Introduction to law 171
29 March 2017
chapters and content on sunlearn (prescribed textbook is too elementary)
Law and Justice:
Justice: unclear content
Will law always have justice as a result?
o Trying to answer between distinguishing between Adjectival (procedural) law
and Substantive (material) law …… 2
o Adjectival law:
Legal procedures used by courts to reach a just ruling
o Substantive law:
Material/ content/ substance of all legal rules
At the heart of law and justice lies equality, manifested especially in adjectival law.
Adjectival (formal) Justice can be reached through:
o Stare decisis
o ‘innocent until proven guilty’
criminal law justice:
o rules of natural justice:
Always listen to the other side of the story
You can never be the judge in your own case/ matter
o Sometimes statutes/ laws will not have justice as the result (i.e. apartheid
laws – Group Areas Act 36 of 1966)
Philosophical approach to law:
o Legal positivism:
Law should be applied as it is and not as it ought to be
Argument: the question is irrelevant: law is just and fair The old way of
Morality and aw separate viewing law
Law: set down in statute and books, rules and court decisions
Only those rules that are set down are regarded as law
S v Adams; S v Werner 1981 1 SA 187 (A)
2 families demarcated for coloured families in group areas act.
2 families decided to move to a neighbouring area because of
over population. They were taken to court because they were
in contravention of the Group Areas Act. Because they used
legal positivism and took the law as it was and not as it ought
to be they were prosecuted, found guilty and convicted of
their crimes.
Doesn’t always include justice
o Natural law:
Law has a moral dimension
Not only what is promulgated but also what it ought to be, what it
could be and what it should be.
More equal, just and reasonable approach.
, Characteristic: moral code or set of moral principles that exists
irrespective of human interaction or positive law.
Often these higher norms we can use to judge against positive
law
If an act/ law is unjust it will be in terms of natural law, no law/ invalid.
Norms: found in the harmony and order of nature or in human nature
– it’s always easy to guess the content of this natural law
Found in human reasoning and apply universally
30 March 2017
Language
Legal rules and law: cast in language
o Factor in law being uncertain
Another factor is changing values
Law adapts to be effective in terms of: changing community values and electronic
changes
o Changing/ developing social media and technology (i.e. cellphone records, IP
addresses can be used for evidence therefore new warrants/ interdicts must
be developed etc.)
o Constant amendments (e.g. Tobacco products control act)
Considered: not clarity in legislation, so amendments are made
o New legislation promulgated and developed
Judges will have to take new societal values into account
o Van Erk v Holmer 1992: A father of children born out of wedlock, apply for a
court order granting them access rights/ custody (full or partial). Previously
the mother would have all access rights/ custody and the father may have
provided maintenance but he wouldn’t have had these access rights etc. The
court awarded full access rights to the father, because it was seen that
fathers wanted to play more of an active role in their child’s life. On appeal
the court didn’t extend the same argument [B v S 1995 3 SA 571 (A)] =
uncertainty. Legislature was promulgated: Natural Fathers of Children Born
out of Wedlock Act (86/ 1997). It was necessary for the legislature to
intervene because of changing community standards/ values.
Changing values:
Uncertainty: who/ what is society?
Parliaments: democratically elected representatives of the community at large and
they’re given a more legitimate basis to convert changing community values into law.
In terms of our democracy its NB in our society that there’s ample room for public
participation and to make submissions/ viewpoints known.
S v Ncanywa 1992 (Ck) (Ciskei decision) Rape in marriage: the wife was raped by her
marriage. The court had to decide whether forced sexual intercourse in marriage was
rape or whether it was a wife’s married duty to provide intimacy. The court a quo
decided that rape was indeed forced intercourse in marriage, but the appeal court in
Ciskei repealed this and said that it was not rape. Legislation was urgently needed:
29 March 2017
chapters and content on sunlearn (prescribed textbook is too elementary)
Law and Justice:
Justice: unclear content
Will law always have justice as a result?
o Trying to answer between distinguishing between Adjectival (procedural) law
and Substantive (material) law …… 2
o Adjectival law:
Legal procedures used by courts to reach a just ruling
o Substantive law:
Material/ content/ substance of all legal rules
At the heart of law and justice lies equality, manifested especially in adjectival law.
Adjectival (formal) Justice can be reached through:
o Stare decisis
o ‘innocent until proven guilty’
criminal law justice:
o rules of natural justice:
Always listen to the other side of the story
You can never be the judge in your own case/ matter
o Sometimes statutes/ laws will not have justice as the result (i.e. apartheid
laws – Group Areas Act 36 of 1966)
Philosophical approach to law:
o Legal positivism:
Law should be applied as it is and not as it ought to be
Argument: the question is irrelevant: law is just and fair The old way of
Morality and aw separate viewing law
Law: set down in statute and books, rules and court decisions
Only those rules that are set down are regarded as law
S v Adams; S v Werner 1981 1 SA 187 (A)
2 families demarcated for coloured families in group areas act.
2 families decided to move to a neighbouring area because of
over population. They were taken to court because they were
in contravention of the Group Areas Act. Because they used
legal positivism and took the law as it was and not as it ought
to be they were prosecuted, found guilty and convicted of
their crimes.
Doesn’t always include justice
o Natural law:
Law has a moral dimension
Not only what is promulgated but also what it ought to be, what it
could be and what it should be.
More equal, just and reasonable approach.
, Characteristic: moral code or set of moral principles that exists
irrespective of human interaction or positive law.
Often these higher norms we can use to judge against positive
law
If an act/ law is unjust it will be in terms of natural law, no law/ invalid.
Norms: found in the harmony and order of nature or in human nature
– it’s always easy to guess the content of this natural law
Found in human reasoning and apply universally
30 March 2017
Language
Legal rules and law: cast in language
o Factor in law being uncertain
Another factor is changing values
Law adapts to be effective in terms of: changing community values and electronic
changes
o Changing/ developing social media and technology (i.e. cellphone records, IP
addresses can be used for evidence therefore new warrants/ interdicts must
be developed etc.)
o Constant amendments (e.g. Tobacco products control act)
Considered: not clarity in legislation, so amendments are made
o New legislation promulgated and developed
Judges will have to take new societal values into account
o Van Erk v Holmer 1992: A father of children born out of wedlock, apply for a
court order granting them access rights/ custody (full or partial). Previously
the mother would have all access rights/ custody and the father may have
provided maintenance but he wouldn’t have had these access rights etc. The
court awarded full access rights to the father, because it was seen that
fathers wanted to play more of an active role in their child’s life. On appeal
the court didn’t extend the same argument [B v S 1995 3 SA 571 (A)] =
uncertainty. Legislature was promulgated: Natural Fathers of Children Born
out of Wedlock Act (86/ 1997). It was necessary for the legislature to
intervene because of changing community standards/ values.
Changing values:
Uncertainty: who/ what is society?
Parliaments: democratically elected representatives of the community at large and
they’re given a more legitimate basis to convert changing community values into law.
In terms of our democracy its NB in our society that there’s ample room for public
participation and to make submissions/ viewpoints known.
S v Ncanywa 1992 (Ck) (Ciskei decision) Rape in marriage: the wife was raped by her
marriage. The court had to decide whether forced sexual intercourse in marriage was
rape or whether it was a wife’s married duty to provide intimacy. The court a quo
decided that rape was indeed forced intercourse in marriage, but the appeal court in
Ciskei repealed this and said that it was not rape. Legislation was urgently needed:
