LEG2601 – Latest summary

LEG2601 – Latest summary 1 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: - 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 Natural/ juristic person Natural/ juristic person 2 - 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 - 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