South African Law: Intro and Sources

Introduction to Law and Sources in South Africa

• Law regulates behavior in society and the behavior of the state towards society.
• Sources of law include the Constitution, legislation, common law, customary law, and case law.
• The Constitution is the supreme law, established post-Apartheid.
• The South African legal system is based on Roman-Dutch law, significantly influenced by English law.
• Roman-Dutch and English law principles are integral to South Africa's common law.
• Law is categorized due to the volume of sources and contents. The focus of this text will be on private law, specifically the law of persons.
• Private law involves delineating interests of individuals.
• Key components of private law include law of persons, family law, property law, and law of personality.
• Public law revolves around the state's authoritative capacity.
• In public law, the state acts as the bearer of authority.

Law of Persons Defined

• Part of objective law regulating the beginning and end of a natural person or legal subject's private-law status.
• Objective law, synonymous with 'national law', is a norm complex allocating juristic capacities like legal capacity, capacity to act, and capacity to litigate.
• Objective law is distinct from law in the subjective sense, which regulates relations between individuals.
• Regulation imperative when subjective rights concern certain objects, requiring acknowledgment of claims by others.
• Four categories of legal objects include:
  • Real (corporeal) things (e.g., buildings, land, vehicles)
  • Acts and performances (conduct)
  • Intellectual property (intangible creations)
  • Personality property (aspects like physical integrity, reputation)
• Subjective right depends on the legal object: real right for a thing, personal right for performance, intellectual property right for patents, etc., and personality right for personality property.
• Private law balances individual subjective rights for a regulated society.
• Each right has a counterpart obligation, forming subject-object and subject-subject relationships.
• The legal subject is central in balancing rights and duties.

Legal Subjects Defined

• A legal subject is the bearer of juristic capacities, subjective rights, and legal duties.
• Two private law categories: natural persons (human beings) and juristic persons.

Natural Persons

• In South African law, every person is a legal subject.
• Historically, Roman law considered slaves as objects, denying legal subjectivity to the severely malformed (monstra) and prisoners of war.
• Such historical examples were not applied in South Africa.
• Slavery was abolished in 1834, and rules against the deformed, prisoners, etc., are not part of South African law.
• Any legal system striving for justice cannot deny legal subjectivity to all persons.

Juristic Persons

• Social entities with an independent right of existence are juristic persons.
• They bear juristic capacities, subjective rights, and obligations, exercised through office bearers.
• Not all entities (educational institutions, businesses, etc.) can function as legal subjects.
• Legal subjectivity requires adherence to common law formalities.
• Juristic persons are divided into 3 categories based on state involvement:
  • Associations needing state permission, such as universities and national business enterprises.
  • Associations require registration, like companies and banks.
  • Associations meeting common-law requirements, such as perpetual succession and striving toward a goal can exist without state intervention.
• The information covered in this publication is limited to the legal rules surrounding natural persons.

Legal Subjectivity Defined

• Concerns the characteristic of being a legal subject in legal intercourse.
• Human beings and juristic persons are active, their functioning in legal intercourse is "legal subjectivity".
• 'Legal subjectivity' describes a natural person's legal subjectivity; "legal personality" describes that of a juristic person.
• Can other entities besides humans and juristic persons have legal subjectivity?
• Germanic law: personal possessions are buried with the deceased to satisfy the deceased's needs even after death, implying the deceased maintains legal subjectivity.
• During middle ages, animals were punished and afforded special protection so the question is raised if the Animals Protection Act 71 of 1962 confers legal subjectivity on animals, but the answer is no.
• Criminalizing cruelty balances individual rights in a civilized society.

Customary Law

• Customary law in South Africa is a source of law, creating potential conflicts among sources and the Constitution protects customary rights as long as they align with the Bill of Rights.
• Legal institutions question whether people retain subjectivity; the ukungena custom is an example of this custom when a married man dies before he can procreate a successor with his wife, one of his relatives will enter into a relationship with her in order to procreate a successor for the deceased.
• The ukuvusa custom, aka 'marriage with the grave' and legal subjectivity, where lobolo is paid for the wife of a young deceased is another example.
• Customs acknowledged can be explained by the fact that the family (or house) or kraal can, as a juristic person, be the bearer of capacities, subjective rights and legal obligations.
• Ultimately, only human beings and juristic persons can have legal subjectivity.

Status Defined

• Status is the sum total of a legal subject's capacities.
• Status is a subject's standing in the legal system, derived from Latin 'stare' (to stand).
• Objective law allocates capacities, and status is determined by the existence/ extent of these.
• Factors affecting capacities include domicile, age, mental disability, and economic impediments.
• Publication limited to private law status, thus focusing on legal capacity, capacity to act, and capacity to litigate.

Legal Capacity Defined

• The juristic capacity vests the individual with legal subjectivity, enabling one to hold offices as a legal subject.
• Although several factors affect a person's status; no person lacks legal subjectivity; it can only be limited.
  • A person under the age of puberty cannot marry
  • A person under the age of 16 cannot be a testator
  • An insolvent person cannot acquire a liquor license
• To Summarise: All persons have legal capacity that is influenced and limited by the factors mentioned above.

Capacity to Act Defined

• It is the juristic capacity to enter into legal transactions.
• Capacity to act determines which juristic acts a legal subject can perform.
• Distinctions include no capacity (infans), limited capacity (minors requiring assistance), and full capacity (adults).

Capacity to Litigate Defined

• Juristic capacity enables one to act as plaintiff, defendant, or respondent in a private-law suit.
• The differentiation made that regards capacity to act applies to the capacity to litigate.
• Categories include:
  • no capacity (infans cannot sue or be sued)
  • limited capacity (minors) require assistance
  • full capacity (adults) unless affected by another factor

Law of Persons and Justice

• In the law of persons, the group is distinguished on domicile, age, gender, mental disability, insolvency and prodigality.
• Differentiation is acknowledged by the law of persons between groups of persons, the question is raised as to how this undermines the principle that all people are equal before the law.
• Justice is not achieved by blindly equating everyone, according to Van der Vyver.
• Justice is served better by differentiating categories of persons for certain purposes, contingent on the relevance of differentiation to the legal purpose.
• The age a child can make a will based on puberty is an example where it would mean that a boy of 13 would not be able to draw up a valid will, while a girl of the same age would be able to do so.

Law of Persons and the Constitution

• South Africa's democracy acknowledges the supremacy of the Constitution and entails the Bill of Rights enshrining fundamental rights which must be respected.
• Includes the democratic values of human dignity, equality, and freedom as well as that everyone needs to has inherent dignity that has to be respected and all people are equal before the law.
• Equality implies the state cannot unfairly discriminate.

Differentiation

• Raises the question on the relationship between the state and the individual.
• The Bill of Rights (Chapter 2 of the Constitution) applies to both relationships, ensuring alignment of law of persons with fundamental rights.
• Provisions on equality and non-discrimination and tension between demands and differentiation, classification in the law of persons are contained in s 9.
• Mentioned in Section 9(3) are the specific grounds which discrimination should not be allowed: race, gender, sex, pregnancy, mental state, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth
• Section 9(3) should be read with s 9(5), where it creates a presumption that discrimination on these grounds is unfair, unless the contrary is established.
• Guidance is provided by The Bill of Rights when there is a decision on whether the discrimination was fair or not.
• Rights may be limited only to the extent that the limitation is reasonable and justifiable.
  • the nature of the right
  • the importance of the purpose of the limitation
  • the nature and extent of the limitation
  • the relation between the limitation and its purpose
  • less restrictive means to achieve the purpose.

Conclusion

• It should be established whether differentiation of people is fair, that is reasonable and justifiable because the differential gender specific marriageable ages should perhaps be scrutinised again.
• Attention should be focused on all the other fundamental rights involved and the paramountcy of children's best interests.