Overview of the South African Legal System
What is Law
The body of rules to regulate human conduct, recognised as binding and enforced
by the state.
> de nes what people can/can’t do
> Guarantees certain freedoms (religion/right to life…)
> Provides for the structure of the state and exercise of power.
> Primary purpose: ensure order and justice in all spheres of the community.
> Failure to comply = sanctions.
Rule of law principal
For laws to be considered "just", must be reasonable, apply consistently to all legal
subjects, apply equally in all circumstances and predictably.
> Cornerstone of constitutional democracy: ensures that no one is above the law +
everyone is guaranteed fundamental human rights.
Moral
Principles of what is right and wrong behaviour; Inherent to people, often subjective
and in uenced by di erent factors such as culture, religion and community.
> Not all laws are moral
Organs of State
South African state's structure, powers, and functions as set out in the Constitution.
South Africa is a constitutional democracy. For gov to run smoothly, separation of
powers needed.
Organs of state:
LEGISLATURE
> Responsible for making laws of the Republic.
> Constitution also recognises legislative structures at the provincial and local
government level (Municipalities and councils.)
EXECUTIVE
fi fl ff
, Responsible for enforcing the laws made by parliament, lead by president and
supported by ministers.
JUDICIARY
Responsible for applying the law and comprised of various courts.
Legal Personality
Natural Persons
All human beings can hold rights and duties from being born alive till death.
(Born as soon as separated from mother + can breath on it’s own)
NASCITURUS FICTION
> Law does not recognise the foetus/embryo as a person.
> If the foetus is subsequently born alive, it will acquire rights to its advantage.
> Ex: If parent dies while pregnant, upon being born child can bene t from estate.
Juristic persons
Non-living associations that are given the capacity to hold rights and duties in terms
of enabling legislation (Companies Act 71 of 2008/Higher Education Act 101 of
1997)
> Juristic persons gain their capacity upon registration.
> Private company: Pty (Ltd)
> Public company: Ltd
> Non-Pro t company: NPC
> Limited Liability company: LLC
> State owned company: SOC
> Juristic persons can own property, institute and defend legal proceedings, have
perpetual succession, enter into contracts and be liable for it’s debts.
Rights v Interests
Rights
Refers to a legal interest protected by the law. A right enables one to claim or
protect something in which one has a legal interest from another person.
Legal Subject
Any person (natural and juristic) that can hold rights and duties in terms of the law.
fi fi
What is Law
The body of rules to regulate human conduct, recognised as binding and enforced
by the state.
> de nes what people can/can’t do
> Guarantees certain freedoms (religion/right to life…)
> Provides for the structure of the state and exercise of power.
> Primary purpose: ensure order and justice in all spheres of the community.
> Failure to comply = sanctions.
Rule of law principal
For laws to be considered "just", must be reasonable, apply consistently to all legal
subjects, apply equally in all circumstances and predictably.
> Cornerstone of constitutional democracy: ensures that no one is above the law +
everyone is guaranteed fundamental human rights.
Moral
Principles of what is right and wrong behaviour; Inherent to people, often subjective
and in uenced by di erent factors such as culture, religion and community.
> Not all laws are moral
Organs of State
South African state's structure, powers, and functions as set out in the Constitution.
South Africa is a constitutional democracy. For gov to run smoothly, separation of
powers needed.
Organs of state:
LEGISLATURE
> Responsible for making laws of the Republic.
> Constitution also recognises legislative structures at the provincial and local
government level (Municipalities and councils.)
EXECUTIVE
fi fl ff
, Responsible for enforcing the laws made by parliament, lead by president and
supported by ministers.
JUDICIARY
Responsible for applying the law and comprised of various courts.
Legal Personality
Natural Persons
All human beings can hold rights and duties from being born alive till death.
(Born as soon as separated from mother + can breath on it’s own)
NASCITURUS FICTION
> Law does not recognise the foetus/embryo as a person.
> If the foetus is subsequently born alive, it will acquire rights to its advantage.
> Ex: If parent dies while pregnant, upon being born child can bene t from estate.
Juristic persons
Non-living associations that are given the capacity to hold rights and duties in terms
of enabling legislation (Companies Act 71 of 2008/Higher Education Act 101 of
1997)
> Juristic persons gain their capacity upon registration.
> Private company: Pty (Ltd)
> Public company: Ltd
> Non-Pro t company: NPC
> Limited Liability company: LLC
> State owned company: SOC
> Juristic persons can own property, institute and defend legal proceedings, have
perpetual succession, enter into contracts and be liable for it’s debts.
Rights v Interests
Rights
Refers to a legal interest protected by the law. A right enables one to claim or
protect something in which one has a legal interest from another person.
Legal Subject
Any person (natural and juristic) that can hold rights and duties in terms of the law.
fi fi
