1
FSAL NOTES KEY:
Blue: key concepts & facts
Red: Cases
The Constitution: (Chapter 3: Page 52)
Forms the foundations of South Africa’s legal system.
Must understand what came before the Constitution - a system of white minority rule, state racism and
gender discrimination (apartheid).
The Constitution changed the location of sovereignty [transfers the location of sovereignty from Parliament
(where sovereignty resided under apartheid) to a complex interlinkage of Parliament, the Executive, and
the Judiciary] = “Separation of Power” to prevent the abuse of power.
Constitution is the Supreme Law
The Constitution contains a prescriptive formula which serves as the basis for harmonisation, protection,
and the regulation of interests in society. It is based on the fundamental values of the Constitution: Dignity,
equality, freedom, non-racialism.
Constitution is not only 1. A statement of Supreme Law, but 2. A statement of morality (a moral code).
Carmichele v Minister of Safety and Security 2002 (CC)
Natural law foundation of the new legal order when it held that the Constitution contains an objective,
normative, value system. Confirms SA legal system doesn’t just consist of rules but in addition contains
moral principles, values, and policies.
Constitutional History of SA:
1963 Constitution and later the 1983 Tricameral Constitution. [These earlier Constitutions only
represented the interests of the white minority.]
The first Constitution that became supreme law in South Africa was the 1993 Interim Constitution
[stipulated the 34 principles of the final constitution. The draft of the final Constitution had to be tested
against these 34 principles by the Constitutional Court (CC). = Certification]
The Constitution can only be amended by special majorities (more than 50%) in Parliament – this is known
as entrenchment.
The Constitution as Supreme Law & the Application of the Bill of Rights:
[How the Constitution applies to the population and other laws]
Section 2 = Supremacy Clause [The Bill of Rights declares that ALL are bound by the Constitution: Natural
persons, juristic persons, and government] – “Vertical application of the Constitution”
State (has power) “Vertically” = The power relationship is unbalanced.
“Horizontally” = Deals with the relationship between the subjects of the
state.
Subjects (subjected to the
law)
The Bill of Rights also binds natural persons and juristic persons to the Constitution. Has both vertical AND
horizontal application.
“Juristic persons”: An association of persons that have
Natural persons Natural persons a separate legal/juristic personality or identity (e.g. A
company)
Natural persons Juristic persons
! Horizontal application can be 1. Direct or 2. Indirect:
Direct horizontal application - a natural or juristic person relies directly on one of the rights in the Bill of
Rights to claim protection against another natural or juristic person.
, 2
Indirect horizontal application - a natural or juristic person relies on another part of the law to claim
protection against another natural or juristic person (requires interpretation of the law/legislation).
Constitutional Principles:
[How the Constitution regulates the power of the state]
Two important aspects of the Constitution:
1. The principle of cooperative government
2. The separation of powers
Cooperative government: all the spheres of government (national, provincial, municipal) must work
together (interrelated & mutual relationship) but should still be separate.
Separation of Power:
Legislative Rely on each other to fulfil functions. (Check on one another in terms of fulfilling their
functions) = The principle of checks and balances: one branch checks on the other’s
Executive
exercise of power to make sure that the power between the arms of government is
Judicial
balanced.
SUMMARY:
- Legislative = NA & NCOP (make the laws)
- Executive = President, Dep. President & Ministers (Cabinet) (enforces the laws)
- Judiciary = Courts (interpret laws)
, 3
The Bill of Rights
The application of the Bill of Rights is concerned with 1. Who benefits from the Bill of Rights and 2. Who is
bound by the Bill of Rights?
The Bill of Rights refers to “everyone”, “no one”, or “citizens”.
“EVERYONE” has the right to: When can rights be limited?
Equality The limitation of rights must be reasonable and
Human dignity justifiable, and must consider:
Freedom & Security 1. The nature of the right
Privacy 2. The importance of the purpose of the limitation.
Freedom of religion, belief, opinion 3. The nature and extent of the limitation
Right to assembly, demonstrate, picket, protest 4. The relation between the limitation and purpose.
Freedom of trade, occupation, profession 5. Any less restrictive means to achieve the
Freedom of movement (see Bill of Rights for full list) purpose.
“NO ONE” may be subjected to slavery, servitude, forced labour.
- Also allocates rights to specific right-bearers:
Arrested, detained, and accused persons (Section 35(1)(2) and (3).
Political rights [citizens only] (Section 19)
Section 23(2) allows employee’s certain rights
Section 23(3) allows employers certain rights.
Section 23(4) allows trade unions certain rights
Children’s rights (Section 28)
Jurisprudence (Chapter 24: Page 455)
(The philosophy of law)
NB! Different schools of thought lead to different legal positions on a legal problem.
These school of thought can be combined within a single legal problem. [Jurisprudence informs how cases
are decided]
2 Main Schools of Thought:
1. Legal Positivism: The law is declared by a state/group of humans. [Law is only law if it is validly
made by a state, regardless of if it is moral or not] – Apartheid (courts had no substantive
jurisdiction over the content of legislation, many judges found justification for their decisions in
positivism - the law was validly adopted and is clear so therefore it must be enforced).
2. Natural Law: The authority of legal standards must be supported by moral principles. Values are
objective and are accessible through human reason. The human rights/natural law approach was
used during apartheid to argue that the majority black population had a human right to political
participation.
Other Jurisprudential Perspectives:
Marxist theories of law: Law = ideology legitimized by class power. The law in Marxism = a means of
systematically reproducing the interests of a particular social class (bourgeoisie) and repressing the
underlying economic inequalities.
Legal Formalism: Looks at the way judges come to their decisions.
, 4
Feminist legal theories: Seeks to change women’s status through reforming the law.
Legal Realism: Takes a realistic view of how judges decide cases (at how judge’s decisions are influenced by
psychological and sociological factors).
Critical legal studies: Argues that law is always already a form of politics and that legal decisions = politics
of the judges + the politics in society.
Decoloniality: This approach believes that the legal order is the product of conquest and settler
colonialism.
History and Development of South African Law: (Chapter 2: Page 20)
SA Common Law = Hybrid System SA = has an uncodified legal system (means it is
[Roman Dutch law (civil law) + English law (common not contained within a single collection of laws, it
law) + Customary law (indigenous social practices)] has multiple sources):
SA has a Plural Legal System: Many valid legal 1. Legislation
systems working within the country. 2. Common law
1652: Dutch settled (intro of Roman-Dutch law) 3. Precedent over and above common law
1806: English settled (intro of English law) 4. Customary law
The English changed the legal system.
1. Introduced English Procedural Law. [judges have an active
2. Changed the court system from an inquisitorial system to an adversarial system. role in discovering and
[judges are passive, don’t challenge evidence] evaluating evidence]
3. Judicial precedent: Enacted legislation closely modelled on English equivalents.
Statutes interpreted by English judges using English principles and rules in the courts.
Roman-Dutch law:
Uncodified legal system based on the Western European ius commune – based on the Corpus Iuris Civilus (a
codification of Roman law). [* Corpus Iuris Civilus came before the ius commune!]
Ius commune = Canon law (church) + lex mercatoria (law of merchants – facilitated commercial dealings).
Roman-Dutch law = Roman law + Dutch customary law.
Sources of Roman-Dutch law: [“Institutional Writers”]
[Combined West European common law with Dutch customary law]
Hugo de Groot (Grotius): “Inleidinge tot de Hollandse Rechtsgeleerdheid” (Introduction to Dutch
Jurisprudence). First systematic treatise (textbook) on Roman Dutch law. Was the law that took root as SA
common law when the Dutch colonized the Cape.
{This common law was replaced by English common law when the British colonized the Cape in 1806}.
Living Customary Law:
Indigenous populations still had their own legal systems in place during colonisation. (Legal system based
off social practices).
Customary law was subordinated to the common law of the colonisers [Native Administrations Act of 1927]
“Living Customary Law” = Custom as it exists and is practiced. Not what was written down by colonisers.
Butters v Mncora 2012 (SCA)
Conflicting views by institutional writers on whether a universal partnership can be concluded by two
people who are not married.
FSAL NOTES KEY:
Blue: key concepts & facts
Red: Cases
The Constitution: (Chapter 3: Page 52)
Forms the foundations of South Africa’s legal system.
Must understand what came before the Constitution - a system of white minority rule, state racism and
gender discrimination (apartheid).
The Constitution changed the location of sovereignty [transfers the location of sovereignty from Parliament
(where sovereignty resided under apartheid) to a complex interlinkage of Parliament, the Executive, and
the Judiciary] = “Separation of Power” to prevent the abuse of power.
Constitution is the Supreme Law
The Constitution contains a prescriptive formula which serves as the basis for harmonisation, protection,
and the regulation of interests in society. It is based on the fundamental values of the Constitution: Dignity,
equality, freedom, non-racialism.
Constitution is not only 1. A statement of Supreme Law, but 2. A statement of morality (a moral code).
Carmichele v Minister of Safety and Security 2002 (CC)
Natural law foundation of the new legal order when it held that the Constitution contains an objective,
normative, value system. Confirms SA legal system doesn’t just consist of rules but in addition contains
moral principles, values, and policies.
Constitutional History of SA:
1963 Constitution and later the 1983 Tricameral Constitution. [These earlier Constitutions only
represented the interests of the white minority.]
The first Constitution that became supreme law in South Africa was the 1993 Interim Constitution
[stipulated the 34 principles of the final constitution. The draft of the final Constitution had to be tested
against these 34 principles by the Constitutional Court (CC). = Certification]
The Constitution can only be amended by special majorities (more than 50%) in Parliament – this is known
as entrenchment.
The Constitution as Supreme Law & the Application of the Bill of Rights:
[How the Constitution applies to the population and other laws]
Section 2 = Supremacy Clause [The Bill of Rights declares that ALL are bound by the Constitution: Natural
persons, juristic persons, and government] – “Vertical application of the Constitution”
State (has power) “Vertically” = The power relationship is unbalanced.
“Horizontally” = Deals with the relationship between the subjects of the
state.
Subjects (subjected to the
law)
The Bill of Rights also binds natural persons and juristic persons to the Constitution. Has both vertical AND
horizontal application.
“Juristic persons”: An association of persons that have
Natural persons Natural persons a separate legal/juristic personality or identity (e.g. A
company)
Natural persons Juristic persons
! Horizontal application can be 1. Direct or 2. Indirect:
Direct horizontal application - a natural or juristic person relies directly on one of the rights in the Bill of
Rights to claim protection against another natural or juristic person.
, 2
Indirect horizontal application - a natural or juristic person relies on another part of the law to claim
protection against another natural or juristic person (requires interpretation of the law/legislation).
Constitutional Principles:
[How the Constitution regulates the power of the state]
Two important aspects of the Constitution:
1. The principle of cooperative government
2. The separation of powers
Cooperative government: all the spheres of government (national, provincial, municipal) must work
together (interrelated & mutual relationship) but should still be separate.
Separation of Power:
Legislative Rely on each other to fulfil functions. (Check on one another in terms of fulfilling their
functions) = The principle of checks and balances: one branch checks on the other’s
Executive
exercise of power to make sure that the power between the arms of government is
Judicial
balanced.
SUMMARY:
- Legislative = NA & NCOP (make the laws)
- Executive = President, Dep. President & Ministers (Cabinet) (enforces the laws)
- Judiciary = Courts (interpret laws)
, 3
The Bill of Rights
The application of the Bill of Rights is concerned with 1. Who benefits from the Bill of Rights and 2. Who is
bound by the Bill of Rights?
The Bill of Rights refers to “everyone”, “no one”, or “citizens”.
“EVERYONE” has the right to: When can rights be limited?
Equality The limitation of rights must be reasonable and
Human dignity justifiable, and must consider:
Freedom & Security 1. The nature of the right
Privacy 2. The importance of the purpose of the limitation.
Freedom of religion, belief, opinion 3. The nature and extent of the limitation
Right to assembly, demonstrate, picket, protest 4. The relation between the limitation and purpose.
Freedom of trade, occupation, profession 5. Any less restrictive means to achieve the
Freedom of movement (see Bill of Rights for full list) purpose.
“NO ONE” may be subjected to slavery, servitude, forced labour.
- Also allocates rights to specific right-bearers:
Arrested, detained, and accused persons (Section 35(1)(2) and (3).
Political rights [citizens only] (Section 19)
Section 23(2) allows employee’s certain rights
Section 23(3) allows employers certain rights.
Section 23(4) allows trade unions certain rights
Children’s rights (Section 28)
Jurisprudence (Chapter 24: Page 455)
(The philosophy of law)
NB! Different schools of thought lead to different legal positions on a legal problem.
These school of thought can be combined within a single legal problem. [Jurisprudence informs how cases
are decided]
2 Main Schools of Thought:
1. Legal Positivism: The law is declared by a state/group of humans. [Law is only law if it is validly
made by a state, regardless of if it is moral or not] – Apartheid (courts had no substantive
jurisdiction over the content of legislation, many judges found justification for their decisions in
positivism - the law was validly adopted and is clear so therefore it must be enforced).
2. Natural Law: The authority of legal standards must be supported by moral principles. Values are
objective and are accessible through human reason. The human rights/natural law approach was
used during apartheid to argue that the majority black population had a human right to political
participation.
Other Jurisprudential Perspectives:
Marxist theories of law: Law = ideology legitimized by class power. The law in Marxism = a means of
systematically reproducing the interests of a particular social class (bourgeoisie) and repressing the
underlying economic inequalities.
Legal Formalism: Looks at the way judges come to their decisions.
, 4
Feminist legal theories: Seeks to change women’s status through reforming the law.
Legal Realism: Takes a realistic view of how judges decide cases (at how judge’s decisions are influenced by
psychological and sociological factors).
Critical legal studies: Argues that law is always already a form of politics and that legal decisions = politics
of the judges + the politics in society.
Decoloniality: This approach believes that the legal order is the product of conquest and settler
colonialism.
History and Development of South African Law: (Chapter 2: Page 20)
SA Common Law = Hybrid System SA = has an uncodified legal system (means it is
[Roman Dutch law (civil law) + English law (common not contained within a single collection of laws, it
law) + Customary law (indigenous social practices)] has multiple sources):
SA has a Plural Legal System: Many valid legal 1. Legislation
systems working within the country. 2. Common law
1652: Dutch settled (intro of Roman-Dutch law) 3. Precedent over and above common law
1806: English settled (intro of English law) 4. Customary law
The English changed the legal system.
1. Introduced English Procedural Law. [judges have an active
2. Changed the court system from an inquisitorial system to an adversarial system. role in discovering and
[judges are passive, don’t challenge evidence] evaluating evidence]
3. Judicial precedent: Enacted legislation closely modelled on English equivalents.
Statutes interpreted by English judges using English principles and rules in the courts.
Roman-Dutch law:
Uncodified legal system based on the Western European ius commune – based on the Corpus Iuris Civilus (a
codification of Roman law). [* Corpus Iuris Civilus came before the ius commune!]
Ius commune = Canon law (church) + lex mercatoria (law of merchants – facilitated commercial dealings).
Roman-Dutch law = Roman law + Dutch customary law.
Sources of Roman-Dutch law: [“Institutional Writers”]
[Combined West European common law with Dutch customary law]
Hugo de Groot (Grotius): “Inleidinge tot de Hollandse Rechtsgeleerdheid” (Introduction to Dutch
Jurisprudence). First systematic treatise (textbook) on Roman Dutch law. Was the law that took root as SA
common law when the Dutch colonized the Cape.
{This common law was replaced by English common law when the British colonized the Cape in 1806}.
Living Customary Law:
Indigenous populations still had their own legal systems in place during colonisation. (Legal system based
off social practices).
Customary law was subordinated to the common law of the colonisers [Native Administrations Act of 1927]
“Living Customary Law” = Custom as it exists and is practiced. Not what was written down by colonisers.
Butters v Mncora 2012 (SCA)
Conflicting views by institutional writers on whether a universal partnership can be concluded by two
people who are not married.
