Introduction To Law

What is Law 1
◊ Law governs human behaviour
◊ Obeyed by all of society
◊ It is enforced by state organs
◊ Disobeying the law you may be prosecuted and punished.

SA Law Has Two Main Divisions

Public law & Private law

Public Law: Deals with the relationship between the state and
individuals

Private Law: Deals with the relationship between individuals and

other individuals.

The Law can also be divided:

Formal Law: deals with the procedures that must be followed in legal
proceedings (the way we act in court, evidence allowed)

Substantive Law: part of law that determines the content and the meaning
of different legal rules.
 Introduction To Law

2
The Law and other normative systems.
Normative systems are systems other than the law that govern human
behaviour.

Religion:

 Every religion has a code by which the people who follow it live by.
 Every religion also has a sanction (punishment) if this code is broken.
 It is not the states task to enforce religious norms but religious
freedom must be made possible by the state.
 Their are similarities between law and religion like the regulation of
sexual relationships and murder and so forth
 Their are also differences like adultery is not a crime but it is a sin.
 Their are certain aspects that the SA law is in favour of like in
criminal law Blasphemy is a crime but only with the Christian God
 Blasphemy= the act of insulting or showing contempt to a God.

Individual Morality:

 This is the norms and standards that each person sets for himself.
 A individuals morality may sometimes coincide with their religion or
with certain legal rules, like not telling a lie or being dishonest with
fraud.
 The sanction for disobeying these rules are personal and self
imposed

Community Mores:

 Norms of a whole community, they are collective morals.

 Law and community mores may also coincide like the possession and
sale of harmful drugs, it is disapproved by the community and it is a
criminal offence.
 The sanction for breaking these norms may be rejection.
 Introduction To Law

3
The Question of Justice
Justice = “equality before Law”

In SA Law there are two types of justice Formal Justice and Substantive
Justice.

Formal Justice
 Formal law deals with the procedures that must be followed in
legal proceedings.
 If formal law is applied exactly the same way and it meets
requirements we say that Formal Justice has been achieved.
 Requirements to achieve Formal Justice are the following:

 Explicit rules of how people should be treated on specific

cases.
 The rules must apply generally
 The rules must be applied impartially by a legal
institution. (the judge must not be biased)

Substantive Justice
 In certain cases there can be formal justice without there being “real
justice”
 Substantive justice concerns the content of the Rule and not in the
way it is applied.
 Substantive Law is the part of law which determines the content of
the legal rules, therefore to establish whether Substantive justice is
done the content of the rule itself is looked at to determine whether it
is just and fair

Formal Law and Substantive Law connect, formal law is the part of law
which regulates the enforcement of Substantive Law
 Introduction To Law

What is a Right? 4

 When we speak of rights we speak of how people relate to one

another
 In law when you have a right you are the holder to that right.
 Therefore when dealing with rights we are dealing with the holder of
the right and its relationship with the object if the right and other
legal subjects that have to respect that right.
 Every right concerns a relationship of two parts:
 Relationship beween
the legal subject and
the object of the
right
 Relationship
between the legal
subject who is a
holder of the right an
other legal subject

Legal Subjects = anyone who is subject to the norms of the law and who
may also be the bearer of the right.

In Modern SA every person is a legal subject.

The object of the right (legal object) is anything that is of economic value to
someone because it costs a lot of money, it is scarce or useful.
 Introduction To Law

Four Classes of Rights! 5

Real rights

 Rights to physical, material things

 There are three types of real rights namely: Rights of ownership ,
rights of Pledge , Rights of servitude.
 In the rights of ownership the person my freely use and enjoy their
property, it does not matter if it is moveable or not , they can use it
destroy it or alienate(sell or give away) it.
 With the right of pledge you give a moveable thing as security for
debt, the powers of the pledge over the pledged thing are limited.
 The rights of servitude is basically the right of way. One person has
been given the land of another person to use as a pathway, her
powers (content of the right) are also limited. Thus the servitude
holder has a limited right to the property of the other person.

Personality rights

 The right to physical integrity, the right to a good name and the right
to your honour.
 This right has economic value in a broad sense, it has no market
value BUT it is scarce and not freely obtainable.

Intellectual property rights

 The right to the creation of the human mind.

 Eg: work of art , invention , or trademark
 These rights are sometimes called immaterial property rights.

Personal rights

 It is a right to performance , it is also called a claim

 When we speak of performance we speak of human action either
doing something or not doing something
 May either be the delivery of something , the payment of a purchase ,
or the service of an employee.
 Introduction To Law

The connection between Law and 6

Rights
 The content of a right is limited
 Law and Right are connected because it is the
rules of the law that decide on what the powers
of the holder of the right are and what the limits
to the content of the right is.
 When a legal subject has a right the other legal
subjects have a duty.
 Their always has to be that balance
 If this balance did not exist , the law would have
no meaning.
 Introduction To Law

The history of our Law-a three layered cake 7

First Layer: Roman law becomes Roman-Dutch Law
 Latin is the language of the Roman empire , and the most important
thing the Roman empire gave us which lasted till today is their legal
system.
 The history of Rome started 753BC and ended 476AD
 When the Roman empire was at its height during the second half of
the first century BC and for the first two centuries AD it became the
master of all the people around the Mediterranean sea. The Roman
law that was applied in this period is usually referred to as “classical
Roman Law”
 At the end of the fourth century AD , the roman empire split into two
parts: Western Roman empire(Rome as its capital) and Eastern
Roman Empire also known as Byzantium and now a days called
Istanbul as its capital. After this period Roman law began to decline.
 Various Germanic tribes from Northern Europe gradually took over
the Western Roman empire and in 476 AD a Germanic ruler took the
throne of Rome, as a result Germanic customs replaced Roman
customs and Roman law became weaker yet it remained alive.
 Germanic rulers allowed there Roman subjects to be governed by
Roman law however this was not pure Roman law but thus Roman
law which was influenced by Germanic Law
 Old classical Roman law survived more successfully in the eastern
Roman empire. The emperor of the Easter Roman empire in the sixth
century was called Justinian, he wanted to bring order to the legal
system.
 He decided to codify Roman law as a whole, this collection of Roman
law by Justinian was called the Corpus Iris Civilis. By codifying the
Roman law Justinian kept Roman Law alive and made it possible for
Roman Law to be received in Europe in the 12th century AD
 In the 12th century their became a new interest in Roman Law, the
University of Bologna in Italy studies these laws and in later
centuries that the reception of Roman law took place in the
Netherlands, this is what caused the creation of Roman Dutch Law
 Introduction To Law

 Some of the most important Roman-Dutch Jurist are Hugo de Groot

8
and Johannes Voet. Their writings today are still used as reference in
our courts.

Second Layer: Roman-Dutch Law comes to the cape

 In the early days of the business of the Dutch East India Company at
the Cape, the affairs of the Cape were regulated in terms of the
artyckelbrief .
 The artyckelbrief was a document that set out the rules and
regulations governing the service of those employees of the Company
who were on official duty in the Company’s overseas territories.
 Only later that when the Cape became a settlement that the lives of
the people living there were governed by legislation or Placaeten
 Placaeten were like posters that were stuck on the walls of public
places.
 Roman-Dutch law still today forms the backbone of most of our law
 Our Roman-Dutch legal system makes it easy for modern South
African lawyers to communicate and interact with lawyers in many
countries across the world.

Third layer: English Law and South African Customary Law

◊ The British occupied the Cape first in 1795 and then later in 1806,
this resulted in the reception of English Law.
◊ The British government decided that they would not change the rules
of their new colony but English law was still felt.
◊ This influence was felt in the administration of justice and in the
rules of law.
◊ For example, the British government slowly got rid of the existing
court structure and replaced it with the English court structure. It
was decided that judges and advocates had to receive training in
England, because of this judges and advocates started turning to
 Introduction To Law

English law instead of Roman Dutch authorities to resolve legal

9
problems.
◊ When Jan van Riebeeck arrived in the Cape in 1652 there were many
black tribes in South Africa who lived according their own Laws
◊ These Laws are called indigenous law or South African Customary
law.
◊ Today, indigenous law is still largely unwritten
◊ In KwaZulu Natal, much of the indigenous law is now contained in a
code which is formally recognised.
◊ In the past indigenous law was recognised as a special law that only
applied to blacks, however this has changed, in terms of the
Constitution of 1996 the courts must apply indigenous law where it
is applicable.
 Introduction To Law

10

Families of Law
Classification of Legal systems
Over the years various scholars have suggested standards we should use or
criteria for grouping the different legal systems into families or legal
cultures. Some of the criteria for grouping is as follows:

 Style and technique of the particular system

 The philosophy on which the particular system is based
 Economic elements

Most important legal families:

Romano-Germanic or Civil-Law family:

 Some systems grouped in this family are the French, German , and
Dutch legal systems.
 Roman legal science played an important part in the development of
these legal systems.
 Thus we can say that the part played by Roman law is the most
important characteristic common to legal systems within the group.

Anglo-American or common Law family

 The legal systems in England and America belong to this family.

 One of the most important characteristics in this family is case law
 Decisions taken in court cases were recorded, these dicisions are so
important and form what we call family law

Socialist Family
 Introduction To Law

 The development of these legal systems has been influenced by

11
historical and political elements.
 The law is there to serve social and economic policies in these legal
system, Doctrine of Marxism is common to all these legal systems.

Other Legal Families

Religious Legal Family
 These systems have their origin in religious sources
 Grouping includes Islamic, Hindu, and Jewish legal systems.

Indigenous Legal Family

 This Law consists of the African family
 Unwritten customary laws
 The focus is on the community in these systems.

Hybrid Legal Family

 Hybrid grouping is a mixture of various parts, it is mixed legal
systems and are founded in South Africa, Scotland and Sri Lanka

South African Law is classified as an Hybrid legal system because various

components or legal systems played a role in its development.

Roman Dutch law (forms part of civil law), English Law (forms part of
Common law) , and African Indigenous Law played a role
 Introduction To Law

12

The Main divisions of South African Law

Two of the main divisions of South African Law are Private Law
and Public Law.

Private Law
Private Law deals with the relationship between individual and individual
for example, a husband and wife are the parties of a contract ( their
marriage) and this relationship is governed by private law.

Public Law
Public Law deals with the relationship between the State and the Subject of
the state ( Citizen)

The Divisions of Private Law

Law of persons concerned with persons as subjects of law and as legal
subjects

Family Law concerned with the relationships between spouses,

children’s, guardians and so forth

Law of Personality concerned with personality rights, eg your body,

reputation and so forth

Law of Patrimony Law is concerned with a person and their means, in

other words things people own that can be given a value
in money. Law of Patrimony can be sub divided
 Introduction To Law

 Law of things: moveable’s and immovable’s cars,house.

13
 Law of Succesion: inheritance
 Law of Obligation: can be further divided into Law of
contract, Law of Delict and Unjustified enrichment

The Divisions of Public Law

Public international Law concerned with relations between states

Constitutional Law concerned with the institution of the state

and its organisation, it also governs the
power of the state

Administrative Law Controls the administration of the state

Criminal Law states which acts are crimes and their

penalties

Law of procedure Divided into sub divisions:

 Law of civil procedure, how private law

disputes are brought forward in court
 Law of criminal procedure, process of
someone who is prosecuted tried
 Law of evidence, how evidence must be
presented in court.

Other areas of Law

Mercantile Law not purely public or private law, tax law company
law and so forth

Labour Law has connections with private law and public law,
concerned with the relations of employee and
employer

Conflict of Laws is concerned with which private law system applies

if more than one private law system is involved

Legal Philosophy looks at law from a philosophical point of view

Introduction To Law

14