What is the law?

Characteristics Normative rules that regulate human interactions Law effects retribution in society Law strives for peacefulness and just arrangements of society It is found in certain acknowledged sources Applied or interpreted by institution of state (police and prison authorities) The law is a set of legal rules Self-imposed rules (e.g. waking up at a specific time) Rules that are generally acknowledged/obeyed in communities (e.g. speed limits) Rules Regarding formulation of natural occurrences or incontrovertible truths (e.g. 1+1) Categories Rules/laws of nature Rules of conduct Laws/ rules of nature: Generally accepted regarding conclusion that can be drawn by observing phenomena in nature or by applying rational thought. Examples: Observing phenomena e.g. water consists of one part oxygen and two part hydrogen Applying rational though leads of law of maths e.g. 2+2=4 Applying rational thought Rules of conduct Rules of conduct serve as standards or norms that determine how human beings should behave also known as norms of conduct or normative rules. Forms of rules of conduct: 1. Customs 2. Etiquette 3. Discipline 4. Grammar 5. Morality 6. Good morals 7. Religion 8. Aesthetics 9. Fashion Definitions: Normative Rules: Based on what is considered to be the usual or correct way of doing something. Retribution: punishment for doing something wrong

Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Characteristics of rules of conduct: statements or what should be/variable & bound by time or place. Legal rules and rules of conduct: Legal rules are rules of conduct but rules of conduct are not always legal rules. Certain rules of conduct fall under law because they prescribe human conduct For characteristics of legal rules see page 34 in learners guide!!! The law is a system of rules which regulates human interaction. Morality Moral rules control inner mental/spiritual being of an individual Laid down by individual The purpose of the rules is to attain and retain a good conscience , to enable the individual to feel good about himself/herself The sanction for contravention it invades his/her conscience in a form of remorse. Religion Rules that one believes come from a divine being to regulate ones behaviour Recorded in religious sources e.g. bible or Koran The purpose for these rules is to serve as directives for decent life as preparation for the after life Guides on how to live The sanction of contravening these rules (sin) is the realisation of guilt which the sinner experiences and his/her belief that without absolution God would deprive him/her of a life hereafter. Good morals Rules pertaining to good/bad behaviour Expressions of public opinion Reflect general standards of proper conduct in society Sanction for contravention: public disapproval or social rejection The law effects of retribution: The harmonisation of interests of individuals/society as a whole have been disturbed, affected/altered in some way or another with the objective of restoring order in society Retribution comes into effect when a particular event occurs with consequences backed by the state authority: 1. Natural event (death) 2. A natural condition (draught) 3. A lawful human act (contract being concluded) 4. Unlawful human act (theft) Law strives for peace 1. Law recognizes and protects certain interests and needs of people by way of Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

retribution where interferences or disturbance of such interests occurs, 2. Some interests are more important than others depending on the society Law and Justice Justice is an elusive concept. What people perceive to be just in a society depends on various socio-economic, cultural, religious terms Two concepts: 1. Cultural relativism 2. Universalism The general view is that modern societies reflect basic sense of justice and morality of their members. Changes to legal rules here have been done peacefully and with full cooperation and procedures. Page 10 to 12 Beginners Guide for Law Students Formal justice The principle that cases must be treated alike The criminal procedure regards an accused person as innocent until proven guilty. The process requires that both sides be heard. A person must appear before court within a reasonable time and that no force or undue influence may be used to induce an accused to confess a crime. Notion of Justice in legal rules 1. Legal positivism What law is , not what it ought to be Irrelevant whether law is just and fair Morality and law are two separate entities Law is what is set down in statute books, in rules and in court decisions. Judges have an almost mechanical function merely to apply law. (judges speak the law; they do not create law) 2. Natural law What law ought to be not is An unjust law is no law at all Moral code or set of moral principles that exists irrespective of human interaction and legal positivism. The phrase natural law indicates that these norms are found in the harmony and order of nature or in human nature. Sometimes the eternal laws of god are seen as the source of natural law. They apply universally for all times and places. No legislature is necessary to impose them. Questions 1. Should a rule that is found in credible legal source that is acknowledged and enforced by state authority, but conflicts directly with the state of morality or justice or majority in society be seen as a just rule? (No it may appear to be an unjust legal rule) Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Examples of unjust rules: Laws of Nazi Germany that condemned mass killing of 6 million Jews Apartheid E-tolls Dictatorship that condoned mass genocide and crimes against humanity e.g. Idi Amin of Uganda, Pol Pot of Cambodia and Nicolai of Romania Definitions: Laws of Nature: A law is universal if it states that some conditions, so far as are known, invariably are found together with certain other conditions Natural Law: the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards.

Law is a set of normative rules (rules that govern human behaviour) They are retribution in certain events They balance society Legitimacy rules (unjust legal rules) Table 34 Learning Guide (IMPORTANT) Possible Safe guides (The law of nature and human rights) All legal rules should meet minimum standards of justice before being recognised as legal rules The law of nature is a system of eternal, constant principles of justice existing in the nature of things, and to which all legal rules must conform Human rights Fundamental inalienable claims to human dignity to which each human being is entitled regardless of his/her race, gender, religion, nationality, disability, status or means Enshrined in the constitution (the Constitution of the Republic of South Africa 1996, Chapter 2 The bill of rights) Immoral behaviour Some immoral behaviour that are crimes e.g. possession of pornographic materials. Some immoral behaviours are not crimes e.g. adultery Arguments: (1) in regard to punishing immoral behaviour with reference to the law. Where immoral behaviour harms other members of the society (general public or children), it should be punished for contravening legal rules. (2) All moral conduct should be punished for contravening legal rules because such immoral conduct negatively impacts community development and leads to social decay.

Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Laws and certainty Language: Laws written in language that requires Ex Parte Dow (See pages 14 to 18 in beginners guide for law students) Changing values: Laws should reflect changing values or society and take account technology as well as other developments. Juridical Discretion (IMPORTANT) Subjective attitudes of presiding officers revealed in interpretation of law. The interpretation of words and norms imply that judges have an option in applying the law . Two relevant concepts 1. Juridical activism: Judges use discretion creatively to effect social change. Judicial activism occurs when judges decline to apply the Constitution or laws according to their original public meaning or ignore binding precedent and instead decide cases based on personal preference. Judges let their subjective policy preferences control their decisions. This standard expresses not policy disagreement with the outcome of a case, but disagreement with the judges conception of his or her role in our constitutional system. 2. Juridical deference: Judges give way to legislator of executive to make social changed See Makwanyane V DPP Legal Rules Sources 1. Legislation: Legislations are laws enacted by a legislative body (Could be the parliament) in a given place which are meant to be followed by the citizens. Example, The English law of criminal procedure, evidence and the jury system were received through legislation. 2. Common Law: A common law legal system is a system of law characterized by case law which is law developed by judges through decisions of courts and similar tribunals. Also include statutes enacted by legislative bodies, though those statutes typically either codify judicial decisions or fill in areas of the law not covered by case law. It is derived from custom and judicial precedent rather than statutes (laws embodied in writing). 3. Case Law: Case law is the body of available writings explaining the verdicts in a case. It is most often created by judges in their rulings, when they write their decisions and give the reasoning behind them, as well as citing precedents in other cases and statutes that had a bearing on their decision. (Judge made law) 4. Custom Law: Traditional common rule or practice that has become an intrinsic part of the accepted and expected conduct in a community, profession, or trade and is treated as a legal requirement. 5. Civil Law: Civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. This means noncriminal law which is derived from Roman law. It is the body of laws of a state or nation regulating ordinary private matters, as distinct from laws regulating criminal, political, or military matters. Civil offenses are things that you can get sued for. E.g. Landlord/tenant disputes, divorce proceedings, child custody proceedings, property disputes, personal injury, etc.

Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Reported Court Cases A reported court case is a documented judgement: Case Law Law Report It is a written record of a matter heard by the court. It contains reasoned explanations of presiding officers (judges) Relates to facts and legal rules Reported court cases/case law are essential research tools for legal practitioners when they are carrying out legal work successfully. Primary source of law A source where legal rules can be found A source that creates law Courts in SA help develop a legal system by interpreting and copying legislation E.g. The constitution and common law (Roman Dutch Law) Types of law report series: Local: 1. 2. 3. 4.

South African Law Reports (SA) All South African Law Reports (All SA) South African Criminal Reports Butterworths Constitutional Laws (BCLR)

International: 1. All England Law Reports (All ER Electronic Databases: 1. Justastat 2. Lexisnexis Theoretical Structure of a reported Court Case Consists of: Facts (What Happened) Legal Principles Application of legal principles to facts What Court Cases Are Reported? Usually reported in the highest courts (magistrates). The ones in lower court matters are usually not reported Contains legal Principles that contribute to the development of the law: i. An important legal principle is given and explained ii. A new principle raised iii. An existing judgement is set aside by the court of appeal Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Unreported Court Cases Even if not reported they are recorded in a form of a typed transcript which is made available on request. Can still raise important, valid legal principles in different ways Normally not reported because the important points raised have already been raised in certain instances in reported court cases Consolidated law suits before 1947 Judgement of supreme court (Now high court of SA) Had own set of law reports by provisional division Pipsal: Project run by the institution of legal documentation Rand Afrikaans University. After 1947: All reported court cases of the division of the High Court of South Africa. Including Namibia, Zimbabwe, Transkei, Bophuthatswana, Venda Doctrine of Juridical Precedent and it relevance page 13 IMPORTANT Hierarchy of courts in South Africa 1. CONSTITUTIONAL COURT 2. SUPREME COURT OF APPEAL 3. THE HIGH COURT OF SOUTH AFRICA Stare Decisis: Let the Decision stand Decisions in higher courts bind decisions in lower courts. All courts in SA are bound by decisions of lower special court and decisions and supreme court of appeal Lower courts are bound by precedents made in high court of SA Each high court of SA is not bound to follow decisions of another high court, in other provinces.

LOOK AT REPORTED COURT CASES HANDOUT pp. 25 to 42 in Learning Guide Reported Court Cases The state is a party to this case usually prosecuting an individual for a crime allegedly committed. Parties: State V Accused (not defendant) E.g. R V Blom (Before 31 May 1961) S V (After 31 May 1961) Before 31 May 1961: British influence on SA Law. Matters prosecuted by the crown. R= Rex (king) later Regina (Queen) The above is relevant regarding reported criminal cases Why is it between the state and the accused in a criminal case? Self-justification (taking the law in your own hands) is not allowed, its unacceptable. Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Certain legal processes are in place particularly in the law of criminal procedure (Mod 3.5) to correct the balance where one has been negatively affected by criminal act. The state, represented by public prosecutor (magistrates court) or state advocates (high court) as representatives of the DPP argue evidence against a legal subject when an offence has been allegedly committed.

Reported Civil Cases Civil cases involve disputes between private individuals and juristic persons Different categories of parties and nature of legal assistance define the nature of a civil case. Two procedures that characterise civil cases Application procedure Action procedure pp. 27 to 28 learning guide Application/ Motion procedure A procedure that is followed when there is no material dispute of fact. Starts with motion and founding affidavit Parties involved: Applicant V Respondent or Ex Parte (sole interested party) Application Procedure: Types of application/motion proceedings Application for admission as attorney/advocate Application for presumption of deaf order Rule 43 application (interim maintenance order) Application for sequestration or liquidation Declaratory order Interim orders and final orders When an application is brought to the court, the court may adopt the view that the interested partied may be affected by the courts findings Court issues a rule nisi (interim order) Court stipulates return date upon which any party(ies) may oppose the application (Respondent here) Applicant and Respondent then urge why rule nisi interim order should or should not become a final order If no objection to requested legal assistance on the return date or respondent unsuccessful, court grants application. Interim order becomes a final order. Action Procedure Occurs when there is a material dispute of fact Starts at the issuing of summons

Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Parties Plaintiff V Defendant It is usually concerning money. Types of Action Proceedings Motor vehicle collision Alleged defamation Claiming medical damages or compensation, pain and suffering. Parties in an appeal case: Appellant v respondent Appellant: Person who lodges the appeal Respondent: Person against who appeal is lodged Respondent thus has two meanings: It can refer to a party in an application procedure and it can refer to a party in an appeal matter Appellant v respondent usually takes form only in a court of appeal E.g. supreme court of appeal (SCA) E.g. appealing from a single judge in a high court to a full bench (3 judges) in a high court See the Louw v MJ and H Trust case example on pp 30 to 31 understand how party names can change when a case goes on appeal. Court name in appeal cases When a matter is taken on appeal from the court that heard the matter first, the court from which is taken = Court A Quo The court hearing the appeal= Court of appeal Additional info on party cases in civil cases: Applicant, plaintiff, appellant The applicant or plaintiff names appear first in the case name and another or and other before the v another party or other parties are also joined in proceedings along with the party already mentioned et uxor: woman (Literal Latin translation is wife) no singular or NNO (plural): Nomine officii means in his/her official capacity. Used where a party litigates in representative or official capacity e.g. as a yrustee or guardian of a child Use of letters instead of names: e.g. B v W. usually case deals with very sensitive matters, so letters are used to protect identity of parties involved. Respondent or defendant: Respondent or defendants names appear after the v in the cases All information above applies to respondent and defendant too.

Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

Synonym for parties to a case: Parties to a case can also be referred to as litigants The word litigant derives from the notion of individuals being engaged in litigation in a case. Examples of civil court cases See module 1.1.1 in learning guide Carmichele v minister of safety and security and other Magna Alloys and research (Pty) Ltd v Ellis 1984 Pinchin and another, NO v Santam Insurance Co Ltd Ex Parte Boedel Steenkamp Katz v Katz WvW
Physical Structure

Citation of reported court cases: Ex Parte (as the sole interested party in Latin) Boedel (means Estate in Afrikaans) Steenkamp 1962 3 SA 954 (O) 1962: The year the case was heard 3: the volume of law reports in which the case can be found Volumes work as follows See page 9 in learning guide Cases in the first quarter in 1962 (Jan to March) = 1963 SA Cases in second quarter of 1962 (Apr to June) = 1962 2 SA Cases in third and fourth quarter (July to Dec) 954 the page on which the court case can be found in the law report series. (O) refers to Orange Free State Provinsional Division of the High Court Old name of high court see Page 11 in leaning guide

For Tests: Learn the new names of the high court (last page learning guide) Learn the old names of our high courts from the table page 11. Ignore

Jurisdiction of courts Jurisdiction refers to the competency of a court to hear legal matters Three types: Geographical Jurisdiction Substantive Jurisdiction Momentary Jurisdiction Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

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Court where case as heard Other important court abbreviations: Supreme Court of Appeal Today SCA Before 1947: AD Appellate Division 1947 to 1998 A= Appeal Court Constitutional Court = CC [P] Dates First Date: When the matter was heard Last Date: When judgement was given Judges page 32 in hand-out J= judge / R =Regster AJ= Actimg Judge Ja Judege of Appeal [R] Headnote Usually a summary of the most relevant facts and legal principles Judges decision in the case follows aster the word held Quare: is a doubtful uncertainty about a legal principle or it was not addresses in a case. The legal principle is still open for adjudication Semble: apparently a legal principle can be deduced from the judgement [W] Judgement 2 important Latin concepts Ratio Decidendi: Reasons for the courts decision that is essential for such a decision Obiter dictum (plural: dicta) remark(s) made in passing by W1 to W3: The judges name appears and what follows in the facts of the matter W4 to W5 and some of W10: Judges sets out legal position Identify legal principles References to, for example, law in the form of legislation, case law, common law Identifying Ratio Decidendi Look for how judge interprets that Legal Representatives Appears at the beginning of court case

Matipi Thebe-Ea-Khale Law LLB Introduction To Legal Studies 201432541

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