Introduction to Law ILW1501 PDF 2020-2022

© 2019 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria ILW1501/1/2020–2022 70653194 InDesign ILW-Style Thank you to the following persons who were involved in the writing, design and development of the study material...

© 2019 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria ILW1501/1/2020–2022 70653194 InDesign ILW-Style Thank you to the following persons who were involved in the writing, design and development of the study material for the module ILW1501: Prof Anél Ferreira-Snyman (Academic author) Dr Safia Mahomed (Academic author) Ms Annalize Jacobs (Academic author) Mr Jan-Harm de Villiers (Critical reader)  CONTENTS Learning unit 1: What is “law”? 1 Learning unit 2: Law and rights 24 Learning unit 3: The story of our law 40 Learning unit 4: Families of law or legal cultures 59 Learning unit 5: Divisions of law 66 Learning unit 6: Where to find the law 83 Learning unit 7: The Constitution and you 154 Learning unit 8: The Bill of Rights: What are fundamental rights? 171 Learning unit 9: Limitation of your fundamental rights 194 Learning unit 10: The influence of the Constitution on South African law 201 Learning unit 11: The legal profession 209 Learning unit 12: Different legal disputes and the courts 231 ILW1501/1/2020–2022 (iii) Dear Student Welcome to the module Introduction to Law (ILW1501). This is one of the first-year foundation modules of the four-year LLB degree and is intended to provide you with a sound basis for your law studies. Therefore, the purpose of this module is for students to gain a basic knowledge, insight and skills for the analysis and solution of elementary problems relating to some of the underlying principles of South African law in general. Furthermore, it aims to provide students with a basic knowledge of the nature, role and implications of transformative constitutionalism within South African law. Students credited with this module can distinguish basic legal concepts and correctly identify and apply suitable legal rules and principles to basic legal problems. STUDY MATERIAL The study material for ILW1501 consists of this study guide only. You must study all 12 learning units for the examination. You will also receive tutorial letters in the course of the semester and these tutorial letters form an essential part of your study material for the examination. AIM OF THE STUDY GUIDE In an effort to make the law relevant to your everyday life, we have used real-life situations as a starting point for our discussions and in the activities. (Please remember that we made up all these scenarios; and although they did not actually happen, they could have happened!) After you have completed this module, you will appreciate the place of the law within society and you will be able to find the law with full knowledge of the hierarchy of sources and authority. You will be able to demonstrate your understanding of the basic principles and influence of the Constitution (more particularly, the Bill of Rights) in practical examples and explain the structure of the legal profession and the courts in constitutional, civil and criminal cases. OUTLINE OF THE STUDY GUIDE As far as the structure of the study guide is concerned, you will see that each learning unit starts with an overview and learning outcomes. The purpose of these is to guide you when you work through the learning unit. You will notice that each learning unit has one or more activities that you must do. These activities are very important. They will give you an understanding of the study material, and will help you to develop certain skills that you need for law studies. Each learning unit is followed by feedback. You must use the feedback to assess whether you have understood and completed the activity correctly. Your study guide for ILW1501 consists of the following learning units:  Learning unit 1: What is “law”? In this learning unit you will be prompted by real-life situations to appreciate the relevance of law in daily life.  Learning unit 2: Law and rights After completion of this learning unit, you will be able to demonstrate your understanding of the concept “rights” and explain the connection between “the law” and “rights”. ILW1501/1 (v)  Learning unit 3: The story of our law In this learning unit you will be introduced to the composition of South African law against its historical background by focusing on five specific periods that influenced the development and composition of the South African legal system.  Learning unit 4: Families of law or legal cultures In this learning unit you will be made aware that the South African legal system is part of a world legal order by introducing you to the different legal families of the world.  Learning unit 5: Divisions of law After completion of this learning unit, you will be able to distinguish between the two main divisions of South African law, namely public and private law, and indicate how these main divisions are further divided into the different branches of the law.  Learning unit 6: Where to find the law After completion of this learning unit, you will be able to distinguish between the authoritative and persuasive sources of South African law and demonstrate their use in practical scenarios.  Learning unit 7: The Constitution and you In this learning unit you will be introduced to the South African Constitution and the concepts related to a constitutional democracy.  Learning unit 8: The Bill of Rights: What are fundamental rights? After completion of this learning unit, you will be able to identify the specific fundamental rights in the Bill of Rights, indicate to which categories of rights they belong and explain how they are applied in real-life situations.  Learning unit 9: Limitation of your fundamental rights After completion of this learning unit, you will be able to demonstrate your understanding of the ways in which fundamental rights may be limited in practical examples.  Learning unit 10: The influence of the Constitution on South African law After completion of this learning unit, you will be able to demonstrate your understanding of the practical influence of the Constitution, especially the Bill of Rights, on South African law.  Learning unit 11: The legal profession After completion of this learning unit, you will be able to show that you understand the legal profession in both the private sector and the public service in South Africa, as well as the role of court officials in the public service. (vi)  Learning unit 12: Different legal disputes and the courts After completion of this learning unit, you will be able to identify and explain the different kinds of court cases and show that you understand the basic differences between civil and criminal cases in real-life examples. You will also be able to identify the most important courts in South Africa and explain important basic concepts relating to the operation of these different courts in real-life situations. HOW TO WORK THROUGH THE STUDY GUIDE The module ILW1501 is a semester module. The study material for the module is made up of 12 learning units. Therefore, you will have to divide your study time in such a way that you complete these learning units in one semester, which consists of approximately 15 weeks of study time, if you register early. This module consists of 120 notional hours, which you should divide into time for working through the learning units, completing the assignments, participating in the discussions on myUnisa, doing revision and preparing for the examination. To assist you in consistently working through the study guide in a structured manner, the lecturers and/or e-tutors will have a weekly discussion on selected issues in each learning unit on the ILW1501 myUnisa module site. These content-related discussions are regarded as an important teaching tool in addition to your study guide. We therefore cannot stress enough the importance of active participation in these discussions. They will help you to understand the study material better, which can only benefit you in completing the assignments and preparing for the examination. Studying law is new to you, so do not hesitate to contact us if you have any difficulties with the study material. We wish you all the best with your studies. Your lecturers for ILW1501 ILW1501/1 (vii)  LEARNING UNIT 1: What is “law”? 13 LEARNING UNIT 1 1 What is “law”? In this learning unit you will meet two typical South African families who experience different situations in their daily lives. We want to find out how the law is connected to these everyday events. In other words, we will be exploring the relevance of law to each of these events. You will therefore be prompted by real-life situations to appreciate the relevance of law in daily life. Learning outcomes After completion of this learning unit, you should be able to:  identify events in everyday real-life situations that have legal relevance – in other words, that have something to do with the law  understand the role played by law in daily life  explain what “a norm” or “a normative system” is  identify and describe the different norms or normative systems  name and discuss the characteristics of “the law”  explain the differences and similarities between legal norms and other norms in everyday real-life situations  distinguish between public law and private law  distinguish between formal law and substantive law Meet our two South African families! The Mothibes Tom and Jane Mothibe live in Suburbia, a suburb south of Pretoria. They have two children, Bongiwe and Thomas. Tom is a lecturer at the local university, New Africa University, and Jane is a partner at a firm of attorneys called Mothibe and Boucher. Thomas is 15 and attends the local ILW1501/1 1  high school, Suburbia High. He hopes to finish school in two years’ time and plans to become a dress designer. Bongiwe is six years old and she has just started school at Suburbia Primary, which is the primary school around the corner from her home. Bongiwe wants to become an attorney like her mother. The Mothibe family employ Sarah Blom, a domestic worker, who works for them on Mondays, Wednesdays and Fridays, and James Molefe, a gardener, who works in the garden on Wednesdays. The Van der Merwes The Mothibes’ next-door neighbours are Karel and Martie van der Merwe and their two children, Carmia and Jimmy. Karel has been employed since 1995 by a firm of engineers called Malan and Jackson. However, due to financial reasons, this firm has been forced to reduce its workforce and Karel has been retrenched. He will be leaving the firm in two months’ time and is presently looking for another job. Karel’s wife, Martie, like her neighbour Tom, is a lecturer at New Africa University. Carmia is seven years old and attends Suburbia Primary. Jimmy is two years old and spends most of the day with a day-mother, Mrs Brown, who lives just across the road from the Van der Merwes. The Van der Merwes employ Sarah Blom’s sister to clean the house on Tuesdays and Thursdays. Her name is Francine. On Tuesdays, the Mothibes’ gardener, James, works in the Van der Merwes’ garden. In this scenario we are going to take a look at what happens in the Mothibe and Van der Merwe households on a typical “blue” Monday when everything seems to go wrong! Monday 7:15 After an early breakfast in both the Mothibe and Van der Merwe households, the parents and children are preparing to leave for work and school. Thomas cycles to his school each day, and his mother walks Bongiwe to school before she drives to work. Jane and Bongiwe have already left, but this morning Thomas is late. His father is angry with him because Thomas has lost the envelope which contains his school fees for the term. Just as Tom is about to write out another cheque, Thomas remembers that he put the envelope in one of his textbooks. Peace is restored! At last Thomas leaves for school. It has been a crazy rush to get 2  LEARNING UNIT 1: What is “law”? ready for work and school and Tom forgets that he has promised Martie, his next-door neighbour, a lift to work because her car is in the garage for repairs. He drives off and the Mothibe house is left in the care of Sarah, the domestic worker. Next door, the Van der Merwe household is also starting a “blue” Monday. Carmia leaves for school and Martie takes Jimmy across the road to Mrs Brown, the day-care mother. Martie sees Tom driving past and realises that he has forgotten to give her a lift as they had arranged. She persuades her husband, Karel, to give her a lift to work on his motorbike. They are just about to leave when Mr Cutts arrives. Karel has arranged with Mr Cutts to cut down some branches that overhang from trees in the Mothibes’ yard. Because of these branches, there is too much shade over the vegetable patch in Karel’s garden. Mr Cutts had agreed to do the job the previous weekend, but he was sick. Karel gives Mr Cutts some hasty instructions before he and Martie leave for work. Because Karel is in such a hurry to get to work, he drives 80 km/h in a 60 km/h zone. Karel is stopped by a traffic officer who fines him R400 for speeding. Monday 14:00 Thomas and Bongiwe are home from school. Carmia has gone to Mrs Brown, the day-mother, where she will spend the rest of the afternoon. Martie will fetch Carmia and Jimmy when she gets back from work. At the Mothibes’ house, Bongiwe eats her lunch, prepared by Sarah Blom, and then she too goes over the road to play at Mrs Brown’s house. Thomas is doing his homework when he hears a loud bang. He runs into the garden to investigate and sees that the window of his father’s study is smashed. A cricket ball is lying on the grass. Soon two little red-faced boys ring the Mothibes’ doorbell. They apologise for breaking the window. Thomas is cross and says that they will have to speak to his father about the incident later. Monday 16:00 Tom and Martie are back at their own homes after their working day at the university. Both have to spend some time marking their students’ assignments. Jane is working late and Karel is also late, so Tom and Martie begin the preparation for the evening meal. All the children are home and they too help to prepare supper. Someone drove into Karel’s motorbike while it was parked in its usual spot in the parking lot at his place of work. Fortunately, the motorbike ILW1501/1 3  is not badly damaged and the driver of the car has agreed to pay Karel for the damage. Monday 19:00 The Mothibes and Van der Merwes enjoy their evening meals after a busy day. But the day is not over yet. Today is election day in the municipal by-elections and the eligible voters in each family must reach the polling stations before they close at 22:00. It has been a stressful day for them all and they will be glad to get a good night’s rest! 1.1 Write down the events from the above scenario which you think involve the law. In other words, which events do you think are legally relevant? ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ After you have made your list, read the discussion that follows. This will give you feedback. 4  LEARNING UNIT 1: What is “law”? LAW AND LIFE 1.1 Introduction We often think that the law affects only certain aspects of our lives, and that it only becomes relevant when someone commits a crime. We also think that we need legal advice only when we wish to draw up a will or sign a complicated contract. However, this is not so! The law plays a very important role in every aspect of our daily lives. For example, there is the fact that the Mothibes and Van der Merwes are parents. This fact has something to do with the law because you have to know about the legal norms (a norm is a standard of human conduct or a rule of human behaviour) that are relevant to parents. If you are a parent, the relevant legal norms require that you support or maintain your children: you are obliged to provide your children with the necessities of life, like schooling, medical care and so on, in keeping with your lifestyle. (We do not always realise that children also have a legal duty to support their parents when the parents are not able to care for themselves!) The ages of children are also of legal importance. For example, if a child who is under the age of seven steals from a shop, he has not committed a crime. The reason is that the law says that a child who is younger than seven is not able to tell the difference between right and wrong. Conversely, the law regards (sees) a person who is 18 years old as a major. This means that an 18-year-old person is completely able to tell the difference between right and wrong. According to our law, such a person has, with certain exceptions of course, full capacity to appear in court or to enter into any contract. (See learning unit 2 where we explain that the term “right” can also have the meaning “capacity”.) The fact that Karel, in our scenario above, has been retrenched, is also legally relevant – it has something to do with the law. We must examine the legal norms to find out whether or not his retrenchment is lawful and what compensation he is entitled to because of the loss of his job. In this case we will find the legal norms by looking at the law which applies to labour relations. When we examine anything that affects the employment ILW1501/1 5  of Sarah, Francine and James (e.g. the way they carry out their duties and exercise their rights), we will also have to look at the law of labour relations. We have just seen how the law of labour relations will help us to discover the legal norms or rules that apply to employment. In the same way, the law of obligations will help us to find the legal norms that apply to the agreement by the Mothibes to pay school fees, by Martie to have her motor vehicle repaired, and by Karel to allow Mr Cutts to cut down overhanging branches. The duty to pay school fees is a legal matter and it makes no difference whether we have this duty because the provincial legislature says we have to pay school fees or whether we, as parents, have signed a contract with the school authority. The minor accident with Karel’s motorbike also involves legal rules. So, too, does the fact that Martie takes her car to the garage for repairs have legal consequences. The legal norms relating to contracts will control Karel’s arrangement with Mr Cutts as well as the arrangement that Karel and Martie have with the day-mother. Even the removal of the overhanging branches will be subject to the law. It would usually be unlawful (against the law) for Karel to get Mr Cutts to cut down the branches that hang over into Karel’s garden from another garden. However, sometimes an action such as cutting down branches will be justified (regarded as lawful), for example where the falling leaves are creating a nuisance. The law is concerned with where we live. Our address – the address of each family – is of legal consequence. Therefore, the legal home of each family, which is called the “domicile”, has various legal consequences. For example, if a couple decides to divorce, it may be their “domicile” which will determine which court will hold the divorce hearing. In our scenario, two little boys were playing cricket and smashed Tom’s study window with their cricket ball. What are the legal consequences of the smashed window? And what about Tom’s promise to give Martie a lift to work? Do you think the law is involved here? It is clear from our scenario that Karel’s speeding on Monday morning has consequences in terms of criminal law, since he committed a traffic offence. On the Monday evening in our scenario, the families go to the polling station to vote in the municipal elections. Legal rules apply here too. Some of these rules will be found by looking at the electoral laws and even our Constitution. 6  LEARNING UNIT 1: What is “law”? 1.1.1 Legal norms and other norms: How do they differ? It should be clear from reading our scenario and the discussion that follows, that the law concerns our everyday lives. However, what do we mean when we use the term “the law”? When we use the words “the law” in our everyday speech, we mean different things at different times. We speak, for example, of “the law of the land” and of “the long arm of the law catching up with criminals”. We also speak of “the laws of physics” and “the law of gravity”. When we speak of “the law of the land” and “the long arm of the law”, we usually refer to a country’s laws and about criminals being caught and made to answer for their wrongdoings. When we speak of a law of physics, for example, the law of gravity, we refer to an unchanging physical force which we normally cannot control. Students of physics will know that gravity draws an object to the earth. We see the law of gravity in action when an apple drops to the ground from a tree. Then there are other laws, such as the “laws” of games, like cricket and chess, which determine how a particular game should be played. The one thing that all of these “laws” have in common is that they all deal with order and regularity. However, although laws may have this characteristic in common, we cannot group all laws together. All laws are not the same in all respects, and the following question arises: “How do we know which group the various laws belong to?” Some of the “laws” we have just mentioned are standards or rules (norms) that determine how we should behave and interact with one another. This is what separates these laws from the laws that are not “norms”. If being a norm or standard of human behaviour is what separates the kinds of laws that are “norms” from other laws, then “the laws” of physics would be out of place in a group of “norms” or standards of human behaviour. In the first place, then, we may say that “the law” (which we are going to study) means a rule or norm governing human behaviour. You might ask: “But surely the rules of a game also govern human behaviour in a way?” The answer to your question must be: “Yes!” However, we would not consider these rules to be part of “the law”. When we play a friendly game of chess or cards, for example, only those of us who are playing the game have to follow the rules. No-one outside of the game is bound by the rules. If we cheat, we will be punished either by our own conscience, which tells us the difference between right and wrong, or by the fact that the other players will no longer want to play with us. This in itself is a form of punishment. We cannot, therefore, see the rules of sport or the ILW1501/1 7  rules of a game in the same way as we see the rule which says that we should stop at a red traffic light. If we break this rule and drive through a red traffic light, we could be prosecuted and punished by the state. What is it then that sets “the law” apart? What makes it stand alone? Perhaps it is because “the law” is concerned with norms that bind the whole community, that is, those norms of conduct or rules of human behaviour that should be obeyed by all of society. However, just because we should obey these norms does not mean that we always do so. We should always stop at red traffic lights, but some of us do not always do so. There is a difference between a legal norm and a moral norm. In the case of a legal norm, the whole community is bound, and this is what separates the legal norm from the moral norm. We know that many people regard adultery as morally wrong (immoral), but it is not a crime. However, there are times when a moral norm can also be a legal norm. An example of this is the commandment in the Bible: “Thou shall not kill”. “The law” also says that the intentional killing of a human being without justification is murder, which is a serious crime, and that the murderer will be prosecuted and punished by the state. Very often, however, legal norms and moral norms are separate. For example, the law says that all contracts for the sale of land should be in writing and that, if this is not done, there is no legal contract binding the parties. Typically, if you give your word or promise to do something, you are morally obliged to do it, whether or not other legal requirements have been fulfilled, and this then involves a moral norm (which cannot be enforced by the state). 1.2 If a friend asks you what “the law” is, how will you explain it to him/her? ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ 8  LEARNING UNIT 1: What is “law”? In your explanation to your friend you should mention the following characteristics of the law:  The law governs human behaviour/conduct.  All of society should obey the law.  State organs enforce the law.  By ignoring or disobeying the law, we may be prosecuted and punished (e.g. when we ignore a red traffic light) or we may be ordered to compensate the party we have injured (e.g. when a vehicle is damaged in an accident). 1.3 Did you realise from the above discussion that the events that have legal relevance can be classed into divisions or sections? If your answer is “yes”, can you identify two main divisions? ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ This is a difficult activity that indeed required some thinking. Do not worry if you could not answer the question! Make sure, however, that you understand our explanation and study it for the examination. There are two methods which are used to divide the South African law into main divisions. Public law and private law Firstly, South African law can be divided into two main divisions, public law and private law. Public law deals with the relationship between the state and the individual. In our discussion, for example, the municipal elections relate to public law. Electoral laws regulate the relationship between the state and eligible individuals (voters). Private law deals ILW1501/1 9  with the relationship between individuals and other individuals. In our scenario, several events relate to private law. We only mentioned a few examples. For example, private law is applicable to the payment of the children’s school fees, the repair work to Martie’s motor vehicle, the agreement between Karel and Mr Cutts to cut down the branches, and the payment of damages by the driver that drove into Karel’s motorbike. In all these events there is a relationship between an individual and another individual. This division between public law and private law is discussed in learning unit 5 when we deal with the different divisions of South African law. A diagram of this division would look like this: Formal (procedural) law and substantive (material) law Secondly, the South African law can be divided into the two main divisions, formal (or procedural) law and substantive (or material) law. Formal or procedural law is that part of the law which deals with the procedures that must be followed in legal proceedings. The rules that determine how court cases are decided or decisions reached, the way we act in courts, the kinds of evidence that are allowed, and so on, are contained in what we call formal law. Substantive or material law is that part of the law which determines the content and the meaning of the different legal rules. In our scenario, for example, Karel was fined for speeding because he contravened the National Road Traffic Act,1 which is part of substantive law. Should Karel be summonsed to appear in court for committing a traffic offence, the formal law will be applied during the court proceedings. 1 National Road Traffic Act 93 of 1996. 10  LEARNING UNIT 1: What is “law”? A diagram of this division would look like this: It is important that you understand this division between formal (or procedural) law and substantive (or material) law when we now look at the difference between formal justice and substantive justice: 1.2 The question of justice Laws can be just or unjust. The fact that a rule becomes a legal rule is not, of course, enough to ensure that justice will be done. A legal rule is therefore not necessarily “just”. For example, there is no doubt that the by-law prohibiting smoking in public places is indeed a legal rule, but do you think it is a fair or just rule? What would, in these circumstances, determine whether a rule is fair or not? At first glance, the rule may seem unjust. How do we then decide if a rule is just or not? You will find the answers to these questions in the discussion that follows. 1.2.1 Introduction Throughout history, people have questioned the justness of various legal rules. Many philosophies have been formulated to decide whether laws are just or not. Sometimes writers have suggested that, if rules are applied strictly, this will lead to justice. Others have indicated that, sometimes, the strict application of the law will lead to injustice rather than justice. And that raises the question of what justice is. Many answers have been given to this question, but no single authoritative description of “justice” exists. For purposes of this discussion, the description of justice as “equality before the law” is sufficient. ILW1501/1 11  Of more importance for our discussion is the distinction made by South African law between formal justice and substantive justice. Let us now look at these concepts and the distinction between them. 1.2.2 Formal justice In activity 1.3 you learned what formal law means. Can you still remember? The rules that determine how court cases are decided or decisions reached, are contained in what we call formal law. These are rules that govern the way we act in courts, the kinds of evidence that are allowed, and so on. Thus, formal law is that part of the law which deals with the procedures that must be followed in legal proceedings. If the formal law meets certain basic requirements and is always applied in exactly the same way, we say that formal justice has been achieved. These basic requirements with which formal law must comply in order to achieve formal justice are the following:  There must be explicit rules laid down to show how people must be treated in specific cases.  The rules must apply generally. This means that the rules must apply to all people in the group in the same circumstances.  The rules must be applied impartially by a legal institution. This basically means that the judge may not be biased – he or she may not apply the rules unequally. 1.4 You now know what formal justice is. Do you think that formal justice is enough to make a legal system just? In other words: Can we say that a law is just if it meets only the requirements of formal justice? For example, consider the following scenario: Martie van der Merwe is not promoted by New Africa University and she complains about the decision. The university provides her with a formal platform to raise her complaint. An impartial person hears the complaint and decides that the rules with regard to promotions within the university are clear and apply to all personnel equally. However, Martie feels that she was not promoted simply because she is a woman. Has justice been served in this case? 12  LEARNING UNIT 1: What is “law”? ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ It is clear that the requirements of formal justice have been met: The rules with regard to promotions within the New Africa University are explicit. These rules apply generally to all personnel. The rules are applied impartially because Martie’s complaint was heard by an impartial person. However, one still comes away with the feeling that the result might have been unjust. Therefore, we have to consider the issue of substantive justice. 1.2.3 Substantive justice It seems clear from the above that, in certain cases, there can be formal or procedural justice without there necessarily being “real justice”. This is when the question of substantive justice is raised. Substantive justice concerns the content of the rule, and not the way in which it is applied (procedure). Remember, in activity 1.3 you learned that substantive or material law is that part of the law which determines the content and meaning of the different legal rules. Therefore, to establish whether substantive justice has been done, the content of the rule itself is looked at to determine whether it is just and fair. (By the way, have you realised that there is a connection between formal law and material or substantive law? We are sure you noticed that formal law is that part of the law which regulates the enforcement of substantive [material] law.) Substantive (material) law is often applied correctly in accordance with the rules of formal law, despite the fact that the rules of substantive/material law are unjust. Thus, formal justice is achieved, but not substantive justice. In the apartheid years, for instance, the laws were specific, they applied to all persons in a group and they were applied impartially. However, ILW1501/1 13  it cannot be said that they served justice! In this case the content of the rules made them unjust. 1.5 In 1950, the Group Areas Act2 was passed into law and became another fundamental policy of the apartheid regime, the aim of which was to cause segregation (separateness) amongst different racial groups. This Act formed the legal framework that allowed the government at the time to divide and establish particular neighbourhoods, solely on the basis of race. This Act limited the property rights of all black people (Africans, Coloureds and Indians)3 as it allowed for the demolition of property and displacement of people into designated areas. Under this Act, the different racial groups could only reside in legally defined geographical areas.4 Assuming that the Mothibes and Van der Merwes were living in the 1950s, would they have been neighbours? Would the application of the Group Areas Act have resulted in justice being achieved? ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ In our scenario, the Mothibes and Van der Merwes are neighbours in present-day South Africa. However, they would not have been able to be neighbours in the 1950s under the apartheid regime, due to the implementation of the Group Areas Act. The application of the Group Areas Act included laws that specifically outlined that different race groups could only reside in defined geographical areas. Therefore, black and white people were not allowed to live in the same areas. The laws outlined in the Group Areas Act were specific, they applied generally to all persons and the rules were applied impartially (the rules were applied equally to all persons). Thus, we can see that the requirements of formal law were achieved. Consequently, formal justice was achieved, but it 2 Group Areas Act 41 of 1950. 3 Section 1 of the Employment Equity Act 55 of 1998. 4 Johnson-Castle P (2014) “Group Areas Act of 1950” http://www.sahistory.org.za/article/group-areas act-1950 (Date of use: 26 March 2018). 14  LEARNING UNIT 1: What is “law”? cannot be said that these rules served justice! We know that formal justice is not enough to make a legal system just. In this case, the content of the rules made them unjust as the content was unfair and discriminatory. Substantive justice was therefore not achieved! The same can be said of laws that discriminate against women, as in Martie’s case in activity 1.4 above. 1.3 The law and other normative systems On pages 3 to 9 of their book Beginner’s guide for law students,5 the authors show the difference between the following normative systems (that is, systems other than the law) that govern (rule) human behaviour:  religion  individual morality  community mores We will now look at each of these systems and see what connection they have with the law. 1.3.1 Religion Kleyn et al6 point out that every religion has a code (a set of rules) in accordance with which the people who practice that particular religion, live. For Christians, for example, this code is based on the Bible, for Muslims it is based on the Koran. Every religion has a sanction (a punishment) for those who disobey its particular religious norms (its code of behaviour). Burning in hell is an example of one punishment. There is much discussion about the relationship between religion and law. One of the questions asked is: When the system of religion and the system of law clash, whose laws should you obey? Should you obey the laws of your religion rather than the laws of the country, or the other way around? Or, should the law be in harmony with religious norms? In other words, should we look at religion and law as completely separate systems of norms or are they the same? Kleyn et al7 explain these different views as follows: 5 Kleyn D et al Beginner’s guide for law students 5th ed (Juta Claremont 2018). 6 Kleyn et al Beginner’s guide for law students 6. 7 Kleyn et al Beginner’s guide for law students 6. ILW1501/1 15  On the one hand, some people are of the opinion that religion and law should be mutually exclusive. This is the secular approach to law. To them religion is a personal matter, only concerned with the individual’s private sphere of conscience. It determines the individual’s destiny after death. The Western (liberal, secular) state is based on a distinction between state authority and religious authority. It is not the task of the state to enforce religious norms or convictions on its citizens. However, religious freedom must be made possible by the state, allowing each individual to exercise a free religious choice. For this reason, for example, trade and film shows in South Africa are allowed on Sundays, although devout Christians may object. On the other hand, it is sometimes accepted that religion and law should have the same content. In terms of African legal philosophy, African law and religion are inextricably linked to one another. This also appears in Islamic fundamentalist religious states, where law and religion are equated. The Quran dictates that theft is an offence; an offender’s hand must be cut off. In a fundamentalist state, the law applies this religious rule as part of the law of the land. Both views may be criticised, as Kleyn et al8 show below: There are many similarities between law and religion. The Western legal tradition is strongly influenced by Christian thought. The basis of modern matrimonial law, the conservative regulation of sexual relationships, and the principle that contracts may be concluded by mere agreement without the requirement of further formalities, for example, all stem from church law (canon law). The content of religious and legal rules is also often the same. Examples are found in the offences of murder, fraud, and theft that are prohibited by many different religions alike. In addition, both law and religion are studied by interpreting authoritative texts. In both, ritual, formalities and fi xed procedure play an important role. We should also bear in mind that the Constitution of the Republic of South Africa, 1996 protects the right to freedom of religion in section 15. As such, there are instances where the law would respect and protect people’s right to follow a religion of their choosing. In this way, the law attempts to promote tolerance of difference. There are, however, also many differences. These two normative systems do not overlap completely. The Ten Commandments and the Bhagavad Gita ordain that one should not covet thy neighbour’s possessions. How will a state enforce this? This is not enforced by law. In the same way, adultery is not a crime in South Africa although it may be regarded by some religions as “sin”. Although religion and law are not always similar, there are certain aspects of the South African law that favour the Christian religion. In criminal law blasphemy is an offence: It pertains only to the Christian God. Christian public holidays such as Christmas and Good Friday are given preference by the government. Some might argue 8 Kleyn et al Beginner’s guide for law students 6–8. 16  LEARNING UNIT 1: What is “law”? that this is justified as part of the accepted religious convictions of the majority of South Africans. Whether this is in fact desirable is of course open to debate in a country where respect for pluralism and difference is so important. 1.3.2 Individual morality (personal morality/ethics) When we speak of individual morality, we refer to the norms or standards of behaviour that each person sets for himself or herself. Examples of these are the following: being honest, not drinking too much, not telling lies. If you disobey these rules, you cause yourself inner conflict – your conscience bothers you. You become upset with yourself. We set these rules for ourselves, but it is also possible that these rules may coincide with or form part of your religious convictions. In other words, they may be the same as the rules set for us by our system of religion. An example of this would be not telling lies. This could be a norm of individual morality as well as a religious norm. A person’s individual sense of morality may, in some instances, coincide (go hand in hand) with certain legal rules. In other words, the content of the legal rules may match the content of the rules an individual has set for himself or herself. For example, honesty (a norm of individual morality) is the value that is violated (offended) when the crimes of theft and fraud are committed. However, individual morality, as such, is not enforced by the law. It is only where a norm of individual morality coincides with a legal norm, such as in the examples mentioned above, that the law will step in (intervene). Therefore, the essential point that you must understand as far as individual morality is concerned is that it has to do with the individual person and that the sanction for disobeying these rules (which can take the form of remorse or being upset with yourself) is personal and self-inflicted (imposed on oneself). 1.3.3 Community mores Kleyn et al9 explain community mores as follows: Community mores are the norms of a whole community or group within that community. They are collective morals. Etiquette, fashion and views about free love or interracial marriage all form part of this. They differ from religion and morality in that they are not 9 Kleyn et al Beginner’s guide for law students 10. ILW1501/1 17  private matters concerning only a specific individual. The sanction for non-compliance is varying degrees of disapproval by other members of society. People ordering pizzas topped with pineapple, or people eating pasta with their hands in a restaurant, might find themselves the subject of ridicule among friends.... A black husband and white wife may find that after their marriage they are avoided by conservative family members. In a society such as ours, which is made up of many different types of people and different types of groups (i.e. a heterogenous society), the mores of different communities may differ. For example, while it may be quite acceptable for unmarried couples to live together in a certain community, a more conservative community may not tolerate this. The origin of some community mores may be found in that community’s religious convictions. For example, gay marriages may not be acceptable in a certain community, because their religion forbids such marriages. In some instances, the law and community mores may coincide – they may be the same. For example, possession and sale of harmful drugs are disapproved of by the community and they are criminal offences. In other instances, the law may not reflect or support community mores. For example, there may not be laws that are good enough to prevent the distribution of child pornography on the internet. On the other hand, the community may feel that the present censorship laws are too strict and should be relaxed. 1.4 Conclusion We have discussed the different types of norms under different headings. From our discussion you should have realised that the various types of norms differ from one another. You should, however, also have realised that they may overlap and that, for example, some norms are both religious and legal norms, that community norms (or mores as they are also called) may sometimes be supported by the law, or that individual norms (a person’s own moral code) are sometimes religious norms. Since the different types of norms may overlap, it should be clear that they cannot always be divided neatly into these separate categories. 18  LEARNING UNIT 1: What is “law”? 1.6 Now that you have read the discussion on the different types of norms, answer the following questions: (1) Complete the following diagram in order to distinguish between the different normative systems: To whom are the rules What is the sanction Who enforces the applicable? for non-compliance sanction? with the rules? The law Religion Individual morality Community mores ILW1501/1 19  (2) Read the following scenario and answer the multiple-choice questions that follow: Mr and Mrs Clark have been married for the past ten years. They live in an exclusive but very conservative neighbourhood in Pretoria. Two years ago, Mr Clark, who is a well-known business man in the community, began an extra-marital relationship with his neighbour’s wife. When the neighbours found out about Mr Clark’s adultery a year later, they started to ignore him. (a) The normative system which is applicable in this scenario is … (1) the law (2) community mores (3) individual morality (4) religion (b) The sanction for not complying with the norms of the normative system in (a) is … (1) punishment by a state organ (2) Mr Clarke’s remorse (3) prosecution by a state organ (4) disapproval by the community (3) Although we spoke about the various types of norms under different headings, we said in the conclusion that they cannot always be divided into specific categories. Read the following scenario and answer the question that follows with reference to this statement: Karel is under a lot of stress because of his retrenchment. This has caused him to start smoking. His family is most upset about this. Carmia says that he will get cancer. Martie argues that it is morally wrong to smoke. One of Karel’s friends tells him that smoking is a sin. One evening, Karel lights a cigarette in the non-smoking section of a city restaurant. When the manager asks him to put out the cigarette, Karel starts to argue with him. Karel argues that he does not think that it is morally wrong to smoke, but the manager replies that he is not interested in Karel’s “moral arguments”, because smoking in the non-smoking section of the restaurant is in contravention of the law (in this case, the Tobaccco Products Control Act 83 of 1993 20  LEARNING UNIT 1: What is “law”? (as amended)). Karel is so upset that he storms out without ordering any food. What are the merits of Karel’s argument and what are the merits of the management’s argument? ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ (1) While completing the diagram, you should have noticed that the different normative systems correspond in the sense that all these systems govern human behaviour. However, it is the differences between the normative systems that should have caught your attention. You should have noticed that there are clear differences with regard to three aspects in particular, namely (i) the persons to whom the rules apply; (ii) the sanction for non-compliance with the rules; and (iii) the person who, or institution that, enforces the sanction. ILW1501/1 21  Now study the diagram in order to establish whether you agree with the above: To whom are the rules What is the sanction Who enforces the applicable? for non-compliance sanction? with the rules? The law Norms which the  Prosecution or  State organ whole community punishment  State organ regards as binding and  Compensation to an that must be obeyed. injured party Religion A set of rules in accor- Every religion has Separate religions dance with which the its own sanction or people who practice punishment. that particular religion live. Individual morality Norms or standards The sanction for dis- Individual that every individual obeying these rules sets for himself or is personal and herself. self-imposed. Community mores Norms of a whole com- Varying degrees of Community munity or group with- disapproval/rejec- in that community. tion /discrimination by other members of the community. (2) (a) Statement (2) is correct. The normative system which is applicable in this scenario is a particular community’s mores. Community mores are the rules of a whole community or a group within that community. (b) Statement (4) is correct. The sanction for not complying with community mores is varying degrees of disapproval by the other members of the community. The community may expel, reject or ignore someone who does not comply with the community mores, or may discriminate against such a person. In our scenario, Mr Clark’s neighbours started to ignore him. (3) You may indeed ask whether there is a definite and correct answer to this question. We doubt it. Different students will have different views on the merits of Karel’s and the manager’s arguments. However, when reading the scenario, did you realise that moral norms and legal norms often differ? Karel’s moral view on smoking differs 22  LEARNING UNIT 1: What is “law”? from the law’s policy on smoking. Even though Karel may not find it morally wrong to smoke, he is bound by the law prohibiting smoking in the non-smoking section of the restaurant. He may be prosecuted and probably fined. Did you also realise that a moral or religious norm may sometimes be the same as a legal norm? In our example, Martie regards smoking as morally wrong and Karel’s friend believes smoking is a sin. In this case, their respective views on smoking coincide with the law’s policy on smoking. You should now have a good id idea of the role that the law plays in your day-to-day life and how it rregulates human behaviour within our society. However, it should also be clear to you that it is not simple to describe law. Nor is it always easy to determine whether justice has been done in any one case. That is why the study of the law is so exciting, because the law must change and adapt as society changes. The law also has to balance different interests of different individuals and this is where “rights” come into play. In the next learning unit, we will discuss the law and rights in more depth. ILW1501/1 23 2 LEARNING UNIT 2 2 Law and rights In this learning unit we explore the meaning of the concept “rights” and we look at the connection between “the law” and “rights”. Learning outcomes After completing this learning unit, you should be able to:  explain what “a right” is  explain what the dual relationship of a right involves  identify, explain and provide examples of the four classes (kinds) of rights in terms of the private law  identify, explain and provide examples of the objects of each of the four classes (kinds) of rights in terms of the private law  describe the terms “legal subject” and “legal object”  explain the connection between the law and rights and give examples of this connection  identify and explain other meanings of the term “right” Rights in everyday life It is Saturday morning and the Mothibes are going to town. Jane is taking Bongiwe to buy school shoes. Tom is taking Thomas to the Speak-well Language Institute. He will enrol Thomas for a special course in French. Thomas plans to go to France when he finishes school and therefore he is keen to learn to speak French well. Bongiwe visits many shops with her mother before she can find shoes that she likes. She finally chooses a pair of shoes and her mother, Jane, 24  LEARNING UNIT 2: Law and rights buys them for her. Jane hands Bongiwe the shoes and says: “Look after your new shoes and I hope you enjoy wearing them.” In the meantime, Tom has helped Thomas to enrol for the course in French. Thomas will have to attend language classes every Saturday, for two hours, for the next six months. Tom will have to pay the fees in three instalments of R300 each. These are the terms (or conditions) of the contract which Tom has signed with Speak-well Language Institute. Thomas is very excited about starting his new course in French. Now that the shoes have been bought and Thomas has been enrolled for his course, the Mothibe family meets for lunch. Thereafter they go to the cinema to watch a movie. 2.1 Introduction You may be wondering what the above scenario has to do with “rights”. So far, we have looked at the law in only one way, as a system of norms and rules; that is, as a group of norms and rules that all work together as a unit to regulate human behaviour within our society in a very specific way. (See learning unit 1.) However, we can also think of the law as a system of rights. We will now explain what we mean by “rights”. After our explanation, you will find four activities that you should do. 2.2 What is a right? In learning unit 1 we learnt that the task of the law is to provide standards (norms) which can measure whether members of a community relate to one another in the way that they should. When we speak about rights, we are dealing with how people relate to objects (things) and to one another. Let us say that you have a right to something. In law we say that you are a holder of that right. This means that there is a legal relationship between you (we call you a legal subject and the holder of the right) and what you have the right to (we call this the object of the right or legal object). ILW1501/1 25  Other people (they are other legal subjects) must respect your right. Therefore, when we are dealing with a right, we are dealing with the relationship between you and the object of the right, and between you and other legal subjects who must respect your right. Therefore, every right concerns a relationship made up of two parts: (1) a relationship between a legal subject and the object of the right (2) a relationship between the legal subject who is the holder of the right, and other legal subjects Let us go into detail first by giving examples: I have a right to my car, to my book, to the services of my employee, to the invention which I have patented, to delivery of the thing which you have sold me. I also have a right against the person who has sold me a car, against my employee who must provide me with his services, against all others who must respect my right to my car, my book, and so on. Let us put this in legal language: legal subjects have rights against one another in respect of the objects of their rights. But first, who is a legal subject? A legal subject is a person who is subject to (or under the control of) the norms of the law (see “norms” in learning unit 1) and who also may be the bearer (holder) of rights and duties. It is important to note that the term “person” does not only refer to ordinary human beings or natural persons, but also to associations or bodies of people (for example, entities and companies), which are known as juristic persons. Just like ordinary human beings or natural persons, juristic persons can also have rights and duties in terms of the law. Therefore, a legal subject is a person, which includes a natural person or a juristic person. In modern law every person is a legal subject. In ancient Roman times, however, the law held that a slave could have no rights. A slave was not a legal subject, but was the object of a right. A slave was the object of her owner’s right to her. (You may now ask why we are referring to Roman law. The answer is simple: The beginnings of our law can be traced back to the law of the ancient Roman Empire, which lasted from the first to the sixth century after the birth of Christ (AD). See learning unit 3 for a brief historical overview of the Roman history.) The object of a right (a legal object) may be anything that is of economic value to a person. Something may have economic value because it costs 26  LEARNING UNIT 2: Law and rights a lot of money. It may also have economic value because it is something which is scarce and therefore difficult to come by, or because it is useful and many people wish to have it. It may be of value only to a particular person (e.g., that person’s good name); or it may be of value within a particular circle of people (e.g., a painting of a family). 2.3 Four classes (kinds) of rights in terms of the private law Rights are put into particular groups, and we do this by deciding what kind of right it is. We can find out the kind of right by finding out what the object of the right is. We can distinguish four kinds of rights, each with a specific object, which we will explain in further detail below: (1) real rights (object: a thing) (2) personality rights (object: personality property) (3) intellectual property or immaterial property rights (object: a non- tangible creation of the human mind) (4) personal rights (object: performance) (1) Real rights. Real rights are rights to physical, material things, which we can touch, such as a pen, a car, a herd of cows (a herd of cows is seen as one unit), or the compressed air in a cylinder. Although the object of a real right is always a thing, the real rights themselves would be called, for example, rights of ownership, rights of pledge, and rights of servitude. But what does having a right allow us to do? What powers do we have? The powers that we may exercise are what make up the content of a right. Perhaps we can explain what we have just said by using the examples of real rights that we have mentioned, namely ownership, pledge and servitude. In the case of ownership, the owner of property may freely use and enjoy her property. It does not matter whether it is movable property, like a car, or immovable property, like a farm. The owner can also alienate it (that is sell or give it away). She can even destroy it if she chooses. Therefore, the owner’s powers to freely use, alienate and destroy the property are the powers which form the content of the owner’s real rights of ownership. ILW1501/1 27  The second real right that we mentioned above was that of a pledge. When we pledge something, we give a movable thing as security for a debt (e.g., a person may give her horse to someone whom she owes money to as security for the debt. When she pays the debt, she gets her horse back). The pledgee (that is the person who receives the movable thing as security for the debt) does not have the same powers as the owner of the thing, as far as her real right to this object is concerned. She does not own the thing, but only possesses (controls) it. She may not use or enjoy the pledged thing. Thus, the powers of the pledgee over the pledged thing are limited and her right to the thing is known as a limited real right. And now we come to the third real right mentioned above: servitude. An example of a servitude is the right of way one person has been given over the land of another person. This entitles the servitude holder to use a road or pathway through the land of another person. Her powers (content of her right) are also limited and she may only use the owner’s land for this purpose and no other. Thus, the servitude holder, like the pledgee, has a limited real right to the property of another person. Now that we understand that real rights may be limited in certain instances, can you distinguish real rights from limited real rights in the example below? Mr and Mrs Khumalo own a beautiful five-hectare fruit farm in the Western Cape. Mr and Mrs Venter are neighbours to the Khumalos. In order for the Venters to gain access to their own property, they share a driveway with the Khumalos, even though the driveway falls on the land that belongs to the Khumalos. This arrangement was agreed upon by the Khumalos and the Venters, and the agreement was registered at the Deeds Office. The Venters decide to erect a carport along the driveway as an additional parking space for their car. As the driveway is quite wide, the carport does not block the Khumalos’ vehicles from entering or exiting their farm. You should be able to distinguish the following real rights and limited real rights from each other: Both the Khumalos and the Venters have real rights in respect of the properties that they own. This means that as owners of each property, the Khumalos and Venters may freely use, alienate and/ 28  LEARNING UNIT 2: Law and rights or destroy their properties, as these are the powers which form the content of an owner’s real rights of ownership. The Venters hold a servitude in respect of the driveway that falls on the land belonging to the Khumalos. This entitles the Venters to use the driveway, even though the land belongs to the Khumalos. The Venters are therefore servitude holders in respect of using the Khumalos’ driveway. The Venters’ powers (contents of their right as servitude holders) are therefore limited and they may only use the Khumalos’ driveway in order to enter or exit their own property and for no other purpose. Therefore, the Venters may not build a carport in the driveway as they do not own the land on which the driveway is situated. The Venters only have limited real rights as servitude holders in respect of the driveway. (2) Personality rights. Personality rights are the rights each one of us has to parts of our person and personality. Examples of these rights are the right to physical integrity (that is a right to your own body), the right to your good name or reputation, and the right to your honour. We can say that the objects of these rights also have economic value in a broad sense. They have no market value, but what gives them value is that they are scarce and not freely obtainable as far as the holder of the right is concerned. (3) Intellectual property rights. Intellectual property rights relate to the creations of the human mind. A work of art, an invention, and a trademark are examples of objects of intellectual property rights. These rights are also sometimes called immaterial property rights. Copyright over what an author has written is an example of an immaterial property right. That is why it is against the law to copy another person’s artwork or song and present it as your own creation. (4) Personal rights. A personal right is a right to performance. It is also called a claim. When we speak of performance, it refers to a human action. Strangely enough, this human action may be an action of either doing something or not doing something. We may have a right to the action of another person. The action may be the delivery of something by the seller, the payment of the purchase price by the buyer, or the services of an employee. In these instances, it is the action of doing something. We said that the human action may also be not doing something. We may demand that a former employee of our company (e.g. an estate agent) does not compete ILW1501/1 29  with us within a particular area because she has agreed in a contract that she will not do so. This right is also called a personal right, because it is a right to performance. In this instance it is the action of not doing something. NOTE You would have noticed that although personal rights and person- ality rights sound similar, they are, in fact, very different kinds of rights! Remember that: A personal right is a right to performance and is also called a claim. It deals with human action (an act of either doing something or not doing something). The object of a personal right is performance. A personality right is a right that each individual has to parts of his/ her personality. It deals with a person’s physical and non-physical integrity. The object of a personality right is personality property. 30  LEARNING UNIT 2: Law and rights We can illustrate the different classes of rights that we have discussed above as follows: A right: Dual relationship ILW1501/1 31  2.4 Other meanings of the term “right” Often we find the term “right” used differently in everyday language and even in legal literature. Instead of saying: “Jane Mothibe has the right of ownership of her house”, we might say: “Jane Mothibe has the right to use and sell her house”. What we have to remember when we use language in this way and we say that Jane has the right to use and sell her house, is that the right Jane Mothibe has to use and sell her house is simply the powers she can exercise in respect of the thing to which she has the right of ownership. These powers form the content of her right. We sometimes use the word “right” in yet another way. We say, for instance, that someone has a “right to appear in court” or the “right to enter into a contract”. This is obviously not a right in the way that we have explained above. We said that there must be a legal subject, in other words holder of a right, and that what you have a right to is called the object of the right. We also said that there is a legal relationship between the legal subject and the object of the right and between you, the legal subject, and the other legal subjects who must respect your right. So, when we speak of a “right to appear in court” or the “right to enter into a contract”, there is no legal object or legal relationship with other people involved. Here we are speaking of an “ability” which the law gives to a person in accordance with his status or legal standing. It is usually indicated by the technical term “capacity”. We frequently come across “rights” in the Constitution when dealing with fundamental rights or human rights in the “Bill of Rights”. The idea of fundamental rights or human rights is, of course, not new. From the very earliest times, thinkers have been discussing and arguing about the idea of human rights. In our own time, particularly since World War II, there has been a lively interest in the subject. We shall discuss fundamental rights and the question of a Bill of Rights in learning unit 8. 2.5 The connection between law and right What is the connection between law and right? Let us take the simple example of ownership. The properties on which the Mothibes and the Van der Merwes live are next to each other. The Mothibe property is registered in Jane’s name and the Van der Merwe property is registered in Karel’s name. We have already told you that the content of a right is made up of the powers that the holder of a right may exercise. So, the following powers make up the content of Jane’s right of ownership: she may use 32  LEARNING UNIT 2: Law and rights her land, let it, burden it with a mortgage (that is, give it as security for a loan to be repaid), decide to leave it to her children or to someone else when she dies and so she will state this in her will (bequeath by will), sell it, et cetera. Karel’s right of ownership allows him the same powers. However, there is a limit to their powers. If there were no limit, Karel and Jane would be constantly quarrelling. The law brings about a balance between the interests of Jane and Karel. There are a number of things which a landowner (in our story, Jane and Karel are landowners) may not do and which would be a nuisance or cause harm to the neighbouring property. The following are a few examples: Jane may not build right up to the boundary of her land: there is a municipal regulation that prohibits this. She may not dig a ditch at the boundary because this would cause Karel’s land to sink. She may not cause excessive smoke on her land, for example, by lighting a fire, because this would be a nuisance and make life unpleasant for Karel. Karel may not do these things either. If either Jane or Karel commits such a prohibited act, then the law comes into operation. Jane or Karel will be forced to remove the nuisance, or to compensate the other party. It is most important, when studying law, that you remember at all times that the content of a right is limited. You must also remember that “law” and “right” are connected, because it is the rules of law (legal rules) that decide what the powers of the holder of a right are (in other words, the content of a right), and what the limits to the content of a right are. We would like to make a final comment about rights. When a legal subject has a right, the other legal subjects have a duty. There must always be this balance. For example, if I have the right of ownership to my car, the other legal subjects have a duty to respect this right. They may not use my car without my permission. If this balance did not exist, the law would have no meaning. 2.1 Let us return to the beginning of this learning unit and the Saturday morning activities of the Mothibe family. Reread the scene thoroughly. Can you recognise at least two classes of rights from this scenario? Write ILW1501/1 33  down your thoughts on these two classes of rights before you read the feedback on this activity. ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ In our scenario, Thomas Mothibe and the Speak-well Language Institute have entered into a contract. Tom Mothibe assisted his son, Thomas, to enter into the contract because Thomas is a minor and can only enter into a binding agreement if assisted by one of his parents. Before entering into the contract, Thomas, his father and the representative of the Speak-well Language Institute agreed on the terms of the contract. Now that the contract has been entered into, Thomas has a right to language classes and the Institute has a right to payment. So, it is clear that the matter of rights is involved here. Thomas has a right (claim) to the performance (a personal right to performance) of the Language Institute. The Institute has a corresponding duty to perform. The Institute will perform by giving Thomas classes. The Institute has a right (claim) to performance by Tom and Thomas and Tom and Thomas have a duty to perform by paying the fees as agreed in the contract. At the same time as Tom and Thomas Mothibe were at the Speak-well Language Institute, Jane and Bongiwe Mothibe were buying shoes. The shoe transaction also involved a contract, whereby Jane had a right to receive the shoes and the shopkeeper had a right to payment for the shoes. This means that Jane had a personal right (a claim) to performance from the shopkeeper and the shopkeeper had a personal right (a claim) to 34  LEARNING UNIT 2: Law and rights performance from Jane. Both Jane and the shopkeeper had corresponding duties to perform: Jane’s duty was to pay the shopkeeper and the shopkeeper’s duty was to hand over the shoes. When Jane gave the shoes to Bongiwe, Bongiwe became the owner of the shoes. Therefore Bongiwe now has a real right (ownership) to her shoes. Did you recognise the rights involved in the visit to the cinema? In the first place, personal rights are involved in the purchase of the tickets. Once again, the holders of the tickets have a personal right to performance by the cinema. In other words, they have a right to see the movie. The cinema has a duty to show the movie. Also, the cinema has a personal right to payment for the tickets and the family has a duty to pay for the tickets. However, the mere showing of the film also involves rights. Here the right is an immaterial property right (in this instance copyright), which vests in the movie company that made the movie. The cinema must enter into an agreement with the movie company to obtain permission to screen the movie. 2.2 Read the scenario given below and write down the rights that you recognise in it. What class of rights does each right belong to? Francine Blom, who works for the Van der Merwe family, has not been to work since Monday. On Thursday she arrives and explains that she will not be able to come to work for the next three weeks. She shows Martie van der Merwe her right arm, which is in a sling. In great detail, she tells Martie how the injury to her arm was caused. Francine took a taxi home on Monday evening, as usual. During the trip, the taxi in which she was travelling was involved in a collision. The driver of the other vehicle did not stop at a red traffic light. Although some of the passengers were injured, Francine fortunately was not hurt. However, the new radio which she had just bought was smashed. Soon the police were on the scene and took various statements. Francine then decided to walk the rest of the way, as her home was only a few streets away. By this time it was nearly dark. Francine was unaware of the fact that municipal workmen had been repairing the stormwater drain across the street from her house that day. As Francine crossed the street, she stepped into a deep hole left by ILW1501/1 35  the workmen and broke her arm. There was nothing around the hole to prevent someone from stepping into it. There were no red and white striped tape, no warning sign or light and Francine could not see the hole in the dark. Some friends heard her cry out and they helped her out of the hole and took her to the hospital. She had to spend the night in hospital. ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ You should at least have recognised the following classes of rights in our story:  Real right: Francine buys a new radio. Francine’s right to the new radio that she bought is a real right and is called ownership.  Personal right: Francine buys a new radio. She has a personal right (claim) against the seller of the radio, in other words a right to delivery o