Intro to SA Law (1)

Question 1

What are Normative systems?

Answer 1

are rules that regulate human conduct.

Question 2

Name the three normative systems?

Answer 2

• Positive morality, and
• Ethics
• The Law

(PET)

Question 3

Define the meaning of ‘the law’ and which sanctions/penalties are applicable?

Answer 3

• The only body of rules recognized by the state and enforced by the state, if necessary.
• Imprisonment, fines, community service etc.

Question 4

Define the meaning of ‘positive morality’ and which sanctions/penalties are applicable?

Answer 4

• Rules that apply to a particular community only.
• Being shunned from the community.

Question 5

Define the meaning of ‘ethics’ and which sanctions/penalties are applicable?

Answer 5

• An individual’s ethics and morals.
• Guilt/varying degrees of pangs of conscience.

Question 6

Ethics also refers to?

Answer 6

The moral compass that individuals set for themselves.

Question 7

What is considered to be the highest/supreme Law in SA?

Answer 7

The Constitution of SA Act 200 of 1996

Question 8

The South African common law is known as a hybrid (i.e. mixed) legal system, as it is a combination of which legal
systems?

Answer 8

• English law and indigenous law
• Roman Dutch and English law
• Indigenous law

Question 9

Which legal system underpins South African private law?

Answer 9

Roman Dutch law

Question 10

The three branches of the SA National law comprise of?

Answer 10

• public law,
• private law and
• private international law, also referred to as ‘conflict of laws’

Question 11

Define The law of obligations?

Answer 11

• An obligation refers to a ‘legal tie’ or ‘legal relationship’ that is created between parties.
• voluntarily establish such a legal tie like, or
• be established through the operation of law such as is the case like a motor vehicle accident

Question 12

Generally speaking, the law of obligations refers to the legal tie created between?

Answer 12

• the law of contract,
• the law of delict, and
• the law of unjustified enrichment.

Question 13

A contract is (Law of contracts)?

Answer 13

• an agreement between two or more parties
• who have the capacity to enter into an agreement (legally and physically possible)
• and complies with formalities (if required)

Question 14

What are the five requirements that must be met for a valid and enforceable contract?

Answer 14

• consensus
• contractual capacity
• physical possibility of performance
• legal possibility of performance
• formalities,
• consensus (i.e. agreement on all the terms of the contract);
• contractual capacity (i.e. the ability of a person to enter into a - - - contract that establishes rights and duties);
• physical possibility of performance (meaning that at the time of the conclusion of the contract, it is objectively possible to perform);
• legal possibility of performance (meaning that the agreement may not contravene either the common law or statute); and
• formalities, if required.

Question 15

Define the law of delict?

Answer 15

A wrongful, culpable act, by a person who causes another person harm.

Question 16

What are the elements of delict?

Answer 16

• conduct (act or an omission);
• wrongfulness (infringement of the innocent party’s rights is deemed to be unlawful);
• fault (intent or negligence);
• causation (damages suffered, caused by the guilty party’s conduct), and
• damages.
• conduct (which can either be an act or an omission);
• wrongfulness (which refers to the fact that the infringement of the innocent party’s rights is deemed to be unlawful);
• fault (which can either be in the form of intent or negligence);
• causation (which refers to the fact that the damages suffered, must have been caused by the guilty party’s conduct); and
• damages.

Question 17

When can one institute a claim in delict?

Answer 17

• On the basis of human conduct

Question 18

From a business perspective, it is important to note that an employer may be held liable for delicts (and crimes) committed by?

Answer 18

An employee during the course and scope of their employment, on the basis of vicarious liability.

Question 19

Define the Law of unjustified enrichment?

Answer 19

A party may institute a claim, on the basis of unjustified enrichment against another, if the latter’s estate was enriched (i.e. increased) to the detriment of the other party, where there is no legal basis for such enrichment.

Question 20

National law refers to?

Answer 20

The laws that are promulgated and enforced within SA

Question 21

What are Adjective laws?

Answer 21

• Law of civil procedure
• Law of Evidence
• Interpretation Law

Question 22

Explain Substantive law?

Answer 22

Regulates the behaviour of people within a certain society

• these laws will lay out rights and duties, as well as offences and punishment

Question 23

Public law consists of?

Answer 23

• Human rights
• Administrative law,
• Criminal law
• Constitutional law
  (HACC)

Question 24

Private law consist of?

Answer 24

• Law of persons,
• Law of obligations,
• Corporate law
  (LLC)

Question 25

Describe the law of obligations as a branch of objective law?

Answer 25

Objective law is the only body of rules recognised by the state and that can be enforced, if necessary.

• The law of obligations refers to the legal ties created between parties in the law of contract, the law of delict and the law of unjustified enrichment. It also includes the relationship between legal subjects as a result of unauthorised agency, or those created as a result of the special relationship between the parties.

Question 26

Ahmed wants to sell his laptop to Anisha. Briefly explain the requirements that must be satisfied, in order for Ahmed and Anisha to enter into a valid contract?

Answer 26

For Ahmed and Anisha to enter into a valid contract there must be:
- consensus (i.e. agreement on all the terms of the contract);
- contractual capacity (i.e. the ability of a person to enter into a - - contract that establishes rights and duties);
- physical possibility of performance (meaning that at the time of the conclusion of the contract, it is objectively possible to perform);
- legal possibility of performance (meaning that the agreement may not contravene either the common law or statute); and
formalities, if required.

Question 27

Zama is involved in a motor vehicle accident with Zuleka. The accident cannot be attributed to Zama. Identify the elements that Zama must prove, in order to be successful in a claim in delict against Zuleka?

Answer 27

Zama must prove the following elements:
​​​​​- Conduct
- Wrongfulness
- Damages
- Causation
- Fault

(Dilect = CWDCF)

Question 28

Explain the meaning of unjustified enrichment?

Answer 28

A party may institute a claim on the basis of unjustified enrichment against another, if the:
- latter’s estate was enriched (i.e. increased) to the detriment of the other party, where there is no legal basis for such enrichment.

Question 29

Subjective rights create two types of relationships, namely, the legal relationship between?

Answer 29

• legal subject and legal object; or
• legal subject and other legal subjects.

Question 30

What does a legal Object refer to?

Answer 30

• Something that has a monetary value, like:
• things;
• immaterial property/intellectual property;
• performance; and
• personality.
  A legal subject is any person or legal entity who is the bearer of rights, duties and capacities. The legal subject can therefore own property, enter into a contract, may inherit or marry, and must comply with the rules of the state. The bearer of these rights, duties and capacities, is known as a ‘legal subject’.

Question 31

Define Legal Subject?

Answer 31

A legal subject is any person or legal entity who is the bearer of rights, duties and capacities. The legal subject can therefore own property, enter into a contract, may inherit or marry, and must comply with the rules of the state.

Legal subjects (i.e. natural and juristic persons) may enforce the subjective rights that they have in the abovementioned legal objects, against other legal subjects.

Question 32

Define Real rights?

Answer 32

These are rights in things; for example, Skye owns a bike, and the bike is the thing. The right is Skye’s ownership of the thing. Legally, we could say Skye has a real right of ownership in the bike. She has a real right in a thing.

Or, alternatively, consider Riley. Riley is a creditor, and he has been given Skye’s bike until Skye repays the debt due to Riley. This sort of agreement, where a creditor has possession of an asset in security for payment of a debt, is known in law as a ‘pledge’, which is, for example, what loan companies get, if you borrow money from them. So, Riley has a pledge of Skye’s bike. Again, the bike is the thing. The right is Riley’s right of pledge, his security over the bike.

Legally, we can therefore say that Riley has a real right of pledge – a real right in security – in the bike. Riley has a real right in a thing (Loveandgarbage, 2015).

Question 33

Devine Personal rights?

Answer 33

• Personal rights concern the relationship between persons.
• For example, Skye owes Riley
  R 30 000 for the bike, and she is therefore obligated to make payments to Riley. In terms of the law of obligations, Skye has a debt and an obligation to pay Riley, while Riley has the right to receive payment. Riley’s right to receive payment is a personal right. This personal right is only enforceable against Skye.

Every personal right has a correlative obligation; therefore, if someone has a personal right to something, then the other party will be under an obligation. The obligation entails performance, and this performance may entail that one person is obliged to do something; obliged to refrain from doing something; or to give something to someone. The relationship in relation to personal rights is therefore between one person and another (Mostert and Pope, 2010).

Immaterial property rights

Question 34

Define Copyright?

Answer 34

• Copyright is the right of ownership that a person may have over something they have created. The owner obtains a monopoly over their creation – i.e. they have exclusive possession of their creation (Copeling, 1978)

When a person owns something, our property law determines that they have various rights of ownership, with regard to that article. These rights of ownership allow them to use that article; to lend it to someone; to sell it; or even to destroy it. In addition, our concept of property is not limited to tangible things (e.g. cars, books, houses etc.) – it also relates to abstract (i.e. intangible) things, which are the product of our thought processes (e.g. lyrics of a new song or the story of a book) (Copeling, 1978).

Question 35

What are the categories of works that is protected under the Copyright Act?

Answer 35

• Programme-carrying signals
• Published editions
• Computer programs
• Literary works
• Artistic works
• Musical works
• Sound recordings
• Cinematograph films
• Sound and television broadcasts
• Programme-carrying signals
• Published editions
• Computer program
• Literary works: These could be described as ‘written work’;
• Artistic works: These include paintings, sculptures, drawings, photographs and architectural works and engineering prototypes.
• Musical works: These consist only of music, and do not include any words or action intended to be sung, spoken or performed with the music.
• Sound recordings: Refer to the fixing or storing of sounds or data reproduced, but do not include the soundtrack associated with a cinematograph film.
• Cinematograph films: These relate to the sequence of images, data and signals stored onto a film or any other material, which can be seen as a moving picture when this film is screened.
• Sound and television broadcasts: These relate to a telecommunication service of transmissions, consisting of sounds, images, signs or signals that are intended for reception by the general public.

Question 36

What are the requirements for copyright protection?

Answer 36

• Material embodiment (i.e. permanence)
• Originality
• Propriety
• Publication or qualified person
• Material embodiment (i.e. permanence): The Act specifically states that the work must exist in writing, or some other material form. A work cannot enjoy copyright protection, before it is fixed in a tangible medium. The creator’s particular way of expressing themself is protected, and not their raw ideas.
• Originality: A work must be original, before it can enjoy protection. Originality means that the author must have created the work; the work does not need to be unique or inventive, but must be a product of the author’s own efforts, and must not be copied from some other source.
• Propriety: Although the requirement of propriety (i.e. decency) is not specifically mentioned in the legislation, the courts have consistently held that copyright protection will not be given to a work that is improper, defamatory, immoral, blasphemous or obscene.
• Publication or qualified person: Where a work is unpublished, the subsistence of copyright in the work depends upon whether or not the author was a qualified person at the time the work was made. Where one is dealing with an individual, a ‘qualified person’ means a person who is a South African citizen or resident in the country. Where the work is published, the author must either have been a qualified person, or first publication must have taken place within South Africa.

Question 37

Define Trademarks?

Answer 37

• a symbol, word, or words legally registered or established by use as representing a company or product.

Trademarks are governed by the Trade Marks Act 194 of 1993. Section 1 of the Trade Marks Act defines a trademark as follows:

[O]ther than a certification trade mark or a collective trade mark, [it] means a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person.

Section 1 defines a mark as:

any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned.

Question 38

Define personality rights?

Answer 38

• an individual to control the commercial use of their name, image, likeness, or other unequivocal aspects of a person’s identity.

Personality rights can be divided into two categories:
- The right to publicity: This means the right to keep one’s image from being commercially misused, without permission.
- The right to privacy: The right to be left alone and not have one’s personality represented publicly

Question 39

What is an “incorporeal” object?

Answer 39

• An “incorporeal” object is a non-physical object.
  Ideas - for example, the idea for an invention - are incorporeal legal objects in respect of which a legal subject may hold rights.

Question 40

Henry ownes an E-reader. What is the legal relationship between henry and the e-reader know as

Answer 40

A Subject-Object relationship

Question 41

Ernie suffered damage to his house to the amount of R 50 000, when his neighbour John’s tree fell on his roof while John was in the process of cutting down the tree. Ernie is entitled to receive payment from John for the damage he caused to Emie’s roof. What is this right called?

Answer 41

Personal rights (personal rights concern the relationship between two persons

Question 42

Thembi is a photographer by trade. She is especially renowned for her photos of wild animals. A well-known magazine has published her photos without her approval. Thembi’s photos are protected in terms of which Act?

Answer 42

The Copyright Act 98 of 1978

Question 43

Give four examples of a legal object?

Answer 43

• Things
• Immaterial property
• Performance
• Personality

Question 44

Georgia is an avid blogger, and has a large social media following. She especially enjoys uploading selfies to her social media accounts. One day, Georgia receives an e-mail advertising products from a well-known cosmetics company. When she opens the e-mail, she is shocked to see one of her selfies being used to promote their new range of lipsticks. Which of Georgia’s rights are being infringed upon?

Answer 44

Personality rights

Question 45

What is the subjective right that protects Siya’s copyright with regard to a computer program that he had written?

Answer 45

Intellectual property right

Question 46

South Africa’s common law may be described as a _________________ legal system, as it comprises both Roman Dutch and English law.

Answer 46

Hybrid/mixed

Question 47

The damages suffered by a person must be linked to the action of the wrongdoer.

Answer 47

Causation

Question 48

Sipho wants to sue Neo, pursuant to false information that Neo had posted on Facebook, as Sipho is of the opinion that his reputation was damaged. What is the legal basis that informs such an action?

Answer 48

Delict

Question 49

___________ determines a person’s ability to enter into contracts.

Answer 49

Contractual capacity

Question 50

Sonia was involved in a motor vehicle accident, while she was driving the company car to a client’s home, to have the client sign a contract with Sonia’s employer. What is the legal basis, in terms of which the other party to the motor vehicle accident may initiate legal action against Sonia’s employer?

Answer 50

Vicarious Liability

Question 51

A university is an example of a ________ person.

Answer 51

Juristic

Question 52

A legal __________ has a monetary value attached thereto.

Answer 52

Object

Question 53

South Africa is a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Name the branch of law that will regulate this agreement.

Answer 53

International Law

Question 54

An action based on ___________ may be instituted by a person against another, in the event that the former had, without a legal basis, increased the latter’s estate.

Answer 54

Unjustified enrichment

Question 55

What are the differentiate between the three normative systems?

Answer 55

1. The law: The only body of rules recognized by the state and enforced by the state, if necessary. Resulting in: Sanction/penalty: Imprisonment, fines, community service etc.
2. Positive morality: Rules that apply to a particular community only. Resulting in: Sanction/penalty: Being shunned from the community.
3. Ethics: An individual’s ethics and morals. Resulting in: Sanction/penalty: Guilt/varying degrees of pangs of conscience.

Question 56

What are the elements of a delict?

Answer 56

• conduct (which can either be an act or an omission);
• wrongfulness (which refers to the fact that the infringement of the innocent party’s rights is deemed to be unlawful);
• fault (which can either be in the form of intent or negligence);
• causation (which refers to the fact that the damages suffered, must have been caused by the guilty party’s conduct); and
• damages.

Question 57

What are the requirements that must be met for a valid and enforceable contract?

Answer 57

• consensus (i.e. agreement on all the terms of the contract);
• contractual capacity (i.e. the ability of a person to enter into a - contract that establishes rights and duties);
• physical possibility of performance (meaning that at the time of the conclusion of the contract, it is objectively possible to perform);
• legal possibility of performance (meaning that the agreement may not contravene either the common law or statute); and
• formalities, if required.

Question 58

Describe the law of unjustified enrichment?

Answer 58

Generally speaking, the law of obligations refers to the legal tie created between parties (i.e. legal subjects) in the law of contract, the law of delict and the law of unjustified enrichment. The law of obligations, however, also includes the relationship created between legal subjects, as a result of unauthorised agency, pursuant to administrative or official authority, or those created as a result of the special relationship between the parties (e.g. parent/child – i.e. the parent has a duty of support toward minor children).

Question 59

What is the differentiate between ‘legal subjects’ and ‘legal objects’.

Answer 59

Legal subject:
A legal subject is any person or legal entity who is the bearer of rights, duties and capacities. The legal subject can therefore own property, enter into a contract, may inherit or marry, and must comply with the rules of the state. The bearer of these rights, duties and capacities, is known as a ‘legal subject’.

Legal subjects (i.e. natural and juristic persons) may enforce the subjective rights that they have in the abovementioned legal objects, against other legal subjects.

Legal object:
A legal object refers to something that has a monetary value attached to it. In South African law, the following legal objects are traditionally recognised (Kleyn and Viljoen, 2014):
- things;
- immaterial property/intellectual property;
- performance; and
- personality.

Question 60

Briefly explain the four categories of subjective rights?

Answer 60

(Subjective rights = real rights, copyright, trademark and patent)
- Real rights: These are rights in things; for example, Skye owns a bike, and the bike is the thing.
- Personal rights: Personal rights: concern the relationship between persons.
- Copyright: When a person owns something, our property law determines that they have various rights of ownership, with regard to that article.
- Trademarks
- Patents

A patent is an exclusive right granted for an invention, which can be a product or a process that provides a new way of doing something; or offers a new technical solution to a problem.
- Registered designs: Registered designs provide for the protection of the appearance of an article, resulting from the particular design being applied to the article, whether for aesthetic or functional reasons.
- Personality rights: This refers to the right of an individual to control the commercial use of their name, image, likeness, or other unequivocal aspects of a person’s identity.