Overview of the SA legal system
Meaning of law: Law is defined as the body of rules to regulate human conduct, recognised as
binding and enforced by the state
The laws main purpose is to ensure order an justice in all spheres of the community i.e. commercial
activity, contracts, property etc..
Rule of law: For laws to be considered just, they must be reasonable, apply consistently to all legal
subjects, apply equally in all circumstances and be predictable. Not all laws are moral. Morals are
inherit to people, often subjective and influenced by different factors such as culture, religion and
community.
Organs of state:
1. Legislature: Responsible for making laws. Undertaken in parliament located in Cape Town
2. Executive: Responsible for enforcing the laws made by parliament. The president leads and is
supported by various ministers
3. Judiciary: Responsible for applying the law and is comprised of various courts
Legal Personality
A person is someone or something capable of holding rights and duties. A legal subject must have
the legal capacity to be the bearer of rights and duties. Capacity to act is the capacity to perform
juristic acts - an act to which the law attaches at least some of the consequences envisaged by the
parties. For example, concluding a contract. The legal capacity can be affected by certain factors like
age, marital status, insolvency and mental illness.
Natural Persons Juristic Persons
All human beings hold rights and duties form Non living associations that are given the capacity
birth to death. A human born is separate to hold rights and duties in term of enabling
from their mother. Foetus is not a legal legislation, such as the companies act 71 of 2008.
person.
Private Company End with (Pty) Ltd
Nasciturus fiction: Laws that protect unborn Public Company End with Ltd
humans Non-Profit Company End with NPC
Example: If the mother and foetus are Limited liability End with Inc
injured during pregnancy in an accident Company
caused by a negligent driver , the parents State-Owned End with SOC Ltd
may act on behalf of the child born alive and Company
institute legal action for prenatal injuries.
Therefore, nasciturus fiction is applied to
protect the interests of the unborn child. In
order for the nasciturus fiction to apply, the
child must have been conceived at the time
the benefit would have accrued to him or
her, and the child must be subsequently
born alive
,When a company registers, the company acquires a separate legal personality from its shareholders
and founders, and is recognized as a juristic person. The company can own property, sue and be sued
in its name, have perpetual succession, enter into contracts and is liable for debt.
- Animals are not legal subjects or have legal capacity, although courts can look at the
behaviour of an animal (If someone gets attacked)
Legal Rights
A right refers to a legal interest protected by the law
Personal Right: Right one holds against a specific person and can only enforce the right against that
person. Usually created by an agreement, one person getting an unfair benefit at the expense of
someone else (unjustified enrichment) or harm one by another person that can cause bodily injury
(delict)
Real Right: Right one holds in a thing/property. Real rights are enforceable against anyone who tries
to cause loss or damage to one thing. Created by either ownership or possession of a thing. May be
transferred from one person to another by delivery or registration.
Others do not always have to comply with duties and infringe on other persons rights. This happens
if:
- A person removes the owners thing without permission
- A company refuses to pay an employee for services rendered
- A person posts a tweet insulting another
,The most common remedy is an action – claim that the other party must comply with the duty or
compensate for losses suffered.
For example, Thabiso gets employed as a teaching assistant by the Department of Accounting at UCT
and will get paid as per the university's remuneration policy. The agreement between Thabiso and
the Department of Accounting is a contract of employment. Thabiso has a personal right against UCT.
If UCT fails to pay him, he can only claim his remuneration from UCT only.
Assume that Thabiso gets hit by a Jammie Shuttle because the driver did not apply brakes on time.
The accident has caused harm to Thabiso's body due to the driver's negligence. Thabiso incurred
medical costs amounting to R 5 000.00. This is a delict, and Thabiso has a personal right against UCT
for injuries caused by a UCT employee in the course of his duties (this is called vicarious liability,
employers are liable for delicts caused by their employees while performing their duties).
Furthermore, Thabiso can only enforce the personal right against UCT only.
Thabiso buys a laptop, which is a corporeal thing that he owns. Thabiso has a real right in the laptop.
Assume that the laptop gets stolen and ultimately sold to Angie, a 5 Sinikiwe Mzezewa Department
of Commercial Law law student. Thabiso can get a court order to reclaim the laptop from Angie (rei
vindicatio) because he has a real right in the laptop. Angie may claim back the purchase price from
the thief because she has a personal right, which was created by the contract of sale between herself
and the thief.
Legal Liability
Legal Liability is the condition of being bound to a legal duty and bearing consequences for failure to
do so.
Criminal Liability: Form of public liability which includes the duty to abide by provisions of criminal
law as defined by the state and bear the punishment that comes with that
- Kids U10 do not have criminal liability (U14 unless court can prove otherwise)
Civil liability: Liability that arises from private relationships, depending on the breach of different
forms of obligations. The case citation is usually the parties surnames. A person can also sue the
state. Some cases are matters of state (mental illness, insolvency)
In a civil case, the plaintiff must prove the case on a balance of probabilities (it is not easy to define
the balance of probabilities. Basically, it means that the court weighs up evidence and decides which
version is most probably true). If the plaintiff succeeds in the case, the other party will be ordered to
pay the proceedings' costs, compensation, damages, etcetera. In other situations, one is ordered to
stop doing something/act in a certain way (interdict) or return something.
, Delictual liability: A delict is wrongful and culpable conduct that causes harm or injury to another
persons property or personality. The elements of delict are:
- Act / conduct
- Wrongfulness
- Culpability (fault)
- Causation
- Harm
A child U7 does not have delictual capacity (U14 unless proven otherwise)
Contractual Liability: Contract is an agreement between two or more persons that is legally
enforceable. Arises in a breach of contract. One sues for financial loss caused by breach
A child U7 does not have contractual liability (U14 unless proven otherwise)
Unjustified enrichment
If a party is enriched at the expense of another, and no legal basis exists for the transfer of a benefit.
The party who benefits without legal justification is liable to return accrued benefits
The party who wants to claim unjustified enrichment must show that he/she is impoverished. Also,
the other party was enriched, and there is a causal link between impoverishment and enrichment
(the unjustified enrichment caused impoverishment).
Overlapping of legal Liability
More than one form of liability can arise from a set of facts. A type of overlap usually arises in the
crime and delict as well as the delict and contract
Crime and Delict
They arise from same facts, but are remedied differently
- Delictual liability Civil case (courts jurisdiction determined by kind of offence and
sentence)
- Criminal liability Criminal case (courts jurisdiction determined by amount claimed
Meaning of law: Law is defined as the body of rules to regulate human conduct, recognised as
binding and enforced by the state
The laws main purpose is to ensure order an justice in all spheres of the community i.e. commercial
activity, contracts, property etc..
Rule of law: For laws to be considered just, they must be reasonable, apply consistently to all legal
subjects, apply equally in all circumstances and be predictable. Not all laws are moral. Morals are
inherit to people, often subjective and influenced by different factors such as culture, religion and
community.
Organs of state:
1. Legislature: Responsible for making laws. Undertaken in parliament located in Cape Town
2. Executive: Responsible for enforcing the laws made by parliament. The president leads and is
supported by various ministers
3. Judiciary: Responsible for applying the law and is comprised of various courts
Legal Personality
A person is someone or something capable of holding rights and duties. A legal subject must have
the legal capacity to be the bearer of rights and duties. Capacity to act is the capacity to perform
juristic acts - an act to which the law attaches at least some of the consequences envisaged by the
parties. For example, concluding a contract. The legal capacity can be affected by certain factors like
age, marital status, insolvency and mental illness.
Natural Persons Juristic Persons
All human beings hold rights and duties form Non living associations that are given the capacity
birth to death. A human born is separate to hold rights and duties in term of enabling
from their mother. Foetus is not a legal legislation, such as the companies act 71 of 2008.
person.
Private Company End with (Pty) Ltd
Nasciturus fiction: Laws that protect unborn Public Company End with Ltd
humans Non-Profit Company End with NPC
Example: If the mother and foetus are Limited liability End with Inc
injured during pregnancy in an accident Company
caused by a negligent driver , the parents State-Owned End with SOC Ltd
may act on behalf of the child born alive and Company
institute legal action for prenatal injuries.
Therefore, nasciturus fiction is applied to
protect the interests of the unborn child. In
order for the nasciturus fiction to apply, the
child must have been conceived at the time
the benefit would have accrued to him or
her, and the child must be subsequently
born alive
,When a company registers, the company acquires a separate legal personality from its shareholders
and founders, and is recognized as a juristic person. The company can own property, sue and be sued
in its name, have perpetual succession, enter into contracts and is liable for debt.
- Animals are not legal subjects or have legal capacity, although courts can look at the
behaviour of an animal (If someone gets attacked)
Legal Rights
A right refers to a legal interest protected by the law
Personal Right: Right one holds against a specific person and can only enforce the right against that
person. Usually created by an agreement, one person getting an unfair benefit at the expense of
someone else (unjustified enrichment) or harm one by another person that can cause bodily injury
(delict)
Real Right: Right one holds in a thing/property. Real rights are enforceable against anyone who tries
to cause loss or damage to one thing. Created by either ownership or possession of a thing. May be
transferred from one person to another by delivery or registration.
Others do not always have to comply with duties and infringe on other persons rights. This happens
if:
- A person removes the owners thing without permission
- A company refuses to pay an employee for services rendered
- A person posts a tweet insulting another
,The most common remedy is an action – claim that the other party must comply with the duty or
compensate for losses suffered.
For example, Thabiso gets employed as a teaching assistant by the Department of Accounting at UCT
and will get paid as per the university's remuneration policy. The agreement between Thabiso and
the Department of Accounting is a contract of employment. Thabiso has a personal right against UCT.
If UCT fails to pay him, he can only claim his remuneration from UCT only.
Assume that Thabiso gets hit by a Jammie Shuttle because the driver did not apply brakes on time.
The accident has caused harm to Thabiso's body due to the driver's negligence. Thabiso incurred
medical costs amounting to R 5 000.00. This is a delict, and Thabiso has a personal right against UCT
for injuries caused by a UCT employee in the course of his duties (this is called vicarious liability,
employers are liable for delicts caused by their employees while performing their duties).
Furthermore, Thabiso can only enforce the personal right against UCT only.
Thabiso buys a laptop, which is a corporeal thing that he owns. Thabiso has a real right in the laptop.
Assume that the laptop gets stolen and ultimately sold to Angie, a 5 Sinikiwe Mzezewa Department
of Commercial Law law student. Thabiso can get a court order to reclaim the laptop from Angie (rei
vindicatio) because he has a real right in the laptop. Angie may claim back the purchase price from
the thief because she has a personal right, which was created by the contract of sale between herself
and the thief.
Legal Liability
Legal Liability is the condition of being bound to a legal duty and bearing consequences for failure to
do so.
Criminal Liability: Form of public liability which includes the duty to abide by provisions of criminal
law as defined by the state and bear the punishment that comes with that
- Kids U10 do not have criminal liability (U14 unless court can prove otherwise)
Civil liability: Liability that arises from private relationships, depending on the breach of different
forms of obligations. The case citation is usually the parties surnames. A person can also sue the
state. Some cases are matters of state (mental illness, insolvency)
In a civil case, the plaintiff must prove the case on a balance of probabilities (it is not easy to define
the balance of probabilities. Basically, it means that the court weighs up evidence and decides which
version is most probably true). If the plaintiff succeeds in the case, the other party will be ordered to
pay the proceedings' costs, compensation, damages, etcetera. In other situations, one is ordered to
stop doing something/act in a certain way (interdict) or return something.
, Delictual liability: A delict is wrongful and culpable conduct that causes harm or injury to another
persons property or personality. The elements of delict are:
- Act / conduct
- Wrongfulness
- Culpability (fault)
- Causation
- Harm
A child U7 does not have delictual capacity (U14 unless proven otherwise)
Contractual Liability: Contract is an agreement between two or more persons that is legally
enforceable. Arises in a breach of contract. One sues for financial loss caused by breach
A child U7 does not have contractual liability (U14 unless proven otherwise)
Unjustified enrichment
If a party is enriched at the expense of another, and no legal basis exists for the transfer of a benefit.
The party who benefits without legal justification is liable to return accrued benefits
The party who wants to claim unjustified enrichment must show that he/she is impoverished. Also,
the other party was enriched, and there is a causal link between impoverishment and enrichment
(the unjustified enrichment caused impoverishment).
Overlapping of legal Liability
More than one form of liability can arise from a set of facts. A type of overlap usually arises in the
crime and delict as well as the delict and contract
Crime and Delict
They arise from same facts, but are remedied differently
- Delictual liability Civil case (courts jurisdiction determined by kind of offence and
sentence)
- Criminal liability Criminal case (courts jurisdiction determined by amount claimed
