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INTRODUCTION

1. WHAT IS LAW
(and why does
it matter)?
Simple definition: Law is the only body
of rules and regulations governing human
conduct that is recognised as binding by
the state and which the state, will if
necessary, enforce.

LAW V Laws

-religion

-morality

-sport

Essential Q = whether the State
considers it binding and enforceable.


Stewart v Botha 2008 (SCA)
What is the Law?
Tony Nicklinson 2008 (SC UK)
Why does it matter?


THE LAW IS INVISIBLY
PRESENT, EVERYWHERE AND
AT ALL TIMES

Pre-birth?
Post-death?
In-between?

Nasciturus Fiction
Registration of Births and Deaths Act 1992
Wills Act 1953
Estate Duty Act 1955

MILLIONS OF LAWS IN-BETWEEN!

2. SA LEGAL SYSTEM

Basic Concepts

1. Branches Government

a) Legislature

= Parliament
= Makes Laws

b) Executive

= President; Ministers;
Administration (civil service); police
= Enforce Laws

c) Judiciary

= Courts
= Interprets & Applies Laws

2. State
= territory and its people over which a
government has control eg: RSA

= State v Accused

3. Jurisdiction
= geographic area
= subject-matter

4. Judicial Terms
= Court of First Instance
= Court of Appeal

5. Appeal v Review
= on the merits
= on the process/procedure

6. Civil v Criminal


SA COURT STRUCTURE
CONSTITUTIONAL COURT



SUPREME COURT OF APPEAL



HIGH COURTS
HC HC HC HC HC HC HC HC HC



MAGISTRATES COURTS
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
.etc


+ Lots Specialist courts
THE SA JUDICIARY (COURT
STRUCTURE)

A) CONSTITUTIONAL COURT
= Johannesburg
= Constitutional + Public Interest (NEW)
= Whole SA
= First instance & appeal

B) SUPREME COURT OF APPEAL
= Bloemfontein
= Civil & Criminal & Constitutional
= Whole SA
= Appeal only

C) HIGH COURTS
= x 9 provincial divisions + 6 local seats
= Civil & Criminal & Constitutional
= Provinces
= First instance & appeal

D) MAGISTRATES COURTS
= 100s
=Regional + District
= Civil & Criminal
= Local areas (municipalities)
= First instance only
The High Court of South Africa consists of the
following Divisions:

(a)Eastern Cape Division, with its main seat in
Grahamstown.

(b) Free State Division, with its main seat in
Bloemfontein.

(c) Gauteng Division, with its main seat in Pretoria.

(d) KwaZulu-Natal Division, with its main seat in
Pietermaritzburg.

(e) Limpopo Division, with its main seat in
Polokwane.

( f ) Mpumalanga Division, with its main seat in
Nelspruit.

(g) Northern Cape Division, with its main seat in
Kimberley.

(h) North West Division, with its main seat in
Mahikeng.

(i) Western Cape Division, with its main seat in
Cape Town.
Superior Courts Act 2013
SPECIALIST COURTS/TRIBUNALS:

Commission for Conciliation,
Mediation & Arbitration; Labour
Appeal Court; Tax Courts;
Water Courts; Land Claims
Tribunal; Competition Tribunal &
Appeal Court; Rental Housing
Tribunal and more.


NB = Small claims court

Civil claims up to R7000!


Magistrates Court
Jurisdiction
LIMITED!

District: Civil & Criminal
Civil: R100 000
Criminal: R120 000 &/or 3 years

Regional: Civil & Criminal
Civil: R100 000 - R300 000
Criminal: R600 000 &/or 15
years (or Life).

Magistrates Court
Jurisdiction
Limited! May NOT hear:

District:
Civil: Sequestration;
Interpretation Wills;
Determination mental capacity;
Divorce.
Criminal: Treason, rape,
murder.

Regional: Civil & Criminal
Civil: As above, but can hear
divorce.
Criminal: Treason.

1. Constitution

2. Legislation

3. Case Law (Judicial
Precedent)

4. Roman-Dutch Law

5. African Customary
Law/Indigenous Law

6. Custom

7. Customary International Law
SOURCES OF SA LAW

1. CONSTITUTION

= Supreme law

= S2: Any law or conduct with it is
invalid.

= Bill of Rights = Cornerstone of
Democracy S7(1)

S39(2): When interpreting any
legislation, and when developing the
common law or customary law, every
court must promote the spirit, purport
and objects of the bill of rights.

= Examples????????????????

Cases:
Soobramoney v Minister Health
K v Minister Safety & Security


2. LEGISLATION

= 100 000s
= two types

i. Original

= authority derives from
Constitution.
= EG: Acts passed by parliament.
= set aside if:
unconstitutional

ii. Delegated

= authority derives from original
legislation.
= EG: regulations passed by
Ministers
= set aside if:
unconstitutional or ultra vires or
unfair administrative action under
Promotion of Administrative Justice
Act 2000
EG UNCONSTITUTIONAL

CHILD CARE ACT 74 OF 1983

17 Qualifications for adoption of
children
A child may be adopted-
(a) by a husband and his wife
jointly;
(b) by a widower or widow or
unmarried or divorced person;
(c) by a married person
whose spouse is the parent of the
child;
(d) by the natural father of a
child born out of wedlock.

Du Toit v Min Welfare 2003 (CC)


EG ULTRA VIRES

Bezuidenhout v Road Accident Fund
2003 (SCA)

Reg 2(1)(d) of regulations promulgated under S26 Road
Accident Fund Act held to be ultra vires.

Section 26(1) of the Act reads:
'The Minister shall or may make regulations in order to
achieve or promote the object of this Act.

Regulation 2(1)(d) provides:
'In the case of any claim for compensation referred to in
section 17(1)(b) of the Act, the Fund shall not be liable to
compensate any third party unless

(d) the motor vehicle concerned (including anything on,
in or attached to it) came into physical contact with
the injured or deceased person concerned or with any
other person, vehicle or object which caused or
contributed to the bodily injury or death concerned.

SCA
[6] Section 17(1) distinguishes between the liability of the
Fund in the case of a claim for compensation where the
identity of the owner or the driver of the vehicle involved
has been established and the case of a claim for
compensation involving an unidentified vehicle. Section 17
creates liability in both cases, '.

The question then is whether reg 2(1)(d) was a valid
exercise of the powers granted by s 26 to the Minister to
make regulations.
Section 17 of the Act reads:

17. Liability of Fund and agents.(1) The Fund or
an agent shall

(a) subject to this Act, in the case of a claim for
compensation under this section arising from
the driving of a motor vehicle where the
identity of the owner or the driver thereof
has been established;

(b) subject to any regulation made under section
26, in the case of a claim for compensation under
this section arising from the driving of a motor
vehicle where the identity of neither the owner
nor the driver thereof has been established,

be obliged to compensate any person for any
loss or damage suffered as a result of any bodily
injury caused by or arising from the negligence or
other wrongful act of the driver or of the owner
of the other motor vehicle
3. Roman-Dutch Law
15-17
th
C Dutch writers, commenting on old
Roman Law, which was law as applied in
Holland when SA a Dutch colony.

4. African Customary Law/Indigenous Law
S211 (3) Final Constitution The courts must
apply customary law when that law is
applicable, subject to the Constitution and
any legislation that specifically deals with
customary law.

5. Custom
Certain + reasonable + long-established +
uniformally observed.

Coutts v Jacobs 1927 EDL
Van Breda v Jacobs 1921 AD

6. Customary International Law
S232 Final Constitution: Customary
international law is law in the Republic unless it
is inconsistent with the Constitution or an Act of
Parliament

Eg: sovereign immunity, non-refoulement.

7. JUDICIAL PRECEDENT

= earlier decisions create binding
precedent because of doctrine stare
decisis (let the decision stand)

Q: are all courts bound by full
judgements of all other courts?

A: NO! Only by ratio decidendi of
higher courts with jurisdiction over
lower court.

a) RATIO DECIDENDI

= The Reason for the Decision
R v Dudley & Stephens 1884 UK

c) OBITER DICTUM

= Incidental Statements
R v Dudley and Stephens
Court
High Court of Justice
(Queen's Bench Division)
Full case name
Her Majesty The Queen v.
Tom Dudley and Edwin
Stephens
Date decided 1884
You are guilty of murder
(decision)

Necessity is not a defence
to a charge of murder when
acting to save own life.
(ratio)

However, necessity may be
a defence to a charge of
murder when acting to save
an innocent third partys life.
(obiter)

Superior Courts Act
2013
S 52 Settlement of conflicting
decisions in civil cases.

Whenever a decision on a question of
law is given by a court of a Division
which is in conflict with a decision on
the same question of law given by a
court of any other Division, the
Minister may submit such conflicting
decisions to the Chief Justice, who
must cause the matter to be argued
before the Constitutional Court or the
Supreme Court of Appeal, as the
case may be, in order to determine
the said question of law for guidance.

So which courts are bound by the
decisions of which other courts?


Principle:

1. CC all other courts

2. SCA all courts (including SCA) except CC

3. HC equal or higher standing in own
province!

4. MC HC own province;

If no judgment own HC, HC other
province.

Full bench trumps single judge; if equal
bench then later in time trumps
earlier in time.

EXAMPLES

Cape High Court decides may kill in defence
of property. One judge.
Who bound?
a) Full bench Cape High Court?
b) Single judge Eastern Cape High Court?
c) Single judge Gauteng High Court?
d) Cape Town magistrate?
e) Gauteng magistrate?

Full bench Eastern Cape High court decides
may not. Who bound?
a) Full bench Cape High Court?
b) Single judge Eastern Cape High Court?
c) Single judge Gauteng High Court?
d) Cape Town magistrate?
e) Gauteng magistrate?


Single judge Limpopo decides may kill in
defence property. Who bound?
a) Full bench Cape High Court?
b) Single judge Eastern Cape High Court?
c) Single judge Gauteng High Court?
d) Cape Town magistrate?
e) Gauteng magistrate?




Citation Of Cases:

Jones v Santam Bpk 2005 (2) SA 502 (SCA)

S v Smith 1999 (1) SACR 600 (C)