CML - Mod 1-3 Flashcards
1
Q
what is law?
A
body of rules that regulate human conduct, enforced by state and binding
2
Q
what is law’s primary purpose?
A
ensure order and justice in all spheres of the community
3
Q
what is rule of law?
A
for laws to be considered just they must be reasonable, apply equally in all circ, predictable, no one above the law
4
Q
what is organs of state?
A
the SA state structure, powers and functions from consititution
5
Q
what are the three organs of state?
A
- legislature
- executive
- judiciary
6
Q
what does the executive do?
A
enforces laws, led by pres and ministers
7
Q
what does judiciary do?
A
apply the laws, comprised of courts
8
Q
what is a legal subject?
A
someone capable of holding rights and capabilities
9
Q
what is a juristic act?
A
an act to which the law attaches consequences envisaged by parties
10
Q
what is nasciturus fiction?
A
can be applied to protect the interests of unborn persons. child must have been conceived at the time the benefit would have been accrued to them and must be born alive
11
Q
types of companies
A
(Pty) Ltd - private (Ltd) - public (NPC) (Inc) - limited liability (SoC Ltd)
12
Q
what is a right?
A
a legal interest protected by law
13
Q
what is corporeal items?
A
tangible items
14
Q
what is trademark?
A
words/symbols which represent a company/product legally registered with CIPC
15
Q
CIPC?
A
companies and intellectual property commission
16
Q
what is patent?
A
gives an inventor the right to stop people from making/using their creation (register with CIPC). last up to 20yrs
17
Q
what is copyright?
A
an exclusive right granted for a limited period for an original work
18
Q
what is a personal right?
A
a right than can be held against and only enforced against a specific person
19
Q
what is a real right?
A
a right held in property. can be held against anyone who tries to cause loss/damage to it. created by ownership/possession, can be transferred
20
Q
how are personal rights usually created?
A
- by agreement / contract
- someone getting an unfair benefit at the exp of another person
- harm done by another person that causes injury
21
Q
what is vicarious liability?
A
employees are liable for harm caused to their employees while they perform their duty
22
Q
what is rei vindicatio?
A
you can get a court order to reclaim a laptop stolen and sold to someone else
23
Q
what is legal liability?
A
the condition of being bound to a legal duty and bearing civil consequences for failure
24
Q
what is criminal liability?
A
the duty to abide by provisions of criminal law as defined by state and bear punishment that comes with failure
25
upon whom does the burden of proof in a criminal case lie?
the state -- have to prove beyond reasonable doubt
26
what is in Child Justice Act?
a child <10 cannot be prosecuted for criminal offences. 10-14yrs lacks criminal capacity unless state proves otherwise.
27
what is civil liability?
arises from private relationships, depending on breach of obligations
28
plaintiff?
institutes legal proceeds
29
appellant vs respondent?
the party who appeals vs defends the case
30
what is delict?
wrongful conduct that causes harm to another persons property/ personality
31
what is the elements of delict?
- act/conduct
- wrongfulness
- culpability / fault (intentional, negligent)
- causation
- harm or injury
32
delictual capability of minors?
not in under 7s
| 7-14 also no, must be proven by state
33
what is a negligent person?
if a reasonable person in their position could have foreseen the poss of their conduct harming another and taken reasonable steps to guard against such occurrance and failed to take steps
34
what is contractual liability? + for children ages
u7 = no
7-14 = no, must prove
when one is in breach of contract
35
what is unjustified enrichment?
if one party is enriched at the expense of another and no legal basis exists for the transfer of benefit. the person who was unjustifiedly benefitted may be liable to return the benefits.
36
name the courts
Constitutional
Supreme court of appeal
high court of SA
Magistrate's courts
37
lower courts
magistrates or similar
38
superior courts
high courts or similar to C, SCA, HC
39
what is jurisdiction?
the power of a court to hear and determine an issue before it
40
when does an appeal arise?
where a party in court proceedings is no satisfied by the judgement in court a quo
41
what are merits of a case?
facts presented in evidence and then law is applied to them
42
what is a review?
concerned with challenging the process of court proceedings on irregularity -- bias and illegality
43
how is jurisdiction determined in a criminal case?
- kind of offence
| - possible sentence
44
how is jurisdiction determined in a civil case?
- amount claimed
| - nature of relief sought
45
presiding officers in cons courts?
justices. minimum of 8 to hear a matter
| 11 = full bench
46
what jurisdiction does cons courts have?
- any matters which affect the gp
| - constitutional matters
47
how do cases reach cons courts?
through an appeal from SCA, or CC grants them leave to address the matter directly
48
does a cons court have exclusive jurisdiction?
over constitutional matters
49
what is a bill?
proposed piece of legislation
50
which courts cannot jurisdict constitutionality??
courts lower than high courts and also cannot rule on the conduct of the president
51
supreme court of appeal?
- final appeal court in all non-cons matters
| - full bench is 5, pres may allow 3
52
presiding officers in high courts?
judges
53
what jurisdcition does high courts have?
civil cases over R400k
criminal cases -- treason and serious ones
appeals and reviews (of candc) in its terrirotiral juris
matters involving status -- mental illness, insolvency
54
internal appeal jurisdiction of high courts?
can have an appeal in the same court and heard by a full bench if heard by one judge
55
two types of magistrtates courts
regional
| district
56
magistrate courts info
- POs are magistrates
- has territorial jurisdiction
- no review/appeal jurisdiction
57
regional MCs deal with?
- divorce
- civil claims 200-400
- serious criminal cases (300k or life sentences)
- not treason
58
district MCs deal with?
- civil claims less than 200
| - criminal less than 3yr sentence, max fine 100
59
special courts?
- higher, lower
- specialised litigation
- jur ltd to terms in legislation
60
special higher courts?
- labour (appeal) court
- inc tax appeals
- competition appeal
- land claims
61
special lower courts?
- children's court
- maintenance court
- divorce court
62
CCMA
- comm for conciliation, mediation and arbitration
| - alternative method for dispute resolution
63
different sources of law
- components which presently make up the law
| - constitution, legislation
64
two houses in parliament?
- national assembly
| - national council of provinces
65
when need for new legislation arises?
- gov drafts green paper (puts forward policy options)
- gp is published for a comment and after a white paper is drafted that states gov policy (may be pub)
- a bill is then drafted from gov depts
- when both parliaments approve, its transferred for president sign and approve
66
types of legislation?
- original
- delegated
- roman-dutch law
- judicial precedent
67
what is the og legislation?
- acts of parliament -- statute
| - consistent w constitution
68
what is the delegated legis?
- consistent w cons, legislative pwrs are delegated in terms of statute
- may be ultra vires
69
ultra vires?
beyond scope of authority / unconstitutional
70
what is the judicial precedent?
previous court decisions
71
what does a court judgement consist of?
- case facts
- legal qs to be answered
- application of law
- decision
- ratio decidendi
- incidental remarks
72
obiter dictum?
incidental remarks about a case made by PO
73
what is the doctrine of precedent?
ensures like cases are treated alike
74
stare decisis?
- stand by prev decisions
| - first court to speak on an issue est principle -- others follow and this becomes binding
75
ratio decidendi?
- reason for decision
| - when a court deals with an issue not explicitly covered by binding source of law, may follow obiter
76
persuasive force?
is binding
77
how to identify ratio decidendi?
- material case facts
- main issue
- legal question to answer
- decision
- legal reasoning the decision was based on / can it be applied to other cases
78
court hierarchy for ratio?
CC - SCOA - HCs - MCs
79
if a case is heard by more than one presiding officer?
the ratio of majority is binding and minority is persuasive force
80
foreign precedent?
persuasive force but not binding
81
how does a custom become a binding rule?
must be certain, reasonable, and long practised to become legal and unifromly observed in the comm it applies to
82
international law?
consists of laws that govern relations between states
83
customary int law?
results from general consistent practice that states follow from a sense of legl obligation
84
foreign law?
- law of other states
- has persuave force
- may be considered when interpreting bill of rights
85
branches of law
- international
- national
- public law
- public law
86
public law?
- governs state and its powers/deals with rel between state and citizen)
- cons law, admin law, crim law, tax law
87
private law?
- legal rel between citizens
- law of persons and family
- mercantile law
- law of property
- law of succession
- law of obligations
88
civil union?
- voluntary union of two people over 18
| - solemnized and registered by way of marriage or civil partnership
89
how must marriage be solemnised?
- by a competent marriage officer
- in the presence of the parties
- provide IDs, decl of purpose of marriage, two competent witnesses
90
what is customary law?
customs observed amongst indigenous SA people
91
marriage in terms of customary law?
- both above 18
- consent to marrying each other under customary law
- must be negotiated.entered into under customary law
92
failure to register customary law marriage?
does not affect validitiy
93
can you change marriage system?
yes, from customary to civil ito Marriage Act
94
religious marriages?
- not governed by legislation
| - will only be valid if the religious leader is a marriage officer in terms of the Marriage Act
95
when can a court recognise an invalid religious marriage as legal?
for duty of support
96
legal consequences of marriage?
impact on estate -- reciprocal duty of support
97
variability in support?
invariable for reciprocal duty of support
| variable for antenuptial contracts
98
what is an antenuptial contract?
an agreement between the intending spouses before marriage and which seeks to arrange their matrimonial regime and related matters
99
things that can be incl in antenuptial contracts?
joint household exp, settlements if there is dissolution
100
which act governs patrimonial consequences / proprietary?
Matrimonial Property Act 88
101
liabilities in comm of property?
only ones acquired during the marriage
102
how can division of estate occur?
- a party must prove that their interest in the joint is / will be srsly prejudiced by the others conduct / proposed conduct
103
how can a party lose the right to a share in the joint estate?
if a divorce is granted bc of the marriage's irretrievable breakdown. court will consider misconduct, duration, circumstances that caused
104
if there is misconduct?
one of the parties who caused the breakdown may lose their benefits partly / wholly
105
if a party waives their right to share in joint estate?
wholly / partly
| - there was settlement outside of court
106
marriage out of comm of property?
- retain and administer estates sep
| - must enter into a contract before marriage
107
marriage out of comm of property with accrual?
upon dissolution, the spouse with the estate which has experienced the smallest growth during the marriage has the right to half of the diff between the two accruals at dissolution
108
exclusions from accrual?
- inhertiances, Ls, donations excl in the antenuptial contract
- is a cash pmt, not asset co-ownership
109
negative commencement value?
= 0
110
changing to marriage out of comm of property with accrual
the party must prove that it is their right to share in the accrual of the other's estate at disposal or prove they will be seriously prejudiced by the conduct of their spouse. must also show third parties will not be prejudiced.
111
patrimonial consequences of customary marriages that are polyamarous?
entered into after the commencement of the RCMA in which a partner is not a spouse in any other existing customary marriage is in comm of porperty (unless antenuptial)
