INTRODUCTION

1. WHAT IS LAW (and why does it

matter)?

Simple definition: Law is the only body

of rules and regulations governing human
conduct that is recognised as binding by
the state and which the state, will if
necessary, enforce.
LAW V Laws
-religion
-morality
-sport
Essential Q = whether the State
considers it binding and enforceable.

What is the Law?

Reality is NOT just simple rules and regulation:
but principles that need to be interpreted
and applied in hard cases.

Stewart v Botha 2008 (SCA)

Tony Nicklinson 2008 (SC UK)

Why does it matter?

THE LAW IS INVISIBLY
PRESENT, EVERYWHERE AND
AT ALL TIMES

Pre-birth?
Post-death?
In-between?

Nasciturus Fiction
Registration of Births and Deaths Act 1992
Wills Act 1953
Estate Duty Act 1955
MILLIONS OF LAWS IN-BETWEEN!
EG: Income Tax Act 58 of 1962

2. SA LEGAL SYSTEM
Basic Concepts

1. Branches Government

a) Legislature

= Parliament
= Makes Laws

b) Executive

= President; Ministers;
Administration (civil service); police
= Enforce Laws

c) Judiciary

= Courts
= Interprets & Applies Laws

2. State
= territory and its people over which a
government has control eg: RSA
= State v Accused

3. Jurisdiction

= geographic area
= subject-matter

4.Judicial Terms

= Court of First Instance

= Court of Appeal

5. Appeal v Review

= on the merits
= on the process/procedure

6. Civil v Criminal
7. Action v Application
= dispute of fact
= no dispute of fact

8. Attorney v Advocate

SA COURT STRUCTURE
CONSTITUTIONAL COURT

SUPREME COURT OF APPEAL

HIGH COURTS

HC HC HC HC HC HC HC HC HC

MAGISTRATES COURTS

MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
.etc

+ Lots Specialist courts

THE SA JUDICIARY (COURT

STRUCTURE)

A)CONSTITUTIONAL COURT
= Johannesburg
= Constitutional + Public Interest
(NEW)
= Whole SA
= First instance & appeal

B) SUPREME COURT OF APPEAL

=
=
=
=

Bloemfontein
Civil & Criminal & Constitutional
Whole SA
Appeal only

C) HIGH COURTS
=
=
=
=

x 9 provincial divisions + 6 local seats

Civil & Criminal & Constitutional
Provinces
First instance & appeal

D) MAGISTRATES COURTS
= 100s
=Regional + District
= Civil & Criminal
= Local areas (municipalities)

Section 167 of the Constitution

The Constitutional Court

(a) is the highest court of the
Republic; and
(b) may decide
(i) constitutional matters; and
(ii) any other matter, if the
Constitutional Court grants
leave to appeal on the
grounds that the matter
raises an arguable point of
law of general public
importance which ought to be
considered by that Court; and
(c) makes the final decision
whether a matter is within its
jurisdiction.

Superior Courts Act 2013

The High Court of South Africa consists of the
following Divisions:
(a)Eastern Cape Division, with its main seat
in Grahamstown.
(b) Free State Division, with its main seat in
Bloemfontein.
(c) Gauteng Division, with its main seat in
Pretoria.
(d) KwaZulu-Natal Division, with its main
seat in Pietermaritzburg.
(e) Limpopo Division, with its main seat in
Polokwane.
(f) Mpumalanga Division, with its main seat
in Nelspruit.
(g) Northern Cape Division, with its main seat
in Kimberley.
(h) North West Division, with its main seat in
Mahikeng.
(i) Western Cape Division, with its main seat
in Cape Town.

SPECIALIST
COURTS/TRIBUNALS:
Commission for Conciliation,
Mediation
&
Arbitration;
Labour Appeal Court;
Tax
Courts; Water Courts; Land
Claims Tribunal; Competition
Tribunal & Appeal Court;
Rental Housing Tribunal and
more.
NB = Small claims court
Civil claims up to R15000

Magistrates Court
Jurisdiction
LIMITED!
District: Civil & Criminal
Civil: R200 000
Criminal: R120 000 &/or 3
years

Regional: Civil &

Criminal
Civil: R200 000 - R400 000
Criminal: R600 000 &/or 15
years.
Note: minimum sentencing
legislation.

Magistrates Court
Jurisdiction
Limited! May NOT hear:
District:
Civil: Sequestration;
Interpretation Wills;
Determination mental capacity;
Divorce.

Criminal: Treason, rape,

murder.

Regional: Civil & Criminal

Civil: As above, but can hear
divorce.
Criminal: Treason.

1. Constitution
2. Legislation
3. Case Law (Judicial
Precedent)
4. Roman-Dutch Law
5. African Customary
Law/Indigenous Law
6. Custom
7. Customary International
Law

SOURCES OF SA LAW

1. CONSTITUTION

= Supreme law

= S2: Any law or conduct with it is

invalid.
= Bill of Rights = Cornerstone of
Democracy S7(1)
S39(2): When interpreting any
legislation, and when developing the
common law or customary law, every
court must promote the spirit, purport
and objects of the bill of rights.
= Examples????????????????

2. LEGISLATION

= 100 000s
= two types

i. Original

= authority derives from

Constitution.
= EG: Acts passed by parliament.
= set aside if:
unconstitutional

ii. Delegated

= authority derives from original

legislation.
= EG: regulations passed by
Ministers
= set aside if:
unconstitutional or ultra vires or
unfair administrative action under
Promotion of Administrative Justice
Act 2000

EG UNCONSTITUTIONAL
CHILD CARE ACT 74 OF 1983
17
Qualifications for adoption
of children
A child may be adopted
(a)
by a husband and his
wife jointly;

(b)
by a widower or widow
or unmarried or divorced person;

(c)
by a married person
whose spouse is the parent of the
child;

(d)
by the natural father of a
child born out of wedlock.
Du Toit v Min Welfare 2003 (CC)

EG ULTRA VIRES
Bezuidenhout v Road Accident
Fund 2003 (SCA)
17.Liability of Fund and agents.(1)The
Fund or an agent shall
(a)subject to this Act, in the case of a claim
for compensation under this section arising
from the driving of a motor vehicle where
the identity of the owner or the driver
thereof has been established;
(b) subject to any regulation made under
section 26, in the case of a claim for
compensation under this section arising from
the driving of a motor vehicle where the
identity of neither the owner nor the
driver thereof has been established,
be obliged to compensate any person for
any loss or damage suffered as a result of any
bodily injury caused by or arising from the
negligence or other wrongful act of the driver
or of the owner of the other motor vehicle

Section 26(1) of the Act reads:

'The Minister shall or may make regulations in order to
achieve or promote the object of this Act.
Regulation 2(1)(d) provides:
'In the case of any claim for compensation referred to in
section 17(1)(b) of the Act, the Fund shall not be liable to
compensate any third party unless
(d) the motor vehicle concerned (including anything on, in
or attached to it) came into physical contact with the
injured or deceased person concerned or with any other
person, vehicle or object which caused or contributed to
the bodily injury or death concerned.
SCA
[6] Section 17(1) distinguishes between the liability of the
Fund in the case of a claim for compensation where the
identity of the owner or the driver of the vehicle involved has
been established and the case of a claim for compensation
involving an unidentified vehicle. Section 17 creates liability in
both cases, '.
The question then is whether reg2(1)(d) was a valid exercise
of the powers granted by s26 to the Minister to make
regulations.
Regulation 2(1)(d) of regulations promulgated under S26
Road Accident Fund Act held to be ultra vires.

3. Roman-Dutch Law
15-17th C Dutch writers, commenting on old
Roman Law, which was law as applied in
Holland when SA a Dutch colony.

Emperor Justinian
482-562 AD/CE
Johannes Voet
1647-1713

4.African Customary Law/Indigenous

Law
S211 (3) Final Constitution The courts
must apply customary law when that law is
applicable, subject to the Constitution and
any legislation that specifically deals with
customary law.
Recognition of Customary Marriages Act 120
of 1998.
"customary law"
means the customs and usages traditionally observed
among the indigenous African peoples of South Africa
and which form part of the culture of those peoples;
"customary marriage"
means a marriage concluded in accordance with
customary law;

Bhe v Magistrate of Khayelitsha 2005(1) SA

580 (CC)
Shilubana and Others v Nwamitwa 2009 (2)
SA 66 (CC).

5. Custom
Certain + reasonable + long-established +
uniformally observed.
Van Breda v Jacobs 1921 AD

6. Customary International Law

S232 Final Constitution: Customary
international law is law in the Republic
unless it is inconsistent with the Constitution
or an Act of Parliament
Eg: non-refoulement; slavery, torture,
genocide.
CF: TREATIES

7. JUDICIAL PRECEDENT
= earlier decisions create binding
precedent because of doctrine stare
decisis (let the decision stand)
Q: are all courts bound by full judgments
of all other courts?
A: NO! Only by ratio decidendi of
higher courts with jurisdiction over
lower court.

a) RATIO DECIDENDI

= The Reason for the Decision

R v Dudley & Stephens 1884 UK

c) OBITER DICTUM

= Incidental Statements

An obiter pronouncement is a judicial

observation made in passing: one not
necessary for the decision of the case
NOT INTEGRAL TO THE FINAL
OUTCOME OF THE CASE.

De Kock v Van Rooyen (SCA) 2004

R v Dudley and Stephens

Court

High Court of Justice

(Queen's Bench Division)

Full case name

Her Majesty The Queen v.

Tom Dudley and Edwin
Stephens

Date decided

1884

You are guilty of murder

(decision)
Necessity is not a defence
to a charge of murder when
acting to save own life.
(ratio)
However, necessity may be
a defence to a charge of
murder when acting to
save an innocent third
partys life.
(obiter)

Superior Courts Act

2013
S 52 Settlement of conflicting
decisions in civil cases.
Whenever a decision on a question
of law is given by a court of a
Division which is in conflict with a
decision on the same question of
law given by a court of any other
Division, the Minister may submit
such conflicting decisions to the
Chief Justice, who must cause the
matter to be argued before the
Constitutional Court or the Supreme
Court of Appeal, as the case may
be, in order to determine the said
question of law for guidance.

So which courts are bound by the

ratio decidenci of which other courts?
Principle:
1. CC all other courts
2. SCA all courts (including SCA) except CC
3. HC equal or higher standing in own
province!
4. MC HC own province;
If no judgment own HC, HC other
province.
BUT: if more than one HC judgment, full
bench trumps single judge; if both of
same standing (full or single) then
more recent trumps earlier in time.

EXAMPLES
Cape High Court decides may kill in
defence of property. One judge.
Who bound?
a)Full bench Cape High Court?
b)Single judge Eastern Cape High Court?
c)Single judge Gauteng High Court?
d)Cape Town magistrate?
e)Gauteng magistrate?
Full bench Eastern Cape High court decides
may not. Who bound?
a)Full bench Cape High Court?
b)Single judge Eastern Cape High Court?
c)Single judge Gauteng High Court?
d)Cape Town magistrate?
e)Gauteng magistrate?

Single judge Limpopo decides may kill in

defence property. Who bound?
a) Full bench Cape High Court?
b) Single judge Eastern Cape High Court?
c) Single judge Gauteng High Court?
d) Cape Town magistrate?
e) Gauteng magistrate?

Citation Of Cases:
Jones v Santam Bpk 2005 (2) SA 502
(SCA)
S v Smith 1999 (1) SACR 600 (C)

2008: a judge in Limpopo HC

hears a murder case. Judge
decides that murder only
encompasses direct intent, not
murder by dolus eventualis.
Therefore finds accused not
guilty.
2010: a full bench in Free State
hears murder case. Decides
opposite to previous case.
Murder includes dolus
eventualis. Therefore finds
accused guilty.
2014: a single judge in Western
Cape hears murder case.
Agrees with judge in Limpopo.
Finds accused not guilty.
Which MAGISTRATES COURTS
bound by which HC decision?