Beginners Guide For Law Students Kleyn

2/25/22, 1:57 PM Beginner's Guide for Law Students
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Chapter 1
The Law
Introduction
Before we start our study of the content of South African law, we will first consider some questions about the nature of law.
Law is made for and by people. It is not cast in stone. Neither is it elevated above criticism. The law is constantly being
recreated. It is thus not a completed monument from which you must only lift a veil, but rather an unfinished statue which you
must help complete.
1.1 Why law?

Much has been written about why we have ‘laws’ and what ‘the law’ is. No single correct answer has been found or is
presented here.
It seems clear, however, that law presupposes a society. Suppose for a moment that a person arrived on an uninhabited
island after surviving a shipwreck. On the island this first inhabitant could make a shelter wherever she pleased, she could eat
whatever she wanted, and she could fell trees to her liking. One day, a second person arrived on the island. With the arrival of
the second inhabitant, certain rules had to be laid down to facilitate peaceful and productive interaction between the two
people, because more people meant there would be more claims to existing resources. However, a large group of people
cannot agree on rules among themselves on a continuous basis. A need arises for some kind of structure of authority or
government that will make rules for the whole society.
Adherence to these rules has come to be known as the ‘rule of law’. Philosophers sometimes find the justification for these
rules and authority (the rule of law) in the idea of a social contract into which people have entered. Thomas Hobbes, an
English philosopher of the seventeenth century, regarded humans in their original state as people living without rules. Each
individual is only a slave to desire and self-interest. Everyone does as they please. Life is savage and short. Without laws
people keep on destroying each other. But reason leads humankind to realise that it is in its self-interest not to sustain such a
lifestyle. Therefore, people decide to enter into a social contract (agreement) with each other. According to this agreement
each person gives up their
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unlimited freedom in order to make peaceful co-existence possible. Fear of their own destruction makes it possible for
individuals to accept the authority of the ruler (government or state). The ruler lays down legal rules which the citizens must
follow, because they have agreed to that authority and have given over their freedom to the government.
John Locke, another English philosopher of the seventeenth century, took a more optimistic view of humankind in its original
condition as his starting point. In his view, humans are governed from the beginning by reason and live good and stable lives.
Still, life remains uncertain, full of threats and conflicts. Without fixed and generally ascertainable rules which can be applied
impartially, conflict cannot be resolved. Therefore, people enter into a social contract whereby they submit themselves to the
authority of the state. In terms of the contract, the state is allowed to make laws and to enforce them.
Writing in the twentieth century, the American philosopher John Rawls built on, but deviated from, the social contract
theory. In his work, A Theory of Justice, he used the hypothetical position of people (the parties to the social contract) behind
a ‘veil of ignorance’ to explain the acceptance of a just society. Behind the ‘veil’, everyone is ignorant of their specific position
in society, not knowing what specific talents they have, what race or gender they are, or what language they speak. Because
they are in this ‘original position’, people would, according to Rawls, agree to terms in the social contract that are most just to
all in society.
The social contract theories of Hobbes, Locke, and Rawls can be described as ‘Western’ justifications for the law’s existence.
Does the social contract exist in certain versions of ‘African’ philosophy too? Drucilla Cornell and Nyoko Muvangua’s
introductory essay in Ubuntu and the Law: African Ideals and Postapartheid Jurisprudence provides us with some guidance.
The Western understanding of the social contract ultimately requires two things: (1) separated individuals in the original
position and (2) an imagined (or fictitious) agreement between those individuals. An African approach to explaining law’s
existence would depart from both of those requirements. The belief is that human beings are born into ‘a world of ethical
relations and obligations’ where we owe duties to other people and they owe duties to us. This means that individuals are
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important, but they cannot escape the fact that they are born into a community from which they can never truly be separated.
It also means that there is no need to pretend as if we have entered into an agreement with the state, while in reality that has
never happened.
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Instead, we simply recognise that all of us must respect one another’s dignity by virtue of our common humanity. Reference
can be made to the concept of ubuntu, often summarised (and perhaps oversimplified) by the expression umuntu ngumuntu
ngabantu. Directly translated this means a person is a person because of other persons. In other words, I am, because you
are.
See www.jutapassmasters.co.za for a table in which you can compare the different understandings of the social
contract, and further critical readings on this topic with accompanying questions.
1.2 What is law?

From our discussion about the social contract theories, the following appear to be ‘characteristics’ of the law:
• It consists of a body of rules and principles facilitating and regulating human interaction.
• It orders society and gives some degree of certainty.
• The rules are often applied or interpreted by institutions of state. If necessary, they are enforced by employees of the
state, such as the police, traffic police, prison authorities or the sheriff. In most democratic legal systems, the legislative
authority makes laws; the judicial authority applies these laws and other legal principles; the executive authority
enforces the law as a whole. Enforcement means that some form of sanction will follow upon non-compliance with a
legal rule. A sanction is a reaction of disapproval following such non-compliance and can take the form of punishment
(such as a fine or imprisonment) or may be in the form of an order for compensation (for example, in the case of breach
of contract).
• The content of the law depends on the history of the specific country concerned. This is why the law of South Africa
might look very different to the law of Egypt, even though both countries are on the same continent. South African legal
history will be explored in Chapter 2 of this book.
These general characteristics of law manifest in specific laws. The content of specific laws can be found in the sources of law,
a topic that we will return to in detail in Chapter 3 of this book. For the moment, you
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should take note that the South African rules and principles of law are found in the following sources:
• The Constitution of the Republic of South Africa, 1996 is a document written and given the force of law by the
democratically elected Constitutional Assembly, that tells us what the state’s powers are, and contains a bill of human
rights. Section 2 of the Constitution says that it is the ‘supreme law of the Republic and any law or conduct inconsistent
with it is invalid’. We refer to this as the ‘supremacy clause’. This means that all other laws can be ‘tested’ against the
provisions of the Constitution.
• Other binding sources of South African law, which must be consistent with the Constitution, include: legislation (laws
written by democratically elected bodies, like Parliament, that are given the force of law), customary law (the laws of
the First Nation peoples of Africa, properly called African law), common law (laws inherited from the South African
colonial heritage, often referred to as a mixture of Roman-Dutch and English law, developed over time in the courts),
custom (practices that develop as law due to continued usage over a long period of time), case law (decisions by
courts), and international law (laws usually drafted by agreement between different states).
However, law should be more than just a series of decrees and rules enforced by a brutal display of state power. In a
democracy, it should ideally reflect the shared values of the majority of the population (society). Underlying any legal system
is an ideology (value system). The following may be part of this ideology:
• economic values (such as free market capitalism or socialism);
• political values (such as democracy or one-party dictatorship);
• social values (such as the achievement of equality or the maintenance of class differences);
• moral values (such as conservative or permissive).
When legal rules do not reflect the values then current in any of these spheres, a legitimacy crisis may result. This means
that the members of society lose their belief and confidence in their legal system. In South Africa, for instance, voting rights in
terms of the 1983 Constitution did not reflect the political values of the majority in the society of the 1980s. The majority were
not allowed to vote and were also regarded as inferior
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citizens in other respects. This led to a legitimacy crisis with respect to the South African legal system.
Due to the fact that law and ideology go hand in hand, it is possible to give different explanations of what law is and should
be. Indeed, people with differing ideological beliefs often come up with different definitions of what law is (we will deal with
these ‘perspectives on law’ in more detail in Chapter 18 of this book). For example, those committed to the ideals of liberalism
could think of law as a tool that ensures that the state’s power is limited and that individuals are protected from various kinds
of abuse. Critical legal scholars and Marxists are more sceptical about law and might define it as an illegitimate system, with
rules that protect the rich and exploit the poor (and therefore that the law should change). Feminists sometimes think of law
as a patriarchal construct that largely serves to benefit men, while others regard law as one of many tools to empower
women. Critical race theorists are committed to exposing the structural and patent racism inherent to law. For example, the
critical race theorist Charles Mills would think about the social contract mentioned in our discussions above as a ‘racial
contract’ that serves to construct and maintain white supremacy. What this shows us is that our definitions of law depend on
our ideological positions and that there is no simple, easy answer to the question ‘what is the law?’.
In the remaining parts of the present chapter, we explore the relationship between law and morality, law and justice, and
law and certainty. It will become clear to you that there are not necessarily bright-line distinctions between law and these
concepts.
1.3 Law and morality

The law is a set of norms distinguishing good from bad. A norm is a rule regulating human conduct. Not all norms are legal
rules, though. The various normative systems that influence our lives and determine our conduct include:
• religion;
• individual morality;
• community mores.
The relationship between these normative systems and the law will now be discussed.
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1.3.1 Religion
Religion determines the relationship between an individual and a Supreme Being. For someone adhering to African religion, it
lies in customs handed down, rituals, objects and dances. For a Christian the source of religion lies in the Bible, for a Muslim in
the Quran. The ultimate sanction for non-compliance with religious norms is usually varying forms of the burning fires of
hell.
Religion is often an emotional subject and can lead to extreme views. This also applies to the relationship between law and
religion.
• On the one hand, some people are of the opinion that religion and law should be mutually exclusive. This is the
secular approach to law. To them religion is a personal matter, only concerned with the individual’s private sphere of
conscience. It determines the individual’s destiny after death. The Western (liberal, secular) state is based on a
distinction between state authority and religious authority. It is not the task of the state to enforce religious norms or
convictions on its citizens. However, religious freedom must be made possible by the state, allowing each individual to
exercise a free religious choice. For this reason, for example, trade and film shows in South Africa are allowed on
Sundays, although devout Christians may object.
• On the other hand, it is sometimes accepted that religion and law should have the same content. In terms of
African legal philosophy, African law and religion are inextricably linked to one another. This also appears in Islamic
fundamentalist religious states, where law and religion are equated. The Quran dictates that theft is an offence; an
offender’s hand must be cut off. In a fundamentalist state, the law applies this religious rule as part of the law of the
land.
Both of these extremes can be criticised.

• There are many similarities between law and religion. The Western legal tradition is strongly influenced by Christian
thought. The basis of modern matrimonial law, the conservative regulation of sexual relationships, and the principle that
contracts may be concluded by mere agreement without the requirement of further formalities, for example, all stem
from church law (canon law). The content of religious and legal rules is also often the same. Examples are found
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in the offences of murder, fraud, and theft that are prohibited by many different religions alike. In addition, both law and
religion are studied by interpreting authoritative texts. In both, ritual, formalities and fixed procedure play an
important role. We should also bear in mind that the Constitution of the Republic of South Africa, 1996 protects the right
to freedom of religion in section 15. As such, there are instances where the law would respect and protect people’s right
to follow a religion of their choosing. In this way, the law attempts to promote tolerance of difference.
An example of where the law has promoted respect for difference by recognising a person’s right to freedom of
religion is the case of Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner for Gender Equality
Intervening) 1999 (4) SA 1319 (SCA). Before the case of Amod, couples who entered Muslim marriages (by making
nikkah) but who did not necessarily conclude a marriage registered with Home Affairs by following the formalities of
the Marriage Act 25 of 1961, were not properly protected in terms of the law. For example, if a Muslim husband died
in a car accident then his wife could not claim money from the wrongdoer or their insurer because of a ‘loss of
maintenance’. This was so because their marriage (and the rights and duties related to maintenance) was not
regarded as a relationship worthy of legal protection. As such, in Amod (at para 20), it was decided that this state of
affairs was ‘inconsistent with the new ethos of tolerance, pluralism, and religious freedom that had consolidated itself
in the community even before the formal adoption of the interim Constitution’. As such, the court gave formal
recognition to a Muslim marriage and extended the law’s protection to parties in such a marriage who want to claim
loss of maintenance on account of the death of a breadwinner.
• There are, however, also many differences. These two normative systems do not overlap completely. The Ten
Commandments and the Bhagavad Gita ordain that one should not covet thy neighbour’s possessions. How will a state
enforce this? This is not enforced by law. In the same way, adultery is not a crime in South Africa although it may be
regarded by some religions as ‘sin’.
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An example of where the law and religion have conflicted is the case of Christian Education South Africa v Minister of
Education 2000 (4) SA 757 (CC). Section 10 of the South African Schools Act 84 of 1996 prohibits the administration
of corporal punishment in schools. A group of Christians challenged the legislation on the grounds that it limited their
constitutional right to freedom of religion (see section 15 of the Constitution of the Republic of South Africa, 1996).
They showed that there are biblical instructions to beat children who misbehave. The Constitutional Court held that a
child’s constitutional rights to dignity (section 10), bodily integrity (section 12, specifically the right to be free from
public and private sources of violence) and to have their best interests upheld (section 28), trumped the religious
freedom of the Christian group.
Although religion and law are not always similar, there are certain aspects of the South African law that favour the Christian
religion. In criminal law blasphemy is an offence: It pertains only to the Christian God. Christian public holidays such as
Christmas and Good Friday are given preference by the government. Some might argue that this is justified as part of the
accepted religious convictions of the majority of South Africans. Whether this is in fact desirable is of course open to debate in
a country where a respect for pluralism and difference is so important.
1.3.2 Individual morality

Morality is every individual’s ideal self-image (or prescriptions for self-fulfilment or self-perfection). This concerns a private
conflict between an individual and her conscience. It may often have the same content as an individual’s religious views.
Sanctions for non-compliance are varying degrees of pangs of conscience.
Individual morality will often have the same content as legal rules. Honesty, for instance, is probably the ideal image of the
majority of individuals in our society. This morality is supported in judicial terms, for example, in that theft and fraud are
offences.
However, the law does not enforce morality as such. An individual may find drinking alcohol totally unacceptable. One drop
on his lips will fire his conscience. The law does not take cognisance of this internal conflict.
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This conflict is illustrated by the Prince cases.
First, there was the matter of Prince v President of the Law Society, Cape of Good Hope, and others 2002 (2) SA
794 (CC). Prince is a Rastafarian. During their religious ceremonies, Rastafarians use cannabis (dagga) as part of
their religious observance. However, the use and possession of cannabis was a criminal offence (section 4(b) of the
Drugs and Drug Trafficking Act 140 of 1992). Prince had twice been found guilty of this offence. Consequently, he did
not qualify for admission as an attorney because the Law Society did not regard him as a fit and proper person in
terms of the Attorneys Act 53 of 1979. According to the Cape High Court, Prince’s constitutional right to freedom of
religion had been infringed by section 4(b), but that ‘infringement’ was supposedly reasonable and justifiable (in
terms of section 36 of the Constitution) because of the difficulties associated with policing the use of this substance.
The implication of that Constitutional Court judgment is that Prince had to choose: he could either contravene the
law and not be admitted as an attorney, or he had to sacrifice his religion for his profession.
Fast forward a few years to the case of Minister of Justice and Constitutional Development v Prince (Doctors for
Life International Inc Amicus Curiae) 2018 JDR 1588 (CC). This time Prince brought his case on the basis of a privacy
infringement. The Constitutional Court considered the current medical evidence available to it and concluded that the
legislation limits the rights to privacy in an unjustifiable way because smoking dagga is probably not as harmful as
consuming alcohol. The court declared the legislation invalid and has instructed Parliament to amend the legislation
accordingly within 24 months (in other words we should have new legislation by 2020). In the meantime, the effect
of the judgment is that adults may cultivate and consume dagga in a private space for their personal use. The three
requirements for the lawful use of dagga are thus (a) the user is an adult; (b) it is grown and used in private; (c) for
their personal use. You will do well to remember that the trade in dagga is still illegal. Be that as it may, what this
case shows is that there is a growing respect in our law for an individual to have their own conscience lead the way
— you are not forced to use dagga; neither are you fully prohibited from using it. Thus, this is a space in which you
can exercise and express your individual morality.
This case illustrates the potential clash between law and an individual’s morals, religious views and the cultural values of the
society in which he functions.
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1.3.3 Community mores

Community mores are the norms of a whole community or group within that community. They are collective morals.
Etiquette, fashion and views about free love or interracial marriage all form part of this. They differ from religion and morality
in that they are not private matters concerning only a specific individual. The sanction for non-compliance is varying degrees
of disapproval by other members of society. People ordering pizzas topped with pineapple, or people eating pasta with
their hands in a restaurant, might find themselves the subject of ridicule among friends. A student wearing a ‘onesie’ on
campus is bound to be stared at. A black husband and white wife may find that after their marriage they are avoided by
conservative family members.
Sometimes legal rules and community mores coincide. This applies to the prohibition on killing a fellow human being and
the principle that damage caused unlawfully must be compensated.
The law does not always take cognisance of community mores. There may be vast differences. The community may feel that
all forms of censorship should be abolished or that taxes should be reduced. The law does not represent the community’s
values in this regard if it does not reflect these values.
In a heterogenous society there will inevitably be differences between the norms of various groups. For example, for one
group in a society polygamy or the possession and use of dagga for medicinal purposes may be acceptable.
As far as the enforcement of community morality through the legal system is concerned, two questions arise:
• How can community mores be determined? It is impossible to have an opinion poll on each issue.
• If the morality of the majority can be ascertained, should the law enforce this common morality in all cases? This
question often arises in criminal law where undesirable conduct is punished.
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Here is an example from the English case R v Brown [1993] 2 All ER 75:
‘The appellants belong to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in
the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the
giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no
permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture
chambers at the homes of three of the appellants.
The appellants were tried on charges of assault occasioning actual bodily harm, contrary to section 47 of the Offences against
the Person Act 1861.’
The majority of the court found the accused guilty because ‘public policy required that society be protected by
criminal sanction against a cult of violence which contained the danger of a proselytisation and corruption of young
men and the potential for the infliction of serious injury’.
The minority found that the conduct was not covered by existing legislation and that the court had to enforce
existing law and not moral outrage or disapproval. Lord Mustill made the following observation:
‘Lawyers will need no reminding of the first, but since this prosecution has been widely noticed it must be emphasised that the
issue before the House is not whether the appellants’ conduct is morally right, but whether it is properly charged under the 1861
Act. When proposing that the conduct is not rightly so charged I do not invite your Lordships’ House to endorse it as morally
acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I
suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is
praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What
I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the
criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own
moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to
whose ethical ideals he responds.’
In an attempt to determine whether socially deviant or generally unacceptable conduct should be criminalised or be regulated,
reference is often made to harm as a decisive criterion. This proposition was put
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forward by the philosopher John Stuart Mill. According to him, force can only be exercised over an individual if harm to
others can be prevented. The state cannot interfere merely to further the physical or moral good of the individual. The law
must only create a climate in which autonomous decision-making is possible.
The question whether community mores should be enforced by law not only arises in criminal law. Technological and social
advances also present moral dilemmas such as the following:
• Should artificial insemination of a 62-year-old woman be allowed?
• May a couple aged 50 adopt a newborn child?
• It seems that medical technology will make it possible to clone humans. Should the law allow this in a controlled manner,
allow it freely, or totally outlaw cloning?
Surrogate brings bundle of joy to gay Zulu couple
Mpho Raborife, News24, 12 May 2016
Johannesburg — Four-month-old Ndalo is dressed from head-to-toe in pink, her dad’s favourite colour. Ndalo, which
means ‘creation’ in Zulu, is the apple of her parents’ eyes. Sabelo and Sibusiso Gabuza, reportedly one of the first
black gay couples in South Africa to use a surrogate, went on a long and difficult journey to fulfil their own and their
family’s desire for children. While the staunchly traditional Zulu family of the couple promised to support them in
their marriage, they wanted an undertaking that the pair would have children. As we sit at a small café in the
Maboneng Precinct, Johannesburg, Sabelo tells News24 how, with help from one of their best girlfriends, they are
now proud parents of the beautiful baby girl. When the couple first found out that they could have a child without
adopting or having sex with a woman, they jumped at the opportunity. However, their conservative and traditional
families were sceptical. . . .
The couple struggled to understand why their families were so negative, since they had demanded that the couple
provide them with biological grandchildren, despite the fact that they were gay. . . .
During Ndalo’s first trip to Ladysmith to meet the family, Sabelo recalls some of the negative remarks from
relatives. ‘It was like a wedding in the yard. Children were there, aunties were there, neighbours were there, people
that would never come into the yard were there.
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‘And I remember, there was one granny who said “unazo izandla?” (does she have hands?). Even my brother asked me “Sabelo,
does it have eyes?” I answered so many questions, I got tired,’ he says. While the process opened the couple up to further
ridicule, it also opened them up to a curious society full of questions. . . .
The couple spent close to R400 000 on the entire process, but they have no regrets. ‘When I walked out of that hospital, I
made a promise to myself that I’m going to give my daughter the best love ever. I know there’s going to be a hell of a lot of
negativity out there. People want to know how these two guys are going to raise this child, and I said: “You know what, I’m going
to prove to them, I’m going to give her the best of the best.”’
A further question arises: Is there a place for paternalism, where the state protects the individual against his own unlimited
freedom? The law is described as paternalistic if it prescribes good conduct and morality like an omniscient father (Latin:
pater). It is acceptable that the law is paternalistic in regard to children because they do not have the capability to understand
the consequences of their deeds or to make informed choices. Hence the prohibition of the sale of cigarettes to children can be
justified. But the law regards adults as having sufficient insight and knowledge to make free choices.
Is this always true? According to opinion polls in 1994, the majority of the South African community was in favour of the
retention of the death penalty. Nevertheless, in S v Makwanyane 1995 (3) SA 391 (CC) the Constitutional Court found the
death penalty to be unconstitutional and abolished it. The President of the Court expressed himself on the role public opinion
played in the court’s decision as follows:
‘I am . . . prepared to assume . . . that the majority of South Africans agree that the death sentence should be imposed in extreme cases of
murder. The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is
whether the Constitution allows the sentence. Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the
duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour.’
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1.4 Law and justice

From the earliest times justice was regarded as an ideal of any legal system. Justice does not have a fixed content. If the
ancient Greek philosopher Aristotle is taken as a starting point, we can distinguish between distributive and corrective justice.
Distributive justice means that there must be an equal distribution among equals. Corrective justice aims at restoring
inequalities. An essential element of justice that is apparent from this is the emphasis on equality.
Consider the following image of Lady Justice. Do some research and reflect on her relationship with equality and
justice.
Lady Justitia
But does the law always embody justice? In this regard one may distinguish between adjective (procedural) and substantive
(material) law. Procedural law is comprised of the legal rules and processes according to which a court reaches a decision or
solution. Substantive law consists of the material legal rules.
Our legal process strives towards formal justice in the following respects:
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• It arises from the overriding principle that like cases must be treated alike. The system of precedent is the judicial
instrument which ensures this (see Chapter 3 of this book).
• Criminal procedure regards an accused person as innocent until proven guilty. The process requires that both sides be
heard, that a person must appear before court within a reasonable time and that no force or undue influence may be
used to induce an accused to confess to a crime.
The content of legal rules (material law) does not necessarily coincide with justice. The Group Areas Act 41 of 1950 was an
example of legislation embodying social injustice. The system of influx control also led to the disintegration of families and
introduced other social evils. The essence of justice (equality) was negated in both these cases through legislation, as only
certain sections of the community were adversely affected.
As to the question whether law must embody justice to qualify as law, two different jurisprudential (legal philosophical)
approaches may be identified: legal positivism and natural law.
1.4.1 Legal positivism

Legal positivists answer the question of what law is by reference to that which is and not that which ought to be. According
to this approach, it is irrelevant whether law is just and fair. Morality and law are distinctly separated from each other, since
they can be empirically distinguished from each other. Law is what is set down in statute books, in rules and in court decisions.
This approach is positivistic because only those rules that are given positive force of law can be regarded as law.
According to this view of law, judges have an almost mechanical function merely to apply law: ius dicere non facere (judges
speak the law; they do not create law). Such an approach is clear from the decision in S v Adams; S v Werner 1981 (1) SA
187 (A). Werner, a ‘coloured’ person, was forced to live in an area designated for ‘coloureds’. This designation was in terms of
the Group Areas Act 36 of 1966. The specific area was overcrowded and unhygienic. Werner and his wife moved to a
neighbouring area with adequate housing. This area was reserved for ‘whites’ only. He was later convicted under the Group
Areas Act. On appeal it was argued on his behalf that the application of the Act was unfair, among other things, because there
was an inescapable need for housing in the ‘coloured’ area. The court conceded that the application of
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the Act was unfair but remarked that this unfairness was something the legislature had foreseen. The court’s function was not
to strive towards fairness, but to apply the Acts of Parliament, irrespective of the social, political and economic implications.
1.4.2 Natural-law approach

In direct contrast to positivism is the natural-law approach. According to this approach law has a moral dimension — the law
is not only that which is promulgated (given positive content), but what ought to be. The characteristic feature of this
approach is that there is a moral code or a set of moral principles that exist irrespective of human interaction or positive law.
These are ‘higher norms’ against which human positive law can be judged. If positive law conflicts with these norms, it is
unjust. An unjust law is no law at all. The legality of legal rules for natural lawyers depends on the moral content of the laws.
The phrase ‘natural law’ indicates that these norms are found in the harmony and order of nature or in human nature.
Sometimes the eternal laws of God are seen as the source of natural law. The content of natural-law norms can be found by
human reason. They apply universally, for all times and places. No legislature is necessary to impose them or give them
content.
This approach can be illustrated with reference to slavery. A law that allows slavery will be regarded as no law at all.
Slavery is contrary to the desire to be free, which is part of human nature. It conflicts with the human dignity with which every
person was created. This norm is universally applicable in all societies and in all places because slavery is regarded as unfair.
The application of any person’s reason or common sense will lead to this conclusion.
A natural-law approach in practice often gives rise to the question: Must a rule or Act be obeyed even if it is regarded as
unfair or unjust? Disobedience can be either violent or non-violent. The latter form of resistance against law is known as
passive disobedience or civil disobedience. In South Africa, Gandhi used this method in a campaign against laws which
discriminated against Indians. Pass laws were a product of apartheid. When the government tried to extend pass laws to
(black) women, they campaigned against it. On 9 August 1956 thousands of women gathered at the Union Buildings in
Pretoria to voice their protest. Since 1995, we have commemorated this day as National Women’s Day.
Page 17
Martin Luther King Jr. was a leader in the civil rights movement in the USA during the 1960s. This movement undertook
various protest campaigns against racism in the law. King and others participated in a demonstration in spite of a court order
prohibiting it. King was criticised by some of his colleagues because he did not obey the rules of the country. In a letter
justifying his conduct he wrote the following:
Breaking the law
‘You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so
diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather
strange and paradoxical to find us consciously breaking laws. One may well ask, “how can you advocate breaking some laws and
obeying others?” The answer is to be found in the fact that there are two types of laws: There are just and there are unjust laws.
I would agree with Saint Augustine that “An unjust law is no law at all.”
Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made
code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put
it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that
uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because
segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated
a false sense of inferiority.
We can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in
Hungary was “illegal”. It was “illegal” to aid and comfort a Jew in Hitler’s Germany. But I am sure that if I had lived in Germany
during that time I would have aided and comforted my Jewish brothers even though it was illegal. If I lived in a Communist
country today where certain principles dear to the Christian faith are suppressed, I believe I would openly advocate disobeying
these anti-religious laws.’
King A Testament of Hope (1986) 289
Nelson Mandela surely needs no introduction to you. During the Rivonia Trial he made a statement from the dock to an open
court that was broadcast all over the world. This statement is really a call to follow the spirit of natural law:
Page 18
‘Your Worship, I would say that the whole life of any thinking African in this country drives him continuously to a conflict between
his conscience on the one hand and law on the other. This is not a conflict peculiar to this country. The conflict arises for men of
conscience, for men who think and feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell, probably the
most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand
before you today, for following his conscience in defiance of the law. For him, his duty to the public, his belief in the morality of
the essential rightness of the cause for which he stood, rose superior to his high respect for the law. He could no other than
oppose the law and suffer the consequence for it. Nor can I . . . . Nor can many Africans in this country.’
Nelson Mandela, The Struggle Is My Life (1990) 148-154 quoted in WB le Roux ‘Natural Law Theories’ in C Roederer
& D Moellendorf Jurisprudence (2004) 25.
Bram Fischer is one of the few white, Afrikaans lawyers who sacrificed their lives in the struggle against apartheid. He was a
practising advocate and was a member of the South African Communist Party (SACP). When the SACP was banned in 1950,
Fischer remained one of the party leaders. During the 1956 Treason Trial, when Nelson Mandela and others were charged with
treason against the state, Fischer was a member of the defence team.
In 1964 Fischer himself was accused of contravening the Suppression of Communism Act. He was found guilty and
sentenced to life imprisonment. He died as a prisoner in 1975. The following statement, which he made during his trial,
reflects the natural-law approach:
‘I accept, my Lord, the general rule that for the protection of society laws should be obeyed. But when the laws themselves
become immoral, and require the citizen to take part in an organised system of oppression — if only by his silence and apathy —
then I believe that a higher duty arises. This compels one to refuse to recognise such laws.’
The law has changed somewhat since the time of Mandela and Fischer’s trials. As we have mentioned above, the Constitution
of the Republic of South Africa, 1996 (which contains a bill of rights — including the civil and political rights that King Jr,
Mandela and Fischer and others fought for) is the supreme law of the land and all law and conduct must be weighed up
against it. As such, the Constitution is regarded as an
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embodiment of a specific type of natural law because a law that is in conflict with the Constitution is invalid once a court
declares that to be the case. Thus, the idea is that an unjust law will be no law at all.
A bigger question now arises: What is the ‘natural law’ that we could test the Constitution against? In other words, what
standard can we measure the Constitution against to ensure that its provisions are applied in a way that promotes justice?
This is a question that can lead to excellent debates and we encourage you to think critically about it.
1.5 Law and certainty

Legal certainty means that law is predictable, that it will be applied consistently and that it has a fixed and certain content.
This is the ideal of legal practitioners and ordinary people alike. They want to know what the legal position in a specific case is
so that clients can be advised and lives can be planned.
https://web-s-ebscohost-com.ukzn.idm.oclc.org/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=56f8b898-fd20-45f9-90a2-4e7b… 10/13
Large areas of law are fairly fixed and certain. However, certain factors, such as language, changing values and judicial
discretion, make legal certainty an illusion.
1.5.1 Language
Legal rules are cast in language. Language must be interpreted. Words do not have fixed and simple meanings. Each word in
its definition recalls certain other words which in their definition will refer to other words, and so forth. Even a relatively simple
word or phrase can be understood in more than one way. Take the example of a provision of the Marriage Act 25 of 1961.
Section 29(2) stipulates that a marriage ceremony may be concluded ‘in’ a house with open doors. In Ex parte Dow 1987 (3)
SA 829 (D) a man applied for the annulment of his marriage because it was concluded in the garden of a house. Strictly
speaking he is correct: the marriage was not concluded ‘in’ a house. ‘In’ is defined as follows: ‘inclusion or position within
limits of space’ (Concise Oxford English Dictionary). According to the judge, the aim of the article is to prevent secret
weddings. ‘In a house’ therefore includes ‘in the garden’. He made the following observation (at 833C):
‘A marriage is such an important contract and relationship, and the consequences of a decree of nullity can be so far-reaching, that I do not
consider that the Legislature intended non-compliance with the two-letter word ‘in’ to be visited with nullity.’
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This shows us that law can become unpredictable because law must be interpreted and given meaning.
1.5.2 Changing values

The changing values of a community, and even technological and other developments, must also be taken into account. The
law must adapt to these changing circumstances in order to remain effective. The most important way in which this occurs is
through legislation. For example, the Interim Constitution (1993) and the Constitution of the Republic of South Africa, 1996
represent a drastic departure from the previous political dispensation. The Tobacco Products Control Act 83 of 1993, as
amended in 2007, represents changing attitudes towards the use of cigarettes. The Space Affairs Act 84 of 1993 aims at
bringing South Africa into line with technological developments in the field of outer space. Various acts have been passed to
implement the government’s land reform programmes. Two examples are the Restitution of Land Rights Act 22 of 1994 and
the Land Reform (Labour Tenants) Act 3 of 1996.
Judges must take changing values into account when they give decisions on matters which are not clearly covered in
legislation. The law often stipulates that judges must decide certain matters based on the ‘legal convictions of the
community’ (Latin: boni mores), also called ‘public policy’.
In Clarke v Hurst 1992 (4) SA 630 (D) — a case decided before the democratic constitutions came into effect — the court
had to decide if a wife may be appointed as her husband’s curator with the power to make decisions about his medical
treatment. The man was terminally ill, in a permanent vegetative state and was unaware of his surroundings. There was no
previous decision in which a court allowed passive euthanasia. Judge Thirion, however, found that the legal convictions of the
South African community (also known as ‘public policy’) do not regard the stopping of medical treatment as unlawful if a
person is being kept alive artificially. Accordingly, he granted the wife’s application. A 1997 discussion paper of the South
African Law Commission recommended that this position should be confirmed in legislation.
Van Erk v Holmer 1992 (2) SA 636 (W) dealt with a natural father’s inherent right of access to his child born out of wedlock.
Previously the courts had only recognised a father’s right of access to legitimate children. Judge Van Zyl found that the time
was ripe to extend this right to children born out of wedlock (at 649C, our emphasis):
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‘In establishing whether public policy requires a new approach to and fresh outlook upon existing law one must, I believe, take cognisance of
what the general public’s views are on the subject. A thought-provoking article by Margaret McAllister and Narieke Brand, “Fighting to be a
Father”, appeared in the Fair Lady issue of 24 April 1991. Linda Shaw was responsible for two similar contributions in the Sunday Times of
1 December 1991 (“The Unwanted Daddies”) and 15 December 1991 (“In the Best Interests of the Child”). These are only examples of what I
understand to be numerous appeals for a reconsideration of the father’s relationship with his illegitimate child. In my view public policy
dictates that, just as there should be no distinction between a legitimate and an illegitimate child, just so there is no justification for
distinguishing between the fathers of such children.’
This approach was rejected by the Appellate Division in B v S 1995 (3) SA 571 (A). That court observed as follows:
‘It may well be that most fathers of illegitimate children nowadays are concerned about the welfare of their children and committed to
enhancing the latter’s best interests, particularly where the children are born of a so-called live-in relationship between the parents. If there
are sound sociological and policy reasons for affording such fathers an inherent access right, in addition to the right they already have to be
granted access where it is in the best interests of their children, then that is a matter that can only be dealt with legislatively.’
Subsequently the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 was passed. This Act provided that fathers of
children born out of wedlock may apply for a court order granting them access rights. This position is confirmed in the
Children’s Act 38 of 2005.
The problem with judges basing a decision on changing community values is the uncertainty about who or what ‘society’ is.
On what basis can anyone claim to know what society’s views are on a specific issue? In English law the standard used to
ascertain the ordinary person’s views is to formulate the views of the man travelling on the ‘Clapham omnibus’ (a municipal
bus from an ordinary residential area). In South Africa a gulf exists between those people in the minibus taxi and those in the
flashy BMW. It is thus unrealistic to try and base changing values on the community’s legal convictions. This approach can
easily be used as a cloak to hide the judge’s own preferences or prejudices. Indeed, if you consider the sources consulted in
Van Erk’s case above, it is telling that it was the Fair Lady magazine that was consulted and not the Drum; it was the Sunday
Times newspaper and not the Sowetan.
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Thankfully, since the dawning of the democratic constitutional dispensation in South Africa, the legal convictions of the
community or public policy are given content to with reference to the Constitution of the Republic of South Africa, 1996. The
ground-breaking case that confirmed this position is Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC). In Carmichele a dangerous criminal with a track record of violent crime was
released on bail, while the prosecutor involved in the case could have opposed the criminal’s release on account of his previous
convictions. However, the prosecutor did not oppose the criminal’s bail. The criminal was let free, pending his trial, and
subsequently assaulted Ms Carmichele. The question posed was whether the prosecutor owed Ms Carmichele a legal duty to
prevent the criminal from being released, and because of a breach of that duty, Ms Carmichele suffered harm that she could
claim damages (money) for. She would claim damages based on the rules of common law. Whether or not a legal duty such as
this exists, is a question that must be determined with reference to the legal convictions of the community. The court indicated
(at para 43) that this criterion would now have to be understood,
‘in accordance with the “spirit, purport and objects of the Bill of Rights” and the relevant factors must be weighed in the context of a
constitutional state founded on dignity, equality and freedom and in which government has positive duties to promote and uphold such
values.’
As such, given the important constitutional role that the state must play in protecting the rights of individuals, Ms Carmichele
successfully showed that the prosecutor owed her a duty not to cause her harm. Later on, in the similar case of Minister of
Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at para 17, this approach was most clearly formulated as
follows (footnotes omitted):
‘[T]he “convictions of the community” must necessarily now be informed by the norms and values of our society as they have been embodied
in the 1996 Constitution. The Constitution is the supreme law, and no norms or values that are inconsistent with it can have legal validity –
which has the effect of making the Constitution a system of objective, normative values for legal purposes. In Carmichele v Minister of Safety
and Security and Another (Centre for Applied Legal Studies Intervening) our Constitution was likened to the German Constitution, of which
the German Federal Constitutional Court said the following:
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“The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive
subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value
for all areas of the law, acts as a guiding principle and stimulus for the Legislature, Executive and Judiciary.”’
Parliament, as the democratically elected representatives of the community, has a more legitimate basis to convert changing
community values into law. An example of Parliament exercising this power is the changed legal position on rape in marriage.
In the case of S v Ncanywa 1992 (1) SACR 209 (Ck) it was decided that a man can be found guilty of raping his own spouse.
Judge Heath rejected the rule (originating in Roman-Dutch and eighteenth-century English law) that a man may never be
found guilty of raping his own wife. The modern South African society differs from the eighteenth century. He remarked as
follows (at 235B–C):
‘In my own view, it is overwhelmingly likely that the South African society is against such an old-fashioned principle and that society will
regard it as obsolete, insofar as it might have existed . . . The old, medieval concept of the husband’s dominion over his wife’s body and the
concept of his marital privileges have been abrogated in various spheres and in different stages of its application since the previous century in
most civilised countries.’
This decision was overturned by the Ciskei Court of Appeal in S v Ncanywa 1993 (1) SACR 297 (CkA). According to this case,
marital rape is not a crime. However, with the Prevention of Family Violence Act 133 of 1993 the legislature resolved the issue.
Section 5 of this Act provides that a man may be found guilty of the rape of his spouse. Legal certainty was restored. In this
way, the legal position now reflects community mores.
1.5.3 Judicial discretion

The interpretation of words and norms implies that judges have a discretion in applying law. This discretion inevitably
highlights subjective prejudices and attitudes.
Judicial subjectivity appears especially in the case of sentencing where no fixed sentence is prescribed. Between 1990 and
1995 a judge could, for example, impose the death penalty only in cases of exceptional seriousness where it was the only
proper sentence. Analyses show that
Page 24
some judges were more predisposed to impose the death penalty than others.
In various cases judges of our highest court have differed on the question whether the death penalty is the only proper
sentence. In S v Van Niekerk 1992 (1) SACR 1 (A) the majority found that the death penalty was appropriate. Judge of Appeal
Milne differed on the question whether the danger that the accused may pose to co-prisoners should be taken into account.
Because life imprisonment would also be an appropriate sentence, he was of the opinion that the death penalty should be
substituted by life imprisonment.
See www.jutapassmasters.co.za for the majority and minority judgments in Nkomo v S [2006] SCA 167 RSA
concerning sentence in a rape case.
Acknowledging that the exercise of judicial discretion has a bearing on society, the approach of judicial officers is often divided
into judicial activism and deference (often amounting to executive-mindedness). Judicial activist judges use their discretion
creatively to interpret the law in order to effect social change, while deferential judges curtail their discretion by deferring to
the executive or legislature, often allowing them to effect social change.
In a legal system such as ours, where the Constitution is the main source of legal authority, it is impossible to insist that
judges merely ‘speak’ the law and play no part in ‘creating’ it. The Constitution (and in particular the Bill of Rights) contains
open-ended values that make a relatively wide latitude of discretion inevitable. When interpreting the Bill of Rights (see
Chapter 6 of this book) the Constitution requires judges to promote certain values. According to section 39 of the Constitution,
these values include equality, freedom and human dignity.
In his judgment in S v Makwanyane 1995 (3) SA 391 (CC), Justice Kriegler (at para 205) noted that the ‘judicial process
cannot operate in an ethical vacuum’, because ‘concepts like “good faith”, “unconscionable” or “reasonable” import value
judgements into the daily grind of courts of law’. He added that it would be ‘foolish to deny that the judicial process, especially
in the field of constitutional adjudication, calls for value judgements in which extra-legal considerations may loom large’.
However, he insisted that the starting point of constitutional adjudication must be legal, as it is governed by a legal text (the
Constitution) and is performed by lawyers (ultimately, the Constitutional Court): ‘The
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incumbents are judges, not sages; their discipline is the law, not ethics or philosophy and certainly not politics.’
See www.jutapassmasters.co.za for the Supreme Court of Appeal’s criticism of the trial court’s judgment in
Ekurhuleni Metropolitan Municipality v Dada NO 2009 (4) SA 463 (SCA).
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Chapter 2
A History of South African Law
Introduction
Someone not acquainted with South African legal history probably already knows several
important facts which tell part of the story. These facts give rise to questions:
• Many African people in South Africa live according to their own traditional customs and
practices. This is called ‘indigenous law’ or ‘customary law’. Others live according to
customs based on religion such as Islam. What part do indigenous and religious laws play in
the South African legal system?
• South African law is sometimes referred to as ‘Roman-Dutch law’. This term logically
implies a mixture of two legal systems: Roman law and Dutch law. But what is Roman law?
What is Dutch law? Why did they merge, and what has this got to do with South African law?
• On account of English colonisation, one might be wondering what role English law has
played in the development of the South African legal system.
• A very important change occurred in South Africa when the first democratic constitutional
dispensation was established in 1994. This new dispensation provides for the application of
human rights. What influence does this have on our legal system?
The answers to these questions explain the nature and character of South African law. But before
we get to the substantive history of South African law, we must first understand why the study of
legal history is important for law students.
2.1 Importance of legal history

• Legal history explains the present character of law. The present is, in many respects, a
product of the past. The past (history) explains why the present situation is as it is. This is
the same with law. There are historical reasons for the character of present-day South
African law. A knowledge of legal history leads to a better understanding of modern law.
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• An understanding of legal history facilitates necessary change in law. Every society

lives according to a specific legal system. A society’s values and needs change with time and
this creates a need for the legal system to change and adapt as well. Law is not static. Since
the 1990s, South African society has been experiencing drastic changes. A new political
dispensation, a new Constitution, and various new social structures have come into
existence. Especially now, the legal system has to adapt in many respects. A knowledge of
legal history shows how law has already changed and adapted through the centuries. This
tends to foster a critical view of law, which is essential in assessing the need for change. A
critical approach can lead to the realisation that law does not necessarily have to be as it is.
It can change, as it has in the past. A further dimension to the critical study of legal history
involves the admission that there is not one, certain ‘history’ but that there are in fact
multiple ‘histories’ that are told from different perspectives at different points in time. So, the
account of South African legal history that we give below is one version (what we believe to
be a convincing account) of many competing versions of the legal histories in this country.
• Our legal history is living law. One of the historical components of South African law is
called South African ‘common law’. It is important because parts of it are still in force in
South Africa today. It is ‘living’ law which is still applied by our courts. The same can be said
about customary law which is also evidence for the fact that our legal history is alive and
kicking in South Africa today. The reason for this is that South Africa, like Britain, has an
uncodified legal system. This means that our legal system is not in its entirety written down
in a single code. A codification of law (a code) is a comprehensive version of the law in
writing that has the force of legislation. It is, in other words, an authoritative recording of the
law. However, a mere recording of the law in writing, such as a textbook written by an
academic, is not a codification. The written recording of the law must, in addition, be passed
as legislation by an organ of state, such as Parliament. In a codified legal system, the
answers to legal questions are to be found in the code as the primary source of the law. The
legal systems of most European countries are codified. Because the South African legal
system is not codified, our law is found in various sources, two of which are
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our customary law and common law. This means that South African lawyers cannot turn to
only one source of law when they search for answers to legal problems. In some cases, they
find such answers by studying our legal history.
• Our legal history links us to other countries. The history of the South African legal
system links South Africa to various countries in Africa and Europe, as well as to Britain and
other countries in the world. The reason for this is that the South African legal system, to a
greater or lesser extent, shares a common legal history with these countries. This is so either
because it developed from the same roots, or because it was influenced by the same
historical factors, or because these systems influenced the South African legal system.
Because history determines the character of a particular legal system, the South African legal
system shares many common characteristics with other countries. Certain legal rules are
frequently the same in different legal systems. This fact is important in light of a growing
tendency towards globalisation, where the countries of the world are, for various reasons,
moving closer together. It is often necessary and useful to look at how other countries solve
certain problems which also occur in South African law. If the character of those legal
systems is in accordance with that of South African law, it makes legal research easier and
enhances the likelihood of finding a suitable solution. This method of turning to other legal
systems for guidance and solutions is called ‘legal comparison’ (see Chapter 15 of this book).
The course of South African legal history can be illustrated as in Figure 2.1:
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Figure 2.1
When people speak about South African history, they often start the story with the arrival of Jan
van Riebeeck in the Cape of Good Hope in 1652. By doing this, they seem to suggest that the
‘worthwhile’ or ‘relevant’ history of South Africa only starts with the arrival of the colonists. In this
discussion of South African legal history, we start the story before colonisation. We do this because
we are of the view that the frank recognition should be made that people with functioning legal
systems lived in the space that we today know as South Africa, long before the colonists arrived.
Those first inhabitants — in modern literature referred to as indigenous or First Nations
peoples — lived in kinship societies with their own legal systems.
We discuss the general nature of customary law as the main source of law during the first phase
of South African legal history. The second phase of South African legal history involves the
introduction of Roman-Dutch law by colonists in the seventeenth century. The third phase is the
second round of colonisation that South Africa experienced under British rule and the
consequences thereof. The fourth and fifth phases relates to what Joel Modiri (in The Jurisprudence
of Steve Biko: A Study of Race,
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Law and Power in the ‘Afterlife’ of Colonial-Apartheid) might call ‘the afterlife’ of formal colonial
rule stretching into and beyond the apartheid era. The fifth phase investigates the introduction of a
constitutional democracy in South Africa and its implications for understanding the earlier phases
of South African legal history.
2.2 Phase one: Africa first

The First Peoples of the space today known as Sub-Saharan Africa were black people. Those
people lived according to their own African legal systems. This law is called indigenous or
customary law. Although the customary laws applicable at that time have always been subject to
development as society developed over time, customary law still remains an important source of
law in South Africa today. It has displayed and continues to display the following general
characteristics:
• It usually consists of unwritten customs that are passed on orally from generation to
generation. This form of customary law is referred to as ‘living’ customary law and can be
modified to accommodate changing conditions. However, in some instances customary law
has been recorded in writing, for example, in legislation, court decisions (case law) and
textbooks. This is known as ‘official’ customary law. It is difficult to change or adapt this form
of customary law and it is not always regarded as a correct version of customary law as it is
practised in communities.
• It differs on a tribal and territorial basis.
• It mainly regulates the relationships between individuals, and not relationships between
individuals and the state. The reason for this is because it was not developed within a
strongly organised state structure.
• It is a communal or group-orientated system, in contrast with the more individualistically
orientated Western law.
Unfortunately, the details about the development of customary law before the colonists arrived and
even during the time of colonisation have not been thoroughly recorded. This relates to the fact
that customary law (for the most part) has always been unwritten. As such, when the colonisers
arrived and started disregarding the laws of African people, some of those laws were destroyed or
changed beyond recognition from their original form. One historical fact that we are certain about
is that there
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were African people occupying the space that was colonised during the seventeenth century and
that they did have their own customary laws. An important consideration that we will return to in
our discussions of each of the subsequent phases of South Africa’s legal history is how customary
law was dealt with during each phase.
2.3 Phase two: Dutch colonisation

The Republic of the United Netherlands experienced its golden age during the seventeenth century.
Extensive commercial exchange took place between the Netherlands and the East (India and
Indonesia) via the sea route around the Cape of Good Hope. The central government of the
Netherlands, the Estates-General, appointed a trading company, the Dutch East India Company
(VOC) to administer the commercial relations with the East on their behalf and to control the
Dutch territories in the East.
In 1652, Jan van Riebeeck, an official of the VOC, came to the Cape to establish a refreshment
station for the ships on their journey between the Netherlands and the East. Later on, the Dutch
colonised the Cape. Despite the existence of legally developed black communities in the space
today known as South Africa, the Dutch took control over the Cape in accordance with
international law (the law that regulates the relationship between different states) of the time.
According to international law at that stage, one state (for example the Netherlands) could occupy
a territory and exercise sovereign power over it (1) if the territory was a res nullius (meaning it
had no previous owner); and (2) if the state had the intention of colonising it. In deciding that the
territory at the Cape had no previous owner, the Dutch reasoned that the black people living there
were not Christian and did not recognise private ownership. Thus, they could not be described as a
‘civilisation’ in the eyes of the Dutch. As such, they reasoned that colonisation was justifiable.
Ironically, even though black communities did have a more communal understanding of the
purpose of property, they did recognise private ownership. Clearly the Dutch colonists were
informed by the Eurocentricism of the time.
The Dutch colonists at the Cape lived according to Roman-Dutch law (a concept that will be
explained to you later in this discussion), because that was the legal system with which they were
acquainted. The official sources of law in the Cape under Dutch rule were:
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• The Roman-Dutch law of Holland;

• Batavian Placaaten (legislation from the Dutch colony of Batavia that is today known as
Jakarta);
• The Statutes of India.
Over the next almost 150 years the settlement at the Cape expanded and Roman-Dutch law was
further developed and applied by the settlers’ established courts as the legal system. The courts of
the settlers were known as landdrosten and heemraden.
During this time, the Dutch colonial authorities ignored the customary law of African people.
They afforded no recognition to the African legal system. As such, the South African legal historian
Gardiol van Niekerk (in The Endurance of the Roman Tradition in South African Law) observes that
the Roman-Dutch law was imposed on African people. This is an important term to use in this
regard. If the African people voluntarily received European law, the process would have been
called a reception of law. If the First People of Africa had no laws, the introduction of European
law would have been called a transplantation.
At this point you might be asking ‘but what on earth is Roman-Dutch law?’. As the name
suggests, it is a combination of Roman law that was later received and developed by the Dutch. To
understand what Roman-Dutch law is, we need to take one step back and break it up into its
constituent parts. The rest of our discussion on Dutch colonisation now turns to firstly explain what
‘Roman law’ involved. We then move on to the idea of the ‘Reception’ of Roman law in many parts
of Western Europe during and after the Middle Ages. Finally, we show how Roman law influenced
the Dutch legal system to the point where it could be called ‘Roman-Dutch’ law.
2.3.1 The ‘Roman’ component of ‘Roman-Dutch’ law

Roman law is the legal system that was developed by the Roman civilization over a period of
approximately 1 300 years, from 753 BCE to 565 CE. Today, the principles of Roman law still form
part of the legal systems of many countries in the world. In South Africa, it is the basis of our
common law. During their long history, the Romans lived under a number of different constitutional
(political) dispensations. This, together with the concurrent social changes, influenced the
development of their law. We shall now look at the development of Roman law during the various
constitutional dispensations.
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(a) Roman Monarchy: Period of the Kings (753 BCE – 510 BCE)
According to tradition the Romans founded the city of Rome in Italy in 753 BCE. Rome today is still
the capital of Italy. During this period seven kings reigned over the Romans, who were primitive
farmers living according to unwritten customs which were passed down from generation to
generation. Religious rules formed part of the law.
(b) Roman Republic (510 BCE – 27 BCE)

The despotic behaviour of the last king eventually resulted in his being driven from Rome in 510
BCE. A new constitutional order, the Republic, was installed. It consisted of three components:
• two executive officials (magistrates), known as consuls, who replaced the king;
• the popular assembly (the assembly of the people) which passed legislation; and
• the senate, an advisory body. The resolutions of the senate were in theory only advisory
but were followed as if they had the force of law.
Early in the Republic, in 450 BCE, Roman law was codified for the first time in the Law of the
Twelve Tables. This first written account of the law was passed by the popular assembly as
legislation and contained primitive rules suitable for a primitive society. It stipulated, for example,
that a debtor who could not pay his debts could be killed and that his creditors could each obtain a
part of the body. In the Twelve Tables law and religion were separated. The Twelve Tables also
made the law more accessible to the citizens of Rome and brought about some degree of certainty
about what the law was.
During the period of the Republic, Roman society experienced enormous growth and
development. The Romans began to conquer the whole of Italy and large parts of the rest of
Europe. Their success led to the creation of the Roman Empire, which eventually included the
whole of Western Europe, parts of Asia Minor, North Africa and also parts of Britain.
At the same time, Roman society became more sophisticated and the contact with other nations
brought about an expansion in trade. The law obviously also had to develop and adapt in order to
accommodate the
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changing needs of society. Because of the flourishing trade, a number of rules for the contract of
sale were created during this time. These rules still apply in present-day South African law.
Special officials (magistrates) were appointed, called the praetores, who had the responsibility
of developing the law. They laid down legal rules in edicts which were then promulgated.
This development of the law, in turn, gave rise to a class of people known as the jurists, who
undertook the study of law in a scientific manner.
(c) Roman Empire (27 BCE – 1453 CE)
Eventually (in 27 BCE), the Republic made way for a new constitutional dispensation, called the
Empire, during which the Romans were governed by emperors. The popular assembly, the senate
and the republican magistrates gradually lost their importance as all the power was now centred in
the hands of the emperors. The emperors assumed the function of the popular assembly, and
personally began to promulgate imperial legislation.
During the first two centuries CE the Roman civilization and culture, as well as the expanded
Roman Empire, reached their ‘highest’ state of development. Law, too, reached its pinnacle,
largely through the efforts of the jurists. Famous jurists during this time — sometimes called ‘The
Great Five Roman Jurists’ — were Gaius, Ulpianus, Modestinus, Papinianus, and Paulus. Their
approach to law as a sophisticated legal science and their extensive writings ensured its growth
and development. In fact, Roman law of this period is usually referred to as ‘classical Roman
law’. After this period Roman law was, in general, characterised by decline and retrogression.
Never again would it aspire to the heights of the classical Roman law period.
At the end of the fourth century CE the Roman Empire split into two: the Western Roman
Empire with Rome as its capital and the Eastern Roman Empire (also called the Byzantine Empire)
with Byzantium (also then known as Constantinople; today Istanbul in Turkey) as its capital.
Eventually the centre of the Empire shifted to Byzantium. During this period the Christian religion
was accepted as state religion and began to exert a marked influence on the law. For example, the
institution of marriage was now founded on Christian principles.
The Western Roman Empire was gradually overrun by Germanic tribes and in 476 CE a
Germanic ruler ascended the throne in Rome.
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This event is usually referred to as ‘the fall of the Roman Empire’. The Romans were now subjected
to Germanic rule and the Germanic peoples had their own law. This Roman-Germanic society
assumed its own character, which differed from that of the Roman society of classical times.
Classical Roman law was, accordingly, watered down, simplified and became infiltrated by
Germanic law.
Roman law survived more successfully in the Eastern Roman Empire than in the West. The
Emperor Justinian ruled in Byzantium from 527 to 565 CE. By this time, Roman law, despite its
advanced development, was almost impossible to access or retrieve. Over the centuries the
different ruling dispensations with their different legal sources had left a chaotic legacy for those
responsible for the application of the law. There was no systematic and up-to-date statement of
the law. The law was to be found in the following sources:
• customary law;
• legislation of the popular assembly (also the Law of the Twelve Tables);
• enactments of the senate;
• edicts of the republican magistrates such as the praetores;
• writings of the jurists;
• imperial legislation (legislation passed by the Emperors).
Justinian wanted to bring order and decided to codify Roman law as a whole. He wanted to provide
one final and primary source of law in which all the answers to legal problems could be found. This
codification of Justinian is known as the Corpus Iuris Civilis. It is an enormous work which
consists of four parts:
• The Institutiones is a textbook for law students that explains the law simply and clearly.
• The Digesta is a codification of the works of the Roman jurists. It forms the largest and
most important part of the Corpus Iuris, and is a collection of the opinions of Roman jurists
who wrote on all the sources of Roman law.
• The Codex is a collection of imperial legislation.
• The Novellae is new legislation passed by Justinian, which he promulgated after the
formation of the Codex. Justinian accepted the non-static nature of law and its need for
constant development and adaptation in line with societal changes. He embodied these
developments in new legislation.
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Figure 2.2
Roman law thus took on its final form in Justinian’s Corpus Iuris Civilis in the sixth century. As set
out in the Corpus Iuris, Roman law is a sophisticated legal science notable for its aspirations
towards justice and its regulation of relationships between individuals according to the principles of
fairness and good faith. It is this source that we mostly consult today in order to find Roman law.
After the death of Justinian, his Corpus Iuris, ironically enough, had little influence in the West,
where the Romans and the Germanic tribes lived according to Germanic law and simplified Roman
law. In the Eastern Roman Empire, the Corpus Iuris soon became simplified, and it was never
applied in practice in the manner intended by Justinian. The Eastern Roman Empire existed until
1453, when it was conquered by the Turks.
The following questions now arise: How did Roman law become merged with Dutch law, so that
Roman-Dutch law came into existence? Why is modern law worldwide, and in South African in
particular, still influenced by Roman law? The answers to these questions lie in what is called the
‘reception’ of Roman law.
2.3.2 The reception of Roman law
‘Reception’ means the process through which Roman law, as embodied in the Corpus Iuris Civilis,
was voluntarily received in and merged with Germanic law in Western Europe from the twelfth
century. This, in fact, means that the Corpus Iuris Civilis, which was compiled in the sixth century
in the Eastern Roman Empire in Byzantium, started to influence Western Europe only six centuries
later. So, although Justinian did not succeed in his ideal of providing his society with an ideal
system of law, he did succeed in saving Roman legal science for posterity. To understand this
strange phenomenon (the reception), we need to understand the structure of society in twelfth-
century Western Europe.
Western Europe was overrun and conquered by Germanic tribes, a process which eventually led
to the fall of the Western Roman Empire in
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476 CE. Thereafter the structure of central government of the Western Roman Empire gradually
disintegrated and Western Europe entered the so-called Dark Middle Ages. This was a restless
period, characterised by continuous hostile attacks. The population of Western Europe became
fragmented into small societies or estates as a result of the socio-economic order known as
feudalism. Feudalism is a system of land tenure which has a military basis. According to this
system, landowners (landlords) gave their land in tenure to vassals. For the purposes of protection
against attacks they sided with a specific landlord. The vassals lived on the land and worked it.
They had certain duties towards the landlord, including military support. People were dependent on
land for their survival. There were no large-scale commercial relations that had to be supported by
a sophisticated legal system. The only authoritative institution that was strongly organised in a
unitary fashion during this time was the Roman Catholic Church. It was headed by the Pope and
had its seat in Rome.
The feudal societies of Western Europe lived according to Germanic law. Only occasionally were
traces of Roman law to be found. Germanic law consisted mainly of unwritten customs and
traditions that were passed down from one generation to the next. It also differed from one area
to another. The fragmentation of society under the feudal system also implied a fragmentation of
the law. One characteristic of Germanic law was the settlement of disputes by means of the duel
and retaliation. Legal proof was frequently strongly influenced by a reliance on fate and a belief in
divine intervention, the so-called trial by ordeal. For example, accused persons had to walk
barefoot over red-hot ploughshares. If their wounds healed properly, they were regarded as
innocent and acquitted. Sometimes a witness had to swallow a morsel of bread, while a prayer was
said invoking God to close her stomach if she was not telling the truth. If the accused could
swallow the bread, her evidence was accepted as the truth. Despite such primitive practices,
Germanic law also made some important contributions to modern legal science. Our present
system of land registration can, for instance, be traced back to Germanic law.
Nowhere during this time was Roman law scientifically studied or taught in Western Europe. This
only started at the beginning of the twelfth century with the establishment of the school of the
glossators. This event triggered the whole reception of Roman law.
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(a) Glossators
The twelfth century was marked by some progress and development in northern Italy which gave
rise to an increase in trade. The law school of the glossators was established at the beginning of
this century in the city of Bologna in northern Italy. It soon developed into the University of
Bologna, which still exists today and is one of the oldest universities in the world.
The professors in Bologna began the first scientific study of Justinian’s Corpus Iuris Civilis.
This immense work consists of thousands of texts. Therefore, the first task in this scientific study
was to cast light on the texts and to explain their meaning. For this purpose, the glossators applied
the medieval glossing method, from which the name of the school was also derived. This meant
the writing of notes (glosses) between the lines or in the margins of the text in the Corpus Iuris.
By means of these notes the glossators explained the texts, and where the texts were
contradictory, they gave a solution.
The glossators regarded Roman law as embodied in the Corpus Iuris Civilis as extant law, and
not as the law of six centuries earlier; they used it to solve the problems of their time. In certain
cases, they also used the law in the Corpus Iuris as building blocks to create new doctrines that
suited their existing needs. The glossators confined themselves to the law in the Corpus Iuris and
did not pay much attention to the Germanic law of their own time.
The influence of the glossators was not, however, limited to Italy. Bologna was an international
university to which thousands of students from all over Western Europe came to study. The
professors of Bologna, in turn, started teaching outside Italy, in places as far afield as England.
The students who graduated from Bologna returned to their various territories, where they were
often employed in important positions. There they contributed to the development of local law. In
this way a scientific knowledge of Roman law, as found in the Corpus Iuris, and explained and
developed by the glossators in Italy, started to spread through the rest of Western Europe. In the
fragmented feudal system Roman law obtained the character of a subsidiary legal system of
general application. This means that Roman law was applied when local law did not provide
solutions to problems.
However, Roman law was not the only legal system that was received in Western Europe; canon
law was equally important in this respect.
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Figure 2.3: A handwritten text from the Digesta with glosses between the lines and in the margin
Page 40
(b) Canon law

The Roman Catholic Church had its own legal system, canon law, which was eventually codified in
a comprehensive source, the Corpus Iuris Canonici. The church followed Roman law, and therefore
canon law was largely based on Roman law. Canon law was applied in an extended network of
ecclesiastical courts. In this way the church preserved Roman law during the early Middle Ages.
Canon law was also taught at the university of Bologna and at other medieval universities, so
lawyers were usually trained in both Roman and canon law.
The practical application of canon law was not, however, restricted to ecclesiastical matters. The
church had a say in many secular matters, for example, marriages, wills and the status of
illegitimate children. Like the glossators, the canonists (canon law lawyers) extended and
developed many Roman law doctrines. Examples of modern legal concepts which originated in
canon law are: the doctrine of subjective rights (see Chapter 7 of this book); the notion of a
juristic person (see Chapters 7 and 8 of this book); the principles of the law of civil and criminal
procedure (see Chapters 9 and 11 of this book); and the principle that a contract between two
parties is concluded merely by agreement, without additional formalities.
Thus canon law also came to be applied in the secular courts, and its influences are still
discernible in modern law because of the operation of the reception. Therefore ‘reception’ means
not only the reception of Roman law into the Germanic legal systems of Western Europe (and
Holland), but rather the reception of what is called ‘learned law’, which includes canon law.
(c) Commentators
The lawyers who were responsible for the reception of canon law in the secular sphere were the
commentators. They were also responsible for the true reception of Roman law in Western Europe.
The commentators (also called post-glossators) were the successors of the glossators. The main
contribution of the glossators was that they started the first scientific study of the Corpus Iuris
Civilis and through their explanatory notes made it accessible to the world. Hereafter there was
room for a new approach by the commentators.
The commentators, in contrast to the glossators, applied themselves to the development of a
modern legal system that was in accordance
Page 41
with the needs of everyday legal practice. They used the law as found in the Corpus Iuris
Civilis and explained by the glossators, but they did not confine themselves to it. They also paid
attention to other sources of law, such as canon law, medieval Germanic customary law, local laws
and statutes of different feudal cities. Their writings took on the form of long commentaries, from
which the name of this school is derived. In their writings they merged Roman law with other
sources of law in order to form a legal system that could be applied in practice.
This new approach to legal development started at the end of the fourteenth century in Bologna.
It continued until the sixteenth century, spreading its influence all over Western Europe. Learned
law was the cornerstone of this approach. Through the endeavours of the commentators, learned
law was received in the Germanic legal systems of Western Europe as law of general practical
application. In some territories Germanic law was totally supplanted, while in others the influence
of learned law was weaker. The legal systems of Western Europe thus became Romanised.
In direct contrast to earlier periods when the law differed from territory to territory, Roman law
now served as a unifying factor, providing uniformity in the legal systems of Western Europe. A
Western European common law (ius commune) came into being. With the reception of learned
law, many medieval elements such as superstition and fate disappeared from the law.
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Figure 2.4
See www.jutapassmasters.co.za for the excerpt from Barkowski and Du Plessis’s book
and accompanying questions.
2.3.3 The ‘Dutch’ component of ‘Roman-Dutch’ law

During the sixteenth and seventeenth centuries the modern nation states of Western Europe, as
we know them today, started to take shape.
Page 43
The legal systems of the various states started acquiring a nationalistic character and there were
the first references to French, German, Spanish and Portuguese law as separate entities. From the
end of the eighteenth century, the countries of Western Europe started codifying their legal
systems. These codes still exist today and are continuously being adapted. But it is the influence of
Roman law that serves as the common denominator in all these legal systems and provides them
with a uniform character. The legal systems of Western Europe are, therefore, usually grouped
together in one ‘legal family’ known as the civil-law family (see Chapter 15 of this book).
The territory of the Netherlands lies in Western Europe and first formed part of the Western
Roman Empire. For us in South Africa the situation in the Netherlands in the seventeenth century
is particularly important, because of the arrival of the Dutch, and their legal system, at the Cape at
that time. In 1579 the independent Republic of the United Netherlands came into existence. It
consisted of seven provinces: Holland, Utrecht, Zeeland, Gelderland, Groningen, Friesland and
Overijssel. The central governing body of the Republic was the Estates-General. The seventeenth
century was the ‘golden age’ of the Netherlands. It was a time during which the arts, culture,
commerce and the law reached a pinnacle. Holland was the most important and progressive of the
seven provinces.
The Netherlands, like the rest of Western Europe, also experienced the reception of learned law.
Roman law, as developed by the glossators and commentators, was received in, and merged with,
the local Germanic (Dutch) customary law. This led to the creation of so-called Roman-Dutch law.
The reception was not equally extensive in all the provinces and consequently the law differed in
its detail from province to province. Roman law, however, served as a unifying factor so that the
law in the Netherlands was to a large extent uniform. We use the term ‘Roman-Dutch law’ to refer
to the law of the Netherlands after the reception. It does not only refer to the law of the province
Holland as might be suggested by the Afrikaans term ‘Romeins-Hollandse reg’.
Roman-Dutch law can be found in legislation (placaaten) of the Estates-General, in decisions of
the Dutch courts, and especially in the writings or treatises of the Roman-Dutch jurists. The most
important Roman-Dutch jurists together with their best-known works are:
• Hugo de Groot Inleidinge tot de Hollandsche Rechtsgeleertheyd;
• Johannes Voet Commentarius ad Pandectas;
• Simon van Leeuwen Het Roomsch-Hollandsch Recht;
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• Godefridus van der Keessel Theses Selectae;

• Johannes van der Linden Rechtsgeleerd Practicaal en Koopmans Handboek.
We usually refer to the Roman-Dutch jurists as the ‘old authorities’. In their writings they treat
Roman-Dutch law as part of Western European common law. So, they often refer to jurists of other
countries where Roman law was also received. Roman-Dutch law was developed and extended
until it was codified in 1838. This code, the Burgerlijk Wetboek, became the primary source of
Dutch law. The Burgerlijk Wetboek was later adapted and the new code is known as the Nieuw
Burgerlijk Wetboek. This means that, unlike in South Africa, the Roman-Dutch jurists no longer
serve as authority in the Netherlands.
We now proceed to investigate the effects of English colonisation on South African law.
2.4 Phase three: English colonisation and beyond

2.4.1 English colonial influence
In 1806 the Dutch rule at the Cape finally came to an end and the British occupation began.
Britain allowed the continued application of Roman-Dutch law and did not abolish it.
Although the British authorities never abolished Roman-Dutch law, the influence of English law
on our legal system was inevitable. But English law did not develop in the same manner as
Roman-Dutch law (and the law of Western Europe). Thus, there are fundamental differences
between the two legal systems (see Chapter 15 of this book). English law exerted its influence
especially through legislation and precedent (court decisions or case law).
• Legislation: The English law of criminal procedure, civil procedure, evidence and the jury
system were received through legislation. The court system was also changed to mimic the
British courts: the landdrosten and heemraden were replaced with magistrates’ courts. A
higher court was established called the Supreme Court. Appeals could be made to the Privy
Council. The organisation of the legal profession into the bar (advocates) and side bar
(attorneys) was also based on the British model. Some South African legislation, such as the
Insolvency Act 24 of 1936, is based on the British equivalent. The influence of English
constitutional law would later
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also become especially important. The Constitution of the Union, as well as the Constitutions
of the later Republic of South Africa in 1961 and 1983, regulated the organisation and
functioning of the state and its institutions according to English law.
• Precedent (court decisions): In their decisions the courts sometimes applied English
doctrines, particularly in the areas of the law of contract and delict. The reason for this is that
many judges and lawyers received their initial legal education at English universities such as
Oxford and Cambridge. They were therefore mainly acquainted with English law. They found
the application of the old authorities on Roman-Dutch law, which were written in either Latin
or Dutch, problematic.
English law also influenced Roman-Dutch law in Lesotho, Swaziland, Zimbabwe and Botswana,
which were also under British rule at that time.
2.4.2 The Great Trek and the Union

Partly because of dissatisfaction with the British rule at the Cape, the Great Trek started in 1836.
The Voortrekkers from the Cape took the Roman-Dutch law with them to the interior of the
country. The writings of the Roman-Dutch jurists were especially important in this regard.
As the years passed, the Voortrekker territories were also annexed by the British. In 1910 South
Africa consisted of four British colonies, each with its own government. In every colony Roman-
Dutch law was applied as common law. The British also annexed the present independent states of
Lesotho, Swaziland, Zimbabwe and Botswana where Roman-Dutch law was similarly applied.
Roman-Dutch law is, to some extent, still in force in those states today, as well as in Namibia.
In 1910 the four British — South African colonies were united in the Union of South Africa, as
the four provinces of the Cape, Natal, the Orange Free State and Transvaal. The Union was
established by an Act of the British Parliament, the South African Act. One central government and
one highest court (the Appellate Division of the Supreme Court) were instituted for the whole
country. According to the doctrine of precedent (see Chapter 3 of this book), all courts were bound
by the decisions of the Appellate Division. This enabled the Appellate Division to provide for a
uniform application of law throughout the country.
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2.4.3 English approach to customary law

As explained earlier, initially the Dutch colonial authorities ignored customary law. It was only from
the second half of the previous century that the four British colonies of South Africa, each by
means of their own legislation, officially began to recognise it. After the establishment of the
Union, a uniform policy for the whole of South Africa regarding the acknowledgement and
application of customary law was laid down by the Black Administration Act 38 of 1927. This Act
provided for a special court system for black people and for the application of customary law.
Certain of these courts, the commissioner’s courts, also had to try contraventions of the apartheid
legislation. Most of these special courts were abolished in the 1980s. This means that customary
law is presently applied by the ordinary courts, as well as by the remaining special courts, such as
the courts of headmen and chiefs. Sometimes the application of customary law can be difficult as it
is more difficult for the courts to establish the content of living than official customary law.
Thus, pluralism exists within our legal system in the sense that not only Roman-Dutch law as
influenced by English law (Western law) is applied, but also customary law (African law). This is
also the position in our neighbouring states such as Swaziland, Lesotho, Botswana and Zimbabwe.
In all these areas, as well as in South Africa, customary law, however, takes a subordinate
position.
2.5 Phase four: Apartheid law

2.5.1 Apartheid in a nutshell
Apartheid had its origins in our colonial past. But it was only from 1948, when the National Party
came to power, that a political policy of racial segregation and consequential racial discrimination
was enshrined in a multitude of statutes (legislation). This legislation had to be applied by the
courts and enforced by state organs such as the police. In this way, law was used as an instrument
to realize a specific political ideology. This can be described as ‘social engineering’. Apartheid
legislation had far-reaching consequences. For example, some pieces of apartheid legislation
include:
• Population Registration Act 30 of 1950: All people in South Africa had to be registered
according to their race as either white, black, Indian, or coloured.
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• Group Areas Act 41 of 1950: The different racial groups had to live in different group
areas. By far the largest part of arable land was reserved exclusively for whites. To achieve
this purpose, millions of people were forcefully removed from the land where they had lived
for generations.
• Separate Representation of Voters Act 46 of 1951: The franchise was denied to the
majority of the population.
• Reservation of Separate Amenities Act 49 of 1953: Public amenities were reserved for
the various racial groups.
• Prohibition of Mixed Marriages Act 55 of 1949: People from different races were
prohibited from marrying each other.
• Bantu Education Act 47 of 1953: A separate and inferior system of black education was
created.
• Suppression of Communism Act 44 of 1950 and Internal Security Act 74 of 1982:
Opposition to the system of apartheid was controlled by means of state security legislation,
one aspect of which was detention without trial.
In summary, apartheid law was found in statutes of Parliament (legislation). Apartheid
legislation however stigmatised our legal system as a whole and created a legitimacy crisis.
Ordinary people do not distinguish between common law and legislation. They view the legal
system with which they come into contact every day as a single entity. The majority of the South
African population trusted neither the law nor its application. Understandably, they did not regard
it as the embodiment of justness and fairness but rather as an instrument for the enforcement of
apartheid.
2.5.2 Characteristics of apartheid law

Thad Metz, a distinguished professor of philosophy, explains in Jurisprudence in an African Context
that apartheid law was characterised by four main types of oppression:
• Political autocracy: This means that the apartheid state was run by a domineering
government that had absolute political control. In the South African context, it was a white
supremacist government that aimed to silence all other people by denying their political voice
to be heard through voting and participation in law-making. You can read Chapter 5 of this
book on the constitutional history
Page 48
of South Africa to get a better understanding of the constitutional structure that existed
during the time of apartheid.
• Land dispossession: Black people were not allowed to own land. Additionally, every race
group was forced to live in certain areas demarcated for specific races. Black people who
sought work were often required to travel long distances from their homes to their places of
employment. Pass books had to be carried with them. Failure to do so could have resulted in
arrest.
• Civil liberty deprivation: Various rights that some of us take for granted in South Africa
today were denied to the majority of people. The civil rights to dignity, equality, life, freedom
and security of the person, privacy, freedom of expression, freedom of movement, freedom
of association and so forth were all denied to black people.
• Opportunity destruction: The apartheid government employed various legal strategies to
prevent black people from obtaining an education that would equip them to have a thriving
professional career. Furthermore, black people were explicitly prohibited from pursuing
certain professions. The aim was to keep black people economically oppressed.
The above characteristics of apartheid law are today prohibited by the International Convention of
the Suppression and Punishment of the Crime of Apartheid. Article 2 of the Convention defines the
international crime of apartheid as follows:
‘For the purpose of the present Convention, the term “the crime of apartheid”, which shall include
similar policies and practices of racial segregation and discrimination as practised in southern
Africa, shall apply to the following inhuman acts committed for the purpose of establishing and
maintaining domination by one racial group of persons over any other racial group of persons and
systematically oppressing them:
a. Denial to a member or members of a racial group or groups of the right to life and liberty of
person:
i. By murder of members of a racial group or groups;

ii. By the infliction upon the members of a racial group or groups of serious bodily or
mental harm, by the infringement of their freedom or dignity, or by subjecting them to
torture or to cruel, inhuman or degrading treatment or punishment;
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iii. By arbitrary arrest and illegal imprisonment of the members of a racial group or
groups;
b. Deliberate imposition on a racial group or groups of living conditions calculated to cause its
or their physical destruction in whole or in part;
c. Any legislative measures and other measures calculated to prevent a racial group or groups
from participation in the political, social, economic and cultural life of the country and the
deliberate creation of conditions preventing the full development of such a group or groups,
in particular by denying to members of a racial group or groups basic human rights and
freedoms, including the right to work, the right to form recognized trade unions, the right
to education, the right to leave and to return to their country, the right to a nationality, the
right to freedom of movement and residence, the right to freedom of opinion and
expression, and the right to freedom of peaceful assembly and association;
d. Any measures, including legislative measures, designed to divide the population along racial
lines by the creation of separate reserves and ghettos for the members of a racial group or
groups, the prohibition of mixed marriages among members of various racial groups, the
expropriation of landed property belonging to a racial group or groups or to members
thereof;
e. Exploitation of the labour of the members of a racial group or groups, in particular by
submitting them to forced labour;
f. Persecution of organizations and persons, by depriving them of fundamental rights and
freedoms, because they oppose apartheid.’
2.5.3 Apartheid and the common law: Modernism v purism

Even though apartheid was mostly given effect to through legislation, the ideology of apartheid
made its way into other areas of law as well, notably, the common law. Apartheid was not only
about white supremacy, but it was more specifically also about Afrikaner supremacy. As such, the
interaction between English law and Roman-Dutch law provoked a debate among South African
jurists. This split them into two camps: the modernists and the purists.
The modernists respected Roman-Dutch law and regarded it as the basis of the South African
common law, but they realised that the law had to develop and adapt in order to suit modern
South African demands. Accordingly, they used English law in order to ‘modernise’ Roman-Dutch
law. The mouthpiece of the modernists was the South African
Page 50
Law Journal (SALJ). Many supporters of the modernist paradigm were English liberal scholars.
The purists, on the other hand, considered the modernists to be contaminators of Roman-
Dutch law. The purists applied themselves to the conservation of pure Roman-Dutch law and tried
as far as possible to rid it of English influences. The Tydskrif vir Hedendaagse Romeins-Hollandse
Reg (THRHR) served as the mouthpiece of the purists. Although it would be impossible to paint all
purist scholars with the same brush, there is historical evidence to show that purism really
flourished during the time of apartheid because it was a paradigm that spoke to the genealogical
roots of Afrikaner supremacist lawyers.
The tension between the purists and the modernists was ultimately a debate that completely
ignored and excluded black people and customary law. At no point did anyone ask what should be
done to ensure the flourishing of the law indigenous to Africa. This sentiment was also largely
consistent with apartheid ideology.
Today this whole debate has largely ceased. It is now generally accepted that English law has
had a permanent influence in certain areas of our legal system. Neither the SALJ nor the THRHR
can be labelled the mouthpiece of a specific group or school of thought. However, a new debate
among South African jurists arose, regarding the influence of apartheid on the legal system.
2.5.4 Positivists and non-positivists

The influence of apartheid on the legal system led to a second debate among South African jurists,
namely between the positivists and the non-positivists.
The positivists regard law as something detached from politics and economics. They apply law
as they find it and do not ask whether it is fair or just. They believe that a judge, when applying
the law, can be absolutely objective and can remain impartial and unbiased.
On the other hand, the non-positivists regard law as part and parcel of the socio-political
environment. The most important question for them always is whether the law is just and fair.
They do not believe in the absolute objectivity of the judge, and are of the opinion that a judge’s
decision can be influenced by the judge’s political background and emotional circumstances. The
non-positivists accused the positivists of making the application of apartheid easier with their
approach. They even insisted that judges should resign.
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After the 1994 elections the Truth and Reconciliation Commission (TRC) was established to
investigate gross human rights violations between 1960 and 1994. The TRC also investigated the
role of the legal profession during that period. Its 1998 report found that: ‘The courts and the
organised legal profession generally and subconsciously or unwittingly connived in the legislative
and executive pursuit of injustice, as was pointed out by a few at the time and acknowledged by
so many at the hearings. Perhaps the most common form of subservience can be captured in the
maxim qui tacet consentire videtur (silence gives consent).’
2.6 Phase five: Transformative constitutional democracy

A legitimacy crisis in any legal system is dangerous. Law and order can hardly be maintained when
people do not have faith in the legal system. That is exactly what happened with the apartheid
legal system. The international community was so appalled by what was happening that it imposed
sanctions on South Africa to force the state to bring apartheid to an end. Even before the
sanctions, various liberation movements were fighting (in various ways) to bring apartheid to an
end. One could write an entire textbook on each of the liberation organisations in South Africa. We
will focus on two examples here: The African National Congress (ANC) and the Pan Africanist
Congress (PAC). The discussion that follows draws on Emile Zitzke’s ‘The History and Politics of
Contemporary Common-Law Purism’ (2017) 23 Fundamina 185.
Various political movements employed passive resistance techniques to oppose the apartheid
regime. The ANC exercised passive resistance through the Defiance Campaign of 1951-1952 that
involved strikes, protests and other forms of civil disobedience. Informed by the Freedom
Charter (a document of the ANC that committed it to non-racialism and human rights) the ANC
did not intend to use violence to bring apartheid to an end.
In 1959 the PAC was formed as a break-away organisation from the ANC. The PAC was sceptical
about the ANC’s commitment to non-violence and their belief in non-racialism coupled with human
rights. The PAC was a militant organisation from its inception.
By 1960 both the ANC and the PAC were banned by the apartheid government, leading to the
PAC intensifying its militant plan while the ANC introduced one. The military wing of the PAC was
known
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as the Azanian People’s Liberation Army (APLA) and that of the ANC was known as Umkhonto we
Sizwe (MK). By the 1980s, the liberation movements were successful in pressurising the apartheid
government to let go of their power systematically.
Important changes have taken place since February 1990 when the liberation movements were
unbanned, and Nelson Mandela was released from prison. Apartheid legislation was abolished and
multi-party negotiations commenced in order to pave the way to a fully democratic dispensation
for the whole country. A new South African Constitution (sometimes called the interim Constitution
or the 1993 Constitution) with a Bill of Rights resulted from the negotiation process. This was
followed by the 1996 Constitution.
These constitutions aimed to address the injustices of apartheid that we have canvassed earlier
in this chapter. As such, the 1996 Constitution has been called a ‘transformative’ one. The
American scholar Karl Klare (‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR
146 at 150) has famously explained that the notion of ‘transformative constitutionalism’ involves
‘a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation,
of course, but in a historical context of conducive political developments) to transforming a country’s political
and social institutions and power relationships in a democratic, participatory, and egalitarian direction.’
Now the concept of human rights is officially recognised in South Africa, and is applied by the
courts. Human rights imply, for example, everyone’s right to equality and to human dignity. The
Constitution is the supreme law and any law that is inconsistent with it is invalid. This has brought
about far-reaching changes to our legal system, and the pros and cons of the Constitution will be
explored later in this book (see Chapter 6 of this book). However, this does not mean that our
customary law or common law ceases to exist or that our entire legal system is now codified.
2.7 Conclusion: A new synthesis?

Now we can return to the questions at the beginning of the chapter. Is it correct to refer to our
legal system as a whole as ‘Roman-Dutch law’? The answer is no. Roman-Dutch law forms only a
part of our legal system. It is that part of Western European common law, as applied in the
Netherlands of the seventeenth and eighteenth centuries, which is
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still in force in South Africa today. Pure Roman-Dutch law was further developed and adapted in
South Africa. English law also exercised an influence on our law, and customary laws are also
applied. Therefore, it is more correct, when referring to the legal system as a whole that is applied
here, simply to speak of ‘South African law’. And South African law, properly so called, is law that
is subject to the transformative Constitution.
Because the diversity of systems could potentially undermine a unified, South African concept of
the law, efforts should increasingly be made to create a synthesis. Two guidelines in this process
may be the following:
• All legal developments have to be in line with the Constitution. For example, all law has to
embody the constitutional values of equality and human dignity.
Certain principles of customary law have been found to discriminate against women. In
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality
as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission
and Another v President of the Republic of South Africa and Another 2005 (1) SA 580
(CC) the Constitutional Court gave a single judgment in two cases concerning the rule of
male primogeniture as applied in the indigenous law of succession. According to this rule,
when a man dies without a will (intestate), his closest male relative inherits his estate.
The court found this rule to be unconstitutional since it violates women’s rights to
equality and human dignity. Consequently the court ruled in the one case that the
deceased’s daughters, and in the other case the deceased’s sister, could inherit. As a
result of this judgment legislation was adopted that amended the indigenous law of
succession. Sections of the Black Administration Act 38 of 1927 that also provided for
intestate succession according to indigenous law were repealed.
On the basis of the right to equality, the Constitutional Court also found that
homosexual marriages should be legally recognised in Minister of Home Affairs and
Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae);
Lesbian & Gay Equality Project and Others v Minister of Home Affairs and Others 2006
(1) SA 524 (CC). Parliament accordingly passed the Civil Union Act 17 of 2006 which now
legalises such marriages.
See www.jutapassmasters.co.za for the excerpts from the Bhe case and
accompanying questions.
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• The existence of a legal rule should not depend on whether it conflicts with the views
generally held in the community. Different value systems must be treated with equal
respect. Diversity should be tolerated.
Previously, before the present constitutional dispensation, the highest court then in
Ismail v Ismail 1983 (1) SA 1006 (A) held that a ‘marriage’ by Muslim custom was void,
as it was potentially polygamous. More recently, the Constitutional Court passed
judgment with respect to a polygamous Muslim marriage in Hassam v Jacobs NO and
Others 2009 (5) SA 572 (CC). Without deciding the constitutional validity of such a
marriage, the court found that when the husband in such a marriage dies intestate the
spouses are entitled to the same proprietary benefits as spouses in other marital
institutions. In paragraph 26 of the judgment, the court remarked as follows:
‘[R]egard must also be had to the diversity of our society which provides a blueprint for our
constitutional order and influences the interpretation of our supreme law — the Constitution —
which in turn shapes ordinary law. Our diversity is also affirmed in the preamble of the Promotion
of Equality and Prevention of Unfair Discrimination Act, the aim of which is to facilitate our
transition into ‘a democratic society, united in its diversity, marked by human relations that are
caring and compassionate, and guided by principles of equality, fairness, equity, social progress,
justice, human dignity and freedom.’
In the next chapter, we will consider in more detail the different sources of South African law, in
light of the history that we have just studied. Thereafter, we will turn to consider how these
sources play out in various branches (areas) of South African law.
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Chapter 3
Sources of South African Law
Introduction
By ‘sources of law’ we mean the ‘places’ where law originates and where it can be found. We are
therefore concerned with two questions:
• Who makes laws? In other words, where does law come from?
• Where does the student, the legal practitioner or the judge find the laws in order to apply
them to a specific case?
To a great extent these two questions overlap. The places where law originates are generally also
the places where it can be found.
The concept of ‘sources of law’ should not be a strange one, bearing in mind that in Chapter 2 of
this book various sources of law, such as custom, customary law, legislation, and constitutions
were discussed.
As far as sources of South African law are concerned, it is important to realise from the outset
that we have an uncodified legal system. This means that there is not only one primary source (a
‘Code’) where the law originates and can be found; South African law has more than one source:
• the Constitution;
• legislation (statutes);
• precedent (court decisions);
• common law;
• custom;
• customary law;
• works of modern authors;
• foreign law;
• international law.
Lay people are usually under the impression that our law as a whole originates in legislation and
that consequently one can find it there. This is incorrect. Legislation is an important source of our
law, and sometimes a whole area of law may be governed solely by legislation. (This means that
that specific area of law is codified. The law of criminal procedure, for example, is codified — see
Chapter 11 of this book.) But our entire legal system is not codified and therefore legislation is not
the only source of South African law.
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It is of practical importance for lawyers to be aware of the different sources of our law. The
sources provide the key to the content of the law, because it is in those sources that one finds the
law and gets to know it. Furthermore, it provides lawyers with authority for their arguments. Legal
practice is primarily concerned with what the law itself stipulates. Therefore, lawyers have to
support their legal arguments with some form of authority. They must be able to justify their
assertion of a particular viewpoint.
To do so, they may rely on a provision of the Constitution, a statute, a court decision, or the
opinion of one of the old authorities or of a modern author, and so forth. This statement of
principle and authority is used when law students answer examination papers, or when attorneys
and advocates represent their clients in court, or when academics write books and articles. Not all
the sources of our law have the same authority. Some sources have binding authority (which we
will call primary sources because this is where the law originates), whereas others have merely
persuasive authority (called secondary sources in that they provide us with help to understand
the primary sources).
It is important to note from the start that the Constitution of the Republic of South Africa, 1996
is the most important source of all South
African law. It is a source of South African law that has transformative potential (we alluded to the
concept of ‘transformative constitutionalism’ in the previous chapter). Throughout our discussion of
the various sources, we reflect on the transformative impact that the Constitution could have on
those other sources. Towards the end of this chapter, we provide some useful tips on how to decide
which sources to use in a particular dispute.
We now discuss these different sources under their specific headings.
3.1 Constitution
3.1.1 Constitution as source
In the preceding discussion we have already referred to the Constitution. In Chapters 5 and 6 of
this book, we shall discuss constitutional law in more detail. Our purpose here is to make a few
general remarks on the Constitution as a source of law.
In the past the Constitution was a source of law in the same way as any other statute. Every
statute regulates a specific matter. The Constitution, in particular, regulated the organisation and
structure of the state. But
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it influenced the lives of everyone in that it denied the franchise to the majority of the population.
In addition, it did not provide any general norms or standards with which the whole body of law
had to comply.
However, as we noted under our discussion of the history of South African law, the Constitution
of the Republic of South Africa Act 200 of 1993 ushered in a new, democratic legal order. This
Constitution is sometimes referred to as the Interim Constitution. The 1993 Constitution
required a constitutional assembly to draft and pass a so-called final Constitution that had to
reflect certain basic principles. That document was originally passed as the Constitution of the
Republic of South Africa Act 108 of 1996. However, Parliament soon realised that the Constitution
was not an ‘ordinary’ source of South African law comparable to other legislation and so parliament
decided to drop the ‘Act 108 of’ part of the Constitution’s title. According to the Citation of
Constitutional Laws Act 5 of 2005, the proper citation of our most important source of law is
Constitution of the Republic of South Africa, 1996.
An interesting point to ponder is whether it is appropriate to call the 1996 Constitution the ‘final
Constitution’. Perhaps that creates the impression that the Constitution is cast in stone and is not
subject to change. This is untrue because, at the time of writing this book, there have been 17
amendments to the Constitution. At the time of writing this book, Parliament was having
discussions about amending the Constitution’s property clause to expressly allow expropriation of
property without compensation.
3.1.2 Key characteristics of the Constitution

Let us now turn to consider some of the key characteristics of the Constitution of the Republic of
South Africa, 1996:
• The 1996 Constitution symbolises a break from previous constitutions in that it declares itself
to be the supreme law of South Africa.
Section 2 of the Constitution reads as follows:

‘2. Supremacy of the Constitution
This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled.’
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• The Constitution is a primary source in that it is binding and authoritative. As such, judges
cannot say that they disagree with the content of the Constitution and therefore apply their
own opinions to cases.
• The 1996 Constitution also regulates the structure of state, and divides the power of the
state between three branches of government: the executive (that enforces the law); the
legislature (that creates laws); and the judiciary (that applies, interprets and develops the
law). This is called the principle of separation of powers. The logic behind this is to ensure
that no single branch of government can abuse its power — the hope is that the other two
branches of government would step in to keep a potentially misbehaving branch of
government in check.
• Importantly, the 1996 Constitution also includes a Bill of Rights. The fact that we now have
a Bill of Rights coupled with the supremacy clause means that the Constitution provides a
general norm which has a direct or indirect influence on all the sources of law. It takes on the
character of supreme law.
The influence that the Constitution has on other sources of law relates to its
‘transformative’ nature. In Chapter 2 of this book we have already mentioned that the
concept of transformative constitutionalism involves the use of the Constitution in various
ways to bring about a more equal and democratic society. One way in which the
Constitution attempts to bring about this transformation is by having an impact on all
other sources of law. In the case of Pharmaceutical Manufacturers Association of South
Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 647 (CC) at
para 44 the Constitutional Court said:
‘There are not two systems of law, each dealing with the same subject matter, each having
similar requirements, each operating in its own field with its own highest court. There is only one
system of law. It is shaped by the Constitution which is the supreme law, and all law, including
the common law, derives its force from the Constitution and is subject to constitutional control.’
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More recently in the case of H v Fetal Assessment Centre 2015 (2) SA 193 (CC) at para
23 the Constitutional Court was faced with the question of whether there are some
questions about life where the Constitution should have no impact. The court said that
judges cannot avoid the Constitution’s impact on all sources of law. It then proceeded to
explain:
‘Not to do so says that there are areas of life and law where the values of the Constitution may
be ignored. That is not the kind of choice that our Constitution allows judges to make. They must
ensure that the values of the Constitution underlie all law, not that some part of the law can exist
beyond the reach of constitutional values.’
These quotations are sometimes said to explain the single-system-of-law principle
which is closely related to the notion of constitutional supremacy. But what effect does
the Constitution have on other sources, and how does that potentially bring about
transformation?
• The Constitution has a direct influence on legislation in the sense that legislation which is in
conflict with the Constitution can be struck down by the courts. Section 172(1)(a) of the
Constitution clearly states that courts ‘must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsistency’.
• The influence of the Constitution on the other sources of the law is less direct. Section 39(2)
of the Constitution stipulates that, in the interpretation of any legislation and the
development of the common law and customary law, ‘a court must promote the spirit,
purport and objectives of the Bill of Rights’.
• Section 39(1) further stipulates that a court, when interpreting the Bill of Rights, must take
international law into account and may consider foreign law. With this obligation the
Constitution incorporates the principles of international human rights law as a source of our
law.
As a result of the new constitutional dispensation, South African lawyers now need to have a sound
knowledge of the Constitution in order to determine in what way any legal rule corresponds with
the principles and values contained in the Constitution. In what follows, we deal with the other
sources of South African law and ponder how the Constitution might influence those sources of
law.
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3.2 Legislation
3.2.1 Legislation as source
(a) What is legislation?
Legislation is law laid down by an organ of the state which has the power to do so. These laws are
embodied in writing and are known as ‘statutes’ (or ‘Acts’). In South Africa, Parliament is the
highest organ that can pass legislation on the national level. The Constitution empowers
Parliament to do so. There are also lower bodies that can pass subordinate legislation, such as
municipalities that enact by-laws. However, in our discussion we shall limit ourselves to legislation
passed by Parliament.
Parliament must consist of representatives of the community who are elected in a democratic
manner. Thus, the community, through its representatives, passes legislation according to which
the entire community lives.
Before 1994 when the Interim Constitution came into force, the South African Parliament was a
product of the apartheid system and not of a democratic process. The majority of the population
was not allowed to vote and therefore was not represented in Parliament. The Constitution now
provides for a fully democratic Parliament where the whole of society can participate in the
legislative process. As such, legislation is an embodiment of laws that have been democratically
passed. Parliament consists of two houses: the National Assembly and the National Council of
Provinces. The purpose of the National Council of Provinces is to give the provinces a say in
national legislation that affects them.
(b) Power of legislation
Legislation is a very powerful source of law. It is a primary source of law and is binding authority.
In principle it binds the whole society. It is the quickest and most effective way to amend old laws
and create new ones. Overnight a new statute can change the existing law, whether it is other
statutes, a court decision, a rule of common law, a custom or the opinions of modern authors.
Parliament passes legislation when:
• there are gaps (lacunae) in the law;
• the law no longer corresponds to needs in modern society;
• there are defects or loopholes in existing legislation.
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Large parts of our law are to be found in legislation, such as parts of the law of marriage, and
succession, as well as company law, law of insolvency and the law of criminal procedure. South
African statutes are often based on their English counterparts. A lawyer who seeks the answer to a
specific problem must first determine whether there is a statute which deals with the matter.
(c) How is a statute made?
When a need for new legislation arises, the government may draft a green paper that puts
forward various policy options on the particular topic. This is published for public comment.
Thereafter a white paper is drafted which states government policy. The public may again
comment. Then experts draft what is called a Bill concerning the matter. Sometimes a Bill is not
preceded by green and white papers.
The Bill is not the final statute; it is only a proposal. Usually the Bill is published in the
Government Gazette to allow public comment on the Bill. The Minister responsible for the matter
introduces the Bill in the National Assembly for the so-called first reading. Every member of
the Assembly receives a copy of the Bill. After introduction the Bill is referred to a portfolio
committee. Portfolio committees have wide powers. Their members investigate the details of the
Bill, they study the public commentary and, where necessary, recommend changes and make new
proposals. The committee’s recommendations are contained in a report which is then presented to
the National Assembly for the second reading. During this reading the purpose and principles,
and not the details, of the Bill are debated. (These debates are published in Hansard.) At the end
of the debate proposals (amendments) may be made concerning detail issues in the Bill. Such
amendments are considered by the portfolio committee, after which it again drafts a report. The
National Assembly takes the report into consideration and then votes on the second reading of the
Bill.
Once the Bill has been approved by the National Assembly it is referred to the National Council
of Provinces for approval. The same procedure is followed there. Should the National Council of
Provinces reject the Bill, there is a disagreement between the two houses and the Constitution
prescribes how it must be resolved. If the National Council of Provinces approves the Bill, it is
referred to the President for assent. The President signs the Bill and now it is a statute (or an Act).
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We see, therefore, that in principle a Bill must be approved by both houses of Parliament, that
Parliament itself does not debate the details of a Bill, and that a Bill becomes an Act only once the
President has signed it.
Not all Bills are treated in this manner. There are exceptions. Some Bills can first be introduced
in the National Council of Provinces. An example is a Bill concerning an issue on which Parliament
and the provinces have concurrent competence. A Money Bill must always first be introduced in
the National Assembly. Some Bills that are aimed at amending the Constitution do not have to be
referred to the National Council of Provinces.
(d) When does legislation come into force?

The fact that an Act has been made does not mean that it is in force. Usually an Act comes into
force on the date of its publication in the Government Gazette, but the Act itself may stipulate
that it will come into force only at a later date.
Until 1994 South Africa had only two official languages (Afrikaans and English). Acts were
published in both languages and the President alternated between signing the Afrikaans and the
English texts. If there was a conflict between the two versions, the language of the text signed by
the President prevailed. Since 1994, however, South Africa has had 11 official languages. Acts are
now promulgated in English, and usually in another official language. The President signs only the
English text. Some acts are promulgated only in English.
(e) Application of legislation

The courts have to apply legislation that is in force. This means for example that when someone
allegedly has contravened a statutory provision, the case may end up in court. The court must
then judge the matter before it in light of the statute concerned, if it applies. Some pieces of
legislation apply uniformly to the entire population. Other statutes will only apply to certain
circumstances and there may be an ‘application clause’ contained in the Act stipulating when the
Act will apply. The court will have to establish the meaning of the statute (it must interpret the
statute: see paras 3.2.4 and 3.2.5 below). It must determine whether there was, in fact, a
contravention of the statute.
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Before the interim Constitution came into force, the principle of parliamentary sovereignty
applied. This means that Parliament was supreme and that the courts, in principle, had no testing
right (right of judicial review) with respect to legislation. Accordingly, they could not test legislation
against any norm or standard, such as the principles of justness, fairness or equality, and strike
down legislation which did not comply with those norms. The only occasion when the courts did
have the power to strike down legislation was when Parliament had not followed the correct
procedures and formalities (manner and form) in passing the legislation. For the rest, the courts
had no choice and had to apply all legislation passed by Parliament. This also held true with
apartheid legislation. In this way the government could use the courts as an instrument to enforce
its specific political ideology.
(f) When does legislation stop being in force?

There are three main ways in which the force of legislation might come to an end:
1. Repeal: Parliament may decide to bring an existing piece of legislation to an end. It will pass
a new statute that either expressly or implicitly repeals an old law. If there is express repeal,
the statute might simply say that a certain Act is hereby repealed. However, it is possible for
Parliament to pass a new piece of legislation that is in absolute conflict with an older piece of
legislation. As far as possible, courts will aim to reconcile two pieces of legislation that appear
to conflict with one another. But if the conflict is irreconcilable then the newer Act will
implicitly repeal the older Act. A hypothetical example might be this: Suppose that
Parliament passes the Veganism Act. There is only one section in the Act that simply says
that everyone must adopt a vegan lifestyle which basically involves not using or eating any
animal products. A year later, Parliament passes the Dietary Preferences Act that has only
one section that says that people are allowed to eat whatever they please (except fellow
humans) and they may use animal products for other purposes too. Even though the Dietary
Preferences Act does not explicitly say ‘The Veganism Act is hereby repealed’ the implication
is that this newer Act has repealed the older Act. On the other hand, it is possible for smaller
parts of legislation to be changed, without completely undoing the legislation’s legal effect.
Changing
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legislation through a parliamentary process is referred to as the amendment of legislation.

2. Judicial review (testing rights of the courts): The interim Constitution and its successor,
the final Constitution, endow the courts with a testing right. Both Constitutions contain a Bill
of Rights (see Chapter 6 of this book), a list of human rights which the Constitution
guarantees to all citizens. Primarily these rights imply the acknowledgement of the freedom,
equality and human dignity of all individuals. The Constitution seeks to entrench these rights
and to prevent other statutes from infringing or violating them. Therefore, the Constitution
elevates itself, and the Bill of Rights in particular, to a general standard (norm), against which
all legislation can be tested or measured. This is embodied in section 2 of the final
Constitution, which stipulates that the Constitution is the supreme law, and that any act
which is in conflict with it is invalid. In order to apply this principle in practice, the
Constitution provides the courts with the power to review legislation so that they can test all
legislation against the provisions of the Constitution. The Constitution also provides for the
establishment of a Constitutional Court, which is the highest court with respect to, and which
has the final say in, such matters. As mentioned above, when a court finds legislation, or any
part of it, to be unconstitutional, the court declares the legislation invalid in terms of section
172 of the Constitution. The new constitutional dispensation brought an end to parliamentary
sovereignty in South Africa and replaced it with the principle of constitutionalism.
Constitutionalism means that the Constitution, and not Parliament, is sovereign.
In the case of S v Williams 1995 (2) SACR 251 (CC) the Constitutional Court was faced
with a dilemma related to the erstwhile section 294 of the Criminal Procedure Act 51 of
1977. That section provided for juvenile offenders to be subjected to whipping, for
example with a cane, as a form of criminal punishment. The Constitutional Court
exercised its judicial review powers whereby it tested the legislation against the
Constitution. The constitutional rights to dignity, freedom from cruel and inhumane
punishment, and freedom from torture, led the court to conclude that section 294 of the
Act was unconstitutional and therefore had to be struck down. The order of the court
reads as follows:
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‘[96] The following order is accordingly made:

1. The following provisions of the Criminal Procedure Act 51 of 1977 (as amended) are
inconsistent with the Republic of South Africa Constitution Act 200 of 1993 (as amended)
and are, with effect from the date of this order, declared to be invalid and of no force and
effect:
(a) s 294 in its entirety; and
(b) the words ‘or a whipping’ in s 290(2).

2. In terms of s 98(7) of the Constitution, it is ordered that, with effect from the date of this
order, no sentences imposed in terms of s 294 of the Criminal Procedure Act 51 of 1977
shall be carried out.’
3. Sunset clauses: It is hypothetically possible for legislation to ‘come to an end’ by means of

a so-called sunset clause. This is when the legislation contains a clause stipulating that the
legislation will stop being in effect on a particular date.
We must now shift our attention to other practical matters: how to find a statute, what it looks
like, and how to establish its meaning.
3.2.2 Finding statutes
Suppose that you are faced with the following scenario: Portia, 16 years old, and her
boyfriend Peter, 28 years old, arrive at a hospital designated to undertake abortions.
Portia is eight weeks pregnant. They consult with a qualified medical doctor. During the
consultation, only Peter speaks. He explains that ‘they want an abortion’. He further
responds to all the doctor’s questions. Portia sits quietly on her chair, saying nothing, but
sobbing softly. Can the doctor go ahead and perform the abortion?
It is unlikely that a lawyer will have answers ready immediately. But a lawyer will know where to
find an answer. A good starting point for this search is often legislation (statutes).
(a) Reference to a statute
Every year Parliament passes many laws. In 1996, for example, it adopted 107 statutes. In 2017,
for example, it adopted only 18 Acts. These statutes are numbered chronologically as they are
published in the Government Gazette, for example:
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It is often necessary to make reference to statutes. The full reference can be used as indicated
above. Sometimes reference can be made to the title alone: Choice on Termination of
Pregnancy Act. Sometimes the year and number will be sufficient: Act 92 of 1996. For the sake
of completeness, a combination of the title, number and year might be required.
(b) Accessing statutes

Statutes are published in separate Government Gazettes. To facilitate your search, law publishers
(Juta and LexisNexis Butterworths) have collected and indexed these in printed (hard copy) format
and electronically. We deal with the topic of how to navigate your way around the electronic
platforms for legal research in Chapter 19.
(c) Is it in force?
If nothing is mentioned in the statute, it comes into force at publication. Often the statute only
comes into force later. In the final section of the statute the later date is either specified or it is
stated that it will come into force when the President promulgates a date in the Government
Gazette.
On the first page of existing legislation the date of when the Act came into force is given. The
Choice on Termination of Pregnancy Act entered into force (or ‘commenced’) on 1 February 1997.
Also keep in mind that statutes may be repealed. The Choice on Termination of Pregnancy Act 92
of 1996, for example, repealed parts of the Abortion and Sterilization Act 2 of 1975, which allowed
legal abortion only under very limited circumstances.
(d) Is it updated?
In order to account for developments in society, and because omissions or defects in existing
legislation are identified, laws are from time to time amended. The Choice on Termination of
Pregnancy Act was amended
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in 2004, 2007 and 2008. To avoid confusion, the most recent version of an amended statute is
sometimes referred to as follows: the Choice on Termination of Pregnancy Act 92 of 1996 (as
amended).
Many statutes are also supplemented by subsequent regulations or ‘notices’, in which the
detailed implementation of aspects of the law is spelled out. Ensure that you consult an amended
(updated) version of a particular law, and that you take note of the relevant regulations or
‘notices’. In terms of section 3 of Act 92 of 1996, ‘surgical termination of pregnancy’ may only take
place at hospitals designated by the Minister of Health ‘by notice’ in the Government Gazette.
3.2.3 Content of a statute

After you have found the relevant statute, you must read and understand it. The components of a
statute are highlighted in the following example:
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3. Place where termination of pregnancy may take place

(1) Termination of a pregnancy may take place only at a facility which—
(a) gives access to medical and nursing staff;
(b) gives access to an operating theatre;
(c) has appropriate surgical equipment;
(d) supplies drugs for intravenous and intramuscular injection;
(e) has emergency resuscitation equipment and access to an emergency referral
centre or facility;
(f) gives access to appropriate transport should the need arise for emergency
transfer;
(g) has facilities and equipment for clinical observation and access to in-patient
facilities;
(h) has appropriate infection control measures;
(i) gives access to safe waste disposal infrastructure;
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(j) has telephonic means of communication; and

(k) has been approved by the Member of the Executive Council by notice in the
Gazette.
(2) The Member of the Executive Council may withdraw any approval granted in terms
of subsection (1)(k).
(3)(a) Any health facility that has a 24-hour maternity service, and which complies
with the requirements referred to in subsection (1)(a) to (j), may terminate pregnancies
of up to and including 12 weeks without having to obtain the approval of the Member of
the Executive Council.
(b) The person in charge of a health facility contemplated in paragraph (a) must notify
the relevant Member of the Executive Council that the health facility has a 24-hour
maternity service which complies with the requirements referred to in subsection (1)(a)
to (j).
(4) The Member of the Executive Council shall once a year submit statistics of any
approved facilities for that year to the Minister.
(5) Notwithstanding anything to the contrary in this Act, the Minister may perform any
of the functions that the Member of the Executive Council may or must perform, if it is
necessary to perform such function in order to achieve any of the objects of this Act.
[S. 3 substituted by s. 2 of Act 38/2004 and again by s. 2 of Act 1/2008]
4. Counselling
The State shall promote the provision of non-mandatory and non-directive counselling,
before and after the termination of a pregnancy.
5. Consent
(1) Subject to the provisions of subsections (4) and (5), the termination of a
pregnancy may only take place with the informed consent of the pregnant woman.
(2) Notwithstanding any other law or the common law, but subject to the provisions of
subsections (4) and (5), no consent other than that of the pregnant woman shall be
required for the termination of a pregnancy.
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(3) In the case of a pregnant minor, a medical practitioner or a registered midwife or

registered nurse, as the case may be, shall advise such minor to consult with her
parents, guardian, family members or friends before the pregnancy is terminated:
Provided that the termination of the pregnancy shall not be denied because such minor
chooses not to consult them.
(4) Subject to the provisions of subsection (5), in the case where a woman is—
(a) severely mentally disabled to such an extent that she is completely incapable
of understanding and appreciating the nature or consequences of a
termination of her pregnancy; or
(b) in a state of continuous unconsciousness and there is no reasonable prospect
that she will regain consciousness in time to request and to consent to the
termination of her pregnancy in terms of section 2, her pregnancy may be
terminated during the first 12 weeks of the gestation period, or from the 13th
up to and including the 20th week of the gestation period on the grounds set
out in section 2(1)(b)—
(i) upon the request of and with the consent of her natural guardian,
spouse or legal guardian, as the case may be; or
(ii) if such persons cannot be found, upon the request and with the
consent of her curator personae:
Provided that such pregnancy may not be terminated unless two medical practitioners or
a medical practitioner and a registered midwife or registered nurse who has completed
the prescribed training course consent thereto.
(5) Where two medical practitioners or a medical practitioner and a registered midwife
or registered nurse who has completed the prescribed training course, are of the opinion
that—
(a) during the period up to and including the 20th week of the gestation period of
a pregnant woman referred to in subsection (4)(a) or (b)—
(i) the continued pregnancy would pose a risk of injury to the

woman’s physical or mental health; or
(ii) there exists a substantial risk that the fetus would suffer from a
severe physical or mental abnormality; or
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(b) after the 20th week of the gestation period of a pregnant woman referred to
in subsection (4)(a) or (b), the continued pregnancy—
(i) would endanger the woman’s life;
(ii) would result in a severe malformation of the fetus; or
(iii) would pose a risk of injury to the fetus,
they may consent to the termination of the pregnancy of such woman after consulting
her natural guardian, spouse, legal guardian or curator personae, as the case may be:
Provided that the termination of the pregnancy shall not be denied if the natural
guardian, spouse, legal guardian or curator personae, as the case may be, refuses to
consent thereto.
6. Information concerning termination of pregnancy
A woman who in terms of section 2(1) requests a termination of pregnancy from a
medical practitioner or a registered midwife or registered nurse, as the case may be,
shall be informed of her rights under this Act by the person concerned.
7. Notification and keeping of records
(1) Any medical practitioner, or a registered midwife or registered nurse who has
completed the prescribed training course, who terminates a pregnancy in terms of
section 2(1)(a) or (b), shall record the prescribed information in the prescribed manner
and give notice thereof to the person referred to in subsection (2).
(2) The person in charge of a facility referred to in section 3 or a person designated for
such purpose, shall be notified as prescribed of every termination of a pregnancy carried
out in that facility.
(3) The person in charge of a facility referred to in section 3 shall, within one month of
the termination of a pregnancy at such facility, collate the prescribed information and
forward it by registered post confidentially to the relevant Head of Department: Provided
that the name and address of a woman who has requested or obtained a termination of
pregnancy, shall not be included in the prescribed information.
[Sub-s. (3) amended by s. 3 of Act 38/2004 and again by s. 3 of Act 1/2008]
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(4) The Head of Department shall—

(a) keep record of the prescribed information which he or she receives in terms of
subsection (3); and
(b) submit to the Director-General the information contemplated in paragraph (a)
every six months.
[Sub-s. (4) substituted by s. 3 of Act 38/2004 and again by s. 3 of Act 1/2008]
(5) The identity of a woman who has requested or obtained a termination of
pregnancy shall remain confidential at all times unless she herself chooses to disclose
that information.
8. Delegation
(1) The Member of the Executive Council may, on such conditions as he or she may
determine, in writing delegate to the Head of Department or any other officer in the
service of the State, any power conferred upon the Member of the Executive Council by
or under this Act, except the power referred to in section 9.
(2) The Head of Department may, on such conditions as he or she may determine, in
writing delegate to an officer in the service of the State, any power conferred upon the
Head of Department by or under this Act.
(3) The Member of the Executive Council or Head of Department shall not be divested
of any power delegated by him or her, and may amend or set aside any decision taken by
a person in the exercise of any such power delegated to that person.
9. Regulations
The Member of the Executive Council may, in consultation with the Minister, make
regulations relating to any matter which it is necessary or expedient to prescribe for the
proper implementation or administration of this Act.
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10. Offences and penalties

(1) Any person who—
(a) is not a medical practitioner, or a registered midwife or registered nurse who
has completed the prescribed training course, and who performs the
termination of a pregnancy referred to in section 2(1)(a);
(b) is not a medical practitioner and who performs the termination of a pregnancy
referred to in section 2(1)(b) or (c);
(c) prevents the lawful termination of a pregnancy or obstructs access to a facility
for the termination of a pregnancy; or
(d) terminates a pregnancy or allows the termination of a pregnancy at a facility
not approved in terms of section 3(1) or not contemplated in section 3(3)(a),
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a
period not exceeding 10 years.
[Subs. (1) substituted by s. 6 of Act 38/2004 and again by s. 6 of Act 1/2008]
(2) Any person who contravenes or fails to comply with any provision of section 7 shall
be guilty of an offence and liable on conviction to a fine or to imprisonment for a period
not exceeding six months.
11. Application of Act
(1) This Act shall apply to the whole of the national territory of the Republic.
(2) This Act shall repeal—
(a) the Act mentioned in columns one and two of the Schedule to the extent set
out in the third column of the Schedule; and
(b) any law relating to the termination of pregnancy which applied in the territory
of any entity which prior to the commencement of the Constitution of the
Republic of South Africa, 1993 (Act No. 200 of 1993), possessed legislative
authority with regard to the termination of a pregnancy.
12. Short title and commencement
This Act shall be called the Choice on Termination of Pregnancy Act, 1996, and shall
come into operation on a date fixed by the President by proclamation in the Gazette.
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Schedule
No. and year of Short title Extent of repeal

law
Act No. 2 of 1975 Abortion and In so far as it relates to

Sterilization Act, abortion.
1975
Key
(a) Short title
(b) Date assented to and date of commencement (section 12)
(c) Long title (states purpose of Act)
(d) Defining section
(e) Section 2
(f) Subsection (1) of section 2
(g) Paragraph (b) of subsection (1)
(h) Subparagraph (i) of paragraph (b)
(a) Citing a section of a statute

Reference to the subparagraph of section 2 above is as follows:
Section 2(1)(b)(i) of Act 92 of 1996
Now we have to apply the relevant section of the statute that relates to the facts of the case. But
words and their meanings are woolly and difficult to grasp and give a fixed content to.
3.2.4 Interpretation of statutes: Two theoretical approaches

According to Christo Botha’s textbook Statutory Interpretation: An Introduction for Students, there
are two main theoretical approaches to interpreting statutes: we have the ‘literal approach’ that
competes with the ‘purposive approach’.
The literal approach to statutory interpretation characterised statutory interpretation in the
apartheid era.
• According to that approach, the golden rule of interpretation is to ascertain the intention of
the legislature. You will remember from our discussion on the history of South African law in
Chapter 2 above that the apartheid state was based on the notion of parliamentary
supremacy which meant that the will of Parliament was supreme.
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• This is most easily done if the words used in the statute are clear and unambiguous. If we
then use the ordinary meaning of those words and the result is not ridiculous, then we would
follow the ‘literal’ meaning of words under this approach to interpretation.
• It would only be in cases where the literal meaning is unclear, ambiguous, or would lead to
absurd results that one could turn to so-called secondary aids of interpretation that make the
context of the statute and its words clear.
• This approach to statutory interpretation is ultimately informed by the legal positivist concern
that commands from the legislature must be respected and strictly interpreted by judges.
The purposive approach to statutory interpretation is characterised by a concern with putting
the ‘text in context’.
• As the name suggests, the purpose of the legislation is a critical consideration in this model
of interpretation.
• Unlike the literal approach to interpretation, purposive interpretation does not assume that a
clear, plain meaning of a text necessarily reflects the purpose of that text.
• In other words, purpose is always important and relevant — not just in cases of uncertainty
or absurd results.
• Under this model, judges are not seen as robots that apply the law in a very strict, almost
mathematical, manner.
What approach do we and should we follow in modern South African law? Let us turn to the
Constitution to try to find an answer. Section 39(2) of the Constitution provides that ‘when
interpreting any legislation . . . a court . . . must promote the spirit, purport and objects of the Bill
of Rights’. Practically, what does this mean? Botha draws our attention to the following quotation
from the case of Bato Star Fishing v Minister of Environmental Affairs and Tourism 2004 (4) SA
490 (CC) para 72, 80 & 90:
‘The starting point in interpreting any legislation is the Constitution . . . first, the interpretation that is placed
upon a statute must where possible be one that would advance at least an identifiable value enshrined in the
Bill of Rights; and second, the statute must be capable of such interpretation . . . [legislation] must be
interpreted purposively to promote the spirit, purport and objects of the Bill of Rights . . . the emerging trend
in statutory construction is to have regard to the context in which words occur, even where the words to be
construed are clear and unambiguous.’
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There you have it, from the Constitutional Court: legislation must be purposively interpreted.
Does this mean that the words in a statute can be twisted to mean whatever we would like
those words to mean? The short answer is ‘no’ and the authority for this is the following quote
from the judgment in SAPS v Public Servants Association 2007 (3) SA 521 (CC) para 20:
‘Interpreting statutes within the context of the Constitution will not require the distortion of language so as to
extract meaning beyond that which the words can reasonably bear. It does, however, require that the
language used be interpreted as far as possible, and without undue strain, so as to favour compliance with
the Constitution. This in turn will often necessitate close attention to the socio-economic and institutional
context in which a provision under examination functions. In addition it will be important to pay attention to
the specific factual context that triggers the problem requiring solution.’
If we take seriously the instructions in Bato Star and SAPS, then we might end up with a
transformative approach to statutory interpretation where we recognise that statutory
interpretation is a value-laden exercise in which the Constitution, purpose, and context play
important roles. As such, it should be clear that it is no longer the intention of the legislature that
matters most. We no longer find ourselves in a parliamentary supreme state. We find ourselves in
a state of constitutional supremacy. So, the purpose of the legislation, in a constitutional light, is
what matters most.
But how does this practically play out?
3.2.5 Interpretation of statutes: practical steps

(a) Techniques of interpretation
Over the years, some practical guidance has been provided on how to go about this exercise of
purposive interpretation. In the South African context, one of the most famous writers on statutory
interpretation is Lourens du Plessis. In his book Re-Interpretation of Statutes he identifies five
‘canons’ or ‘angles of approach’ of statutory (and even constitutional) interpretation. These five
techniques should not be thought of as separate ideas — they should all be used simultaneously in
an interrelated manner.
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You will remember that above we have referred to a case study of Portia who has visited
the doctor with her boyfriend, enquiring about the possibility of terminating her
pregnancy. We can refer to her case and enquire how the Choice of Termination of
Pregnancy Act, provided above, would apply to her. At first glance, the relevant section
that relates to her situation is section 2(1)(a): ‘A pregnancy may be terminated upon
request of a woman during the first 12 weeks of the gestation period of her
pregnancy . . . .’ Below, we consider how the different techniques suggested by Du
Plessis could feature in giving meaning to that provision.
• Technique 1 — Grammatical interpretation: As explained above, purposive interpretation

does not mean that the text of a statute is unimportant. To the contrary, the grammatical
meaning of words, phrases, and sentences are important and must be given due regard to.
This is especially true when words or phrases are not defined in the Act itself. So, for
example, what a ‘request’ is, will probably relate in some way to the ordinary meaning of the
word. Find this in an ordinary dictionary, such as the Oxford Concise Dictionary. This
dictionary defines ‘request’ as ‘act of asking politely or formally for something’. Does Portia’s
conduct constitute such an ‘act of asking politely or formally for something’?
• Technique 2 — Systematic interpretation: Legislation should always be read as a whole.
This means that even if it seems at first glance that your case might turn on a very specific
sub-section of a statute, you should pay attention to the entire text of the statute to make
sure that you understand the text in context. In this regard, we might consider the word
‘woman’ as it features in the relevant section. For the purposes of this Act, ‘woman’ has a
specific meaning. This meaning is given in the definition section, section 1. If you look for
the meaning of a word or phrase in an Act, always start with the definition section. This point
strikes at the heart of systematic interpretation — you cannot simply read the section itself
and take the view that you have discovered the answer to your dispute. Read the Act in its
entirety to properly contextualise the meaning of a word, phrase or sentence. Another
important aspect of Portia’s case is that she must give her own, informed consent for the
termination. Her boyfriend cannot make this decision for her. This you would only know if you
consulted section 5 of the Act. Due to the fact that informed consent has
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not been defined in the Act and it is unlikely that you should find a definition for that phrase
in a dictionary, it may be useful to turn to previous cases where the phrase ‘informed
consent’ has been dealt with before. The word’s interpretation can then be found in a case
report. In the index to the law reports there is a heading ‘words and phrases’. A further
useful aid in the process of interpretation is the Interpretation Act 33 of 1957. Certain
aspects of interpretation that occur in almost every statute are regulated by this Act, for
example the rule of how the words ‘month’ and ‘person’ must be understood and the effect of
the repeal of legislation. The Interpretation Act also stipulates that male terms (‘he’) refer to
both males and females. In the Choice of Termination of Pregnancy Act, the context clearly
speaks about women when reference is made to ‘her’.
• Technique 3 — Teleological interpretation: The Greek word telos refers to a purpose of
objective. So teleological interpretation would require us to delve into the deep meaning
behind the statute, especially in light of constitutional values. In this regard, we might
emphasise the preamble to the Act which explicitly incorporates constitutional references and
mentions the socio-economic importance of terminations of pregnancy. The long title of the
Act is also relevant here. These aspects should bolster your interpretation of the section and
would emphasise the fact that Portia should be able to make her own empowering decisions
about her body.
• Technique 4 — Historical interpretation: Here we ask what the historical need was for
the legislation (sometimes phrased as the ‘mischief rule’, i.e. what was the mischief that the
legislation intends to address) and we consider older versions of legislation that dealt with a
similar topic to ask how the new legislation differs from the old legislation. All of this is done
to understand the purpose of the legislation. In this regard it must be understood that the
legal position prior to the Act was that abortions were illegal at common law. Thus, the
legislation must be understood as a clear and unequivocal statement in favour of choice and
bodily autonomy. Furthermore, we might consider the historical fact that women’s bodies
have been subject to male control. As such, this fact would accentuate the need for informed
consent by the woman herself.
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• Technique 5 — Comparative interpretation: With this technique we can consider how

courts in other jurisdictions have interpreted similar words, phrases, or statutory schemes. In
other jurisdictions, terminations of pregnancy are also allowed. The case of Roe v Wade 410
US 113 (1973) is the landmark case in the United States whereby abortion was
decriminalized. See further Chapter 15 of this book on legal comparison.
Currently the preceding deliberations are not taken into account. The most important source of
these are the debates of Parliament as published in Hansard. During the second reading debate on
Act 92 of 1996 the then minister (Dr Dlamini-Zuma) made the following remarks:
‘Approximately one out of every four mothers who give birth in South Africa is under 20 years
old. It is also common knowledge for most of us that these women are still at school when they
fall pregnant, and when they find out that they are pregnant, they are terrified to discuss the
matter with their parents. In fact most parents only find out when the pregnancy is advanced —
maybe when the uniform no longer fits around their daughter’s waist, or sometimes when this
young girl wears a jersey even when the temperature is 38°C. Her parents begin to wonder what
the matter is, and then they find out that their daughter is pregnant.
What this Bill says is that if that young woman is terrified even of telling her parents about the
pregnancy, she will be equally terrified if she has decided to terminate that pregnancy. Therefore,
if she is forced to get consent from her parents, she will still have a backstreet abortion, and she
will still die. If one was a parent, would one rather one’s child died because she did not get
consent from one, or would one rather she was saved even if one did not know about the
pregnancy? [Interjections.] This Bill says that the life of that young girl is paramount. We have to
save her life even if it means not getting parental consent. [Interjections.]’
Hansard, column 5047, 29 October 1996
Should these observations be taken into account when interpreting a statute? An advantage may
be that the parliamentary debate gives the best indication of what Parliament’s intention was. On
the other hand, conflicting viewpoints are expressed by people supporting a Bill and this may be
confusing and contradictory.
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(b) Presumptions
A presumption is a ruling of common sense applied so consistently that it has obtained the status
of presumed truth. The following are examples of presumptions in the field of interpretation of
statutes:
• Legislation does not contain aimless provisions. Each word and each section must be
accorded meaning.
• Legislation does not aim at changing existing laws unduly.
• Unfair and unreasonable results are not the aim. (This presumption only becomes applicable
when more than one interpretation is possible.)
• Statutes have only prospective and not retrospective application.
With these rules of interpretation in mind, what is your advice to the doctor treating
Portia?
3.3 Precedent (court decisions, case law)

3.3.1 Precedent as source
(a) Function of courts
Courts are institutions that apply the law on a daily basis. When people cannot solve their disputes
themselves, or when people are suspected of having committed criminal offences, such cases may
end up in court. The court must then ascertain the law, apply it to the case and give judgment.
The term ‘court’ means the presiding officer, for example the judge or magistrate. Judges and
magistrates, like all lawyers, find the law which they must apply in legal sources. In other words,
they look at legislation, rules of common law, customary law, and custom that may apply to the
particular case before them. Section 165 of the Constitution says the following about the courts:
‘165 Judicial authority
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply
impartially and without fear, favour or prejudice.
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(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure
the independence, impartiality, dignity, accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it
applies.
(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and
monitoring of norms and standards for the exercise of the judicial functions of all courts.’
(b) Doctrine of judicial precedent

Courts must also take into account their previous judgments in similar cases, because they are
bound to the approach followed in the past. Previous judicial decisions are therefore also a primary
source of law, and the way in which the law was applied there is authoritative. The reason for this
lies in the system of judicial precedent, also called the doctrine of stare decisis, which applies in
South Africa. Stare decisis literally means ‘to stand by previous decisions’. According to this
doctrine, previous judgments create (binding) precedents which must be followed. This doctrine
comes from English law. The underlying principle of the doctrine is that the law which was applied
to a specific factual situation should be applied to all similar situations.
The question will often arise whether an existing precedent is applicable to the case before a
court.
If the facts of a case that you are dealing with are materially similar to those of an existing
precedent, then the cases are said to be analogous and so the precedent will apply to your case.
If the facts of the existing precedent are not materially the same as those in the case before the
court, the two cases can be said to be distinguishable. The court then does not have to apply the
precedent to the facts before it.
But what are these so-called material facts? Material facts are those facts that are essential to
the finding made in the previous case. In other words, the judgment was made conditional to
those facts. Let us take the examples of two motor vehicle accidents.
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Case A: Let us say that in an earlier decision a particular court was faced with an issue
where a driver was travelling at the speed limit of 60km/h on a wet road during a
rainstorm on 31 January 2017. The driver collided with a motorcyclist on the corner of
Empire and Yale Road in Johannesburg. The court in that case decided that when the
road is wet, drivers should reduce their speed accordingly to prevent accidents, even if
that means that the driver should drive below the speed limit prescribed by law.
Case B: Suppose now that we have a later accident that occurred on 14 January 2018
on the N1 highway in Johannesburg during a hailstorm where the driver was travelling at
the speed limit of 120km/h. The driver collided with a motorcyclist. Could the principle of
Case A apply in Case B?
At first glance, you might say that the facts are very different: Case A happened on 31
January while Case B happened on 14 January. Case A happened on a road where the
speed limit was 60km/h while Case B happened on a highway where the limit is
120km/h. In Case A there was a rainstorm while in Case B there was a hailstorm. For
these reasons you might exclaim that Case B is distinguishable from Case A and
therefore the precedent laid down in Case A does not apply to Case B. However, you
must ask yourself this question: What are the material facts of Case A? We might say
that the material fact is that the road was wet and this made the road slippery. In such a
case, drivers should reduce their speed. In Case B, the road was also wet and the road
would have been slippery. So in Case B, the driver should also have reduced their speed
to prevent an accident. Being able to identify the material facts (sometimes also called
the salient facts) of cases is an important skill that you will acquire through practice
and time. Reading case law is a good place to start — to see how judges decide whether
cases are analogous or distinguishable.
The system of judicial precedent means that lower courts are bound by the decisions of higher
courts, and, furthermore, that a court is also bound by its own previous decisions, unless they are
wrong. This implies the following:

• There is a hierarchy of courts.
• Judgments must be reported (published) in law reports so that precedents are easily
accessible.
(c) Hierarchy of courts

The Constitution of South Africa, 1996 makes provision for some changes with respect to the
names of the courts and their powers. The hierarchy of the South African courts implies that there
are two kinds of courts:
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higher or superior courts (the Constitutional Court, Supreme Court of Appeal, and the High Court)
and lower courts (magistrates’ courts, consisting of regional and district courts). This hierarchy is
illustrated in the figure below.
Figure 3.1
(d) Application of the doctrine of precedent

The hierarchy of the courts dictates the manner in which the doctrine of judicial precedent is
applied:
The superior courts:
• The Constitutional Court is the highest court in South Africa. This statement needs some
contextualisation. When the 1996 Constitution was first passed, a distinction was drawn
between so-called ‘ordinary courts’ and the Constitutional Court. Ordinary courts generally
had jurisdiction over all legal matters while the Constitutional Court could only make
pronouncements about constitutional matters. Therefore, it was said in the past that the
Constitutional Court was the ‘highest court in all constitutional matters’, while the Supreme
Court of Appeal was the highest court for ‘all other matters’. This position was radically
changed by the Constitution Seventeenth Amendment Act of 2012. This 17th
Amendment changed section 167(3) of the Constitution of the Republic of South Africa, 1996
which now reads:
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‘(3) The Constitutional Court—

(a) is the highest court of the Republic; and
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter
raises an arguable point of law of general public importance which ought to be considered by that
Court; and
(c) makes the final decision whether a matter is within its jurisdiction.’
As such, the Constitutional Court is no longer only a court of constitutional matters. It is the apex
court of South Africa and may decide both constitutional issues and other cases — those other
cases only being heard if three conditions are met. First, the court must grant leave to appeal.
Second, the leave to appeal is granted on the basis that an arguable point of law is raised. Third,
there should be a dimension of public importance in the case at hand. The broader jurisdiction
afforded to the Constitutional Court after the 17th Amendment probably fits more comfortably with
the idea of constitutional supremacy where all law and conduct is subject to constitutional control
and should therefore fall under the auspices of the Constitutional Court. The Constitutional Court is
bound by its own previous judgments, unless if they are now held by itself to be clearly wrong. All
other courts in South Africa are bound by judgments of the Constitutional Court (even if those
lower courts believe that the Constitutional Court might have been wrong).
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The Constitutional Court

• The Supreme Court of Appeal is the second highest court in the hierarchy. It is bound by
its own previous judgments, unless they are wrong. The judgments of this court bind all
subordinate courts in the country. The predecessor of the Supreme Court of Appeal was
known as the Appellate Division of the Supreme Court and in a bygone era, it was the
highest court of South Africa before the time of constitutional democracy.
• There is one High Court of South Africa. In the past, before the 17th Amendment of the
Constitution, the different high courts in the different provinces were regarded as being fairly
independent of one another. There are still divisions of the High Court in all of the provinces,
but they are administratively regarded as being branches of one tree. These High Court
divisions are in the first instance bound by judgments of the Constitutional Court and
Supreme Court of Appeal. If there are no such applicable judgments, the High Court is bound
by its own previous judgments, unless they are wrong. A single judge is bound by the
decisions of a full bench (two or more judges). In the past, before the 17th
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Constitutional Amendment, it was clear and settled law that the High Court of a specific
province was not bound by the judgments given in another province, the latter being of
persuasive force only. Today it is less clear whether the idea of a single and unified High
Court of South Africa is purely administrative or whether it does away with the inter-
provincial rules of precedent. In practice, for example, the High Court in Cape Town does not
tend to create an entirely separate body of law from the High Court in Johannesburg and
there appears to be a spirit of cooperation and friendliness between different branches of the
High Court. In cases where the Supreme Court of Appeal itself has not yet given judgment on
a specific issue, it is not bound by the judgments of the High Court. Such High Court
judgments have only persuasive force in the Supreme Court of Appeal.
• Lower courts (magistrates’ courts comprising of local and district courts) are bound by
judgments of the Constitutional Court and the Supreme Court of Appeal. In the absence of
such applicable judgments they are bound by the judgments of the High Court in their
respective provinces. The judgments of lower courts do not serve as precedents which must
be followed; therefore they are not reported.
(e) Ratio decidendi and obiter dicta
However, not everything mentioned by a court in its judgment creates a precedent. In other
words, the whole judgment in itself is not necessarily a precedent that must be followed. Usually a
court has to decide on two issues:
• the facts of the case; and
• the law that is applicable to the facts.
Although the facts of different cases are often similar, they are never one hundred per cent the
same; the facts always differ in some or other respect. The court’s finding of precisely what the
facts of the case before it amount to is therefore not binding; a finding purely on facts creates no
precedent.
Obiter dicta (the singular is obiter dictum) likewise do not create precedents. Obiter dicta
literally means ‘remarks in passing’. These are the judge’s casual remarks concerning the law.
They are not directly
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relevant and applicable to the case before the court. It is not necessary for the court to take them
into account in order to reach its decision. The judge’s views on a hypothetical case will, for
example, be obiter dictum. Obiter dicta are not binding, but they can sometimes have persuasive
force.
Example
In Broude v McIntosh and Others 1998 (3) SA 60 (SCA), a patient who suffered a
paralysis of the left side of his face after an operation claimed damages from the medical
practitioner. The present position in our law is that the failure of a doctor to inform a
patient about the risks relating to a specific operation amounts to assault. The court
accepted this approach, however, it found that there was a lack of evidence to prove the
doctor’s liability. But the judge was uncomfortable with the present approach that such
conduct amounts to assault and made the following obiter dictum (at 67–68):
‘However, I venture to suggest with respect that its conceptual soundness is open to serious
question . . . To the average person . . . it is a strange notion that the surgical intervention of a
medical practitioner whose sole object is to alleviate the pain or discomfort of the patient, and
who has explained to the patient what is intended to be done and obtained the patient’s consent
to it being done, should be pejoratively described and juristically characterized as an assault
simply because the practitioner omitted to mention the existence of a risk . . . It seems to me to
be inherent in the notion that, even if the risk does not eventuate and the surgical intervention is
successful, the practitioner’s conduct would nonetheless have constituted an assault. That strikes
me as a bizarre result which suggests that there is something about the approach which is
unsound.’
Only the ratio decidendi creates a precedent. Literally it means ‘the reason for the decision’.
Ratio decidendi consists of the legal principles that the court applied to the material facts in order
to reach a decision. A law report will never contain a direct indication of which section constitutes
the ratio decidendi. You have to find it yourself. This can be quite difficult and often it is not clear
what are obiter dicta and what is the ratio decidendi. In order to find the ratio decidendi, you have
to know the law that is applicable to the specific case quite well.
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(f) More than one judgment

Sometimes a case is heard by more than one judge. If they are in agreement, one judge hands
down the judgment. This judgment represents the joint or collective process of reasoning and is
the opinion of all the judges on the bench. In this regard we might say that a certain judge has
written the judgment on behalf of the unanimous court and the other judges are said to concur in
the judgment of their learned brother or sister. But the judges can disagree with one another and
therefore more than one judgment can be handed down. The principle in such cases is that the
ratio decidendi is found in the judgment of the majority of judges, who based their judgment on
the same reasons. We distinguish between the following:
• Majority judgment: The majority of judges who heard a particular case give the same
judgment based on the same reasons. A majority judgment implies that there is also a
minority judgment. The ratio decidendi of the majority judgment creates the precedent and
is binding.
• Minority (dissenting) judgment: The judge or judges disagree(s) with the majority and
their judgment reaches a different conclusion. Sometimes a minority judgment is also called
a dissenting judgment. Such a judgment establishes no precedent. It can, however, have
persuasive force in future, depending, for example, on the standing of the particular judge.
Example
In the case of Minister of Home Affairs and Another v Fourie and Another (Doctors for
Life International and Others, Amici Curiae); Lesbian & Gay Equality Project and Others v
Minister of Home Affairs and Others 2006 (1) SA 524 (CC) the Constitutional Court was
faced with the question of whether the Constitution required the legal recognition of
same-sex marriage. Before this important decision, marriage (and its associated
protections) could only be entered into between a man and a woman. No provision was
made for same-sex couples who wanted the law to recognise their union. Justice Sachs
wrote the judgment for the majority of the court (Chief Justice Langa, Deputy Chief
Justice Moseneke, and Justices Mokgoro, Ngcobo, Skweyiya, Van der Westhuizen, and
Yacoob all concurred in the judgment of Justice Sachs). In the majority judgment of
Justice Sachs, we find the declaration that the common-law definition of marriage that
only accommodated heterosexual couples was
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unconstitutional because it infringed on the right to equality of same-sex couples. Justice

Sachs referred the case to Parliament and instructed them to draft legislation to
accommodate the right of same-sex couples to solemnise a legal union. Justice O’Regan
wrote a dissenting judgment. You will see from the extract below, she agrees with a lot
of what Justice Sachs said, but differs in the ultimate outcome of his judgment. It is for
this reason that her judgment is a minority judgment.
‘[163] There is very little in the comprehensive and careful judgment of Sachs J with which I
disagree . . .
[164] I . . . agree with Sachs J, for the reasons given by him, as well as for the reasons given
in both judgments in the Supreme Court of Appeal, that the common-law definition of marriage
in excluding gay and lesbian couples from marriage constitutes unfair discrimination on the
grounds of sexual orientation in breach of s 9 of the Constitution. Similarly, and for the same
reasons, s 30 of the Marriage Act 25 of 1961, is in conflict with the same constitutional provision.
I need add nothing to the comprehensive judgment of Sachs J on this score.
[165] The difference between his judgment and this, therefore, lies solely in one
significant area, namely, that of remedy. How best should these clear constitutional
infringements be remedied by this Court? In S v Bhulwana; S v Gwadiso this Court held that it is
an important principle of the law of constitutional remedies that successful litigants should
ordinarily obtain the relief they seek. Without doubt there are exceptions to this rule. A court
must consider in each case whether there are other considerations of justice or equity which
would warrant an exception to this key precept. In this case, Sachs J concludes that this case
does involve considerations which warrant such an exception, and he accordingly proposes an
order suspending the declaration of invalidity for 12 months. The effect of this order is that gay
and lesbian couples will not be permitted to marry during this period.’
Ultimately, Justice O’Regan comes to the conclusion that we should not wait for
Parliament to pass legislation to give effect to the rights of gay and lesbian couples. In
her view, the Constitutional Court should have developed the common law immediately
so that marriage would be redefined to accommodate same-sex couples. In this regard,
she concludes by saying:
‘[173] In sum, I dissent from the judgment of Sachs J in one respect. I would not suspend the
order of invalidity as proposed by Sachs J. In my view, the Court should make an order today
which has immediate prospective effect. Such an order would not preclude Parliament from
addressing the law of marriage in the future, and would simultaneously and immediately protect
the constitutional rights of gay and lesbian couples pending parliamentary action.’
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• Separate concurring judgment: Sometimes a judge does not disagree with the conclusion
of the other judges, but hands down a separate judgment in which a certain aspect is
emphasised or added, or his judgment could be based on totally different reasons. Such
reasons do not establish a precedent. The ratio decidendi is only to be found in the majority
judgment.
Chaskalson P wrote the Constitutional Court’s judgment which declared the death penalty
unconstitutional in S v Makwanyane 1995 (3) SA 391 (CC). The other judges agreed with
him, but each of the ten gave a separate concurring judgment, emphasising different
aspects. Madala J, for instance, stressed that the death penalty runs counter to the
African concept of ubuntu (humaneness and fairness) which is mentioned in the interim
Constitution.
A holistic example
In the case of Prince v President of the Law Society, Cape of Good Hope, and Others
2002 (2) SA 794 (CC) the Constitutional Court was faced with the question of whether
legislation that prohibits the possession of cannabis (dagga) unconstitutionally limited
the right of followers of the Rastafarian religion to use the sacred herb.
The majority decision of the court was penned by Chief Justice Chaskalson with
Justices Kriegler and Ackermann. Justices Goldstone and Yacoob concurred in that
judgment. Thus, five judges agreed on the fact that the legislation was not
unconstitutional for a number of different reasons. This judgment constituted the binding
precedent.
A minority judgment was written by Justice Ngcobo (as he was then, before he later
became Chief Justice) wherein he expressed the view that the legislation was
unconstitutional because bona fide Rastafarian people should be allowed to use cannabis.
Justices Mokgoro, Sachs and Madlanga concurred in the judgment of Justice Ngcobo.
Thus, four judges agreed to the minority judgment. This does not constitute binding
precedent and aspects of the judgment would at most be regarded as being persuasive.
Even though Justice Sachs agreed with the outcome of the minority judgment of
Justice Ngcobo, he nevertheless felt the need to emphasise further dimensions about
why the legislation should have been held to be unconstitutional. He concludes his
judgment by saying (at para 173): ‘Subject to the above complementary observations, I
record my concurrence with the judgment and order of Ngcobo J.’ His judgment is
regarded as a separate
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minority judgment because he did not disagree with the minority (thus it is separate
from the main minority decision) but nevertheless disagreed with the outcome proposed
by the majority (making his judgment a minority decision). Aspects of his judgment
would at most be persuasive.
Now read the follow-up case of Minister of Justice and Constitutional Development v
Prince (Doctors for Life International Inc Amicus Curiae) 2018 JDR 1588 (CC) and
determine what type of judgment or judgments feature in this case.
(g) Pros and cons of the doctrine of precedent

The doctrine of precedent has the following advantages:
• Legal uniformity: The fact that all courts are bound by the judgments of the highest courts
ensures to a great extent that law is applied uniformly (in the same manner) throughout the
country. This principle gives effect to the right to equality guaranteed in section 9(1) the
1996 Constitution which says: ‘Everyone is equal before the law and has the right to equal
protection and benefit of the law.’ In the absence of an applicable judgment by the Supreme
Court of Appeal or Constitutional Court on a specific issue, the law could differ from province
to province. This is because, as we have mentioned above, there is some uncertainty about
whether the High Courts of the different provinces are bound by each other’s judgments after
the 17th Constitutional Amendment.
• Legal certainty: The doctrine of precedent ensures that a court will be fairly consistent in
its decisions in similar cases. Corresponding cases are to be treated equally. The law,
therefore, becomes predictable and people can plan their lives and business activities
accordingly.
The doctrine of precedent has the following disadvantages:
• A precedent may have been decided incorrectly and thus does not portray the best legal
position. However, because of the doctrine, it has to be followed.
• Seeing that courts are bound by their previous decisions, it becomes difficult to depart from
them. Therefore, courts cannot strongly influence legal reform. It takes a long time for the
courts to change the law and to adapt it to new circumstances and needs. In this regard
legislation is a much more effective source of law.
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(h) Value of precedents as a source of law

The courts apply the whole body of law on a daily basis. It was mentioned above that a lawyer
must, at the outset, establish whether or not there is a statutory provision that applies to a
particular case. This is true. But the questions still remain: What does that provision mean? How is
it applied in practice? The courts establish the precise content and meaning of statutory provisions,
as well as that of other legal norms, such as the different rules of common law, customary law,
and custom.
Sometimes the court goes about its task creatively by extending the application of a specific
norm to a case which it did not cover before. However, in the past it was often said that the
function of a court is ius dicere non facere: to interpret the law and not to make it. This is not
entirely correct. The court does make law and goes about its task in a creative fashion every time
it gives form, content and meaning to a specific legal rule. Moreover, the Constitution now
determines that the courts can develop common law and customary law in accordance with the
spirit, purport and objects of the Bill of Rights (section 39(2)). For law students and practitioners,
case law is not merely a collection of examples of how problems are solved in practice. Because of
the doctrine of precedent, case law has binding force and is, therefore, a very important source
of our law. It is there that one finds the meaning and extent of legal rules.
(i) Law reports

The application of the doctrine of precedent depends, among other things, on reported cases.
This makes it easy for lawyers to have access to the law as set out in precedents. Case law is
reported in the law reports. Only a small percentage of the cases that come before the courts are
eventually reported in printed (hard copy) format. As was mentioned earlier, judgments of the
lower courts are not reported; only judgments of the Constitutional Court, the Supreme Court of
Appeal and of the High Court are.
The proceedings in court are tape-recorded and later transcribed (typed). The editors of the law
reports select a few cases for publication. The selection is influenced by:
• the fact that the judgment deals with a new issue;
• that it is a conflicting judgment;
• that the judgment has important socio-political implications;
• or that it is an influential minority judgment.
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Increasingly, almost all cases are also made available electronically. However, some cases remain
unreported. The South African Legal Information Institute (more commonly known as SAFLII) is
an online collection of legal resources, including unreported judgments. However, not all
unreported judgments can be found on saflii.org. Such judgments can be obtained from the
registrars of the courts. Unreported cases have the same authority as reported ones. It only takes
more effort to get hold of them. A copy of such a case will usually have to be supplied to the
presiding officer.
We are now going to discuss some practical issues, such as how to find precedents, how to read
them, and how to make summaries.
3.3.2 Citation (case reference)

A citation (case reference) individualises each reported case, making it easier to find. It also
eliminates confusion when two cases have the same name. The method of reference used is a
commonly accepted style, not a legally binding prescription.
The full reference is used in law reports and, in general, in legal documents. Individual case
references make it easier for lawyers, magistrates and judges to find cases and to study them.
In practice and during tests, you generally need not give all the details of the case reference.
Sometimes only the parties’ names are used. Even one party’s name can be sufficient, such as ‘in
the Casey case below . . .’.
An example of a citation is:
Casey NO v The Master and Others 1992 (4) SA 505 (N)
It consists of five components:
• Case name: Casey NO v The Master and Others
• Year and volume case was reported: 1992 (4)
• Series of law reports: SA
• Page where case report starts: 505
• Court in which case was decided: (N)
These five components will now be discussed separately.
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(a) Case name: Casey NO v The Master and Others

A reference will always start with a case ‘name’. Two parties are usually placed against one
another. In a civil case the plaintiff’s (or applicant’s) name is given first. It is followed by that of
the defendant (or respondent). The ‘v’ represents ‘versus’ (against). In criminal cases the first
party will always be the state (‘S’). The other party is the accused. Before South Africa became a
Republic (in 1961) prosecutions were instituted in the name of the crown. King or queen in Latin is
rex or regina, so ‘R’ refers to the crown. Thus:
R v Littlejohn 1946 TPD 161
There may also be more than one plaintiff, respondent or accused. In the case of two parties ‘and
Another’ (‘en ’n ander’) is added to the first name. If there are more than two, it is indicated by
the phrase ‘and Others’ (‘en andere’).
In an appeal the appellant’s name will appear first. The other party is the respondent. In the
case
Rikhoto v East Rand Administration Board 1982 (1) SA 257 (W)
the finding was initially in favour of the applicant. The respondent in the court of first instance
thereafter appealed. On appeal the case reference is
Oos-Randse Administrasieraad v Rikhoto 1983 (3) SA 595 (A)
Only surnames (and not first names) are cited. In exceptional cases reference is made to the first
letter of a party’s surname in order to protect his or her identity. This applies particularly in cases
where children are involved, and will always be the case when the trial took place in camera.
S v M 1980 (1) SA 586 (B)
This particular case concerned the rape of a minor.
Other references found in case names are:
• NO — nomine officio or ‘in official capacity’ (NNO is the plural). Casey, in the case cited
above, does not appear in his personal capacity, but as executor of the estate.
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• Amicus curiae — Latin for ‘friend of the court’. An amicus curiae (plural: amici curiae) is a
person (or organisation) not a party to the dispute, but who intervenes in a case to assist a
court by providing expertise or information. In the case cited below, a dangerous criminal
escaped from police custody and then raped and robbed the female victim. The question
faced by the court was whether the police service should be held liable for its failure to keep
the dangerous criminal in custody. The Women’s Legal Centre intervened in the case to
provide the court with insight into the specific duty that the police owe to women to protect
them from the prevalence of gender-based violence.
Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003
(1) SA 389 (SCA)
• In re — ‘in the case (matter) of’. This indicates that the case does not involve a dispute
between two parties, but rather the interpretation or legal position on a certain point. This is
used especially in the interpretation of statutes and wills.
In re Rome 1991 (3) SA 291 (A)
The court had to give a finding on the meaning of a statutory section regulating the admission of
advocates.
• Ex parte — ‘on the application’. This indicates that only one party brings an application to the
court. If the applicant is successful, a provisional order (order nisi) is issued by the court.
This can be made final if no other party reacts to this order or if, after the party reacting has
been heard, the court decides to maintain the initial order.
Ex parte Davidson 1981 (3) SA 575 (D)
• Combinations are also possible. In Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)
there was only one party who brought the application (ex parte) and it concerned a problem
of interpretation (in re).
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(b) Year and volume in which case was reported: 1992 (4)
The South African Law Reports have been published monthly since 1947. The monthly issues are
collected in six volumes per year (as from 2002; previously, there were only four volumes).
Published court reports of the first two months of 2009 will for example be collected in volume
2009 (1). Volume 2009 (6) contains reported court reports of November and December 2009. The
reference does not indicate when the case was decided, but when it was published in the law
reports.
Even before South Africa became a Union (in 1910) courts gave judgments and cases were
reported. Four phases in the course of reporting can be distinguished:
• Before 1910: No single system existed. Individual reporters’ surnames were linked to a
series. In the Cape Colony Menzies edited the first collection that appeared in 1828. These
reports are still referred to as ‘Menzies’. He was followed by others. From 1880 the Cape
reports are referred to as SC (Supreme Court). The scope for confusion is even greater if one
takes into account the fact that the East-Cape, Natal, the OFS, the ZAR and the Transvaal
(1902–1909) each had their own series of reporters.
• 1910–1946: In 1910 the Union was formed. Reporting was now standardised. Each division
of the Supreme Court still issued its own series. These series appeared annually. A reference
to one of these is for instance:
R v S 1937 NPD 135
• Since 1947: The consolidated South African Law Reports started appearing.
• 1990: Specialist law reports began to appear.
(c) Series of law reports: SA

‘SA’ indicates in which series of law reports the reported case was included. This is the ‘South
African Law Reports’, the most general and comprehensive series. It is an edition by a specific
publisher (Juta), with a specific title. ‘SA’ does not indicate that it is a collection of South African
cases. Namibian and Zimbabwean cases are often relevant for lawyers in South Africa, and are
also contained in these reports. The reason for this is that both these countries have a partially
Roman-Dutch
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common law and both have already implemented a bill of fundamental (human) rights.
Another general and comprehensive series, the Prentice-Hall Reports, had been in existence
since 1923. It was distributed weekly to its subscribers. Complete judgments are seldom given.
Mostly extracts or summaries are provided. These were consolidated in two loose-leaf volumes per
year. The aim of this series was to bring important new legal disputes to the attention of lawyers.
In each volume of the Prentice-Hall reports cases are listed according to subject. Subjects are
arranged by means of an alphabet letter. Under ‘B’, for example, ‘Husband and Wife’ cases are
reported and under ‘G’ testaments (‘Wills’). A reference to a case from one of these reports will be
as follows:
Richies v Richies 1981 (1) PH B4
The reference indicates that the case is contained in the first volume of 1981. ‘B4’ indicates both
what the subject matter is and the number of the case in that subject group. Note that ‘4’ is not a
page number, but a chronological placing of the case in a group.
In 1996 the Prentice-Hall reports were replaced by a new series, the All South African Law
Reports (All SA). It is published weekly and is consolidated into four volumes annually.
The twentieth century is characterised by specialisation. This tendency also appears among
lawyers and is reflected in newly formed specialist law reports. The following are examples:
• South African Criminal Law Reports (SACR) — only criminal cases reported; published from
1990
• Industrial Law Journal (incorporating Industrial Law Reports) — cases on labour law,
published since 1980
• Butterworths Labour Law Reports (BLLR) — cases on labour law; published since 1994
• Butterworths Constitutional Law Reports (BCLR) — constitutional cases reported; published
from 1994
• Burrell’s Intellectual Property Reports (BIP) (since 1997; previously Burrell’s Patent Law
Reports)
• Butterworths Arbitration Law Reports (BALR) — published since 1998.
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A reference to a case from the Criminal Law Reports will be as follows:

S v Ncanywa 1993 (1) SACR 297 (CkA)
Emergence of electronic (online) reports: Judgments are increasingly being published in
electronic format, for example in ‘Judgments Online’ (LexisNexis Butterworths, abbreviated as JOL)
and ‘Juta’s Daily Law Reports’, and free of charge on the Southern African Legal Information
Institute (SAFLII)’s website (www.saflii.org.za). Some courts also provide access to their
judgments on their own websites (see for example www.constitutionalcourt.org.za).
A particular court’s decision may be reported in more than one of these reports, and both in
printed (hard copy) and electronic format. The decision of Azanian People’s Organisation (AZAPO)
and Others v President of the Republic of South Africa and Others may for example be found in the
South African Law Reports (1996 (4) SA 672 (CC)), in the Butterworths Constitutional Law Reports
(1996 (8) BCLR 1015 (CC)), in the South African Constitutional Law Reports (1996 (2) SACLR 1
(CC)), and on the SAFLII website ((CCT17/96) [1996] ZACC 16).
(d) Page where case report starts: 505

The number ‘505’ in the case reference indicates that the specific case report starts on page 505 of
that volume. This page number remains constant in the case reference. To refer to another page in
the same report, the following method is used:
‘In Jeewa v Dönges NO and Others 1950 (3) SA 414 (A) at 422H acting chief justice Centlivres refers to the
audi alteram partem rule.’
This means that reference is made to page 422 of the report, which starts on page 414. Next to
the printed text, letters of the alphabet appear in the margin, beginning with A. The relevant text
of the page can thus be found at a glance with the help of those marginal letters. In the Jeewa
case the relevant text can be found next to the letter ‘H’ on page 422.
Judgments of the Constitutional Court (and more recently those of the Supreme Court of Appeal
and the High Court) are delivered and published in numbered paragraphs. References to parts of
these judgments should therefore not be to marginal letters but to paragraphs.
S v Makwanyane 1995 (3) SA 391 (CC) at para 17
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(e) Court where case was decided: (N)

‘N’ indicates in which division of the Supreme Court (now the High Court) the case was decided.
Changes to the court structure introduced by the 1996 Constitution are reflected in the renaming
of the High Courts (in terms of the Renaming of High Courts Act 30 of 2008). Since then, the
Superior Courts Act 10 of 2013 has again changed the names of the courts slightly. The following
is a list of names and abbreviations of some prominent courts, containing both their new and
previous names:
Current names and Old names and Old names and
abbreviations in abbreviations abbreviations
terms of the Superior (1 March 2009 – (before 1 March
Courts Act 10 of 2013 22 August 2013) 2009)
(since 23 August
2013)
Constitutional Court Constitutional Court Constitutional Court

(CC) (CC) (CC)
Supreme Court of Supreme Court of Supreme Court of

Appeal (SCA) Appeal (SCA) Appeal (SCA) or
Appellate Division (A)
(in some older cases it
would be abbreviated
as AD)
Eastern Cape Division, Eastern Cape High Ciskei High Court (Ck)
Grahamstown (ECG) Court, Grahamstown
(ECG)
Eastern Cape Local Eastern Cape High Eastern Cape Provincial
Division, Bhisho (ECB) Court, Bhisho (ECB) Division (E)
Eastern Cape Local Eastern Cape High Transkei High Court
Division, Mthatha (ECM) Court, Mthatha (ECM) (Tk)
Eastern Cape Local Eastern Cape High South Eastern Cape
Division, Port Elizabeth Court, Port Elizabeth Local Division (SE)
(ECP) (ECP)
Free State Division, Free State High Court, Orange Free State
Bloemfontein (FB) Bloemfontein (FB) Provincial Division (O)
Gauteng Division, North Gauteng High Transvaal Provincial

Pretoria (GP) Court, Pretoria (GNP) Division (T or in earlier
cases TPD)
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Current names and Old names and Old names and

abbreviations in abbreviations abbreviations
terms of the Superior (1 March 2009 – 22 (before 1 March
Courts Act 10 of 2013 August 2013) 2009)
(since 23 August
2013)
Gauteng Local Division, South Gauteng High Witwatersrand Local
Johannesburg (GJ) Court, Johannesburg Division (W)
(GSJ)
KwaZulu-Natal Division, KwaZulu-Natal High Natal Provincial Division

Pietermaritzburg (KZP) Court, Pietermaritzburg (N or in earlier cases
(KZP) NPD)
KwaZulu-Natal Local KwaZulu-Natal High Durban and Coast Local
Division, Durban (KZD) Court, Durban (KZD) Division (D)
Limpopo Local Division, Limpopo High Court, Venda High Court (V)
Thohoyandou (LT) Thohoyandou (LT)
North West Division, North West High Court, Bophuthatswana High
Mahikeng (NWM) Mafikeng (NWM) Court (B)
Northern Cape Division, Northern Cape High Northern Cape
Kimberley (NCK) Court, Kimberley (NCK) Provincial Division (NC)
Western Cape Division, Western Cape High Cape Provincial Division
Cape Town (WCC) Court, Cape Town (C)
(WCC)
Other courts that you are likely to come across in your studies of law include the Equality Court
(EqC), Land Claims Court (LCC), Labour Court (LC), and Labour Appeal Court (LAC).
Sometimes, decisions from Zimbabwe are also reported in the South African Law Reports. When
the country was still called Rhodesia, you would find reference to (R), or (SR) for Southern
Rhodesia, or (RA) for the Rhodesian Appellate Division. Later on, reference was made to the
Zimbabwe Supreme Court (ZS) and today the Zimbabwe High Court (ZH).
Decisions of former South West Africa are cited as (SWA) while today you would find reference
to the Namibia High Court (Nm).
A complete list of abbreviations that previously applied may be consulted in Hosten et al
Introduction to South African Law and Legal Theory (1995) pages 1362–9.
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3.3.3 Finding a case

We will deal with the topic of legal research in Chapter 19 of this book. There we will explore how
we can find cases:
• when we know the case name (or even just the name of one of the parties);
• when we know the citation but not the case name;
• when we only have a broad topic, a word, or a phrase for which we want relevant case law.
The next section provides an example of a law report.
Note:
• The case has been abbreviated slightly.
• McLaren J: ‘J’ is not an abbreviation for John, Jack or Jill. It indicates that McLaren holds the
office of ‘judge’. Other abbreviations used are:
– CJ: Chief Justice (since the end of 2001, the head of the Constitutional Court; in earlier
years the head of the Appellate Division)
– P: President of the Supreme Court of Appeal (since the end of 2001)

– DP: Deputy President of the Supreme Court of Appeal (since the end of 2001)
– DCJ: Deputy Chief Justice (of the Constitutional Court)
– JA: Judge of Appeal
– J: Judge — in the Constitutional Court and the High Court
– JP: Judge President
– DJP: Deputy Judge President
– Plural versions are, for example, JJ or JJA.
– Senior lawyers sometimes act as judges. ‘Acting judge’ is abbreviated as AJ and acting
judge of appeal will be abbreviated as AJA.
• A list of judges appointed to the different courts appear in the monthly South African Law
Reports.
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3.3.4 Structure and content of a law report
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Note:
• After the names of the advocates, an abbreviated version of their arguments was sometimes
printed in the past. This happened in controversial cases or where new legal aspects had
been argued extensively.
• In their summary (headnote), the editors sometimes use the following terms:
– held: This is the finding of the court, in other words the ratio decidendi of the court.
– semble: ‘it seems or appears’. This indicates what the editors think the impact of a
certain decision on the law will be, if the judge did not clearly indicate it himself.
An example can be found in Inkatha Freedom Party v African National Congress 1994 (3)
SA 578 (EN) (at 588B–C and C/D):
‘Semble: Regulation 73 of the Electoral Regulations made in terms of section 41 of the
Independent Electoral Commission Act 150 of 1993 and section 76 of the Electoral Act 202 of
1993 by no means creates a strict vicarious liability of a political party for the conduct of any
supporter or member. Both of the subregulations of reg 73 refer to a specific class of people,
namely national leaders, candidates, office-bearers, employees or agents. Only the conduct of
the class of person specified in the regulation can make the political party itself liable.’
– quaere: ‘it is doubtful’ (literally it means ‘enquire’). This indicates that the court
questioned a certain point of law but did not make a decision.
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An example is found in Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) (at
644A):
‘Quaere: Whether in the interpretation of section 33(1) of the Constitution some kind of
proportionality test should also be required.’
3.3.5 Reading and summarising a case

Cases are read with a specific purpose in mind. Reference to previous cases is one of the
instruments used in the process of persuasion. A legal principle must be extracted from the case.
Too much emphasis on the facts as such is unnecessary.
In the law report the judge usually deals with the facts first. After that they will analyse the law.
Lastly, they will apply the law to the specific facts and reach a conclusion.
First read the headnote. This gives a good indication of the essential impact of a case on the law
in general. It will help in your search for the ratio decidendi. This is the meeting point of the
essential facts and the essential legal issues on which the final finding was based. However: You
will do well to remember that the publishers (and not the judge) drafted the headnote. The legal
position may be represented incorrectly. You should never blindly rely on the headnote.
The first question must be: What is the purpose of a summary? Cases are often long and
elaborate. It is unnecessary to remember the detail and the extended facts. A summary must
serve only as a means of refreshing your memory about the relevant facts and legal aspects of the
case. Therefore, it is unnecessary to refer to the names of the parties in full. The judge’s name and
position are also usually irrelevant. The following is an example of a summary:
Casey NO v The Master

Facts
A husband and a wife were married. They made a joint will in which they nominated each
other as heirs. Husband shot wife negligently. Wife died. Husband now claims the
inheritance in terms of the will.
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Legal question
May someone who negligently killed another inherit in terms of the deceased’s will?
Finding (answer)
No.
Reasons for finding (ratio decidendi)

• In general, anyone may benefit from a will.
• An exception is the rule in Roman-Dutch law that ‘de bloedige hand neemt geen
erffenis’. This means that no one may benefit from the death of his own victim.
• There are dicta in decided cases that the rule also applies to the negligent (and not
intentional) killing.
• This rule has not become obsolete by disuse. Principle and public policy require that
the rule still remains in force.
Critical comments
• The court left open the question whether the rule should be followed strictly in
cases of ‘technical negligence’ for example car accidents. The argument could be
made that on policy, the rule should not extend that far.
• Ultimately this pre-democratic decision might be constitutionally justified on
account of the constitutional protection afforded to the right to life.
3.4 Common law

3.4.1 Common law as source
(a) Roman-Dutch law or something more?
When a specific matter is not governed by legislation, common law usually applies. Our common
law is mainly the seventeenth- and eighteenth-century Roman-Dutch law that was imposed on the
Cape. This forms the basis of modern South African law and has binding authority because it is a
primary source of law. Many of the general legal principles that we know and according to which
we live stem from common law. Examples are that murder, theft, and robbery are crimes; that
compensation must be paid for damages caused wrongfully; and that the buyer who takes
possession of the thing bought must pay the agreed price. These principles do not have their origin
in modern legislation, but rather in
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the rich tradition of Roman law and its reception in Western Europe, especially in the Netherlands.
When we say that our common law is mainly Roman-Dutch law, we must bear the following in
mind:
• Not all the principles of Roman-Dutch law were imposed on South Africa.
• According to current practice, our common law is not limited to the seventeenth- and
eighteenth-century law of the Netherlands (Roman-Dutch law in the strict sense of the
word). It is a much wider concept as we shall see below.
• Sometimes English law has, by means of precedent, influenced our common law. Some
common-law principles are, for this reason, not pure Roman-Dutch law anymore. As we will
discover below, the South African understanding of common law could encapsulate a much
wider understanding of authorities, including laws from other Western European countries
too.
• It would be unrealistic to believe that we are still, in all respects, living according to
seventeenth- and eighteenth-century law.
• Our courts have consequently ruled that some of these old principles have become
abrogated by disuse. In Green v Fitzgerald 1914 AD 88, for example, the Appellate
Division abolished the Roman-Dutch rule that adultery is a criminal offence. With the passing
of time, our courts have, on the other hand, extended and adapted certain Roman-Dutch
principles to suit modern-day South African needs. Even before the introduction of the 1996
Constitution, the higher courts in South Africa could develop the common law to keep up with
the needs of a changing society. Because of such developments, English liberal scholars
believed that the common law could no longer be labelled as ‘Roman-Dutch law’ in the proper
sense of the word — it had become uniquely South African law. However, as discussed in
Chapter 2 above, some purists were adamant that the common law had to be kept purely
Roman-Dutch as far as this was possible. What should be noted in this regard is that the
common law that was developed over time in South African courts, for many years, was law
that was mostly applied by white people, for white people.
• Since the introduction of the Constitution, the superior courts have the duty to develop the
common law where the common law does
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not reflect the spirit, purport and objects of the Bill of Rights, as stipulated in section 39(2).
This matter is further elaborated on in 3.4.3 below.
It has been pointed out that our courts interpret not only legislation, but also common law. The
modern interpretation of common law can, therefore, be found in case law. The take-home
message about the common law is this: For the most part, the common law has been taken up in
case law. Over time, that common law has been developed to such an extent that it is hardly an
accurate portrayal of old European law. As such, principles of common law are generally found in
the cases that have applied them.
But sometimes judges and other lawyers have to consult the original ‘old sources’ of our
common law to find a solution to a specific problem. This will, for example, be the rare case when
either a specific matter is not governed by legislation or an applicable precedent does not exist. It
will also be necessary when it is suspected that an existing precedent on common law is incorrect,
or where there is general uncertainty regarding a common-law matter. It is also not inconceivable
that in a particular case, a creative argument might be necessary to save a client, and a clever
argument about the old authorities might be useful.
South African lawyers disagree on the precise content of our common law. Where exactly may
one look to find a solution in our common law?
As mentioned above, some lawyers maintain that our common law comprises only the
seventeenth- and eighteenth-century law of the Netherlands, especially that of the province
Holland. In other words, Roman-Dutch law in the strict sense of the word. If this is so, then the
only sources we may consult are the ‘old sources’ of Roman-Dutch law, which are the following:
• legislation (placaaten) — few of these still apply in South Africa;
• judgments of the old Dutch courts; and
• writings of the learned authors (the so-called ‘old authorities’), such as De Groot, Voet, Van
Leeuwen, Van der Keessel, and Van der Linden.
However, other lawyers point out that the reception of Roman law gave rise to a whole Western
European common law (ius commune) of which Roman-Dutch law formed a part. The law was,
therefore, much the same in the different European countries. This is why the Roman-Dutch
authorities themselves often referred to authors of other countries as
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authority for their own points of view. Therefore, we can also consult the old French, German and
Spanish authorities on the ius commune.
The latter point of view is preferable and is also the approach followed by our courts. In
principle, the Roman-Dutch authorities are the most important. But if they are silent on a specific
issue, or unclear, or if their points of view do not coincide with modern needs, one can also look at
other authors’ writings on the ius commune outside the Netherlands. This approach makes our
common law a very enriching source of law, where one can look for the best solution to a problem.
However, most of these works are written in Latin or some archaic vernacular, so this kind of
research is difficult.
In some contentious cases it is necessary to research the whole development of a specific legal
principle. The first step is to look at Roman law, then at the position during the Middle Ages as
portrayed in the works of the glossators, commentators and in canon law, and finally the Roman-
Dutch sources as well as the law in other Western European territories after the reception of
Roman law (see in general Chapter 2 above).
3.4.2 Example
A useful example of how the courts can apply the old authorities as common law is the judgment
in Bank of Lisbon and South Africa v De Ornelas and Another 1988 (3) SA 580 (A). In this case the
Appellate Division ruled that a specific defence, the exceptio doli generalis, which in the past was
applied by our courts, does not form part of South African law. The court based its judgment on
the reason that this defence, which formed part of Roman law, was never received in Roman-Dutch
law and, therefore, does not form part of South African law. The Appellate Division thus amended
the common-law position as it was known. This was a majority judgment. Jansen JA did not agree
and passed a minority judgment. The majority judgment has been criticised by many lawyers as
incorrect. Our purpose is not to deal with the merits of the judgment. In the extracts from the
majority judgment below, we merely want to point to the different sources that a court can consult
when searching for an answer in our common law. The judgment was written by Joubert JA.
• Seeing that this was a contentious matter, the judge starts by looking at Roman law:
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‘The object of the exceptio doli generalis was equitable, viz to ameliorate the harshness of a
plaintiff’s claim based on a negotium stricti iuris such as a stipulatio or a mutuum. D 44.4.1.1
(Paul): Ideo autem hanc exceptionem praetor proposuit, ne cui dolus suus per occasionem iuris
civilis contra naturalem aequitatem prosit. (Watson’s translation: “The praetor established this
defense to the end that a person’s fraud should not benefit him through the medium of the civil
law but contrary to natural equity.”) See also D 44.4.12 (Papinian): Qui aequitate defensionis
infringere potest, doli exceptione tutus est. (Watson’s translation: “A person who can impede an
action by the equity of a defense is protected by the defense of fraud.”)’
As authority he refers to two texts from Justinian’s Corpus Iuris Civilis: D 44.4.1.1 (Paul)
and D 44.4.12 (Papinian). These texts can be found in the Digesta (reference D), the
most important part of the Corpus Iuris. The Digesta is a collection of the opinions of the
Roman jurists. In these two texts we find the opinions of the jurists Paul and Papinian.
• Next the judge deals with medieval law, as he finds it in the works of the glossators, the
commentators and the canonists:
‘On turning to consider the works of the medieval jurists one finds that the Glossators wrote their
glosses on the relevant texts of the Corpus Juris Civilis which relate to the exceptio “doli”. Their
glosses were primarily concerned with the elucidation of these texts. In glossa ‘doli’ ad Cod
4.30.3 the term dolus generalis is used. The Commentators freely availed themselves of the
terms exceptio doli specialis sive praeteriti and exceptio doli generalis sive praesentis which they
had coined. I could, however, find nothing in the available works of the Glossators and the
Commentators which shed any new light on the exceptio doli generalis. This conclusion is in
accord with the results of the researches conducted by Botha (op cit at 53, 67). The medieval
Commentators and Canonists, however, introduced some very important reforms to modernise
the Roman law of contract.’
He refers to a specific gloss: glossa ‘doli’ ad Cod 4.30.3. As we know, the glossators
wrote explanatory notes (glosses) on the texts of the Corpus Iuris Civilis. This is a
reference to a gloss on a specific text in the Codex (reference Cod). The Codex is that
part of the Corpus Iuris Civilis in which the Roman imperial legislation is compiled.
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• Having dealt with the Middle Ages, the judge consults other authors outside the Netherlands
who also wrote on the Western European ius commune. First, he discusses the works of two
sixteenth-century French authors, Donellus and Cujacius:
‘With the possible exception of the French jurists Donellus (1527–1591) and Cujacius (1522–
1590), the jurists of the 16th century did not contribute anything worthy of mention. The
treatment of the exceptio doli generalis by Donellus in his commentary ad Cod 8.36 No 14 and ad
Cod 4.30.8 No 27, based wholly on the Roman law, does not call for comment. There are,
however, two passages in his De Jure Civili (lib 22 cap 6) which merit our attention, viz Nos 3 and
4.’
• He then turns to a seventeenth-century German author, named Brunneman:
‘In the 17th century the German jurist Brunneman (1608– 1672) relied on Donellus when he
wrote ad D 44.4.1 No 1: “Exceptio doli datur, ne suus cuiquam dolus patrocinetur, & ne contra
naturalem aequitatem occasione juris civilis quis decipiatur. Don. lib. 22c 6.” In his commentary
ad 44.4.2 No 9 he distinguished between the two forms of the exceptio doli as follows:
“Doli autem exceptio vel est specialis, quando ab initio dolo circumventus quid gessi: alia
generalis, quae datur ex omni causa, ob quam dolo quid petitur, & si initio dolo nihil
factum, quia dolo facit, quicunque id petit, quod exceptione potest elidi, D 44.4.2.5,
D44.4.12, Bargalius in tr. de dolo lib. 4 c 2 nr 8, Donellus d.c. 6 lit E & ibi Hilligerus,
Antonius ad Cod 8.35.1.”
What Brunneman stated was basically in accordance with Roman law. He contributed nothing
new.’
• Joubert JA concludes his common-law investigation with a discussion of Roman-Dutch law.

He refers to seventeenth- and eighteenth-century authors such as De Groot, Groenewegen,
Voet and Van Leeuwen.
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‘Let us now consider Roman-Dutch law. During the 15th century the Roman law of Justinian, as
codified in the Corpus Juris Civilis, and as developed during the Middle Ages by the Glossators
and the Commentators, was received in the Netherlands. See De Blécourt-Fischer Kort Begrip
van het Oud-Vaderlands Burgerlijk Recht 6th ed at 19, 21; Wessels (op cit at 128); Hackett v G &
G Radio and Refrigeration Corporation 1949 (3) SA 664 (A) at 681. It did not, however,
necessarily follow that the Roman legal principles were received in toto. (De Blécourt-Fischer (op
cit at 168).) The important principle that all lawful agreements were binding as consensual
contracts was received. (Conradie v Rossouw (supra at 309).) Likewise the principle ex nudo
pacto actio datur was also adopted. De Groot (1583–1645) 3.1.52; Groenewegen (1613–1652)
ad Cod; 2.3.10; Voet (1647–1713) 2.14.9. At the end of the 18th century Dekker in his note to
Van Leeuwen (1626–1682) RHR 4.2.1 claimed that all contracts were bonae fidei.’
• He also refers to judgments of the old Dutch courts, the Hooge Raad and the Hof van
Holland:
‘Botha’s allegation that the exceptio doli generalis was applied in practice has not been
substantiated by him. As a substantive defence one would have expected the exceptio doli
generalis to have featured quite often in litigation. According to the Observationes Tumultuariae
and the Observationes Tumultuariae Novae that was not the position as regards litigation before
the Hooge Raad. Nor was that the position as regards litigation conducted before the Hof van
Holland according to Neostadius (Pelgrim van Loo) Curiae Hollandiae, Zelandiae et West-Frisiae
Decisiones and Leonius Decisien en Observatien.’
• After this extensive investigation into common law, the court concludes by finding that the
exceptio doli was not received in Roman-Dutch law:
‘The conclusion is inevitable. The exceptio doli generalis, in my judgment, was never part of
Roman-Dutch law. This conclusion is confirmed by the significant silence of the authoritative
Dutch jurists and by the total absence of judicial recognition of the exceptio doli generalis by the
Hof van Holland en West-Friesland and the Hooge Raad. Nor can I find any evidence of the
existence of a general substantive defence based on equity.’
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• It therefore does not form part of South African law:
‘All things considered, the time has now arrived, in my judgment, once and for all, to bury the
exceptio doli generalis as a superfluous, defunct anachronism. Requiescat in pacem.’
The court does not often undertake such an extensive common-law investigation. In fact,
references to the original old sources are relatively rare. The reason for this is that the courts
have, in most cases, already ascertained the meaning of common law in their precedents. The
meaning of common law, in general, is quite certain. The courts usually rely on their previous
precedents as authority, and consequently find it unnecessary to consult the old authorities afresh
each time. Therefore, our common law, to a great extent, forms part of the precedents of our
courts.
3.4.3 When the common law and the Constitution collide

Now that we have a broad understanding about what the common law is, the next questions to be
asked are: What does the Constitution say about the common law? Is it possible to have a
transformative approach to the common law, seeing that it has historically been the law of
European people, developed for a European society?
Let us start by surveying the relevant constitutional provisions:
• You should remember that section 2 declares the Constitution to be the supreme law of
South Africa and that any law or conduct inconsistent with it is invalid. ‘Any law’ would
include the common law.
• Section 8(3) of the Constitution provides that ‘a court— (a) in order to give effect to a right
in the Bill, must apply, or if necessary develop, the common law to the extent that legislation
does not give effect to that right’.
• Section 39(2) states that ‘when developing the common law . . . every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of Rights’.
• Section 39(3) further provides: ‘The Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common law . . . to the extent that
they are consistent with the Bill.’
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• Section 173 later provides: ‘The Constitutional Court, the Supreme Court of Appeal and the
High Court of South Africa each has the inherent power to . . . develop the common law,
taking into account the interests of justice.’
What becomes clear from a holistic reading of these sections is the following:
(1) The Constitution clearly declares that the common law remains in force in democratic South
Africa, but that it is nevertheless subject to constitutional control.
(2) The courts have the power to develop the common law, and if they do so, that exercise must
be done in a way that will promote the spirit, purport and objects of the Bill of Rights.
(3) The common law could be used as a tool to give effect to the Bill of Rights — the two sources
of law do not always have to be regarded as being opposites.
So how should a court go about this process of ensuring the transformation of the common law?
The decision in Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC) could be thought of as the ‘GPS’ for navigating the
issue of common-law development. The case dealt with the situation where various state
functionaries failed to protect Ms Alix Carmichele from an attack by a dangerous criminal. She
sued the Minister of Safety and Security for the harm that she suffered when the criminal attacked
her. The High Court and the Supreme Court of Appeal did not think that she had a strong enough
case, and so she appealed to the Constitutional Court to obtain the relief that she required. On the
question of whether the common law had to be developed, the court made the following general
remarks:
‘[39] It needs to be stressed that the obligation of Courts to develop the common law, in the context of the s
39(2) objectives, is not purely discretionary. On the contrary, it is implicit in s 39(2) read with s 173 that
where the common law as it stands is deficient in promoting the s 39(2) objectives, the Courts are under a
general obligation to develop it appropriately. We say a ‘general obligation’ because we do not mean to
suggest that a court must, in each and every case where the common law is involved, embark on an
independent exercise as to
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whether the common law is in need of development and, if so, how it is to be developed under s 39(2). At the
same time there might be circumstances where a court is obliged to raise the matter on its own and require
full argument from the parties.
[40] It was implicit in the applicant’s case that the common law had to be developed beyond existing
precedent. In such a situation there are two stages to the inquiry a court is obliged to undertake. They
cannot be hermetically separated from one another. The first stage is to consider whether the existing
common law, having regard to the s 39(2) objectives, requires development in accordance with these
objectives. This inquiry requires a reconsideration of the common law in the light of s 39(2). If this inquiry
leads to a positive answer, the second stage concerns itself with how such development is to take place in
order to meet the s 39(2) objectives. Possibly because of the way the case was argued before them, neither
the High Court nor the SCA embarked on either stage of the above inquiry.’
The court ultimately came to the conclusion that the common law had to be understood in
constitutional terms where the State must give effect to the rights contained in the Bill of Rights
(here the rights to dignity and freedom and security of Ms Carmichele were at stake). As such, the
potential was there for her case to succeed and so the Constitutional Court sent the matter back to
the High Court for reconsideration. The above two paragraphs from Carmichele imply that a lawyer
working with the common law needs a solid knowledge of what the common law involves.
Simultaneously, a lawyer working with the common law needs to have a solid knowledge of what
the Constitution requires. If the two sources of law cannot be friends in a particular case, the
Constitution should be used to change the common law as it may be necessary. In this way, the
approach of the Constitutional Court to common-law development is ‘transformative’ in the sense
that it does not simply promote a really slow process of reform (where we perhaps leave all the
changes in law to be made by the legislature), but it nevertheless does not amount to a revolution
(where we would have thrown the common law out and replaced it with something completely
new).
In the coming chapters, we will give you a number of examples of how the Constitution has
impacted on the common law in various disciplines. For the moment, you might want to take note
of some of
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these constitutional common-law developments because they show us some of the different ways
in which the common law may be changed by the Constitution:
• In the past, sodomy between two consenting males in private was a crime according to the
common law. However, in National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others 1999 (1) SA 6 (CC) the Constitutional Court found that this
rule infringed the constitutional rights of gay men to equality and privacy. As such, the court
ordered that the common-law offence of sodomy was declared to be inconsistent with the
Constitution and therefore invalid. As such, the Constitution completely invalidated the
common-law rule.
• As we have mentioned earlier in this chapter, the common-law definition of marriage involved
a man and a woman and did not accommodate same-sex couples. In the case of Minister of
Home Affairs v Fourie (above), the majority of the Constitutional Court held that the
common-law definition of marriage was unconstitutional but that the declaration of its
invalidity would be suspended while Parliament was given the opportunity to draft legislation
that would give effect to the equality right that protects same-sex couples. From this we
gather that an unconstitutionality in the common law can be directed to the legislature to
remedy.
• We saw in Carmichele (above) that the common law could be developed to include
constitutional considerations. So, in determining what the legal convictions of the
community are — in the case of Carmichele, to determine whether the state acted wrongfully
— we will take into account the constitutional rights and obligations that are at stake.
• In other cases, we might find that the common law is consistent with the Constitution and so
the Constitution confirms or supports the common law. This was the finding of the
court in the case of Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) where the court
held that the common-law definition of defamation (‘the wrongful and intentional publication
of a defamatory statement regarding the plaintiff’) provides an appropriate weighing between
the right to freedom of expression and the right to dignity. As such, the common-law
definition was constitutionally compliant.
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3.5 Custom
3.5.1 Custom as source
Custom is generally unwritten law. It is fixed practices in accordance with which people live
because they regard it as the law. Custom, therefore, does not concern all customs or practices,
such as practices of polite behaviour. In Chapter 2 above, we have already looked at custom as a
source of primitive Roman law. Old Germanic law also consisted of customs.
In modern law custom does not play such an important role as a primary source of law. It is
seldom that a new legal principle, which does not already exist in legislation or common law, will
be established by custom. Any assertion of a custom as law has to be proved. The requirements in
this regard were laid down by the Appellate Division in the well-known case of Van Breda v Jacobs
1921 AD 330. In this case the court had to decide whether a specific custom among the fishermen
operating between Cape Point and Fish Hoek amounted to law. The custom dictated that a
fisherman should refrain from throwing his nets in front of another who had been first in locating a
school of fish. The court required that the following be proved before a custom could qualify as
law:
• The custom must have existed for a long time.
• It must be observed generally by the community in which it applies.
• It must be reasonable.
• Its content and meaning must be certain and clear.
The court ruled that these requirements were met and that the particular custom was binding law.
After the court has decided such a matter, it is not necessary to re-prove the particular custom in
future. The previous precedent then serves as authority for the existence of the particular custom
as law.
Custom also plays a role in the area of modern trade usage. Particular customs exist in the
world of trade and in the case of certain transactions. For example, interest is payable on an
overdrawn bank account. The client and the bank do not have to reach agreement on this. It is
custom in the banking world and, therefore, also law. For such customs to qualify as law, the
requirements set out in Van Breda v Jacobs have to be met.
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See www.jutapassmasters.co.za for the Tolgaz case and the accompanying questions.
The formative character of custom does not only lie in the creation of laws, but also in their
abrogation. Rules of common law and custom can be abrogated by disuse if they have not been
observed for a long time. For example, in the case of Green v Fitzgerald the court found that the
rule that adultery amounts to a criminal offence had been abrogated by disuse. A statute,
however, cannot be abrogated by disuse. The statute must be repealed by a later statute.
Example
In this extract from the judgment of Van Breda v Jacobs, as found in the law reports,
Solomon JA formulates the requirements for a custom to qualify as law with reference to
English and Roman-Dutch law.
‘In Halsbury (vol. 10, para. 423), it is laid down that a custom to be valid must have four
essentials, — first it must be immemorial, secondly it must be reasonable, thirdly it must have
continued without exception since its immemorial origin, and fourthly it must be certain. These
are substantially the same characteristics as those set forth in Voet, 1.3.27–35, where it is stated
that a custom to be valid must be an ancient or long-established one, must be reasonable, must
have been uniformly observed, and that the witnesses who speak to it must not “vary in regard
to the relative circumstances of the act in regard to time, thing and place,” which I take it is only
another way of saying that the custom must be proved to be certain. It is true that there is this
difference between the English and the Roman-Dutch law, that the latter merely requires that the
custom should be an old one, whereas under the former it is necessary to show that the custom
has been in existence from a time preceding the memory of man, a date which has been fixed at
the year 1189, the commencement of the reign of Richard I. In practice, however, there is no
substantial difference between the two systems. For in the English Courts “evidence showing
continuous user as of right as far back as living testimony can go is regarded as raising the
presumption that the custom existed at that remote date.” Further “if proof of facts be given from
which it can be inferred that user corresponding to the alleged custom in fact existed at some
time past, the existence of the custom from the remoter era will be inferred” (Halsbury, para.
424, vol 10). According to Voet (1.3.29), it was necessary to prove a long lapse of time, which is
variously expressed by
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the terms “ancient use,” “old age,” “long custom,” “custom observed for many years,” &c. And he
observes that as the number of years is nowhere definitely stated, it must be left to the
discretion of a prudent judge. In this view Merula (Manier van Procederen), vol. 1.1.1.5.1 and 4,
agrees, and there, I think, we may be content to leave the question of age, as regards which
there appears to be no substantial difference between the English and the Roman-Dutch law.’
3.6 Customary law

3.6.1 Customary law as source
(a) Defining customary law: official vs living customary law
In the time of constitutional democracy, customary law has been defined by the Parliament of
South Africa as the ‘customs and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the culture of those people’. Customary law is a
primary source of law.
From the start, it is important to note that the customs and usages of African people can be
understood in an official sense and in a living sense.
Official customary law is the law of African people that has been put into writing in textbooks,
legislation and case law. These official customary laws do not necessarily reflect the true nature of
customary law as it is practised in a community. One of the reasons for this is because of the
Western-European bias of the lawyers and anthropologists who once constructed these official
versions of law. Official customary law is also not particularly flexible. More recent examples of
official customary law in the form of legislation include the:
• Recognition of Customary Marriages Act 120 of 1998;
• Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009;
• Communal Land Rights Act 11 of 2004.
On the other hand, living customary law is the law of African people that is actually practised in
communities, that is capable of evolving over time as society changes. Living customary law is
therefore a more accurate account of how African people see customary law. Examples of living
customary law include the following:
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• It was held in Mabena v Letsoalo 1998 (2) SA 1068 (T) that a mother of a bride may be
involved in the negotiation process for lobolo in terms of living customary law, even though
official versions of customary law may once have created the impression that only the father
of a bride could do so.
• In Shilubana v Nwamitwa 2009 (2) SA 66 (CC) the Constitutional Court was faced with a
case where the Valoyi community collectively decided to enthrone a woman as their leader.
Past practice dictated that a man should hold the position of chief. The court held that a
community is entitled to develop their own customary law, especially where this was done in
line with the Constitution. As such, the changing living law was endorsed by the
Constitutional Court.
(b) Recognition of customary law
In Chapter 2 above, we paid careful attention to highlighting the different ways in which the
customary law of African people was either completely ignored, sometimes destroyed, often
distorted, and/or partially recognised. One thing that was clear is the customary law was not
allowed to flourish in the time of colonial apartheid and that formal recognition of customary law
as ‘law’ was but a dream. In light of that history of customary law, the burning question is how
customary law is recognised in South Africa today.
Section 211(3) of the Constitution says the following in this regard: ‘The courts must apply
customary law when that law is applicable, subject to the Constitution and any legislation that
specifically deals with customary law.’ This statement gives clear recognition to customary law as a
primary, binding source of law in South Africa today. Section 39(3) further stipulates that the
Constitution does not deny any of the rights and freedoms that were granted at customary law, as
long as those rights and freedoms are constitutionally compliant. Similar to common law, the
Constitution did not come to replace customary law. To the contrary, the Constitution affirms the
importance of customary law in South Africa and does not envisage its demise.
How do we know when customary law is applicable? The first question to ask is whether the
parties to a dispute have agreed to be bound by customary law. If they have, it is clear that
customary law would apply. If they did not reach agreement in this regard, you would have to
consider the behaviour of the parties leading up to the event
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that gives rise to the dispute. For example, if a couple has entered into a marriage where a
traditional marriage ceremony was performed and lobolo had been paid, that conduct could point
towards customary law applying to the marriage. In the case of Swawintshi v Magidela 1944 NAH
(K&O) 47 the parties entered into a contract of sale. Contracts of sale are regulated differently in
terms of common law and customary law. Which source of law had to apply? The court there noted
that the parties lived in a homeland and they contracted for home-grown mealies. As such,
customary law had to apply to the transaction. From this logic it would seem that if two black
people agree to buy and sell a car in the Pretoria central business district, the common law would
probably apply to their transaction.
As a practical tip, it might be useful to rely on section 1(1) of the Law of Evidence Amendment
Act 45 of 1988 which states that judicial notice may be taken of customary law if it is readily
ascertainable with sufficient certainty, subject to the principles of natural justice and public policy.
As such, if customary law complies with the conditions of section 1(1) of the Law of Evidence
Amendment Act, then there would be no need to jump through the hoops required by the case of
Van Breda v Jacobs discussed in the context of custom above. If the customary law is uncertain or
not readily ascertainable, then evidence may be produced to prove the content of the relevant laws
to a specific case.
3.6.2 Customary law and the Constitution

In addition to the recognition of customary law secured in section 211 of the Constitution, section
39(2) says that when a court, tribunal or forum is developing customary law, the spirit, purport
and objects of the Bill of Rights must be promoted. As we have seen above, this section requires
the same type of constitutional infiltration to occur for all legislation and the development of the
common law. Many of the principles related to constitutional statutory interpretation explained
above would therefore apply to the situation where legislation governs a customary law dispute.
Similarly, where the customary law deviates from the Constitution, that deviation has to be
remedied by developing the customary law.
The most famous constitutional challenges to customary laws have related to the equality of
women. Above, we have already mentioned the Mabena and Shilubana cases that ultimately
revolved around questions of the status of women in customary law. Other similar challenges
include:
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• A challenge to the customary-law principle of male primogeniture (whereby only legitimate

male heirs would inherit from a parent) in the case of Bhe and Others v Magistrate,
Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole
and Others; South African Human Rights Commission and Another v President of the
Republic of South Africa and Another 2005 (1) SA 580 (CC). The Constitutional Court held
that the principle was unconstitutional because it violated women’s right to equality.
• A challenge to the way in which matrimonial property was divided upon the dissolution of
a customary-law marriage in the case of Gumede v President of the Republic of South Africa
2009 (3) SA 152 (CC). The facts of Gumede are complex, but the crux of the matter was that
the Recognition of Customary Marriages Act (RCMA) distinguished between women who
entered into customary marriages before the operation of the RCMA and those who entered
into customary marriages after the RCMA took effect. In the former category of marriages,
wives had no claim to property upon the dissolution of their marriage, while the latter
category of marriage entitled wives to claim property. This distinction was said to be unfair
discrimination and unconstitutional. Therefore, the relevant part of the RCMA was invalidated
by the court.
Another dimension of the interaction between the Constitution and customary law is the way in
which customary law ideas are being respected or incorporated in the context of common law.
What we mean by this is best illustrated by the following example.
• In Dikoko v Mokhatla 2006 (6) SA 235 (CC) a common-law defamation matter arose. In our
discussion on the common law above, we noted that defamation involves the intentional and
wrongful publication of defamatory material about the plaintiff. If a plaintiff can prove such
defamation, they will be entitled to claim a sum of money from the wrongdoer as
‘satisfaction’ for hurt feelings. Regarding the appropriateness of this remedy, Mokgoro J said
the following:
‘[68] In our constitutional democracy the basic constitutional value of human dignity relates closely to
ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture
have long considered one of the principal objectives of the law to be the restoration of
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harmonious human and social relationships where they have been ruptured by an infraction of
community norms. It should be a goal of our law to emphasise, in cases of compensation for
defamation, the re-establishment of harmony in the relationship between the parties, rather than to
enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties
apart and even cause the defendant financial ruin. The primary purpose of a compensatory measure,
after all, is to restore the dignity of a plaintiff who has suffered the damage and not to punish a
defendant. A remedy based on the idea of ubuntu or botho could go much further in restoring human
dignity than an imposed monetary award in which the size of the victory is measured by the quantum
ordered and the parties are further estranged rather than brought together by the legal process. It
could indeed give better appreciation and sensitise a defendant as to the hurtful impact of his or her
unlawful actions, similar to the emerging idea of restorative justice in our sentencing laws.
[69] The focus on monetary compensation diverts attention from two considerations that should be
basic to defamation law. The first is that the reparation sought is essentially for injury to one’s honour,
dignity and reputation, and not to one’s pocket. The second is that courts should attempt, wherever
feasible, to re-establish a dignified and respectful relationship between the parties. Because an apology
serves to recognize the human dignity of the plaintiff, thus acknowledging, in the true sense of ubuntu,
his or her inner humanity, the resultant harmony would serve the good of both the plaintiff and the
defendant. Whether the amende honorable is part of our law or not, our law in this area should be
developed in the light of the values of ubuntu emphasising restorative rather than retributive justice.
The goal should be to knit together shattered relationships in the community and encourage across-the-
board respect for the basic norms of human and social inter-dependence. It is an area where courts
should be pro-active encouraging apology and mutual understanding wherever possible.
[70] This case suggests itself as one where perhaps more could have been done to facilitate an
apology. The parties worked closely together in the same environment. An apology or retraction by Mr
Dikoko could have gone a long way. At no stage did he offer an apology or a retraction of his false and
damaging accusations. The evidence that he led before
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the High Court, testifying to the high regard he had for Mr Mokhatla, was of an abstract nature and fell
far short of a direct apology for the specific and baseless charges he had made. This is a case where it
might have been appropriate to order an apology if this had been a majority judgment. However,
considering that this is a minority judgment it is not appropriate. Having said that, what remains is to
consider whether the monetary award made by the High Court can be interfered with.’
And so in this case we observe a merger of the customary-law inspired notion of ubuntu with the
common law of defamation, done under the influence of the Constitution. In this case we see an
incorporation of customary law into common law.
See www.jutapassmasters.co.za for the Shilubana case and accompanying questions.
3.7 Writings of modern authors

We have already pointed out the fact that the writings of the old authorities on our common law
have binding force as a source of law. Our courts must follow this law, interpret it and give
meaning to it. Common law, legislation and custom are primary sources where the law originates.
However, this is not the case with the writings of modern authors. We cannot say that the law
originates in these sources, and consequently it has no binding authority.
Many academics and other lawyers write books and articles in journals on the law. These are
very useful sources in which to find the law. When you are dealing with a problem in any area of
law, the easiest way to find the law is first to consult a textbook on the particular subject. The
authors will explain the whole legal position with respect to legislation, common law and case law.
Legal practitioners, the courts and students consult these writings on a regular basis.
Authors do not merely explain the law; they criticise it, speculate on it and suggest other
solutions. An author can, for example, present a convincing argument that a precedent portrays
the common law incorrectly, that a decision about customary law does not accord with the living
law, that a specific statute is ineffective because of many loopholes, or that a current legal position
is in conflict with the
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Constitution and therefore needs to be changed. There may also be heated debates and conflicting
opinions among authors on what the law in fact should be. Although these writings do not have
binding authority, they can sometimes have persuasive authority. A court may decide to follow the
opinion of a particular author, or to depart from one of its previous precedents because it was
incorrect, in light of such an opinion. Such opinions can also lead to the amendment of legislation.
In this way modern authors can influence legal reform.
Courts refer to academic writers especially in areas of new legal development. One
example is affirmative action. In George v Liberty Life Association of Africa 1996 8 BLLR
985 (IC) Landman P (the then President of the Industrial Court, now the Labour Court)
posed the question of who the beneficiaries of affirmative action are:
‘Does this then mean that the focus must be on the disadvantaged? The answer must be in the
positive. In the South African context, disadvantaged is coupled with race and gender. This needs
no elaboration. However within race and gender there are persons who probably have not been
disadvantaged. This problem is articulated by M Banton Discrimination 1994 as follows:
“As a means of combating discrimination, law works through the creation of protected
classes; this may result in only rough justice, since not all members of a class are equally
placed. One of the main criticisms of affirmative action in the United States has been that it
has primarily benefited middle-class women and black people who were well able to look
after their own interests and less deserving [of] assistance than those trapped in the under-
class. The creation of privileged classes benefiting from quota hiring has been intended to
secure equal treatment for individuals in the long run, but as it is never possible to define
the classes so exactly that only the most deserving benefit, the short-run results may be
open to criticism.”
It is considerations like these which have promoted some to debate the question whether
affirmative action programmes should not be based on racial criteria, but on other, temporary
and non-racial criteria, for example aimed at persons who were educated under the segregated
educational system. See FS Barker referring to the remarks of Judge Goldstone at the 1991
Labour Law Conference in The South African Labour Market — Critical Issues for Transition 1992
172.’
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3.8 International and foreign law

3.8.1 International law
International law is the law that regulates the relationship between different states (say, for
example, South Africa and Brazil) and is recognised as a primary source of South African law.
Sections 231–233 of the Constitution regulate the operation of international law in South Africa.
Sometimes, states conclude agreements that are called treaties. A number of African states
have concluded an agreement about the recognition and protection of human rights on the African
continent. This treaty is called the African Charter on Human and Peoples’ Rights. The executive
branch of the South African government has the responsibility to negotiate and conclude such
agreements. However, legislatures must usually approve such treaties before they become binding
on the South African Republic. Parliament will often pass legislation through which international
law is incorporated into South African law.
Another source of international law that is explicitly recognised by the Constitution is called
customary international law. This refers to general practices of states that have become law
through accepted usage. You could think of this type of international law as being similar to the
notion of custom — applied between states — that we have discussed above. Diplomatic immunity
granted to heads of state is said to form part of customary international law. With that said,
international custom is often eventually taken up in the form of treaties. In the case of diplomatic
immunity, the Vienna Convention on Diplomatic Relations does exactly that.
Section 39(1) of the Constitution provides that when courts interpret the Bill of Rights, they
must consider international law. In this way, international law indirectly applies in the South
African context.
3.8.2 Foreign law

Foreign law is the law of other jurisdictions. While international law would regulate the relationship
between, for example, South Africa and Uganda, foreign law would be the domestic law that
applies in Uganda. As you might imagine, the laws of other states are not binding sources of law in
South Africa. However, those laws could be persuasive in the South African context. When we
compare South African law with
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another jurisdiction, we call this process legal comparison and we have an entire discussion
dedicated to this in Chapter 15 of this book with plenty of examples given there.
South African courts can generally refer to other jurisdictions for the sake of comparison, no
matter the type of dispute. However, when it comes to interpreting the Bill of Rights, section 39(1)
of the Constitution stipulates that courts may consider foreign law. To be clear about the contrast
to international law: when interpreting the Bill of Rights, courts do not have a discretion about
whether or not to consider relevant international law (the word must is important there) but courts
do have the discretion about whether or not to consider foreign law (the word may is important
there).
3.9 Concluding thoughts: a transformative approach to sources

Now that we have discussed all the sources of law, we might be left wondering what source of law
should apply in what instance. If you take the simplest example of a motor vehicle accident, you
could think of many different sources of law that could apply at one time. When a person is injured
in a car accident, their constitutional right to bodily integrity is infringed and potentially their
dignity as well. Those rights are also protected in the African Charter. Does that mean that you
could argue the entire case on the sole basis of the Constitution or international law alone? Your
gut feeling might be to answer ‘probably not’. Then you might turn to legislation and identify that
the Road Accident Fund Act 56 of 1996 could apply. At the same time, the common law provides a
number of different rules and principles related to claiming damages when wrongful and negligent
conduct has caused harm. You might even wonder what the situation would be if the victim of the
accident informally adopted children in terms of customary law and the victim of the accident can
no longer look after them. As you can see, there are potentially many sources at play here.
How could you go about making sense of this cacophony of sources, bearing in mind that the
Constitution is a supreme, transformative source of law?
The Constitutional Court has provided us with different guidelines in this regard. A good place to
start is with a well-known comment made in the case of Pharmaceutical Manufacturers Association
of SA and Another:
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In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) para 44,
already referred to earlier in this chapter, where it was argued that the common law and
Constitution should not be regarded as two sources that have nothing to do with one another:
‘I cannot accept this contention which treats the common law as a body of law separate and distinct from the
Constitution. There are not two systems of law, each dealing with the same subject matter, each having
similar requirements, each operating in its own field with its own highest court. There is only one system of
law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives
its force from the Constitution and is subject to constitutional control.’
This quotation summarises what has become known as the single-system-of-law principle and
forms an important part of a transformative understanding of sources.
Section 8(3) of the Constitution relates to the issue of constitutional application. An abbreviated
version of the section reads:
‘When applying a provision of the Bill of Rights . . . a court . . . in order to give effect to a right in the Bill,
must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that
right.’
The main idea behind section 8(3) is therefore that if we can give effect to a constitutional right by
relying on legislation, we should rely on that legislation. If there is no legislation, then the common
law would act as a safety net to cover the dispute.
In the case of South African National Defence Union v Minister of Defence and Others 2007 (5)
SA 400 (CC) the Constitutional Court said:
‘In my view, this approach is correct: where legislation is enacted to give effect to a constitutional right, a
litigant may not bypass that legislation and rely directly on the Constitution without challenging that
legislation as falling short of the constitutional standard.’
In a later case of Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC) para 56 Van der
Westhuizen J noted:
‘However, another principle or policy consideration is that the Constitution recognises the need for specificity
and specialisation in a modern and complex society under the rule of law. Therefore, a wide range of rights
and the respective areas of law in which they apply are explicitly recognised in the Constitution. Different
kinds of relationships
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between citizens and the state and citizens amongst each other are dealt with in different provisions. The
legislature is sometimes specifically mandated to create detailed legislation for a particular area, like
equality, just administrative action (PAJA) and labour relations (LRA). Once a set of carefully-crafted rules and
structures has been created for the effective and speedy resolution of disputes and protection of rights in a
particular area of law, it is preferable to use that particular system. This was emphasised in Chirwa by both
Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely-tuned dispute resolution structures
created by the LRA, a dual system of law could fester in cases of dismissal of employees.’
The above exposition of principles is sometimes called adjudicative subsidiarity. Why this
name? Because when courts adjudicate cases, they need to exercise subsidiarity — if there is a
source of law that is subsidiary to the Constitution (in other words, under the authority of the
Constitution) that can be used to promote the Constitution, that source should be used instead of
relying purely on the Constitution. This is a concept that has featured prominently in the work of
the late AJ van der Walt in his book Property and Constitution.
Following these ideas, when we start with a case we might identify a relevant constitutional right
or rights. Section 39(1) of the Constitution stipulates that the Constitution may be interpreted with
reference to foreign law, and relevant international law must be considered. However, to give
effect to those rights we should turn to other sources.
• First, we turn to relevant legislation. That legislation will then be interpreted in terms of
section 39(2) in light of the spirit, purport, and objects of the Bill of Rights. Alternatively, the
legislation could be invalidated if it does not align with the Constitution in terms of section 2
and section 172 of the Constitution. That way, the Constitution is always speaking when we
deal with legislation.
• Second, if there is no legislation applicable, section 8 says that the common law would either
be applied or developed to give effect to the Constitutional rights in question. We would add
that if the dispute is governed by customary law, the customary law should apply instead.
Section 211 of the Constitution makes that clear. When the common law or customary law is
being developed, section 39(2) states that the spirit, purport, and objects of the Bill of Rights
must be promoted. As such, the Constitution will feature in these common-law and
customary-law disputes.
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• Even though the Constitution does not explicitly refer to custom, we know that it is a long-
recognised source of law in South Africa. As such, if there is no legislation, common or
customary law, a specific custom could apply.
• Throughout this process, it is of course possible to refer to foreign law in comparison to the
South African legal position for the purposes of persuasion. The same can be said about
academic commentaries on the law.
So, with reference to the example of the motor vehicle accident referred to above, we might start
off and frame the dispute in constitutional terms. However, we would then realise that the Road
Accident Fund Act gives effect to the constitutional right to bodily integrity of victims of road
accidents. We should then apply that Act in a way that best gives effect to the constitutional spirit.
If the Act is unconstitutional, we can have it declared invalid. If the Act does not provide a remedy
for a specific aspect of the case — such as the harm caused to the car instead of the person —
then we could turn to the common law that regulates how liability and damages should be
calculated. The common law would today mostly be found in decided court cases. The common law
must be developed if it does not properly align with the Constitution. The Act and the common law
would recognise that the dependants of the victim of the accident need protection, even if those
dependants are adopted in terms of customary law. In the process of making sense of this dispute,
you might refer to the academic commentary on the Road Accident Fund by HB Klopper, The Law
of Third Party Compensation, which would serve as persuasive authority in court. There may be
interesting correlations between our statute on road accidents and the law of Australia and so that
law could be used as persuasive authority. And in this way, a number of different sources could
work together coherently to help us solve legal disputes.
In summary, we should not necessarily rely purely on the Constitution to solve legal disputes
even though the Constitution is the supreme law of South Africa. However, that does not mean
that the Constitution is unimportant for the other sources of law — in fact, the Constitution
permeates every other source of law to ensure that those sources are transformed to be
compatible with the needs of a constitutional democracy. This is what lies at the heart of
transformative constitutionalism and what it means for the sources of South African law.
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Chapter 4
Classification of the Law
Introduction
The law as we find it in the different sources (see Chapter 3 above) cannot be studied as an
incoherent and disorderly mass of rules. The Romans started a tradition of classifying the law into
different disciplines or branches, but there is no perfect and ideal classification of the law. The
distinction between the different branches of the law is sometimes quite artificial. Authors also
differ considerably among themselves as to where exactly some divisions of law fit into the whole
classification. But any classification of law at least has the advantage that it provides an overview
of the different divisions or areas of law.
To be clear: by classifying the law as we do below, we simply aim to give you a bird’s eye view
of the different areas of law — we are not pledging allegiance to this classification as being
‘perfect’ or even ‘necessary’. You will remember that in the previous chapter we said that a
transformative approach to South African law would recognise that there is one system of law
and that is law subject to the Constitution. By attempting any classification, we will do well to
remember that such classification should not fool us into thinking that the Constitution belongs in
one little box and every other subject has its own little box. To a large extent a classification of law
should also show how the law fits together and how it functions. The classification that we prefer is
illustrated in Figure 4.1.
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Figure 4.1
The different divisions of law are discussed briefly below.
4.1 Distinction between international and national law

4.1.1 International law
International law is also known as the law of nations, or public international law. We have already
discussed international law as a source of law in the previous chapter. It consists of the rules that
primarily govern the relationships between independent states, for instance between South Africa
and Zimbabwe or between South Africa and the USA. Although there is no international world
government that can lay down rules for all states and enforce them, such rules do exist. These
rules may be created by international custom or by international treaties (conventions), by means
of which the states which sign the treaties regulate certain relations between them. Such treaties
can exist between two states (bilateral treaties) or between several states
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(multilateral treaties). There is also customary international law which is settled practice that
states regard as legally binding norms.
International law applies in a state to the extent that it is incorporated into the national legal
system of that state. International law applies in South Africa in so far as it is not in conflict with
the South African Constitution or legislation. The Constitution in section 39(1) stipulates that a
court, when interpreting the Bill of Rights, must have regard to international law.
International organisations such as the United Nations (UN) and the African Union (AU)
also lay down rules of international law. If the rules of international law are violated, the
matter can be heard by the International Court of Justice (‘ICJ’) in The Hague. A state,
however, cannot be compelled to appear before this Court.
The rules of international law cover a wide variety of subjects, such as diplomatic
relations and air traffic between states, the use of the open sea, international principles
with respect to human rights and the law relating to warfare. With regard to the latter,
the rules of international law regulate the declaration of war and conduct during warfare.
The rules on conduct during warfare are also known as international humanitarian law. It
determines, for example, that chemical warfare is prohibited.
International law also regulates what is known as international criminal law that
outlaws genocide, crimes against humanity, war crimes and the crime of aggression. An
international court called the International Criminal Court (ICC) was established with
jurisdiction to prosecute and convict persons accused of international crimes. The ICC
was established under the ICC Statute (sometimes referred to as the Rome Statute).
SA was duty-bound to arrest al-Bashir, ICC rules

Stephanie van den Berg, IOL, 6 July 2017
Amsterdam — Judges at the International Criminal Court (ICC) ruled on Thursday that
South Africa violated ICC rules by failing to arrest Sudan president Omar al-Bashir during
a 2015 visit to Johannesburg, in a case that tested international support for the court.
There is an outstanding ICC warrant for President Omar Hassan al-Bashir’s arrest on
genocide charges, which he denies.
Thursday’s ruling has possible implications for al-Bashir and other sitting heads of
state as well as for the court itself.
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Judge Cuno Tarfusser, handing down judgment, said SA had an obligation to arrest al-
Bashir as states party to the Rome statute have an obligation to hand over a head of
state if so warranted.
Bashir . . . was charged with genocide and crimes against humanity in 2008 over the
deaths and persecution of ethnic groups in the Darfur province. He denies the charges
and continues to travel abroad, trailed by human rights activists and shunned by Western
diplomats.
Though Sudan is not a member of the ICC, the court has jurisdiction there due to a
2005 UN. Security Council resolution that referred the conflict to the Hague court.
The ICC faces the risk that any action it takes will only underline waning international
support for its own existence. The United States, Russia and China never became ICC
members. In Africa, resentment over the court’s indictments of Africans has led Kenya to
threaten withdrawal, and the African Union also called in February for mass withdrawals.
South Africa has gone further, formally notifying the United Nations last year that it
intended to withdraw from the court.
Earlier this year the High Court in Pretoria blocked the move over procedural issues,
but authorities said as recently as last week that they would press ahead with the
withdrawal.
4.1.2 National law

National law is the law of a specific state, in our case the South African law. In this sense one can
also speak of ‘positive law’ (objective law). This means the whole body of legal rules that is applied
and enforced in South Africa.
4.2 Distinction between substantive and procedural law

South African national law is divided into substantive and procedural law.
• Substantive law (also called material law) is that part of the law which determines the
content and meaning of the different legal rules (legal principles). It prohibits us, for
example, from committing criminal offences and it determines which human acts constitute
criminal offences, such as murder. It also determines the content and application of the
different rights which an individual may have. For instance, substantive law will determine
how an individual can obtain ownership of a motor vehicle.
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• Procedural law (also called adjective law) is that part of the law which regulates the
enforcement of substantive law. In other words, it determines the manner in which a case
must be practically handled when a legal rule has allegedly been violated. Procedural law, for
example, provides the process according to which someone is prosecuted for murder.
Likewise, it provides you with the process when you want to reclaim your motor vehicle from
someone who removed it without your permission, or when you want to claim damages from
someone who has damaged it.
Substantive and procedural law are interdependent. It makes little sense that a legal system
should only determine the content and meaning of different legal rules. It must also prescribe
what is to happen when such rules are violated so that disputes can be settled in an orderly and
peaceful manner. Without procedural law people will rely on force (self-help) when legal rules are
violated. In other words, they will take the law into their own hands. This can lead to uncontrolled
revenge and retaliation: an eye for an eye and a tooth for a tooth. Such behaviour leads to
violence and chaos. In turn, procedural law cannot exist without substantive law as it cannot
provide for the enforcement of legal rules of which the content and meaning are unknown.
4.3 Divisions of procedural law

4.3.1 Law of criminal procedure
Law of criminal procedure is that part of adjective law which prescribes how people who have
allegedly committed criminal offences (such as murder, robbery and rape) should be prosecuted
(see Chapter 10 of this book). It is the task of the state to prosecute and punish people who
commit criminal offences. The law of criminal procedure lays down the rules for the investigation
of the alleged offence as well as the process in court. Such a case is a criminal case.
4.3.2 Law of civil procedure

Law of civil procedure determines the procedure to be followed when an individual wishes to
enforce her rights against another, for example, when someone wants to claim damages from
another who has damaged her motor vehicle, or when someone wants to reclaim her motor vehicle
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from another who has taken it without her permission. The law of civil procedure determines how
such a claim should be instituted. Such a case is a civil case (see Chapter 9 of this book).
4.3.3 Law of evidence

The law of evidence determines how the facts in either a criminal or a civil case must be proved.
Thus, it regulates the manner in which witnesses should lay their evidence before the court and it
determines what kinds of evidence are inadmissible (see Chapter 12 of this book).
4.4 Distinction between public and private law

Substantive law is traditionally divided into public and private law.
• Public law determines the extent of state authority. It regulates the organisation of the
state, the relation between the different organs of state and the relation between the state
and its subjects. In this area of law, the state acts with state authority. Consequently, the
public-law relationship between the state and its subjects is an unequal one. It is a vertical
relationship which can be portrayed as shown in the figure below.
Figure 4.2
• Private law regulates the relationships between persons (legal subjects). (The terms
‘person’ and ‘legal subject’ will be discussed in Chapter 7 of this book.) More specifically, it
determines the different rights and duties that persons may have towards one another. These
rights and duties may find their origin in contracts, delicts, marriage, or ownership. In the
traditional classification of law, the state may also be a party in the area of private law when,
for example, it enters into a contract with an individual, or causes an individual harm (for
example, in a case of police brutality). The theory goes that in this instance the state does
not act with state authority; it is in the same position as any other person. The
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private-law relationship is therefore an equal one. It can be portrayed as a horizontal

relationship, as shown in the figure below. However, the belief that the relationships between
non-state actors is always an ‘equal’ one is naïve for two reasons. Firstly, when the state
enters into a contract with an individual, the state is standing in a position of power over that
contracting party, and that contract might have consequences for the country as a whole. So
it cannot really be said that the relationship between the state and a fellow contracting party
is ‘private’ or ‘equal’. Secondly, it would be false to think that all individuals are factually
equal to one another. If you enter into a contract with a multinational corporation, it is
unlikely that it can be said that the two of you are on an equal footing. For this reason, the
term ‘private law’ and its assumption of ‘equality’ is somewhat misleading. The label ‘private
law’ should therefore only be used as a descriptor for subjects that have historically been
classified together, namely: law or persons, family law, law of succession, contract law,
delict, and property law. When a person wants to enforce her rights against another in terms
of these traditional branches of private law, the provisions of the law of civil procedure apply.
Figure 4.3
The distinction between public and private law is often artificial and unrealistic. Often the state,
with state authority, encroaches upon the area of private law, for example, when the state through
legislation dictates certain contractual relationships between employer and employee.
4.5 Divisions of public law

4.5.1 Constitutional law
The Constitution forms the basis of constitutional law (see Chapter 5 of this book). Constitutional
law determines the nature of the state, its constituent organs or bodies and relationships between
the different bodies of the state. Constitutional law divides state authority into three branches:
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• the legislature — which promulgates legislation (Parliament);

• the judiciary — which interprets and applies legal rules (the courts);
• the executive — which, in general, handles governmental affairs, administers the state and
executes court orders (the President together with Cabinet).
Chapter 2 of the Constitution contains a Bill of Rights. Human rights serve, amongst others, to
curtail state authority (see Chapter 6 of this book).
4.5.2 Administrative law

Administrative law controls the administration of the state in general. It determines the way in
which the state is to exercise its executive powers through different bodies such as ministers, state
departments and numerous boards (for example licensing boards). When these state functionaries
make administrative decisions, they are supposed to do so on the basis of certain powers given to
them by the Constitution or legislation. This ensures that government acts in accordance with the
law. The rules of administrative law try to prevent these bodies from exercising their powers in
such a way that it is prejudicial to individuals.
Section 33 of the Constitution stipulates that everyone has the right to just administrative action
that must be lawful, reasonable and fair. If an administrative decision has been taken against
someone and it has an adverse effect on them, they are allowed to request written reasons for the
decision.
The Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) is a statute passed by Parliament
to give effect to the section 33 right. According to the PAJA, administrative decisions may be
reviewed (in other words invalidated) by a court for a number of reasons including unlawfulness,
procedural unfairness, and unreasonableness. For example, if a piece of legislation stipulates that
three government officials must take a decision and only one government official made such a
decision, the decision can be overturned because it was unlawfully made.
4.5.3 Criminal law

Criminal law (see Chapter 10 of this book) determines which acts amount to criminal offences, and
it also dictates that criminal offences must
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be punished. In principle, a criminal offence is an act which is against the law. The state must
prosecute and punish its subjects who have committed criminal offences. The manner in which
prosecution takes place and punishment is imposed is determined by procedural law, more
specifically the law of criminal procedure.
4.6 Divisions of private law

4.6.1 Law of persons
We have already mentioned that private law regulates the relationships between persons. Persons
therefore are the subjects of private law. The law of persons, in the first instance, determines what
a person is. The law does not regard only human beings as persons, but also an entity such as a
company (see Chapter 8 of this book). The law of persons also determines the juridical status of
persons, in other words the nature of a person’s position in law. It stipulates, for example, that a
child of three years old can neither conclude a contract nor marry, but she can inherit something.
4.6.2 Family law

Family law regulates family relationships. It relates to matters such as engagement, marriage, civil
union, marital property, divorce and parent–child relationships.
In terms of the common law, marriage was defined as the legal union of one man and
one woman to the exclusion of all others. This position was radically changed when the
Constitutional Court declared that definition to be unconstitutional in Minister of Home
Affairs and Another v Fourie and Another (Doctors for Life International and Others,
Amici Curiae); Lesbian & Gay Equality Project and Others v Minister of Home Affairs and
Others 2006 (1) SA 524 (CC). Ultimately, it was held that the common law violated the
right to equality in that it unfairly discriminated against same-sex couples and infringed
on their dignity. Subsequently, the Civil Union Act 17 of 2006 was passed, which now
allows same-sex couples the right to legally solemnise their unions. An interesting
controversy surrounding the Act is the fact that it allows religious ministers and
government officials to refuse to conclude a civil union on the basis of their conscience.
In early 2018, a Bill was proposed to amend this part of the Act, as the following
newspaper clipping shows:
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Bill aims to fix same-sex marriage glitch

Carl Collison, Mail & Guardian, 2 February 2018
The Civil Union Act was a huge step forward for equality in South Africa, allowing same-
sex couples to get married. But because of one ‘constitutionally unacceptable’ proviso,
couples are being turned away by the department of home affairs — prompting the
introduction of an amendment Bill to Parliament last Friday.
The Bill aims to repeal section six of the Act, which allows department marriage
officers to be exempted from officiating at same-sex marriages on the basis of religious
belief or conscience. Of the roughly 1 130 designated marriage officers, 421 had been
exempted.
The Bill was introduced by Congress of the People MP Deidre Carter, after it came to
her attention that same-sex couples were being turned away from some home affairs
offices, ‘particularly in rural areas’, because many marriage officers at those offices had
been exempted.
Matthew Clayton, of queer rights organisation Triangle Project, said the exemption ‘has
allowed government staff to openly discriminate against same-sex couples for over a
decade’.
Carter said the Bill of Rights prohibits discrimination and Chapter 10 of the
Constitution requires that public services must be provided impartially, fairly and without
bias.
‘It cannot be constitutionally acceptable or permissible that public servants can be
exempted on any grounds from providing services to certain sectors of our society,’
Carter said.
The Civil Union Act was passed in 2006, following a 2005 Constitutional Court
judgment instructing Parliament to pass legislation allowing same-sex couples to get
married. But, says constitutional law specialist Pierre de Vos, ‘the court said there must
be an accommodation of both the secular and the sacred’.
‘Putting it simply, any legislation passed should not force religious institutions to
conduct same-sex marriages,’ said De Vos.
4.6.3 Law of patrimony

The law of patrimony is that part of private law which regulates the relationships between persons
with respect to their means. ‘Means’ indicates the sum total of a person’s assets and liabilities, in
other words the person’s whole estate. The law of patrimony consists of the following:
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(a) Property law

Property law deals with the relationships between persons with respect to things. It determines
which rights persons can have with respect to movable and immovable property, and it also
regulates the origin, termination and protection of such rights. The best-known example of such a
right is ownership. The right to property is not simply a private-law affair. The Constitution also
protects property in section 25:
‘25 Property
(1) No one may be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application—
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of
which have either been agreed to by those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and
equitable, reflecting an equitable balance between the public interest and the interests of those
affected, having regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital
improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring
about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available
resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
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(6) A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either
to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other
measures to achieve land, water and related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions of this section is in accordance
with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).’
As we all know, there has been some debate about whether the Constitution should be amended to
explicitly allow expropriation without compensation in South Africa today. At the time of writing
this book, the following story featured in the news:
South Africa’s ANC to test constitution on land expropriation

Ed Stoddard, Reuters, 22 May 2018
JOHANNESBURG — South Africa’s ruling party aims to test clauses in the constitution to
see if they allow for land to be expropriated without compensation to address racial
disparities in ownership that persist more than two decades after apartheid’s demise.
Such a move could mean the African National Congress (ANC) will not need to stick to
a policy pledge to change the constitution to allow for expropriation, which has unsettled
investors concerned about the implications for broader property rights.
Following a land summit at the weekend, the ANC said it would test the argument that
the existing constitution permits expropriation of land without compensation under
certain circumstances.
Some legal experts have argued that there is no need to amend the constitution,
because Section 25 states that if land is taken from a property owner, ‘compensation . . .
must be just and equitable.’
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The argument has been made that ‘just and equitable’ could be zero –meaning no
compensation – depending on the historical circumstances in which previous occupants
or owners were deprived of or removed from the land.
The ANC also said after the summit that if ‘current legal formulations’ such as Section
25 impede or slow effective land redistribution, it will look at reviewing or changing the
constitution.
(b) Law of succession

Law of succession determines what happens to a person’s estate after her death. One can, in a
will, stipulate who is to inherit one’s estate (testate succession). In the absence of a will, the law
of intestate succession will determine who inherits the estate. Here is an example of an ordinary
will:
ORDINARY WILL
I, LINDIWE MASHONGWA (ID 550409 0010 222), a widow of 12 Villa Street,
Johannesburg, hereby declare that my estate must be distributed as set out below:
1. I hereby revoke all previous wills made by me.
2. A legacy of R50 000 must be paid to my minor daughter Cindy. The residue of my
estate must be awarded to my son Mpho.
3. No benefit which is due to my beneficiaries in terms of the conditions of this will
shall form part of community of property in any existing or future marriage, nor
form part of the accrual system.
4. I nominate my son Mpho as executor of my estate and I confer on him all powers
allowed by law, specifically the power of assumption. The nominated executor is
also exempted from the provision of security to the Master of the Supreme Court.
Signed at ..................... in the presence of two witnesses on this …… day of
........................
WITNESSES TESTATRIX
..............................................................................
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(c) Law of obligations

The law of obligations regulates that type of relationship between persons where one person (the
creditor) has a right against another for performance, and the latter person (the debtor) has a
corresponding duty to perform. Such a relationship is called an obligation. It is mainly contracts
and delicts that create such obligations.
• A contract is an agreement between two persons in terms of which a right and a
corresponding duty to a performance come into existence. When Anna, in terms of a contract
of loan, lends her bicycle to Bongi, Anna has the right against Bongi to claim it back, and
Bongi has the duty to give it back. The law of contract prescribes the requirements for the
conclusion of contracts, and regulates the rights and duties created by a contract as well as
the termination of contracts. An example of a contract of sale for a motor vehicle follows
below.
• A delict is a wrongful and culpable act which causes damage to another. In such a case the
person who suffers the damage will want to claim damages from the one who caused it. The
types of harm covered by the law of delict can relate to patrimonial loss (for example,
damage to property suffered when one person drives a car into someone else’s wall) and
non-patrimonial loss (for example, the pain and suffering that a person might endure when a
surgeon negligently botches an operation; or the harm suffered to personality when a
newspaper defames another person causing an infringement of reputation and dignity, or
when a person is unlawfully detained by the police causing an infringement of bodily
integrity). Thus, a delict also creates an obligation (the payment of damages). The law of
delict determines what a delict is, and regulates the rights and duties which arise from it.
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CONTRACT OF SALE
Entered into by and between
DANIEL HARDMAN
an unmarried male of age, residing at

123 Lynnwood Road, Lynnwood, Pretoria
(hereinafter referred to as the ‘Seller’)
and
JESSICA PEARSON
an unmarried female of age, residing at

456 Park Street, Arcadia, Pretoria
(hereinafter referred to as the ‘Purchaser’)
1. CONTRACT OF SALE: ESSENTIAL ELEMENTS
1.1 The Seller sells to the Purchaser a 2008 Honda Jazz, registration number LXW
123GP (chassis number R3456987045) (hereinafter referred to as the
‘vehicle’). The purchase price is R130 000.
1.2 All taxes, fiscal levies and licence fees resulting from this contract of sale are
to be paid by the Purchaser.
2. PAYMENT
The purchase price is payable in cash on the date on which the vehicle is delivered to the
Purchaser.
3. DELIVERY AND OWNERSHIP
3.1 The vehicle must be delivered to the Purchaser on 10 February 2010.
Ownership of the vehicle is transferred to the Purchaser on date of delivery
thereof. The Seller guarantees that he is currently the owner of the vehicle.
3.2 The Seller must, when delivering the vehicle, also deliver all documents to the
Purchaser to enable the latter to effect registration of the vehicle in her name.
3.3 The Seller undertakes to give his co-operation wherever required to enable
the Purchaser to register the vehicle in the latter’s name.
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4. RISK, PROFIT AND LOSS

The risk of damage, loss, destruction or theft of the vehicle is passed from the Seller to
the Purchaser on date of delivery of the vehicle to the Purchaser.
5. DEFECTS
5.1 The vehicle is sold ‘voetstoots’. The Purchaser acknowledges that she has
inspected the vehicle and that the vehicle has no patent defects. The Seller
places on record that he is not aware that the vehicle has any patent or latent
defects.
5.2 The Purchaser has to obtain a roadworthy certificate for the vehicle at her
own costs.
6. BREACH OF CONTRACT
If any party commits breach of contract, the other party is entitled
6.1 to claim specific performance plus damages, or
6.2 to cancel the contract, reclaim any performance already delivered and claim
damages.
SIGNED at PRETORIA on 7 DECEMBER 2009.
Witnesses:
1. ……………………………………………………………………… DANIEL HARDMAN
2. ……………………………………………………………………… JESSICA PEARSON
The difference between contracts and delicts is that in the case of contracts an obligation
arises between the parties because they agreed to it (they wanted it so) whereas in the case of a
delict there is no agreement between the parties. Contracts are not unlawful acts; delicts are.
It was mentioned above, under criminal law, that a criminal offence is also an act which is
against the law. What then is the difference between delicts and criminal offences? In the
case of a criminal offence the purpose is to punish the offender, whereas in the case of delict the
purpose is to compensate the person who suffered damages. A criminal offence is a public-law
matter because it is the state which prosecutes and punishes the offender. A delict is a private-law
matter because a claim for damages has an interpersonal nature.
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However, criminal offences that cause damage to persons, for instance assault and theft, also
constitute delicts. For example: Alex assaults Buhle, which causes Buhle to spend a huge amount
on medical costs. In terms of criminal law, Alex’s behaviour is a criminal offence, and she can be
prosecuted and punished by the state in accordance with the law of criminal procedure. Alex’s
conduct is also a delict in terms of the law of delict and Buhle can claim damages from Alex in
accordance with the law of civil procedure. A criminal case (by the state) as well as a civil case (by
Buhle) can therefore be instituted against Alex.
(d) Law of intellectual property
This is the division of law of patrimony which governs the relationships between persons with
respect to intellectual property (immaterial or industrial property). Intellectual property denotes
the creations of the human intellect or ingenuity. Examples are inventions, the content of literary
works and musical compositions. Rights with respect to intellectual property include copyright and
rights to patents. One could consider intellectual property as a subject that falls within the domain
of property law broadly understood. Intellectual property rights are protected through section 25
of the Constitution.
4.7 Commercial law (mercantile law)

Commercial law embraces numerous branches of law important for commerce or trade and
industry. It represents a mixture of public and private law. Some of these branches of law are
nothing more than specialised private law, for example the law of insurance. Others are exclusively
regulated by the state in the form of legislation, and entail a state–citizen relationship, for example
tax law. The following also form part of commercial law: company law, law of insolvency, labour
law and banking law. We discuss these aspects of mercantile law in more detail in Chapter 8 of this
book.
4.8 Supplementary disciplines

There are certain disciplines that serve as a backdrop or that are supplementary to the study and
application of law. Some of them are:
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4.8.1 Private international law (conflict of laws)

Sometimes the South African courts have to apply the law of other countries. This happens when
there is some connection between the parties or the facts of the case and a foreign legal system.
For example, suppose a South African and an Egyptian got married in London. They have been
living in Johannesburg for ten years and now want to get divorced. Which legal system applies to
that marriage and its consequences? The rules of private international law (conflict of laws)
determine which legal system the court must apply in such a case. No international set of rules
exists in this type of situation; each country has its own rules of private international law.
4.8.2 Legal philosophy (jurisprudence)

Legal philosophy is the discipline which looks at law from a philosophical perspective. It asks what
the law is and what its function is or should be. Law can be viewed from different perspectives,
such as positivism, the natural-law approach, Marxism, critical race theory, and feminism (see
Chapter 18 of this book). Through a philosophical evaluation of law, we gain a better
understanding of it and we acquire a critical approach towards it, which can be of value in
determining the need for legal reform.
4.8.3 Legal interpretation

The rules of legal interpretation mainly prescribe how the meaning of statutory provisions is
determined (see Chapter 3 of this book). Large sections of substantive law are regulated by
legislation. In order to enforce these sections of substantive law, the meaning of the different rules
of substantive law must be clear. Some of the general principles of legal interpretation are also
applied in order to determine the meaning of provisions and clauses in contracts and wills. In this
way the rules of legal interpretation are also an instrument to apply the rules of substantive law in
practice.
4.8.4 Comparative law (legal comparison)

Legal comparison is the study of foreign legal systems (see Chapter 15 of this book). Sometimes
this is done merely to compare such systems to the South African one, but in other cases it aids us
in finding answers to
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certain problems. In Chapter 2 above it was pointed out that our legal system links us to certain
other countries because we share a common legal history. This is one of the reasons why it is often
useful to look at how other countries deal with certain legal problems. Many South African statutes
are based on foreign counterparts.
4.8.5 Legal history

Legal history is important in an uncodified legal system such as the South African one because it
forms part of our common law, which is a source of law. A knowledge of legal history creates a
better understanding of the character of our legal system. Sometimes it is necessary for
researchers and the courts to undertake such a study, especially when the meaning of a specific
common-law rule is unclear.
4.9 Is classification realistic?

There are various disciplines which have not been discussed above because they are usually
regarded as sub-divisions of larger disciplines, such as forensic medicine (medicina forensis),
environmental law, municipal law, media law and military law. New areas of law are also emerging,
such as cyber law, international criminal law and international trade law.
The classification of law into different disciplines, as well as the nature of the curriculum of law
students, can easily create the perception that the different disciplines are isolated compartments
that have nothing to do with one another. This perception is unrealistic and wrong. This is
especially true in light of the transformative Constitution that pervades every area of law. We could
see from some of the examples given above that the Constitution does create blurred lines
between certain divisions of law that have historically been regarded as ‘separate’, such as public
and private law. This is no longer the case under a supreme Constitution.
In our discussion on the law of delict above it was shown how the rules of different disciplines
can apply to one incident (case), for instance the rules of the law of delict, criminal law, the law of
civil procedure and the law of criminal procedure. This is also the way in which the legal
practitioner will encounter problems in practice. There is no law course in university education that
integrates every single discipline. The closest to this ideal is perhaps to be found in courses such
as street law, in attorneys’ practice, and the work done in different legal-aid clinics.
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The way in which the principles of the different disciplines interact with each other is something
that the lawyer experiences only in practice.
In the next chapter we look at some of the subdivisions of law discussed above.
See www.jutapassmasters.co.za for the summons and particulars of claim that illustrate
the integration of disciplines in practice.
Which disciplines of law do you think come into operation in the following case?
Danny Gakumba is a citizen of Zaire. He obtains a visa to visit South Africa. Here he
finds a job with a firm that delivers furniture. He obtains a work permit for two months.
One morning, shortly after the permit expires, Gakumba is driving a lorry. The lorry
collides with another vehicle. In a state of shock Gakumba jumps out of the vehicle and
runs away. In the meantime, members of the police force have arrived. They chase after
him and eventually arrest him. In the police vehicle one member of the police force
assaults him. Gakumba is detained at the police station and eventually appears in court.
He is refused bail.
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Chapter 5
The Constitution: Structures of Governance
Introduction
Most organisations (like clubs and societies) have constitutions. A constitution is a document in
which the structure and the functioning of an organisation are regulated. Each state also has a
constitution. In this constitution the rules according to which the country is governed are set out.
Governments basically have three functions: They make laws (legislative authority); they apply
laws and execute them (executive authority); and they resolve legal disputes (judicial
authority). This division of authority is known as the ‘separation of powers’. The aim of separation
of powers is to ensure that individuals are protected against the abuse of centralised power. The
principle of separation of powers is upheld by ‘checks and balances’, exemplified by the possibility
that courts may declare laws and executive conduct unconstitutional. A constitution regulates who
fulfils these functions (for example, who makes laws and on what topics). It also regulates the
relationship between the citizen and the state (for instance, it stipulates which citizens may vote).
A constitution often starts with a preamble. A preamble is a solemn declaration which states
the basic purpose of the constitution. Its provisions are usually not binding, but may serve as a
guide to the interpretation of the constitution. The preamble of our Constitution reads as follows:
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Preamble
‘We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the
supreme law of the Republic so as to—
Heal the divisions of the past and establish a society based on democratic values, social
justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on
the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of every person; and
Build a united and democratic South Africa which can take its rightful place as a
sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.’
Power (and the exercise of power) is very important in every state. Constitutions often endeavour
to create measures restricting governmental power. Mechanisms are created in the constitution to
protect subjects. Therefore, a constitution is a contract between ‘the people’ themselves, by which
they create a state, transfer their power to it and then accept its authority. In the preamble to the
Constitution the phrase ‘we the people’ is used, and it echoes the wording of the American
Constitution. In reality, obviously, it is only the representatives of the people and not the people
themselves who give content to the Constitution. The wording of the preamble, however, implies
that it represents the will of all the people, and thus attempts to give the Constitution legitimacy.
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5.1 Types of constitutions

5.1.1 Written or unwritten
Not all constitutions consist of one single piece of legislation. Constitutions may also consist of a
collection of conventions and customs. This is the case in Britain and partly so in Israel. However,
in most countries the constitutional system has one written document as its primary source
(it is codified constitutional law).
5.1.2 Flexible or inflexible

Constitutions may further be divided according to the ease with which they can be amended. A
flexible constitution can be amended quite easily; it is more difficult to change an inflexible
constitution. Examples of mechanisms or procedures in a constitution that may make amendment
more difficult are special majorities or referenda.
In the 1910 Constitution of the Union of South Africa the two official languages (Afrikaans and
English) were entrenched, requiring a two-thirds majority in both houses (House of Assembly and
Senate) to change the status quo. In Switzerland a referendum (a vote by all citizens on one topic,
the result of which binds the government) must be held before the Constitution can be changed.
5.1.3 Unitary or federal

This concerns the levels of government. Most states have one level of government. In such a
state there is only one central government for the whole state. The powers of government are
centralised. Examples of unitary states are Namibia and France.
Powers may also be decentralised. In such a system the national (federal) and provincial
(regional) levels of government co-exist. There is a legislature on both the federal and provincial
level, making statutes for the country as a whole and the specific province respectively. The
Constitution stipulates which competences may be executed at which level. Each province (region
or state) has its own executive authority (cabinet) executing statutes for that province; the
executive authority executes statutes for the whole country. Apart from the courts in each of the
provinces, there is a higher court which binds all of these provinces. A system in which powers are
divided in this way is a federation.
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Examples are the USA and Canada. In such cases there are two legal regimes in one constitution
that impact on the same populace.
5.1.4 Sovereign or subordinate

A constitution may be a document that merely sets out the structure of the state and the activities
of the different organs of state. The legislature retains the competence to promulgate any new
statute or to amend legislation. Such a constitution is subordinate, because the legislature can
amend the constitution on its own. This means that Parliament is supreme or sovereign. The
constitution may, on the other hand, be the highest source of authority and thus sovereign. This is
the case if all statutes and executive actions have to comply with the constitution.
5.2 Constitutional history of South Africa: a brief overview

5.2.1 Constitutional history: The story of a bridge
Before we embark on a discussion about South Africa’s constitutional history, you are reminded
about the fact that the current Constitution of South Africa is sometimes referred to as a
transformative constitution. In Chapters 1 and 2 above, we have already alluded to the fact that
transformative constitutionalism is the idea that the Constitution was introduced to bring about
social and political change in South Africa with a core aim being the achievement of equality.
In a unique ‘post-amble’, the 1993 Constitution describes itself as a ‘bridge’ between ‘the past of
a deeply divided society’ and a ‘future founded on the recognition of human rights’. Expanding on
this metaphor, Etienne Mureinik (‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994)
10 SAJHR 31 at 32) contended that the Constitution is a departure from a culture of authority
towards a culture of justification — ‘a culture in which every exercise of power is expected to be
justified; in which the leadership given by government rests on the cogency of the case offered in
defence of its decisions, not the fear inspired by the force at its command’.
This quote suggests that the Constitution serves as a bridge between a regime where abuse of
power was rife towards a new regime where power is responsibly exercised. For us to appreciate
what this shift entails — and it is a shift at the core of the theory of transformative
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constitutionalism — we need to understand where South African constitutional history has been
and where it is today. The discussion that follows aims to address this important issue.
5.2.2 Before 1910

Although accounts of South Africa’s constitutional history often start in 1652, it should be noted
that numerous autonomous communities — Khoisan-speaking groups in the west and Nguni-
speaking groups in the east — had long been living in the geographic area that later became
‘South Africa’. Knowledge about their way of life and governance structures is mostly contained in
anthropological studies. However, many aspects of the value systems, such as ubuntu (see
Chapter 18 of this book), and institutions of these communities, remain a fact of life for many
South Africans.
After 1652 the Dutch structure of government was never fully transplanted to the Cape as it was
not originally the intention to found a permanent colony here. However, the influence of English
law after the British occupation is more clearly ascertainable. Especially after the permanent
occupation by the English in 1806, English law influenced the local constitutional law. For example,
a governor representing the crown was appointed for the Cape Colony. Dissatisfaction with the
British constitutional dispensation was one of the factors that led to the Great Trek early in the
nineteenth century. After the Great Trek a British-based constitutional system operated in the
British colonies (the Cape and Natal), while the Boer republics (ZAR and Orange Free State)
established their own constitutions.
5.2.3 1910: Unification

Resistance to British government and institutions was one of the reasons for the South African
Wars (sometimes called the Anglo-Boer Wars). After these wars the Boer republics also became
British colonies. Later each of the four British colonies was granted self-government. In 1908 a
national convention was called to work out a constitution for the whole of South Africa. The
greatest issues of the time were the questions of reconciliation, language, federation or union and
the ‘native question’. A unitary state was preferred to a federation, despite Natal’s call for
federalism. In the subsequent Constitution of the Union (that took effect in 1910), language rights
were entrenched and could only be amended by a two-thirds majority.
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By 1909 only whites could vote in all the provinces, except for a limited ‘coloured’ vote in the Cape
Colony (±15 per cent of ‘coloureds’ could vote). The Cape Colony wanted this extended to the
other provinces. The northern colonies were opposed to an extension to all races. A compromise
was reached. According to the compromise, the existing voting system in the Cape remained in
force and was entrenched in the 1910 Constitution and could be amended only by a two-thirds
majority. But representatives in Parliament still had to be from ‘European’ descent. The vote was
not extended to other races in any of the other provinces. As such, there was really very little
unity in the Union. The new system of government was, in principle, based on that of Britain. This
system is otherwise known as the Westminster system. The most important characteristics of that
system as in the 1910 Constitution were:
• A unitary system (not a federation).
• A single constituency voting system. The English refer to this as ‘first past the post’ (winner
takes all). This means that political parties field candidates in constituencies. The candidate
who wins the most votes is elected as the representative of that constituency’s voters in
Parliament.
• The leader of the majority party in Parliament becomes Prime Minister. The Prime Minister is
the executive head of government.
• There is a symbolic head of state, the Governor-General, representing the crown.

• Parliament consists of two houses: the House of Assembly and the Senate. Legislation had to
be passed by both houses.
• Parliament is sovereign. Not the Constitution, but Parliament has the last say on legislation.
No government organ can interfere with Parliament’s competence.
The most important difference between the Constitution of the Union and the Westminster system
was the fact that only a part of the population could vote. In this respect the 1910 Constitution
was essentially in conflict with the British system. Subsequent constitutional development in this
era was characterised by the increasing weakening of Britain’s authority.
In 1948 the National Party (NP) won the election on the white vote. A programme of social
reconstruction or ‘engineering’ (apartheid) was launched through discriminatory legislation.
Some of the first statutes
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that were promulgated were the Prohibition of Mixed Marriages Act 55 of 1949 and the Population
Registration Act 30 of 1950. The next step was to remove all ‘coloureds’ from the common voters’
roll in the Cape. In separate sessions of the two Houses of Parliament an ordinary majority was
reached on the proposed bill. Some of the ‘coloureds’ who were affected complained to the court
that the government’s conduct was unconstitutional. The Appellate Division found in Harris v
Minister of the Interior 1952 (2) SA 428 (A) that the removal of voting rights was indeed
unconstitutional because a two-thirds majority was not gained in a joint sitting of the two houses.
Parliament thereupon promulgated another Act, the High Court of Parliament Act 35 of 1952.
According to this, all members of the House of Assembly and the Senate would be members of the
‘High Court’. This court had the competence to reconsider all the decisions of the Appellate Division
in which parliamentary legislation was declared unconstitutional. The Appellate Division decided in
Minister of the Interior v Harris 1952 (4) SA 769 (A) that this statute was also invalid. The ‘High
Court’, it was found, was only Parliament under another name trying to reach the same objective
as the one previously declared unconstitutional.
The government then promulgated legislation in terms of which the composition and size of the
Senate were changed. Before this legislation was accepted, the government supporters in the
Senate numbered approximately 29 out of a total of 48. After the acceptance of the legislation it
was 77 out of 89. In this way the ruling party could obtain a two-thirds majority in a joint
sitting. Legislation removing the ‘coloureds’ from the voters’ roll was accordingly accepted. In
Collins v Minister of the Interior 1957 (1) SA 552 (A) the Appellate Division found that this Act was
validly promulgated. The court found that the requirement of a two-thirds majority in a joint sitting
was complied with.
From this history it is clear that the courts were subservient and subordinate to Parliament. The
court could only test the manner and form in which legislation was promulgated. This means that
only formal requirements could be tested. The content or substance of legislation could not be
tested. The court could not use the fact that certain guaranteed rights were violated as a ground
for its decision.
The 1950s were characterised by increasing opposition to apartheid. In 1952 a campaign of civil
disobedience (‘the defiance campaign’) was launched. The African National Congress (ANC) was a
prominent organisation in this resistance. This organisation was founded in 1912.
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The most important constitutional document of the ANC was the Freedom Charter, adopted in 1955
at Kliptown by about 3 000 delegates. The defiance campaign led to the well-known Treason Trial
of 1956 when 156 leaders of the ANC and other organisations were arrested and some brought to
trial.
5.2.4 1961: Republic

The NP worked towards a republic, independent from Britain. In 1960 a referendum was held to
test support. With a majority of 52 per cent (against 48 per cent) white voters supported the idea
of a republic. Verwoerd, who was then Prime Minister, wanted a republic within the
Commonwealth. He made formal application at a Commonwealth conference. This led to a major
dispute. The reason for this was South Africa’s racial policy. At that time the incident at Sharpeville
(21 March 1960) had already taken place. A group of approximately 69 inhabitants of Sharpeville
were killed by the police after they protested against local measures. A protest movement,
particularly against the pass laws and their enforcement, also gained momentum.
The Verwoerd government’s response was to declare a state of emergency, to ban public
meetings and to detain several people. The ANC and the Pan-Africanist Congress (PAC) were
declared illegal in terms of the Unlawful Organizations Act 34 of 1960. All this led to sharp criticism
from many countries. Verwoerd eventually withdrew South Africa’s application to become
independent as a member of the Commonwealth. On 31 May 1961 South Africa become a republic,
but outside the Commonwealth.
A new Constitution was also accepted. The 1961 Constitution did not deviate in essence from
the one of 1910. The most important change was that the monarchy as source of authority was
substituted by the State President as the symbolic head of state. The first State President was
CR Swart.
Now that all the legal mechanisms for airing black dissatisfaction were blocked, security
legislation in the 1960s had to be tightened. Dissatisfaction among black people eventually led to
the Soweto riots of 1976. In the meantime, the government still pursued its policy of separate
development. The first homeland (Transkei) became independent in 1976. Transkei was followed
by Bophuthatswana (1977), Venda (1979) and Ciskei (1981) (the ‘TBVC’ states).
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Attempts to broaden the democratic basis of government to absorb opposition to apartheid led
to the 1983 Constitution.
5.2.5 1983 Constitution

Plans to adopt the 1983 Constitution caused a split in the NP, and the Conservative Party (CP) was
formed in 1982. Another referendum was held and the majority of white South African voters
supported the principles of the 1983 Constitution. The most important characteristics of the
Constitution were:
• The vote was extended to all Indians and ‘coloureds’. Three legislative assemblies were
created, one for each of these groups: the House of Assembly (for whites), the House of
Representatives (for ‘coloureds’) and the House of Delegates (for Indians). Together, these
three houses formed Parliament — called the Tricameral Parliament.
• All competencies of government were divided into own and general affairs. Own affairs
were handled by each separate house. General affairs had to be dealt with by Parliament as a
whole.
• Black people were excluded from this dispensation and their constitutional future still lay in
black homelands. This made the position of urban black people untenable.
• The executive authority rested with the Cabinet and head of state. The symbolic position of
the State President was abolished, replacing it with an executive State President. The
President’s Council was created to resolve conflict between the houses.
In none of these procedures was the sovereignty of the white House of Assembly affected, because
the ratios were determined in such a way as to secure a white majority. The 1980s were
characterised by growing opposition to NP rule. Government’s response was yet again to declare a
state of emergency. An about-turn came when FW de Klerk took over as State President. On 2
February 1990, shortly after he was sworn in, he unbanned the ANC and PAC. Thereafter Nelson
Mandela was released and negotiations for the inclusion of black South Africans in the
constitutional process began.
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5.2.6 1993 (Interim) Constitution

Negotiations from 1990 onwards were directed at converting South Africa from a non-democratic
state to a full democracy. In many countries such a dramatic change was only possible through
violence and revolution. South Africa was also heading in such a direction after the Soweto riots
(1976) and the states of emergency in the 1980s. The release of Nelson Mandela and the
unbanning of the ANC and PAC in 1990 made a negotiated settlement possible. The white
electorate expressed its support for a negotiated settlement in a referendum (1992).
All political groupings participated in the negotiation process. Up to 26 parties were involved in
multi-party negotiations at the World Trade Centre in Kempton Park. As a result of this process the
1993, or ‘interim’, Constitution was adopted. A date and procedure for the first democratic election
were determined. On the date of the election, 27 April 1994, the interim Constitution came into
effect. ‘Interim’ refers to the fact that this Constitution had a limited duration. Within two years a
‘final Constitution’ had to be adopted.
The 1993 Constitution was a clear break from previous constitutions. Its main features were the
following:
• It was South Africa’s first democratic Constitution, in terms of which all South Africans
older than 18 years were allowed to vote for the first time (universal adult suffrage).
• The system of parliamentary sovereignty was abolished. The Constitution became the
highest authority.
• A new court, the Constitutional Court, was created. This court interprets the Constitution
and may invalidate legislation and executive conduct conflicting with the Constitution.
• A proportional voting system was introduced. Voters could no longer vote for specific
candidates in constituencies, but voted only for a political party. In terms of this voting
system a party is allocated a number of seats in Parliament proportionate to the
percentage of support it receives in nationwide elections.
• The country was divided into nine provinces. These are Eastern Cape, Free State, Gauteng,
KwaZulu-Natal, Mpumalanga, North-West, Northern Cape, Northern Province (now Limpopo),
and Western Cape. Legislative and executive competencies were divided between the
national, provincial and local levels.
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• The legislative function was exercised by Parliament (the National Assembly and Senate)
at the national level, by provincial legislatures at provincial level, and by municipal councils
at local level.
• The executive authority functioned as a government of national unity. At the national
level a President and Deputy President were appointed from the majority party. The party
with the second most support appointed a second Deputy President. A multiparty cabinet was
also formed, and comprised members of all parties with 5 per cent or more of the support in
the election. For example, members of the National Party (NP) and Inkatha Freedom Party
(IFP) participated in a multiparty cabinet as ministers of agriculture and internal affairs. The
NP withdrew from the government of national unity in 1996.
5.2.7 1994–1997: Adoption of the 1996 Constitution

During the negotiating process the parties agreed on 34 constitutional principles, which were
entrenched in the interim Constitution. The 1996 Constitution could not deviate in any respect
from these principles. Ultimately the Constitutional Court had to decide whether the 1996
Constitution complied with the principles. A positive answer would mean that the 1996
Constitution was ‘certified’. Only then could a proposed constitution become the ‘final Constitution’
of South Africa.
After the election in April 1994 the members of the National Assembly and the Senate
reconstituted themselves as the Constitutional Assembly. This body was given the responsibility
of drafting a ‘final Constitution’. A first draft was adopted by the Constitutional Assembly on 10
May 1996. However, finding that this draft did not comply with the 34 constitutional principles in all
respects, the Constitutional Court declined to certify the draft and referred it back to the
Constitutional Assembly. On 11 October 1996 the Constitutional Assembly adopted an amended
draft. This version was certified by the Constitutional Court and it came into effect on 4 February
1997.
Although the Constitution was in 1996 passed as Act 108 of 1996, subsequent legislation (the
Citation of Constitutional Laws Act 5 of 2005) stipulates that the short title of the Constitution is
‘Constitution of the Republic of South Africa, 1996’. Reference to the present Constitution should
take this format. The omission of ‘Act’ and a number underscores that even if the Constitution was
adopted by Parliament, it remains a
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very special law that acts as a yardstick against which other laws may be assessed. In addition,
amendments to the Constitution are numbered in sequence, for example: ‘Constitution Seventh
Amendment Act of 2001’).
5.2.8 Subsequent constitutional amendments

By 2018, the Constitution of the Republic of South Africa, 1996, had been amended seventeen
times. Most of these amendments are of a relatively technical nature, and concern issues such as
provincial borders. Most amendments were supported by all political parties and were
uncontroversial. However, the issue of ‘floor-crossing’ caused more controversy. Two constitutional
amendments (Constitution Eighth Amendment Act of 2002 and Constitution Tenth Amendment Act
of 2003) allowed members of local councils, the National Assembly and provincial legislatures to
cross the floor to join another political party without losing their seats. After public discontent and
a change in the political circumstances giving rise to the initial amendments, the position was
reversed by way of the Constitutional Fourteenth Amendment Act of 2008, which abolished floor-
crossing. The Constitution Seventeenth Amendment Act of 2012 broadened the jurisdiction of the
Constitutional Court. As explained in Chapter 3 of this book, the Constitutional Court originally
served the purpose of being the highest court in constitutional matters. Today it is the highest
court for all matters. Section 167(3) of the Constitution before and after the Seventeenth
Amendment is shown below:
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Section 167(3) before Section 167(3) after amendment

amendment
(3) The Constitutional Court: (3) The Constitutional Court—
(a) is the highest court in all (a) is the highest court of the
constitutional matters; Republic; and
(b) may decide only (b) may decide—
constitutional matters and (i) constitutional matters;
issues connected with and
decisions on constitutional (ii) any other matter, if the
matters; and Constitutional Court
(c) makes the final decision grants leave to appeal on
whether a matter is a the grounds that the
constitutional matter or matter raises an arguable
whether an issue is point of law of general
connected with a decision on public importance which
a constitutional matter. ought to be considered by
that Court; and
(c) makes the final decision
whether a matter is within its
jurisdiction.
Due to the fact that the Constitution is still subject to amendment, it would be technically incorrect to refer to
this document as the ‘final Constitution’, but many people do.
See www.jutapassmasters.co.za for an article by O’Regan and accompanying text.
5.3 Constitution of the Republic of South Africa, 1996

5.3.1 Similarities to the interim Constitution
In many respects the 1996 Constitution is a continuation of the interim Constitution. Section 1 of
the 1996 Constitution, in particular, reaffirms the following points of departure which were already
contained in the interim Constitution:
• basic rights for everyone, as contained in the Bill of Rights;
• universal adult suffrage;
• supremacy of the Constitution and the rule of law;
• non-racialism and non-sexism.
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5.3.2 Co-operative government

Three distinct, but interrelated, spheres of government are created at the national, provincial and
local levels. The nine provinces created by the interim Constitution are retained. A system of co-
operative government means that the functions of government are not only exercised at the
national level, but are decentralised to levels closer to the people.
5.3.3 Legislative authority

Legislative functions are performed in the national, provincial and local spheres:
• The legislative function at the national level is performed by Parliament. Parliament consists
of the National Assembly and National Council of Provinces. In terms of the Constitution the
National Assembly consists of between 350 and 400 members elected by the people through
a system of proportional representation. The National Council of Provinces consists of a
delegation of ten delegates from each province. Its function is to ensure that provincial
interests are taken into account in the adoption of national legislation.
• A provincial legislature is elected in every province. The number of members differs from
province to province, but must be between 30 and 80.
• Parliament may pass legislation on any matter, but some matters are classified as ‘function
areas of exclusive provincial competence’ (found in Schedule 5 to the Constitution). These
matters include abattoirs, provincial planning and provincial roads. The national legislature
may intervene to pass legislation on these aspects only if it is necessary to maintain national
security, economic unity or essential national standards, and to prevent provincial action
which is prejudicial to other provinces.
• The Constitution also sets out matters about which both Parliament and provincial
legislatures may legislate: ‘functional areas of concurrent national and provincial legislative
competence’ (Schedule 4 to the Constitution). Included are education (excluding tertiary
education), housing, public transport and welfare services.
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• Government in the local sphere consists of municipalities. Voters in a particular municipal

area elect members of municipal councils. The council has the competence to pass by-laws
on certain matters. These include air pollution, building regulations, municipal public
transport, noise pollution and street trading. However, national and provincial legislation may
be adopted to ensure the effective performance of municipal functions.
National Bills must in principle be approved by both the National Assembly and the
National Council of Provinces. These Bills may be adopted through one of three
processes, depending on the nature of the Bill.
• Ordinary Bills not affecting provinces: A majority in the National Assembly and at least
five of the nine delegations (each of which has a single vote) in the National Council of
Provinces are required for a Bill to become law. If the Council does not pass the Bill, the
National Assembly must reconsider it in the light of any amendments proposed by the
Council. If the National Assembly passes the Bill again, the Council is then by-passed and the
Bill is submitted directly for Presidential assent.
• Ordinary Bills affecting provinces: The same majority as in respect of ordinary legislation
(not affecting provinces) is required. If the National Council of Provinces rejects a Bill
affecting provinces, the Bill must be referred to a mediation committee. Thirty days are
allowed for mediation between the eighteen members of the committee. If no agreement is
reached, the National Assembly may pass the Bill, but with the support of at least two-thirds
of its members.
• Bills amending the Constitution: Three levels of requirements for amendment may be
distinguished:
– The highest threshold is support of at least 75 per cent of the National Assembly and a
supporting vote of at least six provinces in the Council. This is required to change
section 1 of the Constitution, in which the basic points of departure of the Constitution
are stated.
– The second highest threshold is support of at least two-thirds of the National
Assembly and a supporting vote of at least six provinces in the Council. This is required
to amend the Bill of Rights.
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– Any other part of the Constitution can be amended only with the support of at least
two-thirds of the National Assembly. Support of at least six provinces in the council is
needed only when provincial matters are involved.
The Constitution requires that the National Assembly, National Council of Provinces and provincial
legislatures must ‘facilitate public involvement’ in their own ‘legislative and other processes’ and in
similar processes of their committees. In Doctors for Life International v Speaker of the National
Assembly and Others 2006 (6) SA 416 (CC), a constitutional challenge was brought in respect of a
number of health-related statutes on the ground that the National Council of Provinces failed to
comply with this obligation. The contention was that the failure of the Council to invite written
submissions and hold public hearings on the legislation constituted non-compliance with a
constitutional obligation. The majority of the Constitutional Court held that, although some leeway
is allowed to the legislature on how best to determine the form of public involvement, in this case
the degree of involvement fell short of the level required by the Constitution. The statutes were
therefore declared invalid, and Parliament was given eighteen months to re-enact the legislation in
a manner consistent with the Constitution.
See www.jutapassmasters.co.za for the elaboration by the majority and a member of the
minority in the Doctors for Life case on the nature of the South African democracy as
both ‘representative’ and ‘participatory’.
Read the following extract and reflect on the process required to bring about the amendment to
section 25 of the Constitution that is being called for:
Committee Report: 59% against amending constitution for land expropriation

By Babalo Ndenze, EWN, 22 August 2018
CAPE TOWN - Most submissions at Parliament’s land hearings are against a Constitutional
amendment to allow for expropriation without compensation.
That’s according to a preliminary report by the constitutional review committee.
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It’s [sic] met on Wednesday to discuss and analyse the various trends from about
149,000 submissions made during public hearings around the country.
About 89,000 are opposed to an amendment.
The committee was instructed by Parliament to ascertain whether a review of Section
25 of the Constitution is necessary.
Committee co-chairperson Vincent Smith says most of those opposed to amending the
Constitution in favour of land expropriation without compensation are concerned over the
possible threat to the country’s credit rating and food security.
He says those in support want the injustices of the past to be corrected.
Others feel talk of a Constitutional amendment is just an electioneering gimmick.
‘In pie-chart form; 59% think the Constitution is fine, 40% think the Constitution needs to be
amended and 0.3% are undecided.’
The committee says those who made written submissions will now have a chance to
make oral submissions before a report is finalised.
5.3.4 Executive authority
The executive authority also functions in the national, provincial and local spheres.
• The head of the national executive is the President. The President is elected by the
National Assembly from its members. This implies that the leader of the majority party in the
National Assembly will usually become President. Because the ANC has so far won huge
parliamentary victories, the leadership struggle within the party to determine the party
leader is of overriding importance. When a President loses the trust and support of his party,
as happened to President Mbeki in September 2008, the party may withdraw its support of
his Presidency. The decision of the National Assembly then becomes a mere formality to give
effect to a party decision. The President, in turn, appoints a Deputy President and
Ministers. The Deputy President assists the President with his work. Ministers head the
different government departments. Together, the President, Deputy President and Ministers
form the Cabinet.
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• The head of the provincial executive is the provincial Premier. The Premier is elected by
the Provincial Legislature from its members. This implies that the leader of the majority party
in the Provincial Legislature will usually become Premier. In turn, the Premier appoints
between five and ten members of the Provincial Legislature to a provincial Executive
Council. Members of the Executive Council (MECs) administer the provincial government
departments.
• Executive functions in the local sphere are performed by municipal councils. As a result,
municipal councils perform both legislative and executive functions.
5.3.5 Judicial authority

According to section 165 of the Constitution, judicial authority vests in the courts. The courts are
independent and must apply the law impartially and without fear, favour or prejudice. No person or
organ of state may interfere with the functioning of the courts. Court decisions bind all persons
and organs of state against which they are directed.
See www.jutapassmasters.co.za for an article about the ideal characteristics of a

South African judge.
The 1996 Constitution and subsequent legislation changed the names of certain courts (see
Chapter 13 of this book). The Constitutional Court is the highest court in all matters, constitutional
or otherwise. The Supreme Court of Appeal (previously the Appellate Division of the Supreme
Court) is the second highest court in all matters. Provincial High Courts (previously the provincial
and local divisions of the Supreme Court) have jurisdiction in provinces or parts of a province.
The Constitutional Court consists of the Chief Justice, a Deputy Chief Justice and nine judges.
Practising lawyers, academics and judges of the High Court or Supreme Court of Appeal may be
appointed to the Constitutional Court. However, at least four of the Constitutional Court judges
must already have been judges when they were appointed to the Constitutional Court. The
President (head of the executive) appoints the members of the court from a list of names
submitted by the Judicial Service Commission (JSC). The JSC is a panel of experts which advises
the government on the administration of justice. The JSC consists of:
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• the Chief Justice, who presides at meetings of the Commission;

• the President of the Supreme Court of Appeal;
• one Judge President designated by the Judges President;
• the Cabinet member responsible for the administration of justice, or an alternate designated
by that Cabinet member;
• two practising advocates nominated from within the advocates’ profession to represent the
profession as a whole, and appointed by the President;
• two practising attorneys nominated from within the attorneys’ profession to represent the
profession as a whole, and appointed by the President;
• one teacher of law designated by teachers of law at South African universities;
• six persons designated by the National Assembly from among its members, at least three of
whom must be members of opposition parties represented in the Assembly;
• four permanent delegates to the National Council of Provinces designated together by the
Council with a supporting vote of at least six provinces;
• four persons designated by the President as head of the national executive, after consulting
the leaders of all the parties in the National Assembly;
• when considering matters relating to a specific High Court, the Judge President of that Court
and the Premier of the province concerned, or an alternate designated by each of them.
See www.jutapassmasters.co.za for a newspaper article concerning the appointment of

members of the JSC.
The President also appoints the judges of all other courts on the advice of the JSC. The JSC is not
involved in respect of the appointment of acting judges, as the President may appoint acting
judges of the Constitutional Court on the recommendation of the Minister of Justice, ‘acting with
the concurrence of the Chief Justice’. The Minister appoints acting judges to the other courts ‘after
consulting’ the senior judge of the relevant court.
Judges of the Constitutional Court are appointed for an effective non-renewable term of fifteen
years, but must retire when they reach the age of 75 years (Judges’ Remuneration and Conditions
of Employment
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Act 47 of 2001). All other judges are appointed until they reach the age of 75 years.
A judge may be removed from office only if the JSC finds that he or she ‘suffers from an
incapacity, is grossly incompetent or is guilty of gross misconduct’ (section 177). In addition, the
National Assembly must, by a two-thirds majority, approve the judge’s removal.
See www.jutapassmasters.co.za for texts about the dispute between the Constitutional
Court and Hlophe JP, with questions arising therefrom.
5.3.6 State institutions supporting constitutional democracy

Various state institutions have been created to strengthen our constitutional democracy. These
are:
• The Public Protector
The President appoints the Public Protector. The Public Protector investigates allegations of
improper conduct by government officials but may not investigate court decisions.
A few years ago, the then Public Protector (Thuli Madonsela), investigated a number of
alleged security upgrades to former President Jacob Zuma’s Nkandla residence. She
found that Mr Zuma and his family unduly benefited from some of the upgrades that
were not made for purposes of increasing security. She made a finding in her report by
which she ordered Mr Zuma to ‘pay back the money’ (to borrow the popular phrase)
because of the undue benefit received. Shortly hereafter, Parliament did their own
investigation and found that Mr Zuma did not benefit unduly from the security upgrades,
thereby declaring that the Public Protector’s finding was nonsense. In dispute before the
Constitutional Court was the question of whether the Public Protector’s reports and
remedial action are binding. Mogoeng CJ, writing for a unanimous court in Economic
Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC), held
the following regarding the binding effect of the Public Protector’s findings:
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‘[66] The language, context and purpose of ss 181 and 182 of the Constitution give reliable
pointers to the legal status or effect of the Public Protector’s power to take remedial action. That
the Public Protector is required to be independent and subject only to the Constitution and
the law, to be impartial and exercise her powers and perform her functions without fear, favour
or prejudice, is quite telling. And the fact that her investigative and remedial powers target even
those in the throne room of executive raw power, is just as revealing. That the Constitution
requires the Public Protector to be effective and identifies the need for her to be assisted and
protected, to create a climate conducive to independence, impartiality, dignity and effectiveness,
show just how potentially intrusive her investigative powers are and how deep the remedial
powers are expected to cut.
[67] The obligation to assist and protect the Public Protector so as to ensure her dignity and
effectiveness, is relevant to the enforcement of her remedial action. The Public Protector would
arguably have no dignity and be ineffective if her directives could be ignored willy-nilly. The
power to take remedial action that is so inconsequential that anybody against whom it is taken is
free to ignore or second-guess, is irreconcilable with the need for an independent, impartial and
dignified Public Protector and the possibility to effectively strengthen our constitutional
democracy. The words ‘take appropriate remedial action’ do point to a realistic expectation that
binding and enforceable remedial steps might frequently be the route open to the Public
Protector to take. ‘Take appropriate remedial action’ and ‘effectiveness’ are operative words
essential for the fulfilment of the Public Protector’s constitutional mandate.
...
[74] This is so because our constitutional order hinges also on the rule of law. No decision
grounded in the Constitution or law may be disregarded without recourse to a court of law. To do
otherwise would ‘amount to a licence to self-help’. Whether the Public Protector’s decisions
amount to administrative action or not, the disregard for remedial action by those adversely
affected by it amounts to taking the law into their own hands and is illegal. No binding and
constitutionally or statutorily sourced decision may be disregarded willy-nilly. It has legal
consequences and must be complied with or acted upon. To achieve the opposite outcome
lawfully, an order of court would have to be obtained.’
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• The Human Rights Commission

The Human Rights Commission must promote respect for and protection of human rights.
While it is true that someone whose rights have been violated may approach a court, many
people do not readily have access to courts. For this reason people may direct complaints
through the more informal and non-judicial procedure of the Commission.
• The Commission for Gender Equality
A specialised commission, the Commission for Gender Equality, has been created to promote
the equality of women and men in South Africa. The Commission monitors legislation,
conducts educational programmes, and investigates complaints on gender and sex
discrimination.
• The Auditor-General
An Auditor-General is appointed to monitor and report on the financial management of
government departments.
• The Electoral Commission
The Electoral Commission is composed of at least three persons. It manages elections and
ensures their fairness.
• The Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities
A Commission to promote respect for the rights of cultural, religious and linguistic
communities was also established by the 1996 Constitution.
• A Commission on the Restoration of Land Rights was instituted to investigate land
claims and to initiate litigation, if necessary. The Restitution of Land Rights Act 22 of 1994,
adopted to regulate the process of land restitution, stipulated that claims could be instituted
for loss of land after 1913 as a result of past racially discriminatory laws or practices. The
original deadline for lodging claims was 1998, but in 2014 the government amended the Act
to allow for a new round of claims. Restitution of land should be distinguished from land
redistribution. Although the government has spent over R20 billion on land restitution, this
process has not contributed much to the alleviation of the clamour for land. The focus has
thus shifted to land redistribution.
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• A Truth and Reconciliation Commission was appointed. Human rights violations

emanating from the conflicts of the past (but after 1 March 1960) were investigated.
Amnesty was granted to persons who made full disclosure of relevant facts. Provision was
also made for reparation to the victims of violations. One of the prominent critiques against
the TRC was its failure to address human rights violations of a socio-economic nature,
including the complicity of corporations in these violations.
Ultimately the government alone cannot be expected to strengthen democracy and promote
human rights. It may be that the government itself is alleged to have infringed human rights in
certain cases. For this reason civil society must also be involved in the quest to cultivate a human-
rights culture. Non-governmental organisations (NGOs) have been active in efforts to dismantle
apartheid in South Africa. They must remain active in the promotion of human rights. Examples of
NGOs in South Africa are Lawyers for Human Rights, the Centre for Applied Legal Studies, the
Centre for Human Rights at the University of Pretoria, the South African Litigation Centre, and the
Legal Resources Centre.
5.3.7 Traditional leaders

In many parts of Africa, including South Africa, traditional leadership has long been a prominent
feature of governance and is still of great importance in many people’s lives, in particular those
living in rural areas. African systems of government through chieftaincy (ubukhosi) predate
European conquest and occupation and the introduction of constitutionalism and democracy as
developed in the West. One of the challenges of an African democracy is how to ensure a synergy
between democratic institutions and traditional leadership in order to create an authentic ‘African
democracy’.
One aspect that complicates the co-existence of the two systems is the view that traditional
leadership is largely dependent on kinship, while leaders in national, provincial and local
institutions are elected democratically. However, it has been pointed out that members of the
family including the extended family often collectively appoint a successor or a hereditary
successor to the throne, and that the king or chief governs as a representative of his or her
subjects.
The Constitution recognises the position of traditional leaders and the validity of indigenous law.
However, traditional leaders exercise their
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functions and indigenous law is applied subject to the Constitution, including the Bill of Rights.
For example, the constitutionality of the rule of male primogeniture was questioned in the
context of traditional leadership in the case of Shilubana v Nwamitwa 2009 (2) SA 66 (CC). The
question was whether the Valoyi traditional community in Limpopo could change this rule in
respect of their community by deciding that a woman should be the next chief (hosi). The question
arose because the incumbent chief died without leaving any sons. The Constitutional Court found
that the community, through its traditional authorities, had the power to develop the system of
traditional leadership to give effect to constitutional values, in particular the right to equality in the
Bill of Rights. It is important to note that the hereditary nature of succession to become a chief
was not an issue in this case.
The National House of Traditional Leaders was established (National House of Traditional Leaders
Act 10 of 1997) to promote traditional leadership within the democratic constitutional dispensation
by for example advising the national government on traditional leadership and indigenous law. Six
provinces (all except Gauteng, the Northern Cape and the Western Cape) established provincial
houses of traditional leaders. The Traditional Leadership and Governance Framework Act 41 of
2003 further regulates traditional leadership as part of our democracy. It confirms the recognition
of traditional leadership and further establishes a Commission on Traditional Leadership.
5.3.8 Languages
The Constitution recognises eleven official languages. They are Afrikaans, English, isiNdebele,
SiSwati, isiXhosa, isiZulu, Sepedi, Sesotho, Setswana, Tshivenda and Xitsonga. The state must
take positive measures to advance indigenous languages which have been disadvantaged in the
past. A Pan South African Language Board has been established to develop the official languages,
as well as Khoi, Noma, San and sign language. This Board must also promote respect for other
languages commonly used in South Africa.
The national and provincial governments must use at least two official languages for the
purposes of government. In its choice of these languages the following factors have to be taken
into account:
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• usage;
• practicality;
• expense;
• regional circumstances.
At the local level municipalities have to take into account the language usage and preferences of
their residents.
5.4 The ‘transformative’ Constitution

From the preceding discussions, we can clearly see the type of socio-political circumstances that
the Constitution aims to move away from. We can also see the type of socio-political system that
the Constitution intends to set up. In a fundamental sense, the Constitution was designed with the
aim of transforming South African society. In this regard, Karl Klare (‘Legal Culture and
Transformative Constitutionalism’ (1998) 14 SAJHR 146 at 150) says the following about his
understanding of transformative constitutionalism:
‘By transformative constitutionalism I mean a long-term project of constitutional enactment, interpretation,
and enforcement committed (not in isolation, of course, but in a historical context of conducive political
developments) to transforming a country’s political and social institutions and power relationships in a
democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise
of inducing large-scale social change through nonviolent political processes grounded in law. I have in mind a
transformation vast enough to be inadequately captured by the phrase “reform”, but something short of or
different from “revolution” in any traditional sense of the word. In the background is an idea of a highly
egalitarian, caring, multicultural community, governed through participatory, democratic processes in both the
polity and large portions of what we now call the “private sphere”.’
To what extent do you believe these aims of transformative constitutionalism have been achieved?
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5.5 Summary
By way of summary, the following characteristics of the South African Constitution can be
identified:
• It is written and is basically contained in a single codified source.
• In general it is inflexible because a 75 per cent majority in the National Assembly and the
support of six provinces in the National Council of Provinces are required to change the basic
points of departure of the Constitution.
• It has federal features in that a system of co-operative government functions at three
levels.
• It has replaced Parliament as the source of sovereign authority.
• It is regarded as being transformative, roughly because it aims to serve as a bridge
between the authoritarian past and the current political culture where there should ideally be
no abuses of power without serious consequences. This transformative nature of the
Constitution is discussed in more detail in the next chapter in which we explore the Bill of
Rights contained in Chapter 2 of the supreme law. Indeed, understanding the function,
purpose and contents of the Bill of Rights is crucial for any transformation-minded lawyer. In
the next chapter we also consider a possible critique of the transformative nature of the
Constitution.
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Chapter 6
The Constitution: Human Rights
Introduction
Human rights (fundamental rights) primarily protect individuals from state power. They are derived
from each human being’s inborn dignity. Every person is born with these rights (hence: ‘human
rights’). On the basis of inherent dignity individuals have a basic claim that their government
should treat them with respect and concern. Human rights law is the means through which the
goal of human dignity is attained. These rights can only be guaranteed fully under a democratic
government. Modern democracies function through chosen representatives who govern the country
on behalf and in the interest of voters. This does not mean that a democratically elected
government has a free hand to adopt measures that would, for instance, require inhabitants of
Gauteng to pay five times more tax than people in other provinces. May the government use the
police force to make people who criticise them ‘suffer’ and then make them ‘disappear’? What if
the people of South Africa all vote in favour of making these people ‘disappear’? Our immediate
reaction is to answer that the legislature and the executive may not do this. Even if the majority of
people were to vote in favour of state-sanctioned murder and torture, it would still not be allowed.
Even a democratically elected government has to respect the individual’s humanity. This core of
humanity which may not be infringed is referred to as fundamental or human rights. These rights
are inalienable and inviolable.
The division of government power into legislative, executive and judicial powers has been
referred to previously. Until 1994 the system of parliamentary sovereignty was in force in South
Africa. That was based on the British constitutional model. According to this model, courts do not
have the capacity to evaluate acts of Parliament for their content. However, to ensure the effective
protection of human rights, courts must have the capacity to review the content of legislation and
executive actions. This means that the sovereignty of Parliament is substituted by a system of
constitutionalism or ‘rule of law’.
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6.1 Philosophical background

The philosophical basis of human rights is often found in natural law. In natural-law thinking,
these fundamental rights are part of a higher set of norms, on which the validity of man-made
laws depends. Sometimes the basis for these rights is found in religion, for example the idea that
humans are made in the image of God and must do unto others as they would like others to do
unto them. After the Middle Ages the source of these rights was increasingly being found in
human rationality.
John Locke (a seventeenth-century philosopher) was the founder of modern human-rights
philosophy. His ideas contributed to the adoption of a Bill of Rights in England in the seventeenth
century. In this document governmental power was restricted constitutionally for the first time. A
philosopher of the eighteenth century who made an important contribution was Jean-Jacques
Rousseau. His thoughts found concrete form in the American Declaration of Independence and the
Declaration of the Rights of Man and Citizen in France during the eighteenth century.
The best idea of the millennium

By Wole Soyinka (a playwright who won the Nobel Prize for Literature in 1986), Mail &
Guardian, 18–24 June 1999
The idea of the American Declaration of Independence — an idea that still lacks full
realisation — that ‘all men are created equal, that they are endowed by their Creator
with certain unalienable rights’ is an adumbration of that original idea from which the
French Revolution obtained its inspiration, one that has continued to convulse the unjust
order of the world wherever it has been grasped: the fundamental rights of man.
It is an idea whose suppression is the main occupation of dictatorship — be these
military or civilian, of the right or the left, secular or theocratic. It is, however, their
nightmare, their single province of terror, one that they cannot exorcise, not even
through the most unconscionable pogroms, scorched-earth campaigns and crimes
against humanity.
It is an idea that has transformed the lives of billions and remains poised to liberate
billions more, since it is an idea that will not settle for tokenism or for relativism — it
implicitly links the liberation of one to the liberation of all. Its gospel of universalism is
anchored in the most affective impulse that cynics attribute to the choices made by
humanity, self-love, but one that now translates humanity as one’s own self.
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After the French Revolution, law was codified first in France and then in many other countries.
Belief in a higher set of norms (human rights) now gave way to the certainty of codified legal
rules. This movement relegated human-rights philosophy to a lesser position. It took the inhuman
infringement of the most basic right to life of millions of Jews and others during the Second World
War to restore natural law and human rights to prominence.
6.2 Internationalisation of human rights

The atrocities committed during the Second World War revealed the necessity for the protection of
individual rights against state power.
• Modern human-rights protection was initiated on an international level. The UN was
founded in 1945 and its purpose was to promote international peace and the protection of
human rights. The General Assembly of the UN adopted the Universal Declaration of Human
Rights in 1948. This document lists the basic rights of each individual throughout the world.
The Universal Declaration was later supplemented by two treaties, called ‘Covenants’, one on
political rights and another on economic, social and cultural rights (both adopted in 1966).
These documents form part of public international law. In the modern era, media
development and progress in the field of communications have led to a shrinking world.
States now show an increasing concern for the destiny of people in other states, and this has
led to an increased internationalisation of standards relating to human rights.
Some subject-bound or group-based human-rights protection is also afforded on the
international level. An example is the protection of women and children in the later part of
the twentieth century. The Convention on the Elimination of All Forms of Discrimination
against Women was adopted by the UN in 1979. The Convention on the Rights of the Child
was approved as an instrument of the UN in 1989. The plight of refugees, foreign workers
(migrant labourers) and persons living with disabilities is similarly addressed in UN multi-
lateral human rights treaties. Once a treaty is ratified (formally accepted) by a state, it
becomes legally binding on that state. South Africa has ratified (and thus become a state
party to) most UN human rights treaties.
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• At the regional level mechanisms and organs also exist to protect human rights. The oldest
and most successful regional system is the European one. Almost all European states are
party to the European Convention on Human Rights (1950). The European Court of Human
Rights enforces the Convention effectively and has already decided numerous cases. The
regional system for human-rights protection in the Americas is known as the Inter-
American system. It consists of a Commission and a court. The Organisation of African
Unity (OAU) in 1981 adopted the African Charter on Human and Peoples’ Rights, sometimes
referred to as the Banjul Charter. (The OAU was replaced by the African Union (AU) in 2001.)
This Charter is unique in its protection of groups or peoples and in placing duties on
individuals and groups. The African Commission on Human and Peoples’ Rights, a quasi-
judicial body responsible for monitoring state compliance with the Charter, was also launched
and has since then taken some significant strides towards improving human rights on the
continent. In 2004, the Commission was complemented by the African Court on Human and
Peoples’ Rights, which has its seat in Arusha, Tanzania. South Africa is a state party to all the
important AU human rights treaties, and has accepted the jurisdiction of the African Human
Rights Court.
• International and regional protection of human rights is only subsidiary. An infringement of
rights can be addressed in the most direct way and with the least delay internally
(domestically) in the courts of each country. The United States was one of the first countries
in which a Constitution with a Bill of Rights was adopted. After the Second World War many
states decided to enshrine fundamental rights in their constitutions. Examples are Germany,
India, Canada, Brazil and Namibia. Individuals within a particular state may approach
international mechanisms, such as the African Commission, for protection only if they have
first exhausted domestic remedies.
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6.3 Generations of rights

Human rights are usually divided into three categories or ‘generations’.
• First-generation rights provide a shield for individuals to protect themselves against state
authority. These rights guarantee freedom from unlawful interference by the state. They
operate on a vertical level between the state and the individual. These rights are political and
civil rights, including the right to life, freedom of speech, of association and religious
freedom. If, for example, a group of people want to launch a newspaper criticising the
government, the government cannot confiscate the publication or close the printing press.
Such actions infringe freedom of speech. These rights have their origin in the struggle
against despotic regimes. They are sometimes known as ‘blue’ rights.
• Second-generation rights are socio-economic rights. In general, these rights do not
require the state to refrain from doing something specific, but to take positive action. These
rights do not give the individual a shield, but rather a sword against the state. Socio-
economic resources are largely controlled by the state. An individual’s claim to these
resources may include the following: the right to reasonable housing, medical service,
education and work. These rights were emphasised after the industrial revolution and
socialist revolutions at the beginning of the twentieth century. These rights are sometimes
referred to as ‘red’ rights. Claims to these rights are frequently met with the argument that
they are unenforceable in a state where insufficient means exist to give them effect.
• Third-generation rights have been identified more recently. These are rights which in
general pertain to groups. They include the right to a healthy living environment, and the
rights to development and self-determination. These rights are sometimes referred to as
‘green’ rights.
This division into three categories does not imply a hierarchy of rights. The division is also not
watertight. A ‘first-generation’ right such as the right to vote requires the state to take positive
action by using resources to ensure that voters can vote. This includes the provision of voting
stations, the printing and distribution of ballot papers, and employing polling officials. In this
respect the right takes on some of the characteristics of a second-generation right.
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See www.jutapassmasters.co.za for an argument that a Universal Declaration of

Planetary Rights should be adopted.
Increasingly, it is being accepted that all rights are interrelated, interdependent and
indivisible. Rather than distinguishing between ‘generations’ of rights, it is more useful to view a
right in relation to the kind of obligation that it imposes on a state. Three main obligations may be
identified: the duty to ‘respect’, ‘protect’, and ‘fulfil’. The obligation to respect a right requires a
government merely to refrain from interfering with an individual’s enjoyment of his rights. The
obligation to protect obliges a government to ensure that an individual’s rights are not curtailed
by third parties (other individuals or non-state actors such as commercial enterprises). The duty to
fulfil places a heavier burden on the government, as it requires the allocation of resources and
other means to ensure that the right is actually made effective. Although socio-economic (‘second-
generation’) rights are most often associated with the obligation to fulfil, it is clear that civil and
political rights, such as the right to a fair trial, also impose the obligation to ‘fulfil’ the right on
governments (for example, requiring them to build courts and employ staff).
6.4 Debate for recognition in South Africa

In the 1910, 1961 and 1983 Constitutions a system of parliamentary sovereignty existed in South
Africa. In terms of this system courts did not have the capacity to test the validity of legislation
such as the Group Areas Act, the Population Registration Act or the Separate Amenities Act. It
follows that the government in power did not favour a human-rights culture or Bill of Rights.
The ANC, on the other hand, had already adopted the Freedom Charter as official party policy.
The Freedom Charter may be regarded as the first important human-rights document originating
from South Africa. Equal rights for all South Africans are guaranteed in the Freedom Charter. It
was this manifesto that led to a split in the ANC between the ‘charterists’ who supported the
principles of non-racialism and the liberal protection of human rights in the Freedom Charter, and
those who believed in African nationalism and the rejection of liberal constitutionalism. The latter
group broke away from the ANC and formed the PAC. (This divergence in thought between the
ANC and the PAC is
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explained in more detail at the end of this chapter where we juxtapose ‘transformative
constitutionalism’ against the ‘decolonial’ approach to dealing with the injustices of the past.)
In 1986 the Minister of Justice requested that the South African Law Commission compile a
report on group and human rights. The Commission’s interim report probably caught the
government unaware, since it found that only individual rights and not group rights could be
guaranteed.
The interim Constitution of 1993 was facilitated by the unbanning of the ANC and the release of
Nelson Mandela in 1990. After that the interim Constitution, which included a chapter on
fundamental rights, was adopted by the multi-party negotiating council in Kempton Park. The 1996
Constitution contains a Bill of Rights which is in broad terms similar to the chapter on fundamental
rights in the 1993 (interim) Constitution.
6.5 An overview of the Bill of Rights

The Constitution consists of 243 sections, grouped into fourteen chapters. One of these, Chapter 2,
comprises a list of human rights, referred to as the ‘Bill of Rights’. Legislation and executive
conduct which unjustifiably interfere with these rights may be declared unconstitutional.
However, in accordance with the principle of ‘adjudicative subsidiarity’ (see Chapter 3
above), courts should declare legislation and rules of the common law unconstitutional only if
those laws cannot be interpreted in line with the Constitution. This is so because section 39
requires courts to interpret all law in the light of the values of the Constitution. A law should be
declared to be unconstitutional only if the wording of that law does not allow for an interpretation
consistent with the Bill of Rights.
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In Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional

Development, and Others 2009 (4) SA 222 (CC), the constitutionality of a provision of
the Criminal Procedure Act that allows children to testify through intermediaries was
under consideration. The argument before the court was that the provision is too
restrictive, because it allows a child to testify through an intermediary only if it appears
to a court that a child-witness would be exposed to ‘undue stress or mental suffering’ if
he or she were to testify in person. The court found that there was no need to declare
the provision unconstitutional, as it could and should in each particular case be
interpreted to give effect to the best interests of the child, which is a value enshrined in
the Constitution in section 28.
Legislation and executive conduct may also be in conflict with provisions in other chapters of the
Constitution. Section 2 of the Constitution stipulates that the whole Constitution is ‘the supreme
law of the Republic’. For example, Chapter 4 prescribes the procedure which Parliament has to
follow when amending the Constitution. If Parliament does not comply with these procedures, such
amendments would be unconstitutional.
Another example is the national government’s interference in provincial appointments of

members of a demarcation commission, which was disputed in Executive Council,
Western Cape Legislature, and Others v President of the Republic of South Africa and
Others 1995 (4) SA 877 (CC). A proclamation issued by the President was found to be in
conflict with constitutional prescriptions in Chapter 15 of the interim Constitution.
A total of 27 sections containing rights are listed in the Bill of Rights. In essence, civil and
political rights are protected. The first right mentioned is the right to equality before the law
(section 9). The right to equality does not, however, exclude the possibility of affirmative action.
After that the rights to life, to dignity, to freedom and security and personal privacy are
guaranteed (sections 10–14). The traditional freedom rights are also listed: religious freedom,
freedom of expression, freedom of association and freedom of movement and residence, and of
trade (sections 15–18, 21, 22). In the South African context, the right to citizenship, to vote and
other political rights are also important and are set out in sections 19 and 20. Access to courts and
information (sections 32 and 34) are guaranteed as well as fairness in administrative justice
(section 33).
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The most detailed article deals with the specific rights of detained, arrested and accused persons
(section 35).
The Constitution also makes extensive provision for socio-economic rights. These include the
right to basic education (section 29), of access to adequate housing (section 26) and of access to
health care services (section 27). Only the right to basic education and some socio-economic
rights of children and detainees are stated in unqualified terms and can be enforced directly. There
is no direct right to housing and health care services, but only a right of access to housing and
health care services. This does not mean that everyone may now claim a house from the
government, but that the obstacles which have prevented people from obtaining houses should be
removed. The duty of the state is to take reasonable legislative and other measures to achieve the
progressive realisation of these rights. This must be done within the available resources of
the state. Government departments must provide the Human Rights Commission with information
about measures it has taken towards the progressive realisation of these rights every year.
The right to an environment that is not harmful to one’s health or well-being (section 24) is an
example of a third-generation right. A duty is placed on the state to prevent pollution (amongst
other things) for the benefit of present and future generations.
Children are afforded special protection. The rights of children are guaranteed in section 28.
Section 28(2) provides that a child’s best interests ‘are of paramount importance in every matter
concerning the child’. This protection implies that socio-economic steps must be taken by the
government. Every child has the right to basic nutrition, health and social services. A child is
defined as a person younger than 18 years.
See www.jutapassmasters.co.za for the text of the Bill of Rights.
The South African courts accept that the division of rights into three ‘generations’ does not apply
rigidly. Take one example of a so-called first generation right, the right to vote. This right may be
associated mostly with the obligation on the government to respect the right by not preventing
any of its adult citizens from casting their votes. However, the right also imposes the duty on the
state to ‘fulfil’ the right, as the case of August v Electoral Commission and Others 1999 (3) SA 1
(CC) (para 16) illustrates:
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‘The right to vote by its very nature imposes positive obligations upon the legislature and the executive. A
date for elections has to be promulgated, the secrecy of the ballot secured and the machinery established for
managing the process. For this purpose the Constitution provides for the establishment of the Commission to
manage elections and ensure that they are free and fair. . . . This clearly imposes an affirmative obligation on
the Commission to take reasonable steps to ensure that eligible voters are registered.’
6.6 Right holders and duty bearers

Section 8 of the Constitution is the relevant section that bestows rights and duties. It reads as
follows:
‘8 Application
(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary
and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking into account the nature of the right and the nature of any duty
imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in
accordance with section 36 (1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the
nature of the rights and the nature of that juristic person.’
The first question is: Who may claim these rights? (In other words, who are the holders of these
rights?)
All persons in South Africa, and not only South African citizens, are holders of most of the
rights in the Bill of Rights. Access to the courts is made as wide as possible. For instance, it is not
necessary that only the person whose rights have been directly affected should approach the
court. Section 38 of the Constitution makes it clear that it is possible that a class action may be
brought. A class action is brought by one
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member of a group when members of a broad community’s interests are affected. In the case
where inhabitants of a community are affected by an environmental disaster such as nuclear
pollution, a class action for example may be instituted. A person may also act in the public
interest, for example, if someone wants to prevent the state from destroying police files.
Juristic persons (such as companies) are also entitled to the rights in the Bill of Rights in
certain instances. This will be the case when the nature of the right and the nature of the juristic
person allow it. It will, for instance, be nonsensical to argue that a company has a right to life, but
it may make sense to argue that a company has the right freely to express itself (for example,
through advertising).
A second question is: Against whom can these rights be claimed? (In other words, who are the
duty-bearers of these rights?)
The rights in the Bill of Rights can in the first instance be claimed against the state, but also in
some instances against non-state actors including private persons.
As human rights operate primarily between the individual and the state, the rights may be
claimed against the legislature and executive and all other organs of state. This means that the Bill
of Rights has full vertical application. The will of Parliament is subject to the Constitution. This
means that laws of the central, provincial and local governments may be declared unconstitutional
and may be removed from the statute books if they conflict with the Constitution. The conduct of
government officials must also not conflict with the Constitution. If a government official infringes
an individual’s rights, a court may invalidate such conduct. If the conduct amounts to an offence,
the official may be prosecuted later in the ordinary criminal courts.
In some instances, the Bill of Rights may bind non-state actors, such as individuals. Full
horizontal application means that an individual may enforce these rights directly against another
person. Section 8 of the Constitution states that natural persons and juristic persons (that is, non-
state entities) are bound by the Bill of Rights to the extent that it is applicable for them to be
bound thereby. In deciding whether this is the case, a court must take into account the nature of
the right and the nature of the duty imposed by the right. For example, the right to citizenship
(section 20) is not of such a nature that it can be applied between individuals.
But the right to equality (section 9) is always horizontally applicable, as confirmed in section
9(4), stating that ‘no person may unfairly discriminate against anyone’.
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If the owner of a private restaurant denies access to a black person on the basis of his
race, the question arises whether that person may enforce his constitutional right to
equality against the restaurant owner. A court will find that the right has full horizontal
application and that the restaurant owner’s conduct was unconstitutional in that he
violated the black person’s right not to be discriminated against unfairly.
Section 9(4) also requires that national legislation be enacted to prevent or prohibit unfair
discrimination. Such legislation was passed in the form of the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000.
Section 39(2) states that when a court develops the common law or customary law, and when it
interprets legislation, it must promote the spirit, purport and objects of the Bill of Rights. Many
private-law relationships are regulated by common law and customary law. Private-law concepts
such as reasonableness and public morals will be re-interpreted in view of the spirit of the Bill of
Rights.
6.7 Limitations of rights

Do these rights function absolutely? Logic shows that this cannot be the case. It is clear that
freedom of speech does not mean that someone may say just anything he likes. For instance, a
person may not defame another or incite others to violent revolution. Take abortion as another
example. On behalf of the unborn child an argument that allowing abortion is unconstitutional can
be based on section 11 (right to life). The pregnant woman may also base a claim, that it is
constitutional to allow for a choice to terminate pregnancy, on the right to her bodily and
psychological integrity (section 12(2)(a)). Neither the right to life nor the right to bodily integrity
can exist in absolute terms. The two rights will have to be weighed against each other. Thus, the
relationship between rights may constitute a limitation on one of them.
The formulation of the right itself may imply a limitation. An example of such an internal
restriction is found in section 9(3): no ‘unfair discrimination’ will be tolerated. This implies that
some forms of ‘discrimination’ may be regarded as fair. An example is that children under 18 are
not allowed to vote.
Under exceptional circumstances a state of emergency may be declared. A state of emergency
may be declared only if certain strict
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requirements are met (section 37). If a valid state of emergency exists, some of the rights in
Chapter 2 of the Constitution may be suspended. Some rights (such as the right to human dignity
and to life) are non-derogable. This means that these rights may not be suspended even for the
duration of a state of emergency.
The most important provision related to limitation of rights in the Bill of Rights is found in
section 36 (the ‘limitation clause’). Section 36 reads as follows:
‘36 Limitation of rights

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to
the extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all relevant factors, including
—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in the Bill of Rights.’
All rights may be limited (or restricted), but only if the limitation (or restriction) conforms with
section 36, in that it meets the following requirements:
• It must be in the form of a law which is generally applicable.
• It must, in terms of its substance, be reasonable and justifiable to limit the right in an open
and democratic society based on the values of human dignity, equality and freedom.
• A proportionality test must be applied to determine whether the limitation is reasonable
and justifiable. Rights may only be limited by provisions which serve an important societal
objective (or goal). There must be a balance (or ‘proportionality’) between the importance of
the objective of the limitation and the extent to which the right has been limited (or
restricted). The question should always be whether there are not less restrictive means
available to achieve the purpose of the limitation.
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If these requirements are met, the Constitution allows the limitation.
Example
The case of De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and
Others 2004 (1) SA 406 (CC) serves as an example of the application of the two-stage
analysis.
Section 27(1) of the Films and Publications Act 65 of 1996 provides as follows:
‘A person shall be guilty of an offence if he or she knowingly (a) creates, produces, imports or is
in possession of a publication which contains a visual presentation of child pornography; or (b)
creates, distributes, produces, imports or is in possession of a film which contains a scene or
scenes of child pornography.’
In section 1 of the Act, child pornography is defined as including ‘any image, real or
simulated, however created, depicting a person who is or who is shown as being under
the age of 18 years, engaged in sexual conduct or a display of genitals which amounts to
sexual exploitation, or participating in, or assisting another person to engage in sexual
conduct which amounts to sexual exploitation or degradation of children’.
Charged under section 27(1) of the Act, a film producer raised objections regarding
the constitutional validity of that provision.
The Constitutional Court adopted a two-stage approach to the analysis of the
constitutionality of section 27(1).
Phase 1: Has the applicant’s right been violated (‘limited’ or ‘restricted’)?

In the first phase, the court found that section 27(1), which criminalises the creation,
production, importation, distribution and possession of the material falling within the
definition of child pornography, constitutes a prima facie limitation on the film producer’s
right to freedom of expression and on his right to privacy. In this phase, the onus to
show a prima facie violation rests on the applicant.
Phase 2: If the right has been limited (or ‘violated’), is this limitation justifiable
in terms of section 36?
The court then proceeds to the second stage, to determine whether the limitation is
justifiable under section 36 of the Constitution. Here, the onus to convince the court of
the justifiability of the limitation lies on the respondent, which is usually the state.
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A limitation first of all has to be in the form of ‘law of general application’. In De

Reuck, the court found that section 27(1) satisfied this requirement, in that it is
sufficiently clear and applies to everyone.
The court therefore proceeds to the substance of the provision: Is section 27(1) (the
limitation) reasonable and justifiable in a democratic society? In answering this question,
the court uses a proportionality test, weighing up the importance (and weight) of the
right and the extent of its violation against the importance (or weight) of the reasons
invoked to justify the limitation of the right(s). On the one hand: Although freedom of
expression and privacy are important rights, the limitation of the right caused by section
27(1) does not implicate the core of these rights. In the court’s words (at para 59):
‘Expression that is restricted is, for the most part, expression of little value which is found on the
periphery of the right and is a form of expression that is not protected as part of the freedom of
expression in many democratic societies.’
On the other hand: The court observes that the purpose of the legislation (at para 61):
‘is to curb child pornography which is seen as an evil in all democratic societies. Child
pornography is universally condemned for good reason. It strikes at the dignity of children, it is
harmful to children who are used in its production, and it is potentially harmful because of the
attitude to child sex that it fosters and the use to which it can be put in grooming children to
engage in sexual conduct.’
Weighing up these factors, the court concludes that the relatively narrow infringement of
expression and privacy is outweighed by the important legislative purposes served by
section 27(1), and therefore finds that section 27(1) is in line with the Constitution (and
not unconstitutional, as the publisher argued). Section 27(1) of the Act is therefore
constitutionally valid and will remain in force.
6.8 Interpretation of the Bill of Rights

The rights in the Bill of Rights must be interpreted differently from ordinary legislation. A literal
approach should not be followed. The underlying values and objectives of the Constitution must be
given effect. Section 39 deals with the interpretation of the Bill of Rights:
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‘39 Interpretation of Bill of Rights

(1) When interpreting the Bill of Rights, a court, tribunal or forum
(a) must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the extent that they are
consistent with the Bill.’
These guidelines are given:

• In the interpretation of a specific right the values of our new society must be promoted.
These values are openness, democracy, freedom, equality and human dignity. The
spirit of the Constitution is characterised by these values. The Constitution has been
described as a bridge between a previous dispensation of authoritarian government and a
culture of openness and justification. It is also a bridge between a culture of discrimination
and a culture of tolerance.
It is clear that this may in some instances be quite a difficult task because these values may
be in conflict with one another. Its drafting history shows that the ultimate content of the Bill
of Rights is in many ways the product of compromise. The most important difference in
emphasis was that between liberation (based on the underlying value of equality) and
liberty.
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The property clause (section 25) is a good example of this compromise and resulting
tension. In principle, property rights are guaranteed. Property may, however, be
expropriated. But in those cases, equitable compensation should be paid. In deciding
what equitable compensation will be, factors to be taken into account include the history
of the property’s acquisition and its market value. The history of acquisition may include
the fact that people had been forcibly removed in terms of the Group Areas Act.
Emphasis on this factor will highlight the plight of those who have been deprived of their
property and will enhance the value of liberation and equality. Emphasis on the market
value, on the other hand, will allow market forces to determine the price. This will place
emphasis on individual freedom (liberty) as the solution to the problem.
Another tension, that between feminists and the supporters of the traditional patriarchal
society, was not resolved. It led to a provision that indigenous law must be developed in
accordance with the Constitution.
• Relevant public international law must be taken into account. Public international law
primarily consists of rules and norms in force between states on the international level. UN
and AU human rights treaties fall into this category.
• Foreign law, such as the legislation and case law of India or Namibia, may be taken into
account (see Chapter 15).
The Preamble to the Constitution is a further aid to constitutional interpretation.
6.9 Remedies for human rights violations

Section 38 of the Constitution prescribes that an ‘appropriate’ remedy should be granted
following a finding that a right has been violated. When a statute has been found to be
unconstitutional, the appropriate remedy is its invalidation. The effect of such an invalidation
may be restricted in temporal terms by suspending it for a fixed period, for example, to provide
Parliament with an opportunity to re-enact the statute before a stipulated date. The invalidation of
a statutory provision may also be restricted in respect of its substance if a court orders that certain
words or phrases must be ‘read into’ the statute to rectify the unconstitutionality of the provision.
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It is also sometimes appropriate that a court makes a declaration of rights only. An award of
damages to compensate for unconstitutional conduct is also possible.
A court may also order an interdict, for example to compel a government official to take certain
steps (a mandatory interdict) or to prevent the official from acting in an unconstitutional way
(prohibitory interdict). It is also possible that a court may order an interdict and then itself play a
role in supervising compliance with the terms of the interdict (a ‘structural’ or ‘supervisory’
interdict). The Constitutional Court is reluctant to adopt such interdicts because this course of
action requires that the court becomes involved in the day-to-day operations of government, and
because it may be perceived as prescriptive and as constituting interference with the mandate of
the executive, thus disregarding the principle of the separation of powers.
However, the advantage of a supervisory interdict is that it allows for effective supervision to
ensure that the state complies with its obligation of ‘fulfilling’ rights, in particular socio-economic
rights.
A striking example is found in the case of Black Sash Trust v Minister of Social
Development and Others (Freedom Under Law Intervening) 2017 (3) SA 335 (CC). The
constitutional right at stake here is the right to access to social security, provided in
section 27(1)(c) of the Constitution. Back in 2012, the South African Social Security
Agency (SASSA) with the approval of the Minister of Social Development concluded a
contract with Cash Paymaster Services (CPS) in terms of which CPS would be responsible
for paying social grants to beneficiaries (for example, elderly people who draw old-age
pensions from the state). In 2013, the Constitutional Court found that the contract was
irregular and thus had to be set aside. However, it suspended its declaration of invalidity
until 2016 to give SASSA a proper chance to enter into a valid contract with another
service provider. Come 2016, SASSA had not yet taken the necessary steps to enter into
a new contract. It seemed as if there was no plan to ensure that the social grants would
be paid to beneficiaries. To protect the social grant beneficiaries, the Constitutional Court
declared an extension of the order for invalidity of the contract with CPS so that the
current system for grant payments would continue. (The court did this subject to CPS not
making a further undue profit from this contract!) Additionally, the Constitutional Court
held that SASSA had been reckless in its failure to take appropriate steps to ensure the
payment of the grants in future, which posed a massive risk to the grant beneficiaries.
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As such, the Constitutional Court would exercise supervisory jurisdiction over the
contract. Practically, this meant that audits had to be done and filed with the Court, and
the Minister and SASSA had to provide regular affidavits in which they would state their
plans and progress related to a new payment system. In this way, the court would have
oversight over the process going forward to ensure that the government did not further
neglect its duties.
6.10 Examples of the impact of the Bill of Rights on South African

law
Court decisions on the Constitution have already led to significant changes in certain fields of law:
• In terms of the Criminal Procedure Act the death penalty was a possible form of
punishment. In S v Makwanyane and Another 1995 (3) SA 391 (CC) this was declared
unconstitutional as it conflicts with the right to life and the prohibition against cruel, inhuman
or degrading punishment in the interim Constitution. Since this decision the death penalty
can no longer be imposed or carried out.
• Prior to 27 April 1994 courts could impose corporal punishment on juveniles. After the
decision in S v Williams and Others 1995 (3) SA 632 (CC) it is no longer possible as it
conflicts with constitutional rights and values.
• As discussed on previous occasions in this book, the common-law definition of marriage that
only entitled heterosexual couples to get married was declared unconstitutional in Minister of
Home Affairs and Another v Fourie and Another (Doctors for Life International and Others,
Amici Curiae); Lesbian & Gay Equality Project and Others v Minister of Home Affairs and
Others 2006 (1) SA 524 (CC). Subsequent to that decision, Parliament passed the Civil Union
Act 17 of 2006 which effectively provides for same-sex marriage.
See www.jutapassmasters.co.za for an excerpt from Minister of Home Affairs v Fourie

and the Civil Union Act and related questions.
• When it was adopted, section 78(2) of the Promotion of Access to Information Act 2 of 2000
allowed someone whose request for information under the Act was refused only 30 days to
approach a
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court for legal redress. In Brümmer v Minister for Social Development and Others 2009 (6)
SA 323 (CC), the Constitutional Court found that this time period was too restrictive and
therefore violated the right of access to court, and further found that the limitation was
unjustifiable under section 36(1) of the Constitution. The court declared the provision invalid,
but suspended the invalidation for 18 months to enable Parliament to enact amending
legislation. Pending the enactment of legislation by Parliament or the expiry of the eighteen-
month period, the time period in section 78(2) is extended to 180 days.
However, there are also numerous instances in which the courts confirmed the constitutionality of
the current legal position:
• Section 10 of the South African Schools Act prohibits corporal punishment in schools. A
Christian association brought an application to have section 10 declared unconstitutional.
According to the association, it is unconstitutional to prohibit conduct at independent schools.
The Constitutional Court found that section 10 is a justifiable limitation to the right to
freedom of religion (Christian Education South Africa v Minister of Education 2000 (4) SA 757
(CC)). Consequently, the application failed.
• The constitutionality of the main features of the Choice on Termination of Pregnancy Act
92 of 1996 was confirmed in Christian Lawyers Association of South Africa v Minister of
Health 1998 (4) SA 1113 (T). The High Court found that a foetus cannot be a bearer of the
right to life, because a foetus does not form part of ‘everyone’ (as used in section 11 of the
Constitution).
The Bill of Rights also impacted on the lives of the poorest in our society:
• A local authority evicted a group of squatters who settled on private land earmarked for low-
cost housing. The squatters argued that the state had not complied with its obligation to
provide ‘access to adequate housing’ (section 26(1) of the Constitution). The Constitutional
Court found that the measures taken by the state were not ‘reasonable’ (section 26(2)).
Consequently, the court ordered the state to devise and implement a comprehensive
programme containing measures directed at addressing the position of people without access
to land and without a roof over their heads (Government of RSA v Grootboom 2001 (1) SA
46 (CC)).
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• The Constitution also benefited displaced families. In 2000, floods caused widespread
damage in South Africa and rendered many people homeless. The government appointed a
committee to coordinate its response. One of the decisions taken by the committee was to
establish a transit camp near Leeuwkop Prison to accommodate flood-victims from
Alexandra. In Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3)
SA 1151 (CC), the respondent, representing residents in the vicinity of Leeuwkop, challenged
this decision, alleging that the camp would adversely affect their property values and
environment. The Constitutional Court rejected the challenge to the government’s decision to
establish the transit camp. It found that the decision to establish the camp did not infringe
the rights of residents under environmental and land legislation, and confirmed that the
Alexandra flood victims had a constitutional right to be given access to housing. The court
affirmed the decision in the Grootboom case, namely that the government has a
constitutional duty to provide relief within its available resources to the homeless and those
in crisis because of natural disasters.
See www.jutapassmasters.co.za for a related newspaper article and questions.
6.11 Transformative constitutionalism: a post-liberal Constitution?

The Bill of Rights is central to the character of the Constitution. Based primarily on the rights in the
Bill of Rights, the Constitution is sometimes referred to as transformative, post-apartheid or post-
liberal.
The Constitution is transformative in its efforts to replace a race-based, sexist and
authoritarian constitutional dispensation with one in which the principles of non-racialism, non-
sexism and justification of power prevail. The transformative aim of the Constitution is reinforced
by the rights contained in the Bill of Rights, through its focus on the values of human dignity,
equality and freedom, and by the principle that rights may only be limited if it is reasonably
justifiable in an open and democratic society based on these values. The inclusion of justiciable
socio-economic rights underlines that transformation also has an important material component,
directed at poverty eradication.
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It is in particular the emphasis on equality and the extension of the right to vote to all South
Africans that give the Constitution its post-apartheid character. In addition, numerous new
institutions have been created. One may also argue that the concept ‘post-apartheid’, which recalls
the apartheid system, is inappropriate because our society today contains elements of continuity
with the past. The Constitution is not a revolutionary document, as it came about as a result of
negotiation and not violent revolution.
The Constitution, and specifically the Bill of Rights, is sometimes described as ‘liberal’. This term
may refer to a tolerant attitude towards social issues, or to a political philosophy that gives
primacy to the individual and personal freedom, that maintains a division between the public and
private spheres, and interferes minimally in citizens’ lives. The Bill of Rights is post-liberal in that
it does not only operate on the vertical level, but also horizontally. It is concerned not only with the
power of the state, but also of individuals. A further post-liberal element is the inclusion of socio-
economic rights, which indicates that the state has an obligation to become involved in the
material fate of its subjects. The Constitutional Court also clarified that the Constitution does not
only require formal equality between people, but also substantive equality. On this basis, the
Constitution authorises measures to achieve ‘affirmative action’.
See www.jutapassmasters.co.za for a more comprehensive discussion of the Constitution

as ‘post-liberal’ by American jurist Karl Klare.
6.12 Transformative constitutionalism versus decolonisation

If we accept that the Constitution is transformative in nature, the next question that arises is
whether it can also be labelled as ‘decolonial’. If we understand the term decolonisation very
loosely (as some people do), we might conclude that South Africa broke free from official colonial
rule with the forming of the Union in 1910 and therefore that South Africa has been decolonised
for a very long time. If one understands the term slightly less loosely (as some people do), one
might argue that the Constitution aims to address the historical injustices, promote social justice,
and bring about equality. As such, some would argue that the
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Constitution is decolonial because it aims to address the injustices and inequalities that
colonisation set up.
However, the term decolonisation should not be used loosely in either of the senses just
discussed. Even though it is surely a contested term, decolonisation is a philosophical school of
thought with a history of scholarship. As such, it is not a term that should be flung around to mean
everything and anything.
Tshepo Madlingozi (‘Social Justice in a Time of Neo-Apartheid Constitutionalism: Critiquing the
Anti-Black Economy of Recognition, Incorporation and Distribution’ (2017) Stell LR 123), a South
African legal philosopher, has recently put forward the argument that the Constitution is indeed
transformative but that transformative constitutionalism and decolonisation are not synonyms. In
this regard Madlingozi argues (at 123):
‘. . . post-1994 constitutional re-arrangements are transforming society in ways that do not instantiate a
fundamental rupture with the inherited, sedimented and bifurcated social configuration.’
A society that is bifurcated is divided into two. For Madlingozi, the bifurcation splits the ‘zone of
beings’ from the ‘zone of non-beings’. This is a split that was brought by conquest: the colonisers
saw themselves as civilised and classified the First Nation peoples as uncivilised — basically non-
human — and as such the colonisers believed that they had a right to conquer the land and space
that is today known as South Africa. Madlingozi argues that the Constitution and its transformative
Bill of Rights and its working towards social justice did not bring about a real change in terms of
how our society is divided. As such, it cannot be labelled as decolonial. He explains (at 123):
‘In South Africa today, an anti-black bifurcated societal structure can, thus, be discerned in which, generally
speaking, on “this side” white people and the black middle class are governed through a system of liberal
democracy, and on the “other side”, patronage, appropriation, and repression remain politics du jour. Thus,
even under conditions of a constitutional democracy, a culture of human rights, and for our purposes, most
pertinently the hegemonic discourse of social justice, “. . . if you are poor and black you can be killed with
impunity. . .”.’
So what would a decolonial constitution have looked like? Madlingozi contends that while the ANC’s
plan was for the transition to be towards liberal democracy and human rights, the PAC’s plan was
decisively
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decolonial. As such, a decolonial transition would have involved promoting African nationalism. He
sums up the call of the PAC as follows (at 132):
‘African nationalists set as their goals national independence and the right of self-determination of conquered
people. Africanists, thus, rejected the New Africans’ programme of “interracial social incorporation” seeing it
as a ploy for assimilation and perpetual colonisation. According to the PAC achieving national independence
required a programme of national consciousness through which Africans were to reclaim their humanity for
themselves, build a multi-ethnic African unity, destroy white supremacy, and struggle for the dissolution of
the settler-state through the restoration of the sovereignties of subjugated kingdoms and the return of
dispossessed land.
The Africanists conceived the fundamental injustice bedevilling Africans as the twin problem of “land and
status”. Unlike the ANC, the PAC’s point of departure was that South Africa was a colony and that post-
colonialism begins with the return of “stolen” land and the destruction of “the demi-god of white supremacy”.
The discourse of incorporation into the extant state and society was, therefore, abhorred in PAC lexicon.
Similarly, Africanists rejected the ANC’s liberal politics of “peaceful recognition” of the humanity and rights of
Africans. The PAC’s policy of “determined non-collaboration” dictated that they do not make any demands for
freedom and human rights against the colonial state, let alone seek human recognition from “oppressors”. In
other words, the PAC jettisoned politics of justice-in-society, and even distributive justice in a transforming
society, and rather advocated for the “complete overhaul of the present structure of society”.’
The contents of the post-conquest Constitution in the decolonial paradigm would thus involve the
following (at 141–142):
‘Ramose’s starting point is that only an “authentic constitution” would terminate this putative right of
conquest. An authentic constitution is post-abyssal because it constitutes — etymologically from constituere
meaning to stand together. Any constitution worthy of the designation must, therefore, re-constitute society
in a way that ends the bifurcated world. In the second place, for Ramose, as is the case with Sobukwe, a
post-colonial constitution must “constitute”, in the sense of founding an African home for all and
correspondingly undoing the settler-created house. In this regard, Ramose advocates not just for a post-
segregationist constitution but also a post-conquest constitutional dispensation. According to Ramose, a post-
conquest constitution is one that leads to “the restoration of complete, unencumbered and integral
sovereignty to the conquered as at conquest . . . [and] . . . since the concept of sovereignty without territory
is empty, it follows that
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this exigency of restoration entails by necessity the return of the land to the indigenous people”.
...
Ramose asserts that the move from parliamentary sovereignty to constitutional supremacy consolidated
historical injustices, and is, thus, tantamount to a “second conquest”, a conquest by consent. From the
perspective of a decolonisation critique, the transmutation of ill-gotten property into constitutionally protected
property via a supreme constitution obviates the decolonisation project. From this perspective, therefore, the
post-1994 move from parliamentary sovereignty to constitutional supremacy was motivated by the need to
ensure that once the barbarians are let through the gate, their numerical superiority would not dislodge the
Line and the historical benefits that accrued as a result. Ramose, therefore, argues that the Constitution
constitutionalised the right of conquest.
In the logic of this blood-soaked “right”, colonial conquest by the Dutch and the British meant that
conquered people suffered “irreversible and permanent” loss of sovereignty and land. It is Ramose’s
contention that the Constitution, therefore, shows a bias towards Eurocentric legal doctrine, and the putative
right of conquest, because it aligns itself with the doctrine of extinctive prescription in terms of which after a
passage of some time illegally obtained property becomes lawful. This principle conflicts with the fundamental
legal doctrine of ubuntu constitutional law which commands that molato ga o bole — meaning that an
injustice remains an injustice until it is rectified. The result is that de facto and de jure doctrine of non-
reversibility with respect to loss of territory applies. Consequently, a land redistribution regime based, in
practice, on a willing-seller-willing-buyer principle obtains. The result is that only a puny percentage of
commercial farmland has been restored through land restitution. Most pertinently, more than two decades
since the advent of transformative constitutionalism the settler (dispossessing) – native (dispossessed)
relation, thus, remains.’
From the above, it should be clear that even though the South African Constitution can
comfortably be described as being transformative, it is a far cry from being a decolonial one.
Whether this is a desirable state of affairs or not, is up to you to decide.
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Chapter 7
Private Law
Introduction
In Chapter 4 above we pointed out the theoretical distinction in substantive law between public
and private law. We also highlighted the interdependence between private law and the law of civil
procedure and between criminal law and the law of criminal procedure. This interdependence will
be the theme of the next four chapters. In this chapter we will explain certain key aspects of
private law. This will be followed in Chapter 9 by a more practical discussion of how a private-law
dispute between persons is solved by means of the (adjective) law of civil procedure. Then, in
Chapter 10, aspects of criminal law will be discussed, followed by Chapter 11, in which we will look
at the way in which a criminal case is conducted, according to the (adjective) law of criminal
procedure.
7.1 Distinction between positive law and law in the subjective sense
Positive law (law in the objective sense) is the whole body of legal rules that applies as a system in
South Africa. In English we simply speak of ‘the law’. It is a comprehensive term to indicate all the
rules that regulate our lives on a day-to-day basis. In the widest sense of the word, positive law
therefore encompasses the whole South African (national) legal system. National law can be
classified into different divisions, principally public and private law. For example, when we say that
the law stipulates that murder is a criminal offence, or that the law allows me to buy a bicycle, we
mean the rules of positive law.
Positive law regulates the relationships between persons by means of the rules of private law. In
Chapter 4 we indicated that private law has historically been seen as that part of law that
regulates the legal relationship between non-state actors. Such persons do not live in isolation on
an island. They lead their lives in a broad society together with millions of others. All persons have
their own particular interests and, therefore, the chances of conflict and dispute between them are
high. The purpose and task of private law is to harmonise the relationships between persons in
such a way that society will be orderly and peaceful. Private law, as we currently conceive it, for
example, sees to it that:
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• persons respect each other’s property;

• they abide by their agreements (contracts) and will make good the damage that they
unlawfully cause others;
• they respect each other’s intellectual property such as literary works and inventions;
• they respect each other’s personalities and privacy.
The way in which private law regulates the relationships between persons is by means of the
concept of subjective rights. Private law determines that persons can have subjective rights with
respect to certain objects, and that other persons have the duty to respect those rights. Thus,
subjective rights apply between persons. When we say ‘This motor vehicle is mine, I have a right
to it and others must respect my right’, we are referring to a right in the subjective sense. Later
we shall see precisely how subjective rights operate.
The distinction between positive law and the law in a subjective sense depends on the specific
angle from which law is viewed. Law seen as a collection or body of rules is positive law. It means
the law as a normative system. But law viewed as the different rights and duties which apply
between persons is law in the subjective sense.
Before we look at subjective rights and the way in which they function, we must first establish
what exactly is meant by the term ‘person’ (who is entitled to these rights).
https://web-s-ebscohost-com.ukzn.idm.oclc.org/ehost/ebookviewer/ebook/bmxlYmtfXzI1MjQwODJfX0FO0?sid=56f8b898-fd20-45f9-90a2-4e7b2d… 1/7
7.2 Legal subjects

We have stated several times that private law concerns the relationships between ‘persons’.
Persons therefore are the subjects of private law. Positive law enables them to have subjective
rights and duties with respect to each other and with respect to certain objects. But the term
‘person’ does not only indicate a human being. Positive law interprets the term ‘person’ in a wider
sense than only to indicate a human being. An association of people or body (called a juristic
person), such as a company or a university, may also be a person and can have the same
subjective rights and duties as individuals do. Therefore, the correct legal term to indicate a
person in private law is a ‘legal subject’. The term ‘legal subject’ is defined widely enough to
embrace human beings as well as juristic persons. Therefore, a legal subject is anyone or anything
that can be the bearer of rights and duties. There are thus two kinds of legal subjects:
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• human beings (natural persons); and

• juristic persons.
A juristic person is a group or an association of people such as a company, a university, a
bank, a political party, a trade union or the state. Positive law regards the association as
such, or in itself, as a legal subject. This means that the juristic person is an artificial or
abstract person which stands apart from the people who are members of it. The juristic
person in itself can have rights and duties that have nothing to do with its members. A
church or university can, for instance, conclude a contract of letting and hiring with someone.
It is then the church or the university which has to pay the rent and not its members. Juristic
persons, therefore, have the same role as human beings in the area of private law. However,
they cannot do everything that human beings can do. Juristic persons can conclude
contracts, commit delicts, be the owner of something and inherit something, but they
obviously cannot enter into marriage. A juristic person participates in legal activities through
its organs. A religious organisation does this through its council, a university through the
rector, a company through its directors. An example of a juristic person taking part in private
law in the same way as a human being is the civil case Blacker v University of Cape Town
1993 (4) SA 402 (C) where Blacker (a natural person) and the University of Cape Town (a
juristic person) are on equal footing.
The fact that both natural and juristic persons are legal subjects in South African law is confirmed
by section 8(2) of the Constitution, which says:
‘A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is
applicable, taking into account the nature of the right and the nature of any duty imposed by the right.’
Section 8(4) further says:
‘A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the
rights and the nature of that juristic person.’
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Debating the idea of subjectivity

• The current position in South African law is that animals are not regarded as legal
subjects. Instead, they are viewed as legal objects. However, animal rights activists
argue that animals should be recognised as legal subjects with rights. Read David
Bilchitz’s article entitled ‘Does Transformative Constitutionalism Require the
Recognition of Animal Rights?’ (2010) South African Public Law 267 and debate this
issue in class.
• The current position in South African law is that legal subjectivity of natural persons
only comes into existence at the moment that a person is born alive, and it comes
to an end on the day that the person dies. Read Ilze Keevy’s article ‘The
Constitutional Court and Ubuntu’s “Inseparable Trinity”’ (2009) Journal for Juridical
Science 61 especially from page 74 onwards, paying close attention to the thought
of the African philosopher Mogobe Ramose, and debate in class whether the unborn
and the living dead (ancestors) should be granted legal subjectivity.
7.3 Capacities
Legal subjects can participate in private law activities, but they must have certain abilities in order
to participate. A 7-year-old child is a human being and therefore a legal subject. However, such a
child cannot marry. In other words, she does not have the ability to participate in all legal
activities.
Positive law provides legal subjects with the ability to participate in legal activities. Such abilities
are called ‘capacities’ and we differentiate between four types of capacities.
7.3.1 Legal capacity

Legal capacity is the capacity to be the bearer of rights and duties, in other words to be a legal
subject. Another term for legal capacity is ‘legal subjectivity’. All legal subjects have legal capacity
(legal subjectivity). Animals, like slaves in Roman law, do not have it, and cannot be the bearers of
rights and duties. They are not legal subjects, but rather legal objects (see para 7.4 below). But
the law takes notice of the behaviour of animals. A person who suffers damages caused by animals
under certain circumstances can claim such damages from the animal’s owner. Animals are also
protected against maltreatment by means of legislation such as the Animals Protection Act 71 of
1962. But this does not mean that they currently have subjective rights.
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7.3.2 Capacity to act

The capacity to act is the capacity to perform juristic acts. A juristic act is a lawful act (an act
which is in accordance with the law) to which the law attaches at least some of the consequences
envisaged by the acting parties. The making of a will, the conclusion of a contract and a marriage
are examples of juristic acts. One cannot say that all human beings, because they are legal
subjects, have full capacity to act. Factors such as age and mental health determine a person’s
capacity to act in three categories:
• No capacity to act A child under the age of 7 (infans) and people with psychosocial
disabilities have no capacity to act. They can perform no juristic acts and cannot, for
example, enter into contracts themselves. The guardian or parent of the infans or the curator
of the person with a psychosocial disability must do it on their behalf. Sometimes it is
necessary to conclude contracts on behalf of such persons because they can have assets
which they, for instance, have inherited.
• Limited capacity to act Minors (between 7 and 18 years) can perform certain juristic acts
themselves, but for others they have to obtain the permission of their parents or guardians.
For example, when minors want to get married or buy a motorbike, they must have the
necessary permission.
• Full capacity to act People who have this capacity can perform all juristic acts themselves.
Most people over the age of 18 who do not suffer from psychosocial disabilities have this
capacity.
7.3.3 Capacity to take part in legal proceedings

This is the capacity to appear in court (standing or locus standi), in other words to be a party to
civil proceedings. This bears a close relation to the capacity to act. An infans cannot be a party to
court proceedings; her parent or guardian has to be her representative. Minors can usually only
appear in court with the assistance of their parents or guardians.
7.3.4 Accountability
Accountability is the capacity to be held liable for unlawful acts (delicts). It concerns the ability to
distinguish between right and wrong.
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Some people, such as those who suffer from psychosocial disabilities, do not have this ability
and thus cannot be held liable for their unlawful acts. They are regarded as doli et culpae incapax.
The legal position regarding age and accountability in delict has been subject to academic
disagreement in the last few years. However, the common-law position is that children under the
age of 7 are infants and they are irrebuttably presumed to lack accountability. Children between 7
and 14 years of age are rebuttably presumed to lack accountability. People of 14 years and older
are rebuttably presumed to possess accountability.
The Child Justice Act 75 of 2008 specifically regulates the accountability of children who
have committed criminal offences. Children under the age of 10 are irrebuttably
presumed to lack criminal accountability. Children between 10 and 14 years of age are
rebuttably presumed to lack criminal accountability. And people over 14 years of age are
rebuttably presumed to have criminal accountability. Neethling and Potgieter, two famous
delict professors, have in more recent years assumed that the Child Justice Act should
apply to delict too. Clearly this has an impact on how we would classify infants. What are
your thoughts in this regard? Access the Child Justice Act and consider relevant
constitutional provisions to find an answer to this question.
7.4 Functioning of subjective rights

It was mentioned above that private law regulates the relationships between legal subjects
through the concept of subjective rights. This means that legal subjects can obtain subjective
rights. We should remember that section 39(3) of the Constitution makes it clear that the
Constitution respects rights and freedoms at common law, to the extent that those are consistent
with the Constitution. The Constitution therefore indirectly gives support to the notion of subjective
rights. The existence of a subjective right presupposes two kinds of relationships:
• a relationship between the legal subject and a legal object; as well as
• a relationship between the legal subject and other legal subjects.
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7.4.1 Relationship between legal subject and legal object

Private law acknowledges that certain objects may pertain to certain legal subjects. In other
words, it acknowledges that legal subjects can have an interest in certain objects. It recognises
such an interest by making it possible for the legal subject to have a subjective right to the object,
which is called a ‘legal object’.
A characteristic of a legal object is that it has a monetary value. Traditionally private law
distinguishes between four legal objects: things, performances, intellectual property and aspects of
personality.
• Things Things are, for instance, movable and immovable property such as land, motor
vehicles, furniture, clothing and books.
• Performance A performance is an action of another legal subject which amounts to giving
something, doing something or refraining from doing something. Usually the duty to perform
stems from a contract or a delict. In the case of a contract of sale, the seller of a bicycle has
the duty to deliver it. The employee must render certain services in terms of his contract.
The person who committed a delict must pay damages. The actions of the seller, the
employee and the person who committed a delict are examples of performances.
• Intellectual property (immaterial property) These are creations of the human mind —
products of human creativity. Examples are a literary work, the melody and words of a song,
and an invention. The book itself and the printed copy of the song are things. It is the
creative ideas behind them that amount to intellectual property.
• Aspects of personality These are aspects of a person’s personality, such as the sense of
honour, dignity, reputation and privacy.
• Personal immaterial property? The author Neethling is of the opinion that there is a fifth
legal object, which he calls personal immaterial property. According to him this is, for
example, a person’s earning ability and creditworthiness.
We distinguish between four different subjective rights which a legal subject can have with respect
to the traditionally recognised legal objects:
• Real rights are the rights with respect to things, for example ownership. The particular
branch of private law that regulates these matters is called property law.
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• Personal rights (creditor’s rights) are the rights with respect to performances by others.
Examples are the right of the buyer against the seller to deliver the bicycle and the right of
the employer to the services of the employee. The law of obligations is the part of private law
which regulates these matters.
• Intellectual property rights are the legal subject’s rights with respect to his intellectual
property, for example copyright and rights to patents. The law of intellectual property
(immaterial property law) is the particular branch of private law which deals with these
matters.
• Personality rights are the rights that a legal subject can have with respect to aspects of his
personality, for instance the right to her good name and privacy. The law of personality is the
branch of private law which regulates these matters. Personality rights must be distinguished
from personal rights (creditor’s rights).
• Personal immaterial property rights? According to Neethling, these are a legal subject’s
rights to his earning ability and creditworthiness.
Each of the subjective rights provides the legal subject with certain powers with respect to the
legal object. The content of each subjective right is therefore the fact that it provides the legal
subject with the ability to do certain things with the object. We refer to these abilities as powers.
This must be distinguished from the legal subject’s abilities to participate in legal activities, which
we call capacities (see para 7.3 above).
For example, when someone has the real right of ownership with respect to a motor vehicle, she
may use it, she may dispose of it by lending it to someone else or she may alienate it by selling it
to someone else who then becomes the new owner. These are powers which together form the
content of ownership. Each subjective right provides its own particular powers and this creates the
distinction between the different subjective rights. A personality right, for instance, does not
provide the power to alienate. You cannot transfer your right to your own dignity to someone else,
as can be done with the right of ownership.
However, the fact that a subjective right provides the legal subject with certain powers does not
mean that the legal subject can do as she pleases with the object. Subjective rights, as all other
rights, have limitations. For example, the owner of a dwelling stand in town may not
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keep cattle on it, make as much noise there as he pleases, nor build a factory on the stand.
Private law also determines how legal subjects obtain the different subjective rights (how they
originate) and how they are terminated. In this regard, subjective rights also differ from each
other. For instance, the right of ownership of a movable thing comes into existence when it is
delivered to you, of a personal right when you enter into a contract with someone and of a right to
patent when it is registered.
A final point to ponder in this regard is the correlation between many of the subjective rights
and rights found in the Bill of Rights in the Constitution. Even though the Constitution does not
have a ‘human right to performance’, the Constitution does recognise the right to property (section
25), and various rights that look a lot like personality rights of dignity (section 10), freedom and
security of the person (section 12), and privacy (section 14). In many ways human rights and
subjective rights are similar to one another. From our discussion on adjudicative subsidiarity in
Chapter 3 above you will remember that the common law could be used as a mechanism to
protect human rights — and this is fairly easy to do when there is such a strong similarity between
constitutional rights and subjective rights.
7.4.2 Relationship between legal subject and legal subject

A subjective right, in the first place, creates a relationship between a legal subject and a legal
object. At the same time, it also gives rise to a relationship between the legal subject and other
legal subjects (third parties). This relationship confers a duty on the other legal subjects to
respect the subject–object relationship.
Private law determines the following:
• When I have the ownership (a real right) of a motor vehicle, other legal subjects have the
duty to respect that right and they may not remove the vehicle without my permission.
• When I, as the buyer of a bicycle, have a (personal) right to delivery of the bicycle, the seller
has the duty to deliver it.
• When I have the right to a book that I have written (copyright), another must not pretend
that he had written it.
• Another has the duty not to insult me because I have a right to my good name and
reputation (personality right).
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A subjective right therefore always implies a corresponding duty — they are different sides of the
same coin. In this way private law harmonises the relationships between legal subjects.
In the light of this duty that others have, it is often said that real rights, intellectual property
rights and personality rights function in an absolute way, whereas personal rights function in a
relative way. This usually means that the former group of rights apply against all other legal
subjects (against the whole world) in the sense that everyone has the duty to respect them. In
other words, I can claim that everyone has the duty to respect my ownership of my bicycle, and
that they should not take it without my permission. It is enforceable against everyone.
But in the case of a personal right, only a specific person has the duty to respect that right.
This is the person who, according to the contract or delict, has the duty to render performance to
the holder of the subjective right (the person with whom he concluded the contract or against
whom he committed a delict). For instance, I have concluded a contract with Xolani, according to
which Xolani will sell his bicycle to me. I then have a personal right against Xolani for the delivery
of the bicycle. Only Xolani has the duty to respect my personal right. It is enforceable only against
Xolani. I can only claim the bicycle from Xolani. I cannot claim the bicycle from Yvonne nor Zahara.
They do not have the duty to respect my personal right, because I did not conclude the contract
with them.
But this approach is not correct without qualification. When others know of the existence of a
personal right between two legal subjects, then they must respect it. If, in our example above,
Yvonne knows that I concluded a contract with Xolani, she may not convince Xolani to sell the
bicycle to her for a higher price. If Yvonne does so, she commits a delict. In such a case Yvonne
also has the duty to respect the personal right which I have against Xolani. In this way personal
rights also establish a duty for other legal subjects to respect those rights.
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In short: Positive law, through private law, regulates the relationships between legal
subjects. This is done by means of subjective rights and the way in which they function.
A legal subject can have a subjective right with respect to a legal object. Every subjective
right provides the legal subject with certain powers. Other legal subjects have the duty
to respect the subject–object relationship. The relationships can be illustrated as follows:
Figure 7.1
7.5 Protection of subjective rights

It is not enough that private law allows legal subjects to obtain subjective rights and that it
imposes a duty on others to respect them. Others do not always comply with their duties. They
can violate or infringe a legal subject’s rights. This happens for instance when:
• someone removes the owner’s thing without his permission;
• the seller refuses to deliver the thing sold to the buyer;

• someone represents himself as the author of my book;
• one person insults another.
Private law therefore also has to protect subjective rights. It must enable the legal subject to
enforce his rights in the case of a violation. In other words, others may be forced to respect a
subjective right, to comply with their duties and to make good the infringement or violation. To
achieve this, private law provides the legal subject with certain legal remedies. These are the
instruments through which a subjective right can be enforced. The approach in our law is ubi ius
ibi remedium: where there is a right, there is a remedy. Private law will always provide a remedy
in order to protect a subjective right.
A legal subject can, in the case of the violation of a subjective right, claim that the other party
must comply with his duty or make good the violation. For example, the owner can claim his thing
back; the buyer
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can claim delivery of the thing bought from the seller; and the insulted person can claim
sentimental damages. The person who institutes legal proceedings where a dispute on facts and
law arises (action proceedings) is called the plaintiff.
The person against whom the action is instituted is called the defendant. The law also provides
the defendant with a legal remedy, known as a defence. In principle this amounts to the reason
offered by the defendant why the plaintiff’s claim should not be successful. The defendant can
raise different kinds of defences against a claim. For example, she can maintain that she did not
remove the owner’s vehicle; that the buyer committed fraud and that she is therefore not going to
deliver the thing bought; or that she did not insult the plaintiff, but in fact told the truth.
There are also legal remedies with which a legal subject can prevent a threatening violation of
her subjective rights, for instance an interdict. This is a court order which can prohibit a person
from violating a right.
The way in which an action is instituted, or an interdict is applied for, is regulated by adjective
law in the form of the law of civil procedure. The law of civil procedure provides the legal subject
access to the different remedies by which rights are protected. How this procedure works will be
explained in chapter 9 of this book.
See www.jutapassmasters.co.za for the Rudolf case and the accompanying questions.
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Chapter 8
Law and the Business World
Introduction
In the words of Justice Albie Sachs, a former judge of the Constitutional Court, we live in a world
that is ‘money-orientated’ (see Dikoko v Mokhatla 2006 (6) SA 235 (CC) para 120). Perhaps we
could even say we live in a capitalist world that is obsessed with money. It should then come as no
surprise that a great deal of law relates to money and money-making. The subjects that
specifically relate to the money-making process are collectively called ‘mercantile’ or ‘commercial’
law, or as we call it here, ‘law and the business world’. Our goal with this chapter is to give you a
bird’s-eye view of the discipline of mercantile law. We do this as follows. First, we look at the
different types of businesses that people can run according to South African law. We put this in the
context of South Africa’s colonial history. Second, we turn to consider how those businesses make
money through contracting with their employees and their clients. Third, we consider what
happens to the money that a business makes in terms of paying taxes. Finally, we provide you
with some provocative and critical thoughts on the role and place of business in a transformative
democracy.
8.1 Corporate law

Many people are involved in the business world. They all aim at making a profit. One of the first
decisions to be taken by anyone entering into business concerns the form of her participation (or
entrepreneurship) in the business world.
8.1.1 Single-owner enterprise (sole proprietorship)

Anele keeps hens in her backyard and sells eggs on the pavement outside her house. She alone
has contributed the capital and only she will receive the income. Only she will suffer any loss. She
is the sole owner of the enterprise and manages the business herself. Even though Anele might
trade as Eggsclamation, if she gets sued, she will be sued in her personal capacity.
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8.1.2 Partnership
After some time, Anele has established herself so well that others want to start working with her.
Boitumelo and Charly, two of her acquaintances, agree to work with her in extending the
enterprise. They want to pool their expertise and capital to make a profit by selling eggs. They
acquire bigger premises and a vehicle with which they deliver eggs to the local fresh produce
market daily. The form of entrepreneurship which suits them best is a partnership. A partnership is
a contractual relationship between persons (partners) with the aim of making a profit and sharing
in it. A partnership may be established between two or more (with a maximum of twenty)
members. The partners agree in the contract how they will divide the profit (or loss) between
them. Usually all the partners participate in the management of the business.
In both these entrepreneurial forms the natural persons remain personally liable. If the
enterprise fails, the sole proprietor or the partners carry the full risk. The natural persons remain
liable to creditors in their personal capacity and may lose everything they have.
If the liabilities (debts) of the enterprise exceed its assets, the enterprise is insolvent (or
bankrupt). This means that the personal estate of the single owner or partners may be
sequestrated. The owner may apply for sequestration. This is called voluntary surrender.
Creditors may also apply for sequestration of the partnership. This is known as compulsory
sequestration. Sequestration means that the insolvent’s assets are taken over and controlled by
trustees. The trustees may eventually realize (sell) and distribute the estate of the insolvent to
repay the creditors of the enterprise. A sequestration order also limits the insolvent’s contractual
capacity.
8.1.3 Company
In time Anele, Boitumelo and Charly need to expand even further. They plan to buy seven large
farms where they will have thousands of hens in batteries. They then plan to start exporting eggs
to Asia. To realize these grand ideals they form a company.
According to the Companies Act 71 of 2008, there are two broad categories of companies: profit
and non-profit companies. A non-profit company’s name ends with ‘NPC’ and is usually established
for some charitable goal. Profit companies can take on the form of, among others, state-owned
companies (the name of the company will end with ‘SOC
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Ltd’), private companies (that do not offer shares to the public, with a name ending with ‘(Pty)
Ltd’), and public companies (that do offer shares to the public, with a name ending with ‘Ltd’).
When people decide to form a company, they must do so by signing a Memorandum of
Incorporation (which is basically an agreement explaining how the company will function) and
registering that Memorandum of Incorporation with the Companies and Intellectual Property
Commission.
If Anele, Boitumelo and Charly decide to form a company, their personal liability will be limited,
because the company is formed as a juristic person separate from its members. The risk of
Anele, Boitumelo and Charly is limited to the amount of capital they have invested in the company
by buying shares in it. The members of the company appoint directors to act as managers of the
company. There are a number of provisions in the Companies Act that stipulate how directors
should fulfil their duties responsibly. Therefore, there is a distinction between the owners and the
managers of the company.
In the case of a public company, the capital of the company is enlarged because members of the
public are allowed to invest in the company by buying shares. This money is referred to as share
capital. Shareholders stand to benefit if the company flourishes. Their capital investment will
grow. The company can pay out profits to its members. These payments are called dividends. But
shareholders run the risk of losing the amount they initially invested in the company should it
become insolvent. If the company becomes insolvent, it is wound up. This means that the assets
of the company are sold. The proceeds are used first to pay the company’s creditors. If any money
remains, the shareholders are paid according to their shares in the company.
In the case of the company, the entrepreneur benefits from the existence of a separate juristic
person. The members of the enterprise are not personally liable should the enterprise become
insolvent. It is the juristic person which is liable. The shareholders of a company lose the capital
they have invested. The liability of the members and directors of the company is also restricted to
the amount they have contributed to the company. In all other respects their personal estates
remain untouched by the insolvency.
8.1.4 Close corporations

In the past, it was possible for people like Anele, Boitumelo and Charly to form what was known as
a Close Corporation (CC). Forming a CC
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came with the benefit of forming a separate juristic person (so there was limited liability for its
incorporators) and it was easier to form with fewer formalities. However, since the Companies Act
71 of 2008 came into existence, it is no longer permissible to establish a CC. CCs that were formed
before the introduction of the Act remain in existence, or they could be converted into companies.
8.1.5 Coloniality of the corporation

In Chapter 2 above, we explained the different phases of South African legal history. In our
discussion of the Dutch colonial phase, we mentioned that it was the Dutch East India Company
(VOC) that set up shop in the area they called the Cape of Good Hope. Eventually colonisation
would occur through the VOC acting within the scope of its authority given by the Dutch Republic.
In her Master’s thesis, Is the Company an Instrument of Coloniality? Interrogating Recognition of
the Legal Personality of the Company, Charmika Samaradiwakera-Wijesundara draws our attention
to the fact that it is really significant that it was a company that came to colonise the space we call
South Africa today. In this context, we must further remember that for a long time in South Africa,
black people were enslaved and were denied legal subjectivity while companies (juristic persons)
were afforded subjectivity. Ultimately the point is that companies are potentially powerful
institutions. And sometimes they abuse that power. In the present context, we find that today,
companies still do not always have the best interests of people — and especially poor black people
— at heart, and we might question to what extent the colonial relationship of ‘master and slave’ is
replicated in South Africa today. Sometimes, we even find that the state uses its power to protect
corporations at all costs, as the extract below suggests. We would encourage you to have a class
discussion about how the events that transpired during the Marikana Massacre either do or do not
show a symbiotic relationship between corporations and the state.
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Miners shot while hiding or fleeing

Athandiwe Saba & Vicky Abraham, Mail & Guardian, 16 February 2018
Explosive new evidence has emerged to support allegations of cold-blooded murder by
the police at Lonmin’s Marikana mine on the fateful day of August 16 2012: officers now
admit that their colleagues shot miners while they were hiding between rocks, running
away or surrendering.
In interviews given to City Press last week and now to the Mail & Guardian, police
officers who did not testify before the Marikana Commission of Inquiry and who were not
called by the Independent Police Investigative Directorate (Ipid) have come forward with
claims.
They have given the families of those killed at ‘scene two’ — the second koppie to
which striking mineworkers fled after the first round of killings — a fresh glimpse into
how their loved ones were massacred.
The judicial commission, which sat for more than 300 days, was unable to make
conclusive findings about what happened at the second crime scene. Instead, it found
that police had tried to mislead the commission.
But family members of some of the slain miners do not believe that this is the full
truth and are pleading with the officers who have come forward to name the perpetrators
of what was the most lethal use of police force against citizens since the Sharpeville
massacre.
Last week, Constable Itumeleng Ntsileng from the police’s K9 unit and two of his fellow
officers told City Press that they saw their colleagues and others from the police’s special
task force shoot striking miners who were fleeing, hiding or surrendering.
Speaking to the M&G this week Ntsileng’s tale paints a picture of police officers gone
rogue on a murder spree.
‘It was a shock to see that a person could be shot with a rifle at close range. The way
people fell down and died was as if we were watching a movie. It was horrifying to see so
much blood. There were people still alive and crying for help. We could see that some of
them were not going to make it,’ he said.
Fourteen bodies were found at scene two, where Ntsileng and other colleagues say
they witnessed the murders. Three strikers were wounded there and died in hospital.
According to the sparse evidence given at the Marikana inquiry, 10 of the dead miners
were found in crevices where they had sought refuge.
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Another officer, also part of the K9 unit and who spoke on condition of anonymity, said
he had seen his partner gun down an older man who was running away, trying to find a
place to hide among the rocks.

‘I picture the Mosotho man in a blanket who begged my partner not to kill him. You
can imagine seeing blood gushing out from a person’s body and head, others sleeping on
the ground and some trying to stand up.
‘Afterwards, I couldn’t sleep at night and I still can’t. I can only sleep during the day.
Sometimes, I just wake up and my heart will beat faster. I watch TV to forget about what
has happened. I can say it is helping but when I go to bed, I think about lots of things,’
he said.
One of the older men who died at scene two was Thabiso Thelejane (55), from
Pabellong in Matatiele, Eastern Cape. According to evidence presented at the commission
of inquiry, he was running away from the police when they shot him.
His wife, Makopano Thelejane, told the M&G that she struggles every day to cope with
her loss. ‘My soul will never be okay. It hurts, and to hear about his murder is disturbing.
I live a hard life without him and still today I don’t know why he was killed like a dog.’
No police have yet been prosecuted regarding Marikana but NPA spokesperson Luvuyo
Mfaku said officers had been served with summonses to appear in court for deaths that
occurred in the tense days leading up to the massacre on August 16 2012.
‘Charges will be laid against them when they appear in court’, he said, without
providing further details.
8.2 Contracts
After deciding on the form of corporation, the business will then proceed to enter into contracts.
Ordinary people come into contact with the business world most frequently when they enter into
contracts for the exchange of goods (by way of a contract of purchase and sale, for example) or
delivery of a service (by way of a contract of service, for example). We have pointed out above (in
Chapter 4) that a contract creates an obligation between two parties. This implies that the law
obliges one party to perform (the debtor), and entitles the other (the creditor) to that
performance.
The question now is: What is a contract? A contract is an agreement or promise between two
parties that one (or both) of them has to do something. But not all agreements between people
are binding (legally enforceable). Two friends, for example, may agree to go to the movies
together. If one of them does not keep to this agreement, no legal
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consequences will follow from this failure. Even though the law may not come into play, this
conduct could be against community mores. It may also have serious consequences (such as the
end of a friendship). Only an agreement from which a clear intention to be bound may be
derived is enforceable by law and gives rise to a contract.
A contract is an agreement which is enforceable by law and which creates rights

and duties between the parties.
In the business world agreements must be kept, otherwise business people (also called
entrepreneurs) would not be able to plan ahead. For this reason they enter into contracts. To bring
a contract into existence the one party makes an offer, which has to be accepted by the other
party. An offer is a clear statement from one party to which she will consider herself bound if the
other party accepts it. An acceptance is a clear statement of a party that he accepts being bound
by the offer.
8.2.1 Prerequisites for concluding contracts

To ensure that their agreement is legally binding (that it will be a ‘contract’) the parties must
comply with the following requirements:
• The parties must be in agreement as to the details of the contract. There must be
consensus. (Consensus will be lacking, for example, where Anthony and Fezile agree
respectively to sell and buy a farm, and Anthony believes the farm in question is Mount
Pleasant and Fezile believes it to be Pleasant Waters.)
• The parties must have the capacity to contract. (For example, one of the parties must not
be suffering from a psychosocial disability.)
• The offer must be lawful. (For example, an offer to deal in cocaine is unlawful and cannot
give rise to a contract.)
• It must be physically possible to fulfil the agreement. (Parties cannot, for example, agree
to buy and sell an original painting which has been destroyed in a fire.)
• When the law requires certain formalities, these obviously have to be complied with.
Legislation determines that land can only be sold by means of a written contract which has
been signed by the parties. But the common law does not require contracts to be in writing.
Most contracts may therefore be concluded orally (or
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verbally). For example, two people may enter into a valid contract when the one says, ‘I sell
you this bicycle for R150’, and the other person answers: ‘That sounds good, I’ll take it.’
Often, parties still prefer to conclude contracts in writing, because written contracts provide
more certainty and make proof easier when disputes arise.
8.2.2 Content of a contract

The content of a contract takes three forms: essentialia, naturalia and incidentalia.
• Parties have to reach agreement on specific aspects before a contract will be identified as a
particular form of contract. It is necessary to distinguish the different contractual forms
because the consequences of each vary. If Zwele and Mantsoe agree that Zwele will buy
Mantsoe’s bicycle (contract of sale), the bicycle becomes Zwele’s permanent property after
delivery if Mantsoe was the true owner. If Zwele hires Mantsoe’s bicycle from him (contract of
letting and hiring), Zwele gets only temporary possession, and must return the bicycle
later. The elements which give a contract its identity are the essentialia of the contract.
• As soon as the form of contract has been agreed on, certain provisions automatically follow
from that contract. This means that the law reads these provisions into the contract without
the parties having agreed to those terms at all. By these terms the law prescribes how the
contract will function between the parties. These provisions are derived from common law,
legislation, case law and custom, and are referred to as the naturalia of the contract. The
naturalia differ from contract to contract. Certain rights and duties follow from specific
forms of contract.
Some of the naturalia of the contract of sale are that the buyer must pay the purchase price,
that the seller must deliver the thing sold, and that the seller provides an implied warranty
against latent defects. This means that the seller is considered to have promised the buyer
that there are no defects present in the thing sold. A latent defect is a defect which the buyer
would not have been able to identify with reasonable care when she concluded the contract.
The law makes use of the concept of naturalia to eliminate unnecessary and time-consuming
duplication of provisions that are generally accepted between parties to particular kinds of
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contracts. It is therefore not necessary for a seller and purchaser to stipulate who will
become the owner of a thing and when ownership is transferred, or that the thing sold must
be delivered. These aspects form part of the rights and duties of the parties that are
determined by the naturalia.
• But most of the naturalia may be excluded by agreement between the parties. This will
happen when parties reach such an agreement explicitly as part of the negotiations between
them. These provisions are called incidentalia. This term indicates that the provisions are
‘incidental’ to the specific contract between the parties. An example is when the parties agree
to purchase and sell something ‘as it is’ (voetstoots). They then exclude the seller’s implied
warranty against latent defects. This can only happen with the consent of both parties.
A variety of contractual forms are encountered in the business world, such as contracts of
purchase and sale, contracts of service, contracts of insurance, and contracts of suretyship. But to
further illustrate contractual principles in general we refer to a contract of employment and a

contract of purchase and sale as examples, because these contracts are so frequently used.
8.2.3 Contract of employment

An employment contract is a legally enforceable agreement between one party, called an employer,
who contracts the services of another party, called an employee, for an agreed-upon wage. For a
contract of employment to come into existence, the parties must agree on the following elements
(the essentialia of the contract):
• The parties must have the intention to establish an employment relationship between
them, in other words, that one party is the employer and the other is the employee.
• The parties must agree on the services to be completed by the employee for the employer.
• The parties must agree on the remuneration of the employee who is paid by the employer.
Once the contract of employment comes into existence, certain naturalia flow from that contract.
The naturalia are determined by common law and
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legislation. It should be borne in mind that section 23 of the Constitution for example guarantees
the right to fair labour practices and the rights that all employees have to form and join trade
unions. The law related to trade unions is called collective labour law. The part of law that deals
with the contents of employment contracts is called individual labour law. The Labour Relations
Act 66 of 1995 and the Basic Conditions of Employment Act 75 of 1997 are examples of
transformative legislation that stipulates naturalia flowing from employment contracts.
• The employer has the duties to comply with relevant labour legislation (for example, by
ensuring fair labour practices, allowing employees the right to join a trade union, not unfairly
dismissing the employee and not discriminating against the employee), pay the agreed
remuneration subject to minimum wage requirements, and to provide a safe working
environment.
• The employee has the duty to make his or her services available to the employer (subject to
the maximum working hours of 45 hours per week, stipulated in the Basic Conditions of
Employment Act), to act with the required degree of care and skill, and to act in good faith
(by, for example, not acting dishonestly).
An incidental clause in an employment contract might be, for example, a clause that promises a
performance bonus to the employee.
8.2.4 Contract of purchase and sale

A contract of purchase and sale is a legally enforceable agreement between one party to buy and
another to sell. For an agreement to be identified as a contract of purchase and sale the parties
must agree on the following three elements (the essentialia of the contract):
• One party must have the intention of buying and the other of selling. (When the one
party receives something from another party as a gift, such an intention is absent. This
amounts to a different kind of contract, a contract of donation.)
• The parties must agree on the thing sold. This must be a specific object, or must at least be
ascertainable. (The parties may for instance not agree on a vague object, such as ‘some’ of
the seller’s books. In such a case the seller would not know what to deliver.)
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• The parties must also agree on the purchase price. The price must be in money. (If two
parties agree that one will give the other a racehorse and receive two lambs in return, the
contract is one of exchange or barter.)
Once the parties have entered into a purchase and sale contract, certain naturalia flow from that
contract. For example, the two most well-known naturalia for this contract are:
• The seller provides an implied warranty against latent defects. If a hidden defect is later
discovered in the thing sold, the purchaser could claim damages or cancel the contract and
claim restitution.
• The seller provides an implied warranty against eviction. If the purchaser is evicted by
another person who is actually the owner of the property, the seller could be liable for
damages.
If the Consumer Protection Act 68 of 2008 applies to a specific contract of purchase and sale, then
there are a number of special, statutory naturalia that would flow from that contract.
An incidental clause to a purchase and sale contract could be, for example, a provision that says
that the seller will have the car washed before it is handed over to the purchaser.
Example
Sifiso wants to sell his vehicle, a Volkswagen Beetle, to Patrick. They agree on a price of
R5 000. Patrick walks around the car, kicks the tyres, sits in the driver’s seat, and starts
the engine. He then decides to buy the car. Patrick pays the price to Sifiso. After Patrick
has been driving his new purchase for a week, the engine block falls apart. Upon
investigation, a mechanic finds that the block was welded together quite visibly, and was
held together by a clamp. Patrick asks the mechanic to repair the vehicle. The cost of
repairs is R3 000. Does Patrick have any legal remedies?
The first question is whether Sifiso and Patrick have concluded a valid contract. The
prerequisites for entering into a contract were present. It is in order that the parties
agreed only verbally. The essentialia of this specific contract are also present: the parties
reached consensus about selling and buying, about the thing sold, and about the
purchase price.
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The second question is whether the seller has complied with all his duties. One of the
naturalia of the contract of purchase and sale is that the seller is considered as having
provided an implied warranty against latent defects (even if the parties did not mention
this aspect at all). This warranty exists at common law and applies to contracts to which
the Consumer Protection Act applies.
If the common law regulates the position, this duty may be excluded by way of an ‘as
is’ provision (voetstoots clause), as part of the incidentalia of the contract. However, this
did not happen in this instance. If the Consumer Protection Act applies to the transaction,
then a voetstoots clause is not allowed.
The question then is: was there a latent defect in this case? A latent defect is a fault
or defect in the thing sold, which:
• is of a material nature;
• affects the use of the article;
• was unknown to the purchaser at the time of concluding the contract; and
• would not have been discovered by her upon reasonable inspection of the thing
sold.
Apply these principles to the facts and say whether the purchaser is liable for Patrick’s
loss.
8.3 Profits, taxes, and corporate social responsibility

After a business has been established and it has contracted with employees and customers, the
business will (hopefully) produce an income. (If the business suffers a loss, the business entity
might become insolvent.) From that income, expenses must be paid. Rent and wages are such
examples. Whatever money remains after those expenses have been paid, constitutes the profit.
From the profit, a number of different things could and should happen:
• The profit is taxable and the business entity will have to pay taxes to the South African
Revenue Services. That money is used to run government and should also indirectly be used
to protect the economically vulnerable in society.
• Businesses also have corporate social responsibility in the sense that they owe ethical
duties to promote the well-being of society and the environment. Of course, it must be
remembered that even
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businesses are bound by the Constitution and bear certain public responsibilities, as the
articles below show. Read these articles and consider debating the role of businesses in the
democratic South Africa from a legal perspective.
Spotlight on investors’ lack of oversight in social grants fiasco

Bonita Meyersfeld & Khuraisha Patel, Business Day, 12 April 2017
The Constitutional Court’s decision in the most recent social grants matter was a
resounding condemnation of all the players in the social grants system. All? Not quite —
one player has escaped equivalent scrutiny. The investors, those who finance the
operations of companies such as those involved in the distribution of grants, are
significant actors in this tragic play. And yet they have remained outside the spotlight,
providing tentative and in some cases deficient responses.
The two main investors in Net1, the parent company of the controversial Cash
Paymaster Services (CPS), are Allan Gray and the World Bank’s International Finance
Corporation. They hold a 16% and 18% stake in the shares of Net1, respectively. Both
entities have been questioned about their investment in a company that is at the heart of
the practice of the unscrupulous sharing of grant beneficiaries’ personal information with
financial services companies.
The latter use this data to market financial services improperly (some would say
unlawfully) to grant beneficiaries. Such unaffordable services are automatically deducted
monthly from an individual’s grant. Both entities have also invested in Net1’s
untransformed subsidiary company, CPS, whose contract with the South African Social
Security Agency (Sassa) for the payments of social grants to 17-million people has been
declared invalid by the Constitutional Court.
One must question this investment from a constitutional and financial position.
Financial institutions such as Allan Gray and the International Finance Corporation (IFC)
have been reminded as investors they are more than silent role-players in the
investment, trade and human-rights matrix. Many international standards on responsible
investing have established companies bear a fiduciary duty to more than just clients and
beneficiaries: they bear a fiduciary duty to society.
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Principles such as the UN principles on responsible investing and the code for
responsible investing in SA set minimum standards for investors in assessing and
managing social and governance risks in their portfolio companies. Investors are required
to be active and responsible investors when making an investment decision and
throughout the life span of their investment.
Allan Gray has acknowledged it could have been more fastidious in its due-diligence
processes. It has undertaken to monitor Net1’s business operations regarding grant
beneficiaries independently, to meet stakeholders to discuss its role in Net1 and is
considering legal options to hold the CPS board accountable. The IFC has requested Net1
hire independent consultants to assess their practices as a responsible lender.
But why the reactive approach to concerns about CPS? Should investors not have
properly interrogated, assessed and addressed these concerns much earlier and not only
at the sharp end of a long-standing rumble about its portfolio company’s operations?
How should financial institutions such as Allan Gray and the IFC operate to comply with
international and national standards?
The following steps ensure portfolio companies comply with environmental, social and
governance (ESG) standards:
• Incorporate ESG factors into the decision to invest;
• Be the proverbial ‘present landlord’ or ‘active owner’ and ensure that investment
complies with ESG principles; and
• Intervene and engage if they do not.
Many investors claim to incorporate ESG into their decisions to invest, but are they doing
so meaningfully? To what extent were ESG factors considered when investing in the
parent company of CPS, a company whose key source of profit is an unlawful contract?
Since 2014, Net1 and CPS have regularly and increasingly been accused of operating
on the fringe of human-rights violations and making untold profits off the poorest people.
Despite these indicators, the IFC invested a further R1.6bn in Net1 in 2016, citing the
World Bank’s emphasis on grant programmes as a mechanism for alleviating poverty. The
irony is stark.
Active ownership during the life span of the investment should not only be taken of the
financial viability of the investment but also of the company’s ESG compliance. Red flags
about an investor’s portfolio company must trigger heightened oversight by investors,
especially when a company in its portfolio is the subject of a miscellany of court cases
relating to human-rights and good-governance issues.
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Net1’s CPS is involved in a case concerning unlawful deductions from social grants; is
undergoing investigation by the Competition Commission into its financial behaviour; and
is the subject of extensive measures crafted by the Constitutional Court to ensure the
financial protection of grant beneficiaries in the latest social grant case brought by the
Centre for Applied Legal Studies on behalf of the Black Sash Trust. These cases raise
clear red flags about the portfolio company’s commitment to ESG factors in their
business operations.
Regarding the mechanism of robust engagement, it is not suggested investors divest
from delinquent portfolio companies, although at times that may be necessary. Investors
have a unique power to hold their delinquent portfolio companies to account through
engagement. Investors baulk at the idea of playing a governance role, but that is
precisely what active ownership entails. One cannot make a profit while citing ignorance
of the conduct of one’s portfolio companies. Allan Gray has committed to such
engagement; the IFC less so.
Allan Gray and the IFC have belatedly sought disclosure from Net1 and CPS on how
their business activities comply with ESG principles. But the proverbial egg is scrambled.
If investors had been active owners, requiring rigorous reporting and disclosure
requirements, hundreds of people may have been saved the devastating realisation at
month-end that their grants are scavenged by deductions for financial services they do
not want.
Surely, a prudent investor should choose carefully, oversee effectively and through
robust engagement hold to account its investment? The IFC’s position in this regard is a
damning indictment of its human-rights compliance standards it broadcasts as the model
for responsible investment.
An additional context that cannot be ignored is the global economic hegemony that
continues to characterise the operations of the global north vis-à-vis the global south.
The IFC must be held to account for its decision to alleviate poverty by funding a
company accused of being complicit in its very perpetuation and exacerbation.
Constitutional obligations can ensure private firms serve the public good
Lwando Xaso, Business Day, 17 April 2017

The right to have access to social security is a socioeconomic good that one would
usually expect to be provided by the state rather than a private company.
However, as highlighted by the Constitutional Court in the recent Black Sash Trust v
Minister of Social Development, South African Social Security Agency (Sassa) and Others
judgment, the country is now ‘confronted with a situation where the executive arm of
government admits that it is not able to fulfil its constitutional and statutory obligations
to provide for the social assistance of its people. And, in the deepest and most shaming
of ironies, it now seeks to rely on a private corporate entity . . . to get it out of this
predicament.’
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Therefore, due to the state’s complete reliance on Cash Paymaster Services (CPS) for
the delivery of a constitutional right, the court viewed CPS as an extension of the state
for the delivery of social security, even though CPS’s contract with Sassa was due to
expire in a couple of weeks. The court therefore held that the constitutional obligations of
Sassa and CPS, as entities performing a constitutional function for a considerable period,
did not end when the contract between the parties expired.
But what gives the court the power to make this determination and to interfere with
the autonomy of a private company in this manner? The key question determined by the
Constitutional Court in the Black Sash matter was whether Sassa and CPS were under
any constitutional obligation after March 31 2017 (i.e. after the expiry date of Sassa’s
contract with CPS) to continue payment of the social grants. It is, however, already
accepted that section 8(2) of the Constitution sanctions the application of the Bill of
Rights to private companies, and the court’s previous judgments support the expansion
of the nature of the constitutional obligations that can be borne by private parties.
The powers conferred on the Constitutional Court in terms of section 172(1)(b) of the
Constitution enable it to make any order that is just and equitable, thereby permitting it
to extend the contract between Sassa and CPS that would have otherwise expired on
March 31 2017.
This case therefore demonstrates the Constitutional Court’s far-reaching powers to
confer broad constitutional obligations on private companies and to change the terms of
a private contract upon which the delivery of a socioeconomic right depends.
The Constitution makes provision for the application of constitutional obligations to
private parties in section 8(2), which, in simple terms, provides that private parties shall
be bound by the Bill of Rights. The Constitutional Court has also previously
acknowledged, in the landmark housing rights decision of Government of the Republic of
SA v Grootboom and Others (2001), that at least some of the duties imposed by the Bill
of Rights are binding on private parties.
However, the judgment in which it gave the most attention to the application of section
8(2) to private parties is Governing Body of the Juma Musjid Primary School & Others v
Essay NO and Others (2011).
In this case, the Constitutional Court dealt with an order authorising the eviction of a
public school conducted on private property. The court stressed that the purpose of
section 8(2) is not to obstruct private autonomy or to impose on a private party the
duties of the state in protecting the Bill of Rights. Rather, it is to require private parties
not to interfere with or diminish the enjoyment of a right.
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The test whether a private party will be burdened with a constitutional obligation
depends on the intensity of the constitutional right in question, coupled with the potential
invasion of that right that could be perpetrated by private parties. For example, in Juma
Musijd, the right to basic education and the potential invasion of this right by a private
party required the court to confer constitutional obligations on the private party not to
impair the learners’ right to basic education.
Therefore, in the court’s earlier judgments regarding the extent of a private party’s
constitutional obligations in terms of section 8(2), they were merely required to refrain
from interfering with a person’s enjoyment of his/her constitutional right. Since then, the
law has been developed to require more from private parties than mere non-interference.
In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v CEO of Sassa and
Others (Allpay 2), the Constitutional Court made a far-reaching finding in respect of
private parties that are in the business of assisting the state deliver on its constitutional
obligations. The court found that Sassa and CPS were organs of state in relation to the
contract to pay social grants, and that CPS also bore obligations under section 8(2) of the
Constitution because it had performed a constitutional function for a significant period
already, and this obligation persisted to ensure that a workable payment system remains
in place until a new one is operational.
Therefore, the approach the Constitutional Court has previously taken in respect of
section 8(2) has been expanded by the court in the manner in which it dealt with CPS in
the Black Sash case. Consequently, any argument against the extension of constitutional
obligations in this manner to private relationships, based on concerns about the impact
this may have on the individual freedom and autonomy of those private parties upon
whom these obligations are imposed, fails to take into account the impact that the
actions of these private parties has on the freedom, autonomy and rights of others to
enjoy their constitutionally protected rights.
This means that the autonomy of private parties in such circumstances is
circumscribed by the demands of the values in the Constitution, which is a significant and
just development of our socioeconomic rights jurisprudence.
The Black Sash finding raises a number of interesting questions for private companies.
For instance, does it mean that private companies such as CPS, like the state, should be
audited by the auditor-general? When a member of the public is seeking information
from these private companies in terms of the Promotion of Access to Information Act,
should the request be sought by using the process that is used against the state instead
of a private company?
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Prior to entering into contracts similar to CPS’s contract with Sassa, private companies
should fully understand what it means for [their] business to be considered an organ of
state, so as to be sure that [they are] not taken by surprise in the manner in which CPS
was by the Constitutional Court.
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Chapter 9
Law of Civil Procedure
Introduction
A private-law dispute between parties arises when one party violates a subjective right of another
or threatens to do so. Often such a dispute is solved by the parties themselves. For instance,
someone can admit that she caused damage of a certain amount to another party and pay it
willingly. However, when the parties differ and cannot arrive at a solution themselves, they must
not take the law into their own hands. A party may not force a solution which she herself favours,
such as retaliation, on another party. The parties must make use of the prescribed civil procedure
in order to solve their dispute. The solution will be given by the court. The fact that courts can
assist people to resolve their disputes is a constitutional issue. Section 34 of the Constitution
provides the following under the heading of ‘access to courts’:
‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair
public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’
The law of civil procedure does not only assist a legal subject in the case of the violation of a
subjective right. Sometimes it may also be used when there is no such violation or even
threatening violation. The law of civil procedure can be used for the following purposes:
• To obtain a declaratory order
For example, in his will someone leaves his assets to his ‘children’. At the time of his death
his wife is pregnant. Is the unborn foetus also a child who may inherit (an heir)? In such a
case the executor of the will can, by means of civil procedure, approach the court for an
answer. Such an answer takes the form of a declaratory order. In this case there is no
question of the violation of a right. The position is the same when the court is approached to
pronounce a missing person ‘presumed dead’.
• To prevent damage or injury
This comes into play when there is a threatening violation of a right. A dilapidated structure
on my neighbour’s property is
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threatening to collapse onto my house. I can approach the court for an interdict against my
neighbour, ordering her to demolish the structure. Likewise, in a case where someone is
threatened with assault, or where someone is continually being assaulted, she can apply for
an interdict to prevent the threatened assault, or any further assault.
Interdict for a butterfly

Own correspondent, The Star, 26 February 1997
Cape Town — Conservationists have won a late-night High Court interdict as part of their
battle to save the highly endangered Brenton Blue butterfly. According to Conrad
Steenkamp, manager of the Endangered Wildlife Trust in Johannesburg, it is the first
time an interdict has been granted in respect of a single species.
The application for the urgent interdict was brought late on Sunday evening to prevent
the owner of a stand at Brenton-on-Sea, near Knysna, Professor H N Dreyer, from
clearing his plot.
The stand is part of a proposed development which is being strongly opposed because
it is the habitat of the last remaining colony of this beautiful butterfly.
• To make damages or injury good

In this case there has been a violation of a right that caused damage or injury. For example,
one party collided with another’s motor vehicle, or the one insulted the other. The injured
party can, by means of an action, claim either patrimonial or sentimental damages from the
wrongdoer.
• To claim specific performance
If you have entered into a contract with another person whereby you agree to buy their car
for a certain price, and that person fails to deliver the car to you, then you are entitled to
claim performance (namely the car) from them — just as they would be allowed to claim
performance (namely payment of the purchase price) from you.
The law of civil procedure provides the channels through which one can obtain these different
forms of relief and assistance. The rules of the law of civil procedure are found in common law,
rules of practice, legislation and in the Uniform Rules of Court laid down in terms of this legislation.
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The most important legislation in this regard is the Superior Courts Act 10 of 2013 (complemented
by the Uniform Rules of Court, colloquially called the High Court Rules) and the Magistrates’ Courts
Act 32 of 1944 (complemented by the Magistrates’ Court Rules).
9.1 General principles

Civil proceedings are generally expensive and time-consuming. They are also complicated, so the
intervention of legal representatives (attorneys and advocates) is usually inevitable. The
proceedings are left exclusively in the hands of the parties and their legal representatives. They
themselves must take the necessary steps and collect evidence in order to bring the case before
the court for judgment.
9.1.1 Types of proceedings

There are two forms of civil procedure that may be followed:
(a) Action proceedings
Action proceedings (proceedings by way of summons) are used when there are fundamental
differences between the parties with respect to the facts of the case. In the case of a motor-
vehicle accident the victim submits that the wrongdoer did not give the necessary signs that she
was about to turn. The wrongdoer maintains that she did. The two parties are referred to as the
plaintiff and the defendant. The plaintiff is the person who initiates the case (dominus litis) and
institutes an action to claim a performance (for example, the payment of damages). The defendant
is the person against whom the action is instituted and who may raise a defence against the
action. The action procedure is more time-consuming and expensive than the application
procedure.
(b) Application proceedings
Application proceedings (proceedings by way of notice of motion) are used where there are no
fundamental differences concerning the facts. This will be the appropriate procedure when the
court is approached for an interdict. The two parties are known as the applicant and the
respondent. The applicant is the person who initiates the case and who approaches the court for
a particular kind of relief. The respondent is the
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person against whom the relief is sought. Application proceedings are also used to obtain a
declaratory order. In such a case there is usually only one party involved: the party who wants to
obtain the order and who is affected by it. This is called an ex parte application.
Figure 9.1
9.1.2 Stages of the proceedings

Both action and application proceedings consist of two stages.
(a) Pleading stage
Civil proceedings are in the hands of the parties and their legal representatives. They themselves
must take the different steps. Before the eventual proceedings in court, these steps take the form
of pleadings. Pleadings are documents which the parties exchange. There are different kinds of
pleadings, as we will see below. The pleadings contain statements by the respective parties with
regard to the facts of the case and not the applicable legal principles. The facts on which the
parties agree and on which they disagree are presented in the pleadings so that the dispute
between them is clearly defined. The rules of court provide guidelines for the form which certain
pleadings must take. The purpose of pleadings is:
• to reduce the dispute between the parties to a condensed and abbreviated version;
• to prevent the parties from surprising each other in court;
• to make the judge or magistrate familiar with the case beforehand.
In a High Court case, each pleading is filed with the registrar of the court. In a Magistrate’s Court
case it is filed with the clerk of the court.
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The sheriff of the court then serves certain of the pleadings, such as the summons, on the
opposing party.
Although the term ‘pleadings’ is used here in general, the documents that are exchanged in
application proceedings are actually ‘affidavits’.
(b) Trial
The pleading stage is followed by the trial (proceedings in court). South African proceedings in
court, in civil as well as criminal cases, are accusatorial (adversarial) by nature and not
inquisitorial.
• In an accusatorial system the two parties oppose each other like boxers. The parties decide
on which documents and witnesses to present before the court. The judge acts as referee,
supervises the course of the process and sees to it that the rules are complied with. The
judge does not actively participate and does not ‘enter the arena’.
• In an inquisitorial process the judge participates actively. She questions the parties to obtain
the evidence necessary for her judgment.
In the case of an action, where the parties differ fundamentally concerning the facts, oral evidence
is presented by the parties in order to prove the facts. The purpose of oral evidence is to establish
exactly what the facts are (what happened). In the case of an application, the parties are not
supposed to differ fundamentally with respect to the facts. It is therefore usually unnecessary to
present oral evidence. The case is decided on the facts, as set out in the affidavits. In both cases
the judge or the magistrate applies the relevant legal principles to the facts and gives judgment,
which takes the form of a court order or ruling.
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9.1.3 Possible subsequent proceedings

(a) Execution
What if the party against whom judgment was obtained does not comply voluntarily with the court
order? For example, what happens when such a party does not pay the amount or deliver the thing
as the court ordered? The civil procedure then provides for execution of the order or ruling. This
is the method by which the order or ruling is enforced.
(b) Appeal and review
In any civil case, you can have a situation where a party is not satisfied with the judgment of the
court. Such a party can then approach a higher court by means of appeal or review proceedings.
• Appeal proceedings can be followed when a party is of the opinion that the judgment of
the court was incorrect, either with respect to the finding on the facts or the application of
law. The party who appeals is called the appellant and the opposing party the respondent.
• Review proceedings take place when there was an alleged irregularity with respect to the
process followed.
Civil procedure in the high courts and in the magistrates’ courts is more or less the same, but
there are some differences. We will not deal in detail with these differences. We will briefly discuss
the action and then the application proceedings. The procedure is, as was mentioned, complicated,
so we shall only discuss the most important stages.
9.2 Action proceedings

The course of action proceedings is illustrated in the figure below and discussed briefly below that.
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Figure 9.2
9.2.1 Pleading stage: sequence of pleadings

(a) Summons
The plaintiff starts the process with a pleading known as a summons, which informs the defendant
of the plaintiff’s claim against her. The particulars of the plaintiff’s claim follows on the summons
and contains the following information:
• the names of the parties involved;
• the facts of the case (what happened);
• the extent of the claim (what the plaintiff claims);
• the remedy or relief that the plaintiff asks from the court.
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Usually the plaintiff also demands that the defendant pay the costs of the suit. In the case of a
motor-vehicle accident, the particulars of claim can take the following form:
Particulars of plaintiff’s claim
1. The Plaintiff is Helen Skosana, an adult female residing at 102 Church Street,
Pretoria.
2. The Defendant is Hendrik van Zyl, an adult male, residing at 105 Schoeman Street,
Pretoria.
3. On or about 6 November 2009 the Plaintiff drove her vehicle KBT 143 GP in Church
Street from East to West.
4. On the same day, time and place the Defendant drove his vehicle CFJ 205 GP from
West to East.
5. On the same day, time and place a collision occurred between the aforesaid
vehicles.
6. The sole cause of the aforesaid collision was the negligent driving of the Defendant
in that he failed to give any indication when he turned in front of the Plaintiff.
7. As a result of the aforesaid collision, the Plaintiff’s vehicle was damaged, and as a
result thereof the Plaintiff has suffered damages in the sum of R30 000 in respect
of the fair, reasonable and necessary costs of repairing the Plaintiff’s vehicle.
WHEREFORE the Plaintiff prays for judgment against the Defendant for:
(i) R30 000 in respect of damages
(ii) Costs of suit
(iii) Alternative relief.
(b) Notice of intention to defend and judgment by default

The summons is served on the defendant. In other words, the defendant is informed of the claim
against her and must now react to it. If the defendant wants to defend the claim, she must file a
notice of intention to defend within a certain time. This is also a pleading, which is served on
the plaintiff, and it merely contains a statement that the defendant is going to oppose the claim. It
does not set out the grounds for the defence.
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If the defendant neglects to give notice of intention to defend, the court may grant the plaintiff
judgment by default. This means that the court orders the defendant to satisfy the plaintiff’s
claim because she is in default. The case does not go through the ordinary procedures that usually
follow the notice of intention to defend. The court gives judgment and orders the defendant, just
as it does at the end of the trial stage in a case where it allows the plaintiff’s claim.
(c) Plea
After the defendant has given notice of her intention to defend, she must have the next pleading,
known as her plea, served on the plaintiff. In the plea the defendant admits or denies the
allegations made in the plaintiff’s summons and sets out the facts on which she bases her defence.
A plea in answer to the above-mentioned summons can take the following form:
Defendant’s plea
1. The Defendant admits the contents of paragraphs 1, 2, 3, 4 and 5 of the summons.
2. Ad paragraph 6 of the summons, the Defendant denies that he was negligent as
alleged, or in any other way.
3. Alternatively to paragraph 2 hereof, that if the Defendant was negligent (which is
denied), such negligence was not the cause of the accident. The sole cause of the
collision was the negligence of the Plaintiff in that she failed to keep a proper look-
out.
4. In the alternative to paragraphs 2 and 3 hereof, that if the Defendant was negligent
(which is denied), and if the negligence contributed to the collision (which is also
denied), the Defendant pleads that the Plaintiff was to a larger extent negligent.
The particulars of the Plaintiff’s negligence appears in paragraph 3 hereof.
5. The Defendant has no knowledge of the contents of paragraph 7 of the Plaintiff’s
statement of claim and is unable to admit or deny same, and puts the Plaintiff to
the proof thereof.
WHEREFORE the Defendant prays that the Plaintiff’s claim be dismissed with costs,
alternatively that the amount of damages to be awarded to the Plaintiff be reduced by
the above honourable court to such extent as may, to the honourable court, seem just
and equitable having regard to the Plaintiff’s degree of negligence.
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(d) Replication
The plaintiff can, if necessary, answer the plea with a replication. This is the plaintiff’s reply to, or
commentary on, the plea.
(e) Litis contestatio
Litis contestatio is the closing of the pleadings. The dispute between the parties has now been fully
described in their pleadings. No further pleadings may be exchanged.
The plaintiff takes the initiative in the whole suit (so she is dominus litis). After litis contestatio
the plaintiff must apply to the court for a trial date, and must see to it that the case is placed on
the court roll. The plaintiff must then notify the defendant in writing of the date, time and place of
the trial.
The case must now be prepared for trial. Part of the formal preparations include discovery of
documents (where the parties share documents that they, for example, wish to use as evidence
in court); and a pre-trial conference (where some further issues could be ironed out between
the parties). Certain further particulars could also be requested by either side of the dispute for
purposes of preparing for trial.
9.2.2 Trial stage

In court both the parties, as well as the judge or magistrate, are in possession of the pleadings. In
action proceedings the parties differ from each other concerning the facts as set out in the
pleadings, and therefore they must prove their cases in court. The parties can do this by means of,
amongst others, oral evidence. The law of evidence (see Chapter 12 of this book) regulates the
way in which evidence is presented in court.
The parties must prove their cases on a balance of probabilities. This means that the scale
must only slightly lean towards the party on whom the burden of proof lies. The principle that ‘she
who asserts must prove’ is used to determine which party bears the burden of proof. Usually it
is the plaintiff, and she must start the proceedings in court. It can, however, also be the defendant.
For our purposes let us assume that the burden of proof rests on the plaintiff. Every witness and
also the plaintiff, if she wants to give evidence herself, is taken through the following steps.
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(a) Plaintiff’s case

• Taking the oath The plaintiff’s first witness is called and she must declare under oath that
she will tell the truth. If she has objections to taking the oath, the witness can solemnly
declare that she will tell the truth.
• Examination in chief The plaintiff’s legal representative now questions the witness. The
witness presents the court with her account of what happened. No leading questions may be
asked during examination in chief. A leading question is a question that prompts a yes or
no answer. So, the question should rather be ‘what were you doing on the night of 25 May
2018?’ instead of ‘did you negligently drive into the plaintiff on the night of 25 May 2018?’.
• Cross-examination The defendant’s legal representative can then cross-examine the
witness. The purpose of this kind of questioning is to establish the credibility of the witness,
in other words to establish whether she is telling the truth.
• Re-examination After cross-examination the plaintiff’s legal representative gets another
opportunity to question the witness. The purpose is to eliminate any obscurities which might
have arisen during cross-examination.
The witness then steps down. All witnesses, including the plaintiff, if she wants to testify herself,
are taken through these steps. After all the witnesses for the plaintiff have been called, the
plaintiff’s legal representative closes her case.
(b) Absolution from the instance

If the plaintiff could not prove her case, the defendant can, after the plaintiff has closed her case,
ask the court for absolution of the instance. The test that the judge will use is to ask whether the
plaintiff has established a prima facie case. This means that if the plaintiff has not established a
prima facie case, the case stops here. The effect is as if the case had never been before the court.
The plaintiff can, however, again institute the action at a later stage, when she has better evidence
at her disposal.
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(c) Defendant’s case

If the court is not asked for absolution of the instance, or if such a request is not granted, the
defendant’s legal representative then presents the court with her case. This proceeds in exactly
the same manner as the plaintiff’s case. The defendant’s legal representative will do the
examination in chief, and the plaintiff’s legal representative the cross-examination. After the court
has heard all the defendant’s witnesses, the defendant’s legal representative closes her case.
(d) Argument
After both parties have closed their cases, there is opportunity for argument by the legal
representatives. The legal representatives arguing the case for the respective parties will draft
heads of argument. These ‘heads’ (as they are colloquially called) provide a clear and systematic
presentation of the legal argument (in other words, how the law should apply to the given facts)
that will be orally presented in court. First the legal representative of the plaintiff and thereafter
the legal representative of the defendant are given the opportunity to address the court. They
supply the court with reasons why the claim and the defence, respectively, should succeed.
(e) Judgment and court order
The court gives judgment after the legal representatives’ arguments. The court can also give
judgment at a later stage if it first wants to consider its judgment (compare the reference cur adv
vult in law reports; see Chapter 3 above). In its judgment the court considers the evidence
relating to the facts, and then it applies the relevant legal principles to the facts. The court can
allow the claim or dismiss it (the latter means that the defence succeeds). The court gives full
reasons for its judgment.
If the claim succeeds, or in a case of judgment by default, the court makes an order. This means
that the court orders the defendant to satisfy the claim, for instance by paying an amount of
money or by delivering a thing. The court also orders one of the parties to pay the costs of the
suit. Usually this is the unsuccessful party, but the court has a discretion to order otherwise.
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9.2.3 Execution, appeal or review

After the court order, the successful plaintiff is the judgment creditor and the unsuccessful
defendant the judgment debtor. This is also the case after judgment by default. If the judgment
debtor does not comply with the order of the court, the order must be enforced. The judgment
creditor must then apply for execution. The sheriff is the official who is responsible for execution,
which can take on different forms. The sheriff can attach the assets of the judgment debtor, sell
them in execution, and pay the judgment creditor from the proceeds.
In the past, judgment debtors who did not pay their debts could be imprisoned. In Coetzee v
Government of the Republic of South Africa 1995 (4) SA 631 (CC), however, the Constitutional
Court declared unconstitutional the provisions of the Magistrates’ Courts Act providing for this form
of imprisonment. This means that imprisonment for debtors who do not pay their debts is not
allowed any more.
According to the Constitutional Court this form of imprisonment is an unreasonable infringement
of the individual’s right to freedom. Kriegler J remarked as follows:
‘The sanction of imprisonment is ostensibly aimed at the debtor who will not pay. But it is unreasonable in
that it also strikes at those who cannot pay and simply fail to prove this at a hearing often due to negative
circumstances created by the provisions themselves.’
If one of the parties is dissatisfied with the outcome based on the findings of fact or law, they may
appeal the decision to a higher court as explained above. If one of the parties is dissatisfied with
the process that was followed (for example, that they were not given the chance to present their
side of the case, or that the judge was biased) then they may have the case reviewed.
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9.3 Application proceedings

Application proceedings are illustrated in Figure 9.3.
Figure 9.3
Application proceedings are instituted by way of a notice of motion. This notice by the applicant
takes on a prescribed form. In this notice of motion she applies for a certain court order or form of
relief. The notice is accompanied by an affidavit, which is a written statement given under oath
before a commissioner of oaths. It is filed with the registrar of the High Court or the clerk of the
Magistrate’s Court. There are two kinds of applications:
9.3.1 Ex parte application

An ex parte application is brought when no other party has an interest in, or will be affected by,
the relief which the applicant applies for. Therefore, notice is not given to another party. This will
be the case where the applicant applies for a declaratory order, for instance where the executor of
an estate wants to know from the court whether the
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unborn foetus qualifies as an heir. This is also the kind of application brought when someone wants
to be admitted as an attorney or an advocate. The latter application is done in a prescribed form:
Notice of motion (ex parte)

In the High Court of South Africa
In the matter:
Mavis Murphy – Applicant

TAKE NOTICE that application will be made on behalf of the above-named applicant on
the fifth day of March 2018 at 10 a.m. or as soon thereafter as counsel may be heard for
an order in the following terms:
(a) That the applicant be allowed to practise as attorney of the above honourable court.
(b) That the registrar of the above honourable court be directed to enrol the applicant’s
name on the roll of attorneys of the above honourable court.
(c) That alternative relief be granted as the above honourable court may deem fit.
and that the affidavits of Lerato Sekhoto and Mavis Murphy annexed hereto will be used
in support thereof.
Kindly place the matter on the roll for hearing accordingly.
DATED at .................................
.........................................
Applicant’s Attorney
To the Registrar of the above-named court.
When there is a possibility that other parties will be affected by the court order, the court grants a
rule nisi, subject to a return date. This means that the court grants the order conditionally. The
court notifies other parties to provide reasons on the return date why the order must not be made
a final order. If another party does not appear on the return date or cannot provide convincing
reasons, the order becomes a final order. If another party does appear and provides sufficient
reasons, the rule nisi is discharged.
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9.3.2 Applicant and respondent

When another party does have an interest in the relief for which the applicant applies, such a party
is notified and takes the place of the respondent. For example, this will be the case where the
applicant applies for an interdict compelling her neighbour to demolish the dilapidated structure on
her stand, as discussed above. Such an application is done in a prescribed form:
Notice of motion
(to registrar and respondent)
IN THE HIGH COURT OF SOUTH AFRICA
In the matter between:
Helen Pindela Applicant
and
Dirk Scholtz Respondent
TAKE NOTICE that Helen Pindela (hereinafter called the applicant) intends to make
application to this Court for an order
(a) That the applicant be granted a mandatory interdict,
(b) in the alternative that the applicant be granted an interim interdict,
(c) alternative relief and that the accompanying affidavit of Helen Pindela will be used
in support thereof.
TAKE NOTICE FURTHER that the applicant has appointed Josephine Simpson
(Incorporated), Nedbank Building, 111 Church Street, Johannesburg at which she will
accept notice and service of all process in these proceedings.
TAKE NOTICE FURTHER that if you intend opposing this application you are required
(a) to notify the applicant’s attorney in writing on or before the second day of May 2018
(b) and within fourteen days of the service of this notice upon you to file your answering
affidavits, if any; and further that you are required to appoint in such notification an
address referred to in rule 6(5)(b) at which you will accept notice and service of all
documents in these proceedings.
If no such notice of intention to oppose be given, the application will be made on the
twenty-first day of May 2018 at 09:00.
DATED AT Johannesburg this twenty-sixth day of March 2018.
..........................................
Applicant or his Attorney
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(a) Founding affidavit

The applicant attaches an affidavit to her notice of motion. This is called a founding affidavit, and
in it the applicant sets out the facts of the case. The applicant also attaches affidavits of all other
witnesses who can support her case. The application therefore consists of the notice of motion and
the attached affidavits. All this is filed with the registrar or the clerk of the court.
(b) Answering affidavit
The sheriff serves the applicant’s application on the respondent. The respondent now answers the
application with an answering affidavit in which she sets out her side of the case with respect to
the facts. The respondent can also attach affidavits of witnesses who can support her case. All of
this is filed with the registrar or the clerk of the court and is served by the sheriff on the applicant.
(c) Replying affidavit
In a replying affidavit, the applicant can comment upon the respondent’s answering affidavit.
(d) Trial
The case is then placed on the court roll, and a date, time and place for the hearing are set. On
the specific day the legal representatives of the parties appear in court. At this stage the court is in
possession of all the affidavits of the parties and their witnesses. It is for this reason, and because
the parties do not differ fundamentally with respect to the facts, that it is unnecessary for the
court to hear oral evidence. The affidavits take the place of pleadings and of evidence given in
court under oath. Consequently, the legal representatives only argue the matter before the court,
as in the case of action proceedings. They address the court, respectively, on why the application
must be granted or dismissed.
If, however, the judge or the magistrate is of the opinion that there really does exist a material
difference between the parties concerning the facts, the court may then ask to hear oral evidence.
This takes exactly the same form as in action proceedings.
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After the legal representatives have argued the case, the court gives judgment. The application
is granted or dismissed. If the application is granted, the court makes an order with which the
respondent has to comply.
(e) Execution, appeal or review
If the respondent does not comply with the court order, execution follows. It is also possible to
appeal or review a decision made in application proceedings.
9.4 Transformative civil procedure?

Even though the law of civil procedure seems to be a rather mechanical area of law, it has not
escaped the constitutional effect. In the extract below, you will discover some of those
transformations.
Constitutional transformation and fundamental reform of civil procedure

Constantine Theophilopoulos 2016 TSAR 68 at 87ff
The procedures dealing with attachment, sale in execution and eviction from land, and
the central constitutional value of security of land tenure, which is protected by the right
to property (section 25) and adequate housing (section 26), must be understood in the
light of the apartheid history of legislatively forced removals and racist evictions in South
Africa. Access to adequate housing has been linked to the right to dignity and self-worth
(section 10) by the constitutional court. In particular, when a judgment-debtor is
subjected to a sometimes lengthy process of attachment and eviction from residential
property he or she suffers the double indignity of the loss of a home and the indignity of
a criminal sanction should the debtor, faced with the prospect of being rendered
homeless, refuse to cooperate with the sheriff when served with a writ of attachment and
execution. However, the rights of the judgment-debtor must also be balanced against the
judgment-creditor’s right to enforce a judgment order in order to obtain satisfaction in
respect of a debt voluntarily incurred by the judgment-debtor, particularly in the
circumstance where the debtor does not possess any attachable movable property. The
principal question to be decided by the courts is whether a judgment order allowing for
execution against property to recover money owed is reasonable and justifiable when
tested against the limitation clause (section 36) and in what circumstances the
administration of civil justice would be severely hampered without such a process.
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A successful judgment-creditor is entitled to as much of the property of the judgment-

debtor as will satisfy the judgment plus costs. The property attached may be movable,
immovable or incorporeal. Execution will first take place against the debtor’s movables
and only thereafter against any immovable property. Where a judgment-debtor has
insufficient attachable movables to satisfy the judgment, the writ may be re-issued
against the judgment-debtor’s immovable property. There is a single exception to this
procedure: in certain circumstances immovable property may be declared specially
executable at the time of judgment. In such a case, the immovable property may be
attached in the first instance without the necessity of first attempting to execute against
movable property. This usually occurs where the immovable property is subject to a
mortgage. However, there are a number of procedural weaknesses in these procedures
which have attracted constitutional scrutiny. First, the writ is issued by a registrar or
clerk of the court without any judicial oversight of the process. Secondly, execution and
attachment is supervised by the sheriff acting in concert with the judgment-creditor. In
this process the judgment-debtor is in a weak position. Thirdly, in respect of immovable
property subject to a mortgage, the creditor-plaintiff may apply for default judgment
against the judgment-debtor to the registrar and obtain an order whereby the immovable
property is declared specially executable, particularly where the judgment applied for is
based on a debt flowing from the mortgage bond over the property. These two rules are
used together to obtain judgment by default and to declare immovable property specially
executable. The procedure is supervised by a registrar, or a clerk, the sheriff, and the
judgment-creditor without judicial oversight. Fourthly, the execution process is
particularly harsh on a judgment-debtor when the immovable property is a primary
residential home, which effectively renders the judgment-debtor homeless.
In two seminal decisions the constitutional court has held that any process which
deprives certain vulnerable persons (ie a natural not a juristic person) of their pre-
existing access to adequate housing (ie a primary residential property, or a state
subsidised home) may be unconstitutional because it limits the right to housing defined
in section 26(1) of the constitution. Most importantly, these two decisions recognise that
there may be circumstances in which a debtor’s right of access to adequate housing and
security of tenure should be upheld even when a creditor has a valid claim and has
obtained judgment against the debtor. In Jaftha v Schoeman; Van Rooyen v Stoltz, the
constitutional court held that the magistrates’ court attachment process, as set out in
section 66 of the Magistrates’ Courts Act, was unconstitutional in so far as it did not
provide for judicial supervision over the attachment of immovable property. To overcome
the problem the constitutional court ruled that a judicial officer must carefully consider
the facts of each case in order to determine, before a writ of attachment in respect of
immovable property is issued, whether execution will be reasonable and justifiable in the
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circumstances. Accordingly a judicial oversight mechanism which assesses the impact of

a potential execution on residential property and eviction of a debtor must be read into
the section 66(1)(a) procedure. In Gundwana v Steko Development, the constitutional
court held that the process in terms of which the registrar of the high court granted
default judgment and also declared immovable property (particularly in the form of a
primary residential property) subject to a mortgage bond specially executable to be
unconstitutional. A registrar may not grant such an order and execution may follow only
after a process of judicial oversight. Where execution is requested against the principal
home of an indigent debtor who may lose the home, judicial oversight of the execution
process is compulsory.
These two constitutional court decisions have influenced the development of the
execution process in respect of residential property, and the execution procedures set out
in uniform rules 31(5); 45(1) and 46(1) and section 66 of the Magistrates’ Courts Act
must be interpreted with the constitutional court’s remedies in mind. The civil procedures
around execution have therefore been constitutionally concretised to protect a debtor’s
section 26 rights against arbitrary deprivation. The circumstances which would render an
execution and attachment unjustifiable and unconstitutional depend largely on a case-by-
case assessment. Some of the factors suggested by the constitutional court in the Jaftha
case to be considered in an exercise of judicial oversight are: (i) as a starting point,
where the attachment or execution rules of procedure are not properly complied with or
are abused by the creditor, a writ of execution should not be authorised; (ii) the
existence of alternative and reasonable remedies for satisfying the debt; and (iii) where
the procedures are properly complied with and there is no suitable alternative remedy, a
sale in execution is constitutionally justifiable unless there is a gross disproportionality
between the debt owed to a creditor and the debtor’s right to security of tenure, as it
may be constitutionally unjustifiable for a debtor to be evicted from a primary residential
property where the debt owed is a small amount and relatively insignificant to the
creditor. With regard to the procedural implications of the requirement that execution
against a person’s home be subjected to judicial oversight, the constitutional court held
that when action is instituted to enforce a debt secured by a special hypothec over the
debtor’s primary or usual or ordinary residence, the debtor is entitled to be informed in
the summons of his/her rights in terms of section 26 of the constitution. The
constitutional court will also have to reassess the sheriff’s sale in execution auction
procedure, which is loosely defined and open to abuse by colluding bidders, especially
since the auction procedure does not allow for the setting of a reserve price on the
attached property to be auctioned.
See www.jutapassmasters.co.za for an article by Mervyn Dendy and the accompanying

questions.
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Chapter 10
Criminal Law
Introduction
Just as the state owes its citizens certain duties, every citizen of a state has certain duties towards
that state. In the interests of society as a whole the state prescribes certain norms of conduct that
bind all members of society. Anyone who transgresses these norms commits an offence (crime).
Although crime is usually aimed at another person, the conduct also threatens the whole
community. Consequently, the state will use its authority to punish such a person. The body of
rules identifying offences and prescribing punishment is criminal law. As we will see in the
discussions below, the transformative effect of the Constitution has been felt in criminal law, as in
all other areas of law.
10.1 Criminal case distinguished from civil case

Criminal law forms part of public law in the traditional classification of law. Private law is said to
be concerned with the legal relationships between subjects. In public law the state with state
authority is always a party to the proceedings. A criminal trial takes place between two parties:
the state and the accused. It is an unequal relationship. Criminal law comes into operation when
an offence has been committed and the state initiates a prosecution against a suspect.
Civil case: Waring (plaintiff) v Williams (defendant)

Criminal case: S (state) v Botha (accused)
The burden of proof (onus) in a criminal trial also differs. In a civil case the onus is on the party
that alleges. This will usually be the plaintiff. In a criminal case the state initiates the prosecution,
thus the state carries the burden of proving the guilt of the accused.
Civil case: party who alleges bears onus

Criminal case: state bears onus
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The onus in a civil case is met if the allegations are proved on a balance of probabilities. In a
criminal case, since the impact of punishment can be much more drastic, a heavier burden is
placed on the state to prove its case. The requirement is that the case must be proved beyond
reasonable doubt. This means that the guilt of the accused must be the only reasonable
inference to be drawn from the facts.
Civil case: proof on balance of probabilities

Criminal case: proof beyond reasonable doubt
The parties to a civil case decide whether they want to initiate proceedings. The plaintiff will
take the initiative and the defendant will decide whether to oppose the claim or not. In a criminal
trial the state is dominus litis (master of the proceedings). This means that the state alone decides
whether a prosecution will be instituted. The accused does not have any say as to whether there
will be a prosecution or not.
Civil case: parties initiate proceedings

Criminal case: state initiates prosecution
The overriding aim of criminal cases is to punish subjects threatening order and harmony in
society. In contrast, civil cases grant remedies and are used to gain clarity on a disputed legal
position.
Civil case: for remedy or clarification

Criminal case: for punishment
The outcome of a civil case is that the action or application is allowed or dismissed. In a criminal
case an accused is eventually found guilty or not guilty. In other words, it does not make sense to
speak of a finding of guilty or not guilty in a civil case.
Civil case: action or application allowed or dismissed

Criminal case: accused found guilty or not guilty
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Although there are definite differences between a criminal and a civil case, in practice the same set
of facts may lead to both a civil and a criminal trial. The watertight and simple distinction between
the two often falls away. Read the following newspaper clipping:
Oscar Pistorius made payments to Reeva Steenkamp’s parents, court told

Emily Smith and Laura Smith-Spark, CNN, 2 January 2015
Oscar Pistorius has been sending the family of Reeva Steenkamp, the girlfriend he fatally
shot last year, a monthly payment since March 2013, a probation officer told his
sentencing hearing in South Africa on Tuesday.
Probation officer and social worker Annette Vergeer told the court that Pistorius’ legal
team had told her about the payments, of 6,000 rand (about $540) a month, and she
suggested that this showed remorse.
She said Pistorius had offered the family more besides the monthly payments. The
athlete sold his car for about $35,000 and had that money given to the Steenkamp
family, she said.
Pistorius’ manager, Peet van Zyl, facilitated the monthly payments from Pistorius’ bank
account. However, the Steenkamp family has rejected the money, the court heard.
Prosecutor Gerrie Nel said that Reeva’s mother, June Steenkamp, had said she didn’t
want ‘blood money.’ He told the court that Steenkamp’s parents had said they would
repay the monthly payments in full.
The Steenkamp family, through a lawyer, told Vergeer that it was ‘neutral’ on the
sentencing phase of the trial, Vergeer said. She told the court that neither of Reeva
Steenkamp’s parents would testify for the state at the hearing.
Judge Thokozile Masipa, who presided over Pistorius’ high-profile trial and delivered
the verdict last month, will decide his sentence, which may or may not see him spend
time behind bars.
The facts and legal position are as follows: Oscar Pistorius shot and killed his girlfriend, Reeva
Steenkamp, one night when he supposedly mistook her for a robber in the bathroom of his
Pretoria home. Before Reeva’s death, she financially supported her parents. Now that she has died,
her parents are not being maintained anymore. After an investigation by the police, the state
prosecutes Oscar on a charge of murder (criminal case). The aim of the prosecution is to punish
Oscar. Reeva’s parents were dependent on her for financial support. Her parents can claim
damages from Oscar (civil case). The aim here is to redress the imbalance that
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Oscar had caused. As the above newspaper article suggests, even though it is possible to have a
criminal and civil case based on one set of facts, sometimes victims (like Reeva’s parents) might
decide not to pursue a civil claim.
10.2 Sources of criminal law

10.2.1 Common law
Common law is the primary source of criminal law. We have already observed that South African
law is, in general, uncodified. In our legal system no code (or comprehensive exposition) of crime
and punishment exists. Murder, theft, treason and incest are not rendered punishable offences by
statute. These offences form part of the Roman-Dutch legal tradition. Accused persons are brought
before courts on specific charges. Thus, we find the content of offences and applicable sentences
in case law. In their judgments, courts are still interpreting and applying the common law, giving it
its present content. The common law is of course subject to development in terms of section 39(2)
of the Constitution. The Constitution certainly has had a transformative impact on criminal
common law.
The facts in Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for
Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR 435 (CC) are truly
shocking: An accused had non-consensual anal sexual intercourse with a 9-year-old girl.
Indeed, in criminal law, we are often dealing with the saddest and most disturbing
displays of the human condition. According to the common law, rape was defined as the
unlawful and intentional sexual intercourse with a woman (which implied the non-
consensual penetration of a vagina by a penis). As such non-consensual anal sexual
intercourse did not fit the definition of rape. At most, it could have constituted indecent
assault. The question up for determination was whether the common-law definition of
rape had to be developed to cover a situation such as the present one. Nkabinde J wrote
the following:
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‘[27] The current definition of rape criminalises unacceptable social conduct that is in violation of
constitutional rights. It ensures that the constitutional right to be free from all forms of violence,
whether public or private, as well as the right to dignity and equality are protected. Invalidating
the definition because it is under-inclusive is to throw the baby out with the bath water. What is
required then is for the definition to be extended instead of being eliminated so as to promote
the spirit, purport and objects of the Bill of Rights.
[37] The Declaration on the Elimination of Violence against Women specifically enjoins member
States to pursue policies to eliminate violence against women. Non-consensual anal penetration
of women and young girls such as the complainant in this case constitutes a form of violence
against them equal in intensity and impact to that of non-consensual vaginal penetration. The
object of the criminalisation of this act is to protect the dignity, sexual autonomy and privacy of
women and young girls as being generally the most vulnerable group in line with the values
enshrined in the Bill of Rights — a cornerstone of our democracy.
[38] The extended definition would protect the dignity of survivors, especially young girls who
may not be able to differentiate between the different types of penetration. The evidence of Dr
Grabe, an expert witness who testified in the High Court, that the complainant referred to a ‘hole’
thinking that the anus is the only place she experiences as a ‘hole’, clearly illustrates this point.
Women and girls would be afforded increased protection by the extended definition. One of the
social contexts of rape is the alarming high incidences of HIV-infection. Anal penetration also
results in the spread of HIV.
[39] The consequences caused by non-consensual anal penetration might be different to those
caused by non-consensual penetration of the vagina but the trauma associated with the former is
just as humiliating, degrading and physically hurtful as that associated with the latter. The
inclusion of penetration of the anus of a female by a penis in the definition will increase the
extent to which the traditionally vulnerable and disadvantaged group will be protected by and
benefit from the law. Adopting this approach would therefore harmonise the common law with
the spirit, purport and objects of the Bill of Rights.’
The court held that the definition had to be changed prospectively to accord with the
principle of legality. Subsequently, legislation dealing with sexual offences was passed.
We discuss aspects of that legislation below.
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10.2.2 Legislation
Times change. Modern society appears quite different from that of the Roman-Dutch authorities.
Certain forms of human conduct become unacceptable as time goes by. In these instances, the
legislature creates new offences. These crimes are referred to as statutory (legislation-regulated)
offences. The following are examples:
• The Drugs and Drug Trafficking Act 140 of 1992 prohibits the possession of and dealing in
Mandrax and other harmful drugs.
• The Maintenance Act 99 of 1998 makes it an offence for someone to refrain from paying the
required amount of maintenance.
• The National Road Traffic Act 93 of 1996 provides that driving a motor vehicle with more than
0,05 g of alcohol per 100 ml of blood is an offence.
• The Tobacco Products Control Act 83 of 1993 prohibits smoking in a public place; and
provides specifically that an employer who fails to ensure that no person smokes in the
workplace is guilty of an offence.
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is a
statute that aims to address sexual offences in a comprehensive and coherent manner. This
legislation came into effect after the judgment in Masiya, mentioned above.
Before the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007 came into operation, various sexual offences were prohibited at common law, but
often had discriminatory effects between women and men. For example, only women
could be raped according to the common-law definition of the crime. The new statutory
definition of rape makes it clear that women and men can be raped. The gender-neutral
definition, found in section 3 of the Act, reads:
‘Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a
complainant (“B”), without the consent of B, is guilty of the offence of rape’.
‘Sexual penetration’ is defined in the Act to include:
‘any act which causes penetration to any extent whatsoever by—
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of
another person;
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(b) any other part of the body of one person or, any object, including any part of the body
of an animal, into or beyond the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another person. . .’.
From this definition, it is clear that the accused’s conduct in Masiya would now be
classified as rape. Additionally, other forms of non-consensual penetration would also be
included. Significantly, this definition recognises that men can also be raped. The Act also
defines a number of other sexual offences including: sexual assault, forced exposure to
sexual acts, flashing, the display of child pornography, sex work, incest, bestiality, sexual
acts with corpses, and a number of offences related to the violation of children.
10.3 Specific crimes

Crimes are punishable because they threaten the interests of individuals and of society as a whole.
They can be categorised into four fields, depending on the interest threatened:
• The most serious crime against another’s person is that which threatens human life. Killing
another human being constitutes either murder or culpable homicide. If the other person
is only injured, assault or assault with intent to do grievous bodily harm is committed.
Most sexual offences, such as rape and sexual assault, could also be said to fall under this
category (or under the category of crimes against the community below). These offences
clearly infringe on the constitutional rights to life (section 11), dignity (section 10), and
freedom and security of the person (section 12).
• Crimes against another’s property infringe his property rights. A property right is a real
right. An example of such an infringement is the crime of theft. In cases where violence is
used to overcome the resistance or hold of the victim, the offence of robbery is committed.
Housebreaking with the intent to steal is committed when a building (usually a house) is
forced open in order to remove goods from it. The property of another may sometimes only
be damaged. In such a case a charge of malicious damage to property can be laid. The
idea of property is constitutionally protected in section 25 of the Constitution.
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• The most serious crime against the state is treason. The state has a claim to its own
preservation. Treason is conduct aimed at overthrowing or jeopardising the existence of the
state. Bribery takes place if someone pays an official in order to obtain some benefit. Courts
can be regarded as an important part of the state machinery. Contempt of court (for
example, not complying with a court order) therefore also amounts to a crime.
• Morality in the form of community mores is sometimes enforced by law (see Chapter 1
above). An example is incest. This places a prohibition on sexual intercourse between
persons not legally permitted to marry each other, such as a parent and child. Another
example is public indecency. Someone who runs naked across a rugby field will be found
guilty of such a crime if a court is of the opinion that his conduct ‘lowered the morality of the
public’ or ‘shocked its sense of propriety’.
In order to ensure that those responsible for massive atrocities such as genocide, crimes against
humanity and war crimes do not go unpunished, the international community in 1998 adopted the
Rome Statute and thus brought the International Criminal Court (ICC) into being. This court, which
is based in The Hague, has jurisdiction to prosecute these offences. According to the principle of
complementarity, included in the Statute, the ICC only has jurisdiction if a particular state is
unwilling or unable to prosecute a particular suspect. Parliament adopted the Implementation of
the Rome Statute of the International Criminal Court Act 27 of 2002, thereby making the
international treaty part of our municipal law, in order to provide for the effective prosecution of
such criminals in South Africa.
Government forges ahead with plans to leave the International Criminal Court
Staff Reporter, Huffington Post, 7 December 2017
Government is moving forward with its plans to withdraw from the International Criminal
Court (ICC), and Justice Minister Michael Masutha will soon submit government’s notice
of withdrawal from the Rome Statute, SAfm reported on Wednesday.
Masutha will also introduce an International Criminal Crimes Bill to replace the Rome
Statue.
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This follows a decision by the ANC’s international relations subcommittee to reaffirm

the party’s resolution to withdraw from the ICC on Wednesday, News24 reported. The
resolution was taken in 2015.
At the time, the ANC reportedly said the ICC was no longer useful. This followed a
court order preventing Sudanese President Omar al-Bashir, who is wanted for war crimes
by the ICC, from leaving South Africa. Al-Bashir was allowed to leave in spite of the court
order.
As a signatory to the Rome Statute, South Africa was obliged to hand over al-Bashir.
Masutha now wants to release South Africa from its duties as stipulated by the statute.
The ANC also called for the ‘speedy operalisation of the African Court of Human and
People’s Rights’, a mooted replacement for the ICC for African countries.
Government decided to withdraw from the ICC, but its notice to do so was ruled invalid
by the High Court in Pretoria in March this year, as proper procedure had not been
followed. This was because the notice had to go through Parliament, not Cabinet, the
court ruled.
Burundi is joining South Africa in leaving the ICC, defenceWeb reported. Burundi’s
leaders are wanted by the ICC for war crimes.
10.4 Elements of crime

Before one can say someone committed a ‘crime’, at least all three of the following elements have
to be present:
• conduct (act) or omission;
• which is against the law (unlawful); and
• where the accused was at fault.
Sometimes a causal link is also required between the wrongful act and the eventual consequence
of the act.
Every offence requires certain elements to be proved for a conviction of that offence. These
elements are to be found in the legal definition of the specific offence. If the state fails to prove
any one of the required elements, the accused will be found not guilty.
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10.4.1 Conduct
A crime will usually result from some form of human action (or conduct). It is quite clear that
aiming a firearm at someone and then pulling the trigger, causing their death, could lead to a
conviction of murder. To throw a stone through someone’s windscreen leads to malicious
damage to property.
To do nothing (or to neglect to do something — an omission) can also qualify as an action and
may give rise to a crime. In S v Russell 1967 (3) SA 739 (N) such a case occurred:
Russell left Masenyetsi and some other workers to load pipes with a crane. They were
working at a railway line. An electric cable, erected for electrical locomotives, was close
to where they were working. The shunter asked Russell to warn Masenyetsi that the
cable would be activated at 14:00. Russell failed to do this. Masenyetsi and his workers
continued working. One of the pipes touched the electric cable. A worker was shocked to
death. Russell was found guilty of culpable homicide because the worker was killed due
to his failure (omission) to convey information. The principle to be extracted from this
case is that if an accused was in control of a dangerous situation and then failed to
prevent harm from flowing from that dangerous situation, the omission will be unlawful.
10.4.2 Unlawfulness
The act must be against the law. It is quite clear that the assassination of a Minister is unlawful.
But sometimes an act that seems unlawful (eg someone kills another) may be allowed or pardoned
by law. In such an instance the accused has a defence (or excuse) neutralising the legal
prohibition (murder is a criminal offence). He will not be found guilty and will not be punished
because his conduct will not be unlawful.
Private defence (‘self-defence’) is a well-known defence, which excludes unlawfulness. A
person acts in self-defence when he defends himself against an unlawful attack. If you are
attacked by someone, you may injure or even kill that person in order to save your own life. There
are, however, strict requirements that have to be met to rely successfully on this defence.
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In R v Zikalala 1953 (2) SA 568 (A), Zikalala was charged with murder. He was the
victim of a murderous attack by the deceased and his friends. Zikalala jumped over
benches in a beer hall to escape from a group who tried to injure him. He opened a
pocket knife and killed the deceased, one of his assailants. The court found that Zikalala
acted in self-defence, because he acted upon the reasonable belief that his life was in
immediate danger. The deceased had attacked him five days previously. The court set
down the requirement that Zikalala first had to try to escape from this attack if at all
possible. Because the beer hall was packed with people and there were no escape routes,
his conduct falls within the strict requirements for self-defence. He was found not guilty.
His conduct was considered not to be unlawful.
Sometime statutes provide authority for seemingly unlawful behaviour. For example, section 49
of the Criminal Procedure Act 51 of 1977 determines that violence may be used to arrest a person
if such a person (the suspect) resists arrest or tries to escape. Section 49(2) of the Criminal
Procedure Act allows for the blameless killing of a suspect. According to the proportionality
principle built into the section, an arrestor’s actions must be proportionate to the danger posed by
the suspect: An arrestor may only use deadly force if it is necessary to protect himself or others
against an immediate threat to life or serious bodily harm.
Necessity is also a defence that excludes unlawfulness. Someone acts in necessity if he acts
against a legal prohibition in circumstances to prevent an impending danger to his own or
another’s life or property. If a youngster for example breaks a car window of a parked car to save
a baby from suffocating in the midday heat, he acts with the intention to damage property, but will
not be convicted of malicious damage to property because he did not act unlawfully.
10.4.3 Fault
A driver of a motor vehicle drives on a public road. Suddenly a bee flies through the open window
and stings him on the nose. The driver gets a fright, tugs at the steering wheel and collides with a
motorcycle. The driver of the motorcycle is killed. Is the driver of the vehicle guilty of murder? His
conduct amounts to an act and is unlawful. But should he be found guilty and punished?
The answer to this question depends on whether he was at fault. Fault is a requirement for
conviction. It concerns the blameworthy state
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of mind of the offender. What was the driver’s state of mind? Was he at fault?
In answering this question we can identify two forms of fault: intention and negligence.
• Intention can be divided into actual (or direct), indirect and constructive forms.
– A person acts with actual intention (dolus directus) if he knowingly and willingly
wants to attain a certain consequence. If the assassin holds a gun to his victim’s head
and pulls the trigger, he acts with actual intention to kill. A wife acts with actual
intention to kill when she poisons her husband systematically over a period of time.
– A person acts with indirect intention (dolus indirectus) if achieving the prohibited
act is not his main objective, but when he acts with the foresight that the prohibited act
will necessarily ensue if he is to achieve his main objective. If a homeless man breaks
the window of a parked car to find a secure place to sleep for the night, he may be
convicted of malicious (intentional) damage to property, in that he acted with indirect
intention to cause damage to the car. Although causing damage was not his main aim,
it was necessary to achieve it.
– A person acts with constructive intention (dolus eventualis) if he does not willingly
and knowingly intend a certain consequence as the only objective, but when he
foresees (as a reasonable possibility) that that consequence could occur and
nonetheless continues with his actions. He accepts the possible consequences of his
conduct. In S v Mitchell 1992 (1) SACR 17 (A), Mitchell and his friends threw stones
from a moving Landrover at school children. Mitchell hit a child with a brick from a
distance of four metres. The child was killed. Mitchell was found guilty of murder in that
he had constructive intention to kill. He did (or had to) foresee that he could hit
someone, and thus seriously injure or even kill such a person. However, he continued
with his actions and accepted the risk. But it cannot be said that he willingly and
knowingly had the death of the child as his only aim and purpose.
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Murder is the intentional killing of another human being. The following extracts from the
case of Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA)
illustrate how courts have to grapple with the fine distinctions between the different
forms of intent in criminal law. The matter revolved around the killing of Reeva
Steenkamp mentioned earlier in this chapter:
‘[1] This case involves a human tragedy of Shakespearean proportions: a young man overcomes
huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an
international celebrity; he meets a young woman of great natural beauty and a successful model;
romance blossoms; and then, ironically on Valentine’s Day, all is destroyed when he takes her
life. The issue before this court is whether in doing so he committed the crime of murder, the
intentional killing of a human being, or the lesser offence of culpable homicide, the negligent
killing of another.
[25] It is necessary to explain certain of the issues that arise for consideration in a murder
case. Over the years jurists have developed what has been referred to as the “grammar of
criminal liability”. As already mentioned, murder is the unlawful and intentional killing of another
person. In order to prove the guilt of an accused on a charge of murder, the state must therefore
establish that the perpetrator committed the act that led to the death of the deceased with the
necessary intention to kill, known as dolus. Negligence, or culpa, on the part of the perpetrator is
insufficient.
[26] In cases of murder there are principally two forms of dolus which arise: dolus directus
and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a
particular form of intention on the part of a person who commits a criminal act. In the case of
murder a person acts with dolus directus if he or she committed the offence with the object and
purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively
straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder
where the object and purpose of the perpetrator is specifically to cause death, a person’s
intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death
occurring, but nevertheless continues to act appreciating that death might well occur, therefore
“gambling” as it were with the life of the person against whom the act is directed. It therefore
consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation
with that foreseen possibility. This second element has been expressed in various ways. For
example, it has been said that
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the person must act “reckless as to the consequences” (a phrase that has caused some confusion
as some have interpreted it to mean with gross negligence) or must have been “reconciled” with
the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does
not have to foresee death as a probable consequence of his or her actions. It is sufficient that the
possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient
to constitute the necessary criminal intent.
[27] These are the basic principles to be borne in mind in considering the first of the three
legal questions reserved for decision in this appeal. The first relates specifically to whether the
trial court properly applied these principles to the facts that it had found had been proved. In
considering whether it did, it is necessary to quote fairly fully the trial court’s reasoning relevant
to whether the accused had acted with dolus eventualis when he fired the fatal shots through the
door of the toilet cubicle. In this regard it said the following:
“I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased behind the toilet
door; and
2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to
the possibility that it could be the deceased in the toilet?
The evidence before this court does not support the state’s contention that this could be a
case of dolus eventualis.
On the contrary the evidence shows that from the onset the accused believed that, at the
time he fired shots into the toilet door, the deceased was in the bedroom while the
intruders were in the toilet. This belief was communicated to a number of people shortly
after the incident.” [Emphasis added.]
After recording that the accused had told the persons who first arrived on the scene, including Dr
Stipp and the police, that he had shot the deceased believing that she was an intruder, the court
continued:
“Counsel for the defence correctly argued that it was highly improbable that the accused
would have made this up so quickly and be consistent in his version, even at the bail
application before he had access to the police docket and before he was privy to the
evidence on behalf of the State at the bail application.
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The question is: Did the accused foresee the possibility of the resultant death, yet
persisted in his deed reckless whether death ensued or not? In the circumstances of this
case the answer has to be no. Although during argument counsel for the state referred to a
good grouping of bullets fired at the door as proof that there was intention to kill the person
behind the door there was nothing in the evidence to support this. How could the accused
reasonably have foreseen that the shots he fired would kill the deceased or whoever was
behind the door? Clearly he did not subjectively foresee this as a possibility that he would
kill the person behind the door, let alone the deceased, as he thought she was in the
bedroom at the time. The version of the accused was that had he intended to kill the
person behind the door he would have aimed higher at chest level. This was not
contradicted.
To find an intention to kill the deceased, in particular, would be tantamount to saying,
inter alia, that the accused’s reaction after he realised that he had shot the deceased was
faked; that he was play acting merely to delude the onlookers at the time.
Doctor Stipp, an independent witness who was at the accused’s house minutes after the
incident had occurred, stated that the accused looked genuinely distraught, as he prayed to
God and as he pleaded with him to help save the deceased. There was nothing to gainsay
that observation and this court has not been given any reason to reject it and we accept it
as true and reliable. This court also accepts that there was no intention to kill the person
behind the door. It follows that the accused’s erroneous belief that his life was in danger
excludes dolus. The accused, therefore cannot be found guilty of murder dolus eventualis.”
[Emphasis added.]
[28] I find the reasoning in this passage to be confusing in various respects. The rhetorical
question “How could the accused reasonably have foreseen that the shots he fired would kill the
deceased or whoever was behind the door?” wrongly applies an objective rather than a subjective
approach to the question of dolus. The issue was not what was reasonably foreseeable when the
accused fired at the toilet door but whether he actually foresaw that death might occur when he
did so. As Holmes JA emphasised in Sigwahla:
“The distinction must be observed between what actually went on in the mind of the
accused and what would have gone on in the mind of a [reasonable person] in the position
of the accused. In other words, the distinction between subjective foresight and objective
foreseeability must not become blurred.”
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Moreover, the question indicates that the court found the presence of a person behind the door
not to have been reasonably foreseeable; but this is at odds with its subsequent conclusion that
the accused was guilty of culpable homicide on the basis that a reasonable person in the same
circumstances would have foreseen the reasonable possibility that the shots fired at the door of
the toilet might kill whoever was in the toilet.
[29] Furthermore, the finding that the accused had not subjectively foreseen that he would
kill whoever was behind the door and that if he had intended to do so he would have aimed
higher than he did, conflates the test of what is required to establish dolus directus with the
assessment of dolus eventualis. The issue was not whether the accused had as his direct
objective the death of the person behind the door. What was required in considering the presence
or otherwise of dolus eventualis was whether he had foreseen the possible death of the person
behind the door and reconciled himself with that event. The conclusion of the trial court that the
accused had not foreseen the possibility of death occurring as he had not had the direct intent to
kill, shows that an incorrect test was applied.
[30] There was a further fundamental error. It is apparent from the extract of the judgment
quoted above, in particular the two questions posed at the outset and the passages that I have
emphasised, that the trial court’s consideration of dolus eventualis centred upon whether the
accused knew that the person in the toilet cubicle was Reeva, and its conclusion that dolus
eventualis had not been proved was premised upon an acceptance that, as he had thought Reeva
was in the bedroom, he did not foresee that she was the person in the toilet. Simply put, the
finding was that as the accused did not realise that it was Reeva in the toilet, he did not foresee
that his action in shooting could cause her death and he could not be held guilty of her murder.
[31] This finding goes to the heart of the first question of law reserved, ie whether the
principles of dolus eventualis, including so-called “error in objecto”, were properly applied. In this
regard, it is necessary to stress that, although a perpetrator’s intention to kill must relate to the
person killed, this does not mean that a perpetrator must know or appreciate the identity of the
victim. A person who causes a bomb to explode in a crowded place will probably be ignorant of
the identity of his or her victims, but will nevertheless have the intention to kill those who might
die in the resultant explosion. Reverting to the lexicon of a lawyer, this is known as intent in the
form of so-called “dolus indeterminatus”, ie the killing of an indeterminate person. It is not a
form of intention apart from dolus directus or dolus eventualis; it is merely a label meaning that
the
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perpetrator’s intention is directed at a person or persons of unknown identity. A perpetrator can

therefore act with dolus indeterminatus simultaneously with dolus eventualis. For example, as
Snyman points out, and as this court has recently observed, our courts have consistently held
persons engaged in a wild shoot-out in the course of an armed robbery to be liable for murder on
the basis of their having acted with both dolus eventualis and dolus indeterminatus where
persons were killed as a result.
[32] What was in issue, therefore, was not whether the accused had foreseen that Reeva
might be in the cubicle when he fired the fatal shots at the toilet door but whether there was a
person behind the door who might possibly be killed by his actions. The accused’s incorrect
appreciation as to who was in the cubicle is not determinative of whether he had the requisite
criminal intent. Consequently, by confining its assessment of dolus eventualis to whether the
accused had foreseen that it was Reeva behind the door, the trial court misdirected itself as to
the appropriate legal issue.’
• Negligence is another form of fault. It also renders an offender liable to punishment. The
test for negligence is not the subjective state of mind of a person. There is no requirement
that a person wanted to realize a certain consequence and accepted the risk. The test for
negligence is what the reasonable careful person in the accused’s position would have
done. If the accused acted with a lesser degree of care than the reasonable person, he is
deemed to be negligent.
The ‘reasonable person’ is not a specific individual or member of a group. It is an objective
standard to which content has to be given by the magistrate or judge, by reference to
comparable precedents.
Most crimes require the perpetrator to have acted with intention. Murder is such an example.
Other examples are assault, malicious injury to property and theft. In some instances only
negligence is required, such as the crime of culpable homicide.
Culpable homicide is the negligent killing of another person.
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In S v Dube 1972 (4) SA 515 (W) the difference between these forms of guilt is
illustrated. The facts were briefly as follows: A car thief stole a Valiant. A pursuit of 48
km by a police vehicle followed. A slow-moving lorry blocked the road. The car thief tried
to pass the lorry, but saw a Kombi approaching from the opposite direction. He then tried
to pass the lorry by going off the road to the left. Suddenly a ditch appeared in front of
him. He swerved to the right and hit the lorry’s left front wheel. The lorry driver got a
fright, swerved to the right and collided head-on with the approaching Kombi. The driver
of the Kombi was killed.
Was the car thief guilty of murder or culpable homicide? (In other words, did he act
intentionally or was he negligent?)
The judge found that there was definitely no actual intention. A vehicle may be used
as an instrument through which an actual intention can be realized. This would be the
case if A sees a person that he wants to kill, drives directly at him and over him.
Constructive intention cannot be imputed, the judge found. The car thief did not
foresee that the death of the driver of the Kombi would be occasioned by his conduct. He
passed to the left of the lorry in order to avoid a collision. His first aim and object was to
escape and not to collide with any motor vehicle. He did not foresee that the driver of the
lorry would react so violently and collide head-on with the Kombi. A driver would have
acted with constructive intention if he had passed the lorry by going to the right of it in
the direction of the oncoming Kombi. In such circumstances the driver would have
foreseen that a head-on collision could occur. Through his conduct he would have
accepted the risk.
The car thief was clearly negligent. His conduct did not fulfil the standards of the
reasonable careful person. The car thief was convicted of culpable homicide.
10.4.4 Causal link

Sometimes a further element is required for conviction. This is causation. Take murder and
culpable homicide as examples: One of the elements of these offences is that the accused must
have caused the deceased’s death. A causal link between the conduct (act) of the accused and
the death of the deceased is therefore required (between cause and effect).
If the chain between cause and effect is broken, the accused is not guilty of murder or culpable
homicide.
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Assume that the accused stabbed the victim with a knife. The victim suffered a wound in
his chest. When the ambulance arrived, the victim was still joking with bystanders. The
ambulance driver rushed to hospital, but skidded off the road and the ambulance rolled.
The victim was killed. The accused cannot be held accountable for the victim’s death. His
stabbing was not the direct cause of the victim’s death. In such a case he may be guilty
of attempted murder. The ambulance driver caused the victim’s death negligently and
can be indicted and convicted for culpable homicide.
Not all offences have causation as an element. Possession of dagga and negligent driving are
examples of offences not requiring any consequences. The mere fact of possession or of driving
through a series of red traffic lights is sufficient for a conviction.
10.5 Punishment and sentence

10.5.1 Aims
The aim of a criminal trial is to punish offenders. This does not, however, explain why offenders
are punished.
• Punishment aims to rehabilitate or reform the offender. Developments in psychology and
psychiatry led to optimism about the possibility of the treatment and re-integration of
offenders in society. Recent experience, however, shows that this largely remains an ideal.
There is now growing pessimism about the possibility of meaningful rehabilitation.
• Punishment serves as a deterrent. This works both individually and generally
(collectively). The aim of punishment is to prevent a specific offender, other potential
offenders and previously convicted offenders from committing crime. Some offenders, so the
theory goes, will learn from their own ‘clash with the law’. Others will learn from the example
of another’s clashes with the legal system. If potential offenders are deterred from
committing crime, this will also have the indirect consequence of preventing crime.
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Figure 10.1
• Punishment can be directly preventative. The death penalty is the best example of a direct
preventative measure. A prison sentence (removing an offender for a long period from the
community) is also a direct form of prevention, for the duration of the offender’s removal
from the community. This aim of punishment can be termed prevention or incapacitation.
• Originally the principal aim of punishment was revenge. It was to amend wrongs by
exacting an eye for an eye and a tooth for a tooth. The underlying idea is that an offender
deserves some form of punishment to compensate for causing pain to, or the mortification of,
the community. In its modern guise revenge is but only one of the aims of punishment.
Some people are of the opinion that taken in isolation this is a barbaric and outdated aim.
Others maintain that this is the real aim of punishment.
• It seems likely that restoration will become more important as an aim of punishment. In
this model a crime is not only treated as breaking a law but also as an injury or wrong done
to another person. Sentencing should be directed at resolving the conflict between the victim
and the offender. It is acknowledged that a victim’s right to recover damages through civil
procedure is often of little comfort. For this reason a compensation scheme for victims of
crime is likely in the future (as proposed by the South African Law Reform Commission).
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10.5.2 Appropriate sentence

After conviction sentence must be passed. Fixed sentences are not prescribed for common-law
offences. The presiding officer must therefore use her discretion to determine an appropriate
sentence. However, the discretion cannot be exercised freely. As set out in S v Zinn 1969 (2) SA
537 (A), the following three aspects (or ‘triad’) must be taken into account:
• the seriousness of the offence;
• the interests of the community; and
• the particular personal circumstances of the offender, thereby individualising the
sentence.
From these the judge or magistrate must deduce the aggravating and mitigating factors.
Aggravating factors are, for example, the fact that the offender had been previously convicted,
that it is a serious offence and that the offence is prevalent in the area of the court’s jurisdiction.
Mitigating factors can include the following: the accused is a first offender; he shows true remorse;
or he is a child, which reduces his moral blameworthiness.
Passing sentence is not an aimless exercise that has to be followed merely to finalise a case. It
must be undertaken with a specific aim in mind. The sentencing officer must ask himself how the
aims of punishment will best be served in the specific sentence. Undue weight should not be
given to only one of the aims of punishment.
The judge must give the judicially correct sentence. This must however be tempered with a
measure of compassion, so that the sentence is not used as a sledgehammer to demolish the
accused. This measure of human understanding is called mercy. Holmes JA set out the content of
mercy in S v Rabie 1975 (4) SA 855 (A) as follows (at 862D–F):
‘(i) It is a balanced and humane state of thought.
(ii) It tempers one’s approach to the factors to be considered in arriving at an appropriate sentence.
(iii) It has nothing in common with maudlin sympathy for the accused.
(iv) It recognises that fair punishment may sometimes have to be robust.
(v) It eschews insensitive censoriousness in sentencing a fellow mortal, and so avoids severity in anger.
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(vi) The measure of the scope of mercy depends upon the circumstances of each case.’
Therefore, the balancing process in determining an appropriate sentence involves:
• offence, offender, community;
• mitigating factors and aggravating factors;
• aims of punishment; and
• mercy.
The facts and decision in S v Lister 1993 (2) SACR 228 (A) illustrate how this balance can
be struck. The accused was found guilty of the theft of approximately R100 000 by
forging amounts in the cheque book of her employer over a period of eleven months. Her
personal circumstances were the following: She was a 34-year-old bookkeeper, a widow
and the mother of a 14-year-old daughter. A psychiatrist investigated her circumstances
and found that she showed anti-social behaviour, which could be corrected through
psychotherapy. In the psychiatrist’s opinion a period of imprisonment would impede such
treatment. An aggravating factor was her three previous convictions for theft or fraud.
The total amount involved in these previous offences was R90 000. The Court of Appeal
confirmed the sentence of four years’ imprisonment. The court made the following
observation (at 232H):
‘The sentencing officer takes account of all the recognised aims of sentencing including
retribution; the psychiatrist is concerned with diagnosis and rehabilitation. To focus on the well-
being of the accused at the expense of the other aims of sentencing, such as the interests of the
community, is to distort the process and to produce, in all likelihood, a warped sentence.’
In the light of the Constitution, which contains a Bill of Rights, the passing of sentence must also
reflect the underlying values (ethos) of human rights. In S v Salzwedel 2000 (1) SA 786
(SCA) the Supreme Court of Appeal remarked as follows:
‘The commission of serious offence perpetrated under the influence of racism subverts the fundamental
premises of an ethos of human rights which must now permeate the processes of judicial interpretation and
judicial discretion including sentencing policy in the punishment of criminal offences.’
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Specific sentences are prescribed by statute in the case of statutory offences. The prescription
usually takes the form of a minimum and maximum penalty. The sentencing official retains a
measure of discretion, but may not move outside the ambit of the statutory prescriptions. The
following are examples of statutory prescriptions:
• failure to pay maintenance: a fine or three years’ imprisonment (also without the option of a
fine);
• driving with more than the prescribed alcohol content in the blood: a fine, or a maximum of
six years’ imprisonment, or both;
• failure by an employer to ensure that no person smokes in the place of employment: a fine
of up to R50 000.
10.5.3 Forms of punishment

The court must decide on the most appropriate form of punishment. In some cases the extent of
punishment must also be decided: the amount of the fine or the duration of imprisonment. These
issues also apply to the determination of a sentence where minimum and maximum statutory
requirements apply.
The following forms of punishment can be imposed in appropriate circumstances:
• Imprisonment This can be imposed for life. In practice the Minister of Correctional Services
has the power to release a person before his death. Periodic imprisonment (for example,
over weekends) enables a convicted person to still fulfil his responsibilities to his employer.
Imprisonment can also be suspended conditionally. This means that the convicted person
does not have to serve the term of imprisonment if he fulfils the conditions. The usual
condition is that a person must not be convicted of a similar offence within a specific time.
Community service can also be imposed as a condition.
• Fine This is the most common form of punishment today. It can be imposed as an alternative
to imprisonment, for example ‘a R600 fine or six months’ imprisonment’. If the fine cannot be
paid, the term of imprisonment must be served. It is unreasonable to set an amount that the
person cannot afford at all. Arrangements for payment in instalments can also be made.
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• Correctional supervision The aim of this form of punishment is to keep the offender out of
prison and to subject him to a programme of rehabilitation. The accused is placed under the
supervision of a correctional official for, for example, six months. During this time he is
ordered to attend a programme of rehabilitation and can be restricted to his house for certain
periods.
The accused in S v Kelly 1993 (2) SACR 492 (A) was found guilty of the theft of ten
leather jackets to the value of R6 000. He was a 35-year-old first offender, married and
responsible for the maintenance of four minor children. He was initially sentenced to two-
and-a-half years’ imprisonment. On appeal this was reduced because imprisonment was
not deemed appropriate. The case was referred back to the trial court to consider a
sentence of correctional supervision.
• Order for compensation The offender can also be ordered to compensate the victim and
his family if he caused damage to property. This sentence has the effect of a civil judgment
and is, at present, imposed relatively seldom.
• Postponed sentence The court can postpone sentence to a later date. This is usually linked
to a condition. This sentence is often imposed particularly in the case of young female
offenders for whom a reformatory is not appropriate.
• Caution and discharge The court can order this form of sentence after conviction for a
minor or technical offence.
• Alternatives for youthful offenders Youthful offenders can be ordered to attend a reform
school. They can also be placed under the supervision of a probation officer (social
worker).
10.6 Controversial form of punishment: death penalty

The death penalty divides people (also lawyers) into two groups: those in favour of its
reinstatement, and those in favour of it remaining outlawed.
The arguments for the two sides are briefly as follows:
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10.6.1 Arguments for reinstating the death penalty

• It has deterrent value.
• There is religious justification for this form of penalty in the Bible and the Quran.
• Public opinion demands it. Opinion polls in South Africa show that the majority of people
from all race groups are in favour of the death penalty.
• There is no realistic alternative. Life imprisonment is not appropriate because: a person
sentenced to life imprisonment can be released later; he can still be a threat to his co-
prisoners and prison personnel; and he can escape.
• Some cases are exceptional because the criminal shows no potential for rehabilitation.
• The prolonged imprisonment of a person places an unnecessary financial burden on
taxpayers.
• In a society where violent crimes are rife, the state has a responsibility to perform some
symbolic gesture to ‘turn the tide’.
Figure 10.2
See www.jutapassmasters.co.za for excerpts from the case S v Scott Crossley and
related articles and questions.
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10.6.2 Arguments against the death penalty

• There is no decisive scientific (empirical) proof that it has deterrent value.
• It is not justifiable on biblical grounds.
• The irreversible finality of this form of punishment is reached through a fallible process.
People can make mistakes and courts consist of people! In our law this fallibility was
aggravated by the use of the pro Deo system and the use of interpreters. In the pro Deo
system legal representation was provided to all accused persons in cases where the death
penalty could be imposed and they could not afford their own legal representation. In
practice, relatively inexperienced advocates fulfilled this role. They were not assisted by
attorneys. The court often makes use of an interpreter. Any translation leads to a loss of
meaning. Translated versions can easily be misunderstood.
• It conflicts with the basic right to life guaranteed in section 11 of the Constitution. The form
of execution also conflicts with basic human dignity because it is barbaric and inhumane.
• It is discretionary. Human life cannot be made dependent on an arbitrary process. The
executive authority (the President) also had the power to commute the death sentence. This
is a further discretionary power.
• This form of punishment over-emphasises the aim of retribution at the cost of other aims,
especially rehabilitation.
• The death penalty has been abolished in most ‘civilised’ states in the international
community.
• In most countries experience has shown that those sentenced to death are usually from the
lowest socio-economic class. In South Africa this class coincides with race. Thus
proportionally more black accused than accused from any other race groups have received
the death penalty.
10.6.3 Position in South Africa

Many of these arguments were raised in the course of S v Makwanyane 1995 (3) SA 391 (CC). In
this case, the Constitutional Court declared the death penalty to be an unconstitutional form of
punishment. The court’s decision is based on the finding that the death penalty is cruel
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and inhuman and therefore in conflict with section 11(2) of the interim Constitution (section 12(1)
(e) of the 1996 Constitution — see Chapter 6). From the date of the judgment the death penalty
could not be imposed or carried out.
Notwithstanding the judgment, the debate about the death penalty continues. Some political
parties are campaigning for the reintroduction of the death penalty.
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Chapter 11
Law of Criminal Procedure
Introduction
The law of criminal procedure prescribes how a suspected criminal is brought before court and
tried. It is the formal procedure or machinery which brings criminal law into operation.
Criminal procedure is an example of a codified area of law. The Criminal Procedure Act 51 of
1977 sets out these rules. The criminal process is mainly concluded in courts where these
statutory articles are applied in real cases. In this way the law functions practically. Case law thus
also forms part of the law of criminal procedure.
In Chapter 2 of the Constitution certain human rights are guaranteed to all people in South
Africa. Section 35 of the Constitution deals with the rights of arrested, detained and accused
persons. These rights are essentially a confirmation of the present legal position. But where the
existing legal position infringes guaranteed rights, it will be in conflict with the Constitution and the
law of procedure will have to be changed. We quote section 35 here in full, for you to understand
the transformative, constitutional approach to criminal procedure from the start:
‘35. Arrested, detained and accused persons

(1) Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in evidence
against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire
outside ordinary court hours or on a day which is not an ordinary court day;
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(e) at the first court appearance after being arrested, to be charged or to be informed of the
reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to reasonable
conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right
promptly;
(c) to have a legal practitioner assigned to the detained person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is
unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at least exercise
and the provision, at state expense, of adequate accommodation, nutrition, reading
material and medical treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;

(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
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(f) to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not practicable,
to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national or
international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has
previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information must
be given in a language that the person understands.
(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded
if the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice’.
11.1 Course of the process: scheme

The diagram below outlines the phases of and steps taken in the course of the process of criminal
procedure. The process is then described.
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Figure 11.1
11.2 Pre-trial
Before a person appears in court, certain steps have to be followed to ensure her presence in
court.
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11.2.1 Report
Crime is rife. Everyone knows how frequently violent crimes occur. Many of these crimes remain
unsolved. The conduct involved, though, remains criminal. It will not be punished if the criminal is
not brought before the courts. Often she is not even caught, because policing is inadequate.
The machinery of criminal law is usually put into operation once someone reports a crime to
the police. Sometimes the victim herself will lay a charge, for example the victim of an assault. A
member of the general public may also lay a charge, even though that person may not herself be
affected by the crime. Most passers-by who see thieves break into a shop will probably call the
police to alert them.
Some crimes do not have identifiable victims who are directly affected. Is anyone directly
harmed by the following crimes?
• A rich businessman evades taxes.
• A farmer deals in and sells uncut diamonds.
• A motorist in a rural town skips a stop-street shortly after midnight.
It is clear that there are no direct victims who will complain. But the motorist’s conduct does
indeed present potential risk, and the evading of taxes leads to a bigger burden of taxation on
others. In the interests of the community these crimes must be exposed. The police sometimes
use informants, or agents, for instance to prevent the illegal dealing in uncut diamonds or drugs.
A trap is then set in which the informant or agent is used to expose crime. However, the police
informant or agent must not initiate the crime herself.
Take the case of an unsuspecting visitor to a hotel in Port Nolloth. She is having a drink
when someone (the informant) suddenly shows her glittering stones and asks her if she
wants to do business. At first she is unwilling, but later she succumbs to the temptation.
A transaction is concluded. Is the informant’s conduct in the interest of law and order?
11.2.2 Investigation: police

It is the task of the police to investigate a complaint or charge. The investigating officer opens a
docket (a file) and gathers information. She will take sworn statements made by eyewitnesses or
the complainant
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and place them in the docket. Sometimes the police will search for clues at the scene of the crime.
In some cases it may be necessary to involve specialists (experts). A blood sample of a motorist
suspected of driving under the influence of alcohol can, for example, be sent for analysis. The
expert’s finding is placed in the docket in the form of an affidavit.
It is sometimes necessary to search a suspect’s person or property for clues to solve crime or to
prove the case. The personality rights of the suspect and other inhabitants of the property may be
affected, for example, their privacy may be violated when constables barge into a house at
midnight. For this reason the Criminal Procedure Act (section 20) curtails the powers of the police.
Usually such a search can only be done after a search warrant has been issued by a judge or
magistrate. There are some exceptions, giving a greater measure of discretion to the police. If the
police are of the opinion that such a warrant will be granted, but a delay in obtaining one will
defeat the whole object of such a warrant, they may continue their search without one. If their
conduct does not comply with statutory requirements, they can be prosecuted or compensation
can be claimed from them.
11.2.3 Decision to prosecute: Director of Public Prosecutions

When an investigating officer is satisfied that the information in the docket is sufficient to prove
the case, she hands it to the Director of Public Prosecutions (DPP) (previously known as the
Attorney-General (AG)). The DPP alone decides if a prosecution can be instituted on the basis of
the facts in the docket. This decision is taken independently from the police. Obviously the DPP
cannot decide on all cases personally, so this power is delegated to public prosecutors in the lower
courts and state advocates in the higher courts. In terms of the Constitution the head of the
prosecuting authority in the country is the National Director of Public Prosecutions (NDPP), who
may intervene in any prosecution.
A prosecution is instituted if a prima facie case is made out against the accused. The test is
whether a reasonable person will, at first glance, form the opinion that there is sufficient evidence
to prove the case against the accused.
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Zuma likely to challenge Abrahams’ decision to prosecute

Christina Pitt, Mail & Guardian, 7 March 2018
Former president Jacob Zuma may challenge National Director of Public Prosecutions
(NDPP) Shaun Abrahams after he announced that the National Prosecuting Authority
(NPA) will proceed with prosecution against him.
Abrahams announced on Friday that Zuma’s representations to avoid his day in court
were unsuccessful and that he would be facing 16 charges of corruption, fraud, money
laundering and racketeering.
Zuma’s lawyer Michael Hulley said that he had received a ‘terse response’ from
Abrahams regarding the unsuccessful representations.
‘The rationale for this decision is not clearly apparent from the communication, nor is
the basis for refusal,’ said Hulley.
It appears that the likely course of action is to take the NDPP’s decision on review,
according to Hulley.
‘This decision will however only be made after careful consideration and consultation
with Mr Zuma.’
The charges were reinstated nine years after former NDPP Mokotedi Mpshe
‘irrationally’ dropped the charges in 2009, based on the recordings of the so-called ‘spy
tapes’ presented by Zuma’s legal team.
The tapes were made up of recordings of telephone conversations between then
Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka, which Zuma’s
legal team claimed showed political interference in the decision to charge him.
Zuma was [sworn] in as president after the charges were withdrawn.
A charge sheet (or indictment in the High Court) is drafted. This sets out the particulars of the
alleged offence with which the accused is charged. Having a sufficiently detailed charge formulated
against the accused is their constitutional right in terms of section 35(3). The following is set out
in the charge sheet:
• the relevant conduct;
• where and when it was committed.
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Example charge sheet for murder

THE ACCUSED IS GUILTY OF THE CRIME OF MURDER
IN THAT on or about 14 May 2018 and at or near nr 6 Villa Flats, Sunnyside, in the
district of Pretoria, the accused caused the death of Jane Doe, a major female person, by
unlawfully and intentionally stabbing her with a knife.
If the DPP or prosecutor refuses to prosecute because the case was not investigated fully, the
suspect is not discharged. The police can continue with their investigation and, if more
comprehensive information is obtained, the docket can be submitted again. If the DPP refuses to
prosecute, a complainant may also institute a private prosecution. This is exceptional and requires
a monetary deposit.
11.2.4 Accused brought before court: arrest or summons

After the investigation is completed and a charge sheet drafted the accused can be brought before
the court in one of two ways. An arrest will be made if there is reason to believe that the accused
will try to escape.
Arrested persons have certain constitutional rights guaranteed in section 35(1) quoted at the
beginning of this chapter. Important rights of arrested persons include that they have the right to
remain silent and that they must be told about that right. In American movies (or in certain cliques
of South African lawyers) you will hear people speaking about an arrested person’s ‘Miranda
Rights’. The term comes from the United States Supreme Court case of Miranda v State of Arizona
384 US 436 (1966) where the right to silence and the right to be warned thereof was confirmed.
In the South African context, the Constitution makes it clear that the accused must be brought
before a court for the first time within 48 hours of the arrest. However, if there is no reason to
believe that the accused will try to escape, she can be warned by means of a summons or
notification to appear in court on a specific date. If she does not appear she will be in contempt
of court. She will then be arrested and brought before court. It goes without saying that an
arrested person may not be forced (including tortured) into making a confession.
In some cases the suspect will be arrested even before a charge sheet is drafted or a docket is
opened. If someone is caught red-handed in the act of committing a crime, the police will arrest
her there and then.
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The suspect must still be brought before the court within 48 hours. The investigation must be
completed and a charge sheet drafted as soon as possible.
11.2.5 Bail
The accused who receives a summons is informed in it when to appear in court. If she is arrested
she will appear in court within 48 hours. Usually the case will then be postponed to a later date for
trial. Must the accused be kept in custody until the date of the trial?
The answer is no. Section 35 of the Constitution clearly states that an accused must be released
if it is in the interest of justice to do so. An accused who is detained on a relatively minor charge
will sometimes be released with a warning. A youth can be released into the care of her parents.
Generally bail is granted. Bail is an amount of money paid to the court. It is a means of ensuring
that the accused will attend her trial. If the accused does not appear on the trial date, the amount
of money is forfeited to the state. If she does appear, the amount will be reimbursed to her after
the trial has run its course.
The question whether bail will be granted depends on the following factors:
• Will the accused attend her trial or will she possibly try to escape and flee? In this regard a
permanent abode, the severity of the offence, fixed employment and family ties will be
considered.
• Will the accused possibly commit an offence again before the trial date?
• Will the accused possibly interfere with witnesses or obstruct the investigation?
If there is a strong likelihood of any of these possibilities occurring, bail will not be granted. In
such a case, the accused will be detained during the trial. Such a detained person has the same
constitutional rights as a prisoner. The reasons for detention must be given to the detainee and
such detention must be conducive to the detainee’s dignity. Detained persons must have access to
their legal representatives while detained and must be able to see or communicate with their loved
ones.
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Throughout the remainder of this chapter we will be giving you examples from the case
surrounding the Communist Party leader Chris Hani’s death. Clive Derby-Lewis was
convicted for murdering Hani. Derby-Lewis provided the gun to Janusz Walus who pulled
the trigger that killed Hani. We do this to tell a story that is often left out of conventional
accounts of South Africa’s legal history and to show you how the different steps of the
criminal procedure plays out in a given case. From The Star, 10 August 1993
‘Gaye Derby-Lewis was granted R30 000 bail by the Rand Supreme Court — but is to be kept
under round-the-clock police supervision at a secret venue until the Hani assassination trial
begins in October.’
11.3 Trial
The trial is that part of the process that takes place in court itself. The rights of the accused
guaranteed in section 35(3) of the Constitution become particularly relevant during this phase. So
the accused has the right to a legal representative and they must be given enough time to prepare
a defence. Furthermore, the accused should be present during the trial, is not compelled to give
self-incriminating evidence, and has a right to challenge the evidence produced by the state. At all
times (until the verdict is delivered) the accused is presumed to be innocent.
The trial consists of two stages:
• trial on the merits (the question of guilt or innocence);
• trial on sentence (the question of an appropriate punishment following a conviction).
11.3.1 Trial on merit

(a) Plea
After the prosecutor has put the contents of the charge sheet to the accused, she must plead. A
plea is basically either an admission or a denial of the allegations in the charge sheet. An
admission is a plea of guilty. A denial is a plea of not guilty.
• If the accused pleads guilty, she may be found guilty immediately. This is usually the case in
lesser offences, where the possible sentence is neither imprisonment without the option of a
fine, nor a large fine. If the offence is more serious, the court cannot accept
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the accused’s plea offhand. The court must first ask questions to ascertain whether the
accused understands all the elements of the offence and really wants to plead guilty. This is
necessary because lay people often misunderstand the law. For example, on a charge of
murder a woman may plead guilty because she had, in fact, killed her husband. Questioning
the woman could reveal that she had killed him because she was sexually abused and
assaulted. In these specific circumstances she will have a defence in the form of provocation
or self-defence (private defence). The court will then enter a plea of not guilty and the case
will proceed as if the accused had pleaded not guilty.
• After entering a plea of not guilty the accused is given an opportunity to give an
explanation of plea. She is not bound to do so. The aim of such an explanation is to
identify the issues in dispute. This means that the accused (or her legal representative) will
show which elements of the offence are admitted and which are disputed. In our example the
accused may admit that she killed her husband intentionally, but she can deny that she acted
unlawfully, as she acted in self-defence. Sometimes all the elements are placed in dispute,
for example if she alleges that she was not at the scene of the crime at all (alibi defence).
From The Star, 8 October 1993

Alleged assassin Janusz Walus handled a gun in the home of Clive and Gaye Derby-Lewis
four days before SACP general secretary Chris Hani was murdered, a surprise witness
told the Rand Supreme Court yesterday.
The Derby-Lewises’ domestic worker, Elizabeth Matshwane, said the right-wing trio had
met for breakfast at the couple’s Krugersdorp home on April 6.
Some time after breakfast, Clive Derby-Lewis had called Matshwane to take a
telephone call. Matshwane said as she walked past the sitting room, she saw Walus
sitting on a sofa with a gun in his hand.
Clive Derby-Lewis was sitting with him. Gaye Derby-Lewis was not with them,
Matshwane said. Waluz was still holding the gun when her telephone call ended, she said.
Investigating officer Warrant-Officer Mike Holmes told the court Clive Derby-Lewis had
said in a statement he had not seen Walus since December.
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The hearing has been postponed to Tuesday to enable the State to call a witness who
is in the United States.
Matshwane said she had worked for the Derby-Lewises for five years. She had seen
Walus before and had heard Gaye Derby-Lewis call him ‘Kuba’ (a nickname from his
middle name, Jacub).
Cross-examined by Clive Derby-Lewis’s counsel, Hennie de Vos, SC, Matshwane
strongly denied that her view of the sitting room had been blocked by a sharp turn in the
passage.
She disputed a suggestion by De Vos that she had seen many people visiting the
house and said she did not know whether Clive Derby-Lewis was involved in politics. (He
was the CP representative on the since-disbanded President’s Council.)
(b) State case

Next, the state will try to prove beyond reasonable doubt that the accused is guilty as charged.
This will generally take the form of calling witnesses. A witness who saw the offence committed is
an eye-witness. An expert may also give evidence, for example about fingerprints found at the
scene or about the possibility that a bullet was fired from a specific weapon. In each case the
witness is sworn in, gives evidence and is cross-examined. There is an opportunity for re-
examination in each instance (as in a civil trial — see Chapter 9). The state will sometimes hand in
documents (a company’s balance sheet) or concrete evidence (a murder weapon such as a knife or
an AK-47). When the public prosecutor is of the opinion that the case has been proved beyond
reasonable doubt, she closes the case.
(c) Defence case

The accused usually answers the state’s case by personally giving evidence. She tries to convince
the court that there is a reasonable possibility that her version is true. If the court agrees, she will
be found not guilty. Other people may also give evidence to prove her innocence. The accused can
for instance allege that she was not on the scene of the crime at all. To prove (corroborate) her
alibi, a person who was with the accused at a different place when the crime was committed can
testify. After being sworn in, the accused and her witnesses testify. The public prosecutor will then
test the evidence by cross-examination. An opportunity for re-examination is given. The accused
gives evidence
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first, followed by other possible witnesses. Finally, the accused (or her legal representative) closes
the defence case.
There is no duty on the accused to give evidence after the closing of the state’s case. If she (or
her legal representative) is of the opinion that the state has not proved her guilt at all, she can
apply for discharge (acquittal) after the state has presented its case. If such an application is
granted, the accused is discharged and found not guilty without having to put her own case. She
can never be charged on the same facts again. The criterion the court uses is whether a
reasonable person could possibly convict the accused on the evidence before the court.
The defence can also decide to close its case without leading evidence. This may occur when
an application for discharge fails because the test for a discharge and that for a conviction are
different. Although the court might have turned down the application for discharge because the
evidence was sufficient for a reasonable person possibly to convict the accused, guilt must be
proved beyond reasonable doubt for a conviction in a criminal case.
From Pretoria News, 13 October 1993

THE Judge President of the Transvaal has dismissed an application by Chris Hani murder
accused Gaye Derby-Lewis for acquittal at the end of the State’s case.
Mrs Derby-Lewis’ counsel, Harry Prinsloo, brought the application yesterday after her
husband, Clive Derby-Lewis, and alleged hitman Janusz Walus closed their defences
without testifying.
The rightwing trio have pleaded not guilty to murder, conspiracy to murder and illegal
possession of a firearm and ammunition.
Mr Prinsloo told Mr Justice C F Eloff and two assessors that the State had failed to
make a case against his client. Statements made by her husband and by Mr Walus did
not implicate her in the alleged crimes, he said.
The State had not proved that she had given Mr Walus an alleged hitlist found in his
flat after his arrest. The court heard earlier that the list had been drawn up by former
Citizen reporter Arthur Kemp at Mrs Derby-Lewis’ request.
Although the court heard Mr Walus had handled a gun after a breakfast at the Derby-
Lewises’ Krugersdorp home four days before the murder, the State had not led evidence
of what was discussed. Nor had it proved that Mrs Derby-Lewis was present when Mr
Walus allegedly handled the gun, Mr Prinsloo argued.
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The State alleged that the gun had been delivered to the Derby-Lewises’ home but had
not proved that Mrs Derby-Lewis saw the weapon or knew anything about it, Mr Prinsloo
said.
Mr Justice Eloff dismissed the application without hearing argument from
Witwatersrand Attorney-General Klaus von Lieres, SC.
(d) Arguments
After both sides have completed their cases on the merits, the legal representatives are given an
opportunity to address the court. An unrepresented accused is also given such an opportunity.
Argument addresses the facts and the law applicable to the case. The state will argue the guilt of
the accused, the defence her innocence.
From The Citizen, 14 October 1993

THERE were no grounds on which Polish immigrant Janusz Walus could be acquitted of
the murder of South African Communist Party secretary-general Chris Hani, his legal
counsel, Mr Eben Jordaan, conceded during his closing argument yesterday.
Mr Jordaan told the Rand Supreme Court on the sixth day of the murder trial the
evidence given by ballistics expert, Captain L Visser, presented him with ‘insurmountable
difficulties’ in asking for an acquittal on the charge of murder against his client.
The South African Police ballistics experts said extensive ballistics tests proved
conclusively the four cartridges found next to Mr Hani’s body were fired from the Z88
9mm firearm found in the possession of Mr Walus minutes after the SACP leader was
shot dead at his Dawn Park, Boksburg, home on April 10.
Mr Jordaan also accepted his client was found in possession of the Z88 for which he
did not have a licence.
(e) Finding
After considering the arguments, the presiding officer makes a finding. To a great extent this is a
choice between the two sets of arguments presented in court. The finding is based on the facts
(for example, whether the accused indeed was at the scene of the crime) and the applicable law
(for example, whether the accused acted negligently or with intention).
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The court hands down a finding of guilty or not guilty. A competent verdict is also possible.
For example, if a person is accused of murder, but only negligence is proved, she can be found
guilty of culpable homicide although she was not charged with that crime. A conviction of culpable
homicide is thus a competent verdict on a charge of murder.
The judge or magistrate gives reasons for a decision. Findings of fact are made. The applicable
legal position is sketched and the facts are applied to the law.
A finding of not guilty leads to a discharge. The accused is free to go. She can never be charged
on the same facts before a criminal court again.
Two found guilty of murdering ANC chief: Brother pleads for life of Polish
immigrant facing death penalty
John Carlin, Independent on Sunday (online), 15 October 1993
Janusz Walus [was] found guilty along with his co-accused, Clive Derby-Lewis, of the
murder on 10 April of the leading Communist in the African National Congress, Chris
Hani.
Derby-Lewis’ wife, Gaye, was acquitted on all counts and then promptly left the court,
not waiting to hear the testimony of Stanislav Walus, summoned by the defence to argue
the case in favour of mitigation of sentence. The death penalty is mandatory for murder
in South Africa unless convincing extenuating circumstances are put forward.
Justice C F Eloff, who is expected to pronounce sentence today, ruled yesterday that
Janus Walusz, 38, was guilty of having fired the four shots that killed Hani, an incident
that precipitated a nationwide crisis. Derby-Lewis, who failed to testify, was pronounced
guilty on the grounds that it was he who supplied Walus with the murder weapon.
Walus, a polish immigrant, and Derby-Lewis, a former Conservative Party MP, were
also found guilty of the illegal possession of a firearm.
The judge said that while he found Mrs Derby-Lewis’ testimony unacceptable and far-
fetched, he had been unable to discern sufficient hard evidence against her.
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...
In a statement issued later the ANC said it was ‘deeply disturbed’ by Mrs Derby-Lewis’s
acquittal.
‘While the hit-men who murdered Chris Hani were found guilty, the main plotters, including Gaye
Derby-Lewis, got off scott free. Justice has not yet been done, nor seen to be done,’ the ANC
said. ‘The ANC will continue to pursue investigations into this conspiracy to kill our leaders’.
See www.jutapassmasters.co.za for text and questions.
11.3.2 Trial on sentence

After conviction the court must decide on an appropriate sentence. The trial on sentence proceeds
as follows:
• The previous convictions (if any) of the accused are proved.
• After this the defence highlights mitigating factors. The legal representatives can argue on
the facts that are already before the court. The accused can, however, elect to give evidence
herself about her personal circumstances, motive for the offence and possible remorse. Other
persons (such as family members) or experts (for example a psychologist, psychiatrist or
sociologist) can also give evidence on the accused’s background and personality. Evidence is
still subject to cross-examination.
• The state then has the opportunity to bring aggravating factors to the court’s attention.
This can be done through argument or by means of evidence.
• In its finding on an appropriate sentence the court gives a ‘second’ judgment. The court
will usually give reasons why a specific form and term of sentence has been imposed.
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From the Cape Times, 16 October 1993

JOHANNESBURG — A jubilant crowd burst out cheering and singing in the Rand Supreme
Court yesterday when CP politician, Clive Derby-Lewis and Polish immigrant, Janusz
Walus, were sentenced to death for the murder of SACP leader Mr Chris Hani.
SACP secretary-general Mr Charles Nqakula called on the crowd to ‘hunt down’ those
who had escaped arrest and ANC PWV chairman Mr Tokyo Sexwale told the euphoric
crowd it had been suggested to him that the two should be hanged in public at the First
National Bank stadium where Mr Hani’s funeral had taken place.
The suggestion was greeted with cheers.
ANC President Mr Nelson Mandela welcomed the sentence as the best the court could
have imposed under the circumstances.
But he told a news conference here that a decision on the execution of the sentence
would be made by a future government.
The ANC has in the past been opposed to the death sentence.
Walus and Derby-Lewis showed no emotion and neither man had anything to say when
given a chance to do so before sentencing.
Passing sentence, Mr Justice C F Eloff said Derby-Lewis and Walus had arrogated to
themselves the right to take a life.
‘For that they have to pay.’
‘The murder was deliberate, cold-blooded and cowardly in the extreme,’ he said.
Mr Justice Eloff said it was necessary that the sentence send out a clear message to
deter people contemplating assassination.
11.3.3 Plea agreement

In order to address the problem of delays in the finalisation of criminal cases, an amendment to
the Criminal Procedure Act in 2001 introduced the possibility of plea agreements. In such an
agreement, concluded between the accused and an authorised prosecutor, the accused admits her
guilt and a sentence is agreed upon. However, because the accused must have legal
representation, this possibility will have limited application. The plea agreement must be in writing,
and must be reached before the accused pleads to the charge.
After being informed that there is a plea agreement, the presiding officer will ask the accused to
plead. The court then questions the accused to satisfy itself of the accused’s guilt and to establish
that the sentence is just. If the court is so satisfied, it convicts and sentences the accused in
accordance with the agreement. If the court does not agree
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that the agreed sentence is just, it will indicate what other sentence it considers to be just. The
accused may accept or reject this sentence. If she rejects the proposed sentence, the trial must
start anew (de novo).
The main advantage of reaching a plea agreement is that it dispenses with the need for a
lengthy trial involving the testimony of witnesses and other evidence. In the plea agreement
process, the merits and sentencing phases are conflated into one.
See www.jutapassmasters.co.za for material on plea agreements and the accompanying

questions.
11.4 After trial

After the sentence is set, the court adjourns. The trial is over and the function of the court is
fulfilled. But the sentence will remain meaningless if it is not executed. A fine must be paid to the
clerk of the court. If it is not done, a term of conditional imprisonment can come into operation
and will be enforced. Officials of the department of correctional services take convicted persons to
the prisons and oversee their detention. These officials also oversee the execution of sentences of
correctional supervision. Even the death penalty was executed by an official.
The executive authority (the President) has a discretion to commute sentences and could
pardon those sentenced to death. The prison authorities may also release a prisoner on parole
before her term of imprisonment has expired. Under the Correctional Services Act 111 of 1998, a
sentenced person ‘in the final phase of any terminal disease’ may be released on parole.
From the Mail & Guardian, 29 May 2015

Clive Derby-Lewis, who provided the gun that killed SA Communist Party leader Chris
Hani, should be allowed to go home on medical parole, the High Court in Pretoria ruled
on Friday.
The conditions of his parole will be determined by Justice and Correctional Services
Minister Michael Masutha and the Medical Parole Board. This is with immediate effect.
The prison was ordered to comply with the order by no later than June 5.
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The respondents were ordered to pay the cost of the application. Judge Selby Baqwa
went over one-and-a-half days of dense legal argument over whether the prisoner had
Stage 3b or Stage 4 inoperable lung cancer, and whether he had shown remorse for his
part in the murder of Hani.
He was denied parole on January 30 this year by Masutha, and his lawyers applied to
the court for a review of the decision.
Derby-Lewis, who escaped the death penalty when capital punishment was abolished,
has served over 21 years in prison. Doctors detected the lung cancer last year, while he
was being treated after being stabbed in prison. Masutha turned down his parole on the
grounds that his cancer was Stage 3 and not Stage 4. The prisons laws and regulations
state that cancer must be at Stage 4 for medical parole to be considered.
His lawyer, Roelof du Plessis, insisted in the High Court in Pretoria that two out of
three doctors had found signs of Stage 4 inoperable cancer and could not understand
why the third on the panel of three specialists, a Dr Mike Sathekge, had not found the
same.
In an effort to show that Derby-Lewis had shown remorse, Du Plessis said there had
been an invitation to Hani’s widow, Limpho, to visit him in hospital for a face-to-face
apology. She has not taken up the offer.
11.5 Possibility of appeal and review

A convicted person does not have to comply immediately with the decision of the court. An appeal
may be lodged against the conviction, against sentence or both. A court higher up in the hierarchy
of courts will reconsider the decision. If there was an irregularity in the procedure, the case can
also be reviewed by a higher court, for example when the proceedings were not translated
properly by an interpreter or the accused was not given an opportunity to present her own case.
The rights to appeal and review are constitutionally guaranteed in section 35(3).
Appeal and review procedures give the opportunity for a further trial. Sentence is not executed
until the appeal or review has been concluded. A person convicted to imprisonment will usually be
granted bail pending appeal.
Appeal or review is not a second trial in which evidence is presented again. The legal
representative (or accused) will argue on the record of the case at the trial stage. This is why
court proceedings are recorded and transcribed.
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Reports such as the one below show that there is something seriously wrong with our criminal
justice system. What do you think are the reasons for this situation?
8% of rape suspects convicted

From the Saturday Star, 29 January 2000
Of all serious crimes which are reported to the police, just one in eight results in a
conviction. And, shockingly, rape and child abuse — which have been declared national
priority crimes — are the offences least likely to see perpetrators thrown behind bars.
Over the past two years, about one in 12 accused child abusers and rapists were
convicted.
An analysis of official police crime statistics for 1997 and 1998 shows that only
12,71% of serious crimes during the two years resulted in convictions.
The analysis covers the country’s worst crimes — murder, rape, burglary, drug-related
crime and driving under the influence. Of a total of 985 853 crimes, only 125 320 guilty
verdicts were delivered.
And while the staggering number of reported murders increased marginally in 1997
from 24 588 to the 1998 figure of 24 875, the conviction rate decreased from 16,7 to
15,6%
When police allegedly told a Vosloorus woman to find the men who raped her
daughter, the public was outraged. But looking at conviction statistics for rape, the
question begs to be asked: Would she have seen justice even if her attackers were
caught?
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Chapter 12
Law of Evidence
Introduction
There is a close connection between this chapter and the chapters on civil and criminal procedure
(see Chapters 9 and 11 above). In those chapters we saw that there is a trial stage in both civil
and criminal cases. During the trial, the parties prove the facts of the case and the court
evaluates the evidence.
The law of evidence encompasses all the rules that regulate the manner in which facts are
proved in court. It determines what material may be presented as evidence, by whom, in what
manner and the weight attached to it (its probative value). The purpose of these rules, together
with the rules of the law of procedure, is to ensure a fair trial for each party. The law of evidence,
like the law of procedure, forms part of adjective law.
We have already touched on certain aspects of the law of evidence in some of the preceding
chapters. In a civil case, the burden of proof lies on the one who asserts — she must prove. In a
criminal case, the burden of proof always lies on the state. A civil case must be proved on a
balance of probabilities, but a criminal case beyond reasonable doubt. We discussed the role of
oral evidence in court, and we saw that the parties in application proceedings prove the facts in
documents known as affidavits.
The South African law of evidence has its roots in English law where the rules of evidence were
developed for trials by jury. The jury did not consist of lawyers but of lay people. They could easily
be emotionally swayed by evidence which was not actually relevant. Consequently, the approach
adopted was to exclude prejudicial evidence by rendering it inadmissible. In the European
(continental) system, the approach is to admit all evidence. The court then decides on the weight
to be accorded to it. Although trial by jury has been abolished in South Africa, we still follow the
English approach.
Presently the South African law of evidence is largely codified in the following legislation:
• the Civil Proceedings Evidence Act 25 of 1965;
• the Criminal Procedure Act 51 of 1977;
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• the Law of Evidence Amendment Act 45 of 1988;

• the Electronic Communications and Transactions Act 25 of 2002; and
• the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
12.1 Forms of evidence

A court can take oral, documentary and real evidence into account, as well as other probative
matter.
12.1.1 Oral evidence

This is the most common form of evidence. It comprises a witness’s oral statements about the
facts of the case. In Chapter 9 above we discussed the presentation of such evidence in court: by
the taking of the oath, examination in chief, cross-examination and re-examination. The weight
which the court attaches to such evidence depends, in the first place, on the credibility of the
particular witness. There are several principles which the court applies when evaluating the
credibility of a witness.
A first principle is that a witness may not be asked leading questions during examination in
chief and in re-examination. A leading question is one that suggests the answer to the witness (it
puts the answer in his mouth), for example: ‘Did you see the accused kill the deceased with a
knife?’ Usually a witness can only answer ‘yes’ or ‘no’ to such a question. The correct approach is,
rather, to ask the witness: ‘What did you see?’ on a particular date, time and place. The witnesses
must give their own account of the facts; they must tell their own story. During cross-
examination the witness is questioned by the opponent. The purpose of cross-examination is to
test the credibility of the witness. Therefore, it is usually more hostile than examination in chief or
re-examination. It should not, however, prejudice the dignity of the witness or the court. Leading
questions may be asked during cross-examination. Any other questions relating to the witnesses’
powers of observation or their commitment to telling the truth may also be asked in cross-
examination.
A second principle that is applied to ascertain credibility is the cautionary rule. According to
this rule, the court must treat some types of evidence with caution and circumspection. The reason
is that experience has shown that such evidence is often unreliable. This does not mean that the
evidence is inadmissible. The court is merely required to evaluate it more strictly than other forms
of evidence. The cautionary
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rule is applied to the evidence of single witnesses and children. In the past it was also applied with
respect to victims of sexual misconduct.
• In a criminal case, the court may find the accused guilty on the evidence of a single
witness on condition that such evidence is satisfactory in all material respects.
• Sometimes the susceptibility, imagination and inexperience of children cause them to be
unreliable witnesses. But the court will accept the evidence, if it is clear that the child has no
reason or motive to lie and appears to be credible. Young children under 6 years old have, for
example, testified in court against their parents in cases of child abuse. Special arrangements
were made for the children to be questioned by a social worker in a separate room while the
court watched on closed-circuit television. In this regard the Criminal Law (Sexual Offences
and Related Matters) Amendment Act has amended section 158 of the Criminal Procedure
Act. The latter Act now provides that when a court refuses an application by the public
prosecutor for the giving of evidence by a child complainant below the age of 14 years by
means of closed-circuit television, the court must provide reasons which must be entered
into the record of proceedings.
• In the past, in a case of sexual misconduct, for example rape, the court as a rule (always)
treated the evidence of the complainant (usually a woman) with circumspection. The reason
given for this approach was that such events usually occur in secret, making it easy for the
complainant to fabricate evidence. It was also assumed that the complainant’s testimony
could be biased by emotion or motivated by vindictiveness. But in S v Jackson 1998 (1)
SACR 470 (SCA) the Supreme Court of Appeal abolished this general application of the
cautionary rule in sexual assault cases as it is ‘based on an irrational and out-dated
perception’ and unjustly stereotypes women (at 476e). The Jackson decision affects the
general cautionary rule in cases involving sexual misconduct. However, in a particular case of
sexual misconduct the court may still treat the evidence of the complainant with caution if it
can be justified on an evidential basis. This happened in S v M 2000 (1) SACR 484 (W) where
the court applied the cautionary rule because in that case the complainant was unreliable and
had a grudge against the accused. Subsequently, the legislature also abolished the general
cautionary rule in the case of sexual offences by means
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of section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007.
Expert evidence is a particular form of oral evidence. An expert is someone who has greater
knowledge and experience in a specific field than the court. The court must be satisfied that a
person is indeed an expert. Therefore, such witnesses must first be questioned about their
qualifications and experience. A fingerprint expert can, for example, testify that the fingerprints of
the accused are the same as those found on the windows and furniture of the burgled premises.
Other experts are ballistic and handwriting experts, criminologists and psychiatrists. The court is
not obliged to follow the expert’s opinion as it is the opinion of the court that finally determines the
outcome of the case.
In Michael v Linksfield Park Clinic 2001 (3) SA 1188 (SCA) the court had to grapple with
a medical negligence case. To determine whether or not the anaesthetist in question
acted like a ‘reasonable anaesthetist’ the plaintiff and defendant called expert witnesses.
In this regard, the Supreme Court of Appeal noted the following (at paras 34–40):
‘However, it is perhaps as well to re-emphasise that the question of reasonableness and
negligence is one for the Court itself to determine on the basis of the various, and often
conflicting, expert opinions presented. As a rule that determination will not involve considerations
of credibility but rather the examination of the opinions and the analysis of their essential
reasoning, preparatory to the Court’s reaching its own conclusion on the issues raised.
...
That being so, what is required in the evaluation of such evidence is to determine whether and
to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the
decision of the House of Lords in the medical negligence case of Bolitho v City and Hackney
Health Authority [1998] AC 232 (HL (E)). With the relevant dicta in the speech of Lord Browne-
Wilkinson we respectfully agree. Summarised, they are to the following effect.
The Court is not bound to absolve a defendant from liability for allegedly negligent medical
treatment or diagnosis just because evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical practice. The Court must be
satisfied that such opinion has a logical basis, in other words that the expert has considered
comparative risks and benefits and has reached “a defensible conclusion” (at 241G – 242B).
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If a body of professional opinion overlooks an obvious risk which could have been guarded
against it will not be reasonable, even if almost universally held (at 242H).
A defendant can properly be held liable, despite the support of a body of professional opinion
sanctioning the conduct in issue, if that body of opinion is not capable of withstanding logical
analysis and is therefore not reasonable. However, it will very seldom be right to conclude that
views genuinely held by a competent expert are unreasonable. The assessment of medical risks
and benefits is a matter of clinical judgment which the court would not normally be able to make
without expert evidence and it would be wrong to decide a case by simple preference where
there are conflicting views on either side, both capable of logical support. Only where expert
opinion cannot be logically supported at all will it fail to provide “the benchmark by reference to
which the defendant’s conduct falls to be assessed” (at 243A–E).
Finally, it must be borne in mind that expert scientific witnesses do tend to assess likelihood in
terms of scientific certainty. Some of the witnesses in this case had to be diverted from doing so
and were invited to express the prospects of an event’s occurrence, as far as they possibly could,
in terms of more practical assistance to the forensic assessment of probability, for example, as a
greater or lesser than fifty per cent chance and so on. This essential difference between the
scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the
Scottish case of Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) 77 and the
warning given at 89D–E that
“(o)ne cannot entirely discount the risk that by immersing himself in every detail and by
looking deeply into the minds of the experts, a Judge may be seduced into a position where
he applies to the expert evidence the standards which the expert himself will apply to the
question whether a particular thesis has been proved or disproved – instead of assessing,
as a Judge must do, where the balance of probabilities lies on a review of the whole of the
evidence”.’
12.1.2 Documentary evidence

Written documentation may also be presented to the court as evidence. A well-known example is
an affidavit. It has, however, less force than oral evidence because the witness cannot be cross-
examined. Other examples are plans, books, maps, drawings, letters, wills, pamphlets, computer
printouts, a forged cheque and a written contract. Usually the document must be handed in by a
witness, who must prove its authenticity. With respect to documentary evidence, the best
evidence
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rule applies. This means that the original document is better evidence than copies thereof.
Additionally, for the document to be admitted as evidence, it must be relevant to the dispute at
hand.
12.1.3 Real evidence

Real evidence is evidence in the form of objects, such as the alleged murder weapon, clothes,
animals, photographs, fingerprints and video and sound recordings, which are relevant to the case.
Sometimes the court visits a particular place or area where, for example, an accident took place
for an inspection in loco. This is also real evidence. Once again, a key requirement for admissibility
of this type of evidence is relevance.
12.1.4 Electronic evidence

The Electronic Communications and Transactions Act 25 of 2002 provides for the admission of
electronic data and data messages such as e-mails as evidence in court. Subsections 15(1) and (2)
of the Act stipulate in no uncertain terms that courts cannot disallow electronic evidence simply
because it is electronic. (You should be able to imagine that, at first, lawyers were not sure
whether or not an e-mail was as credible as a written letter!) Section 15(3) then goes further to
list factors that must be considered to evaluate the weight of the electronic evidence in question:
(a) the reliability of the manner in which the data message was generated, stored or
communicated;
(b) the reliability of the manner in which the integrity of the data message was maintained;
(c) the manner in which its originator was identified; and
(d) any other relevant factor.
12.1.5 Other probative matter

There are also other circumstances and rules which play a role in the giving of evidence, for
example, presumptions and judicial notice.
• A presumption is an inference which the court draws and which does not need to be proved
by evidence. The court draws such an inference because it reflects the normal course of
events, for instance that a child under the age of 7 cannot commit a crime.
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This specific inference constitutes an irrebuttable presumption. It means that evidence

cannot be presented to prove the contrary. It is accepted that a child under 7 can never
commit a crime. On the other hand, there are rebuttable presumptions where the court’s
inference can be rebutted by evidence to the contrary. An example is the presumption that a
woman’s husband is the father of her child (pater est quem nuptiae demonstrant). Although
the court uses this inference as a point of departure, the husband may rebut the
presumption by presenting evidence that he is not the father of the child.
• Judicial notice is when the court accepts something as a fact because it is so well known
that it would be unnecessary and absurd to require it to be proved. For instance, the facts
that pregnancy in women lasts for more or less nine months or that it is summer time in
South Africa during December do not need to be proved.
12.1.6 Direct and circumstantial evidence

It is important to distinguish between direct and circumstantial evidence.
• Direct evidence is based on direct observations of the facts of the case, for example the
evidence of an eyewitness who testifies that he saw Koos shoot Karin with a rifle.
• Circumstantial evidence is evidence concerning circumstances from which the court can
merely draw an inference concerning the facts of the case. The witness testifies that Koos’s
rifle was found near Karin’s body. Circumstantial evidence is admissible, but does not carry
as much weight as direct evidence. An accused in a criminal case can be found guilty on the
basis of circumstantial evidence if it is the only reasonable inference to be drawn from the
evidence.
12.2 Inadmissible evidence
The decisive factor in deciding whether evidence is admissible or inadmissible is the relevance of
the evidence. Evidence of character, hearsay, opinion and privileged evidence are in principle
inadmissible. The evidence in most of these cases is unreliable and will prejudice the chances of a
fair trial. The Constitution creates a new ground for the
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exclusion of evidence that was obtained in violation of the Constitution. When a party presents
inadmissible evidence in court, the other party or his legal representative may object. The court
then decides whether the evidence is admissible and sustains or overrules the objection.
Inadmissible evidence must be distinguished from evidence which is admissible, and therefore
relevant, but which does not always carry much weight, such as circumstantial evidence.
We will now look at different kinds of inadmissible evidence. It will become clear that there are
exceptions when such evidence is allowed.
12.2.1 Character
The purpose of evidence of character is to show that a person has a propensity to act in a certain
way. It is inadmissible in principle because it is usually irrelevant to the facts of the case. It may
also prejudice the court. The fact that someone has previously driven recklessly cannot serve as
evidence that she is by nature a reckless driver and has necessarily driven recklessly in the case
before the court. The fact that someone was in possession of pornography does not prove that he
has committed rape.
In certain cases, however, evidence of character is allowed:
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 has
recently amended section 227 of the Criminal Procedure Act with regard to sexual offences.
The present position is that except for evidence about sexual experience or conduct relating
to the offence which is being tried, no evidence relating to previous sexual experience or
conduct is admissible unless the court has allowed it on application by any of the parties or
such evidence has been introduced by the prosecution. The court will only allow an
application to present such evidence if it is relevant to the case before the court. The Act
prescribes several factors that the court must take into account when deciding whether such
evidence is relevant. When the evidence is allowed or refused, the court must provide
reasons for its decision and these must be placed on record.
• Character evidence will also be allowed if there is a strong logical and relevant link
between the facts before the court and the past conduct of the party concerned. For
example, Koos is accused of murder for having drowned his newly-wed wife in the bath.
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Evidence will be allowed that two of his previous wives had also drowned in the bath.
• In actions for defamation where the defendant alleges that his statements are the truth,
he is allowed to present evidence to that effect. For example, Koos claims that Karin defamed
him by calling him a liar. Karin maintains that Koos is a liar. Karin may now produce evidence
about lies that Koos has told in the past.
Example
In Williams v Shaw (1884) 4 EDC 105 the plaintiff, a chaplain, claimed compensation
from the defendant for alleged slander. The defendant publicly called the plaintiff a liar, a
thief and an adulterer. The defendant, however, maintained that his statements were the
truth and that it should be made known for the public benefit. The court allowed him to
call 72 witnesses to prove the truth of his allegations. He succeeded in proving that only
some of his remarks were true. The court therefore allowed the claim, but awarded only
a minimal amount as compensation.
• If the accused, during the trial on merit in a criminal case, gives evidence of his own good
character, the state can present evidence of his bad character. For example, an accused in a
case of motor-vehicle theft testifies that he has never stolen anything before. The state can
now disclose his previous convictions to the court.
• During the trial on sentence in a criminal case (after the accused has been found guilty),
evidence is presented to assist the court to decide on an appropriate sentence. It was
pointed out in Chapter 11 above that the state must now prove the accused’s previous
convictions, and may bring aggravating circumstances to the court’s attention. The accused
may produce evidence of his good character in mitigation.
12.2.2 Hearsay
In general it can be said that hearsay evidence is evidence of something which the witness has not
personally observed. He testifies about something which he heard from others who themselves are
not witnesses in court. For example, Koos testifies that Karin told him that she had seen how the
accused committed theft. Karin herself is not a witness
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before court and her credibility cannot be tested in cross-examination. Koos’s evidence about what
Karin said is therefore hearsay.
Hearsay evidence is regulated by the Law of Evidence Amendment Act 45 of 1988. This statute
defines hearsay evidence anew as evidence ‘the probative value of which depends upon the
credibility of any person other than the person giving such evidence’. The statute stipulates that
hearsay evidence is in principle inadmissible. However, it now provides the court with a wide
discretion to allow such evidence in certain cases. Section 3 provides that the court may, having
regard to the nature, purpose and probative value of the evidence, allow hearsay evidence if it is
in the interests of justice.
Example
In Hlongwane v Rector, St Francis College 1989 (3) SA 318 (D) the applicants were 32
matriculants who were expelled from the school by the first respondent (the rector). The
rector maintained that the applicants had been involved in an assault on two prefects,
and that they were responsible for the general unrest in the school. His evidence was
based mainly on hearsay. He did not want to disclose the identity of his informers. The
applicants denied the rector’s allegations and applied for a court order to be readmitted
to the school. They argued that the evidence should be disallowed as hearsay. The court,
however, decided, in light of section 3 of the Law of Evidence Amendment Act, to allow
the rector’s evidence ‘in the interests of justice’. The application was dismissed.
Another example is the case of S v Shaik and Others 2007 (1) SA 240 (SCA). In this
case the Supreme Court of Appeal had to decide whether a fax, the author of which was
abroad and refused to come to South Africa for the court case, was admissible as
evidence. The fax was hearsay evidence because the author thereof did not testify and
could not be cross-examined with regard to the content of the fax. The court remarks as
follows (para 171): ‘However, sight should not be lost of the true test for the evidence to
be admitted, and that is whether the interest of justice demands its reception.’ The court
then proceeds to evaluate the factors mentioned in section 3 above and draws the
following conclusion (para 179):
‘Having regard to the high probative value of the evidence and the fact that the risk that the
appellants would be prejudiced by its admission was slim, the admission of the fax in evidence
was in the interest of justice.’
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12.2.3 Opinion
In principle a witness’s opinion regarding the facts of the case is inadmissible. The reason is that it
is irrelevant because it is the court’s task, and not that of the witness, to decide on the facts. For
example, the witness’s opinion that the accused did indeed kill the deceased because he had seen
her with a knife in her garden on the evening of the murder is inadmissible. A layperson’s opinion
that the substance in an accused’s possession was cocaine is also inadmissible.
There are some exceptions to this rule, expert opinion being the most important. The opinion of
an expert regarding his field of expertise is admissible. The court is, however, not obliged to abide
by such an opinion.
Question: Just answer the question as to the events as they occurred. Do not give us any
of your opinions about the accused; is that clear?
Answer: Yes.
Question: Now, just giving us the events as you saw them, and no opinions of your own,
would you tell the court when you first saw the accused?
Answer: About 10 am, I looked out of my kitchen window, and I saw the mongrel bastard
coming up the drive.
From: Tait Court in the Act (Humourous Moments from Australian Courts) (1992)
12.2.4 Privilege
In principle every person is a competent witness and can be compelled to testify in court. In some
instances, however, a person cannot be compelled to testify because such evidence is privileged.
The reason is not because it is irrelevant but rather to protect the interests of a specific person or
the public. A distinction is made between private and public privilege.
• In the case of private privilege, a private interest is protected. Legal professional
privilege is such an example. This means that a legal practitioner may not testify against
her client about the client’s communications to her in her professional capacity. The reason is
that open-hearted communications between lawyer and client are necessary for the proper
administration of justice. The content
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of such communications must thus be treated as confidential. However, communications

between medical practitioners and patients are not privileged.
In O v O 1995 (4) SA 482 (W) the court found a communication made to a spiritual
adviser by a member of his congregation to be privileged and remarked as follows:
‘The law recognises that there exists in our society a class of priest or spiritual adviser, who for
some may be a minister of religion, to others a rabbi, to yet others a moulana, or a leader in a
traditional religion, and that these counsellors perform a socially valuable function in comforting
and guiding their congregants, and attempting to conciliate and mediate their disputes. These
Courts, for all their coldness, recognise that people have spiritual needs and desires, and that it
is socially valuable they should be able to confide their anxieties and sorrows to their spiritual
advisers. The law recognises that, within the confidentiality of such communications, congregants
should feel reasonably free to communicate what is troubling them, and that the spiritual adviser
may have an interest in receiving even communications which are defamatory of others.’
• Another example of private privilege is that of marital privilege. Communications between

spouses during their marriage are privileged. However, there are instances where spouses
can be compelled to testify against each other in criminal cases, such as where a spouse is
charged with bigamy, incest or kidnapping.
• There is also a privilege against self-incrimination. This means that a witness is not
compelled to answer a question in court if it will appear from the answer that the witness has
committed a crime for which he can be prosecuted. Section 35(3)(j) of the Constitution
protects the right not to be compelled to give self-incriminating evidence.
• The purpose of public privilege is to protect public interest. The state cannot be compelled
to furnish evidence in court on sensitive issues such as state security and international
relations. The state, furthermore, need not reveal the identity of police informers.
12.2.5 Evidence unconstitutionally obtained

Sometimes, in the process of obtaining evidence, a person’s constitutional rights can be
violated. Such evidence is not necessarily inadmissible.
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The Constitution (section 35(5)) gives presiding officers a discretion to exclude the evidence if its
admission would:
• lead to an unfair trial; or otherwise
• be detrimental to the administration of justice.
This applies in criminal trials only and not in civil cases.
Examples
In S v Soci 1998 (2) SACR 275 (E) Soci was accused of murder. He made a pointing-out
to the police during the pre-trial investigation. The state wanted to tender evidence of
the pointing-out in the subsequent criminal trial. The Constitution provides that a
detainee must be informed promptly of his right to legal representation. In Soci’s case
this was not done properly. One of his rights had therefore been violated. Applying
section 35(5), the court decided to exclude this evidence, as the admission of the
evidence would render the trial unfair.
In S v Mthembu 2008 (2) SACR 407 (SCA) Mthembu was accused of, among other
things, theft of a motor vehicle. Ramseroop was a panel beater who worked on the cars
that Mthembu allegedly stole. Ramseroop, as an accomplice, was tortured by the police
after which he pointed out the items stolen by Mthembu. The court held that even
though it is important to bring the guilty to justice, it is also important for the police to
obtain evidence in ways that do not violate public trust. Thus, here the evidence provided
by Ramseroop had to be excluded. At the end of the Supreme Court of Appeal’s
judgment, the following comment is made:
‘What has happened in this case is most regrettable. The appellant, who ought to have been
convicted and appropriately punished for having committed serious crimes, will escape the full
consequences of his criminal acts. The police officers who carried the responsibility of
investigating these crimes have not only failed to investigate the case properly by not following
elementary procedures relating to the conduct of the identification parade, but have also, by
torturing Ramseroop and probably also Zamani Mhlongo and Sithembiso Ngcobo, themselves
committed crimes of a most egregious kind. They have treated the law with contempt and must
be held to account for their actions.’
Mthembu escaped liability for the theft that he committed because the police obtained
the evidence against him in an unconstitutional manner.
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See www.jutapassmasters.co.za for the Mthembu case and accompanying questions.
12.3 Principles of natural justice

The rules of the law of procedure and evidence apply in all the ordinary courts (superior and lower
courts). But, because of the often technical and complicated nature of these rules, they can
become a hindrance to the proper administration of justice. A layperson without any legal
representation will, for instance, not know when to object to evidence that might possibly be
inadmissible. This can prejudice him. In some special courts that are aimed at the speedy
resolution of uncomplicated cases these rules do not apply. This is the position in the small claims
court (see Chapter 13).
Apart from the courts, there are tribunals with administrative and disciplinary functions. These
tribunals are often organs of state and are created by legislation. Examples are municipalities,
licensing boards, disciplinary committees of universities as well as the Health Professions Council
of South Africa. These tribunals can grant or dismiss applications and impose disciplinary
sentences, all of which can have a direct influence on the rights and interests of individuals. Think
about the student who is expelled from university, or the owner of a restaurant who is refused a
liquor licence. The rules of the law of procedure and evidence do not apply in these tribunals. But
there must be some rules and mechanisms to ensure that individuals are not treated unjustly or
unfairly. Sometimes the statute that creates the tribunal prescribes the procedure to be followed
when the tribunal considers a matter. If this is not the case, the tribunal must apply the principles
of natural justice. These principles form part of administrative law.
The principles of natural justice are based on two rules: audi alteram partem (hear the other
side) and nemo iudex in sua causa (no one should be a judge in his own case).
Audi alteram partem implies the following:
• Someone accused or suspected of misconduct must be informed of the charge against him.
• Such a person must be afforded a reasonable opportunity to answer to the charges and to
put forward his case.
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• The tribunal must listen to both sides; it must hear all interested parties.
The nemo iudex in sua causa principle ensures an unbiased hearing. It implies the following:
• The tribunal must be free from any discriminatory motives arising from race, religion and so
on. Someone who made it clear that persons of a certain race will ‘over his dead body’ be
allowed to open a restaurant in a specific area may, for instance, not adjudicate an
application for a business licence in such a case.
• No member of the tribunal may have an interest, such as a financial or personal interest, in
the matter. A family member of the accused or of the applicant for a licence may not
adjudicate the matter.
This principle is often invoked in applications for the recusal of judges (a request that
they excuse or disqualify themselves from a particular trial) on the basis of bias. Louis
Luyt, President of the South African Rugby Football Union (SARFU), asked for the recusal
of a number of Constitutional Court judges on the ground that they had ‘extremely close
ties’ with the ANC (in President of the Republic of South Africa and Others v South
African Rugby Football Union and Others 1999 (4) SA 147 (CC)).
The Constitutional Court observed that absolute judicial neutrality is hardly ever
achieved. Political activity, before being appointed as a judge, does not by itself lead to a
disqualification. The court therefore rejected the application for recusal.
If the principles of natural justice have not been complied with, the High Court can review the
matter and set aside the tribunal’s decision.
The rules of natural justice embrace the basic principles of any fair trial. Therefore, they do not
only apply in quasi-judicial tribunals, but also in the courts. The rules of the law of procedure and
evidence are simply refinements and extensions of the rules of natural justice.
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Chapter 13
Courts and Appropriate Dispute Resolution
Introduction
This chapter is about the structure of courts and other mechanisms for legal dispute resolution
that exist in South Africa today. Section 165 of the Constitution of the Republic of South Africa,
1996 stipulates that the judicial authority in South Africa vests in the courts. The courts are
‘independent and subject only to the Constitution and the law, which they must apply impartially
and without fear, favour or prejudice’. And their decisions and orders are binding on ‘all persons to
whom and organs of state to which it applies’ (see Chapter 5 above for an overview of the
separation of powers model and the role that the judiciary plays in the structure of government).
But what types of courts exist in South Africa? We have already alluded to the answer to this
question in Chapter 3 above when we discussed the doctrine of precedent (stare decisis). Here, we
expand on our understanding of the courts. Section 166 of the Constitution lists the different
courts that constitute the judicial arm of government:
‘166 Judicial system

The courts are—
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Court of South Africa, and any high court of appeal that may be established by an
Act of Parliament to hear appeals from any court of a status similar to the High Court of
South Africa;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any
court of a status similar to either the High Court of South Africa or the Magistrates’ Courts.’
We already know from Chapter 3 above that there is a hierarchy of courts. That hierarchy is
reflected in section 166 — the courts are listed in order of authority — the Constitutional Court is
the highest court of
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the country, followed by the Supreme Court of Appeal, the High Court and Magistrates’ Courts.
But how is it determined in which court a specific case is heard? Which court does one approach
in a divorce case? In which court will someone be prosecuted for theft of a motor vehicle? To which
court does one appeal? Which courts can declare legislation unconstitutional? The answers to these
questions depend on courts’ jurisdiction.
13.1 General principles of jurisdiction

Jurisdiction means the competence of a particular court to hear a specific case. Think about
the following scenarios. If you have been involved in a motor vehicle accident in Johannesburg
with another person who lives in Johannesburg, would it make sense to settle the dispute in a
court in Johannesburg or in Kimberly? If the very serious crime of treason has been committed,
should that case be heard by a court that is higher or lower in the judicial hierarchy? If the High
Court has found you guilty of a crime and you believe that the judge was biased, would you want
to take the case to the Magistrate’s Court (lower in the hierarchy) or the Supreme Court of Appeal
(higher in the hierarchy)? These scenarios all give clues as to the types of factors that are relevant
in determining jurisdiction. These factors are:
• type of case;
• geographical area;
• whether the case is appearing before a court for the first time or not.
We will discuss these factors in turn.
13.1.1 Type of case

In broad terms we can distinguish between a criminal case, a civil case, and a constitutional
matter. It is a good idea to start the question of determination of jurisdiction by identifying the
type of case at hand.
• In a criminal case, a crime has been committed (see Chapter 10 above). You will recall that
the main aim of a criminal case is to prosecute an accused for an alleged crime that has been
committed. The appropriate sanction for breach of a rule of criminal law is punishment by the
state. As such, the court’s jurisdiction is
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determined by the kind of offence and the possible sentence. Is it a case of high treason
or merely a traffic offence? Is imprisonment or merely a fine a possible sentence? More
details are given below in the discussions of each of the different courts.
• Civil cases — those legal disputes where a crime has not been committed — usually arise
from disputes in private law (see Chapter 7 above), commercial law (see Chapter 8 above) or
public-law cases that are not of a criminal nature, for example an administrative law review
of government conduct. The decisive factors in determining jurisdiction in these cases are the
amount claimed and the nature of the relief sought. Jurisdiction with respect to the latter
depends on whether it concerns matters of status such as an application for a presumption of
death. It further depends on whether only specific performance is claimed, or whether
damages are claimed in the alternative. With a claim for specific performance, only the
performance that one party owes another is claimed. For example, this will be the case
where Anna claims the car that she has bought from Bangiswe. She can either claim the car
only (specific performance), or alternatively she can claim R150 000 (damages in the
alternative). Some matters, such as administrative law reviews of decisions made by
government officials, may only be heard by the High Court or courts higher than it in the
hierarchy of courts. More details are given below in the discussions of each of the different
courts.
• Constitutional matters concern any issue involving the interpretation, application or
enforcement of the Constitution. These may involve alleged infringements of human rights,
the constitutionality of conduct of an organ of state, or the constitutionality of legislation and
other laws. This classification is important because, for example, the magistrates’ courts
cannot declare invalid conduct and laws that violate the Constitution. In the past, the
Constitutional Court was the highest court for constitutional matters only — but this position
has changed and now the Constitutional Court is the highest court in all matters, as
explained below. More details are given below in the discussions of each of the different
courts.
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13.1.2 Geographical area

Each court has jurisdiction within a specific geographical area in the country. There must be some
connecting factor between the persons before the court and the court’s geographical area of
jurisdiction. For example, in criminal cases, the area where the crime is committed is usually
where the accused is tried. In civil cases, the place where the cause of action arose (for example,
where a motor vehicle accident occurred), or the defendant’s domicile generally provides the clue
as to which courts could have jurisdiction over the dispute.
• The Magistrate’s Court: Each province is divided into regional divisions which again are
subdivided into magisterial districts. A Regional Court has jurisdiction within a particular
regional division and a District Court within a particular magisterial district.
• The High Court: Each of the nine provinces has its own seat of the High Court. Some
provinces have a provincial High Court and a local division of the High Court. In Gauteng, for
example, there is the ‘Gauteng Division, Pretoria’ which is located in Pretoria, and the
‘Gauteng Local Division, Johannesburg’. The Johannesburg local division’s area of jurisdiction
is restricted to Johannesburg. However, the Pretoria division’s area of jurisdiction covers all of
Gauteng (including Johannesburg). So, in Johannesburg the two courts have ‘concurrent
jurisdiction’. We have already mentioned the different provincial and local divisions of the
High Court, as well as their seats (see Chapter 3 above).
• The Supreme Court of Appeal has jurisdiction within the whole geographical area of South
Africa. It has its seat in Bloemfontein, Free State.
• The Constitutional Court has jurisdiction within the whole geographical area of South
Africa. It has its seat in Braamfontein in Johannesburg, Gauteng.
13.1.3 Courts of first instance, appeals and reviews

• Courts of first instance: Suppose that you are dealing with a case that must be heard by a
court for the first time. The question here is which court could act as a ‘court of first instance’
(also referred to as the ‘court a quo’). In other words, we ask, ‘can the case start in this
particular court?’ Each court has its own rules about
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whether it can hear certain matters as a court of first instance, which we discuss in more
detail below. But what happens if you are unhappy with the decision of or process followed
by the court of first instance? Then you would have the possibility of appeal or review.
• Appeal: An appeal is lodged when the court has allegedly erred in its decision. On appeal,
the court does not listen to oral evidence about the facts of the case. The court only studies
the typed record of the court of first instance, in which all the evidence is documented, and
listens to argument by the legal representatives. The appeal may be upheld, which means
that the decision of the court of first instance is set aside. The appeal can also be dismissed,
in which case the decision of the court of first instance remains in force. Usually, appeals are
made to courts higher in the hierarchy than the court of first instance. For example, a
decision by the Supreme Court of Appeal could be appealed to the Constitutional Court.
• Review: Review takes place in the case of a possible irregularity in the proceedings. For
example, if the judge was biased or did not afford one party a fair opportunity to present
their case, then a review would be the appropriate remedy. Certain criminal cases heard by
Magistrate’s Court, in which heavy sentences were imposed, are automatically reviewed by
the High Court. In other cases, an application must be brought to the High Court for review.
The High Court can also review decisions of quasi-judicial tribunals.
Below, we explore the more detailed principles of jurisdiction for the different courts, in ascending
order on the hierarchy.
13.2 Magistrate’s Court

The Magistrates’ Courts Act 32 of 1944 creates the powers of the Magistrate’s Court. ‘Magistrates’
are the presiding officers in the Magistrate’s Court. The Regional Court has jurisdiction within a
particular regional division and the District Court within a particular magisterial district. They both
only function as courts of first instance.
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13.2.1 District courts

• Criminal cases: The criminal jurisdiction of a District Court is restricted. It cannot try
offences such as murder, rape, compelled rape and treason. It tries less serious offences,
such as theft, drunken driving and assault. It may not impose a sentence of imprisonment of
more than three years or a fine of more than R120 000 in respect of any offence.
• Civil cases: The civil jurisdiction of a District Court is also restricted, in the sense that it has
no jurisdiction in matters which fall within the exclusive jurisdiction of the High Court (for
example, it has no jurisdiction in matters concerning status related to mental capacity or
wills). It can only hear cases where the amount of the claim is R200 000 or less. If the claim
is one for specific performance with damages (of R200 000 or less) in the alternative, the
District Court may hear the matter.
• Constitutional matters: A District Court has jurisdiction with respect to constitutional
matters only if an Act of Parliament provides it with such jurisdiction. It can, however, never
have the power to decide on the constitutionality of any legislation or any conduct of the
President.
13.2.2 Regional courts
• Criminal cases: A Regional Court can try any criminal offence (even those that a District
Court cannot hear such as murder and rape) but not treason. It can impose imprisonment of
up to fifteen years, or a fine not exceeding R600 000 for any offence. As master of
proceedings the Director of Public Prosecutions decides in which of the two courts an accused
is to be prosecuted. If the case is so serious that the possible sentence might exceed the
jurisdiction of the Regional Court, the High Court is used as court of first instance.
• Civil cases: The civil jurisdiction of the Regional Courts is slightly more expansive than that
of the District Courts. It can hear matters where the amount for the claim is more than
R200 000 but not exceeding R400 000. An important and fairly recent expansion of the
jurisdiction of the Regional Courts involves divorce cases. In divorce cases, the Regional
Court has the same jurisdiction as the High Court. However, just like the District Court, the
Regional Court cannot hear matters that fall within the exclusive jurisdiction
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of the High Court (for example, it has no jurisdiction in matters concerning status related to
mental capacity or wills).
• Constitutional matters: The same principles apply to Regional Courts as explained above
for the District Courts.
13.3 High Court

The High Court is a Superior Court whose jurisdiction is regulated by the Superior Courts Act 10 of
2013. Section 169 of the Constitution, read with the Superior Courts Act, provides that a Judge
President heads a division of the High Court. The other presiding officers are the Deputy Judge
President and other judges. Each High Court has jurisdiction within a particular provincial area.
The High Court has appeal jurisdiction and it can function as a court of first instance.
• Jurisdiction as court of first instance: When the High Court sits as court of first instance,
usually only one judge presides. (The Judge President has the discretion to direct that a case
be heard by a maximum of three judges.) The High Courts have jurisdiction as courts of first
instance in the following cases:
– Criminal cases: A charge of treason must always be heard by the High Court.
Furthermore, it can try any criminal offence, but in practice it will try only serious
cases. These are offences where the possible sentence is imprisonment of more than
fifteen years or a fine of more than R600 000. Only the High Court can impose these
sentences.
– Civil cases: If the amount of the claim is more than R400 000, the claim must be
instituted in the High Court. Only the High Court can hear cases concerning matters of
status (for example, issues of mental capacity, and an application for a presumption of
death) and matters concerning wills. The High Court used to have exclusive jurisdiction
in divorce cases, but now the Regional Courts and High Court have concurrent
jurisdiction in this regard.
– Constitutional matters: The High Court can decide any constitutional matter except a
matter which falls within the exclusive jurisdiction of the Constitutional Court (see para
13.5 below). It also cannot decide matters assigned by an Act of Parliament to another
court of a status similar to the High Court,
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for example one of the special courts discussed below. Similar to the Supreme Court of
Appeal, the High Court can declare an Act of Parliament, a provincial Act or conduct of
the President unconstitutional. But such an order will come into force only after it has
been referred to and confirmed by the Constitutional Court. Referral to the
Constitutional Court in these matters is compulsory.
• Appeal and review jurisdiction: The High Court can review and hear appeals of criminal
and civil cases that were first heard in the Magistrates’ Courts. In such cases a further
appeal can be made to the Supreme Court of Appeal. Sometimes one can appeal within a
High Court against the decision of a single judge to a full bench (generally two judges or, if
those two judges cannot agree on an outcome, three judges) of the High Court.
13.4 Supreme Court of Appeal
The Supreme Court of Appeal is a Superior Court in terms of the Superior Courts Act. According to
section 168 of the Constitution and the Superior Courts Act, the head of the Supreme Court of
Appeal is referred to as the President of that court. (In the past, before the end of 2001, the head
of the Supreme Court of Appeal and old Appellate Division was known as the Chief Justice — a title
that is now bestowed on the head of the Constitutional Court.) The other presiding officials are the
Deputy President and judges of appeal. The Act further stipulates that generally five judges of
appeal will hear a matter in this court, unless the President of the court is of the view that it
should be heard by three judges, or more than five judges. The Supreme Court of Appeal has
jurisdiction within the whole geographical area of South Africa. Section 168 of the Constitution
makes it clear that the Supreme Court of Appeal functions only as a court of appeal and never as a
court of first instance. It hears appeals from the High Court and it is the second highest court of
appeal.
• Criminal and civil cases: The Supreme Court of Appeal can decide all criminal and civil
cases on appeal. It is the second highest court of appeal in such matters and it can impose
any sentence and make any order. Its decisions in this regard bind all the courts below it.
• Constitutional matters: The Supreme Court of Appeal can decide appeals on constitutional
matters except matters that only the Constitutional Court can decide (that fall within the
exclusive
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jurisdiction of the Constitutional Court). It can declare an Act of Parliament, a provincial Act
or conduct of the President of South Africa unconstitutional. However, such an order of
constitutional invalidity will only have force after it has been referred to and confirmed by the
Constitutional Court.
13.5 Constitutional Court

The Constitutional Court is a Superior Court in terms of the Superior Courts Act. According to
section 167 of the Constitution, read with the Superior Courts Act, the head of the Constitutional
Court is the Chief Justice. The Chief Justice is also the head of the South African judiciary as a
whole. Other members of the court are the Deputy Chief Justice and nine other judges. In any
case, at least eight judges must hear the matter.
Section 167(3)(b) of the Constitution states that the Constitutional Court may decide
‘(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter
raises an arguable point of law of general public importance which ought to be considered by that
Court’.
Thus, even though in the past the Constitutional Court only had constitutional jurisdiction, it is
theoretically the highest court of appeal in South Africa in all matters (subject to the court granting
leave to appeal as detailed above). As such, decisions of the Constitutional Court are final and
binding on all other courts in South Africa. A decision of the Constitutional Court cannot be
appealed to any of the courts below it.
Furthermore, section 167(4) of the Constitution stipulates that the Constitutional Court has
exclusive jurisdiction in the following matters:
• disputes between organs of state in the national or provincial sphere;
• the constitutionality of parliamentary or provincial bills after the President or the premier
of a province, respectively, has referred them to the Constitutional Court, which can happen
when the President or a premier refuses to sign a Bill;
• the constitutionality of a parliamentary or provincial Act after members of the national
assembly or a provincial legislature, respectively, have applied to the Constitutional Court for
an order declaring such an Act unconstitutional;
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• the constitutionality of any amendment to the Constitution;

• the question whether Parliament or the President has failed to fulfil a constitutional duty;
• the certification of a provincial constitution.
This means that no other court may hear disputes pertaining to the six points listed above. The
Constitutional Court will thus be the court of first instance in these cases. Obviously a decision
from the Constitutional Court cannot be overturned by any of the courts below it.
As mentioned in our earlier discussions about the High Court and the Supreme Court of Appeal,
the Constitutional Court has the final say over the unconstitutionality of an Act of Parliament, a
Provincial Act, and the conduct of the President. A declaration of unconstitutionality and invalidity
only takes effect once the Constitutional Court has confirmed it.
Section 167(6) of the Constitution makes it possible for a litigant to approach the Constitutional
Court directly without first approaching any other court (called ‘direct access’). The Constitutional
Court Rules explain that a person who wants to obtain direct access to the Constitutional Court
must make out a case for why the interests of justice require it. This application is made by means
of notice of motion and supporting affidavits (see Chapter 9 above).
13.6 Special courts

Special Courts have been instituted for the purposes of specialised litigation. Special courts can
decide constitutional matters only if an Act of Parliament allows it. We shall briefly have a look at
some of these courts.
• Chiefs’ and Headmen’s Courts:
– If a civil dispute arises in a community headed by a chief or headman, the dispute may
be decided by the relevant chief or headman sitting as a court. Even though such a
court might mediate marital disputes, it may not dissolve customary law marriages in
terms of the Recognition of Customary Marriages Act 120 of 1998. Some minor crimes
may also be adjudicated by a chief or headman. This position might be altered in future
if the Traditional Courts Bill is enacted into law.
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Traditional Courts Bill raises concerns

Kgomotso Ramotsho, De Rebus, 1 May 2018
The Portfolio Committee on Justice and Correctional Services (the committee) expressed
concerns regarding the time it took to draft the current version of the Traditional Courts
Bill B1 of 2017 (the Bill) taking into consideration that there are serious gaps in the Bill.
In a statement released on behalf of the committee by the Parliamentary Communication
Services it stated that the committee had raised concerns at the public hearings held on
13 and 14 March.
The statement stated that the Chairperson of the committee, Dr Mathole Motshekga,
said the committee was disappointed that it took more than ten years to produce the Bill.
The statement added that Dr Motshekga said the Bill did not seem to do what the people
of South Africa had concerns about years ago and did not address the matters of concern
raised during the previous time the Bill was before Parliament.
The statement noted that the committee heard a presentation from the KwaZulu-Natal
Provincial Efficiency Enhancement Committee and the Alliance for Rural Democracy. The
presenters raised concerns that the Bill indicated that the review of traditional courts
would be handled by the High Court. The committee heard that the process could be
cumbersome and unaffordable, as litigation in the High Court was costly. Another
concern was of the references to the role of women’s participation in traditional courts,
were also highlighted by some as problematic [sic].
The statement highlighted the other concerns, namely the lack of –
• enforcement against those who breached the code of conduct and also of sanctions
against presiding officers who abused power; and
• recourse to legal representations for complaints.
The statement pointed out that the purpose of the Bill was to provide a uniform
legislative framework for the structure and functioning of traditional courts in line with
constitutional imperatives and values. The Bill aims to provide inhabitants of traditional
communities with the option to either submit themselves to the traditional courts system
or opt out by using the conventional system.
The statement stated that the committee heard the views that an opt out clause could
bring disorder to the system, with some saying that it could render the traditional court
system obsolete. The statement noted that questions were raised about how an opt out
system would work and the legal status of traditional courts. The question of introducing
legal representation into the system was widely debated, with concerns expressed that
this would change the tone of the system.
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The statement said that the committee also heard from the Centre for Child Law with
regard to matters such as abuse and domestic violence, which should be referred to
magistrates’ courts and that it should be made mandatory. Dr Motshekga emphasised the
importance of a home grown, legal system that represents the values of the people. ‘The
purpose of all legal systems, irrespective of whether it is a court or a tribunal is to get
the truth’, Dr Motshekga said. The statement added that Dr Motshekga assured the
public that the committee will take all submissions into account when it debated the
matter in order to draft legislation that protects and respect[s] customs, culture and
human rights.
– If a dispute arises about customary-law leadership, the dispute is generally settled

within the community itself. If that dispute cannot be resolved, the Traditional
Leadership and Governance Framework Act 41 of 2003 provides that the dispute must
be referred to the provincial house of traditional leaders. If the dispute remains
unresolved, the Premier of the Province could be approached to resolve the dispute in
consultation with the parties and the house of traditional leaders. If the Premier also
cannot resolve the issue, the dispute goes to the Commission on Traditional Leadership
Disputes and Claims.
• Small Claims Court: The purpose of this court is to settle disputes concerning small civil
claims of not more than R15 000 speedily and inexpensively. Some types of disputes may
never be heard by a small claims court even if they fall within the R15 000 limit. Examples of
matters excluded from the jurisdiction include divorce and claims for wrongful imprisonment.
The presiding officer is called a commissioner. The parties themselves are in control of their
cases and no legal representation is allowed. The proceedings are simple and the rules of the
law of evidence do not apply. The commissioner takes an active part in the proceedings and
asks questions (the process is inquisitorial). There is no right of appeal against the court’s
judgment, but the proceedings may be taken on review.
• Children’s Court: Each magistrate’s court functions as a children’s court within its particular
magisterial district. It investigates matters concerning, for example, the adoption of children,
children whose parents or guardians cannot be traced or children whose parents or guardians
are unfit. A children’s court can make various
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appropriate orders with respect to these matters. The proceedings in such a court are
confidential and may not be published without permission.
• Maintenance Court: Each magistrate’s court functions as a maintenance court within its
particular magisterial district. Some persons, such as parents, are legally liable to maintain
(support) others, for example, their children. If they do not fulfil their duties, a complaint can
be lodged with the court’s maintenance officer. The maintenance officer will investigate the
case, and submit it to the court. The court can make an appropriate order. It can also
increase the amount of maintenance in the light of changed circumstances.
• Labour Court and Labour Appeal Court: These courts were established in terms of the
Labour Relations Act 66 of 1995. The Labour Court can adjudicate labour disputes
concerning, for example, strikes, retrenchments and discrimination. An appeal can proceed
from the Labour Court to the Labour Appeal Court.
• Land Claims Court: This court was instituted by the Restitution of Land Rights Act 22 of
1994. The function of the court is to restore land rights to people who have been
dispossessed of such rights in terms of racial discrimination after 19 June 1913. The court
can, amongst other remedies, restore the original land, provide alternative state land or
award compensation. Usually such a case is first dealt with by the Commission on Restitution
of Land Rights. The Commission was set up in 1995. If the Commission cannot settle the
claim, it is referred to the Land Claims Court. The court consists of a President and additional
judges as members.
• Equality Court: The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000 provides for the establishment of equality courts. Anyone who alleges a violation of her
right to equality may approach an equality court. Ordinary high courts and magistrates’
courts function as equality courts if the Minister has designated a presiding officer in this
capacity. A ‘designation’ is made on the basis of training, experience and expertise in the
field of human rights and equality.
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13.7 Appropriate dispute resolution (ADR)

It is not always the duty of the state (the courts) to resolve disputes. The courts (litigation) do not
provide the only way out of a deadlock. In fact, most disputes are settled by people themselves
and not by the courts. If someone cannot sleep at night because the neighbours play their music
too loudly, that person will first speak to the neighbours and try to come to an agreement. It is
unnecessary to immediately institute legal proceedings in a court. It is only when the parties
themselves cannot settle their dispute that it might become necessary to turn to the courts. No
one is allowed to take the law into her own hands. This means that no one is allowed ‘high-
handedly’ to force a solution onto another. For example, if the person who is unable to sleep
cannot reach an agreement with the neighbours, she may not, of her own accord, confiscate the
neighbours’ hi-fi system. She then takes the law into her own hands.
In addition, it is often undesirable to go to court even in cases where the parties themselves
cannot reach a settlement. The court does not always provide the type of solution that the parties
seek. Formal litigation presents the following problems:
• Litigation, especially in a civil case, can be very expensive. Legal representation, in general,
is expensive.
• Some cases take a long time before the matter is finally settled.
• The nearest court is often far away from where the parties live.
• Policing is often inadequate, which can make it impossible to bring the law of criminal
procedure into action.
• Most people do not understand the proceedings in court. They find it traumatic and they feel
culturally alienated. Often they do not understand the language of the court.
• The accusatorial (adversarial) process does not always satisfy the parties. They feel excluded
from the proceedings because their legal representatives take charge of the case. The
eventual win–lose situation, where the winner takes all and the loser gains nothing, is
maybe not what the parties wanted.
Attempts were made by the state to overcome some of these problems, for example, by the
establishment of the small claims court. However, efforts to also establish other courts such as a
court for a short civil process and family courts were less successful.
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There is an alternative to the courts that the parties can use to resolve their disputes. It is
known as appropriate (previously referred to as ‘alternative’) dispute resolution (ADR). In
ADR the parties settle the dispute themselves or with the help of a third party. ADR can be
inexpensive and it is speedy. It is less aggressive than court proceedings and the parties are more
at ease. The most common forms of ADR are negotiation, mediation and arbitration.
13.7.1 Negotiation
Negotiation takes place when the conflicting parties talk to each other to find a solution which
satisfies them both. The parties themselves are in control of the whole process and the eventual
solution is their own. There is no third party involved. Because the solution has to be acceptable to
them both, the parties try to reach a situation where both of them win. The purpose is, as far as
possible, to find common ground. The parties must be serious in their intentions to settle the
matter. The process must not be used to create further conflict. Mistrust and past conflicts can
jeopardise the process.
The simplest form of negotiation is the one mentioned above, where the person talks to the
neighbours who keep her awake at night. In more complex situations the parties may even get
lawyers to negotiate on their behalf. Often the lawyers of parties who are already involved in
litigation succeed in settling the dispute between them by means of negotiation. Sometimes this
happens just before the court gives judgment. At that stage the legal costs might have
accumulated considerably. It is thus wise to consider the option of negotiating as early in the
process as possible.
13.7.2 Mediation
Mediation takes place in cases where the conflicting parties ask a third party, the mediator, to
assist them in finding a solution through discussions and negotiations. In other words, it amounts
to negotiation with the aid of a third party. The mediator does not hand down a decision, but
assists and encourages the parties to find a solution themselves. She acts as a go-between. The
mediator usually communicates with the parties individually. Information given by one party to the
mediator is confidential and is not communicated to the other party. As go-between, the mediator
assists the parties to consider all possible solutions. In this
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way, the parties themselves find a solution. As in the case of ordinary negotiations, the parties try
to find a solution which is acceptable to both — where they both win. Unlike arbitration, the
decision is not left in the hands of a third party. For mediation to be successful, the mediator must
be impartial and have the trust of the parties.
Mediation is often used to resolve disputes in the commercial sector and in the world of
international politics. The family advocate has applied it to great advantage in divorce cases.
Parties can avoid the considerable costs and trauma of an opposed divorce action by settling their
disputes beforehand through mediation.
13.7.3 Arbitration
In the case of arbitration, the two parties conclude a contract in which they agree to appoint a
third person (the arbitrator) to resolve the dispute. Although the parties can appoint anybody as
arbitrator, usually the arbitrator will be an expert in the particular field. Basically the process is
similar to the court process in that the arbitrator listens to both parties and then hands down a
decision. The parties are free to agree upon the details of the process as it suits them. They may
also agree upon the parameters within which the arbitrator may give her decision. The parties are
compelled to abide by the arbitrator’s decision, which is final. There is no right of appeal. If
necessary, the arbitrator’s decision can be made a court order and can be enforced in the usual
way. If the arbitration agreement between the parties is in writing, it is governed by the Arbitration
Act 42 of 1965. The Act also regulates certain additional matters.
Arbitration is often used in disputes regarding building contracts, contracts of sale, labour
disputes and disputes between partners. Disputes with respect to marriage, status and criminal
matters may, however, not be subjected to arbitration.
Arbitration has the advantages of being cheaper than litigation and of solving the dispute more
speedily. Furthermore, the parties have a free choice as to who the arbitrator is to be. They also
have a say regarding the nature of the proceedings. The disadvantage is that the resolution, as in
court, implies a win–lose situation.
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13.7.4 ADR in South Africa

ADR is not necessarily suitable for the resolution of all disputes. Sometimes litigation in the courts
is inevitable. But where appropriate, ADR can be applied very successfully. In general, ADR is
becoming very popular in South Africa. There are organisations which specialise in ADR and which
provide professional services and assistance in this regard, such as AFSA (Arbitration Foundation
of Southern Africa), specialising in commercial and international arbitration, and the Association of
Arbitrators, specialising in construction arbitration.
Labour disputes are usually dealt with through ADR before they can go to the Labour Court (one
of the Special Courts listed above). Most of the large institutions with many employees have a
bargaining council to resolve labour disputes in this manner. In cases where no such bargaining
council exists, the Labour Relations Act has instituted the Commission for Conciliation, Mediation
and Arbitration (CCMA). The function of the CCMA is to try and resolve the dispute through
conciliation, and if unsuccessful, to arbitrate the matter. There are certain kinds of disputes where
the CCMA does not have the power to arbitrate. Those disputes must be referred to the Labour
Court.
The principle of ADR, in the sense of dispute resolution outside the framework of official courts,
is not a new concept in South Africa. In townships it has been applied informally for years. The
earliest popular justice tribunals were formed in the Cape Town area in 1901. In the late 1970s
courts known as makgotla gained prominence. In these courts disputes were solved according to
traditional values and norms. They were aimed at reconciling the parties through an informal
process. The makgotla became politicised during the 1980s because of the political instability in
the country. They often fell victim to criminal gangs and became known as ‘people’s courts’. These
courts were sometimes accused of so-called necklacing. Today Community Courts have replaced
the people’s courts. Community Courts play an important role in the administration of justice in
certain areas such as Alexandra near Johannesburg. These courts are not politically aligned and
parties voluntarily subject themselves to their jurisdiction. Arbitrators who have been elected by
the community resolve disputes in these courts. Sometimes, when necessary, the Community
Courts liaise with the police.
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13.8 Transformation of the judiciary

In 2018 the Commission for Gender Equality (‘CGE’, an institution supporting our constitutional
democracy) drafted a document with insight provided by Sonke Gender Justice and the Democratic
Rights and Governance Unit about the composition of the South African judiciary. The document
was tabled in the Government Gazette as the ‘Discussion Document on Gender Transformation in
the Judiciary and the Legal Sector’. It is accessible online and you are encouraged to find and read
it.
In the Discussion Document, the CGE notes that around 1994, it is reported that there were 165
judges on the bench. Of these, 160 were white men, three were black men, and two were white
women. Clearly, these demographics are consistent with the apartheid policies that were in place
in the preceding years. Since then, the Constitution has come into force. As we might suspect, the
transformative Constitution has had an impact on the composition of the Bench.
Section 9 of the Constitution prescribes that everyone is equal before the law but also that a
transformative aim of the Constitution is to achieve equality — this means that legislation and
other measures may be implemented to advance people who have suffered unfair discrimination.
Furthermore, section 174(2) of the Constitution provides as follows: ‘The need for the judiciary
to reflect broadly the racial and gender composition of South Africa must be considered when
judicial officers are appointed.’
By 2017, the statistics presented quite a different picture: There were 246 permanent judges
appointed to the bench. Of those, 73 were African men and 41 African women. They are trailed by
58 white men and 26 white women. Then there are 15 coloured men, 11 coloured women, 13
Indian men, and 9 Indian women. This means that 35% of the bench are women. Even though
there has been progress since 1994, more can be done. The Discussion Document says the
following in this regard:
‘Despite South Africa’s 20 years of democracy, the bench remains male dominated. Certain obstacles include
lack of female nominations by legal structures, a veiled JSC shortlisting process and the availability of women
and/or their willingness to be available for the appointment of certain judicial positions.’
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It then provides the following recommendations going forward:

‘• The criteria for the appointment of Acting Judges to be deliberated upon in conjunction with the legal
profession to obtain the “necessary buy in” and knowledge of the cited criteria by the legal pool.
• Formulation of guidelines for the role of Judges Presidents in encouraging women to apply for acting
appointments.
• Adoption of a transparent shortlisting process by the JSC for judicial vacancies.
• Mentorship and/or peer collaboration mandatory programmes requiring permanent Judges to be paired
with a senior female attorney, advocate, academic or magistrate.
• Revision of the JSC’s criteria for appointment of judicial officers.
• Revision of the JSC’s publishing channels for judicial vacancies to aim for an increased audience.
• Mandatory allocation of work in all areas of law, as [women] are mainly considered suitable for Family
Law. This is extremely prominent in Magistracy.’
In your view, why is it important for the judiciary to be reflective of the demographic composition
of South Africa?
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Chapter 14
The Legal Profession
Introduction
The legal profession is generally perceived to be very old-fashioned. This view is perhaps not
surprising if we consider judges’ and lawyers’ clothing, the formalised split nature of the profession
(advocates and attorneys, which we learn about later in the chapter), how we refer to presiding
officers (using ‘My Lady’ or ‘Your Worship’), and the general use of language (for example, ‘as the
court pleases’). The profession is intertwined with a formal process. As such it is based on English
legal tradition. The legal system experienced a legitimacy crisis during the late 1980s. One reason
for this was the dominance of white males in the legal profession. The profession to date is
criticised for its white male dominance and for its inability to provide legal services to those who
need it the most, in other words, people who cannot afford private legal services. At present, the
profession is in a process of restructuring and change. One of the primary manners in which the
restructuring and change is taking place is the passing of the Legal Practice Act 28 of 2014. The
Legal Practice Act came into full effect on 1 November 2018 and the purpose of the Act is to
ensure that access to legal services becomes a reality for all, and not only for a few wealthy
people.
South African universities have historically offered the following law degrees to qualify people for
the different legal professions:
• BIuris (three years), for public prosecutors and magistrates;
• BProc (four years), for attorneys;
• LLB (five years), for all legal professions.
These degrees have now been abolished and have been replaced with a four-year LLB degree.
The four-year LLB is offered at all South African universities and may be used to access all the
legal professions discussed below.
14.1 Traditional careers in the private sector

Traditionally lawyers have pursued two professions in South Africa: attorney and advocate.
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14.1.1 Attorney
Attorneys are the general practitioners of the legal profession. Clients approach them with their
problems, ranging from motor accidents to divorce. A large proportion of a lawyer’s daily work is
administrative. His work is that of a legal administrator. Some attorneys often appear in court but
most refer cases to advocates for court appearances. In the modern era of specialisation one also
finds specialist attorneys. One area in which someone with a scientific background may specialise
is patents and trademarks.
In order to practise law as an attorney, one must be admitted as an attorney by the High Court.
The Regulations to the Legal Practice Act regulate admission requirements for attorneys. The
following requirements must be met by candidate attorneys (aspirant attorneys):
• an LLB degree must be obtained;
• attorneys’ admission exams must be passed;
• candidate attorneys must complete practical vocational training for 24 months, and
structured course work (attendance of a training course presented at a Practical Legal
Training School of the Law Society) of a minimum of 150 notional hours; alternatively,
practical vocational training for 12 months, and structured course work of a minimum of 400
notional hours.
Candidate attorneys may complete their 24 months or 12 months of practical vocational training
(which prior to the Legal Practice Act was referred to as ‘articles of clerkship’) in a number of
different settings; attorneys practising alone, in a firm of attorneys (consisting of partners), at a

juristic entity, state attorney and law clinics.
Under the Legal Practice Act, the Law Society of South Africa (LSSA), will remain as the body
responsible for operating the Legal Education and Development (LEAD) division of LSSA.
The Legal Practice Act now provides that the South African Legal Practice Council (LPC) is the
single governance structure for both attorneys and advocates (advocates discussed below). The
LPC will impose a code of conduct on legal practitioners and will deal with any misconduct issue
relating to legal practitioners. The LPC will establish provincial councils and delegate some of its
powers to the provincial councils.
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A Natal practitioner who emigrated to England wrote to his son to give him advice on whether
he should study law. The father writes as follows on the profession in England (in a letter
transcribed in 1993 De Rebus 656):
A solicitor (a traditional attorney in the South African context) does not appear in court,
except before magistrates, that is, small cases. His job is to advise the client on a whole
host of problems, many of which may seem to have very little relation to law, prepare his
case for him so that the barrister can plead it if his client has to go to court (something
which should be avoided if at all possible), and draft for him all sorts of documents, from
complicated contracts about mining rights to simple letters. He is thus on a more
intimate basis with his clients than the barrister and he can (and perhaps should)
circulate more freely in the social world.
On the other hand, he is not on such a lofty plane as the barrister (a traditional
advocate in the South African context) — he is more of a business man and ‘mechanic’ —
he cannot take such a disinterested view and he is much more involved in tiresome day-
to-day detail. The range of problems and the knowledge required are so far spread that
most of us try, if we can, to specialize. For instance, I try to do little other than drafting
contracts and other documents and advising on problems relating to income tax and
company law and administration and I don’t go near the courts unless I can help it.
If you are a solicitor, whether you are a partner in your firm or not, you are always
working in close proximity and alliance with others — telephone operators, shorthand
typists (who can make or break your life for you) and the other lawyers in the office. To
succeed you do not necessarily need either the outstanding qualities or the luck which a
barrister needs, though both are quite a help. There are several solicitors in London and
Johannesburg who muddle along but who do ‘very nicely thank you’ just because they
happen to have got into firms with good clients.
In the past attorneys had the right of appearance in the lower courts only.
14.1.2 Advocate
Most advocates appear in court frequently. They are specialist litigators. Traditionally, clients do
not approach advocates directly. After the client has approached an attorney, the attorney does
the investigation or initial work. Thereafter, if it becomes necessary, the case may be referred to
an advocate. The advocate will then draft pleadings, write opinions and appear in court. The Legal
Practice Act has however changed this. Under the Legal Practice Act, there are advocates as well
as advocates who
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are in possession of fidelity fund certificates. Advocates in possession of fidelity fund certificates
can now be directly approached by clients, without an attorney.
Admission requirements for advocates are also regulated by the Regulations to the Legal
Practice Act. The Regulations set out the required practical vocational training requirements that a
pupil (the aspirant advocate) must comply with, in order to be admitted as an advocate:
• an LLB degree must be obtained;
• the candidate must complete service under practical vocational training for twelve months;
• the candidate must complete a programme of structured course work (which may be offered
by a society of advocates, the National Bar Council of South Africa or the General Council of
the Bar) of not less than 400 hours;
• the candidate must successfully complete the bar examinations.
A pupil may undergo his or her practical vocational training under a practising advocate, an
advocate employed at a law clinic or any other institution approved by the Council.
Advocates are not necessarily more senior in status than attorneys. Attorneys often have
qualifications equal to those of advocates. The main difference lies in the nature of the work. In
the past only advocates could appear in superior courts, but this has been changed (see para
14.1.3 below).
Advocates do not form part of a firm or company but they may work for companies and law
clinics on a part-time or full-time basis. Advocates ordinarily form part of an association of
practising advocates (called the ‘bar’). The Bar Association is an umbrella body which regulates
this profession. Under the Legal Practice Act, the General Council of the Bar of South Africa is no
longer strictly required to regulate advocates, but it may continue to exist in the form of voluntary
associations. Instead, the Legal Practice Council will be the governance structure for advocates.
Advocates work for their own account. Those of long-standing experience who are respected by
their colleagues may be elevated to the status of senior advocate. This qualification entitles an
advocate to wear a toga made of silk, and the practice is referred to as ‘taking silk’. It is from
amongst these senior advocates that judges have traditionally been appointed. Advocates have the
right of appearance in all courts.
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The same Natal practitioner referred to earlier advised his son on the advocate’s profession in
the following terms:
Primarily, a barrister (traditionally an advocate in the South African context) appears in

court to plead a case to the judge. In South Africa he wears a gown and neck-bands. He
is not supposed to be concerned with the merits of his case, that is, he does not have to
find out whether his client is guilty or not guilty; his function is to argue the case for his
client on the basis of the facts as his clients give them to him or as they may be brought
out in court. He is, therefore, in a position of great trust and responsibility.
The barrister’s life is a lonely one, in that his success is entirely dependent on his own
skill, personality and efforts. For that reason the plums of the legal world are reserved
for barristers — you cannot be a judge unless you have been one. However, there are
many judges who were never advocates, but were academics and/or attorneys before
being a judge. Although a barrister may make many friends inside his profession, his
time for making friends and taking part in the social world, that is, the world outside
business, will be very limited if he is good at his job.
What is your view on the distinction between advocates and attorneys, as described by the Natal
practitioner?
14.1.3 Attorney in the High Court

Generally, attorneys did not have the right of appearance in the High Court or the Constitutional
Court. But since the enactment of the Right of Appearance in Courts Act 62 of 1995 an attorney
may, however, apply to the Registrar of a High Court to be granted a right of appearance in that
court. The applicant must show that:
• they are admitted as an attorney of the High Court;
• they are in good standing with the regulation body (formally the Law Society, now the Legal
Practice Council).
If the application is successful, the attorney may appear in the High Court, the Supreme Court of
Appeal, and the Constitutional Court. Nowadays attorneys are appearing more frequently in the
superior courts. Some of the bigger firms of attorneys therefore appoint specialist litigators on a
fixed basis as partners in their firms.
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14.1.4 Conveyancer
Conveyancers deal with the transfer (conveyance) of land. They are qualified attorneys who have
an additional qualification and who do specialised work. Land is transferred when a deed is
registered at the deeds office. A deed can be described as the identity document of a piece of land.
If the owner of land changes, this must be noted and registered on the deed. Most rights in land
come into existence only after such registration.
14.1.5 Notary
A notary is a qualified attorney who has written an additional qualifying exam that allows her to do
specific work. This specific work involves the drawing up of special types of documents. The law
requires that certain documents, such as antenuptial contracts, must be drawn up by a notary.
14.1.6 Office personnel

Candidate attorneys, secretaries and other members of staff in the firms of attorneys or in
advocates’ chambers also sometimes hold legal qualifications. These qualifications may be of great
benefit to them in their daily professional work.
14.1.7 Legal advisor

The law plays an important role in the business world. Many companies and financial institutions
have lawyers as permanent members of staff. In addition to an LLB degree it is useful for such a
lawyer to have a BCom degree. This profession also opens possibilities for lawyers to rise to
managerial positions.
14.2 Professions in the public service

The Department of Justice, other state departments and tertiary educational institutions offer the
following possibilities:
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14.2.1 Prosecutor
The official charged with instituting criminal proceedings is the Director of Public Prosecutions
(DPP). He or she delegates this authority to state advocates (in the High Court) and to public
prosecutors (in the Magistrate’s Court). An Office for Serious Economic Offences (OSEO) was
established to investigate and probe economic offences through speedy investigation. All of these
prosecutors spend most of their time in court.
14.2.2 Presiding officer

Judges, who preside in the superior courts, were previously appointed from the ranks of the
senior advocates. In 1995 the first advocate who had not yet obtained senior status was appointed
to the bench. Now judges are also appointed from other branches of the profession. In 1995 the
first attorney, a woman, was appointed as a judge. The President appoints judges on the advice of
the Judicial Service Commission. They then become officials paid by the Department of Justice.
The presiding officers in lower courts are magistrates and regional magistrates. Magistrates
are civil servants, who usually start off as public prosecutors. Magistrates are appointed by the
Magistrates Commission. Judges in the High Court are generally addressed as ‘My Lord’ and ‘My
Lady’. Judges of the Constitutional Court and the Supreme Court of Appeal are addressed as
‘Justice’. ‘Your Worship’ is the form of address used in a Magistrate’s Court.
14.2.3 State attorney

State attorneys are civil servants. They do the same work as ordinary attorneys, but their clients
are the different state departments and not individuals. It goes without saying that state
departments will often be involved in civil matters. The state must buy and sell property and enter
into contracts. These attorneys will also represent the state when, for example, a state department
is sued for damages.
14.2.4 State legal advisor

State legal advisors undertake legal research, check existing legislation and draft new statutes.
They give legal advice to specific state departments. Since South Africa has been accepted back
into the
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international community, state legal advisors in the Department of International Relations and
Cooperation have become eligible to fill a number of posts in international organisations such as
the African Union and the United Nations.
14.2.5 Registrar of the High Court

A Registrar is appointed for each seat of the High Court. This official (a kind of secretary) is
responsible for administration and documentation in the High Court. The functions of a Registrar
include:
• the receipt of fines;
• the finalising of the court roll;
• the issuing of summonses for people to appear in court.
14.2.6 Clerk of the Court

The clerk of the court fulfils the same functions in the Magistrate’s Court as the Registrar in the
High Court. He or she is the official responsible for administration and documentation in the
Magistrate’s Court.
14.2.7 Master of the High Court

There is a Master for each provincial High Court. The Master is the official responsible for
specialised affairs, and his or her functions include:
• controlling and supervising the administration of deceased estates;
• controlling the liquidation of companies;
• controlling trust funds on behalf of minors.
14.2.8 Registrar of Deeds

The Registrar of Deeds is responsible for the registration of deeds in the Deeds Office.
14.2.9 Registrar of Patents and Trademarks

All patents and trademarks must be registered before they are recognised and protected by law.
This is done by the office of the Registrar of Patents and Trademarks.
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14.2.10 Family advocate

This position was created by the Mediation in Certain Divorce Matters Act. The court may decide to
refer a case to the family advocate when in its view the interests of the children have not been
catered for. One of the parties to the dispute may also request that the matter be referred to the
family advocate.
14.2.11 Law Reform Commission

The South African Law Reform Commission consists of lawyers who do research on aspects of the
law for the purposes of possible legal reform.
14.2.12 Public Protector

The Public Protector investigates allegations of maladministration at all levels of government (such
as corruption and the abuse of authority). He or she must try to resolve the dispute by mediation,
negotiation or by ordering remedial action against state parties. If it is clear that an offence was
committed, he or she may refer the matter to the DPP for possible prosecution or to other
appropriate bodies, depending on the context.
14.2.13 Human Rights Commission

This commission consists of a chairperson and commissioners. Their function is to promote respect
for human rights.
14.2.14 Public defender

Public defenders are attorneys and advocates employed by the state. They defend accused persons
who cannot afford legal representation (see para 14.3.2 below) in criminal courts.
14.2.15 Legal academic

Tertiary educational institutions provide career opportunities to those lawyers who are interested in
legal research and teaching law. Law teachers usually study further and obtain qualifications such
as LLM and LLD degrees.
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14.3 Legal representation

In South Africa in 2015 it was reported that there were approximately 23 000 lawyers for
55 million people. There is no doubt that expert legal aid is available. But can everyone who needs
legal aid obtain it? The answer is no. The main obstacle for people who require legal assistance is
the high cost of lawyers’ services.
14.3.1 Costs (fees)

The amount that lawyers may charge as a fee for their services is regulated by statute and by the
profession. In general the requirement is that a fair amount must be charged.
Attorneys and advocates are paid per hour for consultations and per day for court appearances.
Factors such as the seniority of the person and the nature of the work are taken into account when
setting the fee.
The fees may appear fair to the profession, but often remain outside the reach of the average
South African. The Legal Practice Act now requires attorneys and advocates to provide their clients
with a ‘cost estimate notice’ when the client tells them what legal assistance is being sought. The
‘cost estimate notice’ must be in writing and must set out all the tasks that will be undertaken by
the attorney or advocate, as well as the cost in respect of each task.
14.3.2 Existing legal aid

Section 35 of the Constitution provides for the right of an accused person to appoint a legal
representative of his or her choice at his or her own expense. However, it appears from the above
that legal assistance can be quite costly. But the section then states that an accused must be
afforded legal representation at state expense, if substantial injustice would otherwise result.
The effective implementation of this right places a great burden on the legal profession and state
funds, which the Legal Aid Board administers.
Various forms of legal aid are available:
• Pro Deo representation. The state appoints legal representatives from among practising
advocates to represent indigent accused in serious criminal cases heard in the High Court.
These advocates are paid by the state for the specific case.
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• Pro amico legal aid. This is free legal aid for friends and acquaintances. It is a service to
friends.
• Pro bono legal aid. This is a service to the community: advice or representation in cases
that merit representation without compensation. Certain law societies expect their members
to do 24 hours’ pro bono work per year.
• Legal Aid Board. The Legal Aid Board is a statutory body which provides legal aid to
indigent people. This is done in two ways: there is the Judicare system, where the Legal Aid
Board instructs private practitioners to represent indigent accused persons or litigants.
Secondly, there are justice centres where attorneys who are employed by the Legal Aid
Board can take cases.
• Legal aid clinics. At some universities there are legal aid clinics that provide free legal
services and legal aid. In general people can qualify for such aid only if they satisfy certain
minimum requirements. An unmarried person must earn less than R3 000 per month and a
married couple less than R5 000 per month. A legal aid clinic will assist any person if
substantial injustice would otherwise result.
• Advice bureaux. Various non-governmental organisations (NGOs) founded legal aid clinics
or advice bureaux in certain areas of the country, especially rural areas. Paralegals
sometimes staff these offices. Paralegals are people with legal knowledge and experience,
but without the necessary or formal degree qualifications. They give advice in different
towns, but may not appear in court. Some have proposed that paralegals should be allowed
to appear in criminal cases after they have completed a two- or three-year diploma course
which concentrates on criminal law and procedure.
• Public defender. A programme of public defending was launched in Johannesburg in 1992.
In this system legal representation is given to indigent accused persons in criminal trials
which take place in the Magistrate’s Court. Public defenders are employed by the state, but
defend accused persons in criminal matters. In the USA this functions on a wide scale.
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14.4 Ethical questions

Practising attorneys and advocates must comply with the ethical rules of the profession. They have
a duty to treat their colleagues with respect and courtesy. They must not attack the character of
the opponent, but only the content of his or her argument. As court officials they are under a duty
to follow court etiquette. In both conduct and dress they must respect the dignity of the court.
Now under the Legal Practice Act, the Legal Practice Council can take disciplinary steps in cases of
unprofessional, dishonest and improper conduct. This often happens when attorneys use funds
held in trust accounts for their own purposes. Trust accounts contain funds of a client held by an
attorney in a separate account on the client’s behalf. Ethical standards also apply to the
relationship between lawyer and client.
Consider the issue of ethical conduct in the following examples:
• Your client admits to committing murder. He asks you to help him concoct a story
that will convince the court of his innocence.
It is unethical to fabricate information. The legal representative is responsible to the court for
the proper administration of justice and must assist the court in its quest for truth. The rule
is that the court must not be deceived. A similar situation may occur when a client during
testimony contradicts the version given to the lawyer during consultation. In such a case the
advocate or attorney will usually ask the court’s permission to withdraw from the case.
• Your client admits to having committed the murder. He tells you that there were no
eyewitnesses to the incident. He is of the opinion that the state will not be able to
prove the case against him.
There can certainly not be a duty on a legal representative to prove his client’s guilt. The
onus is on the state to prove beyond reasonable doubt that the accused is guilty of the
alleged offence. The accused is therefore entitled to a plea of not guilty. In this way the court
will not be deceived. The state will merely be given an opportunity to make its case.
However, you as advocate or attorney may not during cross-examination put it to a witness
that the accused had not been on the scene of the crime. Your cross-examination will be
directed at the credibility of the witnesses, their ability to make observations and to attack
them for being biased.
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• Your client admits to having committed a premeditated and cold-blooded murder in

the presence of many witnesses.
You always have the duty to act in the best interests of your client. In such a case the best
solution will probably be to advise your client to plead guilty. After conviction you must
endeavour to place all relevant mitigating factors before the court.
• Your client denies that he killed the deceased with intent. He tells you how the
deceased (a frail 18-year-old girl) wanted to strangle him. He only acted in self-
defence and killed her by stabbing her in the chest with a knife.
You have a strong suspicion that your client is not being truthful. During consultation you
should test his version by questioning him. If he insists that he is telling the truth, you must
assist him to present his version to court in the best possible way.
• Your 9-year-old niece was gang-raped, you are still upset by the incident and you
are generally angry about the rape culture in the country. Your client is accused of
rape and is allegedly a gang member.
Attorneys and advocates have a duty not only towards the court and their clients, but also
towards the community as a whole. In principle a lawyer may accept or refuse any client.
But, in the interest of the community, he or she may be compelled to serve certain clients.
This will definitely be the case when he or she is the only lawyer available. If other lawyers
are available, it would probably be best in this case to advise the client that someone else
could serve his interests better.
See www.jutapassmasters.co.za for the Van der Berg case and accompanying questions.
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Chapter 15
Legal Comparison
Introduction
Legal comparison is the study of foreign legal systems for the sake of comparing them with one’s
own.
But what value may be gained from such a study? There is a general perception that legal
systems of countries differ fundamentally from one another. Each legal system has its own
character. It is designed to serve the specific needs of a particular community. Law students
usually regard this ‘reality’ as an obstacle when they consider further studies or even job
opportunities in foreign countries.
But on closer examination, you will often find remarkable similarities between the legal
systems of different countries. Sometimes there are historical reasons for this. Take South Africa
as an example. On the one hand our legal system is based on Roman-Dutch law. This fact links us
to Western Europe and the Netherlands in particular. The influence of English law, on the other
hand, links our legal system to that of Britain. Due to the fact that many other African countries
were also colonised by Western European states, our legal system could be linked to those
countries. Of course, many of those African countries also have customary laws of the African
peoples and their treatment of customary law could be an important point of similarity for the sake
of comparison.
This phenomenon is not restricted to the South African legal system. The reception of Roman
law from the twelfth century in Europe largely provided for uniformity in the legal systems of
Western Europe. Although there might be clear differences between the constitutional and political
orders in these countries, the principles of private law often correspond. For example, certain rules
of the law of contract are the same in Holland, France, Spain and Portugal.
The colonisation policy in previous centuries was responsible for the transplantation of English
and European legal principles to other parts of the world, such as the Americas, Africa, Asia,
Australia and New Zealand.
More recently the European codifications (civil codes) extended their influence far beyond their
territorial borders. In some cases there have been large-scale transplants of these codes to
countries with fundamental cultural differences from those of the countries of origin. For
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example, the Swiss Civil Code strongly influenced the Turkish Code. The German Civil Code was
extensively taken over in the Greek, Hungarian and Japanese codes.
Today, we find ourselves living in a time of increasing globalisation. By this we mean the
process through which the world is becoming more and more interconnected. Thanks to
advancements in technology and communication infrastructure, it is becoming progressively easier
to access and understand the laws of other jurisdictions beyond the borders of South Africa. With
globalisation also comes shared legal ideas and ideals. The global spread and increasing
dominance of human rights discourse serve as examples of this. Say 50 years ago, legal
comparison in South Africa was often thought of as a restricted activity where we considered the
law of the Netherlands or England against our own on account of shared legal traditions. However,
today, legal comparison can meaningfully be executed with many more foreign legal systems than
we might have anticipated in previous eras.
15.1 Reasons for legal comparison

Legal comparison is becoming more important for the following reasons:
• As mentioned above, the world has become a ‘global village’ through developments in
communication technology, the media and international transport. No country exists in
isolation anymore. We have contact with foreign legal systems on a daily basis. This process
is furthered by international organisations such as the UN (United Nations), the European
Union (EU) and the African Union (AU). These bodies promote international cooperation in
various fields.
Addressing the US Congress, Nelson Mandela referred to this evolving new world order and
encouraged international concern for peace, prosperity and democracy:
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The challenge facing the new world order

[This is an extract of an address by President Mandela to the Joint Houses of Congress of
the US.]
‘IF WHAT we say is true, that, manifestly, the world is one stage and the action of all inhabitants
part of the same drama, does it not then follow that each one of us nations, including yourselves,
should begin to define the national interest to include the genuine happiness of others, however
distant in time and space their domicile might be?
You, honourable members of the US Congress, are part of and represent the most powerful
nation in our universe. I am, on the other hand, an African.
I come out of a continent with whose travails and suffering you are very familiar. You will
therefore understand it easily why I stand up and say that, for such a powerful country as yours,
democracy, peace and prosperity in Africa are as much in your national interest as in ours.
Because I am an African, you will, I am certain, understand why I should stand here and say
that it is our deeply held belief that the new world order that is in the making must focus on the
creation of a world of democracy, peace and prosperity for all humanity.
Is the time, therefore, not upon us when we should cease to treat tyranny, instability and
poverty anywhere on our globe as being peripheral to our interests and to our future?
Has not the end of the paralysis in world affairs, which resulted from the conflicts of the Cold
War and the threat of nuclear holocaust, posed to us all the challenge to redefine the purposes of
the world’s system of international relations?
Can we not, then, move from the negative to the positive! The situation of conflict between
two competing systems having been brought to an end, do we not now move away from the
negative, of the global destruction of one system, to the positive, of the global creation of the
conditions which will make it possible for all peoples to enjoy the right to full human dignity?
We are deeply moved by the commitment which the great people you represent, and which
you yourselves and the President of the United States have made, that you will stay the course
with us as we strengthen democracy in our country, ensure stability born of freedom and banish
poverty and deprivation.
You have taken these positions not out of a sense of condescending pity for our people but
because you have felt and recognised that our success advances the very principles on which this
country is founded.
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Such recognition can never be an end in itself. It must surely be the beginning of a process of
embarking on actions that reinforce the independent activities of the peoples to address these
matters.
If all of this is true, then great countries such as this one and great institutions such as the
United Nations, the International Bank for Reconstruction and Development, the International
Monetary Fund and the European Union, must begin to put as a purpose central to their policies
and actions the creation of a world of democracy, peace and prosperity.
For the very first time in the history of humanity we have arrived at the point where it has
become possible to pose this challenge. That possibility has arisen from the fact that, given the
will, humanity does, in fact, have the means to begin the creation of the new world order whose
central features we have sought to define.’
• Growing internationalism is also advanced by common problems which threaten the world
as a whole. Think about large-scale poverty, overpopulation, disease, pollution, and the
shortage of resources and their distribution. Solutions to these problems call for cooperation
between different countries and the creation of new laws. This is especially true for the types
of problems that postcolonial and other post-conflict societies face. As such, meaningful
comparison may be conducted between our legal system and other postcolonial legal
systems so as to explore different possibilities of grappling with the legacy of colonisation,
rooted in political disempowerment, land dispossession and psychological violence inflicted on
First Nations peoples.
• Internationally accepted ideologies, such as the protection of human rights, encourage
countries to conform to or move closer to international norms. The eventual acceptance in
South Africa of a bill of human rights was largely influenced by the existence of an
international human-rights culture.
• Legal comparison is necessary for the development of one’s own legal system. It is
unnecessary to reinvent the wheel over and over again. Much may be gained by looking at
how other countries apply corresponding principles or address certain problems. In South
Africa, legal comparison is often applied in case law and in the creation of legislation.
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Example from case law

Suppose that you have a married couple (whose identities we will protect by abbreviating
their names) called Mr and Mrs E. A certain Mr H has an extramarital affair with Mrs E. At
common law, it has historically been the position that Mr E could sue Mr H for the
adultery that he committed which has caused Mr E to have hurt feelings. In the case of
DE v RH 2015 (5) SA 83 (CC), the Constitutional Court had to decide whether this claim
should be allowed in modern society. In this regard the court said the following (at paras
28–38, footnotes omitted):
‘[28] It may be of value to seek guidance from foreign law on developments on the claim. But –
because of differences in context – this is something that must be done with the necessary
caution. This Court has said:
“The relevant question then is what role foreign law can fulfil in considering this case.
Where a case potentially has both moral and legal implications in line with the importance
and nature of those in this case, it would be prudent to determine whether similar legal
questions have arisen in other jurisdictions. In making this determination it is necessary for
this Court to consider the context in which these problems have arisen and their similarities
and differences to the South African context. Of importance is the reasoning used to justify
the conclusion reached in each of the foreign jurisdictions considered, and whether such
reasoning is possible in light of the Constitution’s normative framework and our social
context.”
[29] The Supreme Court of Appeal identified English law as the origin of the private law claim for
damages arising from adultery in South African law. The action – which was called “criminal
conversation” in England – was abolished by legislation. This has since been followed by New
Zealand and Australia in 1975, Scotland in 1976, Ontario in 1978, and subsequently by almost all
the provinces of Canada. In 42 states in the United States of America the action has been
abolished or severely restricted.
[30] While at one time adultery was punishable as a criminal offence in France, the
Netherlands, Germany and Austria, it no longer exists as a crime in any of these countries; nor
do civil claims exist in these jurisdictions. As long ago as 1952, an unnamed professor at the
University of Vienna is reported to have said the continued existence of an action for damages for
adultery was “utterly repugnant to modern ideas”. He continued:
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“Not only is it degrading to the wife, who is treated as a kind of chattel belonging to her
husband, but it is wrong that the time of the courts should be taken up in attempting to
assess marital fidelity in terms of money.”
[31] The German position was emphatically articulated in a case before the Bundesgerichtshof,
which rejected a plea for the development of German law to recognise the claim. The
Bundesgerichtshof held:
“[N]o claims in tort are allowed by the law in force in cases of ‘intrusion of a marriage’
either against the guilty spouse or against the intruding third party. . . . [I]t expresses the
conviction that highly personal relations should not be regulated by law, which is at least
compatible with constitutional law and corresponds to modern ethics.”
[32] The majority of other jurisdictions based on English civil law have also disposed of the claim.
These nations include the Republic of Ireland, Barbados, Bermuda, Jamaica and Trinidad and
Tobago.
[33] To the extent I could ascertain, the position in Africa reveals a chequered pattern. I deal
with only a few countries on the continent. Cameroon is one of those countries where adultery is
still a criminal offence. Kenya has recently introduced changes which appear to leave some room
for a claim; its exact nature is not all that clear to me. The Matrimonial Causes Act allowed for a
“husband . . . [to] claim damages from any person on the ground of adultery with [his] wife”.
This was repealed by the Marriage Act, section 13 of which replaced the action with the following
claim:
“Despite the provisions of any other written law–
...
(c) a spouse shall be entitled to claim, in any action resulting from a negligent act,
omission or breach of duty, which causes loss of the companionship of the other, or
damages in respect of that loss.”
[34] Several African countries retain the action for damages for adultery against a third party.
They include Zimbabwe, Namibia, and Botswana.
[35] Seychelles is an example of a country that has definitively disposed of the action for
adultery. The claim was repealed by the Matrimonial Causes Act, which stated that
“[n]otwithstanding any other written law, the adultery of a party to a marriage shall not give rise
to a claim for damages”. Quite instructively, in Rose v Valentin the Supreme Court of Seychelles,
quoting Cosgrow v Cosgrow said:
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“The evolution of the law within commonwealth jurisdictions over the last decade or so
demonstrates that there is no longer any turpitude attached to adultery.”
[36] It is worth noting that in the Namibian case of Van Wyk even as the Court upheld the claim,
it acknowledged the softening of attitudes towards adultery. It accepted that societal mores in
modern times have moved on from olden day perceptions of adultery. It recognised certain core
rights of each spouse as an individual, especially the autonomy and individual agency of each. In
this respect, society no longer views it as reprehensible, without more, that a married person
may meet and fall in love with someone else. It said:
“It may well be that in this age, society views with less disapprobation than in the past the
commission of adultery. There are also degrees of reprehensibility in the delict of violating
the marital relationship ranging from the isolated chance encounter to the sustained
continuing invasion of the sanctity of the marital relationship. It must however be
remembered that marriage remains the cornerstone and the basic structure of our society.
The law recognises this still today and the court must apply the law. One can also not
ignore the possibility that a married person meets someone else, develops feelings for that
person and falls out of love with his or her spouse without intending to. But the way in
which the ‘guilty’ spouse and third party behave thereafter, due regard being had to the
innocent party’s personality rights, will determine the extent of an award of damages in an
action for damages against the guilty party.” (Emphasis added and footnote omitted.)
[37] Taking the foreign law that I have tracked as a whole, it appears that the general trend is
towards the abrogation of a civil claim following on the heels of the even faster paced
international disposal of the crime of adultery. The wave of change seems to be moving –
certainly preponderantly – in one direction. I would be surprised if in recent history there are
countries, let alone a significant number, that have introduced more restrictive laws against the
act of adultery.
[38] Also, the retention of the claim by some countries is not necessarily an indication that
these countries would not abolish it even if called upon to do so. In certain cases it may well be
that the issue of abolition has never arisen for judicial determination. Quite mindful that we are
yet to pronounce finally on the issue, let us take South Africa as an example. Had the Supreme
Court of Appeal not raised the issue of its own accord, South Africa would still be counted
amongst those nations that retain the claim. So, all that may be keeping some countries where
they are may be no more than a lack of the necessary trigger; the issue whether the claim
should continue to exist may simply never have been raised pertinently.’
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Example from legislation

South African legislation is often based on corresponding foreign legislation. The
Insolvency Act 24 of 1936 is based on the British model. Our first Sectional Titles Act 66
of 1971 was based on Australian, French and Israeli legislation. The South African Law
Reform Commission, which does research on certain topics, often uses legal comparison
and as a result may propose new legislation. Our Constitution and the Bill of Rights in
particular are products of legal comparison.
15.2 Problems in this field

There are some factors which often impede a legal comparative investigation.
• Language is sometimes a problem. For proper research on another legal system, a
knowledge of the language in which it is originally written is necessary.
• Furthermore, a knowledge of the structure of the particular system is essential. Legal
systems differ as far as systematics and the relative value of the sources of law are
concerned. In some countries legislation is the most important source. In others it is case
law or custom. It is thus important to establish whether the system is codified.
• The same terminology may have different meanings in different legal systems. For
example, the word ‘Act’ (legislation of Parliament) does not have the same meaning as ‘Acte’
in Dutch law.
• The purpose of the particular legal comparative investigation must be borne in mind.
Sometimes legal systems are compared merely for interest’s sake. In other situations one is
searching for a solution to a very real problem, for example, where a rule in South African
law is vague or new legislation must be created. In such cases the choice of the particular
foreign system is important. The approach adopted in another country is not necessarily
going to work in South Africa.
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15.3 Different legal systems

Traditionally, the legal systems of the world are divided into different ‘families’ on the basis of a
common history or common characteristics. It is possible to identify different classifications.
In the past, the socialist legal systems were classified as belonging to a separate legal family.
The legal systems of the former Soviet Union and the countries of Eastern Europe formed part of
this classification. After the decline of communism this legal family largely disintegrated. But
socialism has, however, made lasting contributions to modern legal thinking. The concept of the
welfare state as it is applied in Europe and elsewhere, as well as the recognition of socio-economic
rights, have their roots in socialism.
We are going to look briefly at the main features of different legal systems.
15.3.1 African systems

The traditional law of the various African communities have the following characteristics:
• African law is based on oral tradition; in other words the laws are not formally written
down.
• It is based on traditions and customs which sometimes have a religious origin. Rituals are
often important.
• Like religious systems, it is aimed at harmonising society. It is more community-orientated
than individual-centred. In the case of disputes, mediation is the norm rather than the
Western concept of litigation.
Nineteenth-century colonisation brought both the Anglo-American and Romano-Germanic legal

systems to Africa. This forced traditional African law into the background, even after these
countries gained independence. It is often only in the areas of family law and law of succession
that African law still has a strong influence. In South Africa, African law has its role as customary
law (see Chapters 2 and 3 above).
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15.3.2 Anglo-American (common-law) systems

English law forms the basis of these systems. It is applied in most English-speaking countries,
such as the USA, Canada, Australia and New Zealand.
English law has its origin in two sources: common law and the law of equity. Common law is the
law that was developed by the English courts since the eleventh century in cases that were
brought before them. This law was often quite rigid, and therefore the courts started applying the
law of equity in the fourteenth century. The latter consists of principles of fairness and natural
justice. There is little Roman influence in English law.
Anglo-American law is therefore in essence judge-made law or case law. The law is not derived
from abstract principles of general application. It is developed in a lawsuit (case by case or
‘casuistically’); it has its origin in the legal process. The doctrine of precedents and the law of
procedure are thus very important in these systems.
The Anglo-American systems are not codified. Certain areas of law are contained in legislation.
However, legislation in general plays a subordinate role, and it is mainly the task of the courts to
interpret and give meaning to it.
In South Africa the term ‘common law’ usually refers to our South African common law (Roman-
Dutch law). It must not be confused with English common law.
15.3.3 Romano-Germanic (civil-law) systems

It is mainly the countries of Western Europe that belong to this legal family. All these systems
have, to a certain extent, been influenced by Roman law (civil law). From the twelfth century
onwards Roman law became merged with local Germanic law in Western Europe (see Chapter 2
above). It is the influence of Roman law that is responsible for the basic differences between this
legal family and the Anglo-American systems.
Today these systems are codified. The codification movement took root in Western Europe
especially during the nineteenth century. One of the most important codes was the French Code
Civil, which was compiled in 1804 on instruction by Napoleon. This Code had a strong influence on
later codes in Western Europe.
Codification means that the law is mainly to be found in legislation (the code as primary
source). This fact highlights a difference in approach between these and the Anglo-American
systems. Because the rule is
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usually to be found in the code, it functions as an abstract rule which stands above the many
possible factual situations for which a solution is sought. In a concrete case, a solution is deduced
from the rule. The emphasis is therefore not on rules created by judges. Precedents do not carry
much weight. Legislation, and not case law or custom, is the most common source of law.
15.3.4 Scandinavian systems

Denmark, Norway, Sweden, Finland and, to some extent, Iceland form part of this legal family. The
legal development in these Northern European countries was rather isolated from the rest of
Europe. Roman law had little influence.
Traditionally, Germanic law in the form of Nordic law was applied. During the seventeenth
century this law was codified in most of these countries. These codes, although sometimes
outdated, are presently still in force.
This legal family is distinguished by the cooperation between these countries in respect of
unification of the law, which has taken place dating from the previous century. Legislation has
been accepted in large areas of commercial and private law that makes the law uniform (the
same) in all of these countries. German and English law considerably influenced the legislation.
Legislation (also in the form of the old codes) is consequently the most important source of
law. Where legislation is incomplete or outdated, the courts apply customary law to fill in the gaps.
In a limited sense, the courts therefore have a creative function. However, no doctrine of
precedents applies.
A characteristic of Scandinavian law is that it is quite progressive. At an early stage, men and
women had equal rights, as did children born of married parents and children born of unmarried
parents. Marriage was not elevated above other forms of cohabitation.
15.3.5 Religious systems

Islamic, Hindu and Jewish law are religious legal systems. In general, these systems have the
following characteristics:
• They have their origin in religious sources: for example, the law of Islam in the Quran and
Jewish law in the Torah or Pentateuch. These sources are perceived as coming from a deity.
In principle these laws cannot be changed by human beings.
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• No sharp distinction is drawn between the law, mores, morality and personal ethics. The
emphasis is not on individual rights but on the individual’s moral duties and her duties to
society. The aspiration for a harmonious society is important.
• These legal systems apply on a personal level for all believers, irrespective of where they find
themselves. They are not connected to a specific territorial area. Problems can arise when
the legal system of a specific territorial area is in conflict with the religious laws of the
individual.
• Many developing countries today have a complex legal nature. For example, in India a
mixture of Hindu and Muslim religious systems developed. British domination resulted in
India being considered as part of the common-law family today, especially through its control
of the formal administration of justice. In private law, particularly in the rural areas, religious
law and traditional practices still apply to a great extent.
15.3.6 ‘Mixed’ or ‘hybrid’ systems

As you may have realised upon reading about the above legal families, the South African legal
system does not fit into one of the above-mentioned classifications. It is a hybrid (mixed) system
in the sense that various legal systems have played a role in its development. Customary law
(African law family) is applied as the law of the African peoples. Additionally, both Roman-Dutch
law (civil-law family) and English law (common-law family) have influenced our legal system since
colonisation. In varying degrees, South African law accommodates those people who wish to follow
their religious laws, to the extent that the constitutional order allows it.
See www.jutapassmasters.co.za for a comparison between South African and Scots law
as mixed legal systems.
15.4 The Constitution and comparison

The Bill of Rights (found in Chapter 2 of the Constitution) is to a large extent the result of
comparative legal research. Its drafters studied several international human-rights documents and
the constitutions
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of other countries. Therefore, many of the clauses in our Bill of Rights correspond to similar
provisions elsewhere in the world.
Section 39(1) of the Constitution supplies specific guidelines with respect to legal comparison,
as far as the protection of human rights is concerned. It stipulates that in interpreting the Bill of
Rights, a court—
• must consider international law; and
• may consider foreign law.
International human-rights documents, such as the Universal Declaration of Human Rights, form
part of ‘international law’. ‘Foreign law’ refers to the domestic legal systems of other
countries, including the decisions of their domestic courts. Various countries have adopted
principles of international law in their own justiciable constitutions. In those countries, the courts
have been enforcing the protection of human rights for quite some time. Such foreign case law
thus provides valuable guidelines for solving problems which our courts have been encountering
only recently.
Here are some examples: Are burning the national flag and inciting revolution legitimate
manifestations of the freedom of expression? In the USA it was decided that it is legitimate with
respect to the burning of the flag but not with respect to inciting revolution. Can abortion be
reconciled with the right to life? The American Supreme Court decided that after three months’
pregnancy it cannot. This means that until such time, a woman has a free choice regarding
abortion. Her right to privacy has preference. After three months, the right to life of the foetus has
preference. In India, it was decided that the right to life includes the right to a certain quality of
life. Therefore residents in a mountainous area are entitled to have access to a proper road.
One of the questions in S v Dodo 2001 (3) SA 382 (CC) was whether a mandatory minimum
sentence prescribed by the legislature violates the principle of separation of powers. In answering
this question the Constitutional Court referred to the law in eight different countries. The court
made the following observations:
‘There are many examples of other open and democratic societies which permit the legislature to limit the
judiciary’s power to impose punishments. The United States of America and Canada are striking instances.
Other democratic countries such as Australia, Germany, India, New Zealand and the United Kingdom, have
sentencing statutes which mandate minimum sentences under circumstances that are, in certain instances,
more intrusive of the judicial sentencing function than
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s 51(1) in the present case. The Namibian High Court has also used the “grossly disproportionate test” for
determining whether a mandatory minimum sentence constitutes “cruel, inhuman or degrading treatment or
punishment” under art 8(2)(b) of the Namibian Constitution (S v Vries 1996 (12) BCLR 1666 (Nm) at 1676G
and 1702J–1703A). It has never, so far as I have been able to determine, been decided in any of these
jurisdictions that mere involvement by the legislature in the sentencing field conflicts with the separation of
powers principle.’
Against this background, the court concluded that mandatory minimum sentences do not conflict
with the principle of separation of powers.
More recently, in the case of H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (at paras 31
and 42, footnotes omitted), the Constitutional Court provided the following general principles that
must be borne in mind when embarking on the exercise of legal comparison:
‘Foreign law has been used by this Court both in the interpretation of legislation and in the development of
the common law. Without attempting to be comprehensive, its use may be summarised thus:
(a) Foreign law is a useful aid in approaching constitutional problems in South African jurisprudence. South
African courts may, but are under no obligation to, have regard to it.
(b) In having regard to foreign law, courts must be cognisant both of the historical context out of which our
Constitution was born and our present social, political and economic context.
(c) The similarities and differences between the constitutional dispensation in other jurisdictions and our
Constitution must be evaluated. Jurisprudence from countries not under a system of constitutional
supremacy and jurisdictions with very different constitutions will not be as valuable as the jurisprudence
of countries founded on a system of constitutional supremacy and with a constitution similar to ours.
(d) Any doctrines, precedents and arguments in the foreign jurisprudence must be viewed through the
prism of the Bill of Rights and our constitutional values.
The weight given to different arguments in a country is often, if not invariably, determined by the
constitutional, political and social context within which the law of that country is determined. For convenience
we may call it the “legal culture” of each country. It is from within the perspective of our own legal culture,
where all law must be grounded in constitutional values and where considered respect must be given to the
fundamental rights set out in the Bill of Rights, that we must
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assess the various arguments for and against the recognition of the child’s claim here. In this regard the
general normative framework of the Constitution and the Bill of Rights, the particular prominence given to the
best interests of children within that framework, and the openly normative character of our approach to the
issue of wrongfulness in our law of delict, must give guidance in the determination of whether the claim
should be recognised.’
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Chapter 16
Language and Law
Introduction
A lawyer’s most important working tool is language. In court lawyers
try to convince others through argument and by questioning
witnesses. Outside court they draft documents and give opinions to
make the law accessible and useful to clients. Legal academics write
books and articles about the law to present arguments about what
the law is and should be. They present these ideas orally to students
in lecture theatres and colleagues at conferences.
A medical student learns her subject by studying human anatomy.

Those studying chemistry experiment with elements. The law
student studies by reading textbooks, monographs, articles, reported
cases and statutes.
Lawyers must be able to communicate well. Communication may

be either verbal or written. Written language is found in the
judgments of judges, articles by academics, pleadings, contracts and
wills. During consultation and trials, lawyers use the spoken version
of legal language.
Language can colour our perceptions. This is clear from

research done on this topic. A group of people watched the
same film. In this film a motor accident was shown. The
group was then divided into two. The one group was asked:
‘Approximately how fast were the cars going when they
smashed into each other?’ The second group had to
answer a different question: ‘Approximately how fast were
the cars going when they hit each other?’ Researchers
found that the first group estimated the speed relatively
higher than the second group. The words ‘smashed’ and
‘hit’ obviously affected the groups’ answers.
16.1 Formal legal language
16.1.1 Excerpts
Formal legal language (legalese) is intended for a small group of

people who have specialised knowledge or interest in the law. To
what extent is legal language overly formal? A few excerpts from
chosen legal texts follow. The first is a section from and older
statute, the Insolvency Act 24 of 1936:
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‘88. Certain mortgages are invalid
A mortgage bond, other than a kustingsbrief, whether special
or general passed for the purpose of securing the payment of
a debt not previously secured, which was incurred more than

two months prior to the lodging of the bond with the registrar
of deeds concerned for registration or for the purpose of

securing the payment of a debt incurred in novation of or
substitution for any such first-mentioned debt, shall not confer

any preference if the estate of the mortgage debtor is
sequestrated within a period of six months after such lodging:

Provided that a mortgage bond shall be deemed not to have
been lodged as aforesaid, if it was withdrawn from

registration.’
If you did not pass out after reading that section in one breath, try
the following three extracts which are sections from a more recent
statute, the Births and Deaths Registration Act 51 of 1992:
‘3. Director-General to administer Act
The Director-General shall be charged with the administration

of this Act.
9. Notice of birth
(1) In the case of any child born alive, any one of his
parents or, if neither of his parents is able to do so, the person

having charge of the child or a person requested to do so by
the parents or the said person, shall within seven days of the
birth give notice thereof in the prescribed manner to any
person contemplated in section 4.
34. Short title
This Act shall be called the Births and Deaths Registration Act,
1992, and shall come into operation on a date fixed by the
State President by proclamation in the Gazette.’
In the judgment of S v Sixaxeni 1994 (3) SA 733 (C), Marais J

remarks as follows:
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‘We leave unanswered such questions as whether or not the

provision applies only to a Division of the Supreme Court
sitting as a Court of first instance, whether or not it applies

both to cases in which, in disposing of the matter, the Division
has itself decided a constitutional issue within its jurisdiction,

and to cases in which, because the issue is beyond its
jurisdiction, it has not, whether or not it is open to a party

who has refrained from raising a constitutional issue during
the hearing and seeking appropriate relief, to raise it after

judgment has been given, whether or not the provision is
intended solely to enable a Court mero motu to refer an issue

to the Constitutional Court and what impact, if any, the
decision of the Constitutional Court is to have upon the

disposal of the matter by the Court a quo or, if it is to have an
impact upon it, how that is to be achieved.’
16.1.2 Characteristics
Which characteristics of ‘typical’ legal language can you identify from
these extracts? Also consult other examples such as the summons
(see Chapter 9 above) and the preamble to the Constitution (see
Chapters 5 and 6 above). Do you agree with the following?
• Formal language and often archaic or foreign words and
phrases are used, for example: ‘kustingsbrief’,‘novation’, ‘first
mentioned’, ‘shall be called’ and ‘provided that’. Other examples
are terms such as autrefois acquit (previously acquitted),
mandamus (compulsory order) and mandament van spolie
(remedy to restore possession).
• The formal style is strikingly apparent. In spoken language one
seldom uses phrases such as ‘the said person’ and ‘any person
contemplated’.
• Sentences are written in the passive form.
• The sentences are long and complicated. Section 88 of the
Insolvency Act consists of 114 words in one sentence!
• Long and complex sentences require extensive punctuation.

Note, for instance, the four commas used in section 9 of the
Births and Deaths Registration Act.
• Legal language tries to cover all possibilities by being overly
specific.
• Verbs are often formed into nouns, for example ‘the lodging’ of
the bond instead of ‘lodging the bond’.
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• The word ‘shall’ is used repeatedly. Where ‘shall’ makes

unnecessary reference to the future, it should simply be
replaced by the present tense. (Section 3 of Act 51 of 1992
above should read: ‘The Director-General is charged with the
administration of this Act.’)
• Sentences are written as conditions: ‘In the case of . . .’
(section 9 of the Births and Deaths Registration Act).
16.1.3 Reasons for formal legal language

Why is legal language so formal and complex? A few possibilities are:
• Legal language is an instrument for legal certainty. Through
language lawyers try to avoid ambiguity in contracts, wills and
statutes.
• Law is built on authority and tradition. Truths are cast in
timeless forms. Precedent builds on previous decisions and
previous (but sometimes outdated) formulations. Increasingly,
word processing and new technology cause pro forma
precedents to be recycled without thought.
• Language helps in building an illusion of consistency. Language
must remain fixed and stable. This uniformity inspires
confidence.
• Complex and difficult language keeps the law inaccessible,
ensures lawyers’ indispensability and enhances their status.
WITNESSES ARE OFTEN confused by the way our language

is used in the courtroom:
Counsel: Now, witness, is your appearance here this

morning pursuant to the subpoena forwarded through your
solicitors?
Witness: No. This is how I always dress when I go to

work.
Tait: Court in the Act

(Humorous Moments from Australian Courts) (1992)
16.2 Plain legal language

A world-wide movement in English-speaking countries, criticising
complex language, has recently started. This movement is known as
the ‘Plain English’ movement. Legal language, in particular, is
targeted
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for simplification. In South Africa the government increasingly uses

English as the official medium of communication. As English is the
mother tongue of comparatively few South Africans, it is important
that official communication (including legal rules) should be as
understandable and accessible as possible.
A few hints for simpler language are:

• Writing should be short and concise. Build each sentence
around one thought. A sentence of more than twenty words is
already suspect. Consider a shorter sentence.
• Avoid the passive form. Formulate sentences in the active
voice, using the following structure: subject — verb — object.
For example, write ‘Parliament amended the statute’ rather
than ‘the statute was amended by Parliament’.
• Write in paragraphs. Organise sentences in paragraphs, each
with one main theme or thought.
• Avoid negative formulations. The following conclusion of the
Constitutional Court in Ex parte Speaker of the KwaZulu-Natal
Provincial Legislature 1996 (4) SA 1098 (CC) provides an
example of potential confusion arising from the use of multiple
negatives (at para 48): ‘We are unable to and therefore decline
to certify that the text of the Constitution of the Province of
KwaZulu-Natal, 1996, adopted on 15 March 1996 by the
KwaZulu-Natal Legislature is not inconsistent with the
provisions of the Constitution of the Republic of South Africa
Act 200 of 1993 and the Constitutional Principles which
constitute Schedule 4 to the said Constitution.’
• Use punctuation functionally, but not excessively. Use
headings and sub-headings.
• Write in ordinary English as far as possible. Avoid too much
formality. Try not to use words such as ‘therefore’, ‘said’ and
‘thus’. Do not try to show off to others how scholarly you are.
• Good writing makes communication easy. Reread what you

have written. Is the meaning at once clear and simple? If not,
reformulate.
See www.jutapassmasters.co.za for an essay by Van der

Westhuizen J and questions arising therefrom.
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Using the principles of the Plain English Movement, the English Civil
Procedure Rules were revised. Examples of legalistic words that are
replaced with ordinary, modern English words are:
subpoena (now: witness summons)

plaintiff (now: claimant)
pleadings (now: statement of case)
affidavit (now: statement of truth)
In the following example, can section 2 of Act 51 of 1992 be

simplified without losing any of its meaning?
‘2. Application of Act
The provisions of this Act shall apply to all South African

citizens, whether in the Republic or outside the Republic,
including persons who are not South African citizens but who
sojourn permanently or temporarily in the Republic, for
whatever purpose.’
• Why ‘the provisions’? What else is there in ‘this Act’?

• Why ‘whether’?
• Why ‘including’ and the phrase that follows?
• Why ‘permanently’ or ‘temporarily?’ This seems to include all
non-citizens.
• Why the relatively unfamiliar word ‘sojourn’?
• What is meant by ‘for whatever purpose’?
In the following simplified version, 40 words are replaced by 15:
This Act applies to:

(1) South African citizens; and
(2) non-South African citizens in the Republic.
See www.jutapassmasters.co.za for an excerpt from one of

O’Regan J’s judgments.
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16.3 Translation
The Constitution recognises eleven official languages. In the chapter
on fundamental rights, language rights are emphasised. Each
accused has the right to a trial in the language she understands. If
that is not possible, she has the right to an interpreter. Each detainee
has the right to be informed of the reason for her detention in a
language she understands. After arrest a person must be informed in
a language she understands that she has the right to remain silent
and what the consequences of making any statement are.
In S v Matomela [1998] 2 All SA 1 (Ck) Xhosa was used during the

trial. No translation was done, as all participants were Xhosa-
speaking. On review the High Court (Tshabalala J) found that the
Constitution allows people of the same language group to conduct a
trial in that language. But he urged the national legislature to pay
attention to this matter, adding that one official language for courts
would be the best solution:
‘All official languages must enjoy parity of esteem and be treated equitably
but for practical reasons and for better administration of justice one official
language of record will resolve the problem. Such a language should be
one which can be understood by all court officials irrespective of mother
tongue.’
However, with one official court language (English), problems of

translation will always occur. By their very nature translations are
imperfect. S v Mafu 1978 (1) SA 454 (C) illustrates some of these
difficulties. Mafu, a Xhosa-speaker, was accused of dealing in dagga.
In his evidence Mafu said he was in possession of a ‘parcel’ (in
Xhosa). The interpreter translated the word ‘parcel’ as ‘dagga’. Mafu
objected to this translation.
Similar problems have inspired Madlanga to write the following in

a letter to Consultus (1993, p 103):
‘This is particularly disturbing when one considers that most of the
witnesses that appear before our courts, especially in criminal matters, are
African and give their evidence in African languages. It is pitiful to observe
a witness being required to explain something that he/she is supposed to
have said when he/she never said it. On saying that he/she never said
such a thing, the witness will be confronted with the record which, of
course, will reflect the incorrect English version of the interpreter.’
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He recommends a different solution to having one court language:

‘For justice not to be ‘justice in the air’, it is time that all practitioners who
do not speak the African languages of the areas where they practise took
lessons in such languages so that they themselves may be in a position to
hear and understand the evidence of witnesses.’
On a lighter note: CJ Langenhoven illustrated the dangers of

translation in his sketch ‘Die tweetalige vonnis’ (‘The bilingual
sentence’). The old English judge does not understand a word of
Afrikaans. Kiewiet Tarentaal was found guilty of murder. In flowery
language the judge thanks the advocates for their role in the
proceedings:
JUDGE: Your counsel, Mr Grey, who was good enough upon

the request of the Court to undertake your defence Pro
Deo, has conducted it with a skill and ability which would
undoubtedly have secured your acquittal had there been
any flaw in the overwhelming proofs of your guilt which
Counsel for the prosecution, Mr White, has with equal skill
and ability arrayed before the gentlemen of the jury.
INTERPRETER: Jou advokaatjie, wat deur sy Lordskap

onnodig aangestel is om tyd te vermors, het jou net soveel
gehelp as die vyfde wiel aan die wa, met ál sy onnosele
vrae aan die getuie en die kinderagtige bogstories wat hy
aan die jurie vertel het. En die ander meneertjie, die
advokaat vir die Kroon, sou jou seker laat vry spring het as
ek nie hier was nie.
Roughly, the translation can be translated back to

English as: Your little advocate, who was appointed by his
Lordship unnecessarily to waste time, only helped you as
much as a fifth wheel to the wagon, with all his stupid
questions to the witnesses and the childish nonsense-

stories that he told to the jury. And the other little fellow,
the advocate for the Crown, would probably have let you
off the hook if I was not here.
16.4 Language and conceptual decolonisation

We have just illustrated how translations can be wholly inaccurate. A
further dimension to this relates to the fact that sometimes a similar
concept can have radically different meanings in different languages.
This is partly due to the different social, cultural and philosophical
roots that underpin certain concepts. Let us take the notion of
personhood for example.
If we think about the notion of a ‘person’ in English we think about

a living, breathing human being. To the law student who has studied
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the law of persons, the concept of personhood would include a

juristic person. This understanding of personhood is informed by the
secular Western worldview.
If we consider the idea of personhood in some African languages,

a different perspective arises, informed by a completely different
understanding of the world and life. Personhood in African philosophy
includes the unborn, the living, and the living-dead (ancestors).
Corporations with their separate legal personality (see Chapter 8
above) do not form part of the African approach to personhood.
As such, the philosopher Kwasi Wiredu (‘Conceptual Decolonisation

as an Imperative in Contemporary African Philosophy: Some Personal
Reflections’ (2002) Rue Descartes 53) argues that we can
conceptually decolonise philosophy (and we would argue by
extension, the law as well) when we start appreciating the fact that
different languages could involve different understandings of similar
concepts. Wiredu therefore encourages the African (legal)
philosopher to think about the meaning of concepts in vernacular. For
purposes of law, we could highlight concepts like ‘property’,
‘obligation’ or ‘duty’, ‘justice’ and so forth and conduct exercises of
decolonisation around those.
16.5 Legal themes in literature

It is not only lawyers and legal philosophers who concern themselves
with questions of law. From our everyday experience we know that
legal themes are covered in television series (for example, The Good
Wife, Suits, How to Get Away with Murder) and films (for instance,
The Verdict, The Accused, The Firm and Legally Blonde). Many
authors have commented on or portrayed images of the law in their
writings. Examples range from Agatha Christie to Kafka, Dickens and
Shakespeare. A local author is Etienne van Heerden, a qualified
attorney and author of the novel Ancestral Voices (Toorberg).
A question we asked earlier is whether law and justice overlap.

This tension was highlighted in a novel known to many students: To
Kill a Mockingbird by Harper Lee.
In this novel Tom Robinson, a black man, is charged with rape in a

small town in southern USA. The evidence clearly indicates that the
father of the complainant (Mayella Ewell) and not Tom Robinson
assaulted her. The father’s and daughter’s versions are placed
against that of the black man. At that stage only white men could be
members
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of the jury: ‘they seemed to be all farmers’ (at 175). The jury found
Tom Robinson guilty of rape.
This novel introduces the theme of jury trials. Jury trials are part of
the English law influence in South Africa. They were incorporated
into the South African system but were finally abolished in 1969.
One can speculate on the re-instatement of jury trials. To Kill a
Mockingbird provides a starting point for arguments on this topic.
Arguments for the re-instatement of the jury system:

• A jury system should be part of any participatory democracy.
True participation in government does not only mean voting
once every five years.
• A jury eliminates the individual decision of the single judge or
magistrate. Individual discretion is replaced by trial by one’s
peers.
• In South Africa especially a jury system could play an
educational role. People would be exposed to the legal process
and this would help to restore confidence in the legal system as
a whole.
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The following arguments may, however, be raised against its re-

introduction:
• Tom Robinson’s trial is an example of jury members who are
not able to set aside their prejudices.
• Jury members are not appointed on grounds of knowledge or
experience. They usually do not have any legal qualifications.
This makes them more susceptible to emotional manipulation.
• The selection of jury members is time-consuming.
• It is expensive.
• The jury considers its verdict behind closed doors. This is in
conflict with the principle of openness, generally applicable in
our society today. The jury also does not provide any reasons
for its decision. This is in conflict with a culture of justification.
In a previous chapter appropriate dispute resolution was

discussed. The Nigerian writer Chinua Achebe portrays the conflict
between traditionalism and colonialism in his well-known work
Things Fall Apart. Uzowulu married and took his wife to his village.
One day her family came and took her back to live with them,
alleging that he had been assaulting her over a long period. Uzowulu
denied this. The dispute had to be resolved by a group of elders. The
pre-colonial way of dealing with disputes was a collective process in
which the whole community was involved. The purpose of such a
process was not to punish, but to restore harmony. The judgment of
the elders is described in the following language:
‘We have heard both sides of the case,’ said Evil Forest. ‘Our duty is not to
blame this man or to praise that, but to settle the dispute . . . Go to your
in-laws with a pot of wine and beg your wife to return to you. It is not
bravery when a man fights with a woman.’
Colonial control exposed the inhabitants for the first time to a police
force, arrest, detention and a formal legal process. The British
district commissioner described this system as follows:
‘We have brought a peaceful administration to you and your people so that
you may be happy. If any man ill-treats you we shall come to your rescue.
But we will not allow you to ill-treat others. We have a court of law where
we judge cases and administer justice just as it is done in my own country
under a great queen. I have brought you here because you joined together
to molest others, to burn people’s houses and their
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place of worship. That must not happen in the dominion of our queen, the
most powerful ruler in the world. I have decided that you will pay a fine of
two hundred bags of cowries. You will be released as soon as you agree to
this and undertake to collect that fine from your people.’
The tension between mercy and law is portrayed in the trial of the
merchant Antonio in Shakespeare’s The Merchant of Venice. Antonio
owed Shylock an amount of money, but could not pay. According to
the contract (‘bond’) between them, this entitled Shylock to a ‘pound
of flesh’ from Antonio’s body. Portia (the judge) first asks Shylock to
show mercy. She requests him to accept an amount of money
instead of ‘a pound flesh’ off Antonio’s body (as the contract
stipulates). When he refuses, she reminds him what mercy really is:
‘The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives, and him that takes.
‘Tis mightiest in the mightiest, it becomes
The throned monarch better than his crown.’
Shylock, however, insists that the law be applied.

‘I charge you by the law,
Whereof you are a well-deserving pillar,
Proceed to judgment.’
It is ironic that Shylock eventually becomes the victim of his own

insistence on a literal interpretation. ‘A pound flesh’, the judge found,
does not allow him to cut off an ounce more or less or to shed a drop
of Antonio’s blood.
The legitimacy crisis that occurs when a legal system is imposed

by a minority (in this case by means of pass laws during the
apartheid era) is the subject of a poem by Jabulani Sibiya. The poem
is titled ‘What Do You Want Me to Do?’ The first part of the poem is
reprinted here:
‘You arrest me when I complain
You kick me like a dog when I don’t complain
You lure me with pleasure and riches
To be an informer for your pleasure
You pass laws that favour you
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You don’t ask me which laws I like
You don’t let me pass laws for you
What do you want me to do?’
We might even be tempted to say that law not only features in

literature, but in some ways it is a lot like literature. In this regard
the legal philosopher, James Boyd White (who is associated with the
‘law and literature’ movement) writes the following in a piece called
‘Justice in Tension: An Expression of Law and the Legal Mind’ (2012)
No Foundations 1 at 5:
‘When I went into law practice the view I describe was confirmed: the
heart of my work was reading and writing, not in a trivial or mechanical
sense, not as the exercise of skill alone, but as the fullest and most
important expression of a mind engaged in the world. It was hard to do it
well, impossible to do it perfectly. My view of law was internal, from the
inside, from the point of view of someone actually doing it. The law can of
course be looked at from the outside too, by sociologists and political
scientists and anthropologists and others, and they are entitled to look at it
differently: as a social or political process, or as a structure of rules
reflecting certain policies. But the way they look will define what they see,
and it will not be the law as I know it. They will not be doing law, but
something else entirely. I saw law, as I continue to see it, as an activity of
mind and language: a kind of translation, a way of claiming meaning for
experience and making that meaning real. It is not a system of rules, as I
said earlier, but a structure of thought and expression built upon a set of
inherently unstable, dynamic, and dialogic tensions. In this it is like a
poem. So for me law was a language that one could learn, well or badly, a
structured activity of mind one could perform well or badly. One could use
this language to carry on conversations in the world, conversations that

produced results in the form of judicial decisions, settlement agreements,
contracts, and the like; results that mattered, sometimes acutely to actual
people, especially the clients; and results that mattered in another way to
the whole polity, for one question always present in the conversation was
what justice should require, what the law should be. The object of our
work was to reconstitute the material of the past to claim new meaning in
the present and future.’
See www.jutapassmasters.co.za for an excerpt from In a

Different Time and related questions.
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16.6 Trial as theatre

Novels should be read. A play should be performed. Shakespeare is a
well-known playwright. He wrote plays such as Hamlet, Othello, The
Merchant of Venice and Macbeth. These plays come to life only when
they are performed in a theatre. We find the legal process referred to
as theatre in To Kill a Mockingbird. The first part of the trial caused
the narrator to remark: ‘So far, things were utterly dull: nobody had
thundered, there were no arguments between opposing counsel,
there was no drama . . .’ (at 180).
The courtroom in which a trial takes place reminds us of the space

in which a play is performed. In both cases there is a stage (or
bench). Like actors the participants in court wear costumes (or
robes). Exhibits (like knives, firearms) play the part of stage props.
In both cases ceremony plays an important role: the play begins
when the curtain lifts; the trial begins when the orderly shouts:
‘Silence in court!’
Suspense is the essence of drama. Usually a main character

(hero) is placed against an antagonist. The tension in The Merchant
of Venice is built round Antonio’s (the merchant’s) duty towards
Shylock. This tension leads to a crisis, a climax and a resolution of
the climax. In the scene where Portia decides against Shylock the
tension is resolved. In court cases the state opposes an accused, or
a plaintiff and defendant are up against each other. The very fact
that parties differ on certain issues leads to their appearance in
court. A trial is an effort to resolve this conflict. The resolution of the
conflict lies in the judgment.
In the theatre the hand of the director is behind the spectacle, in

the movements and performance of the actors. An advocate must
also take these aspects into consideration: The sequence in which
witnesses are called, the clothing they wear — everything may play a
role.
In S v Kalogoropoulos 1993 (1) SACR 12 (A) Botha JA emphasised

the dramatic nature of the facts in the case before him. The following
are extracts from his exposition of the facts:
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‘This is a Greek tragedy, in which the dramatis personae are:

• Athanasius Kalogoropoulos, a 52-year old baker, the
appellant;
• Dafni, his wife, some 21 years younger;
• Dora, housemaid in the appellant’s home;
• Julia, her cousin;
• [and other persons] . . .
The scene alternates between the appellant’s home in
Craighall Park, Johannesburg, and a nearby supermarket run

by the appellant and Macheras, assisted by Dafni and
Charitomeni. The time is the afternoon of 16 February 1988.
The appellant, on an errand to buy something for the shop,
drives past his home and sees Macheras’s car parked in the
yard . . .
On to the next act of the drama. The appellant drives home

and parks his car outside the house. He goes inside, opens the
safe where the firearms are kept, and arms himself with a
pistol . . . In Dora’s room he finds Dora and Julia. He tells
Dora: ‘I shoot you because I will not trust you again’ He fires
two shots into her chest, killing her . . . The police arrive and
surround the house. After a while the appellant comes out, his
hands in the air. He is arrested and taken away. The curtain
falls.’
More recently in DPP Gauteng v Pistorius 2016 (2) SA 317 (SCA),

Leach JA wrote the following introductory paragraph to the judgment
against Oscar Pistorius:
‘This case involves a human tragedy of Shakespearean

proportions: a young man overcomes huge physical disabilities
to reach Olympian heights as an athlete; in doing so he
becomes an international celebrity; he meets a young woman
of great natural beauty and a successful model; romance
blossoms; and then, ironically on Valentine’s Day, all is
destroyed when he takes her life. The issue before this court is
whether in doing so he committed the crime of murder, the
intentional killing of a human being, or the lesser offence of

culpable homicide, the negligent killing of another.’
Appearing in court thus requires a certain personality. The lawyer

must have a strong presence in court. She must be able to think on
her feet and to persuade others. Any form of persuasion depends on
a person’s dramatic impact, which is interlinked with personality or
character. It is sometimes said that a person argues not by facts or
information, but ‘by character’:
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‘In making arguments the speaker or writer “show[s] himself

to be of a certain character” and seeks to have his listeners
(or readers) identify with that kind of character. When we
advance arguments, we say “be like me” (or, at least, be like

the character I am presenting myself to be in this argument).’
(Frug ‘Argument as Character’ 1988 Stanford Law Review

872–3)
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Chapter 17
Legal Argument and Logic
Introduction
It is one thing to find and know the law. It is quite another to advise a client, to persuade a court,
or to deliver a judgment. In each of these cases a lawyer must find and formulate an answer to a
legal problem. This process can be called legal argumentation.
Arguments, in other words, are used to get answers to various questions or issues. Answers to
the question whether possession of pornography must be a criminal offence may differ. One
possible argument may be the following: ‘Possession of pornography must be a criminal offence
because some men who watch pornography will act violently towards women.’ Analysis of this
argument shows that it consists of a premise and a conclusion.
Premise: Some men who watch pornography will act violently towards women.
Conclusion: Possession of pornography must be a criminal offence.
Argumentation is not the sole domain of lawyers. In most disciplines the same principles apply.
One of the core principles in any argument is logic. Logic is an attempt to ensure objective
analysis. Lord Devlin in the English case Hedley Byrne v Heller [1964] AC 465 at 516 said:
‘The common law is tolerant of much illogicality, especially on the surface; but no system of law can be
workable if it has not got logic at the root of it.’
The aim of this chapter is not to delve deeply into philosophical questions. It should rather help
you to know how lawyers argue. Hopefully you will then be able to recognise the most obvious
fallacies and deceptive ways of formulating arguments.
17.1 Induction
Induction is the thought process (or technique of argumentation) by which a general conclusion is
drawn from specific facts. This represents a search for generally applicable truths from specific
observations. Most human knowledge is based on such a process. We draw inferences from what
we see, hear and experience to formulate generally acceptable truths.
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Example
I see polar bears that are white (in the zoo). I see pictures of white polar bears (in the
National Geographic magazine) and I watch a TV programme about white polar bears.
My conclusion from these observations is that all polar bears are white.
To be reliable, a conclusion must be based on facts that are known and not on mere speculation.
Further, it must be based on a representative or adequate sample. An inadequate factual basis can
easily lead to an invalid conclusion. For instance, someone can say: ‘There is nothing you can tell
me about boxers — I know Johnny’. The speaker claims insight into the nature of all boxers. As
this statement is substantiated by reference to a very limited (and unrepresentative) set of facts, it
is invalid and amounts to stereotyping.
In law, inductive arguments are common. This is especially true when factual findings are
made:
• A court makes a (general) finding about the credibility of witnesses based on a series of
(specific) observations. The presiding officer, for instance, deduces from a witness’s
demeanour and coherent answers in response to a number of questions that the witness is
reliable.
• Presumptions help prove facts. For example, it is presumed that the owner of a motor
vehicle is also the driver of that vehicle. This presumption can be rebutted by evidence to the
contrary. An irrebuttable presumption, for example, determines that a child under the age of
10 cannot commit an offence. Both these presumptions are based on common human
experience — usually the owner of a vehicle is also the driver thereof, but this is not
necessarily the case. Experience and tradition also lead us to accept that children under the
age of 10 are not able to have the moral blameworthiness of a criminal offender.
• Some facts are so well known and accepted that evidence is not necessary to prove them.
The presiding officer may then take judicial notice of such facts. These facts are regarded
as generally acceptable because of repeated individual observation and experience. Judicial
notice may not be based on individual and
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personal experience. In the case of R v Tusini 1953 (4) SA 406 (A) the judge in the court a
quo made the following finding (at 411):
‘It is well known from the experience of this Court that Natives can, and do, recognise people they know
in comparative darkness which, for a European, would make recognition quite impossible.’
On appeal he was criticised:
‘This is clearly a grave misdirection on a material point as there is no evidence whatsoever on record
justifying this finding. It is not stated what the experience of the Court is in such a matter. The question of
the superior vision of the Native in the dark may well have arisen in that Court, but whether it was
scientifically examined I do not know. It would, however, be a surprising fact if every Native has this superior
night vision; in any event neither of these witnesses were tested for this and it certainly is not such a
notorious fact as to justify the Court taking judicial cognisance thereof.’
The conclusion of the court a quo was invalid because it was based on unknown evidence (and
quite clearly based on racist assumptions). The judge of appeal suggested that the individual
observations by the judge a quo could not constitute a representative sample: ‘It would . . . be a
surprising fact if every Native has this superior night vision’ (our emphasis).
• Conclusions drawn from circumstantial evidence are also reached through a process of
induction. A court arrives at a conclusion on certain proven facts.
Example:
Facts:
• A knew the deceased (B).
• A visited B on 8 May 2001.
• A bloody knife was found in A’s house on 9 May 2001.
• The blood-type on the knife matches the blood-type of B.
• B was killed with a knife.
Conclusion:
• A is guilty of murdering B.
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Strict rules apply before such an inference can be drawn. These rules were set out in R v Blom
1939 AD 188 (at 202–203):
‘In reasoning by inference there are “two cardinal rules of logic” which cannot be ignored. (1) The inference
sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be
drawn. (2) The proved facts should be such that they exclude every reasonable inference from them save the
one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.’
Sometimes it is quite difficult to apply these criteria. In R v Mlambo 1957 (4) SA 727 (A) it was
common cause that Mlambo caused the death of the deceased. The question was whether he acted
with intention. If that was so, he would be guilty of murder. Had he been negligent, he would be
guilty of culpable homicide only. There was no direct evidence about how the incident occurred.
The deceased’s body was found in a state of decomposition. The head had been severed from the
body. Mlambo did not testify during the trial.
The majority (three judges) found that the only reasonable deduction was that Mlambo had not
caused the death intentionally. The minority (two judges) found that he had indeed acted with
intention. Malan JA (one of the minority) made the following observation (at 736F):
‘The only direct pointer to the use of violence is the fact that the head was found a foot away from the body
— an appreciable distance unless the head had been severed prior to interment. The point does not appear
either to have been pursued in evidence or debated at the trial, probably because the possibility existed that,
notwithstanding the great care exercised by the police not to disturb the body at the time of disinterment, the
head may have been moved out of position. This piece of evidence nevertheless gives food for thought.’
Why does the judge make this reference? Can any conclusion be based on this information? He
continues (at 737D–E):
‘If an assault . . . is committed upon a person which causes death either instantaneously or within a very
short time thereafter and no explanation is given of the nature of the assault by the person within whose
knowledge it solely lies, a court will be fully justified in drawing the inference that it was of such an
aggravated nature that the assailant knew or ought to have known that death might result. The remedy lies
in the hands of the accused person and if he chooses not to avail himself thereof he has only himself to blame
if an adverse verdict is given.’
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The minority judgment therefore infers from the accused’s refusal to testify that he intentionally
killed the deceased. Do you agree with the minority or the majority?
• Res ipsa loquitur (the matter speaks for itself) is an inference from facts based on common
sense. If an accident occurred in such a way that it could only have been caused by
someone’s negligence, a court may infer that the accident indeed occurred due to the
negligence of the party involved. If after surgery an instrument is left in the patient’s body,
that is evidence of negligence. If the inference from the proven facts is that the doctor
carrying out the operation was negligent, she may rebut this by showing that no negligence
can be attributed to her. In the absence of any rebuttal, then: res ipsa loquitur. The courts
draw this type of conclusion based on common human experience.
• Not only findings of fact, but also legal rules may be inferred through an inductive process.
Rules of our common law originated through such a process. General rules were developed
from individual cases.
For example:
• A caused damage to B’s motor vehicle through her negligence. The court orders A to pay B
R2 000 in damages.
• C caused damage to D’s vineyards due to her negligence. The court orders C to pay R3 000
to D for damages.
From these individual cases a general rule may be formulated: If a person, through her own
negligence, causes damage to another’s property, she must make that damage good. We have
already referred to the fact that English common law developed on a case-by-case basis. This is
also a process of induction, as general principles were inferred from specific individual decisions in
a number of cases.
17.2 Deduction
Deduction differs from induction in that it works the other way around. A general statement is
applied to specific circumstances to arrive at a conclusion. Take the following example:
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• All humans are mortal.

• Sarena is a human.
• Therefore: Sarena is mortal.
In mathematical fashion this can be represented as follows:
• Human (a) = mortal (b)
• Sarena (c) = human (a)
• Therefore: Sarena (c) = mortal (b)
or
• a=b
• c=a
• Therefore: c = b
Legal argument is also formed in this way:
• Someone who kills another with intention (a) is guilty of murder (b).
• The accused (c) killed the deceased with intention (a).
• Therefore: The accused (c) is guilty of murder (b).
A valid deduction must be based on a primary hypothesis that is true. If you use the deductive
process, you may reach a logical conclusion. But if your starting premise is invalid, your eventual
conclusion will also be invalid. To concentrate on the formula leads to formalism and not the truth.
Example
• Adultery is an offence.
• A commits adultery.
• Therefore: A is guilty of an offence.
Since Green v Fitzgerald 1914 AD 88 adultery is no longer an offence in our law. A judicial officer
may claim that the law has been applied ‘correctly’ or logically. It may well be that she reasoned
logically. But if the premise is wrong (as in the example), the law is applied incorrectly. A silent
premise in the form of a prejudice should not serve as a starting
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point. ‘Logical’ argument may be based on such a premise, but this still does not imply that a valid
conclusion will be reached.
17.3 Use and misuse of authority

A legal opinion on any issue is based on authority (or ‘sources’), be it legislation, or a previously
decided case, or the opinion of an expert. Authority is used to bolster an argument or to support a
point of view. A distinction may be drawn between primary and secondary sources. Primary
sources are sources where the law originates, such as legislation and case law, while secondary
sources are those in which primary data is interpreted and analysed, such as textbooks,
encyclopaedias and journal articles. As far as possible, you should rely on or at least make
reference to primary sources, as they constitute more persuasive authority than secondary
sources.
In some cases the authority claimed is not quite authoritative. In Clarke v Hurst 1992 (4)
SA 630 (D) Thirion J found that the wife of a man in a vegetative state may be appointed as his
curator, with the competence to decide if and when medical treatment should be discontinued. No
decided case or legislation authorised this decision. The judge based his decision on the legal
conviction of society. He claims that the community supports his decision. This may indeed be a
powerful source of authority. But how do we gain insight into these community convictions? An
opinion poll may give us some indication. But the judge in the Clarke case does not base his claim
on any measure of community conviction. If this claim is analysed, it seems like a smokescreen for
the judge’s preferences or for policy considerations.
17.4 Fallacies of argument

17.4.1 Manipulation of words
Arguments are necessarily made up of words. Words may be used in their ordinary meaning.
Words also have an emotive meaning or connotation which can be used for purposes of
manipulation. Sometimes this emotional connotation of a word is used in order to argue or
convince. In a criminal case where the death penalty was confirmed, the judge of appeal calls the
deed a ‘cowardly, atrocious and evil action’ (S v Khanyile 1991 (2) SACR 595 (A)). The use of
these words justifies his conclusion that the imposition of the death penalty is appropriate.
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The following extract is an exposition of the facts in an English case, Miller v Jackson [1977] 3
All ER 338 (at 340–341). In this case Lord Denning set aside an interdict which restrained
cricketers from causing a ‘nuisance’ to the owner of a house next to a cricket field. The extract
gives a clear indication of his eventual finding. Why?
‘In summer time village cricket is the delight of everyone. Nearly every village has its own
cricket field where the young men play and the old men watch. In the village of Lintz in County
Durham they have their own ground, where they have played these last 70 years . . .
The village team play there on Saturdays and Sundays. They belong to a league, competing
with the neighbouring villages. On other evenings after work they practise while the light lasts.
Yet now after these 70 years a judge of the High Court has ordered that they must not play
there anymore. He has issued an injunction to stop them. He has done it at the instance of a
newcomer who is no lover of cricket. This newcomer built, or has had built for him, a house
on the edge of the cricket ground which four years ago was a field where cattle grazed. The
animals did not mind the cricket. But now this adjoining field has been turned into a housing
estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt
the open space was a selling point. Now he complains that, when a batsman hits a six, the ball
has been known to land in his garden or on or near his house. His wife has got so upset about it
that they always go out at weekends. They do not go into the garden when cricket is being
played. They say that this is intolerable . . .
And the judge, much against his will, has felt that he must order the cricket to be stopped;
with the consequences, I suppose, that the Lintz Cricket Club will disappear. The cricket ground
will be turned to some other use. I expect for more houses or a factory. The young men will
turn to other things instead of cricket. The whole village will be much the poorer. And all this
because of a newcomer who has just bought a house there next to the cricket ground.’
Not only the words, but the way in which they are woven together in sentences can be a powerful
tool to persuade others. These techniques of verbal persuasion are rhetorical language. Rhetoric
is the use of language to move or persuade readers or listeners to a specific decision, judgment or
action.
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17.4.2 Playing the player

Sometimes rugby players or football players play the other player and not the ball — often due to
frustration or anger. Similarly, a participant in a debate may shift the attention away from the
issue to be argued to the person arguing. This is often an attempt to side-step thorny issues. In
Latin (or ‘legal language’) this is referred to as an ad hominem argument. An example would be if
one counters an argument with a statement like: ‘You only say so because you are a liberal.’
Lawyers must always be wary of getting involved in personal vendettas with court opponents.
The following letter concerns a debate on censorship:
Free to choose what I like

The Rev Peter Hammond’s tirade against the so-called exploitative pornography industry
in South Africa is a typical example of fanatical frustrated self-righteous indignation gone
horribly berserk (Letters, August 16).
‘I, a grotesquely stunted product of the old South Africa, have been basking in the recent flood of
intellectual literature that has up to so recently been judged, by others, undesirable. If a bit of
smut filters in along with all this good and wholesome material, so bloody what? Peter Hammond
is free to walk past whatever it is that so offends him, his wife is free to walk past whatever
offends her (or does the reverend decide for her?) and his children are free to walk past
whatever offends them. I am free to decide for myself what I wish to read and what I choose to
reject.’
P H Keck, Selection Park, Springs
The Star 22 August 1994
The writer of this letter makes personal insinuations about ‘the reverend’ and his family, in other
words he attacks the person and not the viewpoint of the person. Also note the manipulative use
of words, for example, ‘tirade’ and ‘self-righteous indignation gone horribly berserk’.
17.4.3 Shifting the goalposts

Another technique is to extend the issue so that it falls outside the initial boundaries (or playing
field). This is an attempt to avoid addressing the issue. If, in an argument in favour of the
enforcement of the death penalty, a person argues that the criminal justice system in general does
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not show sympathy for victims and their families’ distress, the argument on the death penalty is
shifted to the question ‘What about the victims?’
17.4.4 Extreme alternatives

A very sly technique is to reformulate an issue as a stark choice between two extreme
alternatives. Take the following example from the death penalty debate: ‘Now are you supporting
the death penalty or are you supporting the idea that all criminals should walk around freely?’
17.4.5 Circular argument

A circular argument is most easily recognised as an argument where the conclusion is already
contained in the starting point (premise). Something claiming to be proof is exactly the issue
that has to be proved. It may also be referred to as an argument which ‘begs the question’. An
example would be if you were to prove the truth of the Bible by quoting the Bible itself to answer
questions about its truthfulness.
In an American case (Jacobellis v Ohio 378 US 184 at 197) on ‘hard pornography’ a judge
observed that it is almost impossible to define what pornography is. But he added: ‘I know it when
I see it’. He says that he knows it when he sees it, because he knows what it is when he sees it.
This still does not tell us what pornography is!
17.4.6 Non sequitur (it does not follow) arguments

Sometimes a conclusion is portrayed as the necessary consequence of one event or statement
when it is, in fact, not the case. A typical instance would be when two events are illogically linked
as cause and effect. Is the following a valid deduction?
Mrs X made a speech at a conference that female priests should be allowed.

Subsequently, women were allowed to become priests.
Therefore: Women became priests because Mrs X made a speech at a conference that
women priests should be allowed.
Take the case of Sibanyoni v University of Fort Hare 1985 (1) SA 19 (CkS): Students at the
University of Fort Hare boycotted classes. The rector issued a notice urging students to restart
classes on a specific date.
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Students not attending class on that day would be considered as ‘having chosen to discontinue
their studies’. A group of students, including Sibanyoni, did not attend class on that date. They
were refused further access to classes. The students claimed that these measures amounted to
disciplinary steps against them. For this reason they were entitled to the application of the audi
alteram partem rule. This was not applied, as they were not afforded an opportunity to present
their version of the events when the decision was taken to deny them access. They argued that
the disciplinary action against them was, therefore, invalid.
The court, however, accepted that the steps against them were not of a disciplinary nature, but
were based on breach of the contract between the students and the university. One of the
essential requirements of the contract was that students must attend classes. The students did not
comply with this requirement. This amounted to a breach of contract. It therefore follows, the
court found, that the steps were not of a disciplinary nature. The application of audi alteram
partem was not required.
But does it necessarily follow from the fact that the university’s actions were based on breach
of contract, that these actions cannot therefore be of a disciplinary nature as well? The university
decided to cancel its contract with certain students. This does amount to disciplinary action.
Disciplinary action may be based on statutory provisions. But surely it is also based on the
competence to cancel a contract? The court’s finding that cancellation of a contract necessarily
excludes disciplinary action amounts to a non sequitur argument.
See www.jutapassmasters.co.za for examples of argumentative fallacies.
17.5 Policy considerations

Sometimes logic is substituted with a choice between opposing policy considerations or value
judgments.
• This is illustrated in S v A Juvenile 1990 (4) SA 151 (ZS). The issue before the Zimbabwean
Supreme Court was whether corporal punishment of juveniles constitutes inhuman and
degrading punishment. If this were the case, that form of punishment would be in conflict
with the Constitution. Three judges (the majority) found corporal punishment
unconstitutional. An opposing view
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was held by the minority (two judges). Giving judgment on behalf of the minority, judge of
appeal McNally emphasises the fact that the judges have to make a value judgment (at 170):
‘In these matters one is exercising a discretion. One is weighing the advantages against the
disadvantages. It is widely accepted that the very term “inhuman or degrading punishment or other
such treatment”, which is used in section 15(1) of the Declaration of Rights, involves a value judgment.’
The judge refers to factors which have to be considered. Of great importance are the
alternatives to corporal punishment (at 171–172):
‘Young people are of their nature more open to correction, more malleable than adults. In that sense
young people are humble . . . Yet a young person will not be adversely affected by similar punishment
because he is accustomed to subordination and open to correction. This “humility” is part of the very
nature of youth, however rebellious.
I am in danger of straying into fields of sociology and psychology where I have no expertise. In a
sense I am forced into them by being presented with this question. But I can say, as a lawyer of many
years of practice, that young people often appear before the courts on charges of doing wicked things,
cruel things, irresponsible things, stupid things, thoughtless things. Very often a large element in the
offence is their lack of judgement, their lack of experience, their lack of forethought. Sending them to
prison achieves nothing and usually does them a great deal of harm; the same can be said of remand
homes and reformatories; they cannot pay a fine and there is little point in their parents paying it. The
imposition of a moderate correction of cuts enables a magistrate or Judge to avoid all these unpleasant
alternatives. It enables him to impose a short, sharp, salutary and briefly painful punishment which
achieves in very many cases exactly what is required. I must say that in 25 years in the law I have
never heard a complaint about the brutality of cuts.
That is why I have laid such stress on the fact that a value judgment is involved. Once a value
judgment is involved one is entitled to weigh the pros and cons. And into that balance the value of
juvenile cuts as a way of avoiding worse punishment must go. To my mind it is a consideration of
enormous weight.’
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• As highlighted in Chapter 1, policy considerations in law are today informed by constitutional

norms. As the Constitutional Court held in Carmichele v Minister of Safety and Security 2001
(4) SA 938 (CC) (para 56):
‘There are notionally different ways to develop the common law under section 39(2) of the Constitution,
all of which might be consistent with its provisions. Not all would necessarily be equally beneficial for
the common law. Before the advent of the IC, the refashioning of the common law in this area entailed
“policy decisions and value judgments” which had to “reflect the wishes, often unspoken, and the
perceptions, often but dimly discerned, of the people”. A balance had to be struck between the interests
of the parties and the conflicting interests of the community according to what “the [c]ourt conceives to
be society’s notions of what justice demands”. Under section 39(2) of the Constitution concepts such as
“policy decisions and value judgments” reflecting “the wishes . . . and the perceptions . . . of the
people” and “society’s notions of what justice demands” might well have to be replaced, or
supplemented and enriched by the appropriate norms of the objective value system embodied in the
Constitution.’
• In light of the above, the following statement — made in a bygone era of bigotry — will
surely not stand today:
‘I have a great deal of sympathy with people who have suffered under this Act, and who have
committed an offence under this Act. My attitude towards people is not a callous one, but the fact
that people commit suicide means in actual fact that they realize that they have contravened a
code of social behaviour. That means the code of social behaviour is so strong that it can move a
man to commit suicide. That is once again the justification for this Act.’ — Mr J T Kruger (National
Party Prinshof) on the Immorality and Mixed Marriages Acts. House of Assembly February 26
1971. Mr Kruger was still of the same opinion in 1978 when, as Minister of Justice, he declared
that ‘the suicides which take place prove that this Act is a good one.’
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Chapter 18
Perspectives on the Law
Introduction
Previously, we asked the question ‘What is law?’ and discussed two main approaches: natural law
and legal positivism (see Chapter 1 above). In this chapter we elaborate on this simplistic
distinction. Extracts from various journals and cases serve as starting points for discussion and as
illustrations of the variety of approaches to law.
18.1 An illustration of judicial approaches: the Case of the

Speluncean Explorers
Lon Fuller, an American legal philosopher, published an article in the 1949 Harvard Law Review. In
this article he created a hypothetical case, the ‘Case of the Speluncean Explorers’, which took place
in the ‘Commonwealth’ in the year 4299. Five separate judgments were given. Each of these
represents a particular approach to the law. Subsequently, other authors have added further
‘judgments’, based on the initial set of facts. (See NR Cahn, MI Coombs, DL Green, GC Miller, J
Paul and LW Stein ‘The Case of the Speluncean Explorers: Contemporary Proceedings’ (1993) 61
George Washington Law Review 1754; and DL Shapiro ‘The Case of the Speluncean Explorers: A
Fiftieth Anniversary’ (1999) 112 Harvard Law Review 1834.)
The facts of the case are as follows: Five members of the Speluncean Society penetrated a cave.
They became trapped in the cave by a rockfall. After they had been missing for some time, a
rescue operation was launched. During this operation ten members of the rescue team died.
Twenty days after being trapped, the men established radio contact with the outside world. They
wanted to know how long the rescue operation would take. The answer was that it would take at
least another ten days. The men then described their condition and their remaining supplies. In
answer to a further question they were told that there was very little chance of them surviving the
ten days with their available supplies.
After this, one of them (Roger Whetmore) asked on behalf of the group whether their chances of
survival would increase if they killed and consumed one of the group. The answer was ‘yes’. No
one on the
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other side was then prepared to answer whether the trapped men were allowed to determine by
chance which of them should be killed. Radio contact was then lost. The trapped men subsequently
agreed that they should throw the dice to decide which of them was to be killed.
On the 23rd day the five threw the dice. Just before this, Whetmore withdrew from the
agreement. The other four did not accept his withdrawal and continued to throw the dice on his
behalf. He did not object. The throwing of the dice went against him. He was killed.
The other men survived and were eventually rescued. After they had convalesced, they were
prosecuted for the murder of Roger Whetmore (the deceased). Jury trials were in force in the
Commonwealth. A conviction by the jury followed. According to the laws of the Commonwealth,
the judge had no option but to impose the death penalty.
As an aftermath, the jurors and the trial judge requested the head of state (the executive) to
commute the sentences. They requested that the accused should only serve six months’
imprisonment.
The accused then appealed to the highest court of the Commonwealth, the Supreme Court.
The final outcome of the case was as follows: Because four members of the Supreme Court
were evenly divided, and the Chief Justice did not want to take a position, the conviction and
sentence of the court a quo was affirmed.
18.2 Judicial deference

Truepenny is the Chief Justice in Fuller’s original article. His judgment speaks of judicial deference.
Judges (or their judgments) are often broadly categorised into two strands: those who represent
judicial activism; and those representing judicial restraint, and thus deference to the other
branches of government. A judgment embodies judicial activism when a judge exercises his
discretion to resolve a dispute creatively and boldly to arrive at an answer that often leads to
societal change. Judicial restraint is derived from a legal positivist outlook, according to which a
judge limits the exercise of his discretion, and prefers to leave the decision to the executive and
legislative branches of government.
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TRUEPENNY, CJ: ‘It seems to me that in dealing with this extraordinary case the jury and
the trial judge followed a course that was not only fair and wise, but the only course that
was open to them under the law. The language of our statute is well known: ‘Whoever
shall willfully take the life of another shall be punished by death.’ NCSA (NS) 12-A. This
statute permits of no exception applicable to this case, however our sympathies may
incline us to make allowance for the tragic situation in which these men found
themselves.
In a case like this the principle of executive clemency seems admirably suited to
mitigate the rigors of the law, and I propose to my colleagues that we follow the example
of the jury and the trial judge by joining in the communications they have addressed to
the Chief Executive. There is every reason to believe that these requests for clemency
will be heeded, coming as they do from those who have studied the case and had an
opportunity to become thoroughly acquainted with all its circumstances . . . I think we
may therefore assume that some form of clemency will be extended to these defendants.
If this is done then justice will be accomplished without impairing either the letter or
spirit of our statutes and without offering any encouragement for the disregard of law.’
The Chief Justice (representing the judicial authority) wants to escape responsibility by referring
the matter to the executive. He confirms the conviction, but recommends that the men be
pardoned. This amounts to an overlap of the branches of governmental authority. In an
unreported Namibian case referred to in S v Tcoeib 1993 (1) SACR 274 (Nm) Levy J decided that
life-imprisonment is cruel and inhuman and therefore against the Namibian Constitution. It was
argued before him that life-imprisonment is not cruel and inhuman, because the prison authorities
(part of the executive) usually grant parole to prisoners before their life-term has expired. He
rejected this argument, stating the following:
‘For a judicial officer to impose any sentence with parole in mind is an abdication by such officer of his
function and duty to transfer his duty to some administrator probably not as well equipped as he may be to
make judicial decisions. It also puts into the hands of the Executive, where the sentence is life-imprisonment,
the power to detain a person for the remainder of his life irrespective of the fact that the person may well be
reformed and fit to take his place in society.’
In South Africa the executive’s interference with sentences has in the past led to resistance by
many, including judges. For example, amnesty awarded to criminals by the government since the
1994 election has been a common occurrence.
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18.3 Natural law
FOSTER, J: ‘I am shocked that the Chief Justice, in an effort to escape the

embarrassments of this tragic case, should have adopted, and should have proposed to
his colleagues, an expedient at once so sordid and so obvious. I believe something more
is on trial in this case than the fate of these unfortunate explorers; that is the law of our
Commonwealth.
For myself, I do not believe that our law compels the monstrous conclusion that these
men are murderers. I believe, on the contrary, that it declares them to be innocent of
any crime . . . I take the view that the enacted or positive law of this Commonwealth,
including all of its statutes and precedents, is inapplicable to this case, and that the case
is governed instead by what ancient writers in Europe and America called “the law of
nature”. This conclusion rests on the proposition that our positive law is predicated on
the possibility of men’s coexistence in society. When a situation arises in which the
coexistence of men becomes impossible, then a condition that underlies all of our
precedents and statutes has ceased to exist. When that condition disappears, then it is
my opinion that the force of our positive law disappears with it. The proposition that all
positive law is based on the possibility of men’s coexistence has a strange sound, not
because the truth it contains is strange, but simply because it is a truth so obvious and
pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so
pervades our environment that we forget that it exists until we are suddenly deprived of
it.
Had the tragic events of this case taken place a mile beyond the territorial limits of our
Commonwealth, no one would pretend that our law was applicable to them. We recognize
that jurisdiction rests on a territorial basis . . . Now I contend that a case may be
removed morally from the force of a legal order, as well as geographically. If we look to
the purposes of law and government, and to the premises underlying our positive law,
these men when they made their fateful decision were as remote from our legal order as
if they had been a thousand miles beyond our boundaries . . . I conclude, therefore, that
at the time Roger Whetmore’s life was ended by these defendants, they were, to use the
quaint language of nineteenth-century writers, not in a “state of civil society”, but in a
“state of nature”. This has the consequence that the law applicable to them is not the
enacted and established law of this Commonwealth, but the law derived from those
principles that were appropriate to their condition. I have no hesitancy in saying that
under those principles they were guiltless of any crime.’
Foster J invokes natural law. The judge maintains that law is not valid merely because certain
rules have been placed on the statute book.
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Positive law (law in writing) should be based on certain values. These values are rationally
ascertainable. They are also universally valid. The validity of law depends on whether these
universal values are contained in legal rules. If not, the legal rules are invalid.
Fuller himself is regarded as an exponent of natural-law thinking. In some of his other writings
he emphasised the minimum requirements of morality which have to be present in the legal
process. The law must, for instance, be certain and clear, generally known, not retrospective and
of a relatively constant nature.
TATTING, J: ‘I have given this case the best thought of which I am capable. I have
scarcely slept since it was argued before us. When I feel myself inclined to accept the
view of my brother Foster, I am repelled by a feeling that his arguments are intellectually
unsound and approach mere rationalization. On the other hand, when I incline toward
upholding the conviction, I am struck by the absurdity of directing that these men be put
to death when their lives have been saved at the cost of the lives of ten heroic workmen.
It is to me a matter of regret that the Prosecutor saw fit to ask for an indictment for
murder. If we had a provision in our statutes making it a crime to eat human flesh, that
would have been a more appropriate charge. If no other charge suited to the facts of this
case could be brought against the defendants, it would have been wiser, I think, not to
have indicted them at all. Unfortunately, however, the men have been indicted and tried,
and we have therefore been drawn into this unfortunate affair. Since I have been wholly
unable to resolve the doubts that beset me about the law of this case, I am with regret
announcing a step that is, I believe, unprecedented in the history of this tribunal. I
declare my withdrawal from the decision of this case.’
Here the humanity of judges is emphasised. The moral implications of choice are highlighted. The
judge not only wants to escape the consequences of such a choice, but would have preferred to
have been spared this dilemma of choice. For this reason he criticises the prosecutor for having
prosecuted the accused in the first place. The question may be posed: If a charge of murder is so
inappropriate, why does the judge not merely find the accused not guilty? We may also ask: Are
the moral implications in this case so unique and extraordinary? Do simpler cases, such as an
order of custody and access, sentencing in any serious case or deciding on a breach of contract,
not have potentially similar implications?
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18.4 Legal positivism
KEEN, J: ‘I should like to begin by setting to one side a question which is not before this
Court . . . The question that I wish to put to one side is that of deciding whether what
these men did was “right” or “wrong”, “wicked” or “good”. That is also a question that is
irrelevant to the discharge of my office as a judge sworn to apply, not my conceptions of
morality, but the law of the land. In putting this question to one side I think I can also
safely dismiss without comment the first and more poetic portion of my brother Foster’s
opinion.
The sole question before us for decision is whether these defendants did, within the
meaning of NCSA (NS) 12-A, willfully take the life of Roger Whetmore . . . To put it
bluntly, my brothers do not like the fact that the written law requires the conviction of
these defendants. Neither do I, but unlike my brothers I respect the obligations of an
office that requires me to put my personal predilections out of my mind when I come to
interpret and apply the law of this Commonwealth . . . Now I know that the line of
reasoning I have developed in this opinion will not be acceptable to those who look only
to the immediate effects of a decision and ignore the long-run implications of an
assumption by the judiciary of a power of dispensation. A hard decision is never a
popular decision. Judges have been celebrated in literature for their sly prowess in
devising some quibble by which a litigant could be deprived of his rights where the public
thought it was wrong for him to assert those rights. But I believe that judicial
dispensation does more harm in the long run than hard decisions. Hard cases may even
have a certain moral value by bringing home to the people their own responsibilities
toward the law that is ultimately their creation, and by reminding them that there is no
principle of personal grace that can relieve the mistakes of their representatives.’
The judge is a strong exponent of legal positivism. In principle this school of thought places the
most emphasis on the formation of legal rules. The question is whether a legal rule has been given
positive content (was formed) in a valid way. The will of the legislature represents law. That must
be given effect. Legal positivism is based on the assumption that law and morality can be
distinguished and separated.
18.5 American legal realism

The judgment of Handy J in the Fuller article is representative of the legal realists, and it
originated earlier in the twentieth century in the USA. They regarded law not as something
abstract but as courts’
Page 401
decisions in concrete cases. What is written down in statute books or in legal rules is not sufficient
to explain what the law is. We should rather look at what courts do (what judges say). It follows
that judges will be influenced by subjective factors, such as their own prejudices. This school is
sceptical about rules and claims to objectivity. A well-known statement by a member of this school
(Oliver Wendell Holmes) is the following: ‘The life of law has not been logic; it has been
experience.’
HANDY, J: ‘I have never been able to make my brothers see that government is a human
affair, and that men are ruled, not by words on paper or by abstract theories, but by
other men. They are ruled well when their rulers understand the feelings and conceptions
of the masses. They are ruled badly when that understanding is lacking . . . Of all
branches of the government, the judiciary is the most likely to lose its contact with the
common man. The reasons for this are, of course, fairly obvious.
Now when these conceptions are applied to the case before us, its decision becomes,
as I have said, perfectly easy. In order to demonstrate this I shall have to introduce
certain realities that my brothers in their coy decorum have seen fit to pass over in
silence, although they are just as acutely aware of them as I am. The first of these is
that this case has aroused an enormous public interest, both here and abroad. Almost
every newspaper and magazine has carried articles about it; columnists have shared with
their readers confidential information as to the next governmental move; hundreds of
letters-to-the-editor have been printed . . . Now I know that my brothers will be horrified
by my suggestion that this Court should take account of public opinion. They will tell you
that public opinion is emotional and capricious, that it is based on half-truths and listens
to witnesses who are not subject to cross-examination . . . But let us look candidly at
some of the realities of the administration of our criminal law. When a man is accused of
crime, there are, speaking generally, four ways in which he may escape punishment. One
of these is a determination by a judge that under the applicable law he has committed no
crime. This is, of course, a determination that takes place in a rather formal and abstract
atmosphere. But look at the other three ways in which he may escape punishment.
These are: (1) a decision by the Prosecutor not to ask for an indictment; (2) an acquittal
by the jury; (3) a pardon or commutation of sentence by the executive. Can anyone
pretend that these decisions are held within a rigid and formal framework of rules that
prevents factual error, excludes emotional and personal factors, and guarantees that all
the forms of the law will be observed?
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[There is also] the frightening likelihood that if the issue is left to him, the Chief
Executive will refuse to pardon these men or commute their sentence. As we all know,
our Chief Executive is a man now well advanced in years, of very stiff notions . . . As I
have told my brothers, it happens that my wife’s niece is an intimate friend of his
secretary. I have learned in this indirect, but, I think, wholly reliable way, that he is
firmly determined not to commute the sentence if these men are found to have violated
the law. No one regrets more than I the necessity for relying in so important a matter on
information that could be characterized as gossip.
I must confess that as I grow older I become more and more perplexed at men’s
refusal to apply their common sense to problems of law and government, and this truly
tragic case has deepened my sense of discouragement and dismay. I only wish that I
could convince my brothers of the wisdom of the principles I have applied to the judicial
office since I first assumed it . . . I conclude that the defendants are innocent of the
crime charged, and that the conviction and sentence should be set aside.’
To Handy J the solution lies in common sense. He takes a very pragmatic approach and refers to
opinion polls as a guideline for his decision.
18.6 Feminist legal studies
In the subsequent articles, the feminist perspective is introduced. Feminism is a movement

stemming from, among other things, the recognition that men dominate women in various
spheres of society. Feminists claim that law has traditionally been approached from a male point
of view. The values underlying law are those that are historically and stereotypically attributed to
men — in other words, ‘male values’ such as rationality, reasonableness and objectivity. Values
such as emotion, subjectivity, context and care are suppressed, as they have traditionally been
regarded as ‘female’. Feminists maintain that behind men’s claims to neutrality and objectivity lies
the reality that law is an instrument of women’s subordination.
Arriving at the conclusion that the case should be remanded for a reconsideration of the facts,
Cahn J favoured an approach based on the ethics of care and justice. ‘Justice’ is an impersonal and
abstract concept, which some feminists feel should be supplemented by an ethics of care, thus
allowing the interests of a contextualised individual to be treated with compassion.
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CAHN, J: ‘This case presents a problem because we have been, as Justice Foster
explained, living in a society with laws designed to “regulate men’s relations with one
another.” That is, we look to the law to create one right answer and to help us derive a
neutral principle that will enable us to triumph over our emotions and biases so that we
can apply the law correctly.
...
The challenge for us is to acknowledge the different strands at play in our decisions.
Instead of seeking to find our answers only in a hierarchy of rights, our decision should
integrate care and justice. Even then, we will not reach the one “just” result. Indeed,
there is no one just result; we can only make contingent judgments.
...
As a judge, I try to use empathy as a guide — not an empathy that requires me to put
myself in the exact same situation as the accused here, but an empathy that seeks to
draw on our own experiences and understandings and openness to others and that
recognizes our communities and differences.
Thus, I would remand this case with directions to the jury and trial judge to consider
the context in which this case arose and to encourage them to use their own emotions as
a guide to interpreting the statute and to deciding the meaning of “willfully”. While this
call for context is not a call for unrestrained emotions and standardless discretion, it is an
invitation to integrate emotions with the application of standards and to use our power
responsibly, morally, and generously.’
Coombs J opted for a retrial, on the basis that the five members of the initial all-male bench were
too easily swayed by their identification with the ‘privileged’ male accused persons.
COOMBS, J: ‘As a feminist judge, I ordinarily would begin my analysis by asking “the
woman question,” i.e., seeking to understand the lives of the women subject to the rule,
the doctrine, or the policy under consideration and examining how those lives would be
affected by different outcomes. Here, however, I confront a preliminary question:
Where are the women? My senior colleagues, in their earlier opinions, propose and
argue grand jurisprudential principles based on a set of events involving only men.
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Consider the facts of this case. Five men — the unnamed defendants and the
deceased, Roger Whetmore — set off on a cave exploring expedition. Such an expedition,
daring, difficult, with a soupçon of danger, is alluring. It is also obviously quite expensive,
rather like our equivalent of twentieth-century polo or mountain climbing. These men
used their wealth and leisure to indulge in the pretense of being cavemen (without the
obligations of families).
. . . the attempts by my senior colleagues to use this case as a vehicle for announcing
universal, objective, neutral rules are misguided.
Feminist jurisprudence calls for different forms of legal rules and for different methods
of developing those rules. It is deeply skeptical of broad, abstract rules. Instead,
feminism generally favors particularized, concrete decisions that reflect the specific facts
of a dispute. Such particularity is in tension with what appellate courts ordinarily are
supposed to do, namely, to enunciate general principles for a wide range of cases. One
resolution to that tension is to reconceptualize the task of appellate courts. We could
focus on creating rules and structures that facilitate the work of the real lawmakers: the
trial courts that resolve individual disputes and provide individualized justice.
...
The jury, a group from the community, is the closest existing equivalent of the
community. We long ago recognized that race and gender are illegitimate bases for
excluding people from jury service. A jury, then, is far more likely than a panel of judges
to represent the range of our society’s experiences and views. More than any other legal
actor, a jury is expected to intertwine law, fact, reason, and emotion in rendering its
verdict. More than any other, the jury decides collectively, in a process that can, and
sometimes does, lead to wisdom.’
The legal profession was, until recently, an exclusively male domain. In terms of an old statute any
‘person’ could enter into a contract to do articles. But because women did not comply with the
description of ‘person’ Ms Wookey was not allowed to enter into such a contract for articles (see
Incorporated Law Society v Wookey 1912 AD 623). The first (white) South African woman was
admitted as an attorney in 1926. This reflected women’s status in society; after all, white women
only got the vote in 1930! In 1990 less than 10% of practising attorneys and advocates were
women. Before the Constitution took effect in 1994, there was only one permanent female judge
(Leonora van den Heever JA). At the end of 1999 29% of all attorneys were female, despite the
fact that nearly 50% of all law graduates are female.
Page 405
Aspects of criminal law have also been targeted for criticism. Rape is traditionally defined in
many parts of the world as the act of penetration by a man of an unwilling woman. (In South
Africa, this definition has changed under the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 to be gender neutral and to include a wide range of sexual violence.)
The next two quotations represent aspects of criticism of the traditional definition:
‘Eleven years ago, a man held an ice pick to my throat and said: “Push over, shut up, or I’ll kill
you.” I did what he said, but I couldn’t stop crying. A hundred years later, I jumped out of my car
as he drove away.
I ended up in the back seat of a police car. I told the two officers I had been raped by a man
who came up to the car door as I was getting out in my own parking lot. He took the car, too.
They asked me if he was a crow. That was their first question. A crow, I learned that day,
meant to them someone who is black.
They asked me if I knew him. That was their second question. They believed me when I said I
didn’t. Because, as one of them put it, how would a nice (white) girl like me know a crow?
Now they were on my side. They asked me if he took any money. He did . . . I remember their
answer. He did take money; that made it an armed robbery. Much better than a rape. They got
right on the radio with that.
Late that night, I sat in the Police Headquarters looking at mug shots. I was the one who
insisted on going back that night, my memory was fresh. I was ready . . . But it wasn’t any one
of them . . . I didn’t have a great description of identifying marks, or the like: No one had ever
told me that if you’re raped, you should not shut your eyes and cry for fear that this really is
happening. You should keep your eyes open focusing on this man who is raping you so you can
identify him when you survive. After an hour of talking, I left the police station. They told me
they’d be back in touch. They weren’t.
I learned much later, that I had “really” been raped. Unlike, say, the woman who claimed that
she’d been raped by a man she actually knew, and was with voluntarily.
Unlike, say, women who are “asking for it,” and get what they deserve . . . It is bad enough to
be a “real” rape victim.’
Estrich ‘Rape’ 1986 Yale Law Journal 1087
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‘. . . The law distinguishes rape from intercourse by the woman’s lack of consent coupled with a
man’s (usually) knowing disregard of it. A feminist distinction between rape and intercourse, to
hazard a beginning approach, lies instead with the meaning of the act from women’s point of
view. What is wrong with rape is that it is an act of the subordination of women to men.
. . . The problem is this: the injury of rape lies in the meaning of the act to its victims, but the
standard for its criminality lies in the meaning of the same act to the assailants. Rape is only an
injury from women’s point of view. It is only a crime from the male point of view, explicitly
including that of the accused . . . What this means doctrinally is that the man’s perceptions of the
woman’s desires often determine whether she is deemed violated . . . .
Many women are raped by men who know the meaning of their acts to women and proceed
anyway. But women are also violated every day by men who have no idea of the meaning of their
acts to women. To them, it is sex. Therefore, to the law, it is sex. That is the single reality of
what happened. When a rape prosecution is lost on a consent defense, the woman has not only
failed to prove lack of consent, she is not considered to have been injured at all. Hermeneutically
unpacked, read: because he did not perceive she did not want him, she was not violated. She
had sex.’
MacKinnon ‘Feminism, Marxism, Method, and the State:
Towards Feminist Jurisprudence’ (1983) 8 Signs 635
Defining rape as occurring only when penetration takes place corresponds to the male
(perpetrator’s) view. To a woman (victim) ‘rape’ is a broader concept and occurs when her dignity
or privacy is forcibly infringed. Usually an element of violent resistance is required to corroborate
the victim’s version that she did not consent. This should not be required. Why should a woman
risk further assault and injury by resisting a rapist?
In 2000 the Labour Appeal Court found that an employer is entitled to take pregnancy into
account in its decision whether or not to employ a prospective employee (Woolworths v Whitehead
2000 (3) SA 529 (LAC)). Not taking it into account, the court held, would be ‘so economically
irrational as to be fundamentally harmful to society’.
From a feminist perspective it could be argued that the view expressed does not recognise
pregnancy as a social issue for which the whole community shares responsibility. In reaction to the
judgment, a Commission for Gender Equality spokesperson pointed out that the Constitution
prohibits unfair discrimination on the basis of pregnancy. She added:
‘What employers should be doing is providing an enabling environment that takes into account the differences
in the sexes.’
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18.7 Critical race theory

In one of the subsequent judgments in one of the articles written after that by Fuller, the
perspective of critical race theory was illustrated. As with the Critical Legal Studies (CLS)
approach, which is discussed below, this theoretical perspective started in the USA. Different to the
CLS approach, which criticises the political bias of the law, generally, this approach focuses
attention pertinently on the role of race in legal practice and legal interpretation. According to this
approach, there often lurks racial prejudice and structural advantage in ostensibly neutral legal
rules and concepts such as ‘reasonableness’, ‘neutrality’, ‘equality’ and in the application of the
criminal justice system.
CALMORE, J: ‘I firmly believe that in all instances capital punishment is a violation of

human rights because it constitutes “cruel and unusual punishment”. Moreover, racial
bias plagues the criminal justice system to the extent that the law of capital punishment,
so facially uniform and fair under Newgarthian law, really operates as an instrument of
social control that disproportionately subjects people of color and Newgarthian Jews to
the service of the hangman.
Although the particular petitioners before us do not raise specific issues that implicate
the racist aspects of the criminal justice system, I take the opportunity presented here to
discuss the larger human consequences that stem from our capital punishment law. I
want to examine the value orientations that are implicated.
...
The fundamental struggle today is over whether certain people can secure, maintain,
and keep humanity. No matter what the social justice campaign objective, we all must be
humanitarians first and then whatever else is called for. Certainly none of us can do it all,
and few of us can really do a lot, but all of us must do something to reintroduce the
divided national community to the value of humanity and the moral indignation that
ought to be associated with dehumanization.
Racism is not easily bounded. Sometimes it calls out to us like an alarm bell and we
can prepare or maneuver to avoid its damage, or at least to mitigate it. At other times,
though, it sneaks up on us like a disease, eating away at us even when we are unaware
of it. Like a poison in the air, it can pollute our lives across large areas, even when we
feel that our community is environmentally safe and even when our hands appear clean.
All of us ultimately have a stake in battling racism and liberating those whom it
oppresses.
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I have tried to develop this opinion in agreement with Justice Foster’s belief that
“something more is on trial in this case than the fate of these unfortunate explorers”. For
him, that “something” was the law of our Commonwealth. For me it is more — our very
humanity itself is on trial. Our jurisprudence must reflect compassion and fidelity to
justice. It must incorporate the righteous decency of those who should sleep comfortably
at night. The nightmare of a state-sanctioned hanging death is incongruent with this
judicial philosophy of anti-dehumanization.’
These sentiments could resonate with some South Africans. What would a critical race theory
(CRT) for the South African context look like?
‘As a legal philosophical discipline, CRT has yet to be “formally adopted” in mainstream South
African legal scholarship. This is somewhat puzzling for a country with a long and tragic history of
racial segregation and institutionalized race-based discrimination and oppression. The legacy of
this oppression, of course, continues to persist in post-apartheid South Africa with wealth,
education, and power being largely divided along the lines of race. To engage with the
vicissitudes of race in post-1994 South Africa, one must also consider the implications of life
under law after apartheid — particularly the reproduction and maintenance of white supremacy
and white privilege as well as the systemic exclusion of black people through direct and indirect
forms of racial marginalisation.
Theoretically, the support for this thesis is found in two foundational principles of CRT, namely
(1) the centrality of racism: that racism is a normalised and ingrained feature of the social order
which appears often in nuanced and covert ways; and (2) that white supremacy does not refer to
rightwing extremist racist hate groups that consciously promote white domination, but rather
denotes a system (political, legal, economic and cultural) in which whites maintain overwhelming
control and power. Part of the blind spot in South African race discourses (which in turn undergird
human rights and equality) is an insistence on the belief that since 1994, the de jure end of
apartheid, whites and blacks now equally enjoy formal legal rights (or put differently that the law
is no longer instrumental in the marginalisation and exclusion of blacks and in perpetuating deep
inequalities between whites and blacks). This is evidenced by the popular use of the phrase
“previously disadvantaged group” to refer to, inter alia, blacks. The erasure implied in describing
historical racial disadvantage in such terms as “previous” (as if something of the past) stems
precisely from the failure to see that racism is so deeply embedded in society that racist practices
engendered by law and legal institutions can exist long after the abolishment of the laws or the
replacement of the government that enacted those laws.
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...
CRT focuses on the ways in which the social construction of race is present in legal systems
and how power and knowledge production, specifically but not only in law, are also racially
structured.
...
CRT has an explicitly activist dimension in its aspiration to transform the relationship between
race, law and power and to reform ways in which legal knowledge and formal approaches to
rights have ignored the historically entrenched marginalisation of black people.
Below, I tentatively highlight six key theoretical elements of CRT with specific reference to how
they challenge mainstream legal knowledge and do not conform to western notions of rationality,
neutrality and objectivity. It should be noted that CRT is a vast and diverse body of scholarship
and the themes below do not represent a unified position but organising principles of critique that
often lead to different perspectives and new debates.
(a) Critique of liberalism: CRT rejects liberalism’s cautious approach to transformation —
particularly the insistence on “colour-blind politics” and exclusively rights-based approaches
(like anti-discrimination legislation) to resolving racial problems.
(b) Anti-essentialism: Anti-essentialism is an analytical tool used also in feminist theory to
highlight that an identity category (like woman or black person) cannot be fixed,
categorised or boxed into a common experience with one singular essence. Given that
previous attempts to create one generalised monolithic account of black identity have
negated differences between blacks, CRT scholars are critical of any attempts to define one
specific black community or to articulate a unitary black experience.
(c) Intersectionality: As a consequence of its anti-essentialist position, CRT understands that
people are defined by more than their “race”; that we are simultaneously raced, classed
and gendered. It is thus crucial to examine how the intersection of race, gender, class,
nationality, sexual orientation, religious and cultural beliefs, (dis)ability and other identity
locations induce multiple forms of discrimination and oppression.
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(d) Structural determinism: CRT focuses on the way in [which] the structure of legal thought
and the prevailing legal culture determines law’s content and thus also who benefits from it
and whose interests and values it protects and reflects. That is, it seeks to interrogate how
the dominant categories, doctrines and tools influence legal interpretation and analysis, and
to what extent this either maintains the racial status quo or seeks to challenge it.
(e) Social science insights, historical analysis and multidisciplinary thinking: In its attempt to
understand and expose how the regnant regime of white supremacy and anti-black racism
has been created and maintained, CRT draws from other fields such as historical and
cultural studies, philosophy, anthropology, literature, and political science to develop a
politicised and socially relevant account of racial power and its manifestations in legal
institutions.
(f) Storytelling, narrative and “naming one’s own reality”: The main aim behind CRT’s
controversial use of stories, allegory and narrative is to “probe the convolutions and
recesses of our thinking about race”.’
Extracts from Joel Modiri ‘The Colour of Law, Power and Knowledge:
Introducing Critical Race Theory in (Post-)
Apartheid South Africa’ (2012) SAJHR 405, footnotes omitted.
18.8 Critical legal studies

In the 1980s and 1990s post-modernism came to the fore, questioning many of the generally
accepted views in Western thinking. A question-mark is, for example, placed over the validity of
objective knowledge and the ability of language to express knowledge. The investigator (seeking
knowledge) with his subjective perceptions and limitations now becomes central. Traditional claims
of fixed foundations and universal truths are exposed (deconstructed) as human constructions
which are easily changed.
The traditional view of law as being neutral and logically ascertainable is criticised. The
neutrality and objectivity of law are unmasked as a smokescreen behind which deep-rooted
political, social and economic conflicts are cloaked. The fixed formulas of finding the law in the
words of a statute and then applying it to specific cases are unmasked as meaningless. Words only
evoke other words. Certainty is postponed indefinitely as one pages through the dictionary in
search for ‘fixed meaning’. Take for example the concept ‘inhuman’ (which is used in section 12(1)
(e) of the Constitution): In the Concise Oxford Dictionary
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‘inhuman’ is described as ‘brutal, unfeeling, barbarous’. ‘Barbarous’, in turn, is explained as

‘uncivilized, cruel, coarse’. ‘Civilize’ is described as, among others, ‘bring out of barbarism’.
‘Barbarism’ is defined as ‘uncivilized’, which in its very description contains the concept of
‘barbarism’, which has the same root as ‘barbarous’, a word equated with ‘inhuman’. So our quest
for certainty has led us back to the initial dictionary definition.
In the USA the Critical Legal Studies (CLS) movement represents a critical legal perspective.
CLS scholars have highlighted the political nature of law: To them law is not distinct from and
above the power play in society, but part of it. Law is an instrument used to maintain the existing
power relations in society:
‘Basic to the popular perception of the judicial process is the notion of government by law, not
people. Law is depicted as separate from — and “above” — politics, economics, culture, and the
values or preferences of judges.
A realistic, understandable approach to the law that explains its operation and social role must
acknowledge the fundamental conflicts in society; the class, race, and sex basis of these
conflicts; and the dominance of an ideology that is not natural, scientifically determined, or
objective. The discretionary nature of court decisions, the importance of social and political
judgments, . . . characterize our judicial process far better than any notions of justice,
objectivity, expertise or science.
Ours is a government by people, not law. Those robed people sitting behind ornate oversized
desks are not controlled or bound by law; regardless of their honest self-appraisals or their
pretensions, they are in the business of politics. But the politics they practice is mediated through
law — theirs is not unfettered political choice — and their perceptions and values are socially
formed and patterned. Usually judges find confirming legal rationalizations for their choices or
adopt whatever seems easiest or least controversial, which often involves ignoring or distorting
contrary arguments, authorities, facts, or social realities. They are most influenced by the culture
that pervades their daily lives, their associations, their self-perceptions, and the world around
them. They sometimes feel constraints, such as a moral hesitance to do what they think is
expected of them, or as a fear that doing the right thing might be embarrassing to them or to the
courts or other institutions. In such situations, however, it is still a political choice; and it is made
by a person, not by ‘the law’ and not required by legal reasoning or by the dictates or logic of any
underlying social or economic system.’
Kairys ‘Introduction’ in Kairys (ed) The Politics of Law (1990) 7–8
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18.9 African constitutional jurisprudence

In South Africa, judges would from time to time be confronted with the question whether their
judgments are resonant with the values of the majority of South Africans, whose worldviews are to
varying extents rooted in African soil. Is there room to adopt a particular ‘African jurisprudence’?
The 1993 Constitution opened such a possibility. It introduced the concept ‘ubuntu’ into the South
African law by providing, in its ‘post-amble’ that ‘there is a need for understanding but not for
vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for
victimisation’. Although the Constitution did not define this concept, a number of Constitutional
Court judges referred to it in deciding that the death penalty is unconstitutional (in S v
Makwanyane 1995 (3) SA 391 (CC); see also Chapter 1 above).
Mokgoro J explained (at para 307) that
‘ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality.
Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group
solidarity on survival issues so central to the survival of communities. While it envelops the key values of
group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its
fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity,
marking a shift from confrontation to conciliation.’
She referred to ‘ubuntu’ as part of indigenous South African values, which should form part of the
interpretation by courts of the values of the Constitution. Based on her understanding that ‘ubuntu’
embodies both human dignity and respect for life, she found that the death penalty is in conflict
with the Constitution.
Langa J (as he then was) agreed that ‘ubuntu’ is of ‘relevance to the values we need to uphold’.
He added (at para 224):
‘It is a culture which places some emphasis on communality and on the interdependence of the members of a
community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value
and acceptance from the members of the community such person happens to be part of. It also entails the
converse, however. The person has a corresponding duty to give the same respect, dignity, value and
acceptance to each member of that community. More importantly, it regulates the exercise of rights by the
emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.’
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Langa J then quoted from another African court’s decision on the death penalty to illustrate his
views: the Court of Appeal of Tanzania in DPP v Pete:
‘The second important principle or characteristic to be borne in mind when interpreting our Constitution is a
corollary of the reality of co-existence of the individual and society, and also the reality of co-existence of
rights and duties of the individual on the one hand, and the collective of communitarian rights and duties of
society on the other. In effect this co-existence means that the rights and duties of the individual are limited
by the rights and duties of society, and vice versa.’
In Hoffmann v South African Airways 2001 (1) SA 1 (CC), Ngcobo J (as he then was) also referred
to this concept when deciding that the exclusion from the workplace of a person living with HIV
was discriminatory (at para 38):
‘People who are living with HIV must be treated with compassion and understanding. We must show ubuntu
towards them. They must not be condemned to “economic death” by the denial of equal opportunity in
employment. This is particularly true in our country, where the incidence of HIV infection is said to be
disturbingly high.’
Even though the 1996 Constitution omitted reference to ‘ubuntu’, it has remained part of the
jurisprudence of the Constitutional Court. In Union of Refugee Women and Others v Director,
Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC), dealing with the
rights of refugees to work in the private security industry in South Africa, Sachs J placed emphasis
on this concept in his decision (at para 145):
‘The culture of providing hospitality to bereft strangers seeking a fresh and secure life for themselves is not
something new in our country. As Professor Hammond-Tooke has pointed out (Hammond-Tooke The Roots of
Black South Africa (Jonathan Ball Publishers, Johannesburg 1993) at 99), in traditional society—
“. . . the hospitality universally enjoined towards strangers, [is] captured in the Xhosa proverb Unyawo
alunompumlo (‘The foot has no nose’). Strangers, being isolated from their kin, and thus defenceless,
were particularly under the protection of the chief and were accorded special privileges.”
Today the concept of human interdependence and burden-sharing in relation to catastrophe is associated with
the spirit of ubuntu-botho. As
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this Court said in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268
(CC) at para 37:
“The Constitution and PIE (Prevention of Illegal Eviction Act) confirm that we are not islands unto
ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population,
suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It
is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and
operational declaration in our evolving new society of the need for human interdependence, respect and
concern.”
These words were used in relation to homeless South Africans. The reminder that we are not islands unto
ourselves, however, must be applied to our relationship with the rest of the continent.’
18.10 African decolonial jurisprudence

In the previous section, we explained the constitutional concept of ubuntu. However, a very
different understanding of the concept is proposed by the African philosopher Mogobe Ramose. His
approach is Pan-African and thus reflects a decolonial version of African jurisprudence that aims to
deal much more decisively with the injustices that stem from colonisation. As such, he is much less
celebratory about the constitutional ubuntu explained above:
‘In the “negotiations” leading to the new South Africa two contending paradigms have played a
prominent role, namely, the decolonisation and democratisation paradigms. The former speaks to
the restoration of title to territory and sovereignty over it. It includes the exigency of restitution.
It would bring the conqueror to renounce in principle title to South African territory and
sovereignty over it. In this way sovereignty would revert to its rightful heirs. The conqueror’s
South Africa would be dissolved. This would then lay the basis for state succession. The legal
consequences flowing from total state succession or the Nyerere doctrine (the clean slate
doctrine) would then follow. By its nature then the decolonisation paradigm is contrary to and
inconsistent with the conqueror’s claims pertaining to extinctive prescription.
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By contrast, the democratisation paradigm conforms to and is consistent with the conqueror’s
claims concerning extinctive prescription. It proceeds from the premise that given the
evolutionary character of constitutionalism in South Africa, the major weakness of the 1983
constitution consists in the exclusion of the indigenous conquered peoples. Therefore, democracy
will be achieved through the inclusion of the latter in the new constitution. In this way
nonracialism would be one of the hallmarks of the new constitutional dispensation. In its
determination to achieve victory over apartheid, the democratisation paradigm lost sight of the
fact that the land question was a basic issue long, long before apartheid was born. Despite this
oversight, democratisation won the day and so the question of title to territory and sovereignty
over it did not become an integral part of the “negotiations” agenda.
In these circumstances it was relatively easy for the conqueror to realise the resolve to defend
and consolidate all the benefits resulting from extinctive prescription. To this end the conqueror
argued for the abolition of the principle of the sovereignty of parliament. This was rather odd
since the sovereignty of parliament was a basic constitutional principle in South Africa for as long
as the conqueror held sole and exclusive political power. This principle did not become suddenly
inadequate. Instead, the conqueror feared that the indisputable numerical majority of the
conquered people would probably abuse the principle. To avert this abuse abolition was
considered the best solution. The conqueror’s fear was based on the experience of its own abuse
of this principle . . . .
In an effort to win the support of the numerical majority population in the country, the
conqueror appealed to ubuntu and used it tactfully to remove the causes of its own fear. Here it
is important to understand that the majority of the South African population continues to be
nurtured and educated according to the basic tenets of ubuntu, notwithstanding the selective
amnesia of a small segment of the indigenous elite. For example, ubuntu was included in the
interim constitution to justify the necessity for the Truth and Reconciliation Commission. It was
excluded from the final one. Why? Ubuntu was again invoked by the Constitutional Court
delivering the judgement that capital punishment is unconstitutional. With respect, the invocation
of ubuntu in this case was obiter dictum as the same conclusion could have been reached without
recourse to ubuntu. Knowing why and how the death sentence affected mainly the conquered
people in the past, the conqueror once again was driven by fear in opting for the abolition of the
death sentence. These transparent tactics apart, it is curious that the final Constitution should
remain completely silent about ubuntu. If a constitution is at bottom the
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casting into legal language of the moral and political convictions of a people then the mere
translation of Westminster and Roman Law legal paradigms into the vernacular languages of the
indigenous conquered people is not equal to the constitutional embodiment of their moral and
political convictions. There is no a priori reason why ubuntu should not be the basic philosophy
for constitutional democracy in South Africa.
Contrary to its rejection of this in the past, the conqueror now urged for the Constitution as
the basic law of the country. The essence of the argument here is that the Constitution as the
basic and supreme law of the country shall be above the law-making power vested in parliament.
The laws enacted by parliament shall, in principle, always be subject to their conformity and
consistency with the Constitution. Parliament would therefore be the prisoner of the Constitution
whose principles possessed the character of essentiality and immutability. What then is the
meaning of popular sovereignty in the form of representative parliamentary democracy? Without
attempting to answer this question it is clear that the option for Constitutional supremacy by the
conqueror was not simply a matter of juridical considerations.
The cumulative result of the conqueror’s arguments and tactics is that the democratisation
paradigm carried the day. Its success was in fact the victory of extinctive prescription. Thus the
injustice of conquest ungoverned by law, morality and humanity was constitutionalised. This
constitutionalisation of injustice places the final Constitution on a precarious footing because of
its failure to respond to the exigencies of natural and fundamental justice due to the indigenous
conquered peoples. But the constitutionalisation of an injustice carries within itself the demand
for justice. Accordingly, the reversion of title to territory and the restoration of sovereignty over it
did not die at the birth of the new Constitution for South Africa.’
Mogobe Ramose ‘An African Perspective on Justice and Race’ (2001) Polylog:
Forum for Intercultural Philosophy, online version available at
http://them.polylog.org/3/frm-en.htm
See www.jutapassmasters.co.za for an excerpt from Jooste v Botha and then formulate
your own judgment.
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Chapter 19
Legal Research
Introduction
Legal research may sound like something very difficult and daunting. However, it is a personally
enriching and transformative activity that is required from students when resolving hypothetical
problems, analysing sets of facts in assignments, and conducting independent research for essays.
In legal practice, lawyers are confronted with problems that their clients present to them. Often,
they will not have answers readily available. In many cases it will be necessary to do research in
order to give an opinion, to prepare arguments or to ascertain the legal position.
19.1 Step one: analyse and understand the problem

A consultation with a client may last for hours. A lawyer must sift relevant information (essential
facts) from a magnitude of facts and on this basis decide on what the dispute hinges. Thus, the
first step for the lawyer is to think through the facts carefully in order to try to understand what
role the law has to play. In the same way, law students must first identify the legal question arising
from a set of facts.
From your analysis of the facts, identification of the problem and questions that flow from the
problem, you could notionally find yourself in one of two situations:
• You know the source: On the one hand, you might find yourself remembering a relevant
piece of legislation or a relevant reported judgment that could be used to grapple with one or
more of the questions that you need to answer. You could even remember a specific book or
journal article’s title (or the name of the author thereof) that might be of use to you. In such
a situation, you need to be able to find the specific source in question, knowing its title or
author.
• You only know the topic: On the other hand, you might find yourself thrown into the deep
end with no clear idea about which cases, legislation and journal articles could be useful to
you for the problem that you must address. In the latter situation, you need to
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identify certain ‘keywords’ that could assist you in finding relevant material.
How do you find the relevant material in either of these situations? We look at some suggestions in
the next part.
19.2 Step two: find and collect sources

19.2.1 General tips
• If you find yourself in the situation where you know the title of the source that you are
looking for, it will be a fairly simply task to trace the source. (Very often, in your
undergraduate studies, you will be given a prescribed and/or recommended list of sources to
obtain by yourself — there the titles of the sources will also be given.) Below, we explain how
to find different sources of law on various electronic platforms. When you have the title of the
source at your fingertips, then you will simply type in the name of the source in the relevant
search engine and find the source there.
• If you find yourself in the situation where you do not know the title of the sources that could
be relevant to your case, you will have to do some more digging.
– As a preliminary point on this situation, you should take note of the fact that you will go
through different phases of reading to find appropriate sources and possible solutions
for your case. You will start with a process of broad reading which involves skimming
through a great variety of different sources with the aim of identifying sources that
have potential relevance for your case. More detailed reading is done once you have
the relevant sources before you. Focused, critical reading will be done when you
move towards applying the law to the situation at hand.
– In a case like this, it may be advisable to start by obtaining a few monographs,
textbooks or other academic commentaries (journal articles or academic dissertations)
on the broad discipline that the matter relates to. So, if you are dealing with a dispute
that broadly sounds like a contractual matter, you will look for commentaries on
contract. By consulting those academic works, you would familiarise yourself with the
broader ‘field of knowledge’ in which you need to situate your research problem
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and research. In these academic commentaries you might even read about the most
important cases or legislation that you could consult to make sense of your case.
– However, we must add a disclaimer to the above tip: you should never simply trust
academic writings as the incontrovertible truth. As great as academic writings could be,
they might not always contain perfectly accurate reflections of the law. This is partly
because the law changes daily. Written works can almost never keep up with the
tremendous pace at which new cases are decided. Those works will also never be able
to reflect every small detail of the law. Distortions of legal positions can also occur. As
such, you should always do your own independent reading after you have consulted
such an academic work to familiarise yourself with the broader discipline.
– You should also be mindful of the fact that research is more an art than a science. In
some cases, you might find yourself in a situation where you want to start by looking
for primary sources before you turn to the secondary sources. So there really are no
strict rules about which sources of law you should turn to first. What we provide here
are simply useful tips and guidelines.
• For the purposes of this book, we will only consider the electronic platforms for accessing
legal sources. Most law schools around the country have library websites that provide
students with access to the relevant platforms. If you are interested in working with
hardcopy prints of the sources, you can consult earlier editions of Beginner’s Guide for Law
Students where legal research of that nature is explained.
19.2.2 The Constitution and legislation

(a) Constitution
We already know that the Constitution is the supreme law of the Republic and any law or conduct
that stands in conflict with it can be declared unconstitutional. If you need access to the text of the
Constitution, you can most easily consult the Juta online platform (‘Jutastat’) via your library’s
website.
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• Step 1: Once logged in, you will left-click on the drop-down menu for ‘Choose Advanced
Search Form(s)’ and select ‘Acts Search’. (Even though the Constitution is not like normal
legislation, it can easily be accessed on Jutastat through the Acts Search.)
• Step 2: The ‘search form’ for Acts will appear to the right of the screen. To find the
Constitution, the easiest practice is to type in ‘108’ at ‘Act Number’ and 1996 at ‘Act Year’.
(Of course, the Constitution is no longer referred to as ‘Act 108 of 1996’ — see Chapter 3 —
but this is an easy way to find the Constitution online because if you type the full name of
the supreme law, you will find many sources that contain the name in their titles.) The
screenshot below shows you how to do this.
From here, the following search results will be displayed. You then left-click on the first option that
most accurately captures what you were looking for:
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The resultant screen will be the following:

• Option A: If you left-click on ‘View Full Act’ then you will be able to see the entire
Constitution. You can consult the electronic text here if you so wish.
• Option B: If you now want to export the document as a PDF or if you want to print the
document so that you have access to it at a later stage when you might not have internet
access, then you click on the option that says ‘Print/PDF’ as shown below. (Note: this option
for exporting documents to PDF version and printing can be done for legislation, case law,
journal articles and other resources provided on this platform. We will not repeat this tip
again below.)
(b) Legislation
The next most authoritative source of law is legislation. This may be a statute of Parliament, or
the subordinate legislation of provinces or the by-laws of local authorities.
If you know the title of the legislation or the Act number and year:
To find legislation on Jutastat, you will once again left-click on the drop-down menu at ‘Choose
Advanced Search Form(s)’ (as you did in Step 1 for finding the Constitution explained and shown
above). From there,
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you can type in the name of the legislation, or the year and Act number, as you would have done
when you looked for the Constitution above.
The wonderful thing about the online platforms is that they are easily and regularly updated to
reflect correct information. So, if a piece of legislation is amended by a subsequent Act, the old
piece of legislation will be updated to reflect the new, amended text. Do a search for the Criminal
Procedure Act 51 of 1977 as an example. If you view the full text of the Act, scroll down to
Chapter 1 of the Act and you will see the following:
You will see that section 2 has been repealed. As such you will only find ‘. . . . . .’ next to the
section number and no text. If you read carefully, you will see that the text says that section 2 has
been repealed by section 44 of Act 32 of 1998. Similar constructions can be observed for sections
3 through to 5.
Section 6 on the other hand has been amended to include a new paragraph (c) and subsection
6(2). However, these sections will only come into effect at a later date, which is why you do not
see them inserted here yet. This just gives you a vivid example of how useful this online tool is in
terms of staying up to date with the law.
If you know the broad topic but are not sure whether legislation regulates the matter:
In this case, you can try one of two strategies.
• Strategy 1: The first strategy is to consult Juta’s ‘Table of Statutes and Index’ where you will
find the Index to South African legislation.
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The Index has grouped South African legislation into categories and subcategories. You
access the Index by left-clicking on the arrow next to ‘Statutes and Regulations of South
Africa’ on the panel to the left of the screen. From here, you left-click on the arrow next to
‘Statutes of South Africa’ and further items will appear. Then click on the arrow next to ‘Table
of Statutes and Index’. The next option is ‘Alphabetical Index to the Groups and Subgroups’.
Next up is ‘The groups and subgroups’. If you select that option, the right-hand side of the
screen will display the various categories of legislation. Once you find a statute, the long title
will indicate what the content of the statute is, as the purpose of the statute is contained in
the long title. Skimming through the contents of the statute might also help you gain a better
understanding about whether the legislation could be useful for your case. Suppose you want
to find out more about the laws that regulate circus animals. If you scroll through the
different categories you will see that ‘Animals’ is probably your best bet. The screenshot
below shows the menu on the left of the screen, and the screen on the right shows a small
part of the list of categories at your disposal:
• Strategy 2: The second strategy is to do an ‘Advanced Search’. Drop down the ‘Advanced
Search Forms’ menu and select ‘Advanced Search’. The form that appears on the right-hand
side
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of the screen can be filled in by searching for keywords, phrases, or legal terms. You can
select whether the search engine should include synonyms for the word or phrase you have
provided. If you only want to search for legislation and not other sources on the Jutastat
platform, then you can select the tick-box next to ‘Statutes and Regulations of South Africa’
on the left of the screen. If you do not specifically select statutes, then the search could
return legislation, case law, journal articles or other material containing your keywords or
phrases.
A useful tip for dealing with legislation:

Make sure that the statute you have found has entered into force and is still applicable. If you
search for the Appropriation Act 4 of 2018 you will find that directly below the short title (heading)
of the Act the date of assent and the commencement date are shown (see the image to the left
below). Clearly that Act took effect on 2 August 2018. If an Act has been completely repealed,
then Juta will indicate that the legislation has been repealed directly under the short title heading
(see the image to the right below).
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19.2.3 Case law

The next primary source of law that we will look at is case law. Statutes and the Constitution are
interpreted and the customary law and common law are set out and developed through case law.
As a point of departure, take note that both law publishers (Juta and LexisNexis Butterworths)
have law reports. The most widely used general law report is surely Juta’s South African Law
Reports (SA). But there are many more. You will not be able to access cases that have been
reported in a Juta law report on the LexisNexis website. You will also not be able to access a case
reported by LexisNexis by going to the Juta website. As such, you should take note of the following
common law reports published by the two publishers:
Juta LexisNexis
• South African Law Reports (SA) • All South African Law Reports
• South African Criminal Law (All SA)
Reports (SACR) • All England Law Reports (All
• Juta’s Unreported Judgments ER)
(JDR) • Butterworths Constitutional
• Industrial Law Journal Law Law Reports (BCLR)
Reports (ILJ) • Judgments Online (JOL)
• Butterworths Labour Law
Reports (BLLR)
If you know the name or citation of the case:

Even if you only know the name of one of the parties of the case, you might be able to find it quite
easily. Suppose for example that you remember from your contract law studies that there is a
prominent Constitutional Court case where one of the parties was called Barkhuizen. In this case,
you will not necessarily be sure whether you should use Juta or LexisNexis. Let us start with Juta
here. You will log on to Jutastat online and choose ‘Law Reports Search’ under ‘Choose Advanced
Search Form(s)’ as shown in the image on the right.
From here, you will see that you can fill out a search form that appears on the right of the screen.
You can enter one party’s name or if you know both you can try both. If you are dealing with a
common surname like Van der Merwe you might end up finding a search result of 336 cases —
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such a case it would be better to type both parties’ names and perhaps even to use quotation
marks (for example ‘Van der Merwe v Smith’) so that your results are reduced. Alternatively, you
could enter the citation of the case in the space provided.
If you search Barkhuizen on Jutastat, you should find the case that you are looking for reported in
the South African Law Reports as Barkuizen v Napier 2007 (5) SA 323 (CC). The wonderful thing is
that you can search all the different law reports at once (you will see that all of them are listed and
ticked/selected in the image above). Also, if you search for the same case on LexisNexis, you
should find the same case reported as Barkuizen v Napier 2007 (7) BCLR 691 (CC) and also
Barkhuizen v Napier 2008 JOL 19614 (CC). Thus, you can find some popular cases located in
different places.
But suppose that you are looking for the case of Motala and Another v University of Natal. If you
type those names into Jutastat’s law report search, you will not find any results. But fear not, you
will find it on My LexisNexis. Access their site through your university’s library website. Select the
‘Focus Search’ drop-down menu and choose Law Report (you will see that you can search for
legislation there too).
From here, you will also be led to a search form. There you can type in the case name or the
citation too, as you did with Juta. Also as you did with Juta, you can search multiple law reports at
once. The image below shows part of the search form on My LexisNexis.
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If you correctly searched for Motala’s case on LexisNexis, you should find the citation 1995 (3)
BCLR 374 (D).
A further useful note on choosing between Juta and LexisNexis: The South African Law
Reports that are available on Jutastat only go back to 1947. For cases older than this
(yes, there are cases older than this that are still law today!) you will have to use
LexisNexis.
Now, suppose that (a) the case that you are looking for is nowhere to be found on Jutastat or
LexisNexis; or (b) at a particular moment, you do not have access to Jutastat or LexisNexis for
some reason. There is a free fall-back option that will help you to find some cases (but not all).
You will find this on the website of the Southern African Legal Information Institute’s website,
which is www.saflii.org. Here you can find South African cases that are sometimes reported in
other law reports, or you can find South African cases that are not reported at all. You can also
find cases on this website from a long list of other African jurisdictions (see the list of countries on
the image below on the left side). To find a case on this website, you will choose ‘Advanced Search’
just below the search bar on the landing page. There you can type in a case name or a keyword.
You will be able to refine your search by selecting specific courts on the search form.
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If you know the broad topic but are not sure whether case law deals with the matter:
As with the situation discussed for legislation, there are various strategies you can employ to
discover cases related to certain topics.
• Strategy 1: You could consult case indexes. If you are working with the South African Law
Reports on Juta, you will click on the arrow next to that law report on the left of the screen.
A drop-down menu appears with a number of options — of relevance here is ‘legislation
judicially considered’, ‘words and phrases’, and ‘subject index’. (See the accompanying
screenshot.)
– ‘Legislation judicially considered’: If you click on this option, you will find a
chronological list of South African legislation. If you are working with a specific piece of
legislation, say the Road Accident Fund Act 56 of 1996, you will go to ‘1996’ and then
select ‘Road Accident Fund Act’. On the right of the screen, you will see a list of sections
of the Act and coupled with that
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a link to a case that has interpreted that specific section. The screenshot below shows
you this.
– ‘Words and phrases’: If you click on this option, you will find an alphabetical list of
words and phrases that have been interpreted in case law. So if you want case law that
has given meaning to ‘abuse of process’, you will go to ‘A’ and then select the phrase.
On the right of the screen, a brief description of the term is given and a case (with a
link to the judgment) is shown. The screenshot below demonstrates this.
– ‘Subject index’: If you click on this option, similar to ‘Words and Phrases’, you are taken
to an alphabetical list of subjects. If you want to find a case that relates to the articles
of clerkship that accountants need to undergo, you would find it under the letter ‘A’
under the subject ‘Accountant’. On the right side of
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the screen, the subject keyword with an abbreviated summary of the principles appears
with a link to a relevant case. This is shown in the screenshot below.
If you are using My LexisNexis instead of Jutastat, you will find similar tools in the table of
contents. The screenshot below shows you where to find these for the All SA law reports:
• Strategy 2: You could do an ‘Advanced Search’. This is the same type of search as the one
you did for legislation, discussed above. You can do the same on LexisNexis.
• Strategy 3: You could do a ‘headnote’ or ‘flynote’ search when you choose ‘Law Report
Search’ on Jutastat, or you could do a ‘keyword’ search when you do a ‘Law Reports’ search
on LexisNexis.
General tip for case law:
Make sure that the case you have found is still applicable. For example, suppose that you find
the case of Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA).
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If you click on the ‘Case Annotations’ link that appears just under the case details before the
flynote, you are taken to a page where you will be shown whether the case has been ‘referred to’
with approval by another court or ‘compared’ or ‘criticised’, whether other cases have been
‘distinguished’ from that case, or whether the case has been ‘reversed on appeal’. So for Lee’s case
you will find the following:
The Supreme Court of Appeal decision in Lee was thus overturned by the Constitutional Court and
the Constitutional Court, as the highest court, prevails. If you click on the link next to ‘reversed on
appeal’ you will be taken to the judgment of Lee v Minister of Safety and Security 2013 (2) SA 144
(CC) where the current exposition of law on factual causation can be found.
LexisNexis has a similar functionality. If you search for the case of K v Minister of Safety and
Security, you will see two judgments: The decision of the Supreme Court of Appeal and the
decision of the Constitutional Court. The Constitutional Court decision has a small green circle with
a tick () inside it. That shows that it is still good authority. The Supreme Court of Appeal decision
has a red circle with a cross (x) inside it. That shows that the decision is no longer good authority
— it was overturned by the Constitutional Court. This is known as the ‘Noter Up’ of LexisNexis.
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Before we move on to the next section we wish to emphasise the following again: The guidelines
given in this chapter for the steps to be taken in research should not be regarded as fixed and
rigid. A search may often start with secondary sources, because they are of a more general
nature. Obviously when no reported cases or statutes can be found, you will have to turn to
secondary sources. A single source such as this may provide many other leads to be followed.
Always remember: One reference leads to another. In one article there are many footnotes. In
each of these footnotes you may find a new clue in your search.
19.2.4 Legal encyclopaedias

A logical starting point for secondary sources is a legal encyclopaedia. An encyclopaedia is an
explanatory dictionary, giving information alphabetically under certain subject headings. In South
Africa The Law of South Africa (LAWSA) is such a source. Subjects are covered alphabetically.
Volumes already published are kept reasonably up to date. LAWSA may be described as a
summary of current knowledge of aspects of the law. In volume 1, beginning with ‘A’, the following
aspects are, for instance, covered: Accounts and Auditors, Administrative Law, Agency and
Representation, Agriculture and Animals. LAWSA is a particularly good starting point because it
contextualises the area of research as part of the applicable field of law. Once again, you use your
keywords to find information. In most legal systems such an encyclopaedia is available. Other
well-known encyclopaedias are Halsbury’s Laws of England and the American Corpus Juris
Secundum.
To access LAWSA online, you will have to log in to My LexisNexis. You access the table of
contents on the left of the screen. Click on ‘Reference Works, Indexes, Dictionaries and Diaries’.
Under that section you will find ‘Law of South Africa’. When you click on the LAWSA link, you will
see, among other things, a consolidated index (that works in a similar
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way to the indexes for cases and legislation discussed above) as well as the various volumes of
LAWSA. Volume 1 of LAWSA has the first topic as ‘Access to Information’ with subsections entitled
‘Introduction’, ‘Legislative Framework’, ‘Constitutional Principles’ and so forth, as shown in the
screenshot below.
19.2.5 Textbooks and monographs

Textbooks may also be a good starting point. These are books written by academics that
introduce the reader to a discipline. For example, a famous book on property law published by Juta
is the 7th edition of Van der Walt & Pienaar’s Introduction to Property Law (2016). Although authors
of textbooks do not give an authoritative exposition of the law, their work is an important aid in
any search.
Monographs are more specialised and focused academic works that are written as advanced
scholarly publications, instead of introductions to certain areas of the law. So, for example, one of
the authors of the textbook on property mentioned above wrote many more specialised books —
notably the third edition of Van der Walt’s Constitutional Property Law (2011) where the specific
issue of the Constitution’s impact on property law is discussed, analysed and critiqued.
Textbooks and monographs may be found online or in print format. Books in the library are
usually arranged according to subject matter. Consult the relevant shelves. Most libraries will also
have a computerised catalogue which provides easy access to books. Obtain the classification
number and find the book.
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19.2.6 Local law journals

Local law journals may be another important secondary source. Articles on various topics are
published in these journals. Law journals of a general and of a specialist nature appear regularly in
South Africa.
Some examples of local journals that are currently published (or previously have been
published) by Juta are:
• South African Law Journal (SALJ)
• South African Journal on Human Rights (SAJHR)
• Tydskrif vir die Suid-Afrikaanse Reg (TSAR) (Journal for South African Law)
• Stellenbosch Law Review (Stell LR)
• Acta Juridica
• African Human Rights Law Journal (AHRLJ)
• Mercantile Law Journal (MLJ)
A journal published by LexisNexis is Tydskrif vir Hedendaagse Romeins-Hollandse Reg (THRHR)
(Journal of Contemporary Roman-Dutch Law).
Some other journals are ‘open access’ journals in the sense that you need no special
subscription to have access to them. These include: De Jure, Potchefstroom Electronic Law Journal
(PELJ), Fundamina, and the African Human Rights Law Journal (AHRLJ, previously published by
Juta).
All of the journals mentioned thus far are ‘peer reviewed’ journals. This means that each
article that gets submitted to the journal is sent to (usually two) anonymous ‘peer reviewers’ who
are experts in the field. They determine whether the articles make a new contribution to our
understanding of the law. Other journals might be more akin to magazines in that they are edited
but not peer reviewed, such as the journal of the attorneys’ profession (De Rebus) or Without
Prejudice, which are of particular relevance to legal practitioners. In academic writing, you will
generally only refer to peer reviewed journals and not magazines.
But how do you access these local journal articles? There are a few ways.
• If you are using Jutastat to find a journal published by Juta (or previously published by Juta),
choose ‘Journal Search’ from the ‘Advanced Search Menu’ (where you also accessed the ‘Law
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Reports Search’ and ‘Acts Search’ before). There you can type the name of the author or the
name of the article that you are looking for.
• If you are using LexisNexis for one of their journals (like THRHR), you will have to tick the
‘Journals’ box on the table of contents on the left side of the screen and then do an
‘Advanced Search’ where you search for the journal title or topic.
• Another great local platform to use is Sabinet. Through your law library website, access
either ‘Sabinet’ or ‘SA ePublications’ for electronic copies of the journals. (You could select
‘ISAP’ if you are looking for details of some journals — especially older ones — that do not
have electronic copies available online.) The landing page for Sabinet looks like this:
From here, you will select the ‘Advanced Search’ option. You can complete the advanced search
form by filling in the title of the article, the author’s name, year of publication or just a keyword. A
useful tip is to change the ‘All fields’ drop-down menu to ‘Article Title’ or ‘Author’ depending on
your needs:
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There is, of course, also the option of putting on a dust mask and a pair of gloves and obtaining
the hard copies of the journals in the library.
19.2.7 South African Law Reform Commission reports

The South African Law Reform Commission reports frequently on its activities. These reports
are a valuable source of information, especially in areas of uncertainty or possible legal change.
You can visit their website at www.justice.gov.za/salrc/ where you can find electronic copies of
their reports, issue papers, discussion papers and a useful search tool as shown in the screenshot
below. The SALRC also runs a legal essay writing competition, which law students from across the
country participate in. Once you have learned some of the research skills from this chapter, it
might be worth looking into entering that competition!
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19.2.8 Foreign law journals

Also consult relevant foreign law journals. South African lawyers are connected through Roman-
Dutch law and the Anglo-American system to the legal systems of many other countries. It is often
necessary to take cognisance of what is happening in other systems. This is especially true in
cases where foreign legal development is more advanced than in South Africa. In interpreting the
Bill of Rights in the Constitution, reference will also often be made to foreign jurisdictions.
Popular search platforms for foreign journals include HeinOnline and JStor. Access them through
your law library website. The search procedure is very similar to what you have learned about
Sabinet above. Click on ‘Advanced Search’, type in the information you have, and relevant journal
articles should pop up.
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19.2.9 Foreign statutes and case law

Foreign authority in the form of case law and statutes may also be consulted in certain
instances. It will obviously be easier to find these sources if you have already consulted an article
or textbook on that specific system. Foreign case law and statutes are also available on various
platforms, notably Westlaw (mostly for American law), Saflii (for other African jurisdictions) and
even www.worldlii.org (the international version of Saflii).
19.2.10 Internet sources

The internet is a very rich source of information on just about any topic. Websites of interest to
lawyers include, for example, the following:
• https://www.concourt.org.za/ (the Constitutional Court’s official website containing
information on cases decided by the court, information about Constitutional Court judges and
more)
• http://www.lawsofsouthafrica.up.ac.za/ (contains free access to legislation of South Africa)
• http://www.polity.org.za/govdocs (contains free access to Bills and parts of Hansard,
amongst others)
Accessing the internet is of particular importance in finding foreign
sources that may be difficult to obtain. You may, for example, access judgments of the United
States Supreme Court almost as soon as they are delivered at
http://www.findlaw.com/casecode/supreme.html. You may access the latest international human
rights developments on the website of the United Nations High Commissioner for Human Rights at
http://www.ohchr.org.
If you do not have a website address, use a search engine. A search engine is a directory of
websites. You enter a keyword and a list of sites
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is provided. An example of such a search engine with an academic focus is Google Scholar
(https://scholar.google.co.za/) where you can find some articles and case law.
You may also do a general search on a search engine such as Google or Yahoo. You can however
not rely blindly on sources found on the internet. Remember that anyone can create a website,
and may place information on the net. You have surely heard about the worldwide proliferation of
fake news. Always ask yourself: How reliable is this information? It is different from information
published in books and articles, which go through a process of independent scrutiny.
It may also be useful to subscribe to electronic newsletters, such as Juta’s ‘daily legal briefs’,
contained in www.legalbrief.co.za.
The internet also contains ‘blogs’, which are more interactive and informal than traditional
websites. One such blog is that of legal academic Professor Pierre de Vos,
http://constitutionallyspeaking.co.za/.
Consider the information you find in a website in terms of:
• Authority (Who is responsible for the information? Is the information unbiased? In this
regard, it may be useful to note that websites ending in .edu or .org are often more reliable
websites to rely on.)
• Accuracy (Is the information accurate? Is there, for example, a list of sources? What are
these sources?)
• Currency (When was the information compiled, or put on the web? Is it outdated, overtaken
by current events? When last was it updated?)
• Stability (Is the information or the site of a permanent, stable nature? Has it been in
existence for a while? Remember that sites may disappear overnight!)
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If you Google a specific keyword, you will invariably find a Wikipedia page dedicated to
the issue. Wikipedia is not regarded as an academic source and it should never be cited
in any type of formal academic writing. Even though there could be Wikipedia pages that
are potentially useful, it is notoriously unreliable. This is so because these pages may be
edited by people who are not subject experts (even vandals), sometimes with hilarious
results, as the screenshot below shows. The Wikipedia page for Charlie Sheen has since
been edited.
Screenshot from https://www.boredpanda.com/funny-wikipedia-edits/?

utm_source=google&utm_medium=organic&utm_campaign=organic [accessed 4
December 2018]
19.2.11 Personal interviews

The clearest answers to questions of law may often be provided by those directly in touch with
new legal developments, such as government officials and academics. On condition that you have
the requisite ethics clearance from your university (something that you need to apply for), you
could consult them. If the interview is used as a source in legal research, you must record the
interviewee’s title, name, profession or position; and the time and place of the interview.
Remember that you need the informed consent of the interviewee and you should not record them
without their permission. The researcher must keep a written record of the interview. This type of
research is usually beyond the scope of an undergraduate degree.
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19.3 Step three: read, think about, and ‘map’ sources

The next step is to try to read all the sources that you have collected. In addition to reading them,
you also require some reflective time where you carefully think about what you have read and how
it relates to the problem that you are unpacking and addressing. You need to integrate all these
sources. You can only do this once you have formulated the question of law clearly. Organise your
data by identifying different aspects of the problem. Your ultimate aim is to arrive at an argument,
solution or conclusion.
Keep the question of the law or central argument in mind throughout. It should run through the
research report like a golden thread woven into an exquisite tapestry. You could put your central
research problem, research questions and the sources you have collected in a concept map like the
one shown below.
Let us say that you are investigating a defamation case. The case is brought by someone called
Ntando. Ntando says that a person called Bobby wrote on Facebook that ‘Ntando Mahlangu has
long fingers’. Ntando says that he thinks Bobby meant that Ntando is a thief and not simply that he
has long iminwe.
The requirements that you need to prove to succeed with a defamation case, in terms of
Khumalo v Holomisa 2002 (5) SA 401 (CC), are publication of a defamatory statement about the
plaintiff that is both wrongful and intentional. Each of those requirements have been further
interpreted by our highest courts, as you have discovered in your research.
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19.4 Step four: write it down

It will not always be necessary to write down the results of your research. Sometimes it can be
communicated verbally.
For the purpose of assignments, legal opinions or court documents, you should approach your
work:
• reflectively;
• in an organised, well-planned manner;
• neatly; and
• following instructions given to you.
19.4.1 Structure: building an argument

A good short story, it has often been said, has a beginning, a middle and an end. This is probably
true of most written work. In this case the beginning will be the introduction which contains an
identification
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of the problem, the question(s) of law and an outline of the argument that you intend to present
(for example: ‘Firstly, I will look at the historical legal position after which I will turn to consider
the need for development of this area of the law’). We call this ‘signposting’ because you are
guiding your reader into following your line of reasoning and argument. The middle is the so-called
body of the written work which contains an exposition of the legal position and analysis. The end
is your conclusion or recommendation where you tie everything you have said together and
finally drive your point home.
Of course, different forms of legal writing will require different structures and technical details. If
you write an email, you have to address it to a specific person, have a subject line and sign it off.
When drafting court papers like pleadings, there is a set format that you need to follow and you
will not start with a flowery introduction. If you write an essay or legal opinion, you might need to
structure the piece with headings. The tips for writing that we provide here mostly relate to
constructing arguments for purposes of essays and assignments that you will probably mostly
encounter in your undergraduate degree.
In the case of essays and research assignments, you do this in a structured way by using
headings and sub-headings, for example ‘Introduction’, ‘The old legal position’, ‘The argument
for common law development’, ‘Conclusion’. But do not ever entitle the body as ‘body’ — provide
headings for the substance of the piece that lead the reader to understand the topic that you will
be discussing. It will be much easier to follow these steps once you have done step three (read,
think about and map sources).
When it comes to constructing your argument, you will very often be faced with applying
the law to a set of facts. An approach to dealing with basic legal problem-solving that is
recognised around the world is the IPAC model:
• I: Identify the issue
• P: Principle
• A: Application
• C: Conclude
(Amusingly, in the United States of America, they replace the P with an R which stands
for ‘Rule’ and then the acronym sounds a lot like a US arch enemy.)
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In some very simple matters, it is rather easy to go through all the steps of IPAC. Let
us say that you are faced with a scenario where a 7-year-old called Guy walks into a
grocery store, goes to the kiosk and asks the cashier for a packet of Dunhill cigarettes.
The cashier gives Guy the packet in exchange for money and off the child goes. You are
asked to discuss whether this sale was legal or not.
• Identify the issue: The issue is whether Guy is legally entitled to buy cigarettes.
• Principle: Section 4(1) of the Tobacco Products Control Act 83 of 1993 says that
‘[n]o person shall sell or supply any tobacco product to any person under the age of
18 years.’ From this section we can deduce three elements to establish a breach of
the section: (i) sale or supply (ii) of tobacco products; (iii) to a person under 18.
• Apply (this is where you slot the facts of the case into the legal elements): In this
case, the cashier sold cigarettes (a tobacco product) to Guy who is 7 years old and
clearly under the prescribed age.
• Conclude: In conclusion, the three elements for illegality are met and so the sale
was illegal.
You will generally not answer a question by listing the items in IPAC. Instead, you will
write a coherent paragraph on the issue, like this:
The issue here is whether Guy is legally entitled to buy cigarettes. Section 4(1) of the Tobacco
Products Control Act 83 of 1993 says that, ‘[n]o person shall sell or supply any tobacco product
to any person under the age of 18 years.’ From this section we can deduce three elements to
establish a breach of section 4(1): (i) sale or supply (ii) of tobacco products; (iii) to a person
under 18. In this case, the cashier and Guy exchanged money for a product, which constitutes a
contract of sale. The product concerned was cigarettes which is a tobacco product. Guy is 7 years
old and clearly under the prescribed age. In conclusion, the cashier has breached section 4(1) of
Act 83 of 1993 and so the sale was illegal.
In other situations, the principles might be intricate and involve many dimensions. Then
you would have to provide a more detailed description of the principles and application.
This is especially true when there are multiple principles at play, where there is
uncertainty and ambiguity in the law, or where you are required to come up with an
innovative and imaginative solution to a problem. Ultimately, it is a matter of style
whether you (a) first give all the principles and then apply all the principles; or (b) give
one principle at a time and then apply it. In some courses in your law studies, lecturers
will tell you that they expect either (a) or (b) from you. Otherwise, it is a matter of
personal style.
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In addition to this, you could be required to engage with the law in other ways. For
example, you could be asked to discuss a particular case or a concept at a theoretical
level. Then IPAC will probably be less useful — there you will have to summarise the case
and reflect on its correctness, or explain a particular concept and reflect on its
implications or even critique it.
What has been said in Chapter 16 about language and Chapter 17 about argument and logic
also applies here. Those chapters taught you to write in plain legal language as far as possible so
that your work will be understandable and therefore accessible to a wide audience. When
constructing the argument, you should be careful not to fall into the traps of, for example, shifting
the goalposts, playing the player, or making extreme arguments.
Furthermore, especially when writing essays, it is important for you to have strong transitions
between different paragraphs and sections of your work. This relates to the ‘flow’ and coherence of
your piece of written work and ultimately also speaks to structure. The last sentence of one
paragraph should ideally lead your reader into the next paragraph. This will ensure that there are
no random jumps between ideas — you want to create the impression that you are presenting a
logically developed argument that is easy to follow. Let us demonstrate this by ending this section
with a comment about the use of authority (sources) in building your argument, which will lead
you into the next part of this chapter:
Statements must be supported by relevant authority. The purpose of legal writing and argument
is to persuade. However informed your own opinion may be, you may not base an argument
merely on opinion drawn from the air. Authority is the key to success. In light of this, it will be
important for you to reference your work properly.
19.4.2 Referencing
(a) Why reference?
Referencing is basically the process whereby writers acknowledge the authority on which their
arguments and thoughts are based. In one sense, referencing is important because you
demonstrate that your argument is based on sources, which should make your ideas more
persuasive and believable. In another sense, referencing is important because you owe an
ethical duty to the authors of that source (whether they are the legislature, judges or academics)
to acknowledge the role that they
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have played in your understanding of a specific issue. We call this the ethics of citation and it
ensures that you do not copy or appropriate (read: steal) other people’s ideas. If you do not cite
the source that you are relying on or have been inspired by, you will be guilty of plagiarism.
Plagiarism involves the use of someone else’s ideas without proper acknowledgement. It
is a subspecies of the crime of fraud (the intentional and wrongful misleading of another
person that causes actual or potential prejudice to another — a definition most recently
confirmed in S v Gardener and Another 2011 (1) SACR 570 (SCA) at para 29). Plagiarism
could also involve a copyright infringement. It is illegal and dishonest to commit
plagiarism and such conduct does not befit a lawyer. You could potentially be expelled
from your university if you do this and even get a criminal record. Does this mean that
you are not allowed to quote from a case or an article? You certainly can quote from a
source, but then you must use quotation marks and acknowledge the source
appropriately. Even if you do not quote directly but you are paraphrasing (putting
into your own words) what someone else has said, you must reference that
paraphrasing too (obviously without quotation marks).
Another sneakier form of plagiarism that many students make themselves guilty of is
footnote ‘lifting and dumping’. This means you might consult a textbook written by
Professor Stu Woolman that says, for example, ‘the Bill of Rights is a cornerstone of our
democracy’. The sources referenced for that statement include section 7 of the
Constitution, two Constitutional Court cases and a journal article. You would be guilty of
plagiarism if you simply lift the footnotes from the textbook and then dump them in your
own work as if you have read all those sources yourself. You must never do this. Never
cite a source that you have not read and referenced yourself. Instead, in this scenario,
what you should do is cite the textbook that you relied on — because that is the only
source that you have relied on. If you want to be more complete, you could write ‘Stu
Woolman, relying on section 7 of the Constitution, the Certification Judgment, the EFF-
case and Karl Klare, says that the Constitution “is a cornerstone of our democracy”.’
When you submit assignments at university, you will often be required to complete a
plagiarism form that might read as follows (the version here is taken from the University
of the Witwatersrand and is available at:
https://libguides.wits.ac.za/plagiarism_citation_and_referencing/declarationform.
Page 447
I ___________________________ (Student number: _________________) am a

student registered for ______________________ in the year __________. I hereby
declare the following:
• I am aware that plagiarism (the use of someone else’s work without their
permission and/or without acknowledging the original source) is wrong.
• I confirm that ALL the work submitted for assessment for the above course is my
own unaided work except where I have explicitly indicated otherwise.
• I have followed the required conventions in referencing the thoughts and ideas of
others.
• I understand that the University of the Witwatersrand may take disciplinary action
against me if there is a belief that this i[s] not my own unaided work or that I have
failed to acknowledge the source of the ideas or words in my writing.
Signature: ______________ Date: _______________

Obviously in closed book tests the requirements for referencing will be less onerous. You
might be required to give one of the names of a party to the dispute or just the name of
legislation or the author of an article. But you should still provide authority for your
answers where appropriate. In tests, you will be penalised for forgetting the name of the
source by losing a mark instead of facing disciplinary action.
(b) Footnotes
So how exactly should you go about referencing in assignments and other legal writing (other than
tests and exams)?
As a starting point, you should check whether a specific style is prescribed to you. For example,
you might be told to follow the ‘house style’ or ‘style guidelines’ of the South African Law Journal
(SALJ) published by Juta. If you are not told to follow a specific style guide, consistency is the
main requirement. It would be advisable to follow a specific style guide for the sake of ease and
consistency.
For purposes of our discussion here, let us suppose that you have been told to follow the SALJ
style. You should download the relevant style guide and make sure that you understand it. The
SALJ style guide can be downloaded at the following link, which you would also easily find with a
Google search:
https://juta.co.za/law/media/filestore/2011/08/SALJ_-
_Author_Guide_for_the_South_African_Law_Journal.pdf
Page 448
The SALJ style guide makes it clear that for articles, footnotes should be used. In other disciplines,
like the humanities and commerce, you might find other forms of in-text referencing. Generally, in
law, you will make use of footnotes.
Useful tips for footnoting:

If you are using Microsoft Word:
• To insert a footnote, on the keyboard of the computer press ‘Ctrl’ and ‘Alt’ and ‘F’ at
the same time (or hold down Ctrl then put another finger on Alt and another one on
F). If you are using a Mac, you will hold down ‘Command’ instead of ‘Ctrl’. (This is
the easiest way to insert a footnote without breaking your typing frenzy!)
• Alternatively, you (1) click on the ‘References’ tab at the top of the screen, then
you (2) click on ‘Insert Footnote’ as shown in the screenshot below:
The effect will look something like this — a small superscripted number in text and at the
bottom of the page, a small superscripted number.
Please do not try to do make-shift footnotes — use the proper tool in MS Word for a
clean, professional end-product.
You will see that the SALJ house style gives you plenty of guidelines for how to cite the various
sources for the first time. Kindly consult the guide by yourself to get a feel for it.
A few prominent examples of first-mention footnote citations (in other words, the first time
you mention a source, you should cite it like this in the footnote) are listed below for your
convenience. Take special
Page 449
notice of how the authors of books and journals are treated, which aspects are italicised and which
items take capital letters.
• Constitution: Constitution of the Republic of South Africa, 1996.
• Legislation: Judicial Service Commission Act 9 of 1994.
(Thereafter variants may be used: the Judicial Service Commission Act, the Act, Act 9 of
1994.)
• Cases: Broad (Pty) Ltd v Thin 2008 (4) SA 456 (SCA).
• Books: John D Smith & Sipho Dlamini Hand’s Law of Arbitration 5 ed (2006) 115.
• Chapters in books: M Bear & D Bear ‘Too hot, too cold, just right?’ in Mary Goldilocks (ed)
The Politics of Cookery 3 ed (2004) 23–7.
• Journal articles: S P Moyo ‘The decline and fall of constitutionalism’ (1998) 23 SAJHR 456.
• Internet sources: B I G Stick ‘Time to bring back the death penalty?’ The Star 24 May 2005
at 2, available at http://www.thestar.com/arts/wed, accessed on 23 February 2009.
(NB: the URL must appear in italics, in black, and must NOT be underlined. Where an author
has accessed a published source on the internet — for example, a journal article accessed
through Sabinet online — then the original citation should be given, and there is no need to
refer to the URL.)
But should you repeat the full citation of these sources if you want to refer to the same source
again at a later stage? The short answer is no. Instead, you will cross-reference the earlier
footnote where the source is mentioned for the first time. Suppose that the following four
footnotes are the first four footnotes in the essay that you are writing:
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Suppose further that in footnote 5 you want to cross-reference the case of Carmichele, footnote 6
must cross-reference Klare and footnote 7 must cross-reference Van der Walt. Footnote 8 must
refer to Van der Walt again, but to a different page. Footnote 9 must show Van der Walt with
exactly the same page as footnote 8.
What would that look like? We use ‘op cit note x’ (which is an abbreviation of the Latin opere
citato which means ‘quoted source’) for books and journals, while we will use ‘supra note x’ (supra
being the Latin for ‘above’) for cases. If consecutive footnotes refer to the same source, we used
‘ibid’ (which is short for the Latin word ibidem which means ‘in the same place’). One may avoid
the use of these Latin abbreviations by simply referring to ‘above’ (for ‘supra’) or ‘as above’ (for
‘ibid’).
But oh, what a disaster awaits if you insert a bunch of footnotes and then later decide that you
want to edit the document by adding in a few new footnotes among the original footnotes. Your
numbering in the cross-references will be completely off. Thankfully, MS Word has a solution to
this problem. Instead of manually inserting the cross-referenced numbers to earlier notes, you can
insert fixed cross references that can be updated later on if you change the order of the footnotes.
Page 451
Useful tip for cross-referencing:

When in Microsoft Word, (1) click on the ‘Insert’ tab at the top of the screen. Then (2)
click on ‘cross reference’.
A pop-up box will appear. Under ‘Reference Type’ select ‘Footnote’ from the drop-down
menu. A list of footnotes will appear and then you select the appropriate footnote that
you wish to cross-reference. Confirm your choice by clicking on ‘insert’ at the bottom
right of that pop-up screen. The word processor will insert a hyperlink to the cross-
referenced footnote in the new footnote.
If you later edit the document and add a few new footnotes in between the original
footnotes, you will have to update the cross-references. You do this by going to the
footnote text at the bottom of the page. Click on any word in the footnotes. Press ‘Ctrl’
and ‘A’ at the same time. This will select all the footnote text. From here, press F9 (the
function key F9, not F and 9) and the cross-references will be updated.
Please note: If you delete the original reference to a footnote that you cross-reference
later, those later footnotes will show error messages once updated. Avoid deleting
footnotes where the source is cited for the first time.
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(c) Bibliography
At the end of your assignment you must provide a list of consulted works. For books, book
chapters and journals, this is known as a bibliography. For cases, we refer to a table of cases.
For Acts, a table of legislation. Oftentimes, you will be told to draft a bibliography which is used
in the loose sense — which includes legislation and cases too. You should group different types of
sources together as far as possible.
There are no fixed rules for setting out a list of references in a bibliography (you will see that
bibliographies are not necessary for articles submitted to the SALJ in terms of their house style).
The only important rules are:
(1) You should be consistent in the style you use.
(2) Similar materials should be grouped together.
(3) Sources should be alphabetised (for books, book chapters and journals, the alphabetisation is
according to the surname of the authors).
An example of a loose bibliography is the following:
Bibliography
Case law
AD and Another v DW and Others 2008 (3) SA 183 (CC)
Chapters in books
Nicholson, C ‘The Hague Convention on the Protection of Children and Cooperation in
Respect of Inter-country Adoption 1993’ in Davel CJ (ed) Introduction to Child Law in
South Africa (Juta 2000)
Journal articles
Couzens, M ‘A very long engagement: The Children’s Act 38 of 2005 and the 1993 Hague
Convention on the Protection of Children and Cooperation in Respect of Intercountry
Adoption’ (2009) PELJ 3
MezSdmur, BD ‘From Angelina (to Madonna) to Zoe’s Ark: What are the ‘A-Z’ lessons
for intercountry adoptions in Africa?’ (2009) 23 International Journal of Law, Policy and
the Family 145
Page 453
Legislation
Children’s Act 38 of 2005
Treaties
Hague Convention on the Protection of Children and Cooperation in Respect of Inter-
country Adoption 1993
19.5 Step five: final edits and reflections

After you have written a piece, you should allow yourself some additional time for editing and
reflections. After finishing a draft of the piece, you should give yourself a day or so where you do
not look at the piece. Your aim is to approach the piece with fresh eyes and a fresh mind.
Then you should read it again a few times. Read it once to see if what you have written makes
sense. Then read it again, this time checking whether your structure and transitions are strong.
Finally, give it a last read-through to edit and proofread (checking spelling, grammar, typos and so
forth).
Writing is a process that takes some time. There is no ‘drive-thru’ option with writing. Avoid
rushed jobs as far as possible. And remember to enjoy the process of research and writing — it
truly is an enriching and personally transformative pursuit. We hope that the skills and knowledge
that you have acquired through this book will make this journey a little bit easier and more
enjoyable.

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2/25/22, 1:57 PM Beginner's Guide for Law Students

1.1 Why law?

1.2 What is law?

1.3 Law and morality

Both of these extremes can be criticised.

1.3.2 Individual morality

This conflict is illustrated by the Prince cases.

1.3.3 Community mores

Surrogate brings bundle of joy to gay Zulu couple

Mpho Raborife, News24, 12 May 2016

ridicule, it also opened them up to a curious society full of questions. . . .

1.4 Law and justice

1.4.1 Legal positivism

1.4.2 Natural-law approach

Breaking the law

a false sense of inferiority.

these anti-religious laws.’

King A Testament of Hope (1986) 289

1.5 Law and certainty

1.5.2 Changing values

distinguishing between the fathers of such children.’

the German Federal Constitutional Court said the following:

1.5.3 Judicial discretion

2.1 Importance of legal history

• An understanding of legal history facilitates necessary change in law. Every society

2.2 Phase one: Africa first

2.3 Phase two: Dutch colonisation

• The Roman-Dutch law of Holland;

2.3.1 The ‘Roman’ component of ‘Roman-Dutch’ law

(b) Roman Republic (510 BCE – 27 BCE)

2.3.2 The reception of Roman law

(b) Canon law

2.3.3 The ‘Dutch’ component of ‘Roman-Dutch’ law

• Godefridus van der Keessel Theses Selectae;

2.4 Phase three: English colonisation and beyond

2.4.2 The Great Trek and the Union

2.4.3 English approach to customary law

2.5 Phase four: Apartheid law

2.5.2 Characteristics of apartheid law

i. By murder of members of a racial group or groups;

2.5.3 Apartheid and the common law: Modernism v purism

2.5.4 Positivists and non-positivists

2.6 Phase five: Transformative constitutional democracy

2.7 Conclusion: A new synthesis?

3.1.2 Key characteristics of the Constitution

Section 2 of the Constitution reads as follows:

(d) When does legislation come into force?

(e) Application of legislation

(f) When does legislation stop being in force?

legislation through a parliamentary process is referred to as the amendment of legislation.

‘[96] The following order is accordingly made:

(b) the words ‘or a whipping’ in s 290(2).

3. Sunset clauses: It is hypothetically possible for legislation to ‘come to an end’ by means of

3.2.2 Finding statutes

(b) Accessing statutes

3.2.3 Content of a statute

3. Place where termination of pregnancy may take place

(j) has telephonic means of communication; and

(3) In the case of a pregnant minor, a medical practitioner or a registered midwife or

(i) the continued pregnancy would pose a risk of injury to the

(4) The Head of Department shall—

10. Offences and penalties

No. and year of Short title Extent of repeal