is
found guilty.
• Punishment: The guilty party may be sentenced to jail, pay a fine to the
state, or both. Crimes are considered offenses against the state, and the
victim does not receive compensation directly from the criminal proceedings.
•Civil Cases
• Outcome: The court may find in favour of the plaintiff or against the
defendant.
• Compensation: If the plaintiff wins, the defendant may have to pay
damages or perform a specific act for the plaintiff.

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 KEY LEARNING: CIVIL V CRIMINAL LAW

3. Burden of Proof
•Criminal Cases
• Burden of Proof: The prosecution must prove the accused's guilt beyond a
reasonable doubt.
•Civil Cases
• Burden of Proof: The plaintiff must prove their case on a balance of
probabilities.

4. Financial Liability in Government Cases

•Nomino Offici: When suing a government minister in a civil case, the minister
personally does not pay any damages awarded. The liability falls on the
government department.

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 TEST YOUR KNOWLEDGE
• Fictional Example for Testing Knowledge

John Smith is accused of stealing a car, and the state

prosecutes him. Separately, Jane Brown sues John Smith for
failing to pay back a loan she gave him. 3. What will be the outcome if John Smith is found
responsible in each case?
1. What are the citations for these cases?
o Criminal Case: John Smith may be found guilty
o Criminal Case: S v Smith 2024 (1) SA 798 (GP) and sentenced to jail, fined, or both.

o Civil Case: Brown v Smith 2024 (1) SA 799 (GP) o Civil Case: The court may find in favour of Jane
Brown, requiring John Smith to repay the loan or
2. Who are the parties involved in each case? pay damages.

o Criminal Case: The State (prosecutor) and John Smith 4. What is the burden of proof required in each case?
(accused)
o Criminal Case: Beyond a reasonable doubt.
o Civil Case: Jane Brown (plaintiff) and John Smith
(defendant) o Civil Case: Balance of probabilities.

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