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What is the law (objective law) and where does Law of Persons fit in?
Definition of law:
Whole body of legal rules that is applied and enforced in South Africa.
It regulates the behavior of people in society and the behavior of the state towards society.
Sources of Law:
 Supreme law of the land. Therefore, every action and rule are subject to the
provisions, values and ethos of the constitution.
 Know Section 1-39!
 Acts or statues. Sets out the rules and principles governing a certain portion of the
 I.e. The Children’s Act – governs all things relevant to children e.g. rights guaranteed
to them and the rights and responsibilities that parents have towards their children.
Case Law:
 Two or more parties in a litigious matter or in a:
 Criminal suit (i.e. someone accused of crime, they go to court and the state
prosecutes them for said crime)
 Or a civil suit (i.e. private people).
 Common law principles used within case law.
 Courts are responsible for resolving legal disputes that arise between
parties/legislation and other sources of law (e.g. common law).
 Court system of SA – lower courts are bound by decisions of higher courts – stare
decisis – to stand by previous decisions (judicial precedent).
 Ratio decidendi – the reasons for the rationale behind a decision made by the court.
 FLAAC – Facts of the case, Legal question, Applicable law, Application of the law to
the facts and Conclusion.
SCA – Bloemfontein –
highest court of appeal for
all matters not necessarily
including constitutional
Common Law:
 The South African legal system is based on Roman-Dutch law influenced by English
law (Roman – olden day laws, Dutch and English – colonization of SA).
 Some common law rules still exist today; some (not all) have been incorporated into
legislation. Therefore, not all common law is written down but rather incorporated
within case law – i.e. common law of reasonable chastisement was used to argue for
corporal punishment – when court decided that the common law was
 Where legislation does not adequately provide for a legal position – common law
can be relied on.
 Common law and legislation are NOT mutually exclusive.
 Section 39 of the Constitution – during the interpretation of common/case law, etc.
it must be interpreted in a way that is consistent with the values of the Constitution.
Therefore, if any common law rule is inconsistent with constitutional values it can be
struct down or reviewed.
Classification of Law:
 The law as we find it in different sources cannot be studied as a disorderly mass of
 Material Law – part of the law which determines the content of rules and the rights
and duties a person may have, e.g. legislation, common law and Constitution.
 Formal Law – part of the law which regulates the enforcement of material law
(civil/criminal procedure/law of evidence). It determines the manner in which a case
must be practically handled when a rule has been violated – enforcement of the
punishment and mechanism which allows for that punishment – e.g. criminal
procedure. Formal law is the formal things that lead you to interpret how the
Material Law will be carried out.
 Therefore, the law has been classified into different branches:
National (objective) Law –
body of rules e.g. different
legislations, Constitution, common
Material (Substantive) Law
– actual rules (what)
Public Law –
Regulates the relationship
between the state and
citizens - branches such as
criminal and
administrative law
Formal (Adjective) Law –
how the rules are
Private Law – regulates the
relationship between legal subjects
(persons)/ juristic entities that
operate as people (companies)
Law of Persons
Family Law
Law of Persons Definition:
 Who or what are legal subjects (persons- natural or juristic);
 The coming into being and the coming to an end of legal subjects (natural
persons) and
 The private law status of legal subjects (natural person)