Introduction to SA law

What does “law” mean?

  • Law is a body of rules that determines how natural (individuals) and juristic (companies, close corporations, educational and religious institutions, and clubs and societies) persons must behave.
  • The body of rules govern our legal relationship with each other and with things (known as property such as a house, motor vehicle, or furniture).
  • The body of rules is recognised by the Government as binding and enforceable; where legal consequences will flow if the rules are not adhered to (for example imprisonment will follow for murder or rape).
  • The purpose of the law is to bring about peace and order.
  • Law can be divided into substantive law (which provides the meaning and content for the body of rules) and adjective law (which determines how the substantive law must be enforced – it establishes the procedures of the civil and criminal courts).
  • The law differs from:
    • ethics (these are rules that individuals give to themselves to develop their personal character, for example “I will not swear”. There is a sense of guilt if a person does not follow his/her ethical rules); and
    • positive morality (these are rules set by the community, for example “eat with a knife and fork”. The community rejects you for not following its rules).
    • Ethics can develop into positive morality which can develop into law (for example homosexual marriages became legal on 1 December 2006).

What is the source of South African law?

  • common law;
  • legislation;
  • judicial precedent; and
  • custom.
 

COMMON LAW

LEGISLATION

JUDICIAL PRECEDENT

CUSTOM


Common law consists of Roman-Dutch law with a touch of English law.


Most of our common law has been changed by legislation.

For example: the law of contract says every contract must have an offer and acceptance, the parties must have an intention to enter into a contract and have contractual capacity, the rights and duties of the contract must be possible to perform, the purpose of the contract must be lawful, and formalities must be complied with (such as a written contract) where necessary.


Legislation is the most important source of law.

It is passed by government (parliament in particular) and signed by the President.

All legislation is subject to the Constitution.

For example: the Consumer Protection Act 68 of 2008, and the National Credit Act 34 of 2005 (legislation ends with the word “Act”).


Judicial precedent means courts pass judgements.

Lower courts are always bound by higher court decisions.

A court hears a civil matter or a criminal matter.

For example: a Magistrate’s Court is bound to the reason in law to a High Court, a High Court is bound to a decision in law of the Supreme Court of Appeal, and the Supreme Court of Appeal is bound to the Constitutional Court.

There are many Magistrate’s Courts and High Courts but there is only one Supreme Court of Appeal and one Constitutional Court.


Custom is the unwritten part of South African law.

It refers to the habits of communities that become law.

For example: a fisherman understands and acknowledges that once another fisherman has cast for fish, he/she cannot cast for the same fish.

Custom is seen as law ONLY IF the custom is reasonable; has existed for a long time; is generally recognised and followed by the community; and it does not contradict an existing rule of law.

 

 

How can Legal Eagle assist you?

Legal Eagle can assist you with the following:

  • explain your rights in law (whether your debt is based on a contract, delict or unjustified enrichment); and
  • what source of law applies to your legal dispute.

Key

  • LEGAL RELATIONSHIP – the law ensures all persons have rights and duties, which other people must respect; and a person can have a right to property. The law creates a relationship (a bond) between persons, and between persons and property
  • SOURCE OF LAW – the places from where the law can be found
  • LAW OF CONTRACT – two or more parties enter into an agreement (which is a contract) which includes lease agreements, partnership agreements, employment agreements, consumer agreements, and credit agreements
  • CONSTITUTION – a document that has rules which govern South Africa, for example, it has 36 basic rights for everyone such as the right to equality and the right to freedom of association. It is the highest law in South Africa
  • COURTS - a body of courts that resolve disputes involving people and/or property. A court differs to an ombudsman and alternative dispute resolution
  • CIVIL MATTER – arises when there is a dispute between people, or people and property. There is either an action procedure (where a summons is issued by the plaintiff (the aggrieved party) to the defendant, pleadings are filed and served (these are documents setting out the parties cases), once the pleading stage is closed (a few months) then the trial starts where evidence is given by both parties, and a judgement follows (in favour or against the plaintiff)); OR an application procedure (where the court’s judgement is based on papers - the parties (the applicant and the respondent) go to court and only the set of papers is considered, without evidence being delivered)
  • CRIMINAL MATTER – arises when there is criminal activity. The process is as follows: a crime is committed, the matter is reported to the police, investigations are carried out by an investigating officer, and the evidence is given to the National Prosecuting Authority who decides to proceed with or reject the case. If the case proceeds then an arrest or a summons is made to the accused to appear in court