JUR 110

UNIT 1
CHAPTER 1: THE LAW
LECTURE 1
WHAT IS THE LAW? [pg 1-3]
1.1- Why Law?
 Presupposes society {a required condition for society to function}
 Needed to allow for peaceful and productive interaction between people
 Need for an authority figure to make rules for society to function
 Obedience to such laws known as ‘rule of law’
Law Definition: (Marcus Cicero)
 “One essential justice that cements society, and one law which establishes this
justice. This law is right to reason, which is the true rule of all commandments and
prohibitions. Whoever neglects this law, whether written or unwritten, is
necessarily unjust and wicked”

Law characteristics:
 Brings certainty and order to society
 Found in rules/regulations and commandments/prohibitions
 Both written/unwritten
 Justice obtained through law
 Disobeying= unjust/disobedient

Society and the Social contract

 Oxford Dictionary definition: “implicit agreement among the members of a society
to cooperate for social benefits, sacrificing individual freedom for state benefit”

 Social contract characteristics:

 Society agrees to act in a certain way
 acknowledge chosen authority
  honour rights of other people
 exchange for freedom/safety from the state

 Social contract= Agreement between people of state about rules, laws and authority
that will govern them.

 Constitution {type of social contract}

Government/Citizens
 Instruct state how to govern
 How to make laws
 How to treat people
 How people treat each other
 How to vote for authority
 Course of action when rights have been violated

 Accepting constitution= agree to rights being violated for 1) protection from state 2)
opportunity to live peaceful/prosperous life

Philosophers and Social contract:

1. Thomas Hobbes:
 World=might and strive
 Objective: peace and prosperity
 Natural state: ‘war of everyone against everyone’
 Belief: Unlimited rights and freedom
 Consequence: no law= constant state of war
 Solution: give up rights/ freedom for protection from authority state out of
fear
 Negative: State demand absolute obedience/ complete surrender of
freedom
 Power: with state
2. John Locke:
 Human beings are rational
 Objective: peace and prosperity
 Natural state: individuals act on their own behalf
 Belief: Submit to will of majority through chosen government to live peaceful
life and enjoy own property
  Positive: State=not sovereign/ people DON’T give up all freedom for
protection from state
 Tacit consent: not saying anything is consent for the government that
represents majority
 No consent: don’t agree with government and therefore withdraw
 Power: remain with the people {revolt if needs not being met}

3. John Rawl:
 Objective: Justice and fairness
 Natural State: “veil of ignorance”
 Veil of ignorance: Original position in which the future is unknown, and
people start from the same place
 Belief: Original position
 Solution: individuals negotiate for core minimum conditions
 Outcome: contract with state for core minimum conditions and give up
freedom for these conditions to live in peace and prosperity

 Common characteristics of these 3 viewpoints (WESTERN UNDERSTANDING):

1) People always in a natural state/original position
2) Negotiate with state to enter into an imagined/fictitious agreement {social
contract}

An African Perspective on a Social Contract:

 Objective: the need for understanding not vengeance, reparation not retaliation
and ubuntu not victimisation
 African worldview: Ubuntu (a person is a person because of other people)
 Philosophy: based off values of personhood, humanity, and morality
 Belief: human born in world of ethical relations and obligations
 NOT NECCESARY TO ENTER INTO A SOCIAL CONTRACT:
 Natural state: Ubuntu
 Outcome: live in a connected community of respect and consideration already
 Good for community= good for individual
 Society built on principles of sharing and respect for each other
1.2- What is law?
Characteristics of law based off a social contract:
 Need to live with others in a society
 Society must be organised and provide safe environment
 Society needs to make its own laws to ensure safe environment
 Law contains rules/regulations to ensure safe environment by controlling human
interaction
 Rules agreed upon by members of society and government I chosen to enforce these
laws
 Sanctions made if law is not complied to based off punishment/compensation
 Government act as judge
 Discrepancies appear around law to ensure certainty of compliance from members
of society

Democratic legal system:

 Legislative authority: make law
 Judicial authority: applies law
 Executive authority: enforces law
 LECTURE 2:
WHERE DO WE FIND THE LAW?
THE LAW AS RULES [pg 3-14]
2.1- The sources of Law:
 Divided into two separate categories
 Primary/Authoritative
 Secondary/Persuasive

 Primary:
 Source from which law originates
 Authoritative
 Binding {apply to all, must be obeyed}
 Secondary:
 Help understand primary sources
 Persuasive
 NOT binding

 SA Legal system= uncodified {more than one source of law}

Primary sources-SA legal system:

 Legislation/Acts/Statutes:
 Written down
 Made by organ of state {elected bodies}
 Consulted FIRST when legal problem arises
 Can be Amended {changed}
 Can be Repealed {stopped/ no legal effect}
 E.g- Act 24 of 2007….
 Judicial precedents/Court decisions/Case law:
 Decisions made by judges in court cases
 Judicial precedent: lower court bound by decisions of a higher court in
Analogous cases
 Consider their own judgement
 Analogous cases: facts are materially the same
 Court decisions can be:
 Appealed: an error of decision occurred
 Reviewed: an error of process occurred

 Common law:
 Roman-Dutch law influenced by English law {inherited by colonial heritage}
 Applies when specific matter is NOT GOVERNED BY LEGISLATION
 Can be outdated/obsolete= abrogated by disuse

 Custom:
 Unwritten law
 Fixed practices in which people live by
 Binding= people regard it as the law {continued usage over period}
 Already exist in legislation/common law= new legal principle unlikely
established
 NB in modern trade usage
 Requirements for a practice to be regarded as a law ( Van Breda v Jacobs}
 Exist for long time
 Observed generally
 Reasonable
 Certain and clear

 Customary law:
 Law of first nations of Africa= African law
 Traditional customs/usages observed by indigenous people of South Africa
that forms part of their culture { labola ect.}
 S.211(3) of the Constitution- court MUST apply customary law when
applicable to a) dispute b) in line with the Constitution
  International law:
 Law applies between different states only when agreed to
 S.39(1)(b) of the Constitution- When interpreting the Bill of Rights,
international law must be considered
 International law to be applicable in SA- 1) agree to become party to
international treaty
 E.g- African Charter on Human and Peoples Rights

Secondary sources- SA legal system:

 Writing of modern-day authors:
 Found in Articles/books
 Suggest alternative solutions to existing legal issues

 Foreign law:
 Law of other jurisdictions
 Domestic law of a country
 S.39(1)(C) of the Constitution- foreign law may be considered when
interpreting the Bill of Rights
 E.g- Namibian law exclusive to Namibia

The Constitution:
 NOT a source of law
 THE source of law in which all other sources of law must be interpreted
 S.2 of the Constitution- the Constitution is the supreme law of the Republic, law or
conduct inconsistent with it is invalid

2.2 Shared values and ideologies:

 Law of modern democracy must reflect shared values/ideology of majority of
society
 Components of a value system:
 Economic {free market capitalism/socialism}
 Political {democracy/ one-party dictatorship
 Social {equality/ class difference maintenance}
  Moral {conservative/ permissive}
 Underlying values/ideologies influence the way law can be explained/defined

2.3- The Legitimacy Crisis:

 Legitimacy crisis: occur when legal rules do not reflect the current values of the
majority and leads to loss of confidence and belief of the legal system leading to
legal system becoming illegitimate

 Legitimacy crisis impacted by Apartheid:

 Parliament during apartheid was superior and ruled as supreme over
government institutions {Parliament=Sovereign}
 Only white minority was allowed to vote
 Legal system became compromised
 Why?
o National Party represented the minority
o Not representative of majorities political/moral values
 Majority lost belief and confidence in unjust legal system
 Legislation leading to Legitimacy crisis during apartheid:
 Group Areas Act 51 of 1950: racial groups live in different grouped areas
 Prohibition of Mixed Marriages Act 55 of 1949: Prohibit different people
of different races marrying
 Separation Representation of Voters Act 49 of 1953: Reserve the right
to vote for whites only

2.4 Law and Morality:

 Law= set of norms distinguishing good from bad
 Norm= rule regulating human conduct
 Legal rules: apply to everyone/ must be obeyed to avoid legal sanction
 Moral rules: carry individual/community disapproval but no legal
sanctions
 Normative systems that influence lives/ determine human conduct:
 Religion
 Individual morality
 Community mores
 Religious norms:
 Religion: determine relationship between an individual and a supreme being
 Sanction: various forms of burning in hell
 Law v religion: emotional subject leading to extreme views

 Religion and law as mutually exclusive (separate):

 known as secular approach to law
 religion seen as a personal matter (determine life after death)
 Western {Secular, liberal} state: based on sate authority v religious’
authority
 State not responsible for enforcing religious norms
 Religious freedom must be made possible by state
 Religion and law having the same content:
 African law + Religion= linked through African legal philosophy
 Religious law such as theft equating cutting off of hands {Quran} in a
fundamentalist state will be regarded as law
 Similarities between law and religion:
 Western legal tradition influenced by Christian thought
 Church law {canon law}:
 Modern matrimonial law
 Conservative regulation of sexual relationships
 Principle that contracts may be concluded by agreement only
 Both require interpreting authoritative texts
 Ritual formalities/fixed procedure are NB
 S.15 of the Constitution: protect right to freedom of religion, thought, belief
and opinion
 Differences:
 Quran/Bible state one thing as a sin however it cannot be logically
carried out as a legal binding law
 Individual religious norms:
 Not legally binding
 Non-compliance= no legal sanctions
 Religion may deem an act as wrong {adultery, abortion} where law does not
see it as unlawful
 Religion and legal norms overlap:
 Murder, fraud, theft both seen as unlawful/sinful
 Individual Morality:
 Morality: individuals ideal self-image or prescribed perfection
 Private conflict between oneself and their conscience
 same content as religious views
 Sanctions for non-compliance= Degrees of pangs of conscience
 Honesty: ideal self-image as well as of judicial importance
 Internal conflict of morality based on opinion cannot be supported by law as
law does not enforce morality
 Community Mores:
 Community mores: values shared by the community {Collective values}
 not private values concerned only for the individual {unlike religion/morality}
 Sanction of non-compliance= society disapproval
 Doesn’t carry legal consequences but law takes cognisance of community
mores
 enforcement of community mores in legal terms difficult:
 how can community mores be determined? (Everyone has different
opinion)
 if majority of community mores are defined, should law enforce this
common morality?
 Socially deviant/ unacceptable behaviour to be criminalised:
 Harm used as primary criterion
 John Stuart Mill:
 Force can only be exercised over an individual if harm to others can
be prevented
 Paternalism in law:
 Paternalism: prescribing good conduct and morality
 Paternalism with children: don’t have capacity to understand their
consequences or make informed decisions
 Age limitation seen as paternalistic as it protects children against
alcohol/drugs etc
 Paternalism in adults: law see adults as able to make their own
decisions and understand consequences
 Bill of rights: brought to parliament ss.72 and 118- for
national/provincial bill to be passed, public involvement is necessary
(effort to include public in making of legislation and opportunity to
share their opinion)
 LECTURE 3:
INTRODUCTION TO THE CITATIONS OF THE
SOURCES OF LAW
3.1- The Primary Sources of Law:
 The Constitution:
 The Interim Constitution: (Citation)
 Constitution of the Republic of South Africa Act 200 of 1993

 The 1996 Constitution: (Correct updated Citation)

 Known as Final Constitution
 Constitution= supreme source of law
 Constitution of the Republic of South Africa, 1996.

 Legislation/Acts/Statutes:
 Parliament adopt # acts yearly
 Numbered chronologically when published in Government Gazette
 Must include:
 Short title: what act is about
 Year act was passed
 Number of the act in that year

Civil Union Act 16 of 2006

Short title: Number and Year the act was

Description of act passed by parliament

 Judicial precedents/Court decisions/Case Law

 FIVE components to a case reference:
1. Parties to the case/ Case name
2. Year/volume case was reported
3. Name or Series of law reports
4. Page # on which case starts
5. Court that heard the matter
  If case is heard the judge listens to evidence/arguments and decides
judgement
 If case is Reported only the Constitutional Court (CC), Supreme Court of
Appeal (SCA) and the High Court (HC) are reported that deal with NB
decisions
 Law Reports: series of books/online database that contain judicial opinions
from a selection of case law decided by courts

Name of law report which Page # case is found in SA Law

judgement was published Reports


Smith v Le Roux 2019 (3) SA 34 (GP)

Year in which case was reported in

the specific volume of the law
Parties in the case: report

-Civil case
-Criminal case state is always Court in which case was heard/
put first in form of ‘S v Le Roux’ reported

GP- Gauteng Division Pretoria

3.2- Secondary Sources of Law:

 Books and Journals
 Legal research: Footnotes are used to reference sources and a bibliography
is used at the end of your essay/assignment
 Source must be referenced in both footnotes and bibliography
 How to reference books:
 Footnotes:

Initial Surname Name of book in italics (Publisher place year of publication) specific pages

AJ van der Walt Property in the Margins (Hart Publishing Oxford 2009) 26-29

 Bibliography:

Surname Initial Name of book in italics (Publisher place year of publication)

Van der Walt AJ Property in the Margins (Hart Publishing Oxford 2009)

 How to reference Journals:

 Footnotes:

Initial Surname ‘Article in commas’ (year) volume Journal in italics page you used

P Langa ‘Transformative Constitutionalism’ (2006) 17(3) Stellenbosch Law Review 1-9

 Bibliography:

Initial Surname ‘Article in commas’ (year) volume Journal in italics page article starts on

Langa P ‘Transformative Constitutionalism’ (2006) 17(3) Stellenbosch Law Review 12

 LECTURE 4:
THE LAW AND CERTAINTY [pg 19-25]
 THREE factors influence law’s ability to provide certainty and consistency
 Indeterminacy of language
 Changing values of our community
 Discretion judges use when deciding cases put before them

4.1 Language:
 Law and rules established through language
 Legislation: conveyed through written down text
 Common law/ customary law: conveyed through oral tradition
 Case law: combination of both and through judge’s discretion
 Law is cast in language
 Can be difficult to convey language you aren’t proficient in
 Language cannot convey true emotions

 Beginning of act/legislation: section has definitions {reduce confusion/ambiguity}

 Words and phrases will always be confusing
 Influence how we understand law and its legal certainty
 Language= indeterminate (words are subjectively understood)
 Law is unpredictable it must be given meaning/interpreted

4.2- Changing values of the community:

 Law must adapt to the changing circumstances of the community to remain effective
and provide better protection for LS
 Values of the community are kept in mind when judges decide cases/ legislature
makes new laws
 Judges must decide certain matters based on ‘legal convictions of the community’
(boni mores)/ public policy
 Due to 1) ever-changing community values 2) transition from conservative to
progressive society:
 Legislatures enact new laws to 1) protect rights of marginalised 2) sanction
discriminatory behaviour
 Promotion of Equality and Prevention of Unfair Discrimination Act no.4 of
2000
  Woman seen as property of husband and marital rape was not a criminal act
 Change in community mores made it seen that marital rape was criminalised
 Prevention of Family Violence Act 133 of 1993
 Changing values in society will be reflected In public policy and as a result effect
judges discretion and influence which laws the legislature will amend
 Parliament as democratic electives of the community have a legitimate basis to
convert changing community values to law

4.3 Judicial Discretion:

 Interpretation of words and norms mean that judges have a discretion in applying
the law
 Discretion gives way to subjective prejudices/ attitudes
 Judicial subjectivity sees highest in the case of sentencing where no fixed sentence
Is prescribed
 Approach of judicial officers take two categories:
1. Judicial activism
2. Judicial Deference

1. Judicial Activism:
 Judicial activist judges: use creative discretion to interpret law and effect
social change
 Involved in ‘making the law’ through interpretation
 Complex/ambiguous law cases need purposive approach
 Purposive approach: judge consider the purpose and specific context of the
law
2. Judicial Deference:
1. Deferential judges: restrict discretion by deferring to the
legislature/executive
2. Judiciary have the power to ‘speak’ the law and not make it
 The constitution/Bill of Rights contain open-ended values that allow for discretion
 When interpreting the Bill of Rights, the Constitution require judges to promote
certain values
 Constitution regulates structure of state divided into three branches
1. Executive- enforces law
2. Legislature- creates the law
3. Judiciary- applies, interprets, develops law
 Branches of gov operate independently through dividing power principle
 Separation of power: limit the abuse of power between branches of gov.

 Independent judiciary: pillars of true democracy

 Separation of powers:
 Executive (president, cabinet) shouldn’t influence judiciary (court) to make
judgements that will favour the executive
 Judiciary cannot make laws, that lies with Legislature
 Executive cannot make law, power to legislate belongs to legislature
 Apartheid: Parliament used judiciary and legislature to legalise racial segregation
 As a result, s.8(1) of the Constitution: Bill of right applies and binds the legislature,
the executive, and the judiciary and that the judicial authority is vested in the courts
and that the courts are independent (s. 165)

 Judiciary= magistrates and judges

 Judiciary apply law, interpret law by making judgements
 Judiciary= Case Law= Primary source of law
 On this standing the judiciary provide certainty for law
 NO- Executors of judgement= human
 Humans can never be fully objective
 Everyone has inarticulate premises (events that influence our world view)
 As such judges will always bring subjective prejudice/attitudes into case law
 Judges then need to acknowledge their own subjectivity and prejudices
 Judge to ensure justice and that is in line with constitution and constitutional
standards
 LECTURE 5
THE LAW AND JUSTICE [pg 14-19]
 Justice can either be distributive or corrective
 Distributive: equal distribution among equals
 Corrective: restoring inequalities
 Justice is connected to context and individual circumstance
 Adjective (procedural) law: legal rules and processes the court uses to reach a
decision
 Substantive law: material legal rules and content of law

5.1 Substantive v Formal Justice:

 Substantive Justice:
 Substantive law: deal with the content and substance of law
 Substantive justice is achievable if the legal rules are fair and end in a just outcome
 Need to be seen as just and fair by society if not= revolt/protest
 Law= just because:
 Protect vulnerable people
 Ensure dignity, freedom, and equality of everyone is respected

 Formal Justice:
 Formal (procedural) justice: way in which the legal principles are applied
 People in similar situations must be treated alike
 Rules and procedures must apply to everyone in the same manner
 Legal system aims for procedural fairness by:
 Treating alike cases alike
 Regarding accused person innocent until proven guilty
-bring accused before the court in a certain time frame and give both victim
and accused the opportunity to state their case without forcing the accused
into a confession

 Formal v Substantive v Transformative substantive equality:

 Justice is linked to equality and imbedded into our constitution- Albertyn
 Formal equality: starting from the same place
 challenge status quo and find the real reason why people are not equal
 Substantive equality: not all the same, what is needed for real life equality
 Constitution focus on substantive equality and doesn’t treat people as if they have
the same origin but attempt to overcome:
 Structural, social, and economic public and private inequalities
 Concern with recognition, redistribution and redress and eradication of
actual real-life equalities
 Equality: everyone is equal before the law
 Transformative substantive equality: investigate the existing structures and
preconceived ideas that still support inequality and investigate the roots of
inequality

 Jurisprudential approaches to law and justice:

 The law is the law regardless of its morality and justice, It has no effect on its validity
and legitimacy
 Abortion: sinful but no legal consequence
 Sam sex marriage: can be solemnised under the Civil Union Act but is
shunned in certain communities
 Prostitution: Illegal in SA but is needed for prostitutes to fend for their family
 Justice: depends on your circumstances and worldview
 MUST THE LAW EMBODY JUSTICE IN ORDER TO QUALIFY AS VALID LAW?

 Natural Law:
 Law must contain morality to be valid and just
 Interested in the law that ought to be
 Natural state: harmony and order
 Moral principles exist regardless of human interaction that take precedence
 Natural law: eternal laws of God and can be found through human reason
 St Augustine: unjust law is no law at all
 Nelson Mandela: universal consciousness (conflict between the conscience and
law), the cause was superior to the law
 Bram Fischer: higher duty arises when laws are immoral, and this duty refuses to
recognise these immoral laws
 Law conflict with human reason= immoral
 Passive disobedience/ civil disobedience is used to rebel against immoral laws
 Constitution: embodiment of natural law, establishes moral principles and a just
legal system
 Judge: impose morality in every case
 Goal: Justice and fairness in line with moral reason
 Won’t be in position to overturn legal system
 Contribute to change and Social justice
 Legal positivism:
 Law does not need a moral component to be regarded as valid
 Morality is separate from positive law
 Interested in law that is
 Law=Valid if the applicable authoritative bodies have properly carried it out
(promulgated)
 Law given the positive force of law can be regarded as law (law that is carried out
correctly in line with legislation and court decision)
 Judge: mechanical function to apply the law ‘ius dicere non facere’ (speak the law
and not create it)
 Goal: intention of legislature was carried out (legislature=valid law)