Foundations of Law Semester 1 Notes PDF
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This document provides notes on the foundations of law, covering fundamental principles, philosophers, social contracts, sources of South African law, law and morality, and law and justice. The notes discuss different legal systems and approaches, and explore the relationship between law and various aspects of society.
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FOUNDATIONS OF LAW SEMESTER 1 INTRO TO LAW FUNDAMENTAL PRINCIPLES - Law comprises of a body of rules and regulations facilitating and regulating human interaction - Law is not set in stone: it evolves and is adapted and is not “black or white” - Law presupposes society (because society requires ord...
FOUNDATIONS OF LAW SEMESTER 1 INTRO TO LAW FUNDAMENTAL PRINCIPLES - Law comprises of a body of rules and regulations facilitating and regulating human interaction - Law is not set in stone: it evolves and is adapted and is not “black or white” - Law presupposes society (because society requires order and has a need for structure) and aims to order it - Rules are created, applied, interpreted, and enforced by institutions of the state - Fair, peaceful, productive interaction is made possible by rules - Rule of law: a principle that refers to the fact society is governed by legal rules and adheres to these rules - Legislative authority makes laws —> judicial authority applies laws & other legal principles —> executive authority enforces laws - A sanction (form of punishment, e.g. ne / imprisonment) will be enforced if non-compliance with laws has been demonstrated - Content of law depends on the history of speci c countries, legal development in countries are different PHILOSOPHERS 1. Thomas Hobbes: 17th century English writer, believes people are slaves to desire and his/her own self- interest in his/her original state, believes everyone has to give up his/her desires in order to not destroy one another and to become sustainable 2. John Locke: believed humans are governed by reason and live good, stable lives SOCIAL CONTRACTS - Social contracts: people sacri ce their unlimited freedom (desires, self-interest, etc.) to bring about peaceful co-existence under the law/government/authority, as everyone fears their own destruction - Social contracts are justi cations for the need of the rule of law - Western social contracts: separated individuals in an original position; ctitious agreement between those individuals - African social contracts: communities are a priority; everyone has “ethical relations and obligations”; individuals have obligations to one another (hence, there is no need to pretend that a ctitious contract was entered into with the state) [Ubuntu = umuntu ngumuntu ngabantu: a person is a person because of other persons] SOURCES OF SOUTH AFRICAN RULES AND PRINCIPLES OF LAW 1. The Constitution of the Republic of South Africa (1996) (democratically-elected Constitutional Assembly writes and gives it the force of law; includes the state’s powers and a bill of human rights; all other laws must coincide with what is laid out in the constitution) 2. Legislation (statues, Acts —> laws written by democratically-elected bodies, e.g. Parliament, and have the force of law) 3. Customary law (laws of the First Nation peoples of Africa, a.k.a. African law) 4. Common law (laws inherited from South African colonial heritage) 5. Custom law (practices that develop as law due to continued usage over long periods of time) 6. Case law (decisions by courts) 7. International law (laws usually drafted by agreement between different states) fi fi fi fi fi fi Legal systems re ect the shared values of society and should be based on: Economic values [capitalism, socialism, communism…] Political values [one-party dictatorship (such as totalitarianism or authoritarianism…), democracy, monarchy] Social values [safety, equality] Moral values [conservative, permissive] Ideologies shape one’s understanding of what the law is and what the law should be (many different ones) Democracies should re ect the shared values / beliefs of the majority of the population Legitimacy crisis = individuals in a society lose their belief and con dence in their legal system (example of a legitimacy crisis: people protested against the laws in apartheid) OBJECTIVES OF THE LEGAL SYSTEM - Individuals are aware of their rights and to have access to the legal system - Problems and disputes are dealt with quickly and ef ciently - The legal process involved is not too expensive (accessible) — enables people to have access to justice - The legal system handles problems in a consistent way (certainty, no discrimination) - All persons are given a fair hearing - There is a right of appeal to a higher authority - Disputes are heard by relevant or appropriate bodies that are prepared to process each case with consideration and formality (tribunals, various different courts, etc.) - Trials are conducted according to recognised procedures - Orderly and harmonious social interactions take place between members of society and individuals and the state fl fl fi fi LAW AND MORALITY - The law is a normative system which regulates human conduct by distinguishing good from bad - Norms are rules that regulate human conduct (legal rules are examples of norms) - Normative systems in uencing human conduct: 1. Religion 2. Individual morality 3. Community mores 1. RELIGION - Religion: relationship between an individual and a higher power/being - African religion: source lies in the customs handed down, rituals, objects, and dances - Christianity: source lies in the Bible - Islam: source lies in the Quran - Judaism: source lies in the Torah - Some believe religion and law should be mutually exclusive (secular approach to law) - Some believe religion and law should have the same content (religious states such as Islamic fundamentalist religious states) SIMILARITIES BETWEEN LAW AND RELIGION - Law and religion is studied through the use of authoritative texts - Law and religion have rituals, formalities, and xed procedures - Sanctions for non-compliance with religious norms (e.g. hell) and with law (e.g. nes or imprisonment) - Some legal traditions have Christian in uences (e.g. in Western countries) DIFFERENCES BETWEEN LAW AND RELIGION - The state does not regard all things stated in religious texts as a sin to be a crime (e.g. adultery is a sin in religions, but is not a crime in law) OVERLAPS BETWEEN LAW AND RELIGION - Certain Christian holidays — Christmas, Easter, Good Friday — are given preference by the government - In most religions, murder, fraud, and theft is frowned upon, as with legal rules 2. INDIVIDUAL MORALITY - Individual morality is an individual’s own values and what she/he believes to be right or wrong and bad or good conduct — a private con ict between an individual and his/her conscience - Morality quite often ties with an individual’s religion and will often have the same content as legal rules (e.g. honesty is often something valued for both individual morality and law, theft is not, etc.) - Law will not always enforce individual morality (e.g. some may nd the consumption of alcohol unacceptable, but alcohol consumption is legal) - Sanction for non-compliance: own conscience (e.g. guilt) — sanctions are not enforced by an external source 3. COMMUNITY MORES - Community mores are the norms and collective morals of a whole community/group within a community - Legal rules and community mores can coincide - The law does not necessarily always take cognisance of community mores (e.g. the community may feel as though taxes should be reduced, but the law does not represent the community’s values if it does not re ect these values) - To determine whether socially deviant or unacceptable conduct should be criminalised or regulated, harm is often used to make a decision - The sanction for non-compliance is disapproval / ostracism from other members of the society fl fl fl fi fi fi fl LAW AND JUSTICE - Justice is the ideal of any legal system, usually encompassing equitable and fair treatment (however, there is no precise de nition of what justice is) - Distributive justice is an equal distribution amongst equals (however, if not everyone is equal, not everyone is therefore entitled to equal distribution according to distributive justice) - Corrective justice aims at restoring inequalities - Equality is the emphasis in both distributive justice and corrective justice - Justice has an emphasis on equality - If a law is unjust and is not in accordance with the Constitution, the Constitution must declare it invalid (invalidity is not automatic) - Adjective law (procedural law — the legal rules and processes according to which a court makes a decision or solution — eg. Criminal procedure, what tells you how to detain a person) - Substantive law (material legal rules — does not necessarily coincide with justice: e.g. Group Areas Act 41 of 1950; e.g. Criminal law, which outlines what crime is) The legal process strives towards formal justice in the following respects: —> arises from the principle that like cases must be treated alike (the judicial system of precedent [i.e. court decisions] is the instrument which ensures this) —> criminal procedure regards an accused person as innocent until proven guilty (the process requires both sides be heard, that a person must appear before court within a reasonable time, and that no force or undue in uence may be used to induce an accused to confess to a crime) Judicial precedent is the instrument for like cases being treated alike, and judicial precedent is the evidence that South African courts are striving to legal justice South African procedural law strives towards justice, but law does not always embody justice 2 different jurisprudential (legal philosophical) approaches: 1. LEGAL POSITIVISM - Law is what is and not that what ought to be - Irrelevant whether law is just and fair: morality and law are separated from each other - Law is what is set down in statute books, in rules, and in court decisions - Positivistic approach because only those rules given the positive force of law can be regarded as law - Ius dicere non facere: judges speak the law, but do not create the law - Court’s function is to apply laws, irrespective of whether it is socially, economically, and politically ‘just’ 2. NATURAL LAW - Law is not only what is, but what ought to be - Law has a moral dimension - Legality of laws depends on the moral content of the laws - An unjust law is invalid - Natural lawyers believe if the law con icts with a higher power, the law is invalid - It is called natural law because these norms are found in the harmony and order of nature, in human nature, or in the eternal laws of God - Organised systems of oppression is not advocated for by natural law as it is unmoral fl fi fl LAW AND CERTAINTY - Legal certainty is de ned as the law being predictable, that it will be applied consistently, and that it has a xed and certain content - A large part of the law is xed and certain, aside from language (i.e. interpretation), changing values, and judicial discretion (these 3 factors impact the certainty of law) I. LANGUAGE - Legal rules are written in a language, which must be interpreted — there are varying interpretations of a singular thing as words do not have a xed meaning (de nitions of words recall other words, which in their de nition will refer to other words) - A singular word or phrase can be interpreted in different ways II. CHANGING VALUES - Law must adapt to changing circumstances (community values and technological advancements) to remain effective - This adaption comes about through promulgating new legislation (however, any law inconsistent with the Constitution have no legal validity) - Law often stipulates that judges must decide certain matters based on the “legal convictions of the community” (also referred to as “public policy”) - Problem with judges basing decisions on changing community values is the uncertainty of who and what society comprises of, and it could also allow the judge’s own preferences/prejudices to be passed - The legal convictions of society are given content to with reference to the Constitution of the Republic of South Africa, 1996 III. JUDICIAL DISCRETION - Judges have discretion in applying law through the interpretation of words and norms, which indicates subjective prejudices and attitudes - e.g. some judges are more predisposed to imposing the death penalty than others - The Constitution requires judges to promote the values of equality; freedom; and human dignity The approach of judicial of cers is divided into: 1. Judicial activism Judicial activist judges use discretion creatively in order to interpret the law in order to effect social change 2. Judicial deference Judicial deferential judges use discretion by deferring to the executive or legislature, often allowing them to effect social change - Constitutional dispensation: judges do not merely “speak” the law, they also play a role in “creating” it through their judgements - Constitution contains open-ended values — relatively wide latitude of discretion inevitable - Kriegler J [in S v Makwanyane 1995 (3) SA 391 (CC)] states that constitutional adjudication must be legal — governed by legal text (the Constitution) and performed by lawyers fi fi fi fi fi fi fi CLASSIFICATION OF LAW Law is classi ed into different disciplines and branches (there is no ideal classi cation of the law) The Romans started a tradition of classifying the law into different disciplines Any classi cation of law provides an overview of different divisions/areas of law Classi cation should also display how the law ts together and how it functions Distinction between different branches of law can be quite arti cial Classi cation should not restrict constitutions or laws as they do not “ t in a box” South African law recognises one system of law and that the law is subject to the Constitution Classi cation is important to understand SA’s uncodi ed system South Africa has a SINGLE SYSTEM OF LAW 3 principles for the categorisation / classi cation of positive law: 1. Mode of operation: - Mode of operation: classify the law according to the way in which it operates - Regulative law [law that automatically applies UNLESS the parties make another arrangement. Default law. e.g. interstate succession: if no will has been made and a person dies. e.g. contract of sale: period in between concluding the contract and the item reaching you — in SA, there are laws regulating if the seller/buyer is responsible for responsibility (risk rule)] - Coercive law [applies to all people in all circumstances; cannot be substituted by own arrangements; cannot be changed. E.g. supremacy of constitution: everyone is bound by it, no matter religion, culture, etc.] 2. Issuing body and sphere of validity (state law; non-state law; church law…) 3. Traditional classi cation (SA legal system is classi ed in terms of traditional classi cation of Roman law) fi fi fi fi fi fi fi fi fi fi fi fi fi fi DISTINCTION BETWEEN INTERNATIONAL AND NATIONAL LAW INTERNATIONAL LAW - Rules that primarily regulate the relationships between independent states - Known as the law of nations / public international law - There is no international government that lays down and enforces legal rules for all states - Rules may be created by international custom or by international treaties (conventions) in order for states to regulate certain relations between them if they sign these treaties - These treaties can exist between 2 states (bilateral treaties) or between several (multilateral treaties) - Customary international law is settled practice which states regard as legally binding norms - International law is incorporated into the national legal system of a state - International law applies in SA as long as it’s not in con ict with South African Constitution/legislation - Section 39(1) of the Constitution states that a court must have regard for international law when interpreting the Bill of Rights - International organisations such as the UN and AU lays down rules of international law - International law covers diplomatic relations, air traf c between states, the use of open sea, international principles concerning human rights, the law relating to human warfare (aka humanitarian law), and international criminal law [war crimes, crimes against humanity, genocide, crime of aggression] - If rules of international law are violated, the matter can be heard by the International Court of Justice (ICJ) in the Hague — however, a state cannot be compelled to appear before it - The ICJ is one of the organs of the UN - International Criminal Court (ICC) has the jurisdiction to prosecute and convict persons accused of international crimes - The ICC was established under the ICC Statute (aka the Rome Statute) NATIONAL LAW - National law is the law exclusive to a speci c state - Known as the domestic law - National law of another country is known as foreign law - “Positive law” (objective law) is the whole body of legal rules applied and enforced in South Africa - South African national law is divided into supplementary disciplines, and substantive and procedural law fi fi fl DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW —> substantive and procedural law are interdependent —> the legal system determines content and meaning of different legal rules (substantive) AND prescribes what is to happen when such laws have been violated in order to be settled properly (procedural) —> 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 SUBSTANTIVE LAW - Also called material law - The part of law that determines the content and meaning of different legal rules (legal principles) - Prohibits people from committing criminal offences & determines which acts constitute criminal offences - It determines the content and application of the different rights an individual may have - e.g. substantive law determines how someone can obtain ownership of a motor vehicle - Substantive law is divided into public, private, and commercial law PROCEDURAL LAW - Also called adjectival law (means: accessory to the main as it relies on substantive law [i.e. laws in place]) - Regulates the enforcement of substantive law - It determines the manner in which a case must be practically handled when a legal rule has been violated, what evidence may be admitted to court, terms of sentencing and bail, etc - e.g. procedural law provides the process according to which someone is prosecuted for murder / when someone wants to claim damages, etc. - Procedural law is divided into criminal procedure, civil procedure, law of evidence, legal interpretation DIVISIONS OF PROCEDURAL LAW 1. Law of criminal procedure - Adjectival criminal law — criminal procedure - Prescribes how people accused of committing criminal offences should be prosecuted - The state has to prosecute and punish people who (allegedly) commit criminal offences - Lays down the rules with regard to investigation, process in court, rules and punishment imposed by judges 2. Law of civil procedure - Adjectival private law - Determines the procedure to be followed when an individual wishes to enforce his/her rights against another (e.g. damages) - Documents to initiate the case, the steps to be followed in the trial process, the orders the court can impose - The law of civil procedure determines how such a claim should be instituted — a civil case - Usually private individuals, or a company v private individual, sometimes a state can be involved 3. Law of evidence - Determines how the facts in either a criminal or civil case should be proved - Regulates the manner in which witnesses should lay evidence before the court, and determines what kinds of evidence are inadmissible (regulation and admissibility of evidence) 4. Legal interpretation - To establish the meaning and provisions of law (legislation) — statutory interpretation - Lays out the rules, presumptions, and procedures which must be followed to establish the meaning of the provisions of law of legislation - Determines how legislation must be determined if there is uncertainty/ambiguity DISTINCTION BETWEEN PUBLIC AND PRIVATE AND COMMERCIAL LAW —> the distinction between public and private law can be unrealistic and arti cial —> often the state encroaches upon the area of private law when the state (e.g.) through legislation dictates certain contractual relationships between employer and employee PUBLIC LAW - Determines the content and extent of state authority - Regulates the organisation of the state, the relation between different organs of state and the relation between the state and its subjects - The state acts with state authority in this law - The public law relationship between the state and its subjects is a vertical relationship (thus, unequal) — the state has direct authority over the subject PRIVATE LAW - Regulates the relationships between persons (legal subjects) - It determines the different rights and duties that persons may have towards one another - These rights and duties may nd their origin in contracts, delicts, marriage, or ownership - The state may also be party in the area of private law when it enters a contract with an individual or causes an individual harm (e.g. police brutality) - In these instances, the state does not act with state authority — it is in the same position as any other person — the private law relationship is equal (a horizontal relationship) - It however cannot be said that the relationship between the state and a contractual party is equal and private, as the state is standing in a position of power over the contractual party and the contract may have consequences for the country as a whole - Private law should only be used as a descriptor for subjects that have been classi ed together, e.g. law of persons, family law, law of succession, contract law, delict, and property law - When a person wishes to enforce his/her rights against another in terms of these branches of private law, the provisions of the law of civil procedure apply COMMERCIAL (MERCANTILE) LAW - Embraces numerous branches of law with respect to commerce, trade, and industry - It’s a mixture of public and private law - Some branches are specialised private law (e.g. law of insurance) - Some branches are regulated by the state in the form of legislation, entailing a state-citizen relationship (e.g. tax law) - Commercial law: law of business entities (company law); law of insolvency; labour law; law of insurance; tax law; banking law fi fi fi DIVISIONS OF PUBLIC LAW 1. Constitutional law - The Constitution forms the basis of constitutional law - Constitutional law determines the nature of the state, its constituent organs, and relationships between the different organs of state - Regulates the relationships between different organs of state - Constitutional law divides state authority into 3 branches: 1. The legislature [which promulgates legislation — Parliament] 2. The judiciary [which interprets and applies legal rules — the courts] 3. The executive [which handles governmental affairs, administers the state and executes court orders — the President and the Cabinet] - Chapter 2 of the Constitution contains the Bill of Rights: human rights serve (amongst others) to curtail state authority 2. Administrative law - Controls the administration of the state (how state bodies function) - Determines the way in which the state is to exercise its executive powers through different bodies such as ministers, state departments, and numerous boards - The Constitution and/or legislation gives these state functionaries certain powers to make administrative decisions, which ensures that the government acts in accordance with the law - Rules of administrative law try prevent these bodies from exercising their powers in a prejudicial manner - Aims at preventing the abuse of power by state bodies - Section 33 of the Constitution stipulates everyone has the right to administrative action that must be lawful, reasonable and fair - The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) is a statute passed by Parliament to give effect to the section 33 right — administrative decisions may be reviewed (or invalidated) by a court for a number of reasons, including unlawfulness, procedural unfairness, and unreasonableness - e.g. if a piece of legislation stipulates that 3 government of cials must take a decision and only 1 government of cial made such a decision, the decision can be overturned because it was unlawfully made 3. Criminal law - Determines which acts amount to criminal offences, and also dictates that criminal offences be punished - A criminal offence is an act against the law - The state must prosecute and punish its subjects who have committed criminal offences - Has a relationship with procedural law (more speci cally, the law of criminal procedure): criminal procedure lays down the procedure by which accused persons are brought before the court and tried for the offences, criminal law stipulates what conduct amounts to a crime - Law of criminal procedure determines the manner in which prosecution takes place & punishment is imposed - Criminal law determines which acts amount to criminal offences and how that offence should be punished - Examples of crimes: fraud, rape, theft, murder, driving under the in uence of alcohol, etc. fi fi fl fi DIVISIONS OF PRIVATE LAW 1. Family law - Regulates family relationships (e.g. engagements, cohabitation, surrogacy, marriages, divorces, child custody, etc.) - Matters like: engagement, marriage, civil union, marital property, divorce, and parent-child relationships - [under common law, marriage used to be de ned as the legal union of one man and one woman] 2. Law of persons - Private law regulates relationships between persons —> persons are therefore subjects of private law —> law of persons determines what a person is - The law regards human beings AND entities (e.g. companies) as persons - Determines the juridical status of persons (i.e. the nature of a person’s position in law) - Provides a legal de nition as to what a legal person is - The law that determines what certain persons can or cannot do — what certain status a person has - The legal capacity of natural persons — who can be held liable for their actions (age, insanity, etc.) 3. Law of patrimony - Regulates the relationships between persons with respect to their means (the sum total of a person’s assets and liabilities — the whole estate) Law of patrimony is divided into: I. Law of succession [determines what happens to a person’s estate (things/property) after his/her death; testate succession: one stipulates who’s to inherit one’s estate in a will; in the absence of a will, intestate succession is applicable: determines who inherits the estate if there’s no will] II. Property law [deals with the relationships between persons with respect to things/property; determines the rights persons have with respect to moveable (cars) and immovable (land and buildings) property; regulates the origin, termination, and protection of these rights — e.g. right of ownership; right to property is not just in private law as it is protected in s25 of the Constitution] III. Intellectual property law [governs the relationships between persons with respect to intellectual property; i.e. the creations of human intellect or ingenuity (patents, copyright, trademarks); e.g. inventions, content of literary work and musical compositions, etc.; copyright and rights to patents are rights with respect to intellectual property; intellectual property rights are protected in s25 of the Constitution] IV. Law of obligations [regulates the type of relationship between 2 persons where one person (creditor) has a right against another for performance, and the latter person (debtor) has a corresponding duty to perform — an obligation relationship (contracts and delicts mainly create such obligations)] Law of obligations can be subdivided into contracts, delicts, unjusti ed enrichment: - Law of contract: relationship between persons who reached agreement in terms of which a right and a corresponding duty to a performance came into existence. It prescribes the requirements for conclusion of contracts, and regulates rights and duties created by contracts, as well as the termination of contracts (NB: contracts & agreements can be verbal) - Law of delict: wrongful & culpable acts causing damage to another — obligation to restore the situation through damages/compensation. Types of harm in the law of delict is patrimonial loss (e.g. damage to property); non-patrimonial loss (e.g. pain and suffering caused by a botched surgery); infringement of reputation and dignity; unlawful detainment. The law of delict determines what a delict is (which creates an obligation due to the payment of damages) & regulates the rights and duties which arise from it fi fi fi - Law of unjusti ed enrichment: regulates the relationship where an obligation is created because one person is enriched at the expense of another and there is no legal basis for that enrichment (e.g. making a payment to someone by mistake) - Difference between contracts and delicts: an obligation arises in contracts between the parties because they agreed to it, whereas there is no agreement between parties in delicts AND contracts are not unlawful cases whereas delicts are - Similarity between contracts and delicts: there is an obligation (a party has a duty to perform and there is a party with a right against another for performance) - Difference between criminal law and delicts: punishment to the offender occurs in criminal offences, whereas compensation to the person who suffered damages occurs in delict AND criminal offence is a public-law matter (state prosecutes and punishes the offender) whereas delict is a private-law matter (claim for damages has an interpersonal nature) - Similarities between criminal law and delicts: delicts and criminal law both deal with unlawful conduct; some criminal offences are also delicts (e.g. assault and theft) 4. Rules of customary law - Customary law can fall under law of contract, family law, etc. fi DIVISIONS OF COMMERCIAL LAW 1. Company law - Regulated by the New Companies Act 71 of 2008 - Deals with registration, incorporation, and management of companies 2. Insolvency law - Regulated by Insolvency Act 24 of 1963 - Deals with insolvent estates, bankruptcy, liquidation of companies, and debt review 3. Insurance law - Deals with the regulation of SA insurance industry and requirements, rights, and duties that result from insurance companies 4. Labour law - Regulated by the Basic Conditions of Employment Act 75 of 1997 and Labour Relations Act 66 of 1995 - Concerns the relationship between employers and employees, as well as the conditions of employment 5. Banking law - Regulated by the Banks Act 94 of 1990 and National Credit Act 34 of 2005 - Regulates responsibilities and functioning of banks SUPPLEMENTARY DISCIPLINES 1. PRIVATE INTERNATIONAL LAW (CONFLICT OF LAWS) - Seeks to determine which legal system governs a dispute between persons who act across international boundaries - SA courts sometimes apply laws of other countries, which is applicable when there is some connection between the parties/facts of the case and a foreign legal system - The rules of private international law (con ict of laws) determine which legal system the court must apply for certain cases - Each country has its own rules of private international law (no international set of rules in existence) - In which jurisdiction should the dispute be decided? Which law should be applied? How should a foreign judgement be enforced? 2. LEGAL PHILOSOPHY (JURISPRUDENCE) - Law is analysed from a philosophical perspective - Concerns the questions of what the law is and what the law’s function is/should be - Different perspectives: positivism; natural-law approach; Marxism; critical race theory; feminism - The need for legal reform can be determined through a philosophical evaluation of law as one gains a better understanding of law and acquires a critical approach towards it 3. LEGAL INTERPRETATION - Prescribes how the meaning of statutory provisions is determined - Large sections of substantive law are regulated by legislation - The meaning of different rules of substantive law must be clear in order to enforce its sections - Some general principles of legal interpretation is applied in order to determine the meaning or provisions and clauses in contracts and wills - The rules of legal interpretation are used to apply the rules of substantive law in practice 4. COMPARATIVE LAW (LEGAL COMPARISON) - The study of foreign legal systems - This is done in order to compare other systems to the South African one, and to aid one in nding answers about certain problems - Other countries that have common legal history with SA are analysed to see how they resolve disputes - Many South African statutes are based on foreign counterparts because our legal system shares a common legal history 5. LEGAL HISTORY - Important in an uncodi ed legal system such as the South African one because it forms part of common law, a source of law - Knowledge of legal history creates better understanding of the character of our legal system, which may be necessary when a speci c common-law rule is unclear fi fi fl fi HYBRID LAW DISCIPLINES I. ENVIRONMENTAL LAW - Regulation of use of natural resources, protection for future generations - Spans private and public law rules, as well as international law - Environmental issues, e.g. design and enforcement of legal rules relating to climate change, protecting plans and animals, protecting people from pollution II. EDUCATION LAW - Sets out rights and duties of all involved in SA education system, including the administration of schools and higher education institutions, the functions of school governing bodies, and the duties of the government in respect of providing education III. INFORMATION TECHNOLOGY LAW - Popularly referred to as IT law - Sets out rules relating to the use of the internet, protection of electronic information, electronic agreements, etc. IS CLASSIFICATION REALISTIC? - There are many disciplines that aren’t discussed as they’re considered sub-divisions of larger disciplines, for example: forensic medicine, environmental law, municipal law, media law, military law - New areas of law emerging: cyber law; international criminal law; international trade law - Classi cation can create the perception that different types of law are isolated compartments and does not relate to any other type of law, which is unrealistic and wrong - The transformative Constitution pervades every area of the law - The Constitution creates “blurred lines” between certain types of law that have previously been regarded as “separate” (e.g. public and private law) fi AJUDICATION - Adjudication: process in which a party/parties refers a legal dispute to an impartial arbitrator (e.g. a judge) in order to decide the case in accordance with the applicable law - Rule of law: peaceful institutional resolution of disputes - Rule of law is a key constitutional value - Fundamental principles (s34 of the Constitution): 1. No one is permitted to take the law into their own hands — prohibition against self-help 2. Anyone has the right to challenge the legality of a law or conduct - There is an emphasis on the importance of the independence and impartiality of the judiciary: s34 of the Constitution: “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.” INDEPENDENCE OF THE JUDICIARY - s165(2) of Constitution: “the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour, or prejudice” - s165(3) of Constitution: “no person or organ of state may interfere with the functioning of the courts”. - Prohibition of interference with the functioning or courts, which applies to the organs of state and persons - The word “interfere” relates to the exercise of power - No organ or person of state must exercise power in such a way that it improperly in uence the functioning of courts IMPARTIALITY OF THE JUDICIARY - Impartial refers to a “state of mind or attitude of the court in relation to the issue and the parties in a particular case and connotes the absence of bias” - Absence of bias, prejudice, or preconceived notions about the case (e.g. deeming whether one is guilty or innocent without rst reviewing evidence) - Judges should NOT have any personal relations with any of the parties to the case - Judges should NOT gain anything nancially if a particular party wins/loses a case - Judges are presumed to be impartial - Rebuttal of presumption with cogent or convincing evidence - Judge must recuse him/herself - Recusal: to disqualify or remove oneself as a judge in a proceeding because of a reasonable apprehension of bias —> value judgements: a judge makes a decision based on values (exercise his/her discretion) fi fi fl JURISDICTION - De ned as the competence of a particular court to hear a speci c case - 3 general principles of jurisdiction: type of case, geographical area, whether the case is appearing before a court of rst instance or not Type of case: SA law distinguishes between criminal cases, civil cases, and constitutional matters Criminal cases: court’s jurisdiction determined by the kind of offence and possible sentence. Civil cases: legal disputes where a crime has not been committed. Often private law matters. Arises from disputes in private law, public law, or commercial law cases that are not criminal in nature. Jurisdiction of court determined by the amount being claimed and the nature of the relief sought. Constitutional matters: any issue involving the interpretation, application, or enforcement of the Constitution. e.g. alleged infringements of human rights, someone wants to challenge the constitutionality of an organ of state, someone wants to challenge the constitutionality of legislation. Classi cation of constitutional matters is important as the Magistrate’s Court has no constitutional jurisdiction, thus this court cannot declare invalid conduct and laws that violate the Constitution. Geographical area: for a court to have jurisdiction, there must be a connecting factor between the persons before the court and the court’s jurisdictional area (a person must be domiciled in the area or the crime must have been committed there) Criminal cases: the area where the crime was committed is usually where the accused is tried. Civil cases: the place where the cause of action arose (e.g. where the motor vehicle accident happened) or the defendant’s domicile — generally provides a clue as to which courts could have jurisdiction over the dispute. Constitutional Court (CC) & Supreme Court have jurisdiction in entire geographical area of SA. High Courts: each of the 9 provinces have a seat of the HC. Some provinces have a provincial HC and a local division of the HC [e.g. in the Gauteng province, there is the Gauteng Division, Pretoria (located in Pretoria, jurisdiction covers all of Gauteng, including JHB) and Gauteng Local Division, Johannesburg (located in JHB, jurisdiction restricted to JHB). Thus there are 2 courts that have concurrent jurisdiction in JHB]. HC also goes to small towns or rural areas in its area of jurisdiction — a circuit court. Concurrent jurisdiction only applicable to a certain geographical area. Magistrate’s Courts: separated into regional and district courts. Magistrate’s Courts are divided into regional divisions, which are subdivided into magisterial districts. Regional courts: jurisdiction within a particular regional division. District court: jurisdiction within a particular magisterial district. Court of rst instance: known as court a quo — i.e. this is the rst court where the matter started Can a court hear a case for the rst time? Can a case start in this particular court? Court’s jurisdiction: geographical area and type of case If unsatis ed with the decision of the court of rst instance, there is a possibility of appeal or review Appeal: appeal is lodged when court a quo has allegedly erred in its decision. On appeal: court does not listen to oral evidence about facts of case. Only studies typed record of court a quo, in which all evidence is documented, and listens to arguments by legal representatives. Appeal may be upheld: meaning that decision of court a quo is set aside. Appeal may be dismissed: meaning that decision of court a quo remains in force. Usually, appeals made to courts higher than court of rst instance. fi fi fi fi fi fi fi fi fi fi COURTS AND APPROPRIATE DISPUTE RESOLUTION - Judicial authority in SA vests in the courts (s165 of the Constitution) - Decisions and orders of the courts are binding - Hierarchy of courts — courts are listed in order of authority in s166 JUDICIAL SYSTEM (s166) (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. GENERAL PRINCIPLES OF JURISDICTION - Jurisdiction: the competence of a particular court to hear a speci c case - Types of factors relevant in determining jurisdiction: A) Type of case B) Geographical area C) Whether the case is appearing before a court for the rst time or not A. TYPE OF CASE - Criminal case: appropriate sanction for a criminal offence is punishment by the state — the court’s jurisdiction determines punishment according to the kind of offence and possible sentence. - Civil case: factors in determining jurisdiction are the amount claimed, the nature of the relief sought, and whether it is a speci c performance that has been claimed (only the performance that one party owes another is claimed) or whether damages are claimed in the alternative. - Constitutional matters: Constitutional Court is the highest court in all matters, and deals with any matters involving the interpretation, application, and enforcement of the Constitution. B. GEOGRAPHICAL AREA - Courts have jurisdiction within a speci c geographical area in the country - There must be a connecting factor between the persons before the court and the court’s geographical area - Criminal cases: area where the crime was committed is where the accused is tried - Civil cases: place where the cause of action arose, or the defendant’s domicile is where the case occurs Magistrate’s Court: each province has regional divisions, which has magisterial districts. A Regional Court has jurisdiction in a regional division, and a District Court within a magisterial district. The High Court (HC): each province has its own seat at the High Court. Some provinces have a provincial High Court and a local division of the High Court. The Supreme Court of Appeal (SCA): has jurisdiction within the entire geographical area of SA. Located in Bloemfontein, Free State. The Constitutional Court (CC): has jurisdiction within the entire geographical area of SA. Located in Braamfontein, Johannesburg, Gauteng. fi fi fi fi C. COURTS OF INSTANCE, APPEALS, AND REVIEWS Courts of rst instance: “court a quo”; determines whether a case can “start” in a particular court; each court has its own rules about whether it hears certain matters as a court of rst instance; possibility of appeal or review if one is unhappy with the outcome. Appeal: reconsideration of case on its merits. Question: was the decision right or wrong? Appeal is followed when one of the parties considers that the court a quo’s decision was incorrect, either on the facts or on the law. Appeals are lodged when the court has allegedly erred its decision based on facts provided to it; court only studies the typed record of the court of rst instance in which all evidence is documented and the arguments by the legal representatives are made (i.e. not the evidence regarding the facts of the case); if the appeal is upheld, then the decision of the court of rst instance is set aside; if the appeal is dismissed, the decision of the court of rst instance is kept; appeals are made to a court higher in hierarchy than the court of rst instance. CC is the highest court of appeal in SA. Review: involves a limited rehearing. Question: was the correct procedure followed? Takes place in the case of a possible irregularity in the proceedings (e.g. if judge was biased/if judge did not afford one party a fair opportunity to present their case); the HC automatically reviews heavy sentences made by the MC; applications are brought to the HC; the HC can review decisions of quasi-judicial tribunals. fi fi fi fi fi fi TYPES OF COURTS HIERARCHY OF THE COURT SYSTEM: Magistrates’ Courts —> High Courts —> Supreme Court of Appeal —> Constitutional Court MAGISTRATE’S COURT - The Magistrate’s Courts Act 32 of 1944 creates the powers of the Magistrate’s Court - “Magistrates” = presiding of cers in the Magistrate’s Court - Regional Court has jurisdiction within a regional division - District Court has jurisdiction within a magisterial district - Regional Courts and District Courts function ONLY as courts of rst instance DISTRICT COURTS —> Criminal cases (limited criminal jurisdiction: cannot try offences like murder, rape, compelled rape, treason)(tries less serious offences like theft, drunken driving, assault)(cannot impose a sentence of imprisonment of more than 3 years / a ne of more than R120 000) —> Civil cases (limited civil jurisdiction: no jurisdiction in matters falling within exclusive jurisdiction of HC concerning status matters, mental capacity, and wills)(only hears cases with the amount of claim being less than R200 000)(can hear the matter if the claim is one for speci c performance with damages [R200 000 or less] in the alternative) —> Constitutional matters (only has jurisdiction if an Act of Parliament provides it with jurisdiction)(cannot decide on the constitutionality of any legislation or any conduct of the President: sec 170 of the Constitution) REGIONAL COURTS —> Criminal cases (can try any criminal offence except for treason)(common law: it can impose imprisonment of up to 15 years / a ne not exceeding R600 000)(as master of proceedings, the Director of Public Prosecutions decides in which of the two courts the accused is to be prosecuted)(HC will be used as court of rst instance is the jurisdiction of Regional Court is exceeded)(in cases of rape or murder, life imprisonment can be sentenced)(in cases of drug traf cking and armed robbery, 15—25 years can be imposed) —> Civil cases (can hear matters where the amount of the claim is R200 000—R400 000)(Regional Court’s jurisdiction has now expanded — family matters now heard: involves divorce, maintenance, adoption, and matters relating to custody of minor children, in which it has the same jurisdiction as the HC)(disputes over movable and immovable property between R200 000—R400 000)(no jurisdiction in matters falling within exclusive jurisdiction of HC concerning mental capacity and wills) —> Constitutional matters (only has jurisdiction if an Act of Parliament/legislation provides it with jurisdiction)(cannot decide on the constitutionality of any legislation or any conduct of the President)(same jurisdiction as the District Magistrate’s Courts) Differences between regional and district courts: geographical area of district court is smaller than that of a regional court; each province is divided into a number of regions and each region is subdivided into a number of districts; different jurisdictions concerning types of cases and sentencing jurisdiction fi fi fi fi fi fi fi HIGH COURT Superior Courts Act 10 of 2013 stipulates: High Court is a Superior Court A Judge President heads a division of the High Court (read with s169 of the Constitution) Jurisdiction of HCs is regulated by the Superior Courts Act of 2013 - Other presiding of cers: Deputy Judge President and other judges - Each HC has jurisdiction within a particular provincial area - Has appeal jurisdiction and can function as a court of rst instance For jurisdiction as court of rst instance, usually only 1 judge presides, but the Judge President has the discretion to direct that a case be heard by a maximum of 3 judges Jurisdiction as a court of rst instance in the following cases: —> Criminal cases (charges of treason are always heard by the HC as the court of rst instance)(can try any criminal offence, but usually only tries serious cases in which the possible sentence can be more than 15 years imprisonment or a ne more than R600 000 — only HCs can impose these sentences) —> Civil cases (claims more than R400 000 must be instituted in the HC)(only the HC can hear cases concerning matters of status — e.g. issues of mental capacity, applications for a presumption of death, and matters concerning wills)(Regional Courts and HCs have concurrent jurisdiction in divorce cases)(previously the HC had exclusive jurisdiction in divorce cases, but due to the amendment act, Regional Courts have the capacity to hear these cases) —> Constitutional matters (HC can decide any constitutional matter except that which falls under the exclusive jurisdiction of the CC)(it cannot decide on matters assigned by an Act of Parliament to another court of a similar status to the HC — e.g. one of the special courts)(like the SCA, the HC can declare an Act of Parliament, a provincial Act, an amendment to an Act, or conduct of the President to be unconstitutional, which will only come into force after it has been referred to and con rmed by the CC — referral to the CC is compulsory)(start with the premise that HC has jurisdiction in constitutional matters, except that which falls under the exclusive jurisdiction of CC or the matters assigned by an Act to another court of similar status) —> Appeal and review jurisdiction (the HC can review and hear appeals of criminal and civil cases which were rst heard in the Magistrates’ Courts)(a further appeal can be thereafter made to the SCA)(one can also appeal within a HC against the decision of a single judge to a full bench of the HC, which will generally be 2/3 judges) NB: one cannot challenge a BILL; but one can challenge the constitutionality of a Bill that has been signed in the High Court fi fi fi fi fi fi fi fi SUPREME COURT OF APPEAL Superior Courts Act 10 of 2013 stipulates: The Supreme Court of Appeal is a Superior Court Head of Supreme Court of Appeal is called the President (read with s168 of the Constitution) Generally 5 judges of appeal will hear a matter unless the President deems 3 or more than 5 is necessary - Other presiding of cials: Deputy President and judges of appeal - Has jurisdiction within the entire geographical area of SA - s168 of the Constitution outlines that the SCA functions only as a court of appeal, not as a court of rst instance - In the past, the head of the SCA was the Chief Justice — a title now given to the head of the CC - Hears appeals from the HC - Is the second highest court of appeal - Can appeal a matter from the SCA to the CC (which is the highest court of appeal) —> Criminal and civil cases (can decide all criminal and civil cases on appeal)(second highest court of appeal in such matters)(can impose any sentence and make any order — no limit on its sentences)(its decisions bind all courts below it) —> Constitutional matters (can decide appeals on constitutional matters except matters which only the CC can decide, i.e. the matters which fall within the exclusive jurisdiction of the CC)(it can declare an Act of Parliament, a provincial Act, an amendment to an Act, or conduct of the President to be unconstitutional, which will only come into force after it has been referred to and con rmed by the CC to create binding authority — referral to the CC is compulsory) fi fi fi CONSTITUTIONAL COURT Superior Courts Act 10 of 2013 stipulates: The Supreme Court of Appeal is a Superior Court Head of the Constitutional Court is the Chief Justice (read with s167 of the Constitution) - Apex Court - Decisions made in the CC binds all lower courts - The Chief Justice is also the head of the South African judiciary as a whole - Other members of the court: Deputy Chief Justice, nine other judges - At least 8 judges must hear ANY matter s167(3) of the Constitution states the CC: (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 the Court; and (c) makes the nal decision whether a matter is within its jurisdiction. Meaning of s167(3)(b): - It is the highest court of appeal in SA in all matters (subject to the court granting leave to appeal as outlined above) - Decisions of the CC are nal and binding on all other courts in SA - A decision made by the CC cannot be appealed to any of the courts below it - In the past, the CC only had constitutional jurisdiction s167(4) of the Constitution states that the CC has executive jurisdiction in the following matters: Disputes between organs of state in the national or provincial sphere; Constitutionality of parliamentary or provincial bills after the President or the Premier of a province, respectively, has referred them to the CC, which can happen when the President or a premier refuses to sign a Bill; Constitutionality of a parliamentary or provincial Act after members of the national assembly or a provincial legislature, respectively, have applied to the CC for an order declaring such an Act unconstitutional; Constitutionality of any amendment to the Constitution; Question whether Parliament or the President has failed to ful l a constitutional duty; Certi cation of a provincial constitution. - Exclusive jurisdiction means NO other courts may hear disputes pertaining to the six points listed above - The CC is thus the court of rst instance in these cases - A decision made by the CC cannot be overturned by any courts below it - The CC has the nal say over the unconstitutionality of an Act of Parliament, a provincial Act, or conduct of the President - A declaration of unconstitutionality and invalidity only takes effect once the CC has con rmed it s167(6) of the Constitution makes it possible for a litigant to approach the CC directly without rst approaching any other court (this is called “direct access”). The CC explains that a person who wants to obtain direct access to the CC must make a case for why the interests of justice require it. This application is made by means of notice of motion and supporting af davits. fi fi fi fi fi fi fi fi fi 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. Special divisions of the HC: (1) Labour and Labour Appeal Court; (2) Court for income tax appeals; (3) Commercial Court; (4) Land claims court. Special lower courts: (1) Children’s Court; (2) Maintenance Court; (3) Family Court; (4) Small Claims Court. 1. Chiefs’ and Headmen’s Courts - Civil disputes may be decided by the chief or headman sitting as a court in communities headed by chiefs or headmen - These courts cannot dissolve customary law marriages in terms of the Recognition of Customary Marriages Act 120 of 1998, though it may mediate marital disputes - Minor crimes may be adjudicated - Traditional Courts Bill: indicates the review of traditional courts would be handled by the HC (costly), uniform legislative framework for structure and functioning of traditional courts in line with constitutional values, traditional court system may become obsolete? - Customary law leadership disputes usually settled within the community, otherwise the Traditional Leadership and Governance Framework Act 41 of 2003 provides the dispute must be referred to the provincial house of traditional leaders, otherwise the Premier of the Province could be approached to resolve the dispute in consultation with the parties and the house of traditional leaders, otherwise the dispute goes to the Commission on Traditional Leadership Disputes and Claims 2. Small Claims Court - Established by the Small Claims Court Act 61 of 1984 - Settles disputes concerning small civil claims of not more than R20 000 speedily and inexpensively - Some disputes that fall within the R20 000 limit may still never be heard by a small claims court (e.g. divorce and claims for wrongful imprisonment) - Presiding Of cer: Commissioner - Only natural persons are involved; not juristic persons like companies - Rule of law of evidence is relaxed - Parties are in control of their own cases and no legal representation is allowed - 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 (process is inquisitorial) - No right of appeal against the court’s judgement, but proceedings may be taken on review 3. Children’s Court - Each Magistrate’s Court functions as a Children’s Court within its magisterial district - It investigates matters relating to children (e.g. adoption of children; children whose parents/ guardians cannot be traced; children whose parents/guardians are un t; etc.) - Can make various appropriate orders with respect to these matters - Proceedings are con dential and may not be published without permission 4. Maintenance Court - Each Magistrate’s Court functions as a Maintenance Court within its magisterial district - Some persons (e.g. parents) are legally liable to maintain (support) others (e.g. their children) - If these persons don’t ful l their duties, a complaint can be lodged with court’s maintenance of cer - The maintenance of cer 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 5. Labour Court and Labour Appeal Court - Established in terms of the Labour Relations Act 66 of 1995 - Labour Courts adjudicate labour disputes concerning strikes, retrenchments, and discrimination, etc. - An appeal can proceed from the Labour Court to the Labour Appeal Court - Labour disputes are dealt through ADR before they can go to the Labour Court fi fi fi fi fi fi 6. Land Claims Court - Instituted by the Restitution of Land Rights Act 22 of 1994 - Function is to restore land rights to people who have been dispossessed of such rights due to racial discrimination after 19 June 1913 (Natives Land Act of 1913) - The court can restore the original land, provide alternative state land or award compensation - Usually such cases are rst dealt with by the Commission on Restitution of Land Rights (set up 1995) - If the Commission cannot settle the claim, it is referred to the Land Claims Court - Consists of a President and additional judges as members 7. 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 HCs and Magistrates’ Courts function as Equality Courts if the Minister has designated a presiding of cer in this capacity - A “designation” is made on the basis of training experience, and expertise in the eld of human rights and equality 8. Community Court - Plays an important role in the administration of justice in certain areas - Not politically aligned - Parties voluntarily subject themselves to their jurisdiction - Arbitrators elected by the community resolve disputes in these courts - Sometimes liaise with the police fi fi fi APPROPRIATE (ALTERNATIVE) DISPUTE RESOLUTION [ADR] - Disputes are settled by: the state (courts), people themselves, appropriate (previously: alternative) dispute resolution [negotiation, mediation and conciliation, arbitration] - No one can take the law into their own hands (cannot force a solution onto another) - Agreements may be reached between people without immediately seeking legal settlement Problems experienced by formal litigation: —> litigation and legal representation can be very expensive (especially in civil cases) —> settlement of cases is often a long process —> locations of courts can be far away from where the parties live —> policing is often inadequate, making it impossible to bring the law of criminal procedure into action —> court proceedings can make people who do not understand it feel culturally alienated —> accusatorial (adversarial) process doesn’t always satisfy the parties & makes them feel excluded from the proceedings because the legal representatives take charge of the case (win-lose situation in which one party takes all and the loser gains nothing is not always what the parties want) - The state has attempted to overcome these problems (e.g. by establishing the Small Claims Court) but efforts to establish other courts like a court for a short civil process and family courts were less successful ADR IN SOUTH AFRICA Not necessarily suitable for the resolution of all disputes — litigation in the courts is sometimes inevitable ADR is becoming very popular in SA: there are organisations which specialise in ADR and provide professional services and assistance in this regard, e.g.: AFSA (Arbitration Foundation of Southern Africa) specialises in commercial and international arbitration Association of Arbitrators specialises in construction arbitration Labour disputes are dealt through ADR before they can go to the Labour Court — most large institutions have a bargaining council to resolve labour disputes in this manner; in the cases where no bargaining council exists, the Labour Relations Act has instituted the Commission for Conciliation, Mediation, and Arbitration (CCMA) The function of the CCMA is to attempt to resolve disputes through conciliation, and if unsuccessful, to arbitrate the matter (CCMA does not have power to arbitrate certain disputes —> goes to Labour Court) The principle of ADR has been applied informally for years outside the framework of of cial courts Justice tribunals and makgotla (“people’s courts”) solved disputes according to traditional values and norms, and reconciled parties through an informal process Community Courts have today replaced the people’s courts Community Courts: play an important role in the administration of justice in certain areas, not politically aligned, parties voluntarily subject themselves to their jurisdiction, arbitrators elected by the community resolve disputes in these courts, sometimes liaise with the police APPROPRIATE DISPUTE RESOLUTION - Parties settle disputes themselves / with the help of a third party in Appropriate Dispute Resolution (ADR) - Can be inexpensive and is speedy - Less aggressive than court proceedings and the parties are more at ease - Most common forms of ADR are negotiation, mediation, and arbitration - Advantages: voluntary; the process is informal and speedy (saves time and legal fees); parties determine the date, time, and pace of ADR (impossible to do with court proceedings); con dential, private processes (unlike court proceedings which take place in public) fi fi I. NEGOTIATION - Con icting parties communicate directly with each other to nd a solution that satis es them both - Resolving the dispute through private decision making - Parties themselves are in control of the whole process and the solution is their own (both should win) - No third party involved - Purpose is to nd common ground - Must be serious in their intentions to settle the matter - In more complex situations, the parties may need to have lawyers to negotiate on their behalf II. MEDIATION - Takes place in cases where con icting parties ask a third party, the mediator, to assist them in nding a solution through discussions and negotiations - Negotiation with the aid of a third party - Mediator assists and encourages the parties to reach a solution themselves, does not decide dispute - Mediator usually communicates with the parties individually - Information given by one party to the mediator is con dential and is not communicated to the other party - Mediator assists parties to consider all possible solutions as a go-between — may recommend a solution - Parties themselves try to nd a solution where they both win [like negotiation] - Decision is not left in the hands of a third party [unlike arbitration] - For mediation to be successful, the mediator must be impartial and has to have the trust of the parties - Often used to resolve disputes in the commercial sector and in the world of international politics - Parties can avoid considerable costs and trauma in court cases (e.g. for divorce) by settling their disputes beforehand through mediation III. ARBITRATION - Parties agree to refer dispute to arbitration to resolve the dispute — third person (arbitrator) is appointed - Although the parties can appoint anyone as an arbitrator, the arbitrator will usually be an expert in the particular eld — independent and impartial third party acts as a “private judge” and solves the dispute - Similar to a court process: arbitrator listens to parties; applies applicable legal principles; decides the matter by making an award - The parties are free to agree upon the details of the process as it suits them, and may agree on the parameters within which the arbitrator may give her decision - The parties are compelled to abide by the arbitrator’s decision, which is nal — 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 arbitration agreement between the parties is in writing, it’s governed by the Arbitration Act 42 of 1965 - s28: arbitration awards are nal and binding, and therefore isn’t subject to appeal to the courts - s33: provides for review jurisdiction for courts, where a party believes that there was a material error in the arbitration process - Often used in disputes regarding building contracts, contracts of sale, labour disputes, and disputes between partners - Arbitration may NOT be used for disputes with respect to marriage, status, and criminal matters - Advantages: cheaper than litigation, solves the dispute more speedily, parties have free choice of who the arbitrator may be, parties have a say regarding the nature of the proceedings - Disadvantages: as in court, the resolution implies a win-lose situation fl fi fi fi fi fl fi fi fi fi fi LEGAL TRADITIONS TRADITION - A belief / way of doing things that has existed for a long time - Tradere: “deliver” or “hand down”, which indicates that traditions have been continuously passed down - Implication of traditions is that they need not be tested against an external standard/set of values: positives of this is diversity in different societies, negatives of this is that they are justi ed on the basis that they are inherently worthy of continued adherence and respect when they may undermine basic rights - Indigenous peoples’ traditions have been marginalised by colonialism, globalisation, and oppression - Role of tradition in modern society: politics, religion, communication, identity - Critical questions: should traditions change or stay xed? Are traditions always “correct”? Is tradition inherently good and how is this assessed? LEGAL TRADITIONS - Legal tradition (Merryman): “a set of deeply rooted, historically conditioned attitudes about the nature of the law, about the role of law in the society and the polity, about the proper organisation and operation of the legal system, and about the way the law is or should be made, applied, studied, perfected, and taught.” - Legal traditions: different laws, legal practices, and legal systems applying to particular regions or peoples, developed over time as a result of different in uences - Legal system: an operating set of legal institutions, procedures, and rules of a particular entity (e.g. a sovereign state) - Critical questions: why laws are so different across the world? Why do they change over time? (e.g. some legal systems recognise juries, whereas others have never recognised them and others have abolished them) - Legal traditions are in uenced by social, political, and economic histories of certain states, and how these states view these histories - National legal systems are often classi ed into groups or families, but membership of a group does not mean that institutions, processes and rules are shared - Legal traditions provide a broader context within which one can understand a legal framework SOUTH AFRICAN LEGAL TRADITIONS - 3 important legal traditions of South African legal system: civilian tradition; the common law tradition; the African customary law tradition - The study of modern SA law can be enhanced by an understanding of legal traditions that are relevant to development of this legal system over time, or to put it more simply, that are relevant to its history - Some main legal traditions of the world are relevant to the development of the South African legal system - Comparative law: which legal rules apply to the development of South African law - The South African legal system is a MIXED LEGAL SYSTEM Froneman J identi es 3 legal traditions that play an important role in South Africa’s legal heritage in paragraph 110 of Beadica 231 CC v Trustees, Oregon Trust 2020 5 SA 247 (CC): “A country’s choice of how it conceives its contract law is in uenced by its social, political and economic history, how it views that history and how it chooses to forge its fundamental values into its conception of contract law. This should not be a controversial statement. There are discernible differences in perspective and emphasis in what was, before the Constitution, the two sources of our mixed legal system, the civilian tradition and the English common law tradition. To that mixed legal heritage the Constitution now adds its own overarching objective value system. This must inform not only our views on our mixed common law and civilian heritage, but must embrace also the neglected “third grace” of our legal heritage, namely African customary law and tradition." fi fl fi fl fi fl fi TYPES OF LEGAL TRADITIONS I. Civilian tradition (civil law tradition) - Origins in the West and gained global signi cance/dominance — is a source of SA’s mixed legal system - Civil law tradition is linked to the classi cation of the South African legal system - In the form of Roman-Dutch law, this civil law tradition in uenced SA law from the 17th century onwards - Does NOT make use of juries Brief history - The term “civil” (comes from a latin term, ius civile) is the opposite of criminal — associated with private law as opposed to public law and was the law of the church - Civil law originally devised for citizens of ancient Rome, thus this tradition dates back to ancient Rome - Jurists had started to write on and interpret law in a rigorous, learned manner — focus on rationality - Roman law expanded its in uence throughout Europe and ended up having mass global in uence: colonial and territorial expansions - The in uence of civil law is currently seen in Japan, Korea, many European countries, etc. Observations - Roman law will always retain its character as a model for rational solution of legal con icts (topicality & educational value maintained by Roman lawyers’ problems raised, arguments advanced, solutions found) - Roman law can provide the learning of legal ingenuity - The way in which jurists used Roman legal rules and systems to change and reshape existing law: e.g. naturalisation — how a foreigner becomes accepted as a citizen of a country Local laws of various Italian communities allowed for naturalisation under certain conditions Roman law also had instructions regarding transformation of foreigners into citizens By studying both, ius commune jurists invented theory that explained what naturalisation was and what it required (this theory held that individuals’ adhesion to communities was normally tied to birth & descent) It was therefore by nature that certain people belonged to a polity (to an organised entity such as a state) So therefore, for naturalisation to occur, foreigners needed to change their nature (this could occur if suf cient time had elapsed since the foreigner arrived at the locality & if he could demonstrate that this prolonged residence had in uenced him) Starting from these premises, jurists listed the conditions for naturalisation and the type of proofs that were required, as well as how these could be substituted by legal presumptions They also concluded that different practices followed by various Italian communities were but local manifestations of this common rule Ways that each Italian commune treated naturalisation were different — some communities wanted foreigners to marry locally, others demanded they pay minimum amount of taxation, or forced them to acquire property — but these differences, jurists argued, were inconsequential because all conditions were directed to the same end (they all sought to establish the same thing, namely, that the person requiring naturalisation had changed his nature and was no longer a genuine foreigner) [formation of ius commune through this process] Rogerius - A 12th century Glossator: de ned justice as a constant & perpetual desire to give to each man his due right - Concluded that this was a purposeful choice of word [“desire”] to indicate the intention to dispense justice was suf cient, even if the goal of dispensing it was not achieved —> this establishes the importance of “intent” in legal interactions - Observed that justice contained 3 central mandates: to live justly, not to injure others, and to render to each his own (i.e. to ensure that each person received treatment that he/she deserves) - Commission and omission - Rogerius thus justi ed some of the most basic categories of law still used today - Demonstrated the importance of intention, and clari ed the difference between performing a wrongful act (commission) and failing to do the right thing (omission) fi fl fi fi fl fi fl fi fi fi fl fl fl Core features Jurists writing on and interpreting law in rigorous, learned manner. Hallmark of this scholarship was its focus on rationality, on creating and developing concepts and structure. Glossators, scholars in the Middle Ages, focussed on reading and understanding the Roman texts which had re-emerged. Gloss was brief annotation/note between lines or on margins of text. Glossators tried to harmonise different fragments by demonstrating that what seemed to be contradiction or lack of coherence was not. Gloss also functioned as index, allowed medieval jurists to develop specialised terminology, invent new categories, and suggest new ways of thinking about the law. Many legal systems in uenced by this “rational” tradition adopted codes. A code is a form of legislation which aims at comprehensively dealing with whole areas of law as opposed to “ordinary” legislation, which is more speci c in its scope. Format traditionally was a collection of abstractly- formulated general principles contained in numbered paragraphs, which, in turn, are grouped together in “books” and further sub-divisions. Codes weren’t an invention of civilian tradition. Using codes is not an essential feature of legal systems in uenced by civilian tradition. The role of academic jurists was prominent (due to their contribution to development of this law through writing standard text or commentaries on codes), the role of judges less prominent. Merryman: “the civil law is a law of professors.” What academic jurists did was bring logic & system to what law should be — and in this quest Roman law provided an ideal model for the ius commune. As far as the content of the laws associated with civil law tradition is concerned, certain core concepts arise from this tradition and are of fundamental signi cant for modern SA law and law globally. These include the basic notions of who can bear rights and have duties (concept of the “person”); in respect of what “things” persons could have such powers (namely things of value, such as tangible property including land, and also intangible property such as debts owed by others); and how these rights could be enforced, or what “actions” or “procedures” give effect to them. These concepts can be traced back to Gaius, a Roman jurist of 2nd century AD. Though boundaries between categories were undeveloped in early civil law, these concepts underlie a fundamental distinction between various branches of private law (laws of persons, property, contract, delict, etc.). Individual rights: in civil law tradition a more expansive notion of individual rights, which Glenn calls the “centrality of the person” evolved. This can be ascribed to religious notions that each person is created in the image of a diving being, and here should be valued as an individual. Support within this tradition for recognition of fundamental human rights in reaction to crises that originated within Europe in the twentieth century. Renewal of the study of Roman law brought about the following 1. The renewal of idea of rule of law: that law is the basis of civil order, and; 2. It meant that law’s vocabulary, divisions into which rules were arranged, and the concepts that were used, were to be vocabulary, divisions and concepts of Roman law - And so the study of Roman law, through the work of academic jurists, is the principle event that shapes the birth of civil law tradition - The judge or judicial of cer, by contrast, is only supposed to apply the law WITHOUT having a law- making function (SA law DIFFERS from this — court decisions are binding) - Judges form a professional class, individuals choose speci cally to study to become a judge (SA law DIFFERS from this in terms of paths followed — study a degree, become an attorney/advocate, move up to become a judge) - Judges are actively involved in controlling the legal procedure fl fi fi fl fi fi II. Common law tradition - Origins in the West and gained global signi cance/dominance - Common law tradition: a legal tradition that emerged in England, attaining global in uence - Common law means the law not found in statues or legislation - A source of SA’s mixed legal system - Common law in uencing SA law: based on seventeenth and eighteenth century Roman-Dutch law as well as English law from the nineteenth century onwards - Thus, part of common law is civil law (as it’s Roman-based tradition) - Non-statutory law: the law found in South African cases Brief history - Emerged in England in eleventh cent. during Norman conquest of England (Normans came from Europe) - Civil law did not dominate in England - Common law gradually developed, characterised by the prominent role played by the judiciary - Prominence of judges and their prestige: historical basis — they were particularly close to the sovereign in ful lling both legal and other functions as counsellors of state, only gradually coming to administration of justice - Attained global in uence largely through colonisation - “Common”/shared character of the common law tradition can essentially be ascribed to the role judges played in ensuring the same law was applied across the land, supplanting/assimilating indigenous custom - Civil law in uenced common law: both traditions are products & representatives of ‘Western’ culture Core features Prominent role that precedent or recorded judicial decisions plays as a source of law (contrast with civil law’s “codes”). However, this generalisation is misleading: legalisation also plays a prominent role in common law tradition and judges undoubtedly make law in the civil law tradition. Academic commentary on core doctrines of common law has become important, which means common law does not solely comprise of judge-made law: [common law hands down decision and also typically explains why decision has been made — it’s not to justify position to parties as much as to meet historical need to instruct law students and future barristers. Hence common law judges explain rules and principles of law involved in the decision, often going broader in the discussion. In applying precedent, it’s then necessary to identify from reasons given for decision, which are necessary for decision (ratio decidendi) and those not necessarily required to make the decision (obiter dicta). Ratio thus forms part of “judge-made” rule to be applied in future, while obiter is merely persuasive]. Judge-made law: courts play a leading part in creating new law and give binding pronouncements on true interpretation of statutes passed by legislature (not same authority as parliament). Disputes are litigated in an “adversarial” (or “adversary”) approach, whereby parties present their cases (“ ght it out”) in front of a more passive judge (contrast with civil law, where the judge is more actively involved in resolving disputes). Involvement of laypeople, to varying degrees, as jury members in the judicial process. Jury members perform functions such as nding facts and deciding cases (contrast with civil law, where these functions are ful lled by a judge — judge in Roman times was actually a layperson). Substantive law rules. English law attached great importance to writs, which were documents issued on royal order, indicating to which remedy an aggrieved party may potentially be entitled. Armed with a writ, parties approached the court for a remedy, such as payment of damages. The substantive law the party had to rely on in order to succeed was “hidden” behind the writ (contrast with civil law: from the outset, the principles on which to base a case was identi ed). Writs were in exible: the parallel court [court of Chancery] was created with the power to apply principles of equity to overcome the limitations of common law — exible system with rules allowing discretion. To this day many common law systems still recognise the law of equity as distinct body of law — this however is not the position in SA (equity is supposed to be built into SA law — “Roman-Dutch law is itself inherently an equitable legal system”). fi fl fi fl fl fl fi fi fi fi fl fl III.African customary law and tradition (indigenous tradition) - A neglected “third grace” of SA’s legal heritage - Customary law is a source of South African law - In the South African legal system, it is still sometimes overshadowed by other legal traditions even though this indigenous tradition has been adopted Brief history - Oldest legal tradition (identi cation of when customary/indigenous tradition established itself isn’t known) - Nowadays, virtually no indigenous peoples live purely according to customary tradition, but rather in contexts where it interacts with other traditions (legal pluralism) Observations - Incompatibility, to some at least, of notion of (individual) rights with customary tradition: The law doesn’t protect purely individual interests Obstacles to integrating the concept of rights into customary tradition There’s a focus on community (customary tradition) rather than individual rights (law) - Since customary traditions (generally) have no central institution of the state, they’re technically not laws - Dif culties to be confronted: containing indigenous approach within strict European model of legislation and adjudication (as opposed to community involvement in the process), applying indigenous law to new societal changes and developments, sifting out what is proper customary law and what is colonial accretion - Africa may be seen as a “comparative law laboratory” - Con ict between customary law and Constitution? - Compliance with the Constitution: concept of ubuntu can be seen as a constitutional value in that it requires the respect for the dignity and humanity of others Core features Handed down by “word of mouth” or orally (contrast with other traditions that rely on writing for recording and preservation of law). Customary law has written down, but this is not part of the tradition. Communal nature: it exists because it’s generally known and practiced, as opposed to the written rule that could survive in relative obscurity for centuries. Councils of elders play important roles. Dispute resolution is achieved through informal mechanisms involving the community, its aim is reconciliation (contrast with formal courts of law aimed at adjudicating disputes with reference to speci c written laws). Dif cult to generalise the substance/content of customary laws, but it’s apparent that these laws/ norms bear imprint of very close connection to land on which customary communities depend for their existence (contrast with Western norms in which exclusive ownership of land is practiced). Individuals have limited personal/private assets. “Informality” of family relationships as they’re not regulated by a central authority. Absence of such authority means crimes are dealt with by the community and leaves room for negotiation, as opposed to xed/written punishment. fi fi fl fi fi fi IV. The Constitution - Adds an overarching objective value V. Religious legal traditions (Talmudic, Islamic, Hindu) - The civil law tradition had connections with