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Introduction into law > Module 2 > Flashcards

Module 2 Flashcards

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1
Q

What are the six primary sources of law?

A
  • The Constitution of the Republic of South Africa
  • Other legislation, particularly Acts of Parliament, provincial Acts and municipal by-laws
  • Judicial precedent or case law, which arises from the decisions of judges
  • The common law
  • The customary law, which entails customary rules from ethnic and religious groups
  • Customs and trade practices that are developed by people to regulate their activities.
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2
Q

What is a plural society?

A

South Africa is a plural society, with different states and institutions responsible for making, developing and interpreting laws. Every law in South Africa must be in line with the constitution

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3
Q

What is the fundamental law of South Africa?

A

The Constitution is a fundamental law that sets out the power of the state. It is the
source of all authority in the state, and is thus the ultimate source of law.

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4
Q

What is section 2 of the Constitution?

A

Section 2 of South Africa’s Constitution makes this clear by stating that ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’

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5
Q

What is PAJA?

A

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives effect to section 33 of the constitution, it was implemented February 2000. Its a law that makes the sources of law accountable to people for actions, by setting rules and guidelines to ensure that administrative action is lawful, reasonable and procedurally fair and that reasons are given for administrative action

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6
Q

What is Section 33 of the Constitution?

A

Section 33 of the Constitution stipulates that everyone has the right to just administrative action.

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7
Q

How does the Constitution relate to other sources of law?

A

The Constitution relates to other sources of law by referring to and recognises various other sources of law, it sets out detailed rules about which bodies of government may make legislation, the processes they have to follow in making it and makes it clear that all the other sources have to conform to the Constitution.

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8
Q

What rights does Section 33 of the Constitution give everyone due to administrative action?

A
  • To fair and reasonable administrative action that is allowed by the law,
  • To be given reason for administrative action that affects them in a negative way
  • To challenge decisions that they believe are wrong
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9
Q

What are the arms of government and how do they relate to law?

A
  • Legislation is written law made by the legislative branch of government, often called the legislature.
  • The Judiciary is responsible for interpreting and applying the law.
  • The executive is responsible for making policies and implementing the law.
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10
Q

What are the ways in which you can change the law?

A

Legislation is the quickest and most convenient way of changing and reforming the law. While other sources of law, such as precedent and custom, tend to develop slowly, incrementally and unpredictably, legislation allows the government to make significant and systematic changes to the law in a very short time

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11
Q

What is the most important legislative organ?

A

The most important legislative organ is our national Parliament, which makes and enacts Acts of Parliament or statutes. It consists of two houses, the National Assembly and the National Council of Provinces. It delegates its lawmaking authority to other state organs associated with the executive arm of governments including the President, Cabinet Ministers and other officials.

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12
Q

How does legislation relate to the other sources?

A
  • Legislation is enabled by the Constitution since the Constitution officially appoints Parliament, the provincial legislatures and municipal councils as the main lawmaking bodies.
  • Legislation is subordinate to the Constitution. If legislation violates the Bill of Rights or is contrary to any other provision of the Constitution, it will be invalid – though no one can be sure that it is invalid unless and until a court of law says so.
  • Legislation trumps all the other sources of law except the Constitution, in the sense that it can at any time change what those sources say about the law.
  • The courts have the power to interpret legislation and say whether it is constitutionally valid or invalid. They can find that legislation is invalid on formal or technical grounds, such as failure to comply with the laws in the Constitution or on substantive grounds, such as conflict with a right in the Bill of Rights
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13
Q

What is Judicial precedent?

A

Judicial precedent it refers to the decisions judges make that binds other courts.

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14
Q

How do courts decide to make a judicial precedent?

A
  • The court looks at the law to see if there is a rule that covers the facts of the case
  • If no rule that covers the facts of the case. Then the court must make a decision based on its own view. It does this by considering the facts of the case, the existing law and social policy. The court’s decision then effectively creates a new rule of law, a precedent.
  • If there is a rule, but it has always been applied to specific factual situations it does not quite cover the facts of the case before the court. The court may decide to extend the rule to cover the facts in its case, meaning that the law is developed and the court sets a precedent
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15
Q

What is the Hierarchy of judicial precedent?

A
  1. Constitutional courts set precedents and are bound by there own judgments
  2. Supreme court can set precedents and bound by decisions made by the constitutional court
  3. Nine high court divisions are bond by the decisions made by the supreme courts
  4. Regional district, magistrates courts are bound by those courts that are higher than them
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16
Q

How does judicial precedent relate to the other sources?

A
  • The Constitution recognizes the existence of case law and places a duty on the courts to promote the Bill of Rights when they are deciding cases.
  • Legislation can effectively change a precedent set by a court.
  • Legislation can itself be declared invalid by the courts for formal or substantive reasons.
  • Judicial precedent recognizes and develops the remaining two primary sources, common law and custom
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17
Q

What is common law?

A

The common law is a set of rules and principles, mostly from Roman Dutch law and English law that have not been written down in legislation. The common law is very extensive and it contains all sorts of principles some being regarded as merely persuasive, while others are so well established that they are treated as binding

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18
Q

How does the common law relate to the other sources?

A
  • It is recognized by the Constitution by section 39.
  • It can be changed by legislation at any time. Legislation trumps or overrides the common law.
  • It is constantly being developed by the courts and thus becomes entangled with judicial precedent. Though it is said to be a ‘binding’ source of law, the courts often have considerable freedom as to which common-law principles they uphold and which they disregard.
  • Customs are entangled with the common law and with precedent, since it is common-law principles that tell us when the courts will recognize customs
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19
Q

What is customary law?

A

Customary law encompasses customary rules from African and indigenous laws, ethnic and religious groups. The courts will only apply customary law to people from the relevant group, and then only if these people live according to that law and tacitly or expressly indicate their willingness to have the customary law applied to them.

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20
Q

Can the court apply customary law?

A

In chapter 12 the Constitution recognizes customary law in section 211 and so does the court; however, where customary law violates the Constitution it will be invalidated by the courts. The courts should apply customary law when applicable, subject to legislation that has regulated it and the constitution

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21
Q

Can the court apply indigenous law?

A

A piece of legislation that deals specifically with indigenous law is section 1 of the Law of Evidence Amendment Act of 45 of 1988. The Act says that a court may take judicial notice of indigenous law ‘in so far as such law can be ascertained readily and with sufficient certainty’, and as long as it is not opposed to public policy or the principles of natural justice.

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22
Q

What findings were found in relation to customary law in the case of MM v MN and Another 2013 (4) SA 415 (CC) at par 24?

A
  • Customary law must be understood in its own terms, and not through the lens of the common law
  • Customary law is nevertheless subject to the Constitution and has to be interpreted in the light of its values
  • Customary law is a system of law that is practiced in the community, has its own values and norms, is practiced from generation to generation and evolves and develops to meet the changing needs of the community
    – Customary law evolves and is not fixed, its evolving consistent with the Constitution
23
Q

Which case shows the Constitutional Court emphasis the need to categories customary law as a primary source of law?

A

In case of MM v MN and Another 2013 (4) SA 415 (CC) at par 24 where the court made the following findings in relation to customary law

24
Q

What are customs as a source of law?

A

A custom is a long-established practice that eventually acquires the force of law; it does not consist of written rules. Customs develop from the practices of the community, and are carried on from generation to generation. Because it develops so slowly, custom is not generally an important source of law today, but they are sources of law such as banking where it plays a role

25
Q

What requirements do customs have to meet before it is recognized as law?

A
  • It must be a long-standing practice
  • It must have been in existence without exception since its origin
  • It must be reasonable
  • It must be certain
  • It must be generally recognized and observed by the community
26
Q

Which case established the requirements for a custom to become a law?

A

In the case Van Breda v Jacobs 1921 AD 330.

27
Q

How does custom relate to the other sources?

A
  • It seems to be recognized in the Constitution. The references In section 39 to ‘customary law’ are broad enough to cover ‘custom’ too.
  • It can be changed at any time by legislation, which trumps or overrides custom.
  • Custom is thoroughly entangled with the common law and with precedent. This is because common-law principles developed and stated by the courts tell us when the courts will be prepared to recognize customs
28
Q

What is international law?

A

International law is the law that applies between the states of the world. It covers matters of inter-state concern such as the boundaries between states, the law of the sea, global environmental issues, humanitarian law and refugee law.

29
Q

What does international law comprise of?

A

International law comprises rules and principles set out in international treaties and customary international law. Treaties can be bilateral (between two states only) or multilateral (between more than two states).

30
Q

What are the rules about signing international agreements?

A

Different states have different rules as to when a signed international agreement becomes binding domestically. In South Africa, these rules are set out in section 231 of the Constitution. The general rule is that while the President together with members of the Cabinet are responsible for signing international agreements, they only become binding after they have been approved by resolution in both houses of Parliament.

31
Q

How does international law relate to other laws?

A
  • International law has increased in significance as a source of law, since the Constitution Section 39(1)(b) provides that any court, tribunal or forum that interprets the Bill of Rights must consider international law.
  • International human rights law as contained in the International Covenant of Civil and Political Rights and the International Covenant of Social, Economic and Cultural Rights is used in interpreting the Bill of Rights.
  • Section 232 provides that when interpreting any legislation, every court must prefer a reasonable interpretation of the legislation that is consistent with international law, over any alternative interpretation that is inconsistent with international law
32
Q

What are secondary sources of law?

A

Secondary sources of law include foreign law and modern writings

33
Q

What is foreign law as a source of law?

A

Foreign law is not binding in this country, and our courts do not have to follow precedents set by foreign courts.

34
Q

How does foreign law relate to other sources of law?

A

Our courts do quite often consider the reasoning of judges in other countries and sometimes find foreign precedents persuasive. The Constitution encourages our judges to consider how the law is being developed elsewhere when they are interpreting the Bill of Rights according to section 39(1). As long as it does not conflict with the Constitution, legislation or a binding South African precedent, there is nothing to stop a South African judge from following a
precedent set by a court in another country.

35
Q

What are modern writing as a source of law?

A

Modern writings, such as books and journal articles on the law are not sources of law at all. This is because they describe and discuss and argue about the law rather than create the law. They are a convenient place to find out about the law, but are not themselves law.

36
Q

What is moderns writing in relation to sources of law?

A

The persuasiveness in an argument of a particular book or article depends essentially on its quality and the cogency of its arguments; but it would certainly be influenced by the seniority and reputation of the author.

37
Q

What is national law?

A

National law is the law of a specific state, the whole body of legal rules that is applied and enforced in South Africa

38
Q

What is the two laws the South african national law is divided into?

A
  • Substantive law, material law. Is part of the law which determines the content and meaning of the different legal rules. It prohibits us from committing criminal offences and determines the content and application of the different rights which an individual may have
  • Procedural law, adjective law. Regulates the enforcement of substantive law and determines how a case must be practically handled when a legal rule has allegedly been violated.
39
Q

What is the relation between substantive and procedural law?

A

Substantive and procedural law are independent. Without procedural law people will rely on force when legal rules are violated. Procedural law cannot exist without substantive law as it cannot provide for the enforcement of legal rules of which the content and meaning are unknown

40
Q

What are the divisions of procedural law?

A
  • Law of criminal procedure: Procedure is that part of adjective law which prescribes how many people who have allegedly committed offences should be prosecuted. The law of criminal procedure lays down the rules for the investigation of the alleged offence as well as the process in court
  • Law of civil procedure: Determines the procedure to be followed when an individual wishes to enforce their rights against another
  • Law of evidence: Determines how the facts in either a criminal or civil case must be proved. .
41
Q

What is the distinction between public and private law?

A
  • Public law: determines the extent of state authority. It regulates the organisations of the state and the relation between the different organs of state and the relations between them and its subjects. The relationship between the state and its subjects is a vertical relationship that is unequal.
  • Private law: regulates the relationships between persons. It determines the different rights and duties that persons may have towards one another. These rights and duties may find their origin in contracts delicts, marriage or ownership. The state could be a party in private law when it enters into a contract with an individual or causes an individual harm. The theory is that in this moment the state dosent act as a state authority but is in the same position as any other person. Private law is a horizontal relationship that is an equal one.
42
Q

What laws are substantive law divided into?

A

Substantive law is divided into public and private law.

43
Q

What are the divisions of public law?

A
  • Constitutional law: The constitution forms the basis of the law, it constituents and relationships between different bodies of the state. The constitutional law divides states into three bodies: the legislature, the judiciary and the executive
  • Administrative law: It controls the administration of the stat in general. It determines the way in which the state is to exercise its executive powers through different bodies. These state make admistartive decisions on the basis of certain powers given them by the Constitution or legislation. The rules of administrative law try to prevent these bodies from exercising their powers in such way that it is prejudicial to individuals.
  • Criminal law: It determines which acts amount to criminal offence, which acts against the law
44
Q

What are the divisons of private law?

A

Division of private law:
- Law of persons: Regulates the relationships between persons and determines the juridical status of persons (the nature of a persons position in law). Persons are a subjects of private law.
- Family law :It regulates family relationships and relates to matters such as engagement, marriage, civil union, marital property, divorce and parent-child relationships
- Law of patrimony: Which regulates the relationships between persons with respect to their means. Means is the sum total of a persons assets and liabilities, the persons whole estate.

45
Q

What are the sub-laws of the law of patrimony?

A
  • Property law- It deals with the relationships between persons to things. It determines which rights a person can have concerning the immovable and movable property and regulates the origin, termination and protection of such rights. The Constitution also protects property in section 25.
  • Law of succession- it determines what happens to a person’s estate after her death. In the absence of a will, the law of intestate succession will determine who inherits the estate
    -Law of obligations- Types of relationship between persons where one person (the creditor) has a right against another for performance and the latter person (the debtor) has a corresponding duty to perform
  • Law of intellectual property- Its division of law which governs the relationships between persons to intellectual property. It includes the creation of human intellect or ingenuity
46
Q

What is a contract?

A

A contract is an agreement between two persons in terms of which a right and corresponding duty to a performance come into existence.

47
Q

What is a delict?

A

A delict is a wrongful and culpable act which causes damage to another. The law of delict determines what a derelict is and regulates the rights and suits which arise from it

48
Q

What is the difference between contracts and delicts?

A

The difference between contracts and delicts is in the case of contracts an obligation arises between the parties, while delict there is no agreement between the parties.

49
Q

What is the difference between criminal offences and delicts?

A

In criminals offence purpose is to punish the offender, whereas in the case of delict the purpose is to compensate the person who suffered damages. A delict is private-law matter because a claim for damages has an interpersonal nature. Criminal offences that cause damage to persons also constitute delicts.

50
Q

What is commercial law?

A

Commercial law embraces numerous branches of law important for commerce or trade and industry. It represents a mixture of private and public law. Commercial law forms part of company law, law of insolvency, labour law and banking law

51
Q

What are the different supplementary disciplines?

A
  • Private international laws- South African courts sometimes have to apply the law of other countries. This is when there is some connection between the parties or the facts of the case and a foreign legal system.
  • Legal philosophy- It looks at law from a philosophical perspective
  • Legal interpretation- This mainly prescribes how the meaning of statutory provisions is determined, they are also applied in order to determine the meaning of provisions and clauses in contracts and wills
  • Comparative law- The study of a foreign legal systems
  • Legal history- This forms part of common law
52
Q

How does legislations interact with rights?

A

Parliament has the power to enact legislation that gives effect to the rights. This legislation will give us further detail about the right. Is there legislation giving effect to the rights

53
Q

What is the first subsidiarity principle?

A

We must go first to the legislation in resolving a dispute around the topic not to the right
When looking at a dispute on a right, first look at the litigation surrounding before looking at the constitution

54
Q

What is FIPAC in understanding the structure of a judgement?

A

FACTS: the legally relevant facts
ISSUE: the crisp legal issue (this can usually be written in one short clear sentence).
PRINCIPLES (APPLICABLE LAW): legal principles used to decide the case
APPLICATION: application (this is where the reasoning sits so is most NB)
CONCLUSION: A brief conclusion that answers the legal question posed under ‘Issue’. It can also usually be expressed in one short sentence

Introduction into law (12 decks)

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