FOUNDATIONS OF SA LAW
THE RULE OF LAW
The Rule of Law and Legal Culture
The cases will be back and forth between upholding the rule of law and going against the
rule of law. Same thing with individual liberty, etc.
Be on the lookout between the rule of law and legal culture when reading your cases.
Thematic Questions
Cases spanning from 1879-1987
1) did the judge uphold the central tenets of the rule of law?
2) was the judge active or passive in their approach to the legal issue?
3) Did the outcome of the case favour individual liberty or the security of the State? (ie
who won in the end?)
THE RULE OF LAW
Tenets of the rule of law
i) Supremacy of the law (over and above the arbitrary exercise of power)
ii) Equality of the law (over and above before the undeferential treatment of different
classes of people)
iii) Demands that the law be reasonably determinable (by ordinary citizens whom it
govens)
iv) Enforcement fo the law (by empowered yet simultaneous contrasted agencies) the
law is supreme, we’re all equal before the law, it must be reasonable and it must be
enforced. By agencies that are trained and staffed to enforce it.
,1) SUPREMACY OF THE LAW
• The law commands ultimate obedience over and above all other people(like
your parents or employers) and institutions (like the church). What the law says
should be above what these people and institutions say.
• Order over anarchy. the law is kind of like supreme, cause it commands ultimate
obedience from EVERYONE and EVERYTHING.
Why do societies have laws? To maintain order and fairness. They don’t want to live in a
state of anarchy and chaos. They rather want to maintain peace, prosperity, fairness and
order. People tend to forgo their desire of violence in favour of the legal system and they
select a body to enforce and make the laws. It’s also a means of conflict resolution.
2) EQUALITY BEFORE THE LAW
People should be equal before the law and the maker of the laws should also be held
under that standard.
The law should apply to everyone equally.
Big corporations should not be exempt of laws that apply to small merchants, the
president should also be held applicable over the law in the same way as a regular
lecturer.
The law should apply equally to each and every person/institution.
The fact that there is mere differentiation in the law (to certain peoples) does not mean
that we are not equal before the law. It doesn’t make sense for most people to be held
under certain laws. Eg. Road accident fund and Business Laws or maybe Lawyers and
Accountants should not be held under the same category or princples.
,Being excluded from an area of law does not mean that you are being treated differently.
BUT there is still UNJUSTIFIABLE differentiation between laws where some people
are differentiated or held under certain laws. For example, people with brown eyes being
held under different laws for no justifiable reason. This one is an issue.
Something to do with inequality.
3) REASONABLY DETERMINABLE
It should be made public and not kept secret because citizens should be able to conduct
their actions publicly and know the consequences of their actions. So that we can remain
within the bounds of law or not. HOWEVER This does not mean that people should
know every single law, but if they want to FIND the laws that they’re looking for, they
should be able to research and find it.
UNDERSTANDING THE LAW It would be unfair to expect every single person to
understand the law. So where expertise are required, such expertise should be available.
Like if your at a license department, there should be someone who can explain the laws
to you if you don’t understand. The law should be CLEAR AND CONCISE.
4) ENFORCED BY AGENCIES
the law should be enforced by the relevant agencies and authorities. SAPS and the
courts. Advocates, Lawyers, Chapter 9 institutions, Legal aid. Etc.
BUT These enforcements can’t just do whatever they want, they have what we call
INTERNAL rules that govern how the court or SAPS is going to work. They’re
empowered to make orders but they’re also constrained. Think of warrants and stuff. Most
judges or courts can’t pass judgement that don’t relate to them.
, We should also be able to tuse the law as a sword and a shield. We should be able to
vindicate stuff (idk what vindicate means) using the law like a sword. We should also be
able to defend ourselves like a shield using the law.
In a free market society we should be able to employ the help of lawyers and advocates,
NGO’s, etc. The threshold for being able to get legal aid is below R8200 a month.
The small claims court is a claim that’s LESS that R20 000.
THE RULE OF LAW
The Rule of Law and Legal Culture
The cases will be back and forth between upholding the rule of law and going against the
rule of law. Same thing with individual liberty, etc.
Be on the lookout between the rule of law and legal culture when reading your cases.
Thematic Questions
Cases spanning from 1879-1987
1) did the judge uphold the central tenets of the rule of law?
2) was the judge active or passive in their approach to the legal issue?
3) Did the outcome of the case favour individual liberty or the security of the State? (ie
who won in the end?)
THE RULE OF LAW
Tenets of the rule of law
i) Supremacy of the law (over and above the arbitrary exercise of power)
ii) Equality of the law (over and above before the undeferential treatment of different
classes of people)
iii) Demands that the law be reasonably determinable (by ordinary citizens whom it
govens)
iv) Enforcement fo the law (by empowered yet simultaneous contrasted agencies) the
law is supreme, we’re all equal before the law, it must be reasonable and it must be
enforced. By agencies that are trained and staffed to enforce it.
,1) SUPREMACY OF THE LAW
• The law commands ultimate obedience over and above all other people(like
your parents or employers) and institutions (like the church). What the law says
should be above what these people and institutions say.
• Order over anarchy. the law is kind of like supreme, cause it commands ultimate
obedience from EVERYONE and EVERYTHING.
Why do societies have laws? To maintain order and fairness. They don’t want to live in a
state of anarchy and chaos. They rather want to maintain peace, prosperity, fairness and
order. People tend to forgo their desire of violence in favour of the legal system and they
select a body to enforce and make the laws. It’s also a means of conflict resolution.
2) EQUALITY BEFORE THE LAW
People should be equal before the law and the maker of the laws should also be held
under that standard.
The law should apply to everyone equally.
Big corporations should not be exempt of laws that apply to small merchants, the
president should also be held applicable over the law in the same way as a regular
lecturer.
The law should apply equally to each and every person/institution.
The fact that there is mere differentiation in the law (to certain peoples) does not mean
that we are not equal before the law. It doesn’t make sense for most people to be held
under certain laws. Eg. Road accident fund and Business Laws or maybe Lawyers and
Accountants should not be held under the same category or princples.
,Being excluded from an area of law does not mean that you are being treated differently.
BUT there is still UNJUSTIFIABLE differentiation between laws where some people
are differentiated or held under certain laws. For example, people with brown eyes being
held under different laws for no justifiable reason. This one is an issue.
Something to do with inequality.
3) REASONABLY DETERMINABLE
It should be made public and not kept secret because citizens should be able to conduct
their actions publicly and know the consequences of their actions. So that we can remain
within the bounds of law or not. HOWEVER This does not mean that people should
know every single law, but if they want to FIND the laws that they’re looking for, they
should be able to research and find it.
UNDERSTANDING THE LAW It would be unfair to expect every single person to
understand the law. So where expertise are required, such expertise should be available.
Like if your at a license department, there should be someone who can explain the laws
to you if you don’t understand. The law should be CLEAR AND CONCISE.
4) ENFORCED BY AGENCIES
the law should be enforced by the relevant agencies and authorities. SAPS and the
courts. Advocates, Lawyers, Chapter 9 institutions, Legal aid. Etc.
BUT These enforcements can’t just do whatever they want, they have what we call
INTERNAL rules that govern how the court or SAPS is going to work. They’re
empowered to make orders but they’re also constrained. Think of warrants and stuff. Most
judges or courts can’t pass judgement that don’t relate to them.
, We should also be able to tuse the law as a sword and a shield. We should be able to
vindicate stuff (idk what vindicate means) using the law like a sword. We should also be
able to defend ourselves like a shield using the law.
In a free market society we should be able to employ the help of lawyers and advocates,
NGO’s, etc. The threshold for being able to get legal aid is below R8200 a month.
The small claims court is a claim that’s LESS that R20 000.
