What is law?
Thursday, 22 August 2024 20:33
What is law (& why does it matter)?
Law is a body of rules governing human behaviour which is recognised and enforced by the state.
○ When a rule of law is disobeyed, the state will punish the offender and provide the person who has been wronged with an enforceable remedy.
The law is invisibly present, everywhere and at all times.
○ From pre-birth to post-death
▪ Nasciturus fiction
▪ Registration of Births and Deaths Act 1992
▪ Wills Act 1953; Estate Duty Act 1955
▪ Administration of Estates Act 1965
▪ 'De Bloedige Hand Erft Niet' (Bloody hand does not inherit)
○ Millions of law in-between and more being added all the time. EG:
▪ Income Tax Act 58 of 1962
▪ National Credit Act 34 of 2005
▪ Consumer Protection Act 68 of 2008
▪ Promotion of Access to Information Act 2 of 2000
▪ Protection of Personal Information Act 4 of 2013
○ Presumed to know law, even though impossible - but must know and understand laws that regulate your profession.
Law is the only body of rules and regulations governing human conduct that is recognised as binding by the state will, if necessary, enforce.
○ BUT
▪ Law is NOT just simple rules and regulations.
▪ It includes principles that need to be interpreted and applied in hard cases.
▪ It often involves difficult questions.
The state = government
○ Legislature
▪ Makes the law
▪ Parliament: Pass the acts
○ Executive
▪ Enforces law
▪ President
▪ Ministers
▪ Civil service (police force)
○ Judiciary
▪ Applies and interprets law
▪ Courts: judges & magistrates
Law, Morality & Ethics
Laws can be morally repugnant.
○ Apartheid laws
○ Detention without trial
Morally 'neutral'
○ Duty to obey speed limit
○ Instructions of a traffic official
○ Paying taxes
Based on community conceptions of rights and wrong
○ Duty to support family
○ Prohibition on marriage between certain relatives
○ Criminalisation of murder/robbery.
Public policy: Legal (moral) convictions of the community NB in certain branches of the law (contract; succession; delict).
Laws change as community morals/values change.
Law & Professional Ethics
International Code of Ethics for Professional Accountants
○ Professional Competence and Due Care
○ Integrity
○ Objectivity
○ Confidentiality
○ Professional Behaviour
○ Independence
In Cape Empowerment Trust v Fisher Hoffmann (2015) an auditor told the buyer of a company that the company has been profitable without first checking that his statement was
accurate. Is this ethical?
The buyer sued the auditor, and the SCA held that the auditor was grossly negligent in making this statement. Despite this, because of the specific facts, the court held that the
auditor did not have to compensate the buyer.
Code of conduct for all legal practitioners, candidate legal practitioners and juristic entities - published in s36(1) of the Legal Practice Act 28 of 2014.
○ Maintain the highest standards of honesty and integrity;
○ Honour any undertaking given by them in the course of their business or practice, unless prohibited by law;
○ Advice their clients at the earliest possible opportunity on the likely success such clients' cases and not generate unnecessary work, nor involve their clients in unnecessary
expense;
○ Remain reasonably abreast of legal developments
○ Refrain from doing anything which could or might bring the legal profession into disrepute;
○ Not overreach a client or overcharge the debtor of a client, or charge an unreasonably high fee, having regard to the circumstances of the matter.
○ Failure to comply with code or Act = misconduct
○ Moral: Concerned with the goodness or badness of character or disposition between right and wrong.
○ Morality: Moral principles, points of ethics; a particular system of morals.
○ Ethical: Relating to morals, treating of moral questions; morally correct, honorable.
○ Difference between morality and ethics: Both morality and ethics loosely have to do with distinguishing the difference between "good and bad" or "right and wrong". Many
people think of morality as something that's personal and normative, whereas ethics is the standards of "good and bad" distinguished by a certain community or social setting.
Overview of SA Legal System Page 1
, Branches of government
Thursday, 22 August 2024 20:37
Legislative
○ Makes/Writes law
○ Parliament
▪ Pass the acts
Executive
○ President, Ministers, Administration (civil service), Police
○ Implements & Enforces Laws
Judicial
○ Courts
○ Interprets and Applies laws
State
○ Territory and its people over which a government has control eg: RSA
○ State v Accused
Separation of powers
○ EFF v Speaker National Assembly 2017 CC
Jurisdiction
○ Court of First Instance
○ Court of Appeal
Cause of action
Action v Application
○ Dispute of fact
○ No dispute of fact
Appeal v Review
○ On the merits
○ On the process/procedure
Attorney v Advocate
Civil v Criminal
Overview of SA Legal System Page 2
Thursday, 22 August 2024 20:33
What is law (& why does it matter)?
Law is a body of rules governing human behaviour which is recognised and enforced by the state.
○ When a rule of law is disobeyed, the state will punish the offender and provide the person who has been wronged with an enforceable remedy.
The law is invisibly present, everywhere and at all times.
○ From pre-birth to post-death
▪ Nasciturus fiction
▪ Registration of Births and Deaths Act 1992
▪ Wills Act 1953; Estate Duty Act 1955
▪ Administration of Estates Act 1965
▪ 'De Bloedige Hand Erft Niet' (Bloody hand does not inherit)
○ Millions of law in-between and more being added all the time. EG:
▪ Income Tax Act 58 of 1962
▪ National Credit Act 34 of 2005
▪ Consumer Protection Act 68 of 2008
▪ Promotion of Access to Information Act 2 of 2000
▪ Protection of Personal Information Act 4 of 2013
○ Presumed to know law, even though impossible - but must know and understand laws that regulate your profession.
Law is the only body of rules and regulations governing human conduct that is recognised as binding by the state will, if necessary, enforce.
○ BUT
▪ Law is NOT just simple rules and regulations.
▪ It includes principles that need to be interpreted and applied in hard cases.
▪ It often involves difficult questions.
The state = government
○ Legislature
▪ Makes the law
▪ Parliament: Pass the acts
○ Executive
▪ Enforces law
▪ President
▪ Ministers
▪ Civil service (police force)
○ Judiciary
▪ Applies and interprets law
▪ Courts: judges & magistrates
Law, Morality & Ethics
Laws can be morally repugnant.
○ Apartheid laws
○ Detention without trial
Morally 'neutral'
○ Duty to obey speed limit
○ Instructions of a traffic official
○ Paying taxes
Based on community conceptions of rights and wrong
○ Duty to support family
○ Prohibition on marriage between certain relatives
○ Criminalisation of murder/robbery.
Public policy: Legal (moral) convictions of the community NB in certain branches of the law (contract; succession; delict).
Laws change as community morals/values change.
Law & Professional Ethics
International Code of Ethics for Professional Accountants
○ Professional Competence and Due Care
○ Integrity
○ Objectivity
○ Confidentiality
○ Professional Behaviour
○ Independence
In Cape Empowerment Trust v Fisher Hoffmann (2015) an auditor told the buyer of a company that the company has been profitable without first checking that his statement was
accurate. Is this ethical?
The buyer sued the auditor, and the SCA held that the auditor was grossly negligent in making this statement. Despite this, because of the specific facts, the court held that the
auditor did not have to compensate the buyer.
Code of conduct for all legal practitioners, candidate legal practitioners and juristic entities - published in s36(1) of the Legal Practice Act 28 of 2014.
○ Maintain the highest standards of honesty and integrity;
○ Honour any undertaking given by them in the course of their business or practice, unless prohibited by law;
○ Advice their clients at the earliest possible opportunity on the likely success such clients' cases and not generate unnecessary work, nor involve their clients in unnecessary
expense;
○ Remain reasonably abreast of legal developments
○ Refrain from doing anything which could or might bring the legal profession into disrepute;
○ Not overreach a client or overcharge the debtor of a client, or charge an unreasonably high fee, having regard to the circumstances of the matter.
○ Failure to comply with code or Act = misconduct
○ Moral: Concerned with the goodness or badness of character or disposition between right and wrong.
○ Morality: Moral principles, points of ethics; a particular system of morals.
○ Ethical: Relating to morals, treating of moral questions; morally correct, honorable.
○ Difference between morality and ethics: Both morality and ethics loosely have to do with distinguishing the difference between "good and bad" or "right and wrong". Many
people think of morality as something that's personal and normative, whereas ethics is the standards of "good and bad" distinguished by a certain community or social setting.
Overview of SA Legal System Page 1
, Branches of government
Thursday, 22 August 2024 20:37
Legislative
○ Makes/Writes law
○ Parliament
▪ Pass the acts
Executive
○ President, Ministers, Administration (civil service), Police
○ Implements & Enforces Laws
Judicial
○ Courts
○ Interprets and Applies laws
State
○ Territory and its people over which a government has control eg: RSA
○ State v Accused
Separation of powers
○ EFF v Speaker National Assembly 2017 CC
Jurisdiction
○ Court of First Instance
○ Court of Appeal
Cause of action
Action v Application
○ Dispute of fact
○ No dispute of fact
Appeal v Review
○ On the merits
○ On the process/procedure
Attorney v Advocate
Civil v Criminal
Overview of SA Legal System Page 2
