CML - Mod 1-3 Flashcards
what is law?
body of rules that regulate human conduct, enforced by state and binding
what is law’s primary purpose?
ensure order and justice in all spheres of the community
what is rule of law?
for laws to be considered just they must be reasonable, apply equally in all circ, predictable, no one above the law
what is organs of state?
the SA state structure, powers and functions from consititution
what are the three organs of state?
- legislature
- executive
- judiciary
what does the executive do?
enforces laws, led by pres and ministers
what does judiciary do?
apply the laws, comprised of courts
what is a legal subject?
someone capable of holding rights and capabilities
what is a juristic act?
an act to which the law attaches consequences envisaged by parties
what is nasciturus fiction?
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
types of companies
(Pty) Ltd - private (Ltd) - public (NPC) (Inc) - limited liability (SoC Ltd)
what is a right?
a legal interest protected by law
what is corporeal items?
tangible items
what is trademark?
words/symbols which represent a company/product legally registered with CIPC
CIPC?
companies and intellectual property commission
what is patent?
gives an inventor the right to stop people from making/using their creation (register with CIPC). last up to 20yrs
what is copyright?
an exclusive right granted for a limited period for an original work
what is a personal right?
a right than can be held against and only enforced against a specific person
what is a real right?
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
how are personal rights usually created?
- by agreement / contract
- someone getting an unfair benefit at the exp of another person
- harm done by another person that causes injury
what is vicarious liability?
employees are liable for harm caused to their employees while they perform their duty
what is rei vindicatio?
you can get a court order to reclaim a laptop stolen and sold to someone else
what is legal liability?
the condition of being bound to a legal duty and bearing civil consequences for failure
what is criminal liability?
the duty to abide by provisions of criminal law as defined by state and bear punishment that comes with failure
upon whom does the burden of proof in a criminal case lie?
the state – have to prove beyond reasonable doubt
what is in Child Justice Act?
a child <10 cannot be prosecuted for criminal offences. 10-14yrs lacks criminal capacity unless state proves otherwise.
what is civil liability?
arises from private relationships, depending on breach of obligations
plaintiff?
institutes legal proceeds
appellant vs respondent?
the party who appeals vs defends the case
what is delict?
wrongful conduct that causes harm to another persons property/ personality
what is the elements of delict?
- act/conduct
- wrongfulness
- culpability / fault (intentional, negligent)
- causation
- harm or injury
delictual capability of minors?
not in under 7s
7-14 also no, must be proven by state
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
what is contractual liability? + for children ages
u7 = no
7-14 = no, must prove
when one is in breach of contract
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.
name the courts
Constitutional
Supreme court of appeal
high court of SA
Magistrate’s courts
lower courts
magistrates or similar
superior courts
high courts or similar to C, SCA, HC
what is jurisdiction?
the power of a court to hear and determine an issue before it
when does an appeal arise?
where a party in court proceedings is no satisfied by the judgement in court a quo
what are merits of a case?
facts presented in evidence and then law is applied to them
what is a review?
concerned with challenging the process of court proceedings on irregularity – bias and illegality
how is jurisdiction determined in a criminal case?
- kind of offence
- possible sentence
how is jurisdiction determined in a civil case?
- amount claimed
- nature of relief sought
presiding officers in cons courts?
justices. minimum of 8 to hear a matter
11 = full bench
what jurisdiction does cons courts have?
- any matters which affect the gp
- constitutional matters
how do cases reach cons courts?
through an appeal from SCA, or CC grants them leave to address the matter directly
does a cons court have exclusive jurisdiction?
over constitutional matters
what is a bill?
proposed piece of legislation
which courts cannot jurisdict constitutionality??
courts lower than high courts and also cannot rule on the conduct of the president
supreme court of appeal?
- final appeal court in all non-cons matters
- full bench is 5, pres may allow 3
presiding officers in high courts?
judges
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
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
two types of magistrtates courts
regional
district
magistrate courts info
- POs are magistrates
- has territorial jurisdiction
- no review/appeal jurisdiction
regional MCs deal with?
- divorce
- civil claims 200-400
- serious criminal cases (300k or life sentences)
- not treason
district MCs deal with?
- civil claims less than 200
- criminal less than 3yr sentence, max fine 100
special courts?
- higher, lower
- specialised litigation
- jur ltd to terms in legislation
special higher courts?
- labour (appeal) court
- inc tax appeals
- competition appeal
- land claims
special lower courts?
- children’s court
- maintenance court
- divorce court
CCMA
- comm for conciliation, mediation and arbitration
- alternative method for dispute resolution
different sources of law
- components which presently make up the law
- constitution, legislation
two houses in parliament?
- national assembly
- national council of provinces
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
types of legislation?
- original
- delegated
- roman-dutch law
- judicial precedent
what is the og legislation?
- acts of parliament – statute
- consistent w constitution
what is the delegated legis?
- consistent w cons, legislative pwrs are delegated in terms of statute
- may be ultra vires
ultra vires?
beyond scope of authority / unconstitutional
what is the judicial precedent?
previous court decisions
what does a court judgement consist of?
- case facts
- legal qs to be answered
- application of law
- decision
- ratio decidendi
- incidental remarks
obiter dictum?
incidental remarks about a case made by PO
what is the doctrine of precedent?
ensures like cases are treated alike
stare decisis?
- stand by prev decisions
- first court to speak on an issue est principle – others follow and this becomes binding
ratio decidendi?
- reason for decision
- when a court deals with an issue not explicitly covered by binding source of law, may follow obiter
persuasive force?
is binding
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
court hierarchy for ratio?
CC - SCOA - HCs - MCs
if a case is heard by more than one presiding officer?
the ratio of majority is binding and minority is persuasive force
foreign precedent?
persuasive force but not binding
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
international law?
consists of laws that govern relations between states
customary int law?
results from general consistent practice that states follow from a sense of legl obligation
foreign law?
- law of other states
- has persuave force
- may be considered when interpreting bill of rights
branches of law
- international
- national
- public law
- public law
public law?
- governs state and its powers/deals with rel between state and citizen)
- cons law, admin law, crim law, tax law
private law?
- legal rel between citizens
- law of persons and family
- mercantile law
- law of property
- law of succession
- law of obligations
civil union?
- voluntary union of two people over 18
- solemnized and registered by way of marriage or civil partnership
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
what is customary law?
customs observed amongst indigenous SA people
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
failure to register customary law marriage?
does not affect validitiy
can you change marriage system?
yes, from customary to civil ito Marriage Act
religious marriages?
- not governed by legislation
- will only be valid if the religious leader is a marriage officer in terms of the Marriage Act
when can a court recognise an invalid religious marriage as legal?
for duty of support
legal consequences of marriage?
impact on estate – reciprocal duty of support
variability in support?
invariable for reciprocal duty of support
variable for antenuptial contracts
what is an antenuptial contract?
an agreement between the intending spouses before marriage and which seeks to arrange their matrimonial regime and related matters
things that can be incl in antenuptial contracts?
joint household exp, settlements if there is dissolution
which act governs patrimonial consequences / proprietary?
Matrimonial Property Act 88
liabilities in comm of property?
only ones acquired during the marriage
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
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
if there is misconduct?
one of the parties who caused the breakdown may lose their benefits partly / wholly
if a party waives their right to share in joint estate?
wholly / partly
- there was settlement outside of court
marriage out of comm of property?
- retain and administer estates sep
- must enter into a contract before marriage
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
exclusions from accrual?
- inhertiances, Ls, donations excl in the antenuptial contract
- is a cash pmt, not asset co-ownership
negative commencement value?
= 0
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.
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)
