Chapter 1- Introduction to South African Law Flashcards
1
Q
Three rules people live by.
A
- Social Rules
- Moral Rules
- Religious Rules
2
Q
What is a Social Rule?
A
Rules such as manners and etiquette
3
Q
What are Moral Rules?
A
Rules such as the behaviour of a personal or sexual nature.
4
Q
What is a Religious Rule?
A
Rules such as attendance at church.
5
Q
Why do legal rules differ from social rules?
A
Legal rules are enforceable in the court of Law.
6
Q
What is The Law?
A
A set of rules used to control the behaviour of people in society.
7
Q
What is the purpose of The Law?
A
To order society and to create an environment in which people can interact on the basis of certainty.
8
Q
What does The Law provide?
A
A form of guarantee that various parties, for example, parties to a contract or relationship, will perform their obligations to each other or be punished or held liable.
9
Q
Law is defined as a body of rules that?
A
- Govern the conduct of natural and artificial persons ( like a company)
- Tell you what you are allowed and not allowed to do, as well as what others are allowed and not allowed to do to you.
- Are recognized by the State as binding and enforceable.
10
Q
What can influence the law?
A
The environment that is why different countries has different legal systems.
11
Q
What does the law reflect and is influenced by?
A
The social, moral, and religious rules.
12
Q
What is the first set of laws known as?
A
Indigenous laws or customary law.
13
Q
What occurred in 1652?
A
The Dutch came to South Africa. They inforced the Netherlands legal system, known as the Roman-Dutch Law.
14
Q
What occurred in the early 1800s?
A
The English legal system took over from the Dutch.
15
Q
What occurred in 1910?
A
Four colonies join together. They formed one central government, they created the Union of South Africa.
16
Q
What does the South African law mainly come from?
A
- The people who were there from the beginning
- Dutch settlers from the Netherlands
- The British setterlers
- The liberation movement
17
Q
What are the sources of Law?
A
- Constitutional Law
- Statue Law/ Legislation
- Common Law
- Precedent
- Customary Law
18
Q
What is the Constitutional law known as?
A
It is known as the Supreme law.
19
Q
What kind of state is South Africa?
A
South Africa is a constitutional state and all legislation enacted by the Parliament are subject to the contition.
20
Q
Which source of Law has a direct influence on legislation?
A
The Constitutional Law.
21
Q
What does it mean when a source of law has a direct influence on legislation?
A
It means that legislation that is in conflict with the Constitution can be struck down by the court.
22
Q
What type of legislation is of no legal force or effect?
A
Legislation that is in conflict with the Constitution.
23
Q
True or false?
No other law or government action can supersede the provisions of the Constitution?
A
True
24
Q
Who can make their own constitutions?
A
Provincial governments can make their own constitutions as long as it does not contradict the national constitution.
25
What is important to the people of South Africa?
The Bill of Rights.
26
What is protected by the Bill of Rights?
Fundamental or basic rights include the right to equality, human dignity, life, freedom of religion, belief, and opinion. The right to freedom of expression falls under protection.
27
What is void?
Not valid or legally binding.
28
What rules are considered to be void?
Any LEGAL rule that is in conflict with the Bill of Rights.
29
Give an example of where the bill of rights declared an act unconstitutional.
In terms of the bill of rights, the Constitutional Court declared that the death penalty is unconstitutional. It is in conflict with the right to life.
30
What law is known as the written law made by the government?
Statute law, also known as Legislation.
31
What is the law called that was made by the Parliament?
Laws made by the Parliament are called Statues or Acts.
32
What is the government newspaper known as?
It is known as the Government Gazette.
33
What does it mean when a statute law says, for example, the Tabacco Products Control act 83 of 1993?
It means that it was the 83rd law passed in 1993.
34
True or False?
| The Constitutional court cannot declare any statute law invalid.
False. The Constitutional court CAN declare any statute law as invalid.
35
Who can give the Ministers the power to make less important laws to other groups of people?
The Parliament can.
36
How can the statute law give a person, like a Minister or a body power?
It can give a person or body power to make regulations.
37
True or false?
| Provinces, towns and cities are allowed to make laws that apply only to them.
True.
38
What law is known as the set of laws that are not made by the Parliament or at any level of government?
Common Law.
39
What laws are part of the common law?
Laws against such as murder, rape, theft and treason are part of the common law.
40
How does the Common Law develop?
The common law is developed through the decisions of judges in the High Courts and the Supreme Court of Appeal.
41
Can the common law be changed?
Yes, it can be changed when a new decision is made in court.
42
How did the common law reach South Africa?
The Roman-Dutch and English Law brought by the Dutch and British settlers.
43
True or False?
| South Africa, UK and USA follows a common law system.
True.
44
What played an important role in the early development of common law?
The writing of several legal academics.
45
What is considered as a Precedent law?
Precedent Law is a decision made previously in court for a specific case.
46
What does stare decisis mean?
To stand by previous decisions.
47
The development of the stare decisis.
The precedent law led to the development of a DOCTRINE that originated in England.
48
What is considered as a stare decisis rule?
Courts are bound by their previous decisions made by the higher court and previous judgments. Thus it is binding and creates precedent that must be followed.
49
Who was in South Africa before the colonists arrived?
Indigenous populations. They lived by their own distinctive law.
50
What is Customary Law?
This law is passed on verbally from generation to generation and is not written down. It has certain characteristics. This law has a strong tie with different cultures and traditions.
51
What does the indigenous law consist of?
The customs of groups of people who live in accordance with traditional, normally unwritten rules.
52
Why is indigenous law considered to be customary law?
It is not amended or abolished by legislation.
53
When and where are indigenous laws applied?
It is applied in ordinary courts when the parties chose.
54
Which act stipulates that a court can take judicial notice of indigenous laws?
Law of Evidence Amendment Act 45 of 1988.
55
What does 'Judicial notice' mean?
It means that indigenous laws do not have to be proved, the courts may simply accept them.
56
True or false.
| The British started a tradition of classifying the law into disciplines or branches?
False.
| The ROMANS started a tradition of classifying into disciplines or branches.
57
To what large extent does the law classification show?
It shows to a large extent how the different areas of law function together.
58
Into what divisions are the law divided?
The law is divided between international and national law.
59
Why is law divided into international and national law?
To distinguish between laws that operate between countries.
60
What type of laws are divided into international and national divisions?
Law that governs diplomatic relations, international boundaries, and airspace.
61
National law is then divided into two categories, what are those categories?
The first is Substantive law and the other one is Adjective Law.
62
What is Adjective Law?
Adjective law concerns the process of HOW law is enforced. It contains the law for criminal and civil procedure, evidence, and legal interpretation.
63
What is Substantive Law?
Substantive law is part of the law the determines the CONTENT AND MEANING of the different legal rules. Substantive law is enforced through processes determined by ADJECTIVE LAW.
64
What does the public law detemine?
The public law determines the extent of STATE AUTHORITY.
65
What is the extent of state authority?
It regulates the organization of the state, the relations between the different organs of the state, and the relations between the state and its subjects.
66
True or false
| Does the law give state authority over individuals?
True. Yes, it does.
67
What laws does the state authority division include?
Constitutional law, administrative law, and criminal law.
68
In a criminal case, what does the state prosecute the accused person for?
The state prosecutes the accused person for committing a crime and breaking the law. For example rape, public violence, assault, theft, and trespassing.
69
What does prosecute mean?
Prosecute means that the state makes a charge against someone.
70
What laws fall under Substantive Law?
Public and Private law.
71
What does Private law regulate?
Private law regulates the relationship between individuals where the relationship is equal, and one party does not have authority over the other.
72
What procedure apply in private law?
The civil law procedure applies in private law.
73
What does the private law include?
1. The law of persons
2. Family Law
3. The law of personality
4. Indigenous Law
5. The law of Patrimony
74
What is the law of patrimony?
1. Property (Ownership) Law
2. Law of succession
3. Law of obligations
4. Law of intellectual property.
75
What is civil law?
It is a set of rules for private relationships.
76
What does civil law include?
1. Marriage and divorce
2. Debt
3. Rent agreements
4. Eviction
5. Damages to property
6. Injury to people
7. Hire- purchase agreements
77
True or false
| The state takes side civil law case
False. The state does not take sides in a civil law case.
78
What is the meaning of plaintiff?
A plaintiff is a person who bought the case to the court. The plaintiff feels that he/she was wronged by another.
79
What is the meaning of the defendant?
The defendant is the person that is being sued or the person who might have wronged the plaintiff.
80
What occurs when the plaintiff wins the case?
The court usually orders the defendant to pay compensation (in money), or they are ordered to start or stop doing a certain action.
81
Why can the state be involved in a civil law case?
If a party is being sued or issuing for a wrongful act.
82
What does the Law of obligation regulate?
It regulated the type of relationship between persons where one person has a right against another for performance and the other person has a corresponding duty to perform.
83
What is this type of relationship known as, where one person has a right against another for performance and the other person has a corresponding duty to perform
This relationship is known as an obligation.
84
What creates obligations?
Contracts and delicts.
85
What is the process of making law?
Step 1:
Making of law begin with a discussion document, known as a GREEN PAPER
The green paper is drafted by the MINISTRY or DEPARTMENT dealing with the situation.
The green paper is published for comments and suggestions.
Step 2:
The green paper is followed by a more detailed document known as the WHITE PAPER.
The white paper is a broad statement of government policy.
This is drafted by the relevant department or task team.
It is then published for comments, suggestions, and discussions.
Step 3:
After the white paper has been approved it is drafted into a BILL.
A BILL IS THE DRAFT VERSION OF A LAW OR ACT.
There are two different types of bill, national or provincial.
The cabinet may consider proposals and the document is published in the gazette as a draft bill.
The draft bill is open for PUBLIC COMMENTS.
State Law advisers examine the drafted bill.
The proposal is printed by Parliament and given a number.
Step 4:
The drafted bill is introduced. It is no longer a draft version. This is known as the first reading.
The bill is introduced in the National Assembly or the National Council of Provinces.
Different parties represented by Parliament discuss the Bill.
After multiple houses approve of the bill it is sent to the PRESIDENT to sign.
IT IS PUBLISHED IN THE GOVERNMENT GAZETTE AS AN ACT.
