Overview of the SA Legal System
What is the law and why does it matter?
The law is invisibly present, everywhere and at all times
From pre-birth to post-death
• Nasciturus fiction
o A legal principle stating that an unborn child (fetus) is considered born if it
benefits the child, especially in matters of inheritance.
• Registration of Births and Deaths Act 1992
o Governs the official recording of births and deaths to ensure legal
recognition and proper documentation.
• Wills Act 1953; Estate Duty act 1955
o Regulates the legal requirements for drafting and executing wills.
o Imposes taxes on the transfer of an estate after someone’s death.
• Administration of Estates Act 1965
o Establishes rules for managing and distributing deceased persons’
estates, ensuring debts are settled and assets are inherited correctly.
• “De Bloedige Hand Erft Neit” (The bloody hand does not inherit)
o A legal doctrine preventing a person who unlawfully caused someone’s
death from inheriting their estate.
Millions of laws in between, and more and more are being added all the time
• 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
You must know and understand the 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 and which 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
• For example – do you have a right not to be born? Do you have a right to die? Do
you have a legal duty to save a drowning child?
Law, Morality, and Ethics
Law and Morality
• The law is still “law” even if it is morally repugnant: apartheid laws, detention
without trial, laws that permit/require discriminatory treatment of women and
girls
• Many laws are morally “neutral” – duty to obey speed limit, instructions of a
traffic official, to pay taxes, etc
• May laws are based on community conceptions of right and wrong - duty to
support family, prohibition on marriage between certain relates, criminalisation
of murder/robbery etc.
• Public poly = legal (moral) convictions of the community
• Laws change as community morals/values change
Law and Professional Ethics
International code of ethics for professional accountants
In Cape Empowerment Trust v Fisher Hoffmann (2015) an auditor told the buyer of a
company that the company had 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
• 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.
• advise their clients at the earliest possible opportunity on the likely success of
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 a fee which
is unreasonably high, having regard to the circumstances of the matter
Failure to comply with code or Act = misconduct
1. Legislative parliament = makes laws
2. Executive parliament = the presidents, ministers, administration (civil service),
police
3. Judiciary = courts, applies laws
Other NB terms
1. State
= territory and its people over which a government has control eg: RSA
= State v Accused
2. Separation of Powers
= EFF v Speaker National Assembly 2017 CC
3. Jurisdiction
= geographic area
= subject-matter
4. Judicial Terms
= Court of First Instance
= Court of Appeal
5. Cause of action
, 6. Action v Application
= dispute of fact
= no dispute of fact
7. Appeal v Review
= on the merits
= on the process/procedure
8. Attorney v Advocate
9. Civil v Criminal
• Civil: The burden of proof is on the balance of probabilities
• Criminal: The burden of proof relies on the state proving that the accused is
guilty beyond reasonable doubt
Constitutional court à supreme court of appeal à high courts à magistrates courts +
Lots of specialist courts, tribunals and ombud offices
The jurisdiction of the courts
Constitutional court
• Johannesburg
• Constitutional and general public importance
• Whole of SA
• First instance and appeal
Supreme court of appeal
• Bloemfontein
• Civil & Criminal & Constitutional
• Whole of SA
• Appeal only
High court
• x9 provincial divisions and 6 local seats
• Regional and district
• Civil and criminal (limited)
• Local areas (municipalities)
• First instance only
What is the law and why does it matter?
The law is invisibly present, everywhere and at all times
From pre-birth to post-death
• Nasciturus fiction
o A legal principle stating that an unborn child (fetus) is considered born if it
benefits the child, especially in matters of inheritance.
• Registration of Births and Deaths Act 1992
o Governs the official recording of births and deaths to ensure legal
recognition and proper documentation.
• Wills Act 1953; Estate Duty act 1955
o Regulates the legal requirements for drafting and executing wills.
o Imposes taxes on the transfer of an estate after someone’s death.
• Administration of Estates Act 1965
o Establishes rules for managing and distributing deceased persons’
estates, ensuring debts are settled and assets are inherited correctly.
• “De Bloedige Hand Erft Neit” (The bloody hand does not inherit)
o A legal doctrine preventing a person who unlawfully caused someone’s
death from inheriting their estate.
Millions of laws in between, and more and more are being added all the time
• 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
You must know and understand the 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 and which 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
• For example – do you have a right not to be born? Do you have a right to die? Do
you have a legal duty to save a drowning child?
Law, Morality, and Ethics
Law and Morality
• The law is still “law” even if it is morally repugnant: apartheid laws, detention
without trial, laws that permit/require discriminatory treatment of women and
girls
• Many laws are morally “neutral” – duty to obey speed limit, instructions of a
traffic official, to pay taxes, etc
• May laws are based on community conceptions of right and wrong - duty to
support family, prohibition on marriage between certain relates, criminalisation
of murder/robbery etc.
• Public poly = legal (moral) convictions of the community
• Laws change as community morals/values change
Law and Professional Ethics
International code of ethics for professional accountants
In Cape Empowerment Trust v Fisher Hoffmann (2015) an auditor told the buyer of a
company that the company had 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
• 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.
• advise their clients at the earliest possible opportunity on the likely success of
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 a fee which
is unreasonably high, having regard to the circumstances of the matter
Failure to comply with code or Act = misconduct
1. Legislative parliament = makes laws
2. Executive parliament = the presidents, ministers, administration (civil service),
police
3. Judiciary = courts, applies laws
Other NB terms
1. State
= territory and its people over which a government has control eg: RSA
= State v Accused
2. Separation of Powers
= EFF v Speaker National Assembly 2017 CC
3. Jurisdiction
= geographic area
= subject-matter
4. Judicial Terms
= Court of First Instance
= Court of Appeal
5. Cause of action
, 6. Action v Application
= dispute of fact
= no dispute of fact
7. Appeal v Review
= on the merits
= on the process/procedure
8. Attorney v Advocate
9. Civil v Criminal
• Civil: The burden of proof is on the balance of probabilities
• Criminal: The burden of proof relies on the state proving that the accused is
guilty beyond reasonable doubt
Constitutional court à supreme court of appeal à high courts à magistrates courts +
Lots of specialist courts, tribunals and ombud offices
The jurisdiction of the courts
Constitutional court
• Johannesburg
• Constitutional and general public importance
• Whole of SA
• First instance and appeal
Supreme court of appeal
• Bloemfontein
• Civil & Criminal & Constitutional
• Whole of SA
• Appeal only
High court
• x9 provincial divisions and 6 local seats
• Regional and district
• Civil and criminal (limited)
• Local areas (municipalities)
• First instance only
