CHAPTER 1: THE LAW
What is the law?
• The need for structure of authority or government that will make rules
for the whole society to develop
• Adherence to the rules has become known the “rule of law”: a social
contract that people entered into
• Reflects the shared values of the majority of the population. Underlying
every legal system is an ideology which is further divided into:
economic (capitalism or socialism), political values (democracy or one-
party), social values (equality or class differences), moral values
(conservative or permissive)
• If legal rules do not reflect the values of society: legitimacy crisis. People
will then lose their belief and confidence in their legal system.
Characteristics of the law
- Consists of a body of rules that regulates human interaction
- Orders society and gives certainty
- Rules are applied and interpreted by institutions of the state
- Legislative authority: makes law
- Judicial authority: applies the law and other legal practices
- Executive authority: enforces the law as a whole i.e. police, traffic
officers
- Separation of powers is to ensure individuals are protected against
abuse of centralized power (check and balances)
Law and morality
• A norm is a rule regulating human conduct
• Normative system that influence our lives: religious, individual morality,
community mores
Religion
- Determines the relationship between an individual and a Supreme
Being
- Religion and law are mutually exclusive: state does not enforce religious
norms or convictions on citizens BUT religious freedoms must be made
possible
- Similarities: Western legal tradition is strongly influenced by Christian
thought i.e. matrimonial law, offences of murder
Individual morality
- Concerns conflict between an individual and his conscience
- Example: honesty – theft and fraud
- But law does not specifically enforce morality as such
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Community mores
- The norms of an entire community (collective morals)
- Should these be allowed: Artificial insemination? Cloning humans?
Slavery?
Law must only create a climate in which autonomous decision-making is possible
Law and justice
Distributive justice: equal distribution among equals
Corrective justice: aims at restoring inequalities
Adjective (procedural) law: comprised of the legal rules and processes
according to which a court reaches a decision or solution Substantive (material)
law: material legal rules
Legal process strives for formal justice in the following ways:
1. Like cases must be treated alike – system if precedent
2. Accused person is innocent until proven guilty
HOWEVER, legal rules do not always coincide with justice. Must law embody
justice or the law?
Legal positivism approach: questions about what the law is by reference to that
which IS, not what ought to be i.e. courts enforced Groups Areas Act because it
was part of the law.
Natural-law approach: law is not only what is promulgated, but also what
OUGHT to be. Ideas that an unjust law is not law at all. These norms are
founded in human nature and reason. I.e. Slavery
Law and legal certainty
Legal certainty means that law is predictable, applied consistently and has a
fixed and certain context
Factors that challenge legal certainty
1. Language: words do not have fixed and simple meanings
2. Changing values: developments in society
3. Judicial discretion: subject to prejudices and attitudes, use constitution
as main authority
, Stuvia.com - The study-notes marketplace
CHAPTER 3: SOURCES OF SOUTH AFRICAN LAW
Sources
- Where law originates
- Some have binding authority and others have persuasive authority
RSA: Uncodified legal system
(More than one primary sources of where law originates)
1. The Constitution
2. Legislation (statutes)
3. Precedent (court decisions)
4. Common law
5. Customs
6. Indigenous law
7. International Law, Foreign Law and Regional Law
8. Secondary sources i.e. Works of modern authors
The
Constitution
Legislation Case law Common Law &
Three levels -Judgements provided by Indigenous Law
- National courts
- Provincial -Different courts have
- Municipalities different jurisdiction
1. The Constitution
- Regulates the organisation and structure of the state
- Includes the Bill of Rights
- The Supreme law
- Direct influence on legislation
- Courts must promote the spirit, purport and objectives of the Bill of
Rights
- Directly incorporates the principles of international human rights as a
source of law
2. Legislation
- Law lay down by an organ of the state that has the power to do so
- Embodied in writing known as “statutes” or “acts”
, Stuvia.com - The study-notes marketplace
- Parliament is the highest organ that can pass legislation on a national
level
- The constitution empowers the parliament to do so
Power of legislation
- Powerful source of law
- Binds whole society
- Quickest way to amend old laws and create new ones
Parliament will pass legislation when:
- There are gaps (lacunae) in the law
- The law no longer corresponds to the need in modern society
- There are defects or loopholes in existing legislation
How is a statues made?
- Government will draft a green paper: puts forward various policy
options on topic
- This is published for public comment
- Afterwards, a white paper is drafted which states that the governments
policy
- The public may comment again
- Experts will the draft a bill (is a proposal) concerning the matter
- (Sometimes a green or white paper does not precede a bill)
- Bill is published in the Government Gazette
- Public is allowed to comment
- The minister responsible for the matter will introduce the bill to the
National Assembly for the first reading
- Every member of the NA will receive a copy of the bill
- Bill is referred to a portfolio committee: members will investigate the
details of the bill, study public commentary, recommend changes and
make new proposals
- Amended bill is given to NA for second reading
- The purpose and principles of the bill are debated
- More proposals (amendments) are made concerning the bill -
- The portfolio committee reviews it again and drafts a report
- The NA will take into consideration all this and vote on the second
reading
- If the bill is approved, the NA will refer it to the National Council of
Provinces for approval (the same procedure is followed here &
Sometimes bills are presented to the National Council of Provinces first)
- If there is conflict about the Bill, the Constitution will prescribe how to
resolve
- If the National Council of Provinces approves the bill, it is sent to the
president for assent
- President signs the bill and it becomes a statute/act
What is the law?
• The need for structure of authority or government that will make rules
for the whole society to develop
• Adherence to the rules has become known the “rule of law”: a social
contract that people entered into
• Reflects the shared values of the majority of the population. Underlying
every legal system is an ideology which is further divided into:
economic (capitalism or socialism), political values (democracy or one-
party), social values (equality or class differences), moral values
(conservative or permissive)
• If legal rules do not reflect the values of society: legitimacy crisis. People
will then lose their belief and confidence in their legal system.
Characteristics of the law
- Consists of a body of rules that regulates human interaction
- Orders society and gives certainty
- Rules are applied and interpreted by institutions of the state
- Legislative authority: makes law
- Judicial authority: applies the law and other legal practices
- Executive authority: enforces the law as a whole i.e. police, traffic
officers
- Separation of powers is to ensure individuals are protected against
abuse of centralized power (check and balances)
Law and morality
• A norm is a rule regulating human conduct
• Normative system that influence our lives: religious, individual morality,
community mores
Religion
- Determines the relationship between an individual and a Supreme
Being
- Religion and law are mutually exclusive: state does not enforce religious
norms or convictions on citizens BUT religious freedoms must be made
possible
- Similarities: Western legal tradition is strongly influenced by Christian
thought i.e. matrimonial law, offences of murder
Individual morality
- Concerns conflict between an individual and his conscience
- Example: honesty – theft and fraud
- But law does not specifically enforce morality as such
, Stuvia.com - The study-notes marketplace
Community mores
- The norms of an entire community (collective morals)
- Should these be allowed: Artificial insemination? Cloning humans?
Slavery?
Law must only create a climate in which autonomous decision-making is possible
Law and justice
Distributive justice: equal distribution among equals
Corrective justice: aims at restoring inequalities
Adjective (procedural) law: comprised of the legal rules and processes
according to which a court reaches a decision or solution Substantive (material)
law: material legal rules
Legal process strives for formal justice in the following ways:
1. Like cases must be treated alike – system if precedent
2. Accused person is innocent until proven guilty
HOWEVER, legal rules do not always coincide with justice. Must law embody
justice or the law?
Legal positivism approach: questions about what the law is by reference to that
which IS, not what ought to be i.e. courts enforced Groups Areas Act because it
was part of the law.
Natural-law approach: law is not only what is promulgated, but also what
OUGHT to be. Ideas that an unjust law is not law at all. These norms are
founded in human nature and reason. I.e. Slavery
Law and legal certainty
Legal certainty means that law is predictable, applied consistently and has a
fixed and certain context
Factors that challenge legal certainty
1. Language: words do not have fixed and simple meanings
2. Changing values: developments in society
3. Judicial discretion: subject to prejudices and attitudes, use constitution
as main authority
, Stuvia.com - The study-notes marketplace
CHAPTER 3: SOURCES OF SOUTH AFRICAN LAW
Sources
- Where law originates
- Some have binding authority and others have persuasive authority
RSA: Uncodified legal system
(More than one primary sources of where law originates)
1. The Constitution
2. Legislation (statutes)
3. Precedent (court decisions)
4. Common law
5. Customs
6. Indigenous law
7. International Law, Foreign Law and Regional Law
8. Secondary sources i.e. Works of modern authors
The
Constitution
Legislation Case law Common Law &
Three levels -Judgements provided by Indigenous Law
- National courts
- Provincial -Different courts have
- Municipalities different jurisdiction
1. The Constitution
- Regulates the organisation and structure of the state
- Includes the Bill of Rights
- The Supreme law
- Direct influence on legislation
- Courts must promote the spirit, purport and objectives of the Bill of
Rights
- Directly incorporates the principles of international human rights as a
source of law
2. Legislation
- Law lay down by an organ of the state that has the power to do so
- Embodied in writing known as “statutes” or “acts”
, Stuvia.com - The study-notes marketplace
- Parliament is the highest organ that can pass legislation on a national
level
- The constitution empowers the parliament to do so
Power of legislation
- Powerful source of law
- Binds whole society
- Quickest way to amend old laws and create new ones
Parliament will pass legislation when:
- There are gaps (lacunae) in the law
- The law no longer corresponds to the need in modern society
- There are defects or loopholes in existing legislation
How is a statues made?
- Government will draft a green paper: puts forward various policy
options on topic
- This is published for public comment
- Afterwards, a white paper is drafted which states that the governments
policy
- The public may comment again
- Experts will the draft a bill (is a proposal) concerning the matter
- (Sometimes a green or white paper does not precede a bill)
- Bill is published in the Government Gazette
- Public is allowed to comment
- The minister responsible for the matter will introduce the bill to the
National Assembly for the first reading
- Every member of the NA will receive a copy of the bill
- Bill is referred to a portfolio committee: members will investigate the
details of the bill, study public commentary, recommend changes and
make new proposals
- Amended bill is given to NA for second reading
- The purpose and principles of the bill are debated
- More proposals (amendments) are made concerning the bill -
- The portfolio committee reviews it again and drafts a report
- The NA will take into consideration all this and vote on the second
reading
- If the bill is approved, the NA will refer it to the National Council of
Provinces for approval (the same procedure is followed here &
Sometimes bills are presented to the National Council of Provinces first)
- If there is conflict about the Bill, the Constitution will prescribe how to
resolve
- If the National Council of Provinces approves the bill, it is sent to the
president for assent
- President signs the bill and it becomes a statute/act
