Chapter 1:
1. Why does the law exist?
The law exists to ensure that people do not destroy each other, by
providing rules and regulations that must be followed I order to
create a peaceful co-existence.
2. Western vs. African understanding of the law.
WU law is an imagined agreement between individuals put on the
same position.
AU law believes human beings are born into a world of ethical
relations and obligations and we owe duties to o.p and they owe
duties to us.
3. Define the term LAW.
Law can be defined as a set of rules and principles facilitating and
regulating human interaction. It orders society and gives some
degree of certainty. [ALSO 2 characteristics of LAW are these]
4. Main source of law for SA?
The constitution of the republic of South Africa 1996.
5. What is the constitution?
It is a document that is written and given force of law by the
democratically elected constitutional assembly that tells us what the
states powers are and contains the bill of human rights.
6. Other sources of Law and there definition?
Legislation: laws written by democratically elected bodies
African customary law: laws of the nation’s first people
Common law: laws inherited from colonial heritage [mix of
roman-Dutch and English law]
Custom: practices that developed into law because of usage over
a period of time.
International law: laws drafted by agreement between diff
countries.
Foreign law: laws of a different country, specific to that country.
7. Diff between LEGAL NORM and MORAL NORM.
LN involves the whole community.
MN involves a select group of people.
8. 2 types of justice and their definitions.
Distributive justice: Ensures equal distribution among equals.
Corrective justice: Aims to restore inequalities.
9. LEGAL POSITIVISM VS. NATRUAL LAW APPROACH.
LPA: This approach believes that law is that which is and not that
which should be. It is irrelevant whether the law is just and fair.
Whatever is written in the sources of law are believed to be what
should be followed.
NLA: This approach believes that law has a moral dimension. It
believes that the norms are found in the harmony and order of
nature or in human nature. The eternal laws of god are seen as a
source of natural law.
10. Define legal certainty.
Legal certainty means that law is predictable, that it will be applied
consistently and that it has a fixed and certain content.
11. Factors affecting LC.
Language: words don’t have fixed simple meanings.
Changing Values: laws adapt to remain effective.
Judicial discretion: the way the law is interpreted.
Chapter 2:
1. Define the term uncodified.
A legal system is not written down in a single code.
2. Importance of LEGAL HISTORY?
It explains why the law is how it is today, as it explains the process
that the law went through to get to what it is today.
3. Is SA law STATIC or LIVING?
SA law is living which means that the LAW can adapt to society’s
new developments.
4. How many Phases did SA go through and what are they?
SA law went through 5 phases.
1. African Phase: customary law
2. Dutch colonization: Roman-Dutch Law
3. English colonization: mix of RD law and English law
4. Apartheid law: NP came into power and made Aprthd.Laws
5. Transformative Constitutional Democracy:
5. Modernism vs. Purism.
6. Positivist vs. non-positivists.
Chapter 3:
Sources of Law:
1. Primary sources vs. Secondary sources of Law
P: The actual law in the form of constitutions, courts cases, statutes
and administrative rules and regulations.
S: Restating of the law while also discussing, analyzing, describing,
explaining or critiquing it as well.
2. The constitution as a P source of law.
 It’s binding and authoritative
 Holds sovereignty
 Current C is 1996, interim C is 1993
 Has a bill of rights. [Chapter 2 of C.]
 Judges can’t disagree with C or provide personal opinions.
 Divides gov. into 3 branches.
o Executive [enforces law]
 Consists of Presd. And Cab.
 Cab. Has minister’s w/2 deputies. [*political heads*]
 Ministers have pwr over G.D’s and their
deps.[*administritave heads*]
o Legislative [Creates Law]
 Consists of Parliament
 2 house of Parl. NA and NCoP
 9 Provincial Parliaments
 267 Municipalities in SA
o Judiciary [Applies, interprets and develops the law]
 Consists of ALL courts
 From highest to lowest:
 Constitutional courts [1]
 Supreme Court of Appeal [1]
 High Courts [9]
 District Magistrate Courts and Regional
Magistrate Courts. [a lot]
 This is put in place to ensure no branch has complete
sovereignty.
3. Legislation as a PSoL:
 DEF: *Law laid down by a branch of state.
 Known as Statutes, Acts of Parliament or Legislation.
 PSoL + binding authority
 Quickest, most effective way to amend old laws.
 Legislation is passed when:
o Gaps in the law.
o Law no longer corresponds to modern society.
o Defect/loopholes in the law.
4. **How legislation is made:
 New plea of Legislation arises.
 The Government drafts Green Paper that puts various
policy options forward about a particular topic.
 The Green Paper goes through the public eye for
opinion [Public Participation Process]
 The Government then drafts White Paper which states
government policy.
 The White Paper then goes through the Public
Participation Process.
 Then experts would drafts a Bill concerning this matter.
 Usually the Bill is published in the Government
Gazette to allow the public to comment on the Bill.
 The Minister responsible for this matter then introduces the
Bill at the National Assembly for the First-reading.
 Each member has a copy of the Bill and after its
introduction the Bill is referred to a Portfolio
Committee.
 The members then investigate the Bill, the public
commentary and recommend changes and make new
proposals.
 The changes are recorded in a report and is then presented
at the next National Assembly for the Second-Reading.
 During this reading the purpose and principles of the Bill is
debated.
 At the end of the debates proposals [Amendments] may be
made regarding the Bill and these amendments are
CONSIDERED by the Portfolio Committee, after which it
again drafts a report.
 The National Assembly then takes the report into
CONSIDERATION and VOTES based on the Second-Reading.
 Once the Bill is approved by the Nation Assembly it is
referred to the National Council of Provinces for approval,
where the SAME process as in the National Assembly is
followed.
 If the National Council of Provinces DISAPPROVES
the Bill, the CONSTITUTION states how the
disapproval should be resolved.
 If the National Council of Provinces APPROVES the
Bill, it is referred to the President for assent.
5. When does Legislation stop being in force:
Repeal: Parliament decides to end an Act/Legislation/Statute
Sunset Clause: when the act has a clause stating that it will stop
being in effect on a particular date.
Judicial Review: when courts review an Act/Legislation/Statute and
find it to be unconstitutional.
6. Interpreting statutes:
 2 Approaches:
o Theoretical Approaches:
 Literal Approach:
 Follow law as it stands
 Purposive Approach:
 Look for reason as to why law was instated
 Transformative Approach:
 Apply the Constitution
o Practical Approaches:
 Grammatical Approach:
 Interpret the words as they are defined in the
ordinary dictionary.
 Systematic Approach:
 Legislation should be read as a whole
 Teleological Approach:
 Look into the deeper meaning as to why the
statute exists
 Historical Approach:
 Look at previous versions of the ACT
 Comparative Approach:
 Compare it with law of other countries
6. Legal Precedents as a PSoL:
 Origins from English law
 Reason for use:
o The law applied to specific situations should be applied to
similar cases
o Stare decisis [to stand by previous decisions].
7. Ratio Decidendi and Obiter dicta:
Ratio decidendi refers to statement of law that arises from the
reason for the court’s decision.
Obiter dicta refer to statements that are not necessary for a court’s
findings.
8. More than one judgement w/regards to precedent:
Majority judgment: results in precedent
Minority judgement: no precedent but will have persuasive power in
future.
Separate Concurring judgement: No precedent, no disagreement
but judge still hands different judgement.
9. Pros and Cons of Precedent:
Pros: Legal certainty and legal uniformity
Cons: Incorrect decisions and Legal reform is difficult [takes a while
for law to adapt]
10. Common Law as a PSoL:
 The law of a country which is not contained in legislation.
 Refers to 17th and 18th RD Law and English Law.
 Roman law was codified in the Corpus Iuris Civilis.
11. Custom as a PSoL:
 Generally unwritten law.
 Requirements for custom to be recognized:
o The custom must have existed for a long time
o It must be observed generally by the community in which
it applies
o It must be reasonable
o Its content and meaning must be certain and clear
Chapter 4:
1. Substantive vs Procedural Law:
S: part of the law which determines the content and meaning of the
different legal rules and principles.
P: part of the law which regulates the enforcement of substantive
law.
2. Branches of Procedural Law:
Law of Criminal Procedure
 Concerned with the way in which someone who is suspected of
having committed a crime is prosecuted and tried.
Law of Civil Procedure
 Methods by which private law disputes are brought before the
court.
Law of Evidence
 Concerned with how evidence must be presented before the
court.
3. Branches of Substantive Law:
 Private law
 Public law
Chapter 5 and 6:
First-generation Rights
Definition
Provide a shield for the individual to protect himself against state
authority and guarantee freedom from unlawful interference by the
state.
Second-generation Rights
Definition
They do not require the state to refrain from doing something
specific, but to take positive action as they are a sword against the
state.
Third-generation Rights
Definition:
These pertain to groups and have been identified more recently.
Chapter 13:
1. Jurisdiction
A court’s jurisdiction is determined by three factors:



The geographical area
Type of case
Whether the case is appearing before a court for the first time
or not.
2. District Courts



Criminal cases: The criminal jurisdiction of a District Court is
restricted.
Civil cases: The civil jurisdiction of a District Court is also
restricted, in the sense that it has no jurisdiction in matters
which fall within the exclusive jurisdiction of the High Court
(Constitutional matters: A District Court has jurisdiction with
respect to constitutional matters only if an Act of Parliament
provides it with such jurisdiction.
3. Regional Courts



Criminal cases: A Regional Court can try any criminal offence
(even those that a District Court cannot hear such as murder
and rape) but not treason.
Civil cases: The civil jurisdiction of the Regional Courts is slightly
more expansive than that of the District Courts.
Constitutional matters: The same principles apply to Regional
Courts as explained above for the District Courts.
4. High Court


Jurisdiction as court of first instance: When the High Court sits
as court of first instance, usually only one judge presides.
Appeal and review jurisdiction: The High Court can review and
hear appeals of criminal and civil cases that were first heard in
the Magistrates’ Courts.
5. Jurisdiction of the Supreme Court of Appeal
The Supreme Court of Appeal is a Superior Court in terms of the
Superior Courts Act.
6. Jurisdiction of the Constitutional Court
The Constitutional Court is a Superior Court in terms of the Superior
Courts Act. According to section 167 of the Constitution, read with
the Superior Courts Act, the head of the Constitutional Court is the
Chief Justice. The Chief Justice is also the head of the South African
judiciary as a whole. Other members of the court are the Deputy
Chief Justice and nine other judges. In any case, at least eight judges
must hear the matter.