FOUNDATIONS OF LAW

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THEME1
The concept and function of Law

Why does Law exist:

 Law is made by people for people.
 Presupposes a society [There needs to be a society in order for law to have a purpose]
 Created to ensure a peaceful society by implementing and enforcing rules which
people in that society agree to follow [unimagined agreement]

Law Philosophy:
 Thomas Hobbes: humans inherently evil, therefore, need to give up unlimited
freedom to live in peace.
Fear of destruction = acceptance of authority
 John Locke: people are inherently good and submit to government to keep the peace
and resolve conflict peacefully.
 African philosophy: “a world of ethical relations & obligations” where we owe duties
to other people. UBUNTU

Characteristics of the Law:

 Law is a body of rules and principles facilitating & regulating human interaction.
 Executive law: Enforces the law as a whole.
 Legislative law: makes the law
 Judicial law: applies laws and legal principles by interpretation.
 Law is enforced through sanctions (punishments)
 Content of the law depends on the history of the specific country.
 *See sources of law
 the law is a reflection of the shared values of that society

Objectives of a legal system:

 Aware of rights
 Issues dealt with efficiently.
 Not expensive
 Consistent
 Fairing
 Right to appeal
 Disputes hurt by relevant and appropriate parties.
 Trials conducted in a recognized procedure.
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 Orderly and harmonious society

Law and morality:

 Law is a normative system that distinguishes good from bad.
 Norms: rules regulating human conduct; not all norms are legal rules
 Norms that influence human conduct:
 Religion
 Individual morality
 Community mores (morals)

○ Religion:
- relationship between an individual and a Supreme Being.
- African religion: source lies in the customs handed down, rituals, objects &
dances.
- Christian: source of religion lies in the Bible.
- Muslim: source lies in the Quran.
- Ultimate sanction for non-compliance with for e.g., Christian religious norms:
hell.
- Western legal system is strongly influenced by Christianity. [Common law]
- *See pg. 7-8 BGL

○ Induvial morality
- Each person’s self-image
- Sanction for non-compliance: own conscience
- Law does not enforce morality.
- Prince v President of the Law Society, Cape of Good Hope, and others 2002 (2)
SA 794 (CC)

○ Community Mores:
- Norms of the community, collective morals
- Sanction for non-compliance: disapproval by other members of society
- Law does not always take cognizance of community mores.
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Law and Justice:

 Justice: regarded as an ideal of any legal system; but content is unclear.
 Aristotle: distinguish between distributive & corrective justice.
 Distributive: equal distribution among equals.
 Corrective: aim to restore inequalities.
 Essential element: equality.
 Adjectival (Procedural) and Substantiative (Material) Law:
Procedural law: legal rules and process according to which court reaches a decision or
solution. Substantive
law: consists of the material (body of all) legal rules. [The actual laws]
 SA’s legal process strives towards formal justice.
 Overriding principle: like cases must be treated alike = judicial precedent: judicial
instrument used to ensure this.
 Criminal procedures: an accused innocent until proven guilty.
 Content of legal rules (material law) does not necessarily coincide with justice.

○ LEGAL POSTIVISM
- Enforces the law as its
- Doesn't matter if it's fair.
- Separates lower and morality.
- Judges = mechanical

○ NATURAL LAW APPROACH

- Has moral meaning.
- Positive law conflicts = unjust law
- Eternal law of God
- Human reasoning: applied universally.
- What ought to be.
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Law and Certainty:

The idea would be legal certainty which means the law is predictable, the application is
consistent, and it has fixed and certain content.
Factors impacting legal certainty:
1. Language: language must be interpreted, words and no fixed meaning
*see Ex parte Dow 1987 (3) SA 829 (D): “in”

2. Changing values: law must adapt to changing community values & technological
changes, changing circumstances = effective.
method: promulgation of new legislation.
*see relevant cases

3. Judicial discretion: judges have discretion in applying the law, subjective prejudices
and attitudes. Sentencing and death penalty. The constitution has open-ended values.
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Classification of the law

3 principles for categorisation of positive law:

 Mode of operation
 Issuing body and sphere of validity
 The traditional classification.
**Read pages 136-155
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THEME2
Courts and alternative dispute resolution

 Adjudication: process in terms of which parties refers a legal dispute to an impartial

arbitrator. (judge decides case according to law)
 Rule of law: peaceful institutional resolution of disputes.
 Fundamental principles:
1) No one is permitted to take the law into their own hands – prohibition against self-
help.
2) Anyone has the right to challenge the legality of a law or conduct.

SECTION 34 CONSTITUTION
“Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court, or where appropriate, another independent
and impartial tribunal or forum.”
SECTION 165(2) CONSTITUTION
“The courts are independent and subject only to the Constitution and the law, which they
must apply impartially and without fear, favour or prejudice.”
SECTION 165(3) CONSTITUTION
prohibition of interference with the functioning of courts → persons and organs of state
 The word “interfere” relates to the exercise of power.
 Thus, no person or organ of state must exercise power in such a way that it
improperly influences the functioning of the courts.

Impartiality of the judiciary

 Currie & De Waal: “Impartiality, on the other hand, refers to a state of mind or
attitude” of the court “in relation to the issue and the parties in a particular case
and connotes absence of bias.”
 Judges presumed to be impartial.
 Rebuttal of presumption with cogent or convincing evidence
 Judge must recuse her-/himself → Recusal: to disqualify or remove oneself as a
judge in a proceeding because of a reasonable apprehension of bias.
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Principles of jurisdiction:
 Competence of a particular court to hear a specific case.
 Jurisdiction influenced by type of case, geographical area, whether the case is
appearing before a court of first instance or not.

TYPE OF CASE:
SA Law: Distinguishes between criminal case; civil case or constitutional matter
• Criminal case: Courts’ jurisdiction determined by kind of offence and the possible
sentence.
• Civil case: Legal dispute where a crime has not been committed. Arises from disputes
in private law, commercial law or public law cases that are not criminal in nature.
Determining factors: Jurisdiction of the Court determined by the amount being
claimed and the nature of the relief sought.
• Constitutional matters: any issue involving the interpretation, application or
enforcement of the Constitution. E.g., alleged infringements of human rights, the
constitutionality of an organ of state, or the constitutionality of legislation. This
classification is important, since for example the Magistrate’s Court has no
constitutional jurisdiction. Thus, the Magistrate’s court cannot declare invalid conduct
and laws that violate the Constitution.

GEOGRAPHICAL AREA
For a Court to have jurisdiction: there must be a connecting factor between the persons
before the court and the courts’ jurisdictional area.
 Criminal cases: the area where the crime is committed is usually where the accused
is tried.
 Civil cases: the place where the cause of action arose.
 Constitutional Court (CC) & Supreme Court of Appeal (SCA): has jurisdiction
within the whole geographical area of SA.
 High Courts (HC): Each of the 9 provinces have a seat of the HC.
 Magistrates’ Courts (MC): distinguish between regional and district courts
- Magistrates’ courts: divided into regional divisions, which are subdivided into
magisterial districts.
- Regional courts: jurisdiction within a particular regional division
- District court: jurisdiction within a particular magisterial district
-
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COURTN OF FIRST INSTANCE

• Court of first instance: also known as court a quo – meaning this is the first court
where the matter started.
• If unhappy with decision of Court of first instance: possibility of appeal or review
• Appeal:
- Appeal lodged, when court a quo has allegedly erred in its decision.
- On appeal: court does not listen to oral evidence about facts of case.
- Only studies typed record of court a quo, in which all the evidence is
documented, and listens to arguments by legal representatives.
- Appeal may be upheld: meaning that decision of court a quo is set aside.
- Appeal may be dismissed: meaning that decision of court a quo remains in
force.
- Usually, appeals made to courts higher in hierarchy than the court a quo.

• Review:
- Takes place in the case of a possible irregularity in the proceedings.
- For e.g., judge was biased or did not afford one party a fair opportunity to
present their case.
- Certain criminal cases heard by MC – where heavy sentences imposed =
automatically reviewed by HC .
- In other cases, an application must be brought to the HC for review.
- The HC can also review decisions of quasi-judicial tribunals.

Constitu
Suprem tional
e Court Court
High
Courts of
Magistra Appeal
tes'
Courts
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Magistrates’ courts
 Creature of statute
 Created and functions w/in framework of Magistrates’ Court Act
 2 Levels
 District MC: Jurisdiction within a particular magisterial district.
 Regional MC: Jurisdiction within a particular regional division
 Both only serve as court of first instance.

Criminal cases:
o Criminal jurisdiction restricted: cannot try serious offences such as rape, murder,
compelled rape, treason.
o Tries less serious offences: theft, drunken driving, assault.
o May not impose a sentence of imprisonment of more than 3 years or a fine of more
than R120 000, in respect of any offence.
Civil cases:
o Civil jurisdiction also restricted: has no jurisdiction over matters which falls within
the exclusive jurisdiction of the High Court.
o E.g. No jurisdiction in status matters or wills.
o Can only hear cases where the amount of the claim is R200 000 or less.
o Can hear the matter, if the claim is one for specific performance with damages (of
R200 000 or less) in the alternative.

Constitutional matters:
o Only has constitutional jurisdiction if an Act of Parliament provides it with such
jurisdiction.
o Cannot decide on the constitutionality of any legislation or any conduct of the
President.
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Magistrates’ Courts (MC) – Regional Courts

Criminal cases
Can try any criminal offence (even those that District court cannot hear such as murder
and rape) but not treason.
o Can impose imprisonment of up to 15 years, or fine not exceeding R600 000 for any
offence.
o Director of Public Prosecutions as master of proceedings: will decide in which of two
courts accused is to be prosecuted.
o Serious case where possible sentence might exceed jurisdiction of Regional Court:
High Court is used as court of first instance.

Civil cases:
o Civil jurisdiction slightly more expansive: can hear matters where the amount of the
claim is more than R200 000 but not exceeding R400 000.
o Has no jurisdiction in matters concerning status related to mental capacity and wills.
o Regional Courts Jurisdiction expanded (ito Jurisdiction of Regional Courts
Amendment Act 31 of 2008) to include:
 Family disputes incl divorce; maintenance; adoption and matters relating to
custody of minor children.
 Disputes over movable and immovable property of between R200 000 and
R400 000 previously dealt with by the HC.
 Credit agreements of between R200 000 to R400 000.
 Road Accident Fund claims of between R200 000 to R400 000.
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Constitutional matters:
o The same principles apply to Regional Courts as explained for District Courts.

High Courts
 This is a Superior Court: jurisdiction regulated by Superior Courts Act 10 of 2013 &
Sec 169 of Constitution.
 Head of a division: Judge President
 Other presiding officers: Deputy Judge President and other judges.
 Each high court has jurisdiction within a particular provincial area.
 High court has appeal jurisdiction and can function as a court of first instance.

Jurisdiction as court of first instance:

When acting as court of first instance: one judge presides,
Criminal cases:
• Treason: always be heard by the High Court.
• Can try any criminal offence: where the possible sentence is imprisonment of
more than fifteen years or a fine of more than R600 000 = only High Court
can impose these sentences.
Civil cases:
• If amount of claim is more than R400 000: claim must be instituted in the
High Court.
• Only High Court: hear matters of status (issues like mental capacity and an
application for presumption of death) and matters concerning wills.
• Previously: had exclusive jurisdiction in divorce cases, but now the Regional
Courts and High Courts have concurrent jurisdiction in this regard.
Constitutional matters:
• Can decide any constitutional matter except a matter which falls within the
exclusive jurisdiction of the CC.
• Cannot decide matters assigned by an Act of Parliament to another court of
a status similar to the High Court, for eg one of the special courts.
• Can declare an Act of Parliament, a provincial Act or conduct of the Pres
unconstitutional = referral of order + confirmed by CC = binding
authority.
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Supreme Court of Appeal (SCA)

• SCA: Superior Court it Superior Courts Act.
• Acc to sec 168 of Constitution & Superior Courts Act: head of SCA is
referred to as President of that Court.
• Other presiding officials: known as Depute President and judges of appeal.
• 5 Judges must generally hear matter, unless President of court decides it
must be heard by 3 judges or more than five judges.
• Jurisdiction: within whole geographical area of SA.
• Only functions as court of appeal; never as court of first instance.
• Hears appeals from High Court and is second highest court of appeal.

Criminal & Civil cases:

• SCA: can decide all criminal and civil matters on appeal.
• Second highest court of appeal in such matters.
• Can impose any sentence and make any order.
• Decisions of SCA: binds all other courts below it.

Constitutional matters:
• SCA: can decide appeals on constitutional matters; except matters that falls within
exclusive jurisdiction of CC.
• Can declare: Act of Parliament, provincial Act or conduct of President of RSA
unconstitutional = BUT such order must be referred & confirmed by CC to create
binding authority.
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