CML Study Guide 2 PDF

© 2015 University of South Africa Revised edition 2004 Revised edition 2008 All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria CML1501/1/2016-2022 60159103 InDesign A4 _ 6pc  iii CML1501/1/2016-2022...

© 2015 University of South Africa Revised edition 2004 Revised edition 2008 All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria CML1501/1/2016-2022 60159103 InDesign A4 _ 6pc  iii CML1501/1/2016-2022 Contents Chapter Page HOW TO USE THIS LEARNING MATERIAL iv 1 The South African legal system 1 LEARNING UNIT 1 45 The media and democracy 45 2 The philosophical basis of free speech 46 3 The protection of freedom of speech in South Africa 72 LEARNING UNIT 2 93 The media and the law 93 4 Court reporting 94 5 The disclosure of information 121 6 Diverse statutes that contain restrictions on information 146 7 Copyright 175 LEARNING UNIT 3 201 The media and the consumer 201 8 An introduction to media and the consumer 202 9 Defamation 210 10 Invasion of privacy 243 11 Advertising 260 12 Pornography 290 LEARNING UNIT 4 313 Regulation of the media 313 13 Newspapers and publications 314 14 The regulation of telecommunication and broadcasting 323 LEARNING UNIT 5 365 New media technology and the law 365 15 Introduction 366 16 Privacy and defamation on the Internet 370 17 Censorship on the Internet 381 18 Crime and security on the Internet 386 19 Copyright on the Internet 391 BIBLIOGRAPHY 396  iv How to use this learning material Before you begin to study this subject, it is important that you read this introductory chapter carefully. We have structured the tutorial material in the way that we feel will benefit you most. It is essential that you understand how the learning material has been put together, what method we have used to present the tutorial material, and how the sources and cross-references work. 1 STRUCTURE OF THE LEARNING MATERIAL When you read this learning material you will notice that a large part of the law deals specifically with the press and with journalism. Our history shows us why this is so. Until recently, if someone mentioned “freedom of speech”, we almost always connected it with “freedom of the press”, and restrictions on journalists. However, freedom of speech is not something which is limited to journalists. It should also be seen as the right of the individual. Although a large number of restrictive statutes of Parliament (that is Acts [or laws] which limit what you can do) do regulate (that is control by means of rules) the position regarding both the press and printed matter, there are many restrictions which also apply to individuals. This module aims at fulfilling the needs not only of those who wish to follow a career in journalism, but also of those who are interested in the wider field of general communications. The aim of the first chapter of this learning material is to show you how the legal system in South Africa is made up, and how it func- tions. It is not necessary to study the first chapter for examination purposes. There will be no questions on that chapter in the exami- nation. It is however, extremely important that you read Chapter 1 very attentively, because the information in the rest of the learning material will build on the information in this chapter. Various terms which are explained in this first chapter, will not be explained again in the learning material. The rest of the tutorial material deals with how communication in all its forms is affected by the law (by legal principles) and this aspect links all the chapters in this learning material. This is a very important point for you to remember and although it may seem as if different chapters are not interrelated because communication covers such a wide field, there is nevertheless this one thread which links every portion of the learning material, namely the fact that it sets out the law that applies to communication.  v CML1501/1 We have divided the learning material into a number of different learn- ing units to make it easier for you to understand. Aspects of com- munication law which relate to the same units have been grouped together. The different learning units are as follows: Learning unit 1: The media and democracy Learning unit 2: The media and the law Learning unit 3: The media and the consumer Learning unit 4: Regulation of the media Learning unit 5: New media technology and the law Each learning unit contains a number of chapters. However, each chapter is an independent unit of study. You will find some overlap- ping of information where information is repeated in more than one chapter. 2 LAYOUT OF EACH CHAPTER Although each chapter stands more or less on its own, the same layout or form has been used for each chapter throughout the learn- ing material. At the beginning of each chapter we give you a table of contents for that chapter. This table of contents will give you a detailed outline of the chapter and will show you how the tutorial matter in the chapter has been put together. After the table of contents, we set out the learning outcomes. These outcomes tell you what your aims should be when studying the chap- ter and what you should have learnt by the time you have finished the chapter. A list of all the key terms (phrases) used in the chapter ( some of which are explained in the text) will then be given. In the text of the chapter itself, these terms are printed in bold to draw your attention to them. We then give you a Learning Activity – A Case Study (a practical sit- uation from everyday life). Sometimes this case study will be based on real cases which have been heard by our courts, or which have been heard in other countries. When we use real cases, we some- times change the facts a little to suit what we are dealing with in this learning material. Most of the time, however, the facts are purely hypothetical and are not at all related to any situation which has oc- curred in real life. The reason we use case studies is to show you how the various legal principles being discussed in the chapter, are applied in practice. You will find questions at the end of each case study. Try to answer these questions before you go on to read the chapter. Then study the chapter. You will find as you go through the chapter that we return to the questions and refer to them when we  vi reach the information which provides the answers. Where answers to these questions are given in the text, this is indicated by means of the following icon: There will be a few questions to which we do not provide the answers. We want you to think about these yourselves. At the end of each chapter you will find a heading: Feedback under which we summarise the main problem areas that were discussed in the chapter. The section headed Points to ponder contains a number of questions. These are not questions which necessarily deal with issues that have yet arisen and to which answers can be found by searching through the learning material. More often they relate to ethical (moral) issues for which there are not always definite answers. These are problems which could arise in the future and which our legal system has not yet addressed and solved. We want you to think about them, discuss them with other students and try to determine the implications that would follow from taking various approaches. A section called Learning Activities 2 – Test yourself Questions has been added to each chapter. This sections contains a number of questions relating to the information provided in the specific chapter. These questions should be used after you have studied a specific chapter, to test your ready knowledge and insight into the work. The answers to the questions are not provided, but if necessary, discus- sions of some of the more difficult questions will be provided in tuto- rial letters during the semester. All the questions given come from previous examination papers. The marks that were originally allotted to each question are also provided in brackets immediately after the question. 3 BIBLIOGRAPHY At the end of the learning material we provide a bibliography for each chapter. This bibliography contains a reading list which is related to the subject matter discussed in the particular chapter and which was used when writing the learning material. The function of this reading list is twofold: (1) It is to indicate to you that the works referred to are all the works used in putting together the tutorial material which appears in that particular chapter. However, because there may be only one copy of a particular book available in the library, the material in the reading list is not prescribed and you are not expected to consult it for ex- amination purposes.  vii CML1501/1 (2) It is to indicate to you that you may consult these books. You will notice that certain references in the reading list are marked with an asterisk (*). This shows that there is more than one copy of this work in the library. You may consult these works to gain greater insight into a certain study field, or to make clearer any topics that you do not fully understand. However, these books are neither prescribed nor recommended and therefore consulting them is not compulsory. 4 GENERAL PRESENTATION Throughout the learning material you will find that the following ap- proach has been followed: 4.1 Latin terms Latin terms have been limited to the minimum. Where they do occur, they are, however, so well-known that they have actually become part of the English language, for example terms such as vice versa, et cetera and so forth. We do not explain these terms. If you do not know them, please look them up in a dictionary. Where Latin terms are used that are particular legal terms and usu- ally only used by lawyers, and where no English term with precisely the same meaning is available, we give you the English translation in brackets the first time that we use the term. There are only a few of these terms, but we expect you to know and understand them. 4.2 Quotations from legislation We have tried to limit direct extracts from legislation to the mini- mum. In a few instances, however, we have found it better to give the precise wording of a section of an Act and not to try to give it in our own words. There can be a danger sometimes that in changing the wording of the section, the meaning will be changed. Where this danger exists we have provided the precise wording of the Act. To enable you to determine at a glance which parts are direct quotes, we have placed these sections in a box. Most of the time, however, we have simplified the wording of the Act. You should always remember, however, that the simplified wording can affect the meaning. Therefore, if you encounter legal problems in practice it is always better to consult the legislation itself and de- termine precisely what it says.  viii 4.3 Underlining We have underlined phrases or words in the text where we want to draw your attention to these phrases or words. These are different from key words which are given in bold print. 4.4 Background reading In certain chapters paragraphs have been inserted to provide back- ground information. You should read these paragraphs, but they need not be studied for examination purpose. Where this occurs, it has been clearly indicated immediately after the heading, as well as by means of a grey vertical line on the left-hand side of such paragraphs. 5 GENERAL We have enjoyed writing this learning material and hope that you gain as much pleasure from reading it as we gained from putting it together. We also hope that you will find the case studies interest- ing and fun to work on. By using practical everyday situations we want you to see the enormous impact which legal principles regulat- ing communication have on our lives every day. Do you have anything you would like to bring to our attention? If so, we would like to hear from you. Perhaps you have a comment on the learning material itself. Was there anything you could not understand because it was not clear? Did you notice any factual errors or printing errors? Were there parts of the material that you particularly enjoyed reading? We welcome any feedback from you. It can help us to im- prove future learning materials. We hope that you enjoy your studies in the field of communication law. Prof Deane Department of Criminal and Procedural Law  1 CML1501/1 CHAPTER 1 The South African legal system (This chapter need not be studied for examination purposes. It is however important that you READ this chapter for for background information) LEARNING OUTCOMES KEY TERMS LEARNING ACTIVITY 1.1 1.1 WHY SHOULD I STUDY LAW? 1.2 WHAT IS MEANT BY JURISDICTION? 1.2.1 Exclusive jurisdiction versus concurrent jurisdiction 1.3 THE COURT SYSTEM 1.3.1 Court jurisdiction 1.3.2 The Constitutional Court 1.3.3 Supreme Court of Appeal 1.3.4 High Courts 1.3.5 Magistrates’ Courts 1.3.6 Small claims courts 1.3.7 Various other courts 1.4 SOURCES OF THE LAW 1.4.1 Constitutional law 1.4.1.1 The South African Constitution 1.4.1.2 Provincial constitutions 1.4.1.3 Judicial interpretation 1.4.2 Statutory law 1.4.2.1 The various legislative organs and their jurisdictions 1.4.2.2 How a statute begins 1.4.2.3 Judicial interpretation 1.4.2.4 Where to find statutes 1.4.3 Common law 1.4.3.1 Historical development 1.4.3.2 The role of precedent 1.4.4 Custom 1.5 OTHER WAYS OF CLASSIFYING THE LAW 1.5.1 The distinction between delict and crime 1.5.2 The distinction between contract and delict 1.5.3 Fault” as a standard 1.6 THE JUDICIAL PROCESS 1.6.1 Criminal cases 1.6.2 Civil cases 1.6.3 Appellate procedure 1.6.4 Review 1.6.5 Where to find court decisions FEEDBACK LEARNING ACTIVITY 1.2  2 LEARNING OUTCOMES After you have studied this chapter, you should be able to explain why it is necessary for you to study Communication Law draw a diagram of the court system and indicate the various courts within the hierarchy (You should also be able to indicate on the diagram which courts deal with criminal cases and which with civil cases.) identify all the various sources of law used in this country and indicate how they are interrelated identify and discuss the various steps that are followed when the state prosecutes a wrongdoer for criminal conduct and when a private person claims redress from another differentiate between trial procedure and appeal procedure, as well as between appeal procedure and review procedure KEY TERMS absolution from instance court of first instance accused crime Act criminal case adversary system cross-examine affidavit custom affirm damages appellant default judgment appellate court defendant assessor delict authoritative sources delictual liability beyond reasonable doubt director of public prosecutions bill discovery Bill of Rights dissenting opinion blameworthiness doctrine of precedent breach of contract exclusive jurisdiction burden of proof ex parte application by-law fault circuit court Gazette civil case High Court codification indictment codify in forma pauperis common law intention complainant interdict concurrent jurisdiction judgment by default concurring opinion jurisdiction constitution law reports Constitutional Court legislation constitutional law legislature contracts legislative bodies council for regional services litigant  3 CML1501/1 magistrate’s court provincial legislature majority opinion provincial statute municipality municipal provisional order regulation punishment National Assembly regional court National Council of Provinces respondent natural person reverse negligence review notice of motion separation of powers ordinances settlement organ of state small claims court parallel citations statutes Parliament statutory law plaintiff pleadings strict liability precedent substantive law preponderance of probabilities summons procedural law Supreme Court of Appeal prosecutor trial court provincial constitution witness LEARNING ACTIVITY 1.1–CASE STUDY Techture is a very large corporation which employs over 10 000 people. The company directors decide to establish a corporate peri- odical in order to improve communication between management and the rest of the personnel, as well as between members of personnel themselves. Being an employee of Techture and a final-year commu- nications student, you are appointed as editor of this new in-house journal known as “T-News”. You are instructed to get the journal going as soon as possible, but not to incur additional expenditure for the company. You are expressly warned by the directors to stay within the limits of the law because the company cannot afford to become involved in legal scandals or litigation. Assume for a moment that you are so enthusiastic about this project that you start immediately gathering information that might be of interest to your colleagues. One of the columns in the paper will be headed “Snippets”. In this column you plan to publish short amusing accounts of a personal nature (anecdotes), of things that have hap- pened to people in the company. You do not intend to mention the names of the parties. When the first issue of the journal is published, the “Snippets” column contains a reference to “a burning fire bring- ing heat and glow into the grey and dreary offices of all masculine employees”. A few hours later you receive a phone call from an angry female em- ployee–the only redhead working in the building. She bursts out: “I’ll sue you. You know you are spoiling my good name and intruding on  4 my privacy. You say I’m all cheap stuff, giving everyone a good time. You’d better set it right immediately, or else I’ll take you to court. I’ll ruin you. My uncle is a magistrate and he’ll see to it that you end up in jail. Understand?” You are panic-stricken. What you have been warned against has hap- pened. Can the girl really sue you for such an innocent remark? You don’t have much money and cannot afford an attorney. There must be some way and somewhere you can find the answers to your ques- tions. If she does sue you, how will it all start? What will happen thereafter? In which court will the case be heard? What happens if her uncle does indeed hear the case? He will never listen to your side of the story. And then, will you really have to go to jail? How can you find out? 1.1 WHY SHOULD I STUDY LAW? The law operates daily in the lives of each one of us. This is espe- cially true in the case of people who work in the field of mass com- munication. The whole process of communication affects everyone who is involved in it. It is not difficult to see that friction can readily arise where there is constant interaction between people, and this friction can just as readily give rise to legal issues. Why should a student of communication have a basic knowledge of the aspects of law dealing with communication? We will now try to answer this question. It should also be added that one’s basic knowl- edge of the law changes because the law itself is constantly chang- ing. Therefore this knowledge must be updated from time to time. Knowledge of the law is essential for those who wish to survive the pitfalls faced daily by the communicator. A communicator can make wise decisions and decisions that are not going to have financial im- plications (by costing too much money when he or she is sued, for example, for defamation) only if he or she knows and understands the legal principles that affect his or her daily tasks. The everyday routine of interviewing people, writing newspaper articles, filming newsworthy events, compiling advertising script, selecting music to be broadcast or films to be screened, all contain many pitfalls for those who are not on their guard. A few simple precautions can help one to avoid these pitfalls. A wise communicator finds that “preven- tion is better than cure”, but also knows when it becomes necessary to seek professional help by turning to a competent lawyer. The word “communication” (and all that this means) must be the most important word in the job description of any communicator. To be a success in one’s job, one needs to be able to communicate  5 CML1501/1 clearly and intelligently. To communicate intelligently you require knowledge, and this knowledge includes knowledge of the law. Re- member that the law regulates every aspect of our daily lives. Idealistic communicators, especially those employed by the media, regard themselves as the self-appointed, fierce watchdogs who jeal- ously protect the community’s right to free speech. In this role it is important that they know precisely what they are protecting and when and how to go on the attack. A dog owner will not keep a watchdog who only keeps watch over his food. In the same way, by being irresponsible, the media make themselves easily subject to government control. It is therefore important for the communicator to know what he or she stands for, and what the best methods are for protecting these values. In general the function of the mass media, namely to inform and edu- cate, is a very strong function. Through the media, public opinion is formed and public opinion in turn affects the policies formulated and followed by the legislature. Recent developments in South Af- rica such as the process of democratisation, general elections and the introduction of a new form of government, have highlighted the responsibility carried by the communicator in forming public opin- ion through the media. Such important work can only be done by a responsible communicator who has done his or her homework dili- gently. Knowledge of the law is important for a communicator in his or her daily work, but it can also be regarded as important in itself. A study of the law enables the student to think critically about problems of ethics (morality), human nature and public policy. A student of law is no longer satisfied to be spoon-fed and to accept everything at face value that is presented to him or her. A student of law starts asking questions. A student of law gathers information and evalu- ates it, compares and contrasts various arguments, analyses factual scenarios and applies accepted principles to new situations, while remaining aware of the power of both the written and the spoken word and the damage that can be done by wrong language usage. System, order, logic, and hard work are the steps on the ladder to professional success. We know you are eager to begin immediately with this fascinat- ing field of the law, but to make the most of this learning material, some basic knowledge of the legal system itself is first of all neces- sary. This is what this first chapter is all about. Right from the start you need to remember that law regulates (rules or controls) society. Therefore any change in society, is reflected in the law. However, because changes in the law take longer to put into force, the law is always a little bit behind new developments in society. In its effort  6 to keep up with social change, new legal issues are being consid- ered daily as new cases come before the courts. The law in the field of communication is changing even as you read this learning mate- rial. By the time you get to the last page, it may already be necessary to update the material. It is for this reason that there is not always a clear-cut solution to a legal problem. There is not necessarily either a right answer or a wrong answer. The area of the law cannot always be divided into areas of either white or black. There are many shades of grey in- between where definite answers to problems cannot be given with certainty. Only once a court has given a decision on a specific legal problem, will a definite answer be available. Until such time one of- ten has to speculate on the possible outcome of a hypothetical case. Do not let this frustrate you. See it rather as an opportunity to de- velop your own critical faculty of reasoning. 1.2 WHAT IS MEANT BY JURISDICTION? In order to understand how the court system works , you need to be familiar with the concept of jurisdiction. Although jurisdiction is mentioned here as an aspect (or one side) of the judicial process (i.e. the process relating to the legal system and the judgments made in a court of law), it applies to other areas of government as well. Briefly stated, jurisdiction refers to authority. It indicates the limits of any governmental body’s rights and powers. A governmental body or organ of state can only function within the area of its jurisdiction. How is jurisdiction determined? It is determined by considering the following two aspects of it: (1) the geographical territory within which a governmental body may exercise its legal authority (The jurisdiction of the South African government, for example, is limited to the area which makes up the southern part of Africa and is termed the Republic of South Africa. The South African government cannot make laws for any other territory such as Zimbabwe or Namibia. It cannot enforce the laws of South Af- rica in these countries. In the same way, provincial governments have jurisdiction only in their specific provinces alone.) (2) the subject matter over which a governmental body has legal authority (For example, consider the division between the national gov- ernment and the provincial governments. The jurisdiction of the national government gives it the authority to make treaties with foreign governments, to regulate interprovincial commerce, to coin money, to declare war and to do everything that relates to  7 CML1501/1 the country as a whole. Provincial governments deal with issues which affect their provinces only. These include health services provided by the province, nature conservation in the province and the major roads which run through the province. The extent and limitations of the jurisdiction of the national government and the provincial governments are set out in the Constitution of the Republic of South Africa 108 of 1996 [hereinafter called the Constitution].) 1.2.1 Exclusive jurisdiction versus concurrent jurisdiction Where a certain body is the only one that can use its authority in a certain area, we say that that body has exclusive jurisdiction. The national government, for example, has exclusive jurisdiction to make laws with regard to copyright, which means that provincial legisla- tures are excluded from regulating this area of the law. We sometimes find that the national government will allow provinces to make legislation in the same areas as those that are regulated by the national government so that both the national and the provin- cial governments can then regulate that specific field. The provincial laws are valid and can therefore be enforced unless they conflict with the national law. As long as the two are not contradictory, they will exist side by side. When there is a conflict, national law will prevail. In these areas we say that the national and provincial governments have concurrent jurisdiction. In other words, their jurisdiction runs together. 1.3 THE COURT SYSTEM 1.3.1 Court jurisdiction Jurisdiction can apply to any governmental body. Therefore it is also applicable to the judiciary. Different courts have different jurisdic- tions. In other words certain courts may hear only certain types of legal disputes and/or only disputes which arise within a certain ter- ritory. Courts are furthermore divided into two types, namely trial courts and appellate courts. In trial courts evidence is presented to deter- mine the facts of a case and a decision is reached by applying the law to those facts. A trial court is the court where a lawsuit is intro- duced for the first time. This is why it is called the court of first in- stance. An appellate court is a court which has a higher status than a trial court. Here a judge or a panel of judges determine whether the trial court has made any errors in its application of the law and whether those errors justify changing the trial decision.  8 1.3.2 The Constitutional Court The highest power in this country is the Constitution. In the Consti- tution itself it is written: “The Constitution is the supreme law of the Republic.” Each person and institution within the country is subject to the Constitution. Even Parliament is bound by the Constitution and has only the jurisdiction which the Constitution gives it. The function of the Constitutional Court is to make sure that every person abides by the Constitution. The Constitutional Court is therefore the high- est court in all constitutional matters and exists independently of the other courts. It acts as a trial court as well as an appellate court but its jurisdiction is limited to constitutional matters, which means that it cannot judge disputes which do not deal with constitutional mat- ters. If a question arises on whether a matter is constitutional or not, the Constitutional Court has the final say in this regard. Constitutional matters mean matters which are concerned with the status, powers and functions of the various organs of state in terms of the Constitution. The Constitutional Court will therefore determine whether organs of state have functioned within their jurisdiction, and whether legislation at national and provincial levels, do not perhaps exceed the limits set out in the Constitution. The other courts may also decide on constitutional matters, but the Constitutional Court remains the highest authority to which appeal in this regard is possible. The Constitutional Court consists of 11 members–a President and Deputy President and nine judges. Four of the members must be persons who were judges at the time they were appointed to the Constitutional Court. 1.3.3 Supreme Court of Appeal Before the new Constitution came into operation on 1 February 1997, the Supreme Court of Appeal was generally known as the Appellate Division of the Supreme Court. It is the highest court in the country for matters which are not constitutional, and therefore it has unlimit- ed jurisdiction in the extra-constitutional sphere (i.e. outside the area of constitutional matters). The judge who presides over this court is a Chief Justice and the function of the court is to hear appeals and issues relating to appeals. The Supreme Court of Appeal is situated in Bloemfontein. This court cannot act as trial court. 1.3.4 High Courts High Courts were previously known as the various provincial and lo- cal divisions of the Supreme Court. There is a High Court for each  9 CML1501/1 of the provinces which existed under the old dispensation (before 1993). The more densely populated areas, such as the Witwatersrand and the Durban and coastal areas, have additional High Courts. High Courts act as appellate courts to hear appeals from courts that are lower in the hierarchy (in other words, lower in the levels of impor- tance). They also act as trial courts (courts of first instance) when disputes which involve large amounts of money or crimes which are very serious in nature, are introduced here and not in the lower courts. Where a High Court has acted as trial court, the party in the suit who is not satisfied with the outcome of the case may appeal to the Supreme Court of Appeal. Something that should be kept in mind is the fact that territory is one of the factors used in determining the jurisdiction of the various High Courts. Each High Court’s jurisdiction is limited to a defined area (usually the province in which it is situated). It is, however, possible for a dispute to arise that spreads across provincial borders, in other words, the dispute applies in more than one province. This can hap- pen particularly in the field of communication law. In such a case one of several High Courts can have jurisdiction (concurrent jurisdiction). High Courts are not always housed in a specific town or building. Owing to the great distances in our country and the widely scat- tered population, the practice has arisen of sending judges on circuit. These circuit courts (which are actually High Courts) sit in smaller, more distant places. 1.3.5 Magistrates’ courts These courts have a lower status than the High Courts and have jurisdiction in both criminal and civil cases. (For an explanation of criminal cases and civil cases see 1.6.1 and 1.6.2.) Where criminal jurisdiction is concerned, we distinguish between two kinds of mag- istrates’ courts, namely the magistrates’ courts of a region (regional court) and the magistrate’s court of a district (usually simply called “magistrate’s court”). A regional court has extensive jurisdiction in criminal matters. For example, it may hear rape cases and is empow- ered to impose sentences not exceeding 10 years’ imprisonment or fines not exceeding R40 000. An ordinary magistrate’s court can normally impose a sentence not exceeding 12 months’ imprisonment or a fine not exceeding R4 000. (Each district has a magistrate’s court, while the regional courts are instituted for a region consisting of a number of districts.) There are no regional courts for civil cases. Ordinary magistrates’ courts have jurisdiction in civil cases to hear certain types of cases in respect of which the amount in dispute is normally not more than  10 R100 000. Certain types of cases are excluded from the jurisdiction of magistrates’ courts, for example, divorces. 1.3.6 Small claims courts The small claims courts were instituted in 1985 to assist the par- ties involved in a dispute, to resolve and put an end to their disputes quickly and inexpensively. The person who adjudicates is called a Commissioner for Small Claims. Only natural persons (individuals, not companies) may institute proceedings in this court and no cases may be heard against the state. The procedure is simple: each party is given the opportunity to state its case and to prove it by means of written or oral evidence. The court’s jurisdiction is limited to cer- tain circumscribed situations, where the amount in dispute may not exceed R15 000. No appeal can be lodged against the decision of a small claims court, although review is possible where the High Court is of the opinion that the court has decided a case which falls outside its jurisdiction, or where serious irregularities have occurred during the proceedings. (For an explanation of appeal and review see 1.6.3 and 1.6.4.) 1.3.7 Various other courts Various other courts are instituted in terms of various statutes (Acts of Parliament). These courts normally have exclusive jurisdiction in specialised fields although appeal is normally possible to a High Court or the Supreme Court of Appeal. Such special courts include the Wa- ter Court to hear disputes about water, the Special Court of Income Tax Appeals to deal with disputes between taxpayers and the South African Revenue Service. The party who institutes proceedings (i.e. who starts a lawsuit) has a choice in the selection of an appropriate court. If one now ap- plies the information supplied so far, to the case study given at the beginning of this chapter, it will mean that the red-headed girl may select a court if she goes ahead with her threat to sue you. However, this selection cannot be done at random. In this selection process the jurisdiction of the various courts must be taken into considera- tion. A case dealing with a person’s good name and privacy is not a constitutional matter. This means that the Constitutional Court is not an appropriate court to hear the case. Furthermore, the dispute between the parties must have originated within the territory of the specific court, or the party against whom proceedings are instituted must reside within the territory of the court. The place where Tech- ture is situated or the town where you live will play a vital role in this selection process. If this scene had taken place in Cape Town, the  11 CML1501/1 courts in the Limpopo would definitely not have been willing to hear the case. One last aspect of jurisdiction that must also be kept in mind is that courts lower down in the hierarchy can only hear cases that are less serious in nature or where the amount claimed as damages does not exceed a certain amount. The redhead will therefore have to decide beforehand, what the amount is which she wishes to claim and se- lect either a lower or a higher court accordingly. 1.4 SOURCES OF THE LAW communicator may sometimes find it necessary to try and determine what the law in a particular situation would be. (To give an example: If the girl in the case study wants to sue, she will first have to find out whether the law makes provision that in such circumstances as those given in the case study, damages can be claimed.) In order to do this, one has to consult the correct source where the law can be found. In South Africa it can be quite difficult to know which source to consider, as the law originates from a variety of sources such as constitutions, legislation or statutes, common law and court deci- sions. None of these can be singled out as the one authority from which the legal position in a given case can be determined. They are interlinked and are described all together as the authoritative sources of the law. It is important as a student of communication law, that you should be able to determine where each of these sources fits into the overall structure of the legal system in order to determine the importance of each in relation to the others. These various sources will therefore be discussed in some detail. 1.4.1 Constitutional law A constitution is normally the most fundamental law of a particular country. It provides guidelines for the government, laying down the form, functions, and operating procedures of the government. Con- stitutions typically also determine what the relationship between the government and its subjects should be and it guarantees the people certain basic rights. 1.4.1.1 The South African Constitution The highest law in South Africa is the Constitution of the Republic of South Africa 108 of 1996 (hereinafter called the Constitution). It sets out the structure of this country’s government and explains how it is divided into the executive, legislative and judicial branches of government. The structure, jurisdiction and operation of these three  12 branches and their various institutions are set out in detail. The Constitution furthermore contains a section called the Bill of Rights, which guarantees that certain rights and freedoms will be protected, and provides institutions to see to it that the government does not abuse its powers. This course is mainly concerned with the right to freedom of expression which is guaranteed in section 16 of the Constitution (and which will be discussed in the next chapter). Other rights ( e.g. the right to privacy, a fair trial, information, and so forth) are also relevant, and where necessary these will be referred to although they will not be discussed in detail. We have already said that the provisions in the Constitution are the highest source of authority in our legal hierarchy. All other laws in the country must conform to the Constitution. However, the Consti- tution does not replace these other laws. Instead, it sets the stand- ards which they must strive to meet. All other laws, national as well as provincial should therefore be consistent with the Constitution. The Constitution provides for enforcement by the courts: the Con- stitutional Court, the Supreme Court of Appeal and the High Courts have the power to invalidate legislation (Acts of Parliament included) and administrative acts if they are unconstitutional. Also, the Con- stitution is more difficult to change than other laws. Parliament can usually change other written laws if more than 50 percent of the members of Parliament who are present support the change. This is sometimes called a simple majority. The Constitution needs a much higher percentage vote to change it. To do so, at least two-thirds of the members of Parliament must agree to the changes. Because the rules in the Constitution are more difficult to change, it means that future governments, even those representing other political parties, will also be bound by these rules. 1.4.1.2 Provincial constitutions Besides the national Constitution, each province can also have its own constitution. To a large degree these provincial constitutions take the same form as the national Constitution, but with the one exception, namely that nothing contained in them may contradict the national Constitution. 1.4.1.3 Judicial interpretation One of the problems often experienced with a constitution is the fact that the precise meaning of certain terms may not always be clear. When controversy arises over some action or event, the question arises whether or not the Constitution has been infringed, or the lan- guage in the Constitution makes it unclear whether a certain consti-  13 CML1501/1 tutional provision applies or has been violated, it becomes necessary for the Constitution to be interpreted by some branch of government. This is done by the judiciary. Constitutional law therefore does not refer to the written language of the Constitution alone, but also refers to the interpretation of the Constitution as it is done by the courts. 1.4.2 Statutory law When most people think of the law, they think of statutes. These are the laws passed by legislatures or legislative bodies (law-making bodies). In our legislative hierarchy there are three different tiers or levels of legislative bodies that can all create legislation: (1) Parlia- ment, the highest legislative organ, creates statutes or Acts; (2) the legislatures of the nine provinces create provincial statutes (called ordinances under the old system before 1993); and (3) the various municipal councils create by-laws or regulations. Because Parliament is highest in the hierarchy, the other tiers of government are subordi- nate to Parliament. Therefore, it is not permissible for their laws to be “repugnant” (contrary) to the laws made by Parliament. Parliament, however, may at any time make laws which are contrary to the leg- islation passed by these subordinate bodies. In such cases an Act of Parliament has priority and is binding. 1.4.2.1 The various legislative organs and their jurisdictions Parliament consists of the National Assembly and the National Coun- cil of Provinces. The National Assembly consists of 400 members who have been elected on the basis of proportional representation (i.e. the number of representatives is in proportion to the number of voters). The National Council of Provinces has 90 delegates–10 rep- resentatives from each of the nine provinces. The National Assembly and the National Council of Provinces are responsible for legislation at national level and have exclusive jurisdiction at this level. At provincial level there is a legislature for each province. These prov- inces are Western Cape, Eastern Cape, Northern Cape, KwaZulu- Natal, Free State, North West, Limpopo, Mpumalanga and Gauteng. The jurisdiction of provincial legislatures is limited to the territory of the specific province and to certain matters which affect the prov- ince only, for example, health services provided by the province, nature conservation in the province, major roads running through the province. Certain matters may be regulated by both the provincial legislatures and Parliament, which means that they have concurrent jurisdiction  14 in these areas. These include health services, welfare services, edu- cation, housing, public transport, agriculture, casinos, racing, gam- bling and tourism. Where there is a contradiction between an Act of Parliament and a provincial statute the Act of Parliament will prevail, but only if it ap- plies uniformly in all parts of the country. The third tier of government consists of two components: (1) The councils for regional services (established in terms of the Regional Services Councils Act 109 of 1985) make provision for certain overhead services such as the bulk water and electricity supply, sewerage and fire brigade services, roads and storm- water drainage, transport matters, health services and civil de- fence. Local governments such as city councils or municipalities are represented on these councils for regional services. (2) Municipalities have jurisdiction to deal with local issues and to pass laws in this regard. These local issues include electricity, firefighting, traffic and parking. They are therefore mostly con- cerned with the needs of their specific communities. Each municipality has a municipal council which is both the legis- lature and the executive for that municipality. Laws written by a municipal council are called by-laws (or regulations under the old dis- pensation before 1993). They have to be followed by everyone living in or visiting a local area. By-laws cannot be contradictory to the national Constitution, the provincial constitutions, Acts of Parliament or provincial statutes of that province. 1.4.2.2 How a statute begins All statutes begin as bills. They are introduced to the legislative body concerned, and are then discussed, altered where necessary and finally voted on. After a bill has been passed by the majority of the legislative body, it is formally approved by the chief executive, name- ly the President in the case of national statutes and the different provincial premiers in the case of provincial statutes. When the bill is approved, it is signed formally, and thereafter becomes a statute. 1.4.2.3 Judicial interpretation As is the case with constitutions, the courts also play a role in statu- tory law. The courts have to interpret statutes and have to apply them to specific disputes. Statutory law therefore consists of the actual language of the statutory prohibitions, as well as any interpre-  15 CML1501/1 tations that have already been given by the courts in previous court cases. 1.4.2.4 Where to find statutes Statutes are referred to by means of a “short title” (which is usually supplied at the end of the statute), such as the “Radio Act”, and a number and date such as “3 of 1952”. This reference merely indi- cates that the specific statute was the third one to be approved by the specific legislative body in the year 1952. Statutes dealing with the same subject matter are grouped together alphabetically; they are indexed and printed in bound volumes. These publications are normally in loose-leaf form, so that new pages can easily be inserted and they can be updated continually. Some legal publishers produce annotated publications that make legal research even easier. These publications list, after each statute, references to court rulings that have applied and interpreted the particular statute. In some fields of communication law, the law is almost entirely statutory. For exam- ple, copyright law exists only in the form of a statute. Copyright law is also a field of the law where Parliament has exclusive jurisdiction, meaning that only Parliament may regulate copyright. To research the basic laws on copyright you would have to consult an edition of Parliamentary Acts such as Butterworths consolidated statutes. Look up Copyright in the general index and then turn to the volume indicated. There you can read the actual language of the statutory sections dealing with such aspects of copyright as: works in which copyright may subsist; ownership of copyright; copyright infringe- ment; and exemptions to infringement. At the end of the legislation dealing with copyright you will also find references to specific court decisions which interpret the various sections. 1.4.3 Common law In order to understand South African law it is important to know that much of the law does not appear in statutes (that can be looked up in neatly bound written volumes and that are arranged according to their subject matter). The legal system also relies on unwritten cus- toms that have been handed down from one generation to the next and have through usage become part of our legal inheritance. In le- gal disputes concerning aspects of this “customary law”, the courts have to resolve the disputes, without any guidance from statutes, by interpreting and applying the unwritten rules that have come to be accepted. Where “customary law” is generally accepted throughout the country, and where its content is well established and is known and recognised by everyone, it is known as common law.  16 Common law therefore refers to that part of our law that we have inherited through tradition, and that applies to the entire population of the country, but which cannot be found in legislation. It is found in the books of legal writers who have annotated the history and devel- opment of the various rules that apply, and is furthermore explained and interpreted by the courts. 1.4.3.1 Historical development It is sometimes said that the common law of South Africa is what we call “Roman-Dutch Law”. This statement is not absolutely cor- rect, although it does indicate two important components of our law, namely Roman law and Dutch law. (a) The Roman Period (753 BC–AD 568) The part of our law that comes from Roman law had its beginnings in the fifth century before Christ, in the city state of Rome, where the elementary legal rules were written down in a simple form and were called the “Twelve Tables”. This primitive system in which law could scarcely be distin- guished from religion developed through custom, through the writ- ings of lawyers who treated and developed the law scientifically, and later through legislation by the various national assemblies. The end result was a highly sophisticated and very practical system, reaching the peak of its development during the reign of Augustus (from 27 BC). After what was called the Golden Age, the enactments, writings and commentaries increased to such a degree, that the written legal material became unmanageable because of its very volume. For this reason attempts were often made during the following centuries to set down the law systematically, or, in other words, to codify it. It was Iustinianus (AD 527-565) who, in order to provide legal certain- ty, brought about a successful and lasting codification of the existing legal rules of his time. This codification was called the Corpus Iuris Civilis. Large portions of this Corpus Iuris Civilis remained intact for centuries, whether in the original text or in the form of later revised copies. This codification forms an important basis for many of our legal principles of today and in present-day court decisions reference is frequently made to Roman legal principles as set out in this monu- mental work. (b) The subsequent history of the Roman law, until AD 1500 By the time the Justinian codification came into existence the Roman Empire was already in a process of collapse. Germanic tribes and other hostile tribes were attacking the Roman Empire and the Empire gradually disintegrated. The result of this was that the Empire was  17 CML1501/1 divided in two–a Western Empire and an Eastern Empire. The fall of the Roman Empire, first in the West and later in the East, did not, however, result in the destruction of Roman law. The Germanic tribes had their own law, which differed to a certain extent among the tribes. When they came into contact with the Romans they began to be influenced by the system of Roman law. They noticed that Roman law had fairer and more definite principles than their Germanic customary law. Gradually the two systems of law joined together into another form of customary law in which Roman influence was noticeable. The extent to which Roman law influenced the already existing Germanic customary law depended on the circumstances of each case. This process of change in the law was an evolutionary one–it was a natural development and was also influenced by the rise of Christianity in Europe. Relationships in the Christian Church were regulated, mainly by Roman law, although Germanic influence increased gradually. During the early Middle Ages the use of the Corpus Iuris Civilis nearly stopped. At the end of the 11th century, however, it was “rediscov- ered”, when the rise of universities in Europe led to a renewed sci- entific interest in Roman law. Gradually, Roman law began to spread through Western Europe until it became the common law of Europe. The main reason for this was that the increase in commerce between states made it necessary to have legal uniformity ( i.e. the same law in all states). How much Roman law was adopted and fused with the existing law, differed from state to state. In the German states, for example, Ro- man law was accepted in its totality by means of legislation. In the Netherlands, it was received informally, that is legal writers merely referred to Roman law in their writings as if it formed part of the law of the Netherlands. In Scotland, Roman law was not received openly or in a recognisable form, but found its way unnoticed into the na- tional law. It must also be pointed out that although Roman law was studied in England, and to a certain extent influenced English law, England did not adopt many of the Roman law principles. (c) The Roman-Dutch period (1500–1809) Until 1795, the province of Holland was a sovereign independent state. Together with the other territories of the Netherlands, it was organised into a fairly free commonwealth of nations known as the Republiek der Vereenigde Nederlanden (Republic of the United Netherlands). It was originally a rural territory, but the rapid speed of development during the 15th century changed it into a trading cen- tre. The old Germanic customary law was no longer able to settle the disputes which arose in everyday trade, and the Dutch turned to the  18 more advanced Roman law. They took it over and changed it to suit their lives, to such an extent that at the beginning of the 17th cen- tury, the great Dutch jurist Hugo de Groot (Grotius) could describe this fusion (or joining together) of Dutch and Roman principles as a “new” legal system with its own contents. This was how Roman- Dutch Law began. It was later to form the basis of our present com- mon law in South Africa in a form that had been expanded by what were called the placaaten which was the legislation of that period. (d) The development of a South African legal system (1652 until today) When Jan van Riebeeck came to the Cape in 1652, he brought his language, religion and traditions with him. He also brought Roman- Dutch Law. The Council of Justice which was established in 1656 as the highest court in the Cape, applied Roman-Dutch Law. Britain conquered the Cape in 1806 and throughout the 19th and early 20th century a number of English legal principles were intro- duced into our law. English influence was generally felt most strongly in the fields of criminal law, procedure and evidence, and mercan- tile law ( e.g. insurance, agency, company law, trademarks, patents, copyright, and so forth). Roman-Dutch Law was strongest in areas of law such as the law of things, of marriage and of succession. Because of this fusing (or joining) of Roman-Dutch Law and English law, our present legal system can no longer be described as purely Roman-Dutch Law. It is a unique form of South African law. However, the development of the law never stops. New legislation, new interpretations of exist- ing principles and especially the (possible) acceptance of principles applicable in black customary law will lead to further growth so that the common law of the 21st century will in all probability differ con- siderably from the common law of the previous centuries. Some areas of communication law are regulated almost entirely by common-law principles, for example our law dealing with the pro- tection of the reputations and privacy of individuals. In these cases the legal rules have been handed down from generation to genera- tion, and have been further interpreted and explained by the judiciary while they decided individual cases and attempted to reach fair con- clusions. All of this has been done by the judiciary without reference to relevant statutes. The fact that the girl in the case study at the beginning of the chap- ter referred to her good name and her privacy, immediately places her problem within the area of common law. To determine whether she has a basis for her claim, and whether she can indeed sue you, you  19 CML1501/1 will have to consult common law. Common law provides the rules. However, these rules still have to be interpreted and applied to given factual situations. This function is fulfilled by the courts and here the so-called “doctrine of precedent” plays a role. 1.4.3.2 The role of precedent “Precedent” refers to an action or event that has already happened and which can be consulted as an example of what should be done in the present situation. This is how common law develops. Without precedent, common law would be merely an ungovernable mass of customs and traditions. With precedent, previous court decisions provide reliable guidelines to determine what the law in a given situ- ation should be. According to the doctrine of precedent, a given judicial decision serves as a precedent, or model, for future cases with identical or similar facts, but between entirely different parties. Courts have to follow the precedent of an earlier case. However, an exception is made where the facts of the new case differ greatly from the previous one and then a new approach is required and is allowed. This system has two advantages. First, legal certainty is promoted. If a particular decision was reached in a specific case in the past, le- gal practitioners and the parties concerned may accept that a similar decision will be arrived at in the present in a case with similar cir- cumstances. This prevents unnecessary litigation ( i.e. legal process) as parties can predict the decision of the court. A second advantage is that, in this way, the law can be tested on the basis of practical experience. In practice the doctrine works as follows: A judicial decision cre- ates a precedent that is binding on the court that handed down the original decision and on other courts which are lower in the judicial hierarchy. It does not matter whether or not the lower courts are within the same jurisdictional area as the court that handed down the decision; the decision is binding on all of them. A decision of a High Court in a specific province is binding on all lower courts throughout the country (that means in other provinces as well). Furthermore, it binds the same High Court when future cases come before that High Court. The High Court may, however, overrule the previous decision if it considers it to be clearly incorrect. A High Court decision of one province will, however, not bind a High Court of another province. It can influence another High Court by serving as persuasive authority for that court but it cannot serve as a binding precedent. The different High Courts may sometimes give decisions that con- tradict one another. Unless the Supreme Court of Appeal chooses to  20 rule on the matter, and until it does so, the decisions of the respec- tive High Courts are binding on courts within their provincial areas. Although the doctrine of precedent was created for purposes of com- mon law and is vital to the understanding and preservation of com- mon law, it is important to note here that the same principle of prec- edent also applies to court rulings that interpret constitutions and statutes. In other words, the doctrine of precedent is followed in all judicial cases. The whole procedure can be summarised in the form of a table: Constitutional Court (highest court in the country for all matters) (plays a limited role (binds all other courts) role where constitutional matters are not involved) Supreme Court of Appeal (bound by own decision unless convinced decision was incorrect) High Court Regional Court Magistrates’ Court 1 Judgment of 1 Bound by Supreme 1 Bound by Supreme Court of Court of Appeal judgments of Appeal and High and High Courts of all High Courts, Court of same all provinces Supreme Court province binds 2 Bound by of Appeal (and that court Constitutional Constitutional Court 2 One High Court Court in in constitutional not bound by constitutional matters) decision of matters 2 In the event of another, but conflict between has persuasive judgments of authority High Courts, the 3 In constitutional judgment of High matters also Court in same bound by province must be Constitutional followed Court. 3 Magistrates are generally not bound by decisions of other magistrates (decisions not reported) In this course we are interested mainly in court interpretations of aspects of communication law and in court interpretations of sec- tion 16 of our Constitution. It is important that you keep in mind that when we are dealing with the Constitution, the Constitutional Court is still higher in the hierarchy than the Supreme Court of Appeal. Court rulings from the Supreme Court of Appeal and the Constitu-  21 CML1501/1 tional Court are therefore especially important, because they provide binding precedent for all other courts in the country. To summarise: the Constitutional Court decisions and Supreme Court of Appeal decisions are of the utmost importance: the Constitutional Court decisions for constitutional issues and the Supreme Court of Appeal decisions in all other cases which do not concern constitu- tional issues. Where, however, one of these courts has not handed down a decision on a specific aspect of the law, the best authority available will then be found in the rulings of lower courts. Lawyers are trained to use precedents in order to support their argu- ments on behalf of their clients. Two opposing sides in the litigation process may sometimes each cite a different case from the past as binding precedent. Obviously the facts of two different cases can never be exactly the same. It is then the function of the judge to de- termine which of the cases cited as precedent (from the past) is the most similar to the case being heard at that stage. In those rare instances where a court regards its previous decision as incorrect, it may overrule its own precedent and establish a new rule for the future. If this occurred too often, legal stability would be endangered. Therefore a court would be more likely to sidestep the problem by determining that the case before it could not be deter- mined on the same basis as a previous case, because the facts were not precisely the same and therefore required a separate ruling. At this stage you ought to have grasped the importance of consulting court decisions. It is not enough merely to know that a certain prob- lem, such as the one contained in the case study we gave you at the beginning of the chapter, falls under common law. You also have to be able to find judicial authority to give validity to your interpretation of the theoretical rules of common law. Have a look at the case study once again. The problem here concerns a person’s good name and privacy. These aspects will be discussed in detail in chapters 9 and 10 but in the meantime the following can be mentioned: (1) To determine whether one has a right to a good name and priva- cy, common law and the Constitution will have to be consulted. (2) The Constitution will tell us whether such a right (if it exists) must be respected only by the state or whether it must also be respected by other private individuals. (3) Common law will provide the rules to explain if, and when, such a right is violated. (4) Previous judicial decisions (precedent) will give an indication of whether the publication in the “Snippets” column does indeed refer to the redhead in such a way that it infringes her good name and privacy.  22 In this way the doctrine of precedent plays a role in helping us un- derstand the rules of common law (as well as those of statutory law) and in predicting how these rules will be applied in a new situation which has not yet been heard in our courts. 1.4.4 Custom In primitive societies all conduct was regulated by custom that had been observed by the tribe for a period of time, and was therefore held binding on the whole community. In other words, if people had acted in a particular way for some time, they were bound to act in that way in the future. As a source of law in present times, however, a custom that is practised in a specific area is relatively unimportant. In modern communities where the rate of development is rapid, there is less opportunity for a custom to develop into law. Once the need for a particular legal rule arises, the legislature simply steps in and lays down such a rule in some legal form or other. Yet even today, custom may still develop into law. The case of Van Breda v Jacobs 1921 AD 330 provides a good ex- ample of a custom which obtained the force of law. In this case the court recognised as law, a certain custom among fishermen in False Bay. According to this custom, the group of fishermen who sighted a shoal of fish first (usually from a hilltop) had the right to catch it and not the group that reached the shoal first. Under common law, the person who catches a fish first becomes the owner of the fish. What, then, are the requirements for a custom to be recognised as law? There are four requirements: (1) It must be reasonable. In the Van Breda case the custom was held to be reasonable as it prevented disputes among fishermen. (2) It must have been established for some time. This would de- pend on the circumstances–in the Van Breda case 45 years were held to be sufficient. (3) The contents of the customary rule must be certain and clear– one cannot enforce a custom that is so vague that no-one knows quite what it is. (4) It must be generally recognised and observed by the communi- ty. In other words, the group to whom it allegedly applies must recognise that it binds their behaviour. Where a custom is regarded as a legal rule, the rule will apply only to the territory where the custom is recognised, and not to the whole of the country. However, if a custom becomes so widely recognised that everyone in the country knows and applies it, the next step will follow, namely it will become common law. We have said before that common law is generally speaking customary law that is recog- nised and observed by all the inhabitants of the country.  23 CML1501/1 1.5 OTHER WAYS OF CLASSIFYING THE LAW The law in South Africa is not only classified in accordance with the various sources from which it originates, but it may also be classi- fied on the basis of the following: its purpose; the subject matter it covers; or the characteristic way in which it operates. A schematic outline of the division of law according to the subject matter covered in each case is given below. Some of the areas of the law mentioned in this schematic outline are often confused with one another and therefore require a more de- tailed discussion. A brief discussion of the distinction between delict and crime follows (also referred to as the law of delict and criminal law) and the distinction between contract and delict (also called law of contract and law of delict). 1.5.1 The distinction between delict and crime (Another term commonly used in South Africa for delict is “unlaw- ful act”. You will come across the term “tort” in English law, but in South Africa the correct term to be used is “delict”.) Delict and crime both concern situations where a wrongdoer causes harm or damage to another person. The distinction between the two is based primarily on whether the wrongdoer in each case is held accountable to a private, injured party (delict) or to the society as a whole (crime). Delict is therefore regarded as private law, the law un- der which harmed individuals and companies can sue other individu- als and companies in order to obtain some kind of legal remedy. The party considered to be injured, uses the judicial process and private law to obtain legal relief directly from the alleged wrongdoer. The  24 relief sought is usually compensation in the form of money (called damages). In most private-law cases, the burden of proof that applies is de- scribed as “a preponderance of probabilities”. This means that the party who sues must present evidence that outweighs that of the opposition. Otherwise he or she will not win the case. The evidence does not have to be overwhelmingly convincing. It just has to be more convincing than the evidence of the other side. In the case of crimes, the government prosecutes the accused cul- prits on behalf of the general public. The wrongdoer disturbs the public order and therefore the immediate purpose of the prosecution is to impose punishment, and not to compensate the injured party. The punishment is usually a fine, some time in prison, or community service. The burden of proof in the case of crimes is much tougher. In order to win a conviction, the government must prove that the accused person is guilty “beyond a reasonable doubt”. In other words, the evidence of guilt must be totally convincing. In the case of communication law, the legal rules that protect a per- son’s reputation or privacy are contained mainly under private law. In given circumstances an injured person can claim monetary compen- sation (damages) from parties who spread either degrading informa- tion or very private information. In contrast, we find that the legal rules which regulate the publishing of information regarding defence and security matters are contained mainly under criminal law. The Defence Department does not seek to sue someone who is accused of espionage and claim damages for this; it is rather the prosecutor who seeks punishment on behalf of all the inhabitants of the country. Very often unlawful conduct constitutes both a delict and a crime. For example the “peeping Tom”, who we all know is a person who watches another person doing something private (.e.g. undressing) can be sued for compensation because of invasion of privacy. At the same time, however, the conduct is also criminal and the state may prosecute for crimen iniuria and fine the culprit. (Such fines are paid to the state and not to the injured party.) There are also crimes which never result in delictual liability, in other words a private individual cannot sue in such a case and claim damages for harm that has been done by the wrongdoer to the victim personally. The harm is always directed at the broader community or the state. Consider, for example, crimes such as treason or espionage. There the wrongdoer intends to disrupt or overthrow the state, and not to harm a specific individual. The most important differences between crimes and delicts can be  25 CML1501/1 summarised as follows: Crimes Delicts Form part of public law. Concern Form part of private law. Concern the relationship between state and the relationship between individuals subject. (subjects) among themselves. Directed against public interests Directed against private interests Apply only where there is a legal rule Apply in the case of any damage which provides that certain conduct caused in a wrongful and is criminal and should be punished. blameworthy manner regardless of whether or not there is a legal rule that prohibits it. State prosecutes Private party institutes action Parties involved in court proceedings Parties involved in court are prosecutor, accused and proceedings are plaintiff, defendant witnesses. and witnesses. Result in the imposition of Result in the wrongdoer being punishment by the state. Fines are ordered to pay damages to the paid to state. injured party. State prosecutes perpetrator Injured party can choose whether irrespective of the desires of an or not he or she wishes to claim injured party. damages. Trial governed by rules of criminal Trial governed by rules of civil procedure. procedure. The terms which you have not yet encountered and which are men- tioned in the above columns, will be explained in the section: 1.6 THE JUDICIAL PROCESS which follows later in the chapter. At this stage we can again have a quick look at our case study. Invasion of privacy and the degrading of another person can be regarded as both delict and crime. Criminal proceedings will nor- mally be instituted only in more serious circumstances. The red- head has the choice of deciding whether she wishes to institute criminal or civil (delictual) proceedings. If she selects criminal proceedings, she must keep in mind that only the more serious cases are regarded as crimes. Should the redhead decide to make use of criminal proceedings, she will have to report to the police, and even where this is done, there is no way in which she can ensure that the wrongdoer will be brought to justice. Criminal proceedings only end in court if the police are successful in gathering enough evidence to create a reasonable pos- sibility that the culprit can be found guilty (see paragraph 1.6.1 deal- ing with criminal cases in this regard). Where enough evidence is not available, it will be a waste of time and money to go ahead with the court proceedings.  26 Where criminal proceedings have been instituted there is a risk of a jail sentence or a fine for you as the offender if you are found guilty. If the girl decides on a claim in delict which would be a civil proceed- ing, you run the risk of being liable for damages, but you cannot end up in jail. 1.5.2 The distinction between contract and delict Within the division of private law itself, there is another fundamental division: the division between contracts and delicts. This distinction is made because the source of the rights and obligations involved differs in the two cases. In the case of a contract, people enter into a voluntary agreement in which they promise to act in a certain way in certain circumstances. Their rights and obligations arise from this agreement. As a result of the agreement certain expectations are created which did not exist before the agreement was concluded. The function of contract law is to enforce these expectations if one of the parties does not fulfil his part of the bargain. For example, a freelance photographer undertakes to provide a spe- cific newspaper with pictures of a gruesome accident the photogra- pher has witnessed, in exchange for payment of a certain amount of money. The court can now enforce the terms of the agreement. If the photographer provides the photographs and the newspaper refuses to pay the amount agreed on, the photographer may sue for breach of contract. The amount claimed will normally be the amount agreed on, but in certain circumstances damages may also be involved. Al- though we will not deal with contracts specifically in this course, contracts are to be found throughout the whole field of communica- tion law. For example, there is the contract between an advertising agency and its client, between an author and a publishing company, between a photographer and a model or between a copyright owner and a local shop that sells tapes and CD’s. In the case of delict an injured person also makes use of the judicial process to claim compensation. The wrong suffered in this case does not originate from breach of contract.There is no contract between the parties but it originates from the fact that the rights of the injured party have been violated. In this case the rights are granted – not by a contract – but by the legal system as such. Other subjects have a duty to respect these rights and where this does not occur, the injured party can claim compensation from the wrongdoer in a court of law. The law actually recognises many different delicts, each with a sepa- rate name and definition. For example, to publish something deroga-  27 CML1501/1 tory about a person (defamation) or to secretly bug someone’s house with electronic devices (invasion of privacy) may constitute a delict. 1.5.3 “Fault” as a standard The standard or measure that has to be applied when dealing with either a crime or a delict is known as the fault standard. This means that besides having committed the harmful or prohibited conduct itself, the alleged wrongdoer must also be shown to have acted with a certain degree of blameworthiness. His or her attitude is therefore examined. Depending on the crime or delict, the fault requirement is usually stated as “negligence” or “intention”. The law recognises certain instances where “strict liability” comes into operation and where a wrongdoer may be held accountable for his or her actions even if the resulting harm was in no way intended and could not rea- sonably have been foreseen. A person acts intentionally if he or she wills a certain act or result (the result is his or her intention), while at the same time being aware of the fact that the act which he or she wills, is unlawful or prohib- ited. Intention therefore consists of two elements, namely knowl- edge of the surrounding circumstances and the direction of one’s will towards a certain result. Even when a person does not anticipate that his or her act will have particular results, the law may still view such an act as blamewor- thy if the person did not comply with the standard of care that the law requires of him or her. This form of blameworthiness is known as negligence. The test the courts use to establish whether or not a person has been negligent is the reasonable-person test. Before a wrongdoer can be blamed for negligence, it must be established that a reasonable person would have acted differently in the same cir- cumstances. Therefore, the question is always whether the reason- able person would have foreseen and prevented the consequences of the wrongdoer’s act. A large part of communication law is simply the specialised applica- tion of general principles of contract, crime or delict. These principles have developed over many decades and in some cases over many centuries. Communication law is therefore not a formal, separate branch of law that developed on its own without any reference to anything else. It is related to many of the legal principles and social policies on which South African law in general is based. Communication law, like other branches of law, is also subject to the South African Constitution which often intervenes and forces general legal rules to yield to a higher aim: in this case freedom of speech. A discussion of the influence of the Constitution begins in  28 the next chapter. 1.6 THE JUDICIAL PROCESS So far the accent has been on the sources of the legal system and on certain characteristics of the legal system. However, when a per- son encounters a legal problem, it is not enough just to know where to find the legal rules, or what the contents of the various rules are. Knowledge of the procedural aspects of the law is equally important. Substantive law therefore tells us what a person’s rights, duties, liberties and powers are and when these have been violated. It also informs us if there is a remedy available for the violation. Procedural law explains how one can obtain the remedy, in other words, what steps have to be followed when making use of the legal process. A basic principle underlying legal procedure is that courts will only hear genuine disputes. No matter how important a certain legal ques- tion may be, a judge cannot and will not give a decision on a hypo- thetical case but will only give a decision where the parties involved have submitted their controversy to the court in the form of a real lawsuit. The reason for this approach is based on the fact that in this country we follow what is called an adversary system. There must be a dispute between two or more opposing parties, they must have asked the court to intervene and to give a finding in favour of one of them. The court then acts as an impartial and objective referee and does not itself take part in the presenting of evidence or arguing of the case. What we have said above also indicates why it takes so long for vari- ous precedents to develop. Precedent can only develop from a legal issue which has become a lawsuit. Legal issues can be in existence for many years before someone decides that the effort and cost are worth risking, and then takes the case to court. Because the courts act as arbitrators (adjudicators) whenever there is a clash of interests, it is fairly obvious that the courts should be completely objective, impartial and independent, This also means that the judiciary as such should be separate from the legislative and executive branches of the government. Such a separation of powers provides the means for each branch of government to be checked, thereby ensuring that none of them abuse their powers. Each branch furthermore has a different function to fulfil and therefore is given the power to do only certain things. The legislature is responsible for the creation of laws, alteration of existing laws and the repealing or abolition of outdated laws. The executive puts the written laws into operation. The judiciary interprets the laws and decides what the outcome should be if a dispute arises. The legislature or an official  29 CML1501/1 of the executive cannot prescribe to a court how it should decide a specific case. However, we do know that the legislature may make laws which contain general provisions determining how the judiciary should function. For example, if a statute instructs a judge to impose a particular penalty in a particular situation, the judge must comply with this instruction. The independence of the court therefore exists within the framework of legal rules: in so far as the law grants the court discretion, the court is free to make decisions without outside interference. Courts follow a fairly fixed procedure when hearing a legal dispute. The main reasons for this fixed procedure are so that (1) each party involved in the dispute will have the fullest opportu- nity to put his case to the court and to argue it (2) the court may make a fair decision on the relevant facts and the parties will not raise irrelevant matters (3) the courts will perform their task thoroughly and speedily, so that matters will not be prolonged interminably. Because the procedure in civil cases and criminal cases differs con- siderably, these cases will be examined separately. What follows is a description of fairly typical procedure, but small deviations may be possible. 1.6.1 Criminal cases Criminal cases take place when a person commits a crime and dam- ages the interests of the community. The state acts as the champion of the general public and therefore has to prosecute criminals and ob- tain their punishment. The mere fact that a person has been accused of having committed a crime, does not mean that he deserves inhu- man treatment. The Constitution makes provision for certain safe- guards to ensure the civilised treatment of accused (and even con- victed) people, to prevent these people from being harmed unjustly. The formal steps that are prescribed and should be followed where a suspected offender is brought to court are based on this need to protect the specific constitutional rights of an accused. These rights include, for example the right to be informed of charges, the right to legal counsel, the right to a fair trial, the right not to testify against oneself, and the right to be presumed innocent until proven guilty beyond a reasonable doubt. In criminal cases the accused’s liberty may be involved; therefore greater emphasis is placed on these rights than is the case in civil trials. When a crime has been committed, the crime is reported to the po- lice by the complainant. The police then undertake an investigation with the intention of eventual prosecution. As soon as the police  30 have obtained enough evidence to take the case to court, they sub- mit the evidence to a director of public prosecutions who acts on be- half of the state and then decides whether there is enough evidence available to warrant a prosecution. The director of public prosecu- tions furthermore decides what court a case is to be tried in. This will depend on the seriousness of the offence. Certain courts have jurisdiction over certain kinds of crimes. Therefore, the director of public prosecutions will take into account what kind of crime is being dealt with, in deciding on what court the case is to be tried in. Cases of murder and treason, for example, must be tried by the High Court. Prosecutions normally take place in the name of the state. The direc- tor of public prosecutions does not personally conduct the proceed- ings in all criminal cases although he or she may appear in person in important cases. Usually he or she is represented by a prosecutor. Typically the criminal case begins when the alleged culprit is arrested by the police to ensure his or her appearance in court. To make sure of the accused’s attendance in the magistrate’s court, the following means can be used: (1) a summons issued by the Clerk of the Court and served on the accused (2) a written notice issued by a peace officer (e.g. in the case of a traffic offence) (3) a warning In the High Court a notice of trial can be served on the accused by means of an indictment or formal charge setting out the alleged crime. The trial takes place before a judge, or a judge sitting with two assessors (who are usually advocates and who have to assist the judge in determining what actually happened). Until 1969 certain trials could take place before a judge and a jury of nine laymen. How- ever, the jury trial was abolished in that year. When the accused appears in court he or she is advised of the charg- es and asked to plead. The plea can be one of the following: (1) guilty (2) not guilty (3) that he or she has previously been convicted on the same charge (4) that he or she has previously been acquitted on the same charge (5) that the prosecutor does not have the authority to prosecute (6) that he or she has been pardoned If the accused pleads guilty, he or she may be convicted there and then, after the court has made sure that the accused understands what the crime consists of. Where the accused refuses to plead, a plea of not guilty is recorded. In case of a refusal to plead, and where the accused pleads not  31 CML1501/1 guilty, the state has to prove the guilt of the accused. This is done by providing evidence. The prosecutor then calls the witnesses for the state to the witness stand. They are asked questions which they have to answer. The questions may not be “leading” questions, that is, they may not suggest the answers. As far as possible the informa- tion must be provided by the witness himself or herself. The prosecu- tor’s questions should merely provide continuity. After the prosecu- tor has questioned the witness, the accused or the accused’s lawyer, is given the opportunity to cross-examine the state witnesses in or- der to test the reliability of their evidence. Many witnesses find this repeated and rigorous (severe) questioning a gruelling experience, but it is an absolute necessity if the truth of what really took place, has to be determined. When the prosecutor has placed all the evidence before the court, the state’s case is “closed”. Then the accused is given an opportu- nity, if he or she wishes, to present evidence to the court and to call witnesses. In terms of our law, there is no obligation on the accused to give evidence. If the accused refrains from calling witnesses and the state has not been able to prove his or her guilt beyond reason- able doubt, the accused must be released. However, if the accused calls witnesses, these witnesses for the defence may again be cross- examined by the prosecutor. The court itself does not play an active part during the leading of evidence. The judge or magistrate must naturally make sure that the participants abide by the rules but he or she does not interrogate wit- nesses personally except to clarify uncertainties. When the accused has closed his or her case, further evidence can be led only with the permission of the court. At this stage both the prosecutor and the accused (or the accused’s attorney or advocate) are normally given the opportunity to argue the case. The court then considers the evidence and comes to a decision. In complicated cas- es the court may first adjourn, to consider the various aspects of the case, and then give its decision at a later time. After the decision, a sentence is imposed. The sentence can be one prescribed in legisla- tion or, where no sentences are prescribed, such sentence as the court deems fit.  32 1.6.2 Civil cases The procedure in civil cases diffe