Foundations of South African Law
What is Law :
1.1 The need for rules and sovereignty :
Importance of rules in society :
→ Humans living together in groups [a society] require rules to give them order and
security
WHY : If everyone could do what they wanted with no constraint there would be no
order and security.
State of nature :
• In a state of nature [a state without a government or established authority to enforce
rules ] there is only the clash of individual wills/ideas and those with greater
influence and power will impose their wills onto others which creates chaos
Origin and enforcement of rules :
• The rules of a society are made and enforced by the individual/s in the group who
have been given power by the group, or who have taken power in the group.
Sovereignty :
• Therefore these powerful individual/s in the group are sovereign [supreme authority
over individuals and the power to make laws], because they have the authority to both
make and enforce the rules.
Example : a king in a monarchy has sovereignty, because he can make and enforce
laws
→ the kings word is what the law is
1.2 Authority, Law, consequences :
Obedience to authority :
• with authority to make laws comes a general obedience [an implication of
authority] or expectation to obey to the rules that are made and enforced
Purpose of rules :
• law regulates the relationship between the individual and the community.
- By either constraining individual freedom or granting individual freedom all to
benefit the community at large to maintain fairness
1
,Legitimate exercises of freedom :
• internal freedom : the freedom of our minds and no one has authority over what we
think
• external freedom : the freedom that we exercise in relation to others or with others
→ therefore there are rules on how we can legitimately or legally relate to and with
others
→ the major purpose of the law is to regulate the relationship between one and the
community
Consequences/sanctions :
• when the rules aren't followed or breached there are legal consequences called
sanctions
• to sanction one's behaviour means you prohibit them from doing something
unlawful
• the enforcement of laws is through sanctions
Example : the sanction for theft is a prison sentence or a fine
→ Sanctions will always be negative
1.3 definition of law
Rudimentary definition of law :
• a body of rules of human conduct, prescribed, recognised and enforced by a
controlling authority (a sovereign) through the application of sanctions
• the basic root of a democracy is that the people make the law by proxy through the
people they vote for and then therefore are obliged to follow the law
Territory and the law
• law is territorially bound because the people to which the law applies to belong to a
certain terrain
- The law is always localised in a place and in a time
- The location to which the law applies is called a territory
• Law has territorial jurisdiction meaning the law applies to the geographical area
which is defined by the borders of the country [ law is applied within defined
borders]
- Law is already a spatial construct as it applies to a particular space to a
particular group of people
Equality before the law :
Equality before the law : when everyone in the territory including the sovereign
obeys the law
2
, - If the sovereign does not obey the law and he above the law then no one is
equal before the law
- This is the first principle of the rule of law
Purpose and aims :
• maintains peace and order are the laws primarily aims
- Peace and order are only maintained if the rights of the individual against the
rights of the community are balanced
- Law plays a balancing act between the interest of the two
Functions of the Law :
The seven main functions of the law :
→ applies to democratic law
1. Setting pre-existing, impartial rules, based on criteria that can be used to judge
and settle conflicts.
2. Facilitating or making change possible.
→ pre-existing impartial rules
3. Protecting the rights and freedoms of the individual and groups.
→ compromising function
4. Protecting society by serving as a framework defining orderly conduct.
→ protection function
5. Protecting and preserving the legal system.
6. Providing a mechanism to legitimise actions by the state.
7. Providing institutions and procedures to settle disputes
→ where the court comes in
1. Setting pre-existing, impartial rules, based on criteria that can be used to
judge and settle conflicts.
● The law should be easily determined by the ordinary individual and widely
published
● “Pre-existing”: Law cannot have retrospective effect, meaning into cannot
regulate conduct in the past that wasn't regulated in the present [law cannot go
backwards]
● “Impartial” :Law cannot benefit one part of the population and oppress
another part of the population
→ there cannot be arbitrary laws
Arbitrary laws : laws made on a personal whim
3
, ● “based on criteria that can be used to judge and settle conflicts” : Laws must
be made so that they can judge conflict so that a judge can decide who is on the
right side of the law and how the conflict can be settled
2. protecting the rights and freedoms of the individual
● Good law gives and takes
● Constitutional democracy : the law gives us constitutional rights and these are
the freedoms we can exercise under the law and are then protected by the law
● The freedom and rights are in the bill of rights
● The freedom and rights are protected by giving sanctions for the breach of
rights or freedom
● During apartheid parliament made the law and was above the law whereas
today the constitution is supreme and is the highest law. The apartheid law was
used to violate people's freedom whereas today it protects people freedom
● Rights can be validly limited or constrained. However the limitations can never
be arbitrary and must the law that limits a right must apply to all
3. facilitating change
● The law must be able to accommodate change in the circumstances of society
Example : during covid many laws were changed and added
● This change takes place through new enactments
● To appeal legislation means to withdraw it and make it no longer valid
[declaration of invalidity of laws by courts]
● The law is made responsible for radical change or effecting large scale social
change which is called transformative constitutionalism which is the premise
of constitutionalism in south africa
Transformative constitutionalism : a large scale social change through nonviolent
political processes grounded in law
→ example : the law must lead in bringing about the society we would like after
apartheid
4. Protecting society by serving as a framework defining orderly conduct
● law must define the status, functions and powers of individuals and
government as well as social and administrative organs
● law regulates relations
- between individuals (eg parent and child)
- between individuals and institutions (eg a company and its shareholders)
4
What is Law :
1.1 The need for rules and sovereignty :
Importance of rules in society :
→ Humans living together in groups [a society] require rules to give them order and
security
WHY : If everyone could do what they wanted with no constraint there would be no
order and security.
State of nature :
• In a state of nature [a state without a government or established authority to enforce
rules ] there is only the clash of individual wills/ideas and those with greater
influence and power will impose their wills onto others which creates chaos
Origin and enforcement of rules :
• The rules of a society are made and enforced by the individual/s in the group who
have been given power by the group, or who have taken power in the group.
Sovereignty :
• Therefore these powerful individual/s in the group are sovereign [supreme authority
over individuals and the power to make laws], because they have the authority to both
make and enforce the rules.
Example : a king in a monarchy has sovereignty, because he can make and enforce
laws
→ the kings word is what the law is
1.2 Authority, Law, consequences :
Obedience to authority :
• with authority to make laws comes a general obedience [an implication of
authority] or expectation to obey to the rules that are made and enforced
Purpose of rules :
• law regulates the relationship between the individual and the community.
- By either constraining individual freedom or granting individual freedom all to
benefit the community at large to maintain fairness
1
,Legitimate exercises of freedom :
• internal freedom : the freedom of our minds and no one has authority over what we
think
• external freedom : the freedom that we exercise in relation to others or with others
→ therefore there are rules on how we can legitimately or legally relate to and with
others
→ the major purpose of the law is to regulate the relationship between one and the
community
Consequences/sanctions :
• when the rules aren't followed or breached there are legal consequences called
sanctions
• to sanction one's behaviour means you prohibit them from doing something
unlawful
• the enforcement of laws is through sanctions
Example : the sanction for theft is a prison sentence or a fine
→ Sanctions will always be negative
1.3 definition of law
Rudimentary definition of law :
• a body of rules of human conduct, prescribed, recognised and enforced by a
controlling authority (a sovereign) through the application of sanctions
• the basic root of a democracy is that the people make the law by proxy through the
people they vote for and then therefore are obliged to follow the law
Territory and the law
• law is territorially bound because the people to which the law applies to belong to a
certain terrain
- The law is always localised in a place and in a time
- The location to which the law applies is called a territory
• Law has territorial jurisdiction meaning the law applies to the geographical area
which is defined by the borders of the country [ law is applied within defined
borders]
- Law is already a spatial construct as it applies to a particular space to a
particular group of people
Equality before the law :
Equality before the law : when everyone in the territory including the sovereign
obeys the law
2
, - If the sovereign does not obey the law and he above the law then no one is
equal before the law
- This is the first principle of the rule of law
Purpose and aims :
• maintains peace and order are the laws primarily aims
- Peace and order are only maintained if the rights of the individual against the
rights of the community are balanced
- Law plays a balancing act between the interest of the two
Functions of the Law :
The seven main functions of the law :
→ applies to democratic law
1. Setting pre-existing, impartial rules, based on criteria that can be used to judge
and settle conflicts.
2. Facilitating or making change possible.
→ pre-existing impartial rules
3. Protecting the rights and freedoms of the individual and groups.
→ compromising function
4. Protecting society by serving as a framework defining orderly conduct.
→ protection function
5. Protecting and preserving the legal system.
6. Providing a mechanism to legitimise actions by the state.
7. Providing institutions and procedures to settle disputes
→ where the court comes in
1. Setting pre-existing, impartial rules, based on criteria that can be used to
judge and settle conflicts.
● The law should be easily determined by the ordinary individual and widely
published
● “Pre-existing”: Law cannot have retrospective effect, meaning into cannot
regulate conduct in the past that wasn't regulated in the present [law cannot go
backwards]
● “Impartial” :Law cannot benefit one part of the population and oppress
another part of the population
→ there cannot be arbitrary laws
Arbitrary laws : laws made on a personal whim
3
, ● “based on criteria that can be used to judge and settle conflicts” : Laws must
be made so that they can judge conflict so that a judge can decide who is on the
right side of the law and how the conflict can be settled
2. protecting the rights and freedoms of the individual
● Good law gives and takes
● Constitutional democracy : the law gives us constitutional rights and these are
the freedoms we can exercise under the law and are then protected by the law
● The freedom and rights are in the bill of rights
● The freedom and rights are protected by giving sanctions for the breach of
rights or freedom
● During apartheid parliament made the law and was above the law whereas
today the constitution is supreme and is the highest law. The apartheid law was
used to violate people's freedom whereas today it protects people freedom
● Rights can be validly limited or constrained. However the limitations can never
be arbitrary and must the law that limits a right must apply to all
3. facilitating change
● The law must be able to accommodate change in the circumstances of society
Example : during covid many laws were changed and added
● This change takes place through new enactments
● To appeal legislation means to withdraw it and make it no longer valid
[declaration of invalidity of laws by courts]
● The law is made responsible for radical change or effecting large scale social
change which is called transformative constitutionalism which is the premise
of constitutionalism in south africa
Transformative constitutionalism : a large scale social change through nonviolent
political processes grounded in law
→ example : the law must lead in bringing about the society we would like after
apartheid
4. Protecting society by serving as a framework defining orderly conduct
● law must define the status, functions and powers of individuals and
government as well as social and administrative organs
● law regulates relations
- between individuals (eg parent and child)
- between individuals and institutions (eg a company and its shareholders)
4
