LEG2601
NOTES
,Learning Theme 1 – What is the law?
1.1 Introduction
- The law is the basis of any orderly society
- Moral and ethical rules that govern human behaviour are not usually legal rules.
- Biblical/ religious commandments can constitute a legal norm e.g. thou shall not kill – murder is a crime and is the
intentional act of killing a person without jurisdiction
- Ethics: aka individual morality, comprise those guidelines that people may set for themselves and which they then
regard as binding in their conscience
- Community mores: aka positive morality, are the norms accepted as binding by a certain community,
1.2 defining “Law”
- The law can be defined as the only body of rules governing human conduct that is recognised as binding by the state
and if necessary enforced. ( the SA legal system & it’s background, 1968)
- Basic Characteristics:
o Society – must accept and obey these norms and rules
is a body of norms and riles that governs private and public action and interaction
o Must create order and legal security in society
o Is applied and enforced by the institution of the state e.g. courts
1.2.1 The law is a body of norms and values that must be accepted by the society as its legal system
- SA society must have confidence in the law and must approve and accept the body of rules, norms and values as the
law of the country
- The law must reflect the shared values, norms, and rules of the majority of society, but it must also be able to evolve
with a developing society
- The constitution is a “value-laden” document which is founded on democratic values of
o Human dignity
o The achievement of equality
o And the advancement of human rights and freedoms
- Courts have to interpret all law within the context of the constitution and give effect to these underlying values
1.2.2 The Law Governs relationships
- Rules and norms facilitate action and interaction between different people (legal subjects)
- The law determines how legal subjects should related to one another in a legal scenario
1.2.2.1 Legal subjects
- A legal subject is anyone who is subject to the norms of the law i.e. persons, bearers or rights and duties
- Natural or juristic person;
o Natural persons: human beings e.g. private property owners, rate payers etc.
o Juristic persons: (legal persons) are not natural persons but abstract entities.
The law gives them certain rights to act as a “person” in legal relationships
Have the capacity to perform certain legal actions e.g. buying and selling, suing, acting as a party in a
court case
- Other institutions and organizations that are not government institutions/ NGO’s and associations/ clubs/ groups are
recognised as legal persons in their different legal relationship with other legal subjects. They have entities who act as
agents/ spokespersons.
- A person (natural/ juristic) is a legal subject and is therefore a bearer of rights and obligations (duties)
- A juristic person does not have ALL the rights and duties of a natural person but the legal capacity to perform its
functions in terms of its legal relationship and be held accountable for its conduct.
1.2.2.2 Legal Relationships
- Legal relationships may exist between natural and juristic persons e.g. private company and private person
- A legal relationship may also exist between legal/ natural persons and the state e.g. government
1.2.2.2.1 Private Law relationships
- Private law is a branch of our law which has its origins in common law (unwritten law)
- Usually governed by sources of common law
- Between Natural or juristic persons – EQUAL relationship (horizontal).
- Represented by:
Natural/ juristic person Natural/ juristic person
- Relationship characteristics:
o Horizontal relationship-: equal relationship, both parties on equal footing
o Based on a voluntary agreement between subjects
o Persons are also called parties and act in their own (private) capacity to further their own interests
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, - Established in the private law sphere without any interference from Government/ state – but The Constitution does
influence the same, the states Bill of Rights protects all persons against abuse by other private persons
1.2.2.2.1 Public Law relationships
- Public law is a branch which governs the public law relationship between legal subjects.
- More complex than private law
- ALWAYS UNEQUAL relationship (vertical)
- One party always holds an authoritative position
Organ of state
Subservient party
(Natural / Juristic person)
- Due to the unequal relationship, one party may be coerced by the authority
- The legal subject vested with authority is called -: “organ of state”
o Organ of state (Constitution)-:
“any department of state or administration in the national, provincial or local sphere of government”
“any other functionary or institution
(i) Exercising a power of performs a function in terms of the Constitution or a provincial constitution;
or
(ii) Exercising a public power or performing a public function in terms of any legislation”
- This does not include a court or judicial officer (magistrate/ judge)
- Difficult to determine what actually is an organ of state.
- A public power is obliged to work in an open, participative and accountable manner in the public interest
- The rights of a person may be limited – this needs to be evaluated in terms of the constitution
1.2.3 The Law must create legal order and legal security in society
- The law must create legal order and legal security by providing a system of legal rules
- Society must know what is illegal and legal & how to remedy a wrong
- When a law is ignored or disobeyed, the person accused of breaking the rules may be charged and punished if it is a
criminal offence.
o The law prescribes specific forms of punishment for specific offences or crimes and thus restores the legal balance
and maintains harmony in the community or society.
- Transgressing the law may give rise to a civil claim e.g. owning property- right of ownership- enforceable against other
people
1.2.4 The law is applied and enforced by institutions of the state
- The law is applied and enforced by institutions of the state e.g. courts & government bodies (Dept.)
- Procedures for enforcement are contained in the Constitution & legislation
- The law is applied and enforced by bodies or officials within the various government administrations – provincial/
national environmental depts. Local authorities etc. & specific bodies outside the dept.
- Anyone who is involved in a legal dispute may take their case to court to obtain a judicial decision
- The courts (judiciary) administer justice – interpret & apply the law in order to resolve a specific dispute
o Private, public or criminal law are seen in court
o Criminal offence – the alleged offender: the accused, the prosecutor presents the state’s case against the accused.
1.3 Classification of SA Law
- Law relating to the environment is a cross-divisional field of law
- Environmental law incorporates norms and principles of public, private and international law
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1.3.1 The distinction between international & national law
National Law
International Law
The law that applies in that particular or for that
Responsible for controlling relations between State only.
various states
The sum total of the rules of law that apply in that
Deals with the protection and management of the state
environment & control of pollution on a global
scale NEMA is the national legislation that provides the
framework for managing the environment in SA
Substantive Law
D
The part which determines what the rules or law
contain i.e. their substance
Divided into private and public law & divided
thereafter into further sections
Public law p
Private Law
Contains the rules that govern relations between: Contains the rules that govern relations between
Pr
The state and its subjects people
The state and its organs of state Regulates rights and duties of people in respect of
Various organs of state each other
State always has position of authority The state has no position of authority
D
Constitutional Law Law of persons
Determines Family Law
Determines who is a legal subject in the eyes of Patrimonial Law
What the state is the law Rules of law related to engagement, marriage,
Regulates the relationship between people and
marital property, divorce and parent-child
How the state is structured i.e. who has rights and obligations their (financial) means
relationship
Various relations between organs of state e.g. children of 5 cannot conclude an enforceable E.g. personal estates
Controls family relationship.
Controls the powers of the various organs of state contract.
Administrative Law
Law of immaterial property
Determines how the state functions and it’s The Law of Property
Law of succession Immaterial property – property create
administration Controls the relationship between people and
Determines what happens to a person’s property human mind/ intellect e.g. inventions/
Procedures to be followed things/ property
after the person’s death written works etc.
Organs of state must act reasonably, lawfully & “Things”: lifeless/ nonhuman e.g. land, cars, farms,
Sets out requirements of a valid will Contains the rules of law that relate
procedurally fair animals
property
Must give reasons for their decisions
Criminal Law
Determines what acts constitute and the penalties
that can be imposed
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NOTES
,Learning Theme 1 – What is the law?
1.1 Introduction
- The law is the basis of any orderly society
- Moral and ethical rules that govern human behaviour are not usually legal rules.
- Biblical/ religious commandments can constitute a legal norm e.g. thou shall not kill – murder is a crime and is the
intentional act of killing a person without jurisdiction
- Ethics: aka individual morality, comprise those guidelines that people may set for themselves and which they then
regard as binding in their conscience
- Community mores: aka positive morality, are the norms accepted as binding by a certain community,
1.2 defining “Law”
- The law can be defined as the only body of rules governing human conduct that is recognised as binding by the state
and if necessary enforced. ( the SA legal system & it’s background, 1968)
- Basic Characteristics:
o Society – must accept and obey these norms and rules
is a body of norms and riles that governs private and public action and interaction
o Must create order and legal security in society
o Is applied and enforced by the institution of the state e.g. courts
1.2.1 The law is a body of norms and values that must be accepted by the society as its legal system
- SA society must have confidence in the law and must approve and accept the body of rules, norms and values as the
law of the country
- The law must reflect the shared values, norms, and rules of the majority of society, but it must also be able to evolve
with a developing society
- The constitution is a “value-laden” document which is founded on democratic values of
o Human dignity
o The achievement of equality
o And the advancement of human rights and freedoms
- Courts have to interpret all law within the context of the constitution and give effect to these underlying values
1.2.2 The Law Governs relationships
- Rules and norms facilitate action and interaction between different people (legal subjects)
- The law determines how legal subjects should related to one another in a legal scenario
1.2.2.1 Legal subjects
- A legal subject is anyone who is subject to the norms of the law i.e. persons, bearers or rights and duties
- Natural or juristic person;
o Natural persons: human beings e.g. private property owners, rate payers etc.
o Juristic persons: (legal persons) are not natural persons but abstract entities.
The law gives them certain rights to act as a “person” in legal relationships
Have the capacity to perform certain legal actions e.g. buying and selling, suing, acting as a party in a
court case
- Other institutions and organizations that are not government institutions/ NGO’s and associations/ clubs/ groups are
recognised as legal persons in their different legal relationship with other legal subjects. They have entities who act as
agents/ spokespersons.
- A person (natural/ juristic) is a legal subject and is therefore a bearer of rights and obligations (duties)
- A juristic person does not have ALL the rights and duties of a natural person but the legal capacity to perform its
functions in terms of its legal relationship and be held accountable for its conduct.
1.2.2.2 Legal Relationships
- Legal relationships may exist between natural and juristic persons e.g. private company and private person
- A legal relationship may also exist between legal/ natural persons and the state e.g. government
1.2.2.2.1 Private Law relationships
- Private law is a branch of our law which has its origins in common law (unwritten law)
- Usually governed by sources of common law
- Between Natural or juristic persons – EQUAL relationship (horizontal).
- Represented by:
Natural/ juristic person Natural/ juristic person
- Relationship characteristics:
o Horizontal relationship-: equal relationship, both parties on equal footing
o Based on a voluntary agreement between subjects
o Persons are also called parties and act in their own (private) capacity to further their own interests
LEG2601 1
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, - Established in the private law sphere without any interference from Government/ state – but The Constitution does
influence the same, the states Bill of Rights protects all persons against abuse by other private persons
1.2.2.2.1 Public Law relationships
- Public law is a branch which governs the public law relationship between legal subjects.
- More complex than private law
- ALWAYS UNEQUAL relationship (vertical)
- One party always holds an authoritative position
Organ of state
Subservient party
(Natural / Juristic person)
- Due to the unequal relationship, one party may be coerced by the authority
- The legal subject vested with authority is called -: “organ of state”
o Organ of state (Constitution)-:
“any department of state or administration in the national, provincial or local sphere of government”
“any other functionary or institution
(i) Exercising a power of performs a function in terms of the Constitution or a provincial constitution;
or
(ii) Exercising a public power or performing a public function in terms of any legislation”
- This does not include a court or judicial officer (magistrate/ judge)
- Difficult to determine what actually is an organ of state.
- A public power is obliged to work in an open, participative and accountable manner in the public interest
- The rights of a person may be limited – this needs to be evaluated in terms of the constitution
1.2.3 The Law must create legal order and legal security in society
- The law must create legal order and legal security by providing a system of legal rules
- Society must know what is illegal and legal & how to remedy a wrong
- When a law is ignored or disobeyed, the person accused of breaking the rules may be charged and punished if it is a
criminal offence.
o The law prescribes specific forms of punishment for specific offences or crimes and thus restores the legal balance
and maintains harmony in the community or society.
- Transgressing the law may give rise to a civil claim e.g. owning property- right of ownership- enforceable against other
people
1.2.4 The law is applied and enforced by institutions of the state
- The law is applied and enforced by institutions of the state e.g. courts & government bodies (Dept.)
- Procedures for enforcement are contained in the Constitution & legislation
- The law is applied and enforced by bodies or officials within the various government administrations – provincial/
national environmental depts. Local authorities etc. & specific bodies outside the dept.
- Anyone who is involved in a legal dispute may take their case to court to obtain a judicial decision
- The courts (judiciary) administer justice – interpret & apply the law in order to resolve a specific dispute
o Private, public or criminal law are seen in court
o Criminal offence – the alleged offender: the accused, the prosecutor presents the state’s case against the accused.
1.3 Classification of SA Law
- Law relating to the environment is a cross-divisional field of law
- Environmental law incorporates norms and principles of public, private and international law
LEG2601 2
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Distribution of this document is illegal
, Stuvia.com - The Marketplace to Buy and Sell your Study Material
1.3.1 The distinction between international & national law
National Law
International Law
The law that applies in that particular or for that
Responsible for controlling relations between State only.
various states
The sum total of the rules of law that apply in that
Deals with the protection and management of the state
environment & control of pollution on a global
scale NEMA is the national legislation that provides the
framework for managing the environment in SA
Substantive Law
D
The part which determines what the rules or law
contain i.e. their substance
Divided into private and public law & divided
thereafter into further sections
Public law p
Private Law
Contains the rules that govern relations between: Contains the rules that govern relations between
Pr
The state and its subjects people
The state and its organs of state Regulates rights and duties of people in respect of
Various organs of state each other
State always has position of authority The state has no position of authority
D
Constitutional Law Law of persons
Determines Family Law
Determines who is a legal subject in the eyes of Patrimonial Law
What the state is the law Rules of law related to engagement, marriage,
Regulates the relationship between people and
marital property, divorce and parent-child
How the state is structured i.e. who has rights and obligations their (financial) means
relationship
Various relations between organs of state e.g. children of 5 cannot conclude an enforceable E.g. personal estates
Controls family relationship.
Controls the powers of the various organs of state contract.
Administrative Law
Law of immaterial property
Determines how the state functions and it’s The Law of Property
Law of succession Immaterial property – property create
administration Controls the relationship between people and
Determines what happens to a person’s property human mind/ intellect e.g. inventions/
Procedures to be followed things/ property
after the person’s death written works etc.
Organs of state must act reasonably, lawfully & “Things”: lifeless/ nonhuman e.g. land, cars, farms,
Sets out requirements of a valid will Contains the rules of law that relate
procedurally fair animals
property
Must give reasons for their decisions
Criminal Law
Determines what acts constitute and the penalties
that can be imposed
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