BUSL6222 Business Law LU1
BUSL6222 LU1 – IAS10 Events after
the reporting period
Chapter 1 – Background to Law in SA
1.1 What is law and why do we need it?
Law = set of rules that define what you must do, and what you may not do.
Purpose of law = maintain order
1.2 The role of the State
The Constitution of the Republic of South Africa, 1996, (Constitution) sets out and regulates
the powers and functions of the State (government).
Here are some of the human rights that are protected in the Bill of Rights:
right to equality (section 9)
right to human dignity (section 10)
right to life (section 11)
right to freedom and security of the person (section 12)
right not to be subjected to slavery, servitude, or forced labour (section 13)
right to privacy (section 14)
right to freedom of religion, belief, and opinion (section 15)
right to freedom of expression (section 16).
Section 8(1) states that the ‘Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary, and all organs of state’.
The State’s power is divided up between three organs or arms:
1. Legislature 2. Executive 3. Judiciary
The fear of absolute power lies behind the doctrine of the separation of powers. It is based
on the idea that dividing power between three organs will prevent any one organ from
wielding too much power and becoming oppressive.
In South Africa, each organ of government has its own unique functions:
Parliament (aka legislature) is the highest elected law-making body and makes
legislation
The executive, consisting of the president and all the ministers of the various state
departments, makes policies that put legislation into practice or result in new laws.
The judiciary, consisting of the courts, is an independent organ of government, which
is tasked with interpreting and applying law to cases that serve before it
1.3 Legal subjects, legal objects and the nature of rights in commerce
1.3.1 Legal subjects
Two types of persons:
1
,BUSL6222 Business Law LU1
1. Natural persons - human
2. Juristic persons – business / entity
Legal capacity = ones legal personality and ability in law to exercise legal rights – to sue and
be sued.
1.3.2 Legal Objects
An object that has economic value and in which a legal subject can have legal rights, duties
and obligations.
Examples:
- Personality property - elements of a person’s personality. Everyone has the right to
dignity, a good name, and a good reputation.
- Immaterial / incorporeal property - rights that attach to immaterial property
o ideas leading to trade secrets and other intellectual property rights
- Corporeal things - tangible things with physical presence (cell phone, a book, or a
car) Rights of ownership in corporeal things are real rights.
- Performances - an act by a natural person in terms of which something is done,
given, or not done. For example, if you paid Mabel for a textbook, then you are
entitled to Mabel’s performance in the form of delivery of the textbook
1.3.3 Legal Rights
Two types of rights:
1. Personal rights
o Rights that one person can exercise only against specific people / rights
against persons
o Eg. X contracts to sell a textbook to Y, X has the personal right to claim
payment from Y and Y has the personal right to delivery of the book from X
after payment. This means that they can only enforce their respective rights
against each other (and no one else)
2. Real rights
o Can be forced against the whole world.
o Rights in things that can be enforced against everyone
o Eg. Ownership
1.4 Where does SA Law come from?
Primary / Authoritative sources of SA Law:
- The Constitution
- Legislation
- Common law
- Customary law
- Custom (trade practices)
- Judicial precedent
Secondary / Persuasive sources of SA Law:
- International law
2
, BUSL6222 Business Law LU1
- Foreign law
- Modern writing
Primary sources of law are legally binding in a dispute whereas secondary sources are
persuasive in value
1.4.1 Primary sources of law – legally binding
The Constitution
= fundamental law that sets out the power of the state. Source of all authority in a state.
How does the Constitution relate to other sources of law?
1. It refers to and recognises other sources of law
2. Sets out detailed rules about which organs of gov may make legislation and the
process they must follow making it
3. The constitution makes it clear that all other sources of law are now measured
against the provisions of the constitution and cannot conflict with it.
Legislation
= most important source of law as it overrides any other source of law (except the
constitution). Legislation brings rapid and systematic legal changes.
Law-making branch of the gov. Consists of 2 houses:
1. National assembly
2. National council of Provinces
Parliament delegates some of its law-making authority to other state organs associated with
the executive arm of government
Legislative bodies are limited to specific areas / topics and have geographic boundaries.
- If a body legislates beyond its authority, it is ultra vires ( = beyond the powers)
Three levels of government can legislate: national, provincial, and municipal.
- National: passes sovereign (primary) legislation.
- Provincial/Municipal: usually pass subordinate legislation but can pass sovereign
laws in certain areas.
Limitations of Legislative Power
- Must act within scope and boundaries (subject and geographic).
- Acting beyond power = ultra vires, and such laws can be declared invalid by the High
Court.
Law-making Process
- Laws must be passed by a majority vote (≥50%).
- Laws must be published in the Government Gazette to be binding.
- Updated laws are republished in statute books and made available online.
3
BUSL6222 LU1 – IAS10 Events after
the reporting period
Chapter 1 – Background to Law in SA
1.1 What is law and why do we need it?
Law = set of rules that define what you must do, and what you may not do.
Purpose of law = maintain order
1.2 The role of the State
The Constitution of the Republic of South Africa, 1996, (Constitution) sets out and regulates
the powers and functions of the State (government).
Here are some of the human rights that are protected in the Bill of Rights:
right to equality (section 9)
right to human dignity (section 10)
right to life (section 11)
right to freedom and security of the person (section 12)
right not to be subjected to slavery, servitude, or forced labour (section 13)
right to privacy (section 14)
right to freedom of religion, belief, and opinion (section 15)
right to freedom of expression (section 16).
Section 8(1) states that the ‘Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary, and all organs of state’.
The State’s power is divided up between three organs or arms:
1. Legislature 2. Executive 3. Judiciary
The fear of absolute power lies behind the doctrine of the separation of powers. It is based
on the idea that dividing power between three organs will prevent any one organ from
wielding too much power and becoming oppressive.
In South Africa, each organ of government has its own unique functions:
Parliament (aka legislature) is the highest elected law-making body and makes
legislation
The executive, consisting of the president and all the ministers of the various state
departments, makes policies that put legislation into practice or result in new laws.
The judiciary, consisting of the courts, is an independent organ of government, which
is tasked with interpreting and applying law to cases that serve before it
1.3 Legal subjects, legal objects and the nature of rights in commerce
1.3.1 Legal subjects
Two types of persons:
1
,BUSL6222 Business Law LU1
1. Natural persons - human
2. Juristic persons – business / entity
Legal capacity = ones legal personality and ability in law to exercise legal rights – to sue and
be sued.
1.3.2 Legal Objects
An object that has economic value and in which a legal subject can have legal rights, duties
and obligations.
Examples:
- Personality property - elements of a person’s personality. Everyone has the right to
dignity, a good name, and a good reputation.
- Immaterial / incorporeal property - rights that attach to immaterial property
o ideas leading to trade secrets and other intellectual property rights
- Corporeal things - tangible things with physical presence (cell phone, a book, or a
car) Rights of ownership in corporeal things are real rights.
- Performances - an act by a natural person in terms of which something is done,
given, or not done. For example, if you paid Mabel for a textbook, then you are
entitled to Mabel’s performance in the form of delivery of the textbook
1.3.3 Legal Rights
Two types of rights:
1. Personal rights
o Rights that one person can exercise only against specific people / rights
against persons
o Eg. X contracts to sell a textbook to Y, X has the personal right to claim
payment from Y and Y has the personal right to delivery of the book from X
after payment. This means that they can only enforce their respective rights
against each other (and no one else)
2. Real rights
o Can be forced against the whole world.
o Rights in things that can be enforced against everyone
o Eg. Ownership
1.4 Where does SA Law come from?
Primary / Authoritative sources of SA Law:
- The Constitution
- Legislation
- Common law
- Customary law
- Custom (trade practices)
- Judicial precedent
Secondary / Persuasive sources of SA Law:
- International law
2
, BUSL6222 Business Law LU1
- Foreign law
- Modern writing
Primary sources of law are legally binding in a dispute whereas secondary sources are
persuasive in value
1.4.1 Primary sources of law – legally binding
The Constitution
= fundamental law that sets out the power of the state. Source of all authority in a state.
How does the Constitution relate to other sources of law?
1. It refers to and recognises other sources of law
2. Sets out detailed rules about which organs of gov may make legislation and the
process they must follow making it
3. The constitution makes it clear that all other sources of law are now measured
against the provisions of the constitution and cannot conflict with it.
Legislation
= most important source of law as it overrides any other source of law (except the
constitution). Legislation brings rapid and systematic legal changes.
Law-making branch of the gov. Consists of 2 houses:
1. National assembly
2. National council of Provinces
Parliament delegates some of its law-making authority to other state organs associated with
the executive arm of government
Legislative bodies are limited to specific areas / topics and have geographic boundaries.
- If a body legislates beyond its authority, it is ultra vires ( = beyond the powers)
Three levels of government can legislate: national, provincial, and municipal.
- National: passes sovereign (primary) legislation.
- Provincial/Municipal: usually pass subordinate legislation but can pass sovereign
laws in certain areas.
Limitations of Legislative Power
- Must act within scope and boundaries (subject and geographic).
- Acting beyond power = ultra vires, and such laws can be declared invalid by the High
Court.
Law-making Process
- Laws must be passed by a majority vote (≥50%).
- Laws must be published in the Government Gazette to be binding.
- Updated laws are republished in statute books and made available online.
3
