Topic 1
01 August 2025 15:25
What is Law?
Law is a set of rules made by the government to maintain order, protect people, and guide how we live and interact.
Why do we need law?
• Prevent chaos
• Keep people safe
• Resolve disputes fairly
• Ensure everyone knows their rights and responsibilities
The Role of the State
• Constitution of the Republic of South Africa, 1996 regulates state powers and functions.
• Section 7(2): The State must respect, protect, promote, and fulfil human rights in the Bill of Rights.
• Key human rights include:
○ Right to equality (s9)
○ Right to human dignity (s10)
○ Right to life (s11)
○ Right to freedom and security of the person (s12)
○ Right not to be subjected to slavery, servitude, or forced labour (s13)
○ Right to privacy (s14)
○ Freedom of religion, belief, and opinion (s15)
○ Freedom of expression (s16)
• Section 8(1): The Bill of Rights applies to all law and binds the legislature, executive, judiciary, and all organs of state.
• Separation of powers:
○ Legislature (Parliament): Makes legislation
○ Executive: President + ministers; implements legislation
○ Judiciary (Courts): Interprets and applies law
Purpose: Prevent abuse of power and maintain checks and balances.
Legal Subjects (Persons)
• Natural persons: Human beings
• Juristic persons: Entities recognized by law (e.g., companies)
• Section 8(2) and 8(4) of the Constitution: Bill of Rights binds natural and juristic persons to the extent applicable.
Legal personality: Ability to have legal rights and duties
• Starts at birth (natural persons) / registration (juristic persons)
• Ends at death (natural persons) / deregistration (juristic persons)
Legal Objects
• Personality property: Right to dignity, good name, and reputation
• Immaterial property: Rights in ideas, intellectual property (incorporeal property)
• Corporeal things: Tangible objects like books, cars (real rights)
• Performances: Acts performed or withheld by a person under law
Legal Rights
• Personal rights: Exercised against specific individuals
○ Example: Buyer-seller relationship over a textbook
• Real rights: Exercised against everyone
○ Example: Ownership of a phone
Key distinction: Personal rights are against persons; real rights are rights in things enforceable against all.
Sources of Law in South Africa
Primary sources:
• Constitution (supreme law)
• Legislation/statutes
• Common law (court decisions)
• Customary law
• Custom (trade practices)
• Judicial precedent
Secondary sources:
• International law
• Foreign law
• Modern writing
Comm Law Page 1
• Modern writing
Additional methods of law application (we discussed):
• Interpretation of statutes:
○ Literal rule (plain meaning)
○ Golden rule (avoid absurdity)
○ Mischief rule (focus on problem law intended to solve)
○ Purposive approach (consider broader purpose)
• Branches of law:
○ Public law: Constitutional, administrative, criminal
○ Private law: Contract, tort, property, family law
○ Legal subjects, legal objects, and legal rights
• Hierarchy and jurisdiction of courts:
○ Constitutional Court (highest, constitutional matters)
○ Supreme Court of Appeal
○ High Courts (serious civil and criminal matters)
○ Magistrates’ Courts (less serious cases)
• Overview of appeal and review:
○ Appeal: Higher court reviews lower court for legal errors
○ Review: Examines lawfulness and fairness of lower court proceedings
• Overview of the legal profession:
○ Advocates/barristers: Court representation
○ Attorneys/solicitors: Advice, drafting, client representation
○ Other legal professionals: Paralegals, legal consultants
○ Regulated by professional bodies, with ethical standards
Comm Law Page 2