Chapter 1

Background to Law in South Africa

Outcomes

 What is the law?

 Different types of rules
 The state’s role in law
 A history of SA Law
 Where can you look up SA Law?
 The SA court hierarchy
Glossary

Law : rules - Primary

source : original source
presiding officer : judge
Judicial precedent – court’s binding decisions
Legislation : laws/Acts
Ethics – your conscience
Positive morality – community’s views/opinions
Sanctions – penalties/punishments
Adultery – having affairs outside of marriage
 WHAT IS THE LAW ?

 LETS THINK OF SOME OF THE WAYS IN

WHICH RULES AND LAWS CONTROL YOUR
LIFE

???
WHAT IS THE LAW?

 Laws regulate human behaviour and human conduct;

 These laws are made up of normative systems that prescribe,
regulate – in other words, it tells us what a person may or may
not do in relation to one’s self, in relation to other persons and in
relation to things around us.
 The law is a set of rules made by the state (government) to order
the way in which the people in a society behave.
 Social contract?
 Laws define what you have to do, what you may not do and what
other people are not allowed to do to you.
 What is Law?
 Definition: Law is a set of rules made by the
state (or government) to order the way in
which the people in a society behave.

 Natural persons: human beings

 Juristic persons: companies, clubs,
educational institutions and societies.
 Language in Law
 Legal – mean that it is related to law

 Allowed by law – refers to what the law says one can do.

 Parties – makes reference to the people involved in an

agreement or disagreement

 Valid – means that something is acceptable and based on truth

 Invalid – it is not acceptable or binding. It has no legal force.

 Different type of rules

 1. Legal rules/law – are rules that everyone in society have to obey. If you
break a law, the state can charge you, take you to court and may punish you
with a fine or a prison sentence.

 2. Moral or ethical rules – these rules are more subjective??

 They are personal standards of behaviour as to what is right or wrong based on
people’s belief’s systems, which are usually shaped by religion
 These belief systems are different for different people and groups in the same
society
 These evolve as society evolves.
 Eg. adultery
Legal rules
What is the difference between
the two types of rules?

??
 What is the difference
between the two types of
rules?
 The moral rule is not a law in South Africa
 So that means that the state cannot punish you for contravening a
moral rule
 There is a lot of overlap between moral and legal rules:
 Example the crimes of murder and theft:
 Murder is the unlawful and intentional killing of another
person,
 Theft is taking another person’s property without their
consent.
 Crimes above – legal or illegal?
 Moral or immoral?
 CLASS QUESTION

 Can the law be immoral?

Can the law be immoral?

 Yes
 Example : apartheid
 The law forced people to treat one another unfairly based
on their skin colour
 The Immorality Act 23 of 1957 – whites and non whites
were not allowed to have sexual relationships with one
another.
 There was protests on moral grounds by religious
institutions and Black Sash because this apartheid law did
not respect human rights
The role of the State

 State : Government
 Laws are the rules of the state.
 The state makes all the laws and it makes
sure that people obey them
 So who then in the state is responsible
for these two functions?
 Parliament (Legislature) – is the highest
elected law making body and is the first arm
of the government.
The role of the State

 The Constitution is the is the highest law of the land to which the all the
other laws and conduct must abide by and it reflects public policy

 Video
The role of the state

 Public policy under the Constitution includes constitutional

values which provide an objective legal standard by which to
judge human conduct.
 In Brisley v Drotsky 2002 ZASCA 35, Cameron J
explained that:
 ‘…….in its modern guise public policy is now rooted in
our constitution and the fundamental value it
enshrines. These include human dignity, the
achievement of equality and the advancement of
human rights and freedom, non-racialism and non-
sexism’
The role of the state

 Executive is Cabinet
 Cabinet consists of the president and all other Ministers of the various
state departments and makes policies that put the legislation to make
new laws.
 The Cabinet can be considered as the second arm of the government.

 Judiciary is the 3rd arm of the government, the courts

 The courts then interpret the legislation to decide whether the law was
followed or not in a particular case.
 Numerous different courts and the judges and magistrates
The role of the state

 Organs of the state

 Government has several other departments that enforce the laws
passed by parliament
 The organs of state - OoS give force or power to the law by holding
people responsible when they break the law
 Examples of OoS are police stations, courts, correctional services,

 Question: What happens if I go into a Incredible Connections

and steal an ipad??
A history of SA Law
How it all began

 The indigenous people of South Africa developed their own law to govern
relationships in their society.
 This law is now called Customary law
 Customary law is passed down from generation to generation
 It is an uncodified legal system practised by the indigenous people.
 Where did it come from? From their way of life and natural wants and
needs of the people.
 And this knowledge and cases (manner in which they were resolved) was
remembered by the chieftains and passed down the line to their sons until
it became a custom to resolve a particular issue in a particular manner.
 Customary law is also recognised in the SA constitution.
A HISTORY OF SA LAW

 In 1652, Dutch settlers arrived in the Cape and they brought with them
their law that was practised in Holland.
 This law was called Roman Dutch Law.
 The law of Holland was Roman Law, interpreted and adapted by Dutch
Law Makers.
 Romans had a highly, progressive legal system and the Roman empire
had dominated Europe for many centuries.
 Roman Dutch Law remained the official law of the Cape until the British
took over in the 1800s.
 Once the British took over….
A HISTORY OF SA LAW

 So in the early 1800s the law of the Cape was a mix of Roman Dutch
Law and English Law.
 The SA courts adapted the various rules and principles of these different
legal principles to meet local needs and situations.
 This law, that we inherited from other legal systems, was used and
developed over a period of time and became known as the common
law.
 Our common law is a combination of Roman Dutch Law and English
Law.
 Added to that the common law also includes some important court
decisions.
 Murder, rape, robbery and theft are some examples of common law
crimes.
A HISTORY OF SA LAW
 CUSTOMARY LAW

 COMMON LAW

 STATUTORY LAW (Acts of national and provincial legislatures &

governmental legislatures

 Judicial Precedent

 Foreign law

 Academic Writings

 Trade practices
A HISTORY OF SA LAW

 Apartheid era – parliamentary sovereignty

 Parliaments laws were considered sacrosanct

 And could almost never be challenged in court.

 Post apartheid saw the abolishment of parliamentary

sovereignment

 Now we have constitutional supremacy – which ensures

protection of fundamental human rights and allows us to
challenge the decisions of Parliament and the Executive
Where can SA Law be found: Sources

 The different places where you can find parts

of the SA law is referred to as Sources of the
law.
 Note the difference between sources and
origins

 Sources of law : where you can find the SA

Law
Sources of SA Law
 Legislation
 The Constitution
 The Common Law
 The Customary Law
 Judicial Precedent
 Foreign Law
 International Law
 Trade practices and customs
 Academic textbooks and journals
 Legislation
 Consists mainly of Acts (also called statutes)
 Statutes are laws passed by parliament
 Provincial and local government also have the power
to create laws: provincial statutes, by-laws and
regulations

 By laws: are laws that are specific to a particular

town or area eg. Dogs allowed in a park but only
when walked on a leash.
 Regulations: gives detail to certain rules eg, a
drought situation where there are limits to the
amounts of water consumed per day
 LEGISLATION
 Legislation is the most important source of law
because it overrides any other source of the law
except of course the CONSTITUTION

 The supremacy clause is found in section 2 of the

Constitution
 If 2 sources of law conflict with one another and one is
legislation, you will have to follow the legislation
 If any source of law conflicts with the Constitution,
then the provisions of the Constitution has to be
followed.eg, the death penalty
 Legislation is also more flexible than other sources of
 LEGISLATION
 It is important that the legislature follows the proper law making
process or its decisions will not be binding.
 The most important public document for new legislation is the
Government Gazette.
 This is the official newspaper in which the government publishes
important information like new laws.
 Further, the power of any law-making body to legislate is limited
to a specified area where that body has competence or its
geographic boundaries.
 If a legislature acts beyond its powers, we say it has acted ultra
vires and when this happens then the High Court will declare
that law invalid
 To delegate: to give some one else the authority and
responsibility to do a particular task
 Legislation: The Constitution

 This is the most important source of law in the country

 It is generally known as the highest law in the land which means that no
other piece of law may conflict with the constitution, else that law will
be unconstitutional.
 Example:
 The common law used to define a marriage ‘ as involving a man
and a wife’ The constitution now states that the state may not
discriminate unfairly against anyone because of their sexual
orientation.
 Fourie and another v Minister of Home Affairs & Another -
Decided that our marriage law was unconstitutional because it unfairly
discriminates against gay people who want to marry their partners.
 2. Common Law
 What is the common law of our country?
 Common Law has been developed over a period of time
and is mixture of the different laws from the various
European cultures as well as the SA court decisions.
 There are 3 ways in which the common law can
develop:
 1. Superior Court Decisions helps to change and adapt
the common law
 2. By incorporating foreign law
 3. By passing legislation
 2. Common Law

 Common Law isn’t codified

 These principles are not written down and can

therefore be difficult to ascertain, find or even
interpret unless the courts have given clarity
on them.
 Common Law can be found in academic
textbooks and in court decisions.
 3.CUSTOMARY LAW

 Do you have any special customs or traditions that you follow?

 Customary law is not based on written rules but on oral traditions
or word of mouth.
 Customary law developes from the beliefs and habits of the
community and is carried down from generation to generation.
 Example: payment of lobola (bride price)that a man pays to the
bride’s family.
 Reason behind this is to compensate the bride’s family for the
loss of her contribution to the upkeep of the family home.
 Ito the constitution of SA, customary law is only valid if it is in
line with the B.O.R.
 3.CUSTOMARY LAW

 Find the following case:

 Bhe v Magistrate Khayelitsha 2005 (1) SA 580

(CC)

 What are the facts of the case?

 What is the rule of primogeniture?
 What was the court’s decision on this rule?
 4. JUDICIAL PRECEDENT

 This rule is based on the principle that the courts should decide
similar cases in a similar way for the sake of fairness.
 In this way the courts try to maintain consistency in the law.
 The term stare decisis is used to describe the principle.
 Latin term means: the previous decision stands.
 When confronted with a legal problem we have to know how the
courts dealt with the same problem before.
 What one court does when dealing with a particular situation, will
have to be followed by another court when the same issue
comes before it.
 This means that the system is fair and people who have
committed similar crimes will be dealt with in a similar manner.
 4. JUDICIAL PRECEDENT

 This approach promotes consistency and fairness.

 What is the role of the courts?
 What is a dispute?
 Litigants?
 When a judge in one of the higher courts interprets a law in a
particular way, that judgement may set a precedent.
 In the future that same court or a lower court dealing with a
similar case will have to deal with it in the same way.
 Judicial precedent = judge made law ( and regarded as a source
of law)
 4. JUDICIAL PRECEDENT
 A precedent is an example that others have to follow.
 Judgements refers to the decisions of the courts.
 The South African Law Reports records all judgements in which
important principles are laid down.
 It is not always easy to find the relevant precedent due to hierarchy of
courts.
 You then have to know which parts of the decisions have to be followed.
 The part of a judgement that binds future court decisions is called the
ratio decidendi.
 Ratio decidendi means ‘the reason or rationale for the decision’
 We can describe the ratio decidendi as the legal principle that comes
out of the court’s decisions.
 Case Citations

 S v Grootboom 2001 (1) SA 46 CC

 Smith v Jones 1968 (4) SA 762 C

 5. Foreign Law

 Certain legal issues are new to the SA legal system

 Hence, the constitution allows our courts to consider the

decisions made about similar problems in foreign countries.

 Our law reflects a global village

 Section 39(1)(c) of our constitution indicates that our courts may

consider foreign law in their decision making.