Meintjies

Page 1 -15

The nature and history of our law

 Legislation originally came about to prevent common laws at the time from being
interpreted inconsistently
 Legal rules were there to prevent someone infringing on the freedoms of others, especially
in the larger community
 Legal rules reflected cultural beliefs & values of the dominant groups in society
 “The law is made for the people by the people” – people in democratic countries vote for
the person that they want to represent them from a chosen party (political) - that person
then goes on to make / pass laws

Laws change to:

 Adapt to our rapidly changing world because of the innovations constantly coming about.
 External and internal pressures
 They become outdated and contradict themselves

Our constitution can only be changed by a 2/3 majority

The law

It defines and creates authority by defining everyone’s (individual, government, social and
administration) roles in respect to power, respective functions. This is to prevent misuse of powers &
control the use of it

Contempt of court: person intentionally disobeys or disregards a court order, guilty of misconduct
in a court.

Perjury: crime of making a false statement under oath

Natural Law

 Centred on what God would basically require of us (be good)

 Heavily centred on morals
 It’s unchanging and applies to everyone, all the time in every circumstance

Positivists

 View law as the product of state cause in one country something may be illegal & in another
legal
 Depends heavily on written law

Page 43-50

Constitution (The most difficult to change)

 Contains the most important laws for gov. and society

 Describes how various leaders are chosen
 The various functions & responsibilities of the organs of gov.
 How new laws are made
  The role of the courts
 Characteristics of people qualified to vote
 Basic guaranteed rights of country’s citizens
 How the constitution can be amended

Any law that contradicts or violates the constitution is invalid

All other laws are sub- ordinate to the constitution

Constitution is important

 Highest law in SA
 Describes the most important values that allow the members of society to exist peacefully
 Governs political issues
 Governs state, community & individuals

Page 376-389

Jurisprudence

Thought of as legal theory or philosophy of law

Legal positivism

 Correct decisions may be inferred or conclusions made from predetermined legal rules using
logic alone
 There’s a clear distinction of ‘ought’ ( What is morally is desirable) & ‘is’ ( actually exists)

Early Positivists

Bentham: law was good or bad based on if it increased utility for the max. amount of people

Law is not based on natural law, but a simple command that expresses the will of
authority or sovereign

Even a law that promotes wrong doing is still a law

Austin( 1790 – 1859): law is law since it is made by the sovereign. Sovereign is Sovereign because
they make the law

Grundnorm( constitution this case)

20th Century Positivism

Hart: Believed in an absolute dividing line between law & morality

Agrees that if laws are morally wrong you can’t expect people to follow them BUT they still part
of positive law

Legal system must comply with certain min. standards

Natural Law

Fuller: positivism regards laws as one way projection of authority, one gives orders the other
receives

Dworkin: Had the most influence on SA Law. It does not only consist of rules.

Law of integrity - judges should look not only at the literal meaning of laws but also try to
interpret the purposes of law

Pages 17- 37

History & Development of SA Law

 Hybrid system cause its mixed

 Roman- Dutch & German law have a Roman law derivation hence becoming part of civil law
 W. European common law or Roman Law influences Holland legal system= Roman Dutch law
– SA got this from the Dutch settlers
 England R.Law didn’t apply
 English C.Law was based on English Customs

Glossators

 Irnerius ( Italian) – founder of the glossators and taught the Corpus Iuris Civilus
 They annotated the codification of Justinian, interpreting, explaining words and phrases with
comments
 Had an academic approach to everything

Ultramontani

 More critical analysis of everything

 Used the C.I.C to find solutions to practical issues

Commentators

 Successors to the glossators

 Had an extensive interpretation of the C.I.C
 Modernised R.Law by integrating it with feudal law & lex mercatoria

Roman Dutch Law is SA customary Law- important writers

 Hugo de Groot, Simon van Groenewegen v.d Made, Johannes Voet, Johannes van der Linden

Modern SA law mixture of R.D Law & English Law( includes principles from both)
Page 41-61

Primary sources of law are binding hence consulted first

They are:

 Constitution
 Legislation
 Case law
 Common law
 Customary law

These are supported by the secondary sources

 Writings & opinions of authors and legal researchers

 Only have persuasive value

Importance of Legislation

 Governs the behaviour of society, improves function of a society in other ways

 Legislation is the fastest & best way to create new laws
 Provides for the changing needs of society

Branches of Gov are the Judiciary, Legislature and the executive

The levels of government are the national, provincial, local

National Legislation

 Laws apply to the whole country; must align with constitution

Provincial Legis.

 Specifically a certain province; one law in one province will not apply to another
 Can’t create a law that will apply in another province based on another

Local Legis.

 For municipalities ( smaller geographic area)

Page 56 -57 (How laws are made)

Initiation of Bill

 ( initiation phase)
 Gov determines the need for the bill
 Research of issue is done extensively
 Gov reaches a standpoint based on the evidence found
 Gov decides how to solve issue by passing new Legis or amending existing Leg

If this new bill will make fundamental changes then turned into green and white paper

 Green and white paper allow people that are interested to comment & add further analysis
  Bill is then presented to Parli ( intro of the Bill), it is then given to the speaker of the National
Assembly or the National Council of Provinces
 MPs receive Bill to review & debate. Relevant portfolio committee to be looked at. They
change bill & add the publics opinions, it is then sent back to the NA for a second debate
 If both houses like( favour) bill then members will vote
 If NA favours bill it will be sent to president. They will sign it to show he agrees with it
 It then becomes an Act- ending up in the Government Gazette

Pages 104 -125

Common Law – Roman Dutch Law

 Law that is used by entire country

 Also refers to law that does not come from Legis
 Can also refer to English common Law
 If institutional writers of law clash. Courts follow the position that is in line with reason,
equity & motion notions of justice & utility

Customary Law (grows out of the things people do)

 Based on social practises & customs of the particular groups of people

 Official customary law consists of social practises, flexible – responds to change in the social,
economic and political aspects
 Official customary is written down and is hard to change. It is also out dated- writers say it
never really reflected communities in the beginning
 Living customary law is a true reflection of current lived experiences and is adaptable

Legal Pluralism

 If two or more legal systems operate @ same place @ same time

Page 68 – 101

Case Law

Civil Cases

 Claim money from person

 Enforce one’s rights against another

Criminal Cases

 Perpetrator commits crime and purpose is to punish such person through fines

Page 133 – 157

* 134 beautiful structure diagram

Courts for:

Constitutional matters: Constitutional Court

Appeal Matters: Supreme Court of Appeal

Labour disputes: Labour Court

High Magis Courts: deal with a variety of issues

Jurisdiction: powers of the court or the range of matters court can deal with

Constitutional Court est 1994

 Application & protection of human rights in Constitution especially ( in Bill of Rights)

 Court decisions on constitutional matters bind all other courts – makes final decision on
whether a matter is a constitutional matter
 There’s only one in SA and has juris over whole country
 Other courts can deal with constitutional matters but decisions have to be formally
confirmed by the C.C

It’s exclusive Jurisdiction

 Disputes or arguments between organs of state in the nation or provincial area concerning
the constitution status, powers or function of any of those organs
 Constitutionality of any parliamentary or provincial bill
 Applications for a provincial Act or Act of Parliament to be declared unconstitutional( in
terms s80 or s122 of the Constitution)
 The constitutionality of any amendment to the constitution
 Whether Parli of the president has failed to fulfil a constitutional obligation
 The certification or approval of a provincial constitution

Supreme Court of Appeal

 Highest court of Appeal in all EXEPT constitutional matters

 Deals with issues after a case has been heard in another court
 Decisions bind, have to be followed by all lower courts
 Found in Bloem, was – Appellate Division of H.C
 Decides on Appeals; issues connected with appeals & any other matter that may be referred
to it in circumstance – Act of Parli
 Court has jurisdiction over the whole entire country

High Court

 Many ( 13 spread in 8 provinces)

 Mpumalanga has none – uses North Gauteng H.C in Pretoria
 Deals with matters of a general nature ( bound by the Supreme Court of Appeal as the
decisions create binding precedent for lower courts)
 Circuit courts are travelling High Courts

Magistrate Courts

 Courts can only do what legislation allows them to do

 Limited jurisdiction
 400+ magistrates courts in SA
From this we get regional and district courts

Regional Courts

 Deal with criminal matters except treason

 Limited by statue
 Civil cases (road accidents, fund, divorce, adoption…)

District Courts

 Both civil & criminal matters

 Has its limitations

Superior and Inferior courts

 Superior : Labour, Labour Appeal, Land Claims, Special Income Tax, Competition Appeal,
Special Consumer, Electoral
 Inferior: Small claims, Short process, Courts of Chiefs & Headman, Equality, Water Tribunal

Page 333- 342

Civil Procedure

 Procedure used to bring a matter to a court in a civil case

 Decides whether person approaching court really deserves to be paid money to compensate
for what has happened to them

Action proceedings

 Evidence presented in courts by witnesses who testify orally to what occurred

Application proceedings

 Evidence such as affidavits

Letter of demand – the defendant has a chance to resolve issue before being dragged into litigation

Pleadings are made by parties, they exchange (reps do) – clear what they arguing and agreeing on

Summons

 Informs defendant of the plaintiff’s claims against them – accusations or allegations

 Includes details of parties involved, facts of cases, what plaintiff wants/ reparations or relief
will be requested by court

Defence

 First files notice on intention to defend his case by a certain time ( if he doesn’t do so,
plaintiff is given a judgement by default ( in plaintiffs favour)

Exchange of Pleadings

 Defendant, defend claim, must serve pleading ( defendants plea) on plaintiff

 May even put in a counterclaim( reconvention) for damages or loss caused by plaintiff
 Plaintiff responds with a replication – may ask for further particulars
 Once pleadings have closed( litis contestation), dispute is fully described in pleadings ( can’t
add more to them)
Pre trail procedures

 Set down date ( date of trial)

 Discovery phase – the documents, evidence is made available to the opposing side ( this
prevents people being taken by surprise
 Party can ask for evidence to be removed
 Witnesses are subpoenaed( notification that they will have to appear in court on a certain
day)
 Pre- trial conference is where the legal reps meet to try resolve matter before going to
court- inter alia – they going to court

Trial

 Plaintiff’s witness and anyone who supports them & they themselves can testify
 Examination in chief ( Person in your legal counsel)
 Cross examination( opposite team)
 Re- exam ( eliminating any uncertainties)

Absolution from the instance

 Plaintiff fails to prove event/case/facts true( adduce) court can call ‘absolution from the
instance’ – plaintiff has been unsuccessful even though defendant has not presented

If all goes well, case continues and defendant presents

Judgment

 Court considers facts with their evidence and applies relevant legal principles
 If neither has provided enough evidence, the case is thrown out if, however… the plaintiff
can get more evidence then they will be able to re- institute proceedings
 If the case is successful then defendant has to pay or return something to plaintiff

After Judgment

 If defendant doesn’t comply with, debtors property can be attached & sold in order to pay
the judgment – they can appeal if they see there’s a need

Application Proceedings (Motion Proceedings)

 No fundamental differences with the fats of the dispute between the litigants ( respondents
& applicant)

Respondent

 Asked to provide relief ( money, return something, not or do something

Applicant

 Starts proceedings and the one that asks court for specific relief or address

Notice of motions & founding affidavit

  Notice of motion – doc – applicant applies for a court order to obtain desired relief
 Founding affidavit: sets out facts of the case & signed by the person who made statement

Answering Affidavit

 Respondent receives founding affidavit – answering affidavit ( Respondents version of case)

supporting evidence by witness may be attached
 Applicant can respond – replying affidavit- applicant responds/ comments on respondents
answering affidavit

Court roll then notice of set down (date, time, and place)

On the day all relevant does the court already has & witnesses. Don’t hear oral arguments because
they don’t differ on many issues

Continuation of motion proceedings

 Legal reps present cases – persuade grant/ dismiss

 If they differ on a lot of things, the court will want to hear oral evidence
 Final decision after everything is heard – granted – court issues order, respondent has to
comply IF NOT – execution of the court- order

Ex Parte application

 No other party interested or will be affected by

 Only applicant, no respondent

Pages 188 – 195

Rule of Law

 Law is supreme & the gov. must comply with it – like everyone else
 Law must be clear & everyone must be treated equally or in the same way by the law
( Regardless of race, gender, religion & culture)
 State needs to be guided by fundamental rights – gov. has to respect individual rights
( human dignity, equality, life & freedom)

Substantive

 Content eg freedom of expression & what it entails

Procedural

 Way in which substantive rights are achieved

Constitutional & Rule of Law have a lot in common

Values found in s1 of constitutional & various human rights included in Bill of Rights (form part of
rule of law doctrine)

Separation of Powers
Constitution protects democracy by limiting powers of government

LEGISLATION EXECUTIVE JURISDICIARY

Parliament President Courts

Provincial Dept. President
Legis Cabinet ministers
Local councils
Can make laws but can’t hand Can apply gov policy, can’t Can judge actions of legis &
down judgments or take exec. make laws & hand down exec; can’t pass laws or put
action judgments gov policy into action

Checks & Balance

 Practically each branch monitors the power of the other structures

Democracy (people rule)

Representative Participatory Direct

Citizens vote for parties or
people to speak & act for them
in gov decisions
Everyone is represented in
terms of views( almost
everyone should be )
Citizens help Gov. makes
decisions by voting & other
ways
Allows people to have a say in
decisions that impact them
Citizens take part directly in
making public decisions
without elected or appointed
officials acting as the reps.
Don’t need officials to
represent them

Human Rights

First Generation Second Generation Third Generation

Civil rights & individual Economic, social and cultural Right to a clean environment
Right to peace
 Right to life  Right to access to  May need co-
 Human dignity housing operation from other
 Freedom to speech  Access to healthcare governments for this
 Court order can force  Right to education
government from
interfering
 Absolute ( need)&
need to immediately
protected

People that can use the Bill of Rights

  Anyone acting in their own interest
 Anyone acting on behalf of another – who can’t act in their own name
 “ “ member, or in the interest of a group, class of persons
 Anyone acting in public interest
 Anyone acting in the interest of its members

Resolving disputes outside the courts

Litigation refers to formal court proceedings

Alternative dispute Resolution

 Voluntary ( unlike being subpoenaed)

 Speedy and informal
 Saves money and time
 Parties have control of the venue time& place
 Confidential, private persons