CML1001F
Overview of the South African Legal
System
Law: the body of rules to regulate human conduct, recognized as binding and
enforced by the state
Meaning of Law
The law:
prescribes what people can do or can’t do
guarantees certain freedoms (eg: the right to practice religion, the right to life)
Primary purpose of the law: ensure order and justice in all spheres of the community
(eg: commercial activity, contracts, property, dispute resolution)
Failure to comply with the law results in sanctions (eg: arrest by the police,
imposition of a fine or confiscation of goods)
The Rule Of Law
The rule of law is a fundamental principle of modern legal systems.
It means that everyone (regardless of their position or status) is subject to the law
and no one is above the law.
This principle is essential to ensuring fairness and justice in society.
For laws to be considered just - they must:
1. be reasonable
2. apply consistently to all legal subjects
3. apply equally in all circumstances
4. be predictable
CML1001F 1
, Note: not all laws are moral.
Morals: principles of what is right and wrong behavior
Morals are inherent to people: they are often subjective and influenced by different
factors (such as culture, religion and community).
Individuals can also choose whether to accept or reject the morals.
Eg: some cultures and religions view termination of pregnancy (abortion) as morally
wrong. However, it is permitted in terms of the Termination of Pregnancy Act. 92 of
1996.
Organs of State
Organs of state: the South African state's structure, powers, and functions as
set out in the Constitution
The three organs of state:
1. The legislature
2. The executive
3. The judiciary
For the government to run smoothly, it
must have:
<< This is called the separation of
people who make the law powers between the organs of the
state.
people who interpret and apply the
law
people who enforce the law
The Legislature [Organ of state 1]
CML1001F 2
, The legislature is responsible for making the laws.
The process is often undertaken in parliament (located in Cape Town).
The Constitution also recognizes legislative structures at the provincial and local
government level (municipality councils).
Executive [Organ of state 2]
The executive is responsible for enforcing the laws made by parliament.
The president leads the executive and supported by various ministers.
Judiciary [Organ of state 3]
The judiciary is responsible for applying the law and comprised of various
courts.
Legal Personality
The two types of persons:
1. Natural persons (humans) 2. Juristic Persons (artificial
persons/entities/ companies)
Natural Persons [Type of person 1]
Natural Persons: all human beings can hold rights and duties from being born
alive till death.
A human being is born: This means that the law does not
recognise an embryo/ foetus as a
CML1001F 3
, 1. as soon separated from its mother person/human being.
(ie: the umbilical cord is cut) Thus: embryos/foetuses don’t have
2. when the child can breathe on its rights, duties or capacities.
own
There is a rule called the nasciturus fiction - this safeguards
foetuses & unborn children
Nasciturus Fiction: legal principle in which, if a foetus is born alive, it will
acquire all the rights of its parents
Eg: if the father of a foetus died while Eg: a foetus could recover damages for
the mother was still pregnant: the child the harm caused to him/her while in the
will benefit from the deceased father's womb due to negligent driving by a
estate upon birth. drunk driver.
Juristic Persons [Type of person 2]
Juristic Persons: non-living associations that are given the capacity to hold
rights and duties in terms of enabling legislation
Juristic persons gain their capacity upon registration.
The Companies Act
The Companies Act provides for different types of companies:
1. Private company 4. Limited liability company
Company name must end with Inc
company name must end in Pty
(Ltd) 5. State-owned company
Company name must end with SOE
2. Public company
Company name must end with Ltd
3. Non-profit company
Company name must end with NPC
CML1001F 4
Overview of the South African Legal
System
Law: the body of rules to regulate human conduct, recognized as binding and
enforced by the state
Meaning of Law
The law:
prescribes what people can do or can’t do
guarantees certain freedoms (eg: the right to practice religion, the right to life)
Primary purpose of the law: ensure order and justice in all spheres of the community
(eg: commercial activity, contracts, property, dispute resolution)
Failure to comply with the law results in sanctions (eg: arrest by the police,
imposition of a fine or confiscation of goods)
The Rule Of Law
The rule of law is a fundamental principle of modern legal systems.
It means that everyone (regardless of their position or status) is subject to the law
and no one is above the law.
This principle is essential to ensuring fairness and justice in society.
For laws to be considered just - they must:
1. be reasonable
2. apply consistently to all legal subjects
3. apply equally in all circumstances
4. be predictable
CML1001F 1
, Note: not all laws are moral.
Morals: principles of what is right and wrong behavior
Morals are inherent to people: they are often subjective and influenced by different
factors (such as culture, religion and community).
Individuals can also choose whether to accept or reject the morals.
Eg: some cultures and religions view termination of pregnancy (abortion) as morally
wrong. However, it is permitted in terms of the Termination of Pregnancy Act. 92 of
1996.
Organs of State
Organs of state: the South African state's structure, powers, and functions as
set out in the Constitution
The three organs of state:
1. The legislature
2. The executive
3. The judiciary
For the government to run smoothly, it
must have:
<< This is called the separation of
people who make the law powers between the organs of the
state.
people who interpret and apply the
law
people who enforce the law
The Legislature [Organ of state 1]
CML1001F 2
, The legislature is responsible for making the laws.
The process is often undertaken in parliament (located in Cape Town).
The Constitution also recognizes legislative structures at the provincial and local
government level (municipality councils).
Executive [Organ of state 2]
The executive is responsible for enforcing the laws made by parliament.
The president leads the executive and supported by various ministers.
Judiciary [Organ of state 3]
The judiciary is responsible for applying the law and comprised of various
courts.
Legal Personality
The two types of persons:
1. Natural persons (humans) 2. Juristic Persons (artificial
persons/entities/ companies)
Natural Persons [Type of person 1]
Natural Persons: all human beings can hold rights and duties from being born
alive till death.
A human being is born: This means that the law does not
recognise an embryo/ foetus as a
CML1001F 3
, 1. as soon separated from its mother person/human being.
(ie: the umbilical cord is cut) Thus: embryos/foetuses don’t have
2. when the child can breathe on its rights, duties or capacities.
own
There is a rule called the nasciturus fiction - this safeguards
foetuses & unborn children
Nasciturus Fiction: legal principle in which, if a foetus is born alive, it will
acquire all the rights of its parents
Eg: if the father of a foetus died while Eg: a foetus could recover damages for
the mother was still pregnant: the child the harm caused to him/her while in the
will benefit from the deceased father's womb due to negligent driving by a
estate upon birth. drunk driver.
Juristic Persons [Type of person 2]
Juristic Persons: non-living associations that are given the capacity to hold
rights and duties in terms of enabling legislation
Juristic persons gain their capacity upon registration.
The Companies Act
The Companies Act provides for different types of companies:
1. Private company 4. Limited liability company
Company name must end with Inc
company name must end in Pty
(Ltd) 5. State-owned company
Company name must end with SOE
2. Public company
Company name must end with Ltd
3. Non-profit company
Company name must end with NPC
CML1001F 4
