5/6/2021 Beginner's Guide for Law Students 5e
Page vii
Contents
Preface to the Fifth Edition
1 The Law
2 A History of South African Law
3 Sources of South African Law
4 Classification of the Law
5 The Constitution: Structures of Governance
6 The Constitution: Human Rights
7 Private Law
8 Law and the Business World
9 Law of Civil Procedure
10 Criminal Law
11 Law of Criminal Procedure
12 Law of Evidence
13 Courts and Appropriate Dispute Resolution
14 The Legal Profession
15 Legal Comparison
16 Language and Law
17 Legal Argument and Logic
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,5/6/2021 Beginner's Guide for Law Students 5e
18 Perspectives on the Law
19 Legal Research
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,5/6/2021 Beginner's Guide for Law Students 5e
Chapter 1
The Law
Introduction
Before we start our study of the content of South
African law, we will first consider some questions about
the nature of law. Law is made for and by people. It is
not cast in stone. Neither is it elevated above criticism.
The law is constantly being recreated. It is thus not a
completed monument from which you must only lift a
veil, but rather an unfinished statue which you must
help complete.
1.1 Why law?
Much has been written about why we have ‘laws’ and
what ‘the law’ is. No single correct answer has been
found or is presented here.
It seems clear, however, that law presupposes a
society. Suppose for a moment that a person arrived
on an uninhabited island after surviving a shipwreck.
On the island this first inhabitant could make a shelter
https://web.b.ebscohost.com/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=25ff127e-ac96-41bf-803c-cd8fe83a4444@pdc-v-sessm… 1/56
, 5/6/2021 Beginner's Guide for Law Students 5e
wherever she pleased, she could eat whatever she
wanted, and she could fell trees to her liking. One day,
a second person arrived on the island. With the arrival
of the second inhabitant, certain rules had to be laid
down to facilitate peaceful and productive interaction
between the two people, because more people meant
there would be more claims to existing resources.
However, a large group of people cannot agree on rules
among themselves on a continuous basis. A need arises
for some kind of structure of authority or government
that will make rules for the whole society.
Adherence to these rules has come to be known as
the ‘rule of law’. Philosophers sometimes find the
justification for these rules and authority (the rule of
law) in the idea of a social contract into which people
have entered. Thomas Hobbes, an English philosopher
of the seventeenth century, regarded humans in their
original state as people living without rules. Each
individual is only a slave to desire and self-interest.
Everyone does as they please. Life is savage and short.
Without laws people keep on destroying each other. But
reason leads humankind to realise that it is in its self-
interest not to sustain such a lifestyle. Therefore,
people decide to enter into a social
https://web.b.ebscohost.com/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=25ff127e-ac96-41bf-803c-cd8fe83a4444@pdc-v-sessm… 2/56
Page vii
Contents
Preface to the Fifth Edition
1 The Law
2 A History of South African Law
3 Sources of South African Law
4 Classification of the Law
5 The Constitution: Structures of Governance
6 The Constitution: Human Rights
7 Private Law
8 Law and the Business World
9 Law of Civil Procedure
10 Criminal Law
11 Law of Criminal Procedure
12 Law of Evidence
13 Courts and Appropriate Dispute Resolution
14 The Legal Profession
15 Legal Comparison
16 Language and Law
17 Legal Argument and Logic
https://web.b.ebscohost.com/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=25ff127e-ac96-41bf-803c-cd8fe83a4444@pdc-v-sessmg… 1/2
,5/6/2021 Beginner's Guide for Law Students 5e
18 Perspectives on the Law
19 Legal Research
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,5/6/2021 Beginner's Guide for Law Students 5e
Chapter 1
The Law
Introduction
Before we start our study of the content of South
African law, we will first consider some questions about
the nature of law. Law is made for and by people. It is
not cast in stone. Neither is it elevated above criticism.
The law is constantly being recreated. It is thus not a
completed monument from which you must only lift a
veil, but rather an unfinished statue which you must
help complete.
1.1 Why law?
Much has been written about why we have ‘laws’ and
what ‘the law’ is. No single correct answer has been
found or is presented here.
It seems clear, however, that law presupposes a
society. Suppose for a moment that a person arrived
on an uninhabited island after surviving a shipwreck.
On the island this first inhabitant could make a shelter
https://web.b.ebscohost.com/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=25ff127e-ac96-41bf-803c-cd8fe83a4444@pdc-v-sessm… 1/56
, 5/6/2021 Beginner's Guide for Law Students 5e
wherever she pleased, she could eat whatever she
wanted, and she could fell trees to her liking. One day,
a second person arrived on the island. With the arrival
of the second inhabitant, certain rules had to be laid
down to facilitate peaceful and productive interaction
between the two people, because more people meant
there would be more claims to existing resources.
However, a large group of people cannot agree on rules
among themselves on a continuous basis. A need arises
for some kind of structure of authority or government
that will make rules for the whole society.
Adherence to these rules has come to be known as
the ‘rule of law’. Philosophers sometimes find the
justification for these rules and authority (the rule of
law) in the idea of a social contract into which people
have entered. Thomas Hobbes, an English philosopher
of the seventeenth century, regarded humans in their
original state as people living without rules. Each
individual is only a slave to desire and self-interest.
Everyone does as they please. Life is savage and short.
Without laws people keep on destroying each other. But
reason leads humankind to realise that it is in its self-
interest not to sustain such a lifestyle. Therefore,
people decide to enter into a social
https://web.b.ebscohost.com/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=25ff127e-ac96-41bf-803c-cd8fe83a4444@pdc-v-sessm… 2/56
