Legal Applications for Engineering (PDF)

LEGAL APPLICATIONS FOR ENGINEERING CHAPTER 1: THE SOUTH AFRICAN LEGAL SYSTEM 1.1 HISTORY OF SOUTH AFRICAN LAW Roman- South Roman English Dutch African law law law law  1.2 SOURCES OF THE...

LEGAL APPLICATIONS FOR ENGINEERING CHAPTER 1: THE SOUTH AFRICAN LEGAL SYSTEM 1.1 HISTORY OF SOUTH AFRICAN LAW Roman- South Roman English Dutch African law law law law  1.2 SOURCES OF THE LAW COMMON LEGISLATION CONSTITUTION LAW JUDICIAL CUSTOMARY CUSTOMS PRECEDENT LAW TEXTBOOKS & OLD FOREIGN LAW LAW AUTHORITIES JOURNALS PERSUASIVE VS AUTHORITATIVE SOURCES?  1.2 SOURCES OF THE LAW LEGISLATION Rules laid down by a person or a body of persons with legislative authority. Legislative bodies: Parliament → Acts of Parliament Provincial legislators → Provincial Acts Subordinate legislative bodies → Municipal by-laws Process of making of laws  1.2 SOURCES OF THE LAW CONSTITUTION Most important source of law Constitutional supremacy vs parliamentary sovereignity Consists of a preamble, 14 chapters, 243 sections and eight schedules Sets out structure, powers and functions of the State. BoR: first generation (eg right to equality, human dignity, life etc) second generation rights (right to housing, health-care, food etc) Applies to all law and binds all branches of government and all organs of state  LEGISLATURE EXECUTIVE JUDICIARY Make laws Implement laws Adjudicate N disputes by interpreting and applying the law Parliament President,Deputy Constitutional Provincial President and Court Legislatures Ministers Supreme Court of Municipal Councils Provincial premier and Appeal executive council. High Courts Municipal Councils Magistrates Court Small Claims Court Acts of Parliament; Proclamations; Judgments ARE RIGHTS ABSOLUTE? CAN THEY BE LIMITED?  1.2 SOURCES OF THE LAW CONSTITUTION Limitation of rights: S36 Conflict of rights Strict requirements to limit a right Applied ito law of general application Reasonable and justifiable… Factors: 1. the nature of the right; 2. the importance of the purpose of the limitation; 3. the nature and extent of the limitation; 4. the relation between the limitation and its purpose; and 5. less restrictive means to achieve the purpose.  1.2 SOURCES OF THE LAW CONSTITUTION Interpretation clause: S39 the values that underlie an open and democratic society based on dignity, equality and freedom must be promoted. Must take international law into account. May consider foreign law. When interpreting of any legislation and the development of the common law and customary law, a court must promote the spirit, purport and objects of the bill of rights  1.2 SOURCES OF THE LAW COMMON LAW New rules of law cannot be created through the common law. SAn developed under the influence of other legal systems, namely Roman law; Roman-Dutch law; and English law.  1.2 SOURCES OF THE LAW JUDICIAL PRECEDENT Also known as court decisions OR judgments of the courts. Primary function of the courts is to administer justice and NOT to create rules of law. There are instances where the legislation and/or the common law does not provide an answer →the courts need to decide → creating new rules of law. Judicial Precedent refers to the law created when a judge decides a case and his or her decision either creates new law or extends existing law. Lower courts are bound by the decisions of higher courts.  1.2 SOURCES OF THE LAW CUSTOMS Habits of a community that becomes so entrenched that it creates an unwritten legal rule or abolishes an existing legal rule. Green v Fitzgerald: abolished an existing legal rule. Van Breda v Jacobs: created a new unwritten legal rule.  1.2 SOURCES OF THE LAW CUSTOMS Requirements: 1. Reasonable; 2. Exists for a reasonably long time; 3. Generally accepted and observed by the community; 4. Clear and certain.  1.2 SOURCES OF THE LAW CUSTOMARY/INDIGENOUS LAW Laws applicable to specific ethnic groups in SA. Can be enforced in court. The Law of Evidence Amendment Act 45 of 1988: customary law may be applied as long as it does not conflict with public policy or natural justice.  1.2 SOURCES OF THE LAW FOREIGN LAW Other countries’ laws may be turned to for guidance. Not an authoritative source for South African law — has persuasive authority only. INTERNATIONAL LAW Set of rules generally regarded as and accepted as binding in relations between states. It serves as a framework for the practice of stable and organized international relations. In terms of the Constitution, a court must consider international law when interpreting the bill of rights.  1.2 SOURCES OF THE LAW TEXTBOOKS AND JOURNALS Contain articles, case discussions and analyses on a variety of topics. Written by legal academics, advocates, attorneys and judges. It has no inherent authority of their own but may have a persuasive influence on the courts if a methodical and convincing approach is used. 1.3 STRUCTURE OF SAN COURTS Constitutional Court Superior Supreme Court of Appeal Courts High Courts (Provincial Division) (Local Division) Magistrates’ Courts (District Court) (Regional Court) Lower Courts Small Claims Court  1.3 STRUCTURE OF SAN COURTS JURISDICTION The courts capacity and authority to hear certain matters. Factors determining jurisdiction: Authority to hear constitutional matters Geographical territory Amount of the claim in civil proceedings Severity of sentence in criminal proceedings Nature of the proceedings Appeal jurisdiction  ? pix  1.3.1 CONSTITUTIONAL COURT ▪ Seat: Braamfontein, Johannesburg (Constitution Hill). ▪ 11 Judges presiding. ▪ Highest court in South Africa iro all matters. Previously: highest court iro constitutional matters only (interpretation, protection and enforcement of the Constitution). ▪ Decisions can not be changed by any other court.  1.3.2 SUPREME COURT OF APPEAL Seat: Bloemfontein. Court of appeal. Jurisdiction over the entire country. 1.3.3 HIGH COURTS  1.3.3 HIGH COURTS 14 high courts throughout SA. Circuit courts are created when the court moves to more remote parts of country to hear matters. High courts has jurisdiction over all persons who resides in and all actions or offences that arose within the area of jurisdiction of that court. One judge Appeal: 3 judges (full bench). It can adjudicate on both criminal and civil matters.  1.3.3 HIGH COURTS Criminal matters State institutes an action against the offender. Police investigate crimes NPA (obo the State) prosecutes the offender State proves guilt beyond reasonable doubt → guilty→convicted 1.3.3 HIGH COURTS Civil matters One person institutes action against another Action or application procedure Plaintiff/ applicant proves a case on a balance of probabilities Court grants claim/application/interdict/ declaratory order 1.3.6 MAGISTRATES’ COURTS District magistrates’ Regional court magistrates’ court Specific region Specific district (wider jurisdiction than a district) Civil matters: limited to R300 000. Civil matters: limited to R100 000 Can hear divorces. Criminal matters: any crime except Criminal matters: any crime except murder, high treason & rape. Max fine high treason. Max fine of R300 000 &/or of R60 000 &/or 3 years imprisonment. 15years imprisonment.  1.3.7 SMALL CLAIMS COURT Special lower court. Civil claims only (no criminal cases). Limited to R15 000. Claims can only be brought by natural persons. Legal representation is not allowed in the SCC. Presiding officer is called a commissioner. There is no appeal process – reviewable in the High court.  OTHER COURTS Specialised courts created by statute. Examples: 1. Labour Courts 2. Land Claims Court 3. Special Court for the Superior Courts Adjudication of Tax Appeal 4. Equality Courts 5. Regional Divorce Court 6. Water Tribunal 7. Family Court Magistrates’ courts 8. Maintenance Court 9. Juvenile and Children’s Court  1.3.5 OFFICERS OF THE COURTS Registrar of the HC/ Clerk of the MC: issue processes, enrol cases, issue orders and maintain records. Sheriff: serve processes and execute judgments & court orders. Master of the HC: admin functions iro deceased & insolvent estates, liquidation of companies and affairs of persons under legal disability. Legal practitioners: Advocates Attorneys (Notary, Conveyancer)  TERM(S) OF THE DAY stare decisis (doctrine of precedent): a judge has to follow certain previous decisions of other courts on similar issues as the one before him. ratio decidendi: the reasons for the court’s decision. obiter dictum: incidental remarks or a mere opinion or a passing remark made by a judge. (1.4 & 1.6 DOCTRINE OF PRECEDENT)  1.4 DOCTRINE OF PRECEDENT AKA stare decisis Certain courts create a precedent → through their decisions → must be followed by other courts → in the same jurisdiction. This means that when a legal principle is laid down by a court → all presiding officers of the same court + those of a lower court are bound by this principle and must follow it.  1.4 DOCTRINE OF PRECEDENT Ratio decidendi creates a precedent and is binding on certain other courts, whereas an obiter dictum is not binding on other courts but has persuasive value only. Lower courts are bound by the decisions of higher courts. Courts may only deviate from a previous decision if they believe that it was wrongly decided.  1.4 DOCTRINE OF PRECEDENT: EXERCISE 1. The SCA is only bound by ??? 2. High courts are bound by ??? 3. A single judge in a High Court is bound by ???  1.4 DOCTRINE OF PRECEDENT: EXERCISE- ANSWERS 1. The SCA is only bound by its own decisions and that of the CC 2. High courts are bound by the decisions of the CC, SCA and other High Courts in the same jurisdiction 3. High courts are bound by the decisions of the CC, SCA and other High Courts in the same jurisdiction (including full bench decisions)  EXERCISE The South Gauteng High Court made a ruling regarding the definition of a certain word in the Consumer Protection Act. Answer the questions below with respect to the jurisdiction of the courts. 1. Would the Supreme Court of Appeal be bound by the South Gauteng High Court’s interpretation? (1) 2. Would the Western Cape High Court be bound by the South Gauteng High Court’s interpretation? (1) 3. Assume that the Western Cape High Court interprets the same definition in a different manner. Which decision would the Roodepoort Magistrates Court be bound by? Discuss the relevant legal principle. (3)  ANSWER: Q3 South Gauteng HC. (1) Stare decisis: (1) MC are bound by the decisions of the HC. Where two high courts have given different decisions, a lower court will be bound by the decision of the higher court in its jurisdiction (1).  1.5 INTERPRETATION OF STATUTES Used when the meaning of legislation must be determined. Ambiguous or imprecise words: various theoretical rules and methods are used to interpret what the statute seeks to achieve. It is a dynamic and functional process through which the text of the legislation and the contextual factors surrounding it are objectively researched to determine the purpose of the legislation and give effect to it in the light of the principles prescribed by the Constitution.  1.5 INTERPRETATION OF STATUTES RELATIONSHIP BETWEEN STARE DECISIS AND INTERPRETING STATUTES Legislature makes laws & judiciary applies laws An interpretation of a statute by a superior court will bind lower courts to that interpretation of the statute.  1.5 INTERPRETATION OF STATUTES INFLUENCE OF THE CONSTITUTION ON THE INTERPRETATION OF STATUTES Any Act/provision in conflict with the Constitution can be declared invalid. The values and norms on which the Constitution is based must be taken into account Section 39 of the Constitution when interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law. when interpreting any legislation, a court must promote the spirit, purport and objects of the Bill of Rights. 1.5 INTERPRETATION OF STATUTES GENERAL PRINCIPLES 1. The meaning of a provision must be determined by its language and its context in the legislation read as a whole. 2. Any reasonable interpretation of a provision that is consistent with the purpose and scope of that legislation must be preferred over any alternative interpretation that is inconsistent with its purpose and scope. 1.5 INTERPRETATION OF STATUTES INTERPRETATION ACT 33 OF 1957 The Act applies to the interpretation of every law. It contains: general definitions of terms frequently used in legislation, rules about gender (the masculine includes the feminine), numbering, calculation of time, measurements of distance, and the commencement and repeal of legislation.  1.6 COURT JUDGMENTS Covered in par 1.4 Some reported decisions are published in law reports eg. The South African Law Reports. Reported case citation: National Sorghum Breweries Ltd v Corpcapital Bank Ltd 2006 (6) SA 208 (SCA) (leave out)  BRAINTEASER A boy is walking down the road with a doctor. While the boy is the doctor’s son, the doctor is not the boy’s father. Then who is the doctor?