Public Law Study Guide

Public Law N6
Lecturer Guide
A Kruger
© Future Managers 2015
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Contents
Module 1 - The concept of law and constitutional law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Module 2 - Historical review of South African law and the sources of SA law . . . . . . . . . . . . . . 3
Module 3 - Subjective laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Module 4 - Classification of law and the different courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Module 5 - Legal functionaries and court officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Module 6 - Doctrines of law and the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Module 7 - Civil liability of the state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Module 8 - Administrative law and the principle of legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Module 9 - Sources of Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Module 10 - Administrative relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Module 11 - Internal governmental relations and delegation of authority . . . . . . . . . . . . . . . . . 24
Module 12 - Administrative proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Module 13 - Judicial control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Module 14 - Interpretation of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Module 15 - Aids in the interpretation of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Exemplar Paper 1: Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Exemplar Paper 1: Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Exemplar Paper 2: Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Exemplar Paper 2: Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Subject work scheme and assessment plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

N6 Public Law Lecturer Guide
iv
Module 1: The concepts of law and Constitutional Law
Module 1
The concept of law and constitutional law
In this module the student have to differentiate between public and private law and give examples of
each. They must also distinguish constitutional law and its rules.
Activity 1
1. In your own words, explain what you understand under the concept “law”.
All societies and people need laws to ensure peace and order in society. Laws include Acts of
Parliament, laws of nature, science, economy and sport rules and laws.
2. What are the characteristics of law?

• Set of rules or regulations that facilitate human interaction
• Ensures order in society
• Ensure that the law is applied consistently
• Laws / rules are interpreted and applied by state institutions such as the police, traffic
officers and courts.
3. Identify all the branches of law in South Africa.

• International law
• Public law
▷ Constitutional law
▷ Administrative law
▷ Criminal law
▷ Procedural law
• Private law
▷ Law of persons / personal law
▷ Family law
▷ Law of personality / personality law
▷ Mercantile law / Commercial law
▷ Indigenous law
▷ Law of patrimony
■ Property law
■ Law of succession
■ Law of obligation
■ Law of Intellectual property
4. Explain what Private Law means.

Private law regulates the relationship between two legal bodies.
5. List five divisions of Private law.

See Q3
6. Explain the meaning of Public Law.

Public law regulates the relationship between the state (government) and a legal subject or
between the state and other states.
7. List three types of Public Law.

See Q3
1
8. What is the difference between Private and Public law?

Public law Private law
Relationship between state & legal subject Relationship between 2 legal subjects
9. Explain Constitutional Law as part of Public Law.

Constitutional law determines the:
• nature of the state
• organisation of government bodies
• power and functions of government bodies
• division of authority of the state
• relationship between different state authorities
• relationship between the state and its subjects (citizens)
2
Module 2: Historical review of South African law
Module 2
Historical review of South African law and the sources of SA law
In the module the development of the South African law is explained from its origin of Roman law in
Italy up to the time when South African developed its own law from Roman-Dutch law and English law.
The students must be able to explain the development of Roman law and Roman-Dutch law (one of
these are usually in an examination paper) and the students often confuse the two.
Activity 2
1. Discuss the following legal systems that contributed to the development of the South
African legal system
1.1 Roman law
• Roman law originated in Rome Italy
• It developed by means of customs which was written down and became laws
• A King and 2 consultants were elected every year to rule Italy and made the laws
• After that autocratic Ceasers took over and ruled Italy and made their own laws
• In 450 BC Roman law was codified (written down) in the Law of Twelve Tables
• By the 4th century AD the Roman disappeared but the legal system stayed
• Justinus ruled Italy and wrote down the Roman law with consultation from Catholic
church (Corpus Iuris Civilis)
• In the 12th century the University of Bolonga was established where students from
all over Europe studied Roman law
• These students took Roman law to their countries and it spread through Europe
• By 16th century it was also accepted by the Netherlands (Dutch), but England
rejected it.
1.2 Roman-Dutch law

• In the 16th century Roman and Dutch law merged
• Western Europe countries combined their own customs (laws) with Roman law
• Roman law was received in Netherlands by the students from Bolonga
• A group of jurists (legal officials) wrote down the R-D law
• Roman law was used where Dutch law did not exist (Roman law was used for the
cases which they did not have Dutch law)
• That system came to SA in 1652 with Jan Van Riebeeck
• This system was taken by the Voortrekkers into the rest of the country
• R-D law was practiced in SA for 150 years till British occupation in 1806
• Although the British ruled the country till 1910 R-D law remained the common law
1.3 British law

• 1806 Dutch rule in Cape came to an end with British occupation
• 1826 English Government instructed Bigge (Governor) to examine the legal system
used in the Cape Colony
• He recommended that English replace R-D law
• Old Council of Justice to be replaced by Supreme Court with British Judges
• This attempt was fruitless and in 1934 it was ruled that R-D law was valid law of
colony
• But R-D law was modified with English law
• English law contributed to Mercantile law, Company law, Insurance law and Civil
Procedure law
• English textbooks was made available and judges studied in English law.
3
2. Explain the development of South African law during the following periods:
2.1 from 1910 – 1948
• On 31 May 1910 SA became a Union through the South Africa Act
• A central government and an Appellate Division of the Supreme Court was
established
• All courts were bound by decisions of Supreme Court
• All differences of the four provinces were eliminated
2.2 from 1948 - 1961

• From 1948 when NP came to power discriminatory legislation had to be applied by
courts
• These apartheid laws never formed part of common law (R-D law or British law)
2.3 from 1961 - 1990

• When the RSA came into being on 31 May 1961 all laws valid remained
2.4 after 1990

• From 1990 many changes took place in our legal system
• Nelson Mandela was released from prison
• The democratic government elected in 1994 abolished all apartheid laws
• Constitution with a Bill or rights was established which became the supreme law
• All laws made in SA must not go against the Constitution.
3. List and explain the sources of South African Constitutional Law.

LEGISLATION
• Laws approved in a legislature (written)
• Called Statute law = Parliamentary laws, provincial ordinances & municipal by-laws
• Legislation = legal rules created if nothing existed
• By legislation, security & impartiality is created
• If courts cannot determine meaning of law, it’s declared invalid
COMMON LAW
• Rules valid for entire society
• rules affecting our daily lives
• It originated from Roman-Dutch and English law
• E.g murder is a crime and must be punished or if you buy groceries you pay
• It is traditions and habits and other rules affecting our lives
VERDICTS (Judicial precedent) Discuss verdicts as a source of SA law

• Decisions of courts
• All important cases are compiled in book form
• Judges in High courts can deviate from previous verdicts
• The verdict can cause a new legal will under the following:
• Interpretation and application of present laws
• Declaration of rights where there are no existing rights
• Reversing previous verdicts
• Every court must take the verdicts of higher court into account
• Court of Appeal not bound by its previous verdicts
• Magistrate court’s bound by verdicts of all higher courts
4
Module 2: Historical review of South African law
TRADITION / CUSTOM (Identify the characteristics of a custom / tradition)

• It must be long established. Known for a long time.
• It must be reasonable. Not against the law or public interest or unfair.
• It must be definite. Enough witnesses must prove custom exists.
• It must be constantly observed. Observed and acknowledge by community.
INTERNATION LAW / FOREIGN LAW

• Relationship between states
• Created by international customs and treaties
• Cover areas such as:
• diplomatic relations,
• air traffic,
• use of open seas and warfare
4. Discuss the division and execution of government authority as a function of

Constitutional law
The Constitution is:
• the rules whereby the country is governed
• compulsory in every country and protects it from other countries
• It promotes order within the state and
• promote common interest of the people
• it limits government authority
• it determines the function of state institutions
• it rules the division, classification and organization of government bodies
• it rules the appointment of government institutions
5. Discuss the wielding and division of government authority in the State as a function of
Constitutional law.
• State defined as legal person that can enter into contracts
• Characteristics of a state are:
▷ A community of people
▷ A certain piece of land (with borders)
▷ Authority over the nation (people) by Government
• We see state as legal person & the State President, Ministers & GOV bodies as organs
acting on behalf of the state (legal person).
• Organisation of state determines how authority is divided and wielded.
5
Module 3
Subjective laws
Activity 3
1. Distinguish between the doctrine of objective sense and subjective right.

Objective sense:
• Objects that rules our daily lives
• All legal rules which regulates society – Statutory and Common law
• All laws, ordinances and regulations which rule our daily lives
• Rules the relationship between persons to ensure an orderly society
• Rules regarding transfer of property, marriage, speed limits, functioning of courts
• All rules regarding everyday life, commerce and industry.
• It ensures that we honour contracts (e.g. pay bond)
• It ensures that we respect others property, privacy
(You have to follow certain rules to pass N6 like, do assessments and must have 40% in the exam
to pass.)
Subjective right
• The relationship between a person and an article (e.g. right to house, car, etc.)
• Person can obtain a subjective right (house but it’s regulated by objective sense (pay bond)
• Four subjective rights:
▷ Real rights = right to house
▷ Personal rights = performance by others (seller must deliver car if you pay)
▷ Intellectual property rights = copyright or trademark (cannot copy book)
▷ Personality rights = right to good name
• Subjective right gives powers = if I own car, I can use it or sell it
• Subjective rights have limitations = Cannot keep cows in garden of house in a city
• Private law protects Subjective right - if right was violated (take car) – you can take legal
action
• Duty to honour subjective right of person (neighbour cannot build on your property)
2. Explain objective sense as a doctrine of private law.

See Q1
3. Explain subjective right as a doctrine of private law.

See Q1
4. Subjective rights are distinguished by means of objects regarding certain existing rights.
Name and discuss these legal objects of subjective laws.
• Real rights (Cases): physical material things e.g. house / car
▷ Called property law
• Personal Property (personality rights): Your character, good name.
▷ Called character law
• Intellectual Property: spiritual creation of human mind & human creativity.
▷ Examples: inventions, trademarks, copyright, words of a song
• Performance (personal rights): see below
6
Module 3: Subjective laws
5. Briefly explain performance as an object with regard to traditional theory of subjective

laws.
• Performance means human conduct
• Law on performance is called the law of demand
• Is a contract between two parties where one (A) will perform a task for payment by (B)
• B can demand that A finish the job before payment
• B has to pay A if he finished the job
• This include appointment contracts
7
Module 4
Classification of law and the different courts
Activity 4
1. Use a diagram to identify the different types of law found in South Africa.
2. Distinguish between Public and Private law.
THE LAW
INTERNATIONAL LAW NATIONAL LAW
Material law Adjective law:

(Substansive law) – - Law of criminal procedure
- Law of civil procedure
- Law of evidence
- Legal interpretation
PUBLIC LAW: PRIVATE LAW:
– Constitutional law – Law of Persons
– Administrative law – Family law
– Criminal law – Law of partrimony
– Procedural law – Law of personality
– Indigenous law
– Mercantile law
Public law Private law

Relationship between state & legal subject Relationship between 2 legal subjects
3. List the different divisions of Public law and discuss each briefly.
• Constitutional Law determines the:
▷ nature of the state;
▷ the organisation and establishment of state organs, e.g. parliament, courts, etc.
▷ the composition and powers of legislative, executive and judicial bodies;
▷ the authority of these state organs;
▷ the power and functions of office-bearers, e.g. President, Ministers, Premiers, etc.
▷ the relationship between the different organs of the state, and
▷ the relationship between the state and its subjects through the Bill of Rights.
• Administrative law
▷ controls the administration of the state in general.
▷ determines the way in which the state exercise its executive powers
▷ controls the way in which the policies are carried out by executive state bodies
▷ try to prevent that the executive bodies do not exercise their powers arbitrarily
8
Module 4: Classification of law and the different courts
• Criminal law
▷ determines which acts of subjects (people) will be deemed a criminal offence
▷ which punishment should be conflicted on a guilty verdict.
• Procedural law
▷ part of public & private law & determines procedure followed in a court
▷ organises the relationship between the court and the suitor
▷ lays down the procedure that the suitor must follow in court.
• International law
▷ Deals with the relationship amongst states, e.g.
▷ law of war / peace
▷ protection of air space
▷ use of open sea space
4. List the different divisions of Private Law and discuss each briefly.
Personal law
• determines the legal status of a person
• determines competence of the person to be the bearer of rights and duties.
• Based on age, gender, etc.
• Child younger than 18 cannot sign a contract, but can inherit
Family law
• Orders the relationship amongst members of a family,
• e.g. valid marriage, procedure for dissolution of a marriage (divorce)
• relationship between parents & child
Personality law
• Relationship between individual regarding their personality goods; - good name
• Protects a person’s personality against violation by others
• If another person violate a person’s personality – can claim sentimental damages
Property law
• Relationship between people and their property
• Total of a person’s assets and liabilities.
• Include moveable of immovable property
Law of commitment / obligation

• where one person has a right against another for performance who must perform
• responsibility of husband/father to support his wife / children
Law of Intellectual property

• deals with spiritual of psychological creations of human mind
• issues such as trademark, copyright, word of a song, etc.
5. Identify the different divisions of Procedural Law and if it falls under

Private of Public law.
• criminal procedural law (part of public law)
• civil procedural law (part of private law)
• law of evidence (proof) (part of public and private law)
9
6. Law of patrimony regulates the relationship between persons with respect of their estate.
Identify the divisions of Patrimony Law and discuss each briefly.
• Property law
▷ deals with the relationship between persons with respect to things.
▷ determines the rights persons have with respect to their movable and immovable
property,
▷ regulates the origin, termination and protection of such rights.
• Law of succession
▷ deals with a person’s estate after his/her death.
▷ If no will exist, the law of interstate succession will determine who will inherit the
estate.
• Law of obligations / law of commitment

▷ regulates the relationship where one person (creditor) has a right against another for
performance, and
▷ the other person (debtor) has a duty to perform.
▷ the responsibility of a husband/ father to support his wife and children.
▷ Contracts and depicts (unlawful act causing damage) create obligations.
• Law of intellectual property

▷ deals with the relationship between persons with respect to intellectual property
which is
▷ the spiritual or psychological creations of the human mind.
▷ is products of human creativity such as art, trademarks, copy rights, etc.
7. Identify the higher courts in the South African legal system.

• Constitutional court
• Supreme Court of Appeal
• High court
• Special High courts
▷ Land Claims court
▷ Income Tax court
▷ Labour court of appeal
8. Identify the lower courts in the South African legal system.

• Magistrate’s court
• Water court
• Divorce court
• Equality court
• Chief ’s courts
• Regional courts
• Small Claims court
• District courts
• Children’s court / Juvenile court
• Maintenance courts
• Sexual offences court
9. Distinguish between a criminal case, a civil case and a constitutional case.

• Civil case deals with damages and the amount to be paid
• Criminal case deals with an offence committed and possible sentence
• Constitutional case deals with whether a matter is constitutional or not
10
10. Explain the following with relation to the Constitutional Court of SA;
10.1 The composition of the court
• The CC consist of 11 members
• President of CC appointed by President of SA after consultation with Cabinet &
Chief Judge
• 6 Other judges appointed from a list from the Judicial Service Commission
▷ This list must contain competent & independent & able people and have 10 names
▷ To be on list person must be Supreme Court judge or
▷ Person qualified to practice as a lawyer / advocate with 10 years’ experience
▷ Person must have taught law at university for 10 years
▷ 4 appointed from supreme court judges by President after consultation with Cabinet
& Chief Judge
▷ Person must have applicable constitutional law knowledge
• Members represented of race and gender
10.2 The jurisdiction of the court / ability regarding constitutional matters

• Con court highest authority regarding CON matters
• Consider matters regarding interpretation, protection and enforcement of the CON
• Decide if any laws / bills of parliament or Provincial legislator is unconstitutional
• If the conduct of an executive organ is unconstitutional.
• Decide on disputes between government bodies (e.g NA and NCOP).
• Decide if particular matters falls in its jurisdiction
• A CC decision cannot be appealed in the Supreme Court of Appeal
• Divisions of High court have same abilities as CON court in their jurisdiction but not re:
▷ Validity of laws / bills of Parliament
▷ disputes between central GOV bodies
10.3 The functioning of the court

• CC does not near evidence or question witnesses
• It consider evidence from other courts or cases presented to them
• Works with written documents / arguments
• They analyse the documents and prepare judgement
• When all evidence has been considered, judges discuss outcome
• Each judge give his/her decision and ruling is made by majority vote
• The reasons for their decision are published
• CC sessions are from 1 Feb-31 March; 1 to 31 May, 1 Aug–30 Sept & 1–30 Nov
11. Discuss the jurisdiction of the following courts in South Africa.

11.1 Supreme Court of Appeal
• Not a criminal court and cases cannot start here
• Function is:
▷ to hear appeals from criminal and civil cases from HC
▷ To impose any sentence and make any order on legal points from lower court
• Legal capacity:
▷ maintain an appeal (stay with decision of HC)
▷ deliver verdicts on what should have happened during a court case
▷ decide on appeals on constitutional matters from the HC
▷ declare an Act or conduct of office-bearer unconstitutional if confirmed by CC
11.2 High Court

• Have jurisdiction to hear any criminal or civil case & case can start in this court
• Deals with criminal cases with prison sentence of 15 years or more & fine of R300 000 or
more
11
• Deal with civil claims of more than R100 000

• Deals with matters concerning wills
• Can decide constitutional matters in its jurisdiction accept matters that’s dealt with only
by CC
• Can review & hear appeals from criminal & civil cases from lower courts
• Can hear matters concerning a person’s status (adoption / insolvency)
12. Discuss jurisdiction and function of the following lower courts in South Africa:
12.1 Magistrate’s court
• Deals with less serious criminal & civil cases
• Sentence person to max of 3 years in prison
• Can impose a fine of R100 000
Cannot deal with:

• Murder, rape, treason, terrorism
• Divorce
• Wills
• Matters related to a person’s mental ability
12.2 Small Claims court

Cases that can be heard:
• Repayment of monies up to R12 000
• The delivery of movable or unmovable property up R12 000
• The eviction of an occupier of premises if rent is in arrears for up to R12000
• From a credit agreement amounting up to R12000
• Any damages up to R12 000
Cases not heard in Small Claims Court (matters excluded)

• Claims exceeding R12 000
• Claims against the state
• Dissolution of marriages (divorce)
• Validity or interpretation of wills
• Claims concerning the status of a person
• Malicious persecution (break-inns)
• Breach of promise of marriage
12.3 Chief and Headman’s court

• deal with customary issues in terms of customary law.
• Chief (headman) or his deputy may decide cases using indigenous law and custom
• Case of African against another African within his area of jurisdiction
• e.g. disputes over ownership of cattle or lobola.
The procedure in traditional Chief ’s Courts is as follows:
▷ it is an informal and simple court procedure;
▷ no legal representation is allowed; and
▷ a traditional leader presides over the proceedings.
13. Identify four other lower courts and briefly explain their function.
Water Tribunal / Water Court
• independent body which has jurisdiction in all the provinces and consists of a
chairperson, a deputy chairperson, and additional members.
• can hear disputes concerning the use and allocation of water resource
• Appeals against decisions of the Water Tribunal are referred to the High Court.
12
Divorce Court
• have concurrent jurisdiction with the relevant High Courts regarding divorce
Equality Court
• deal with complaints about unfair discrimination, hate speech or harassment.
Children’s Court (Juvenile Court)

• Child Justice Act (CJA) aims to set up a child justice system for children, under the age of
18, who are suspected to have committed a crime,
• The CJA states that:
▷ A child under the age of 10 years does not have criminal capacity and cannot be
arrested and charged for an offence. In such a case, the child will be referred to the
Children’s Court.
▷ A child older than 10 years but younger than 14 years is presumed to lack criminal
capacity unless the state proves that he/she has criminal capacity. Such a child can be
arrested.
▷ A child above 14, but under 18 years of age, is said to have criminal capacity and can
be arrested.
13
Module 5
Legal functionaries and court officials
Activity 5.1
Identify the following legal functionaries in South Africa:

i. National Director of Public Prosecution
Mxolisi Nxasana (resigned June 2015)
ii. Directors of Public Prosecution for the various High Courts
Dr Silas Ramaite
Deputy National Director of Public Prosecutions
Mr Bradley Smith Ms Lebo Baloyi Ms Karin Vorster Ms Trish Matzke

Senior Deputy Senior Deputy Senior Deputy Senior Deputy
Director of Public Director of Public Director of Public Director of Public
Prosecution Prosecution Prosecution Prosecution
Adv Andrew Adv Sibongile Adv Barry Madolo Adv Ivy Thenga
Chauke Mzinyathi Director - Mthatha Director - Northern
Director - South Director - North Cape
Gauteng Gauteng
Adv Moipone Noko Adv Lungisile Adv Rodney De Adv Xolisile

Director - KwaZulu- Mahlati Kock Khanyile
Natal Director Director - Western Director - North
- Grahamstown Cape West
iii. Master of the High Court
National Office
Chief Master: Adv L Basson
Master of the High Court: Bloemfontein: Master: Mr Jan du Plessis

Master of the High Court: Bhisho: Master: Mrs Nothemba Mpongoshe
Master of the High Court: Cape Town: Master: Ms Z. Agulhas
Master of the High Court: Durban: Master: Ms Varsha Sewlal
Master of the High Court: Grahamstown: Master: Mr SS Moodley
Master of the High Court: Johannesburg: Master: Mr L Pule
Master of the High Court: Kimberley: Master: Mr Craig Davids
Master of the High Court: Mafikeng (Mmabatho): Master: Mr M Modibela
Master of the High Court: Mthatha (Umtata): Master: Mr SC Jozana
Master of the High Court: Nelspruit: Master: Adv. B. Masuku
Master of the High Court: Pietermaritzburg: Master: Ms Seetarani Gangai
Master of the High Court: Polokwane: Master: Ms FP Mugivhi
Master of the High Court: Port Elizabeth: Master: Ms EA Daniels
Master of the High Court: Pretoria: Master: Ms N Sigcau
Master of the High Court: Thohoyando: Master: Mr TC Rambauli
iv. The Registrars of the different High Courts in South Africa
14
Module 5: Legal functionaries and court officials
Resgistrars of High Courts

Eastern Cape: Bisho T Mafala
Grahamstown: Mr D Kroqwana
Mthatha: Mr S Qalami
PE: Mr F Fini
Free State: Bloemfontein: Ms Oshenia M Jingose
South Gauteng: Johannesburg: Mr V Pather
North West: Mafikeng: (Acting) Mr T Selebogo Humeleng
Limpopo: Thohoyandou: Khathu Madzhiga
Northern Cape: Kimberley: Mr C Conradie
North Gauteng: Pretoria: Mr S D Mniki
Polokwane: Ms M S Tsweleng
Western Cape: Cape Town: Ruanne David
KZN: Durban: NakoNonkcubeko
Pietermaritzburg: Ms N Fente
v. The State Attorney in South Africa
vi. The President of the Supreme Court of Appeal

President: Hon L Mpati
Deputy President Hon M S Navsa (Acting)
vii. The Magistrate/s in the area that you live

Each area to find own magistrate
viii. The Registrar of Deeds in your area or area closest to where you live
Chief Registrar of Deeds: Pretoria: Ms Carlize Knoetsen
Acting Registrar of Deeds: Mr Magheku
Registrar: Bloemfontein: David Mngcolwani
Western Cape: Mr Kasavel Pillay
Northern Cape: Mr Kasavel Pillay
Johannesburg: Ms Makaziwe Mahlangu
Kimberley: Ms Unita Frazenburg
King Williams Town: Mr Johann Badenhorst
Mpumalanga: Mr Rendani Mukhakhululi
Pietermaritzburg: Mr Sifiso Nzuza
Mthatha: Mr Nkululeko Mantanga
North West Ms Mosenki Lemme
Pretoria: Adv Audrey Gwangwa
ix. The Registrar of Companies

www.registercompanies.co.za will give all necessary information
x. The President of the Constitutional Court

Chief Justice Mogoeng Mogoeng
15
Activity 5.2
1. Please discuss the functions and responsibilities of the following legal functionaries in
South Africa:
1.1 National Director of Public Prosecution
• Chief State prosecute in Higher Courts
• Decide whether a case is going to be prosecuted or not
• NDPP cannot prosecute all cases & may refer cases to other courts
• Serious trials(case) the NDPP will prosecute himself
• Refer case to the various high courts
1.2 State Attorney

• Handle matters for the State – represent the state in trials – defend the state
• Matters of Central government and Provincial legislators
• Does same work as ordinary Attorney, but all for the State
• Compile documents, contracts, receive monies & act in civil & criminal court for State
• May act for a foreign power when agreement between SA and other state is reached
1.3 Master of the High Court

• Handles deceased estates in his judicial area
• Ensure all documents & formalities are processed & estate divided according to last will
• If dispute, the duty of Master to decide, e.g. heirs cannot be found, meaning not clear.
• Interest of all concerned must be protected, especially minors or unborn children
• If both parents of minor dies – an trustee is appointed
• Supervision of Trusts
• Deals with insolvent persons
• Supervise the administration of companies and close corporations
1.4 Registrar of Deeds

• Register immovable property in name of new owner
• Register mortgages (money by bank to buy house)
• Cession of registered mortgages (paid of bank loan)
• Register lease-holds or long leases & cancellations
• Anti-nuptial contracts (marriage contracts)
• Deeds of lease and mineral rights awarded by Gov
• Personal or land servitudes
• Sub-letting and notarial deeds
• General plans of land and plots
• Notarial prospecting contracts
1.5 Public Protector

The PP will investigate if it is suspected that:
• State funds were distributed illegally
• Maladministration by officials or the abuse of power
• Somebody was illegally & improperly, directly or indirectly enriched or disadvantaged
▷ in connection with matters of the state
▷ by a government employee
▷ at the cost of the state
• If matter is reported the PP must immediately start investigation and report it
▷ to the leader of Parliament
▷ within 7 more days to the Speaker of Parliament
▷ Speaker must inform Parliament within 7 days after start of next session.
• If PP feels a crime was committed, he can inform the NDPP to prosecute.
16
Module 5: Legal functionaries and court officials
1.6 Magistrate
• presiding officers at the lower courts
• are civil servants who started their career as a public prosecutor
• must have a law degree of diploma
• take an oath but they are not immune to criminal and civil suits.
1.7 Clerk of the Court

• To issue procedural documents
• To receive fines
• To take exhibits into safekeeping
• To display exhibits in court as evidence
• To collect fines
• To manage general administration in court
• Does not take part in court proceedings
2. Explain who can lodge a complaint to the public protector and what will happen after a
compliant was lodged?
• Government at any level, central, provincial and local government;
• State owned enterprises
• Any person performing public functions and is an employee of the state, e.g. policemen,
electoral officer or companies such as Eskom and Telkom
• Statutory councils, e.g. Human Science Research Council
3. Briefly explain how and where the following legal representatives represent the client.
3.1 Attorney - Any court
3.2 Advocate - High court
3.3 Family Advocate – Magistrate’s court, Family court, Divorce court
17
Module 6
Doctrines of law and the Rule of Law
Activity 6
1. Discuss the doctrine of sovereignty by explaining what it means and how it developed.
• Sovereignty is an independent authority over a geographical area, e.g. state
• It is the highest authority in a state which is not subject to any other authority
• In the 16th century Bodin defined sovereignty as the absolute power of the state
• He claimed Sov is a supreme power and isn’t restricted by laws, except by God
• Hobbes stated that sovereign power is above everything and even religion
• In the 17th century Louis XIV used sovereignty to be free from the law
• He had sovereign power & no one had any legal power over him - could do as he pleases
• Thomas Smith, in England said Sovereignty belonged to parliament, not king/queen
• The nation is ruled by means of vote & election of Parliament
• Sovereignty means the ultimate decision rests with the people
• In SA parliament is highest legislative authority and therefore sovereign.
• Parliament is however bounded by certain rules and subject to the Constitution.
2. Montesquieu wrote: ‘When the legislative and executive powers are united in the same
person, or in the same body of magistrates there can be no liberty..’ Explain the doctrine
of the division of powers as applied in South Africa.
• Government is divided into three authorities
• 3 authorities can control each other to stop abuse of power & promote civil liability
• 3 powers are:
• Legislative authority (make laws) e.g. NA
• Executive authority (carry out – execute laws) Ministers, departments
• Judicial authority (judge if law was broken) e.g. courts
3. The Rule of Law means that nobody is above the law. Explain this statement and how the
Rule of Law protects the citizens.
• the state may not execute its powers arbitrarily,
• individual liberty should be upheld;
• everybody in the state is equal before the law
• no person may be punished if a law of the state was not broken and
• the breach of law must be established in a court of law;
• nobody is above the law and everybody is ruled by the same law and through the same
courts;
• the constitution protects the rights and property of individuals and corporations;
• people are protected against arbitrary governance, dictatorship and mob rule;
• it aim to ensure a stable government, and
• it aim for economic and social development of society.
4. What are the conditions that the state must take into account in an emergency situation
before they take action or declare war?
• If the danger is so bad that ordinary laws does not protect the citizens;
• The action must be in proportion to the emergency e.g. if someone hits you, you can hit
back, but cannot shoot him
18
Module 7: Civil liability of the state
Module 7
Civil liability of the state
Activity 7
1. Discuss the articles of law with relation to civil liability of the state and make reference to
the conditions with regard to the suit against the state.
• Any claim against the State, if the claim is against an official of the State, and there is
ground for the claim, it should be tried in a court of law;
• The claim can arise from any contract lawfully entered into on behalf of the State that was
broken; or
• Any unlawful act or wrongdoing by an official of the State when acting in his/her official
capacity;
• A lawsuit on the basis of the above, must be instituted against the executive authority of
the state institutions, e.g. Minister of the relevant department;
• The claim against the state must be for an amount and cannot be against a defendant or
government property;
• The claim will then be settled or not according to the verdict of the court.
• If the claim is awarded by the court it must be paid within 30 days of the date of the order
or in the period agreed upon by the 2 parties;
• There are certain conditions with regard to the institution of a claim which are:
▷ The state can only be held liable regarding the action or neglect of an official of state /
department;
▷ The official must have been acting as an official of the department;
▷ The official must have committed the unlawful act within the scope of his/her official
powers / functions; and
▷ The applicant, or his/her legal representative must within 7 days they indicated to
start proceedings against the relevant executive authority, must serve a copy of the
summons to the State Attorney.
19
Module 8
Administrative law and the principle of legality
Activity 8
1. Briefly explain the following with regard to administrative law:

1.1 What is administrative law?
There is two types of administrative law namely:
i General administrative law that governs the administration in general. It is the:
• General rules and principles that all administrators must follow; and
• Remedies for people affected by administrative decisions, where administrative
powers have not been properly used or where requirements in the law have not been
followed.
ii. Particular administrative law. This is the body of law governing specific areas of the
administration. For example, the law relating to refugees and immigration, vehicle
licensing, state tendering procedures, land-use planning or civil aviation.
1.2 Is administrative law part of public or private law and explains your answer.
Administrative law is part of public law. It rules the organisation, powers and actions of
the administration of the State
1.3 Judicial review as part of administrative law.

When sitting in review of a decision, the Court will:
• only look at the method in which the decision was arrived at,
2. Discuss what is meant by the principle of legality.

Section 33 of the final Constitution explains the principle of legality as follows:
1. everyone has the right to administrative action that is lawful, reasonable &procedurally
fair;
2. everyone whose rights have been adversely affected by administrative action has the right
to be given written reasons; and
3. national legislation must be enacted to give effect to these rights, and must
• provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
• impose a duty on the state to give effect to the rights above; and
• promote an efficient administration.
3. Identify what administrative bodies have to do to apply the principle of legality.

• Administrative actions must be lawful or pursue a lawful aim;
• Administrative action must comply with the rules of natural lawfulness and the law;
• Administrative action must be fair;
• Administrative action must be reasonable;
• Administrative action must be in the public interest;
• Administrative action must comply with both the law and common law;
• Administrative action may not be executed in an arbitrary way;
• Authority of government bodies may not cause extreme hardship;
• Nobody may be intently wronged;
• No discrimination is allowed against individuals or groups;
• Administrative bodies must act, with respect for the principles of equality,
proportionality, justice, impartiality and good faith.
20
Module 9: Sources of Administrative Law
Module 9
Sources of Administrative Law
Activity 9
1. List SIX sources of administrative law.

• The Constitution
• Legislation (statutes)
• Legal Verdicts or precedent (court decisions)
• Common law
• Customs or administrative practices
• Indigenous law and
• Works of modern authors.
2. Discuss the constitution as a source of administrative law.

• Most important legal rules regarding the political system
• Prescribes the government institutions at national level
• Define and limit the authority of government institutions and bodies
• Determine the relationship between government and citizens
• Most important part of legal system of RSA & contribute to administrative law
Discuss legislation as a source of administrative law and all the organs that are a part of
this source of administrative law
Legislation can be explained as:
• law by legislative institution which has the power to do so
• known as statutes, acts, ordinances, regulations and proclamations.
• laws on marriage, insolvency, criminal procedure, company law, civil liability, etc.
• courts have to apply legislation that is in force - if a person allegedly broke a law, case may
end up in court who judge the matter & determine if law was broken.
Different sources of legislation:

Constitution
• Most important legal rules regarding the political system
• Prescribes the government institutions at national level
• Define and limit the authority of government institutions and bodies
• Determine the relationship between government and citizens
• Most important part of the legal system of RSA & contribute to administrative law
Parliament (Parl)
• Laws originate in Parliament, thus Parl source of administrative law
• laws passed in Parl describe the composition and function of admin bodies
• Minister or President promulgate subsidiary legislation to enhance Parl legislation
• Laws promulgated for establishment of organs to execute laws
9.3.3 Provinces (Prov)

• Prov authorised by Parl legislation to issue laws (ordinances)(Ord)
• Ord rules powers and functions of Prov authorities & officials
• Prov can issue Ord regulating to entertainment, traffic, town planning, races, etc.
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9.3.4 Proclamations (Proc)

• State President can issue Proc according to Parl legislation
• Is subsidiary legislation and are issued i.t.o existing legislation
• Premier of Prov can also issue Proc
• E.g. date of election
9.3.5 Regulations
• Include by-laws by municipalities
• Include rules of city Councils
• Include rules of wage councils
• Include rules of licence boards
4. Judicial review is also a source of administrative law. Please explain how judicial review
influence administrative law.
Common law is also a source of administrative law and mainly developed from Roman-
Dutch law and English law.
4.1 Which common law principles are derived from Roman-Dutch law?
• Rules regarding the interpretation of law
• Rules regarding the compensation by the state
• Rules regarding the legal powers of legislative actions
• Rules determining the invalidity of an action which is in conflict with a stipulation of
law
• Rules for procedures where admin bodies don’t have procedures
4.2 Which common law principles are derived from English law?
• Royal prerogative
• The ultra-vires doctrine
• The division of administrative action into quasi-judicial and purely admin actions
• Rules determining liability or the State
5. Briefly explain what is meant by administrative practices and which conditions

administrative practices (customs) must fulfill to be recognized by a court of law.
The court requires that an administrative practice (custom) must fulfil the following conditions
before it can become a legal rule:
• it must have existed for a long time;
• it must be observed generally by the community in which it applies
• it must be reasonable; and
• it content and meaning must be certain and clear.
6. Explain how the writings of modern authors may influence our law.
• Academics & lawyers write books & articles on the law which are useful sources in which
to find law.
• If a problem is experienced in law, easiest way to find solution is to consult a textbook on
the particular subject or problem.
• authors explain the legal position with respect to legislation, common law & case law.
• Authors also criticise the law, speculate on it and offer solutions.
• Opinions of modern authors can also lead to amendments of legislation
• Courts refer to academic writers in areas of new legal development.
22
Module 10: Administrative relationships
Module 10
Administrative relationships
Activity 10
1. Identify the two types of Administrative-law relationships and explain each one briefly
and give examples of each type of relationship.
• Private law relationship:
▷ Individuals (legal person) are involved in legal relationship
▷ Eg. buy a house and sign a contract
▷ It’s a relationship between 2 persons or a person and a company
• Administrative law relationship
▷ One subject must be invested with government authority
▷ The GOV body must be invested with GOV authority
▷ Eg. when State buys land from a private individual or award a contract to a company
2. Explain what the object is in an Administrative-law relationship

Object = the purpose or issue of the Administrative-law relationship. If the government buys
land from a farmer the land is the object.
3. Explain what the subject is in an Administrative-law relationship

Subject is the individual or organisation or government that enters into a legal relationship
with another legal subject.
4. Explain the two types of subjects that can be found in an Administrative-law relationship
Private subject = any private person (individual), private company or business
Administrative subject = a government body or institution entering into a legal relationship.
5. To determine whether an administrative body is a government organ, two tests may be

performed. Identify these tests and explain how they are applied.
Formal test: Ask the following questions
• Was this body instituted by government?
• Was the authority and duties established by legislation?
• Was the organ slotted into the hierarchy of power?
• Is there a higher authority which influences the behavior of the lower organ eg. traffic
department is gov organ but subordinate to the city council.
Material test: Ask the following questions

• What is the nature of activities of the organ?
• Does it provide services to the public?
• Is the organ a bearer of GOV authority?
• If all tests are passed and this one fails it is not a GOV body.
23
Module 11
Internal governmental relations and delegation of authority
Activity 11
1. Identify and explain the types of administrative control relations that can be find in
government bodies.
Internal relationship
• Develop when 2 GOV organs in the same power base oppose each other
• Eg. Director-General and Minister of same department come into conflict.
• Determine whether higher organ (Minister) gave orders to lower organ (D-G)
• Determine if higher organ has authority to change actions of lower organ
• If licencing board grants trading licence, then City Council cannot later take licence back.
Independent control relationship

• One organ has authority to approve the actions or the other authority
• The two organs function independently eg. Premier and City council.
• Eg. the Premier cannot order City Council to act or not to act, but he can approve or not
approve actions of the City Council
2. Distinguish between the internal and independent control relationship in government

bodies.
See question 1
3. Explain what is meant by delegation of powers or functions.

• A person or body hold the power and authorise another person or body to perform a
function on their behalf
• The delegator stays responsible for the actions of the delegate
• Power is delegated from higher to lower body
4. List the three types of delegation.

• Mandate
• Deconcentration
• Decentralisation
5. Discuss the three types of delegation or identify their differences.

Mandate
• Simplest form of delegation
• Higher organ decides and instruct lower organ to do something
• Higher organ stays responsible as instruction was carried out in its name
• Eg. Minister instructs the Director-General to build houses. DG must carry it out but if it
is not build the Minister must explain in parliament.
De-concentration
• Certain powers & functions are transferred from higher to lower organ
• Lower organ again delegate functions to people below
• The delegate does everything in name of the delegant
• Eg. Directro-General acts in the name of the Minister
• Higher organ can at any time withdraw delegation and do task self
• The higher organ must exercise control over the lower organ eg. reports.
24
Module 11: Internal governmental relations and delegation of authorities
Decentralisation
• Powers and functions are transferred to an autonomous organ
• The organ performs the functions in it’s own name (Northlink College)
• The higher organ has no right to interfere after delegation
• Eg. Minister appoint board of experts to grant licences. Minister cannot issue licences .
• The higher organ (Minister) is still in control by appointment of the members of the
board.
• Higher organ must have control mechanisms in place.
25
Module 12
Administrative proceedings
Activity 12
1. List the different types of administrative proceedings found in government organs.

• Legislative administrative proceedings
• Judicial administrative proceedings
• Purely administrative proceedings
• Multi-lateral admin proceedings
▷ Collective labour agreements
▷ Contract with officials
▷ Agreement for the supply of services
▷ City and town-planning
• Unilateral admin proceedings
▷ Mechanical admin proceedings
▷ Limited discretion
2. Discuss legislative administrative proceedings.

• the decisions taken by legislative bodies to carry out administrative action.
• E.g if a City Council set down building regulations = legislative administrative proceeding.
• legislative function performed by an elected legislative body.- not subordinate legislation.
• Legislative powers of an administrative organ is set out in the Constitution & cannot be
delegated but powers & activities can be delegated
• Constitution, Sch 5 list what Provincial legislatures may make laws on
• Constitution, Sch 4 list what Municipal councils may make laws on
• decisions by legislative bodies determine the administrative proceedings, the activities carried
out by the administrative organs or bodies of government.
• Legislative administrative proceedings only be repealed, amended or promulgated if
correct legislative administrative prescriptions were followed.
3. Explain judicial administrative proceedings.

• There is remedies for people if administrative powers havn’t been properly used or where
requirements of the law have not been followed.
• any person whose rights have been materially & adversely affected by administrative
action can request writtenn reasons for the action.
• If administrator fails to furnish adequate reasons for an administrative action, the
person may institute proceedings in a court or a tribunal for the judicial review of an
administrative action.
4. When does a court or tribunal have the power to judicially review an administrative
action?
• the administrator who took it
▷ was not authorised to do so by the empowering provision;
▷ acted under a delegation of power which was not authorised by law; or
▷ was biased or reasonably suspected of bias;
• the action was procedurally unfair;
• the action was materially influenced by an error of law;
• the action was taken:
▷ for a reason not authorised by the empowering provision;
▷ for an ulterior purpose or motive;
26
Module 12: Administrative proceedings
▷ because irrelevant considerations were taken into account or relevant considerations

were not considered;
▷ because of the unauthorised or unwarranted dictates of another person or body;
▷ in bad faith; or
▷ arbitrarily or capriciously;
▷ the action itself contravenes a law or is not authorised by law;
• the action concerned consists of a failure to take a decision;
• the action is so unreasonable that no reasonable person could have so exercised the power
or performed the function; or
• the action is otherwise unconstitutional or unlawful.
5. Identify the tests that Wiechers recommend to determine whether a certain proceeding is
a judicial proceeding.
• A verdict by tribunal or court must be final and binding
• A verdict must not be subject to higher approval
• A dispute or disagreement must exist between bodies that are justifiable
• E.g If a home owner don’t agree with valuation of his home = disagreement
• Test based on the working method of the organ
• Test is based on the nature of the admin organ’s final decision or action.
6. List the purely administrative proceedings.

• Multilateral administrative proceeding
• Unilateral administrative proceeding
7. Discuss the different purely administrative proceedings.

Multilateral administrative proceedings
• Co-operation between more the one subject in and individual relationship - Gov &
individual
▷ Collective labour agreement,
▷ City & town planning;
▷ contract with officials
▷ agreement for the supply of services
Unilateral administrative proceedings

• Called decrees – has the force of a law
• complete prescribe proceeding, where nothing is left to discretion
• 2 types:
▷ Mechanical admin proceedings - can be delegated (any official can do it)
▷ Limited discretion – cannot delegate
• Only liquor licencing board can issue licence
8. What is the difference between mechanical administrative proceedings and limited

discretion?
• Mechanical administrative proceeding – may be delegated without authorisation –
renewal of vehicle licence can be done by any official
• Limited discretion – not delegated. Executed within limits of prescribed discretion.
Only qualified official can test and award drivers licence.
27
Module 13
Judicial control
Activity 13
1. Identify the forms of control that exist regarding administrative proceedings.

• Internal control
• Control by parliament
• Investigation by Public Protector or parliamentary official
• Control by judiciary (courts)
2. Discuss statutory appeal and identify the types of appeal that can be found in South
Africa.
• Appeal from lower court to High Court
• Appeal from High Court to Supreme Court of Appeal
• Appeal by a statutory body against a Liquor licencing board if licence was not awarded
3. Briefly explain what is meant by judicial review.

• Revision of cases from lower courts by means of notice of motion.
• Common Law revision of proceedings of admin authorities allowed by legislation
• Revision of proceedings of statutory bodies
• Revision of proceedings of voluntary bodies by courts if they exceed their authority
4. List the forms of judicial review found in South Africa.

• Revision of cases from lower courts by means of notice of motion.
• Common Law revision of proceedings of administrative authorities where law creates a
revision or appeal.
• Revision of proceedings of statutory bodies (Licence Boards) of which all administrative
proceedings are subject to Common Law revision.
• Courts can also review the proceedings of voluntary associations and bodies if they
exceeded their authority or in case of an irregularity.
5. Explain what the term mandamus means.

• an order from a superior court, to any administrative body (government authority), to do
what that body is obliged to do or not to do under law
• cannot be issued to compel an authority to do something against statutory provision
• means an administrative body is compelled to carry out its statutory duty.
• a command to do an administrative action or not to take a particular action,
6. When will a court issue a declaration of rights?

• when there is an obvious legal dispute or uncertainty with an administrative organ.
• court can issue a declaration of rights to solve the dispute
• court will not issue a declaration of rights for a purely academic dispute.
28
Module 14: Interpretation of laws
Module 14
Interpretation of laws
Activity 14
1. Explain what is meant by the interpretation of laws.

• deals with the principles and rules used to determine the correct meaning of legislative
provisions to be applied in a practical situation.
2. Identify the fundamental rules of interpretation.

• The interpreter must interpret the law literally
• Words must be taken to have their usual meaning
• Common words must be interpreted in their common usage
• The interpreter may not step outside the wording of the law
• Each word must have meaning
3. Briefly explain each fundamental rule of interpretation.

▷ this rule concentrate on the literal meaning of the words of the law.
▷ will indicate the legislator’s intention

▷ Word must be interpreted according to its grammatical and literal meaning
▷ According to the trade or profession of which the words are part of.

▷ If law apply to a common situation, the application should also be common.
▷ If the wording of a regulation says ‘no person shall’ it should mean exactly that
▷ no additions or subtractions from the words used in legislation are allowed.

▷ means that to every word a meaning must be assigned
▷ no word or sentence should be regarded as unnecessary or redundant.
4. Distinguish between the golden rule of interpretation and literal interpretation.

Golden rule of interpretation Literal interpretation of laws
The true MEANING of the LEGISLATOR The meaning of the legislator as presented by
should be followed the WORDS of the law should be followed
29
Module 15
Aids in the interpretation of laws
Activity 15
1. Identify and briefly explain the internal aids regarding theinterpretation of laws.
Preamble / Preface
• Preamble states the reason for legislation
• It shows the meaning of the legislator
• Identifies the objects of the act
Long title / elaborated title

• Short summary of the subject matter of the law
• Info in the long title is used to determine the purpose of legislation
Chapter and article headings (3)

• Headings of chapters which the interpreter can refer to
• Used for doubtful parts in the law
• Used by courts to determine purpose of legislation if rest is unclear
Addendum / Schedules
• Occur at end of law
• Used to shorten and simplify the content
• forms or lists or schedules at end of legislation
2. Indentify and briefly explain the external aids regarding the interpretation
of laws.
The source of the article (3)
• Determine if law is based on Roman Dutch or British law
• A law based on Roman Dutch law must be interpreted that way
• Laws must also be interpreted in correlation with Common law not against it
• When our law use same word as in English law, the court don’t have to follow
interpretation of English court.
Peripheral circumstances (3)

• This sheds light on the meaning of a stipulation of the law or the law itself.
• If the meaning of the law is unclear refer to the circumstances (meaning of intention)
The circumstances to consider is those which counted when the law was approved not after
3. List five provisions regarding the interpretation of laws as stipulated in the Interpretation
Act 33 of 1957.
• Stipulations only valid for the explanation of laws in force at passing of Act
• Definition of words in Act valid for any law in which word are used
• If word ‘persons’ are used in law it include individual, company, group of people
• If the word ‘month’ is used it is a calendar month from 1st to last day of month
• If number of days are stipulated – the 1st day is excluded and the last day included –
Sundays and public holidays are excluded
30
Exemplar paper 1
Exemplar Paper 1
Questions
Section A
Question 1
1.1 State which court has jurisdiction to try the following cases: Write only the answer next to
the question number (1.1.1 – 1.1.5) in the ANSWER BOOK.
1.1.1 John bought an entertainment system from ABC furnishers to the value of R4000.00.
After a week he realises that the DVD has a defect and wants to claim his money back.
1.1.2 After a fight in a bar, it is established that Sydney provoked the fight. He is charged with
assault with the intention to do grievous bodily harm.
1.1.3 Clide wishes to appeal against the decision of the high court (Supreme Court) after he
was found guilty of first-degree murder.
1.1.4 Jub-Jub was found guilty of reckless driving and driving under the influence of alcohol.
The case was heard at the Protea Magistrate court and wishes to appeal against the
decision of the magistrate.
1.1.5 Jan and Vitoria have been married for twenty years in community of property. Vitoria
caught Jan and Sophia in a compromising situation and she is filing for a divorce.
(5 x 2) (10)
1.2 Give ONE word for the following descriptions. Write only the answer next to the
corresponding number (1.2.1 – 1.2.5) in the ANSWER BOOK.
1.2.1 These rules are valid for the entire country and not a part only.
1.2.2 The police official who maintains order in court and display exhibits.
1.2.3 This phenomenon is directed at the fact that an administrative organ is compelled to
perform a statutory duty.
1.2.4 This branch of law regulates the transactions of commerce and industry.
1.2.5 The manner in which cases are reviewed from the lower to the high court.
(5 x 2) (10)
1.3 Choose the word(s) from those given in brackets. Write only the word(s) next to the
question number (1.3.1 – 1.3.11) in the ANSWER BOOK.
1.3.1 Judges are appointed from the ranks of (advocates/magistrate) that have served the
period of learnership.
1.3.2 A state is defined as a (unit/legal person) which consist of people living in it.
1.3.3 According to the doctrine of (division of powers/national sovereignty) there must be
trilateral division of powers.
1.3.4 The (clerk of the court/sheriff) is responsible for issuing procedural documents in the
lower court.
1.3.5 The major function of the (state attorney/public protector) is to protect the interest of
the state by acting for all government departments and administration in civil cases.
1.3.6 The (constitutional court/supreme court) hears appeals from all the divisions of the
courts.
1.3.7 (District court/Circuit court) are part of the high court. They sit at least twice a year
moving around to serve more rural areas.
31
1.3.8 (Private law/Public law) regulates the relationship between private entities and private
individuals.
1.3.9 (Regional Magistrate Court/District Court) can sentence a person who has been
found guilty of serious criminal offence that includes murder or rape and imprison the
accused for life.
1.3.10 The presiding officer in the small claims court is the (magistrate/ commissioner).
1.3.11 The (public protector/commission) investigate cases of maladministration and
corruption on behalf of the state and determines if a case should be prosecuted or not.
(11 x 2) (22)
1.4 Complete the following sentences by filling in the missing word(s). Write only the word(s)
next to the question number (1.4.1 – 1.4.4) in the ANSWER BOOK.
1.4.1 In South Africa the judicial powers is vested in the ...
1.4.2 … seize the property of the sentenced debtor.
1.4.3 The unwritten laws which exist in any community by unspoken consent are known
as ...
1.4.4 … the higher organ instruct lower organ to act on their behalf, and can withdraw
authority at any time. (4 x 2) (8)
[50]
TOTAL SECTION A: 50
32
Exemplar paper 1
Section B
Answer any FIVE questions in this section.
Question 2
2.1 Constitutional law orders the wielding and division of government authority in a state
Explain this statement (10 x 1) (10)
2.2 Traditional subjective laws are distinguished by means of objects.
Briefly explain and give examples of these objects. (5 x 2) (10)
2.3 Name the various sources of South African constitutional law on which the court
will base their findings. (5 x 1) (5)
2.4 What is meant by an administrative law relationship? (5 x 1) (5)
Question 3
3.1 Describe with the aid of examples, the internal relationship and the independent
control relationship. (7 x 1) (7)
3.2 Discuss the test which Wiechers recommends to determine if a proceeding is a
judicial proceeding. (8 x 1) (8)
3.3 The law stipulates specific rules according to which words and sentences must be
interpreted to establish the judicial meaning of words.
State and explain the fundamental rules for interpretation of law. (15 x 1) (15)
[30]
Question 4
4.1 Give a brief description of the principle of legality and indicate the application
thereof in administrative law. (8 x 2) (16)
4.2 In order to establish whether an administrative legal government body is a body
of the State, a number of tests must be applied simultaneously.
Name and explain these tests (5 x 2) (10)
4.3 Name and discuss TWO types of statutory appeals that exist. (4 x 1) (4)
[30]
Question 5
5.1 Write explanatory notes on the delegation of administrative powers and give examples.
(5 x 3) (15)
5.2 Discuss the liability of the state due to administrative proceedings
(5 x 2) (10)
5.3 List five sub-sections of public law. (5 x 1) (5)
[30]
Question 6
6.1 Briefly explain the following aids in interpretation of the law:
6.1.1 The preface
6.1.2 The long title
6.1.3 Appendices (3 x 4) (12)
33
6.2 The rule of law is an important principle which is fully accepted in constitutional law.
Briefly explain this statement. (6 x 2) (12)
6.3 Explain the doctrine of sovereignty. (6 x 1) (6)
[30]
Question 7
7.1 Explain the following sources of administrative law:
7.1.1 Legal verdicts/Judicature
7.1.2 Common law
7.1.3 Administrative practices. (3 x 4) (12)
7.2 Briefly explain the contribution that was made by the Roman Dutch and the English law.
(10 x 1) (10)
7.3 Write explanatory notes on the small claims court under the following heading:
7.3.1 Powers and functions
7.3.2 Legal capacity of the court (2 x 4) (8)
[30]
TOTAL SECTION 8: 150
GRAND TOTAL: 200
34
Exemplar paper 1
Exemplar Paper 1
Answers
Section A
Question 1
1.1.1 Small Claims Court
1.1.2 Magistrates Court
1.1.3 Supreme Court of Appeal/Appeal Court
1.1.4 High Court
1.1.5 Divorce Court / Magistrate’s court
1.2.1 Common law

1.2.2 Court Orderly
1.2.3 Mandamus
1.2.4 Mercantile law
1.2.5 Revision/Review
1.3.1 Advocates
1.3.2 Legal person
1.3.3 division of powers
1.3.4 Clerk of the court
1.3.5 state attorney
1.3.6 supreme court
1.3.7 Circuit court
1.3.8 Private law
1.3.9 Regional Magistrate’s court
1.3.10 commissioner
1.3.11 Public protector
1.4.1 courts / judicial authority

1.4.2 bailiff / sheriff of the court
1.4.3 customs
1.4.4 Decentralisation / Mandate
35
Section B
2.1 Constitutional law orders the wielding and division of Government authority in the state.
Briefly explain.
• State defined as legal person which consists of people living in a certain area under a
common authority
• Characteristics of a state are:
▷ A community of people
▷ A certain piece of land (with borders)
▷ Authority over the nation (people) by Government
• We see state as legal person & the State President, Ministers & GOV bodies as organs
acting on behalf of the state (legal person).
• Organisation of state determines how authority is divided and wielded.
2.2 Traditional subjective laws are distinguished by means of objects: explain (5 x 2) (10)
• Cases: physical material things e.g. property laws
• Personal Property: Your character, good name.
• Immaterial Property: inventions, trademarks.
• Performance:
▷ Means human conduct
▷ Law on performance is called the law of demand
▷ A contract between two parties where one (A) will perform a task for payment by (B)
▷ B can demand that A finish the painting before payment
▷ B has to pay A if he finished the painting of the house
▷ This include appointment contracts
2.3 Sources of SA constitutional law (5 x 1)

• Legislation
• Common law
• Verdicts / judicial precedent
• Traditions / customs
• Authors
• Text books
• Foreign law
2.4 Administrative law relationship

• Private law relationship:
▷ Individuals (legal person) are involved in legal relationship
▷ E.g. buy a house and sign a contract
▷ It’s a relationship between 2 persons or a person and a company
• Administrative law relationship:
▷ One subject must be invested with government authority
▷ The GOV body must be invested with GOV authority
▷ E.g. when State buys land from a private individual or award a contract to a company
3.1 Internal and independent control relationship (7 x 1)

• Develop when 2 GOV organs within the same power base oppose each other
• E.g. Director-General and Minister of same department come into conflict.
• Most important issue is whether higher organ (Minister) gave orders to the lower organ
(D-G) and if it has authority to change actions of the orders within it’s sphere of power
36
Exemplar paper 1

• The two organs function independently e.g. Premier and City Council.
• E.g. the Premier cannot order City Council to act or not to act, but he can approve or not
approve actions of the City Council
3.2 Test of Wiechers to determine if a proceeding is a judicial proceeding

• The verdict passed by admin organ must be final and binding
• Verdict must not be subject to confirmation of higher authority
• Dispute between parties must exist of which certain issues must be judicial (can be solved
by court)
• E.g. Someone applies for a licence and it is granted – there can be no dispute
• A homeowner may dispute the evaluation of their property – end up in court
• Test is based on the method of working and the how it’s done e.g.
• Government organ can only act it its judicial capacity in investigating and considering a
dispute by using existing legal rules (administrative law)
• The test is based on the nature of the admin organ’s final decision of the action
3.3 Rules according to which words and sentences must be interpreted.

▷ Must understand and interpret legal terms according to their grammatical and literal
meaning
▷ Words of the law must be first and major source of information
▷ Words must be understood according to:
§ Common practice at the time
§ Trade of which they are part
▷ If prescription of law is for common situations, the application should be common
▷ Not deviate from original literal interpretation
▷ Intention of legislator must be gleamed from the words of the law
4.1 Principle of legality (8 x 2)

• Administrative actions must comply with the rules of natural lawfulness
• Legislation must be in the public interest
• The government body must pursue a lawful aim
• Any tacit authority must be granted according to the principle of legality
• Administrative actions must comply with both the law in general and also with common
law
• Nobody may be apparently wronged
• Powers of the government body may not be executed in an arbitrary way (misused)
• Authority may not cause extreme hardships
• No discrimination against individuals or classes is allowed.
4.2 Test to determine if admin body is body of the State (5 x 2)

37
• Is there a higher authority which influences the behavior of the lower organ e.g. traffic

• If the work has nothing to do with the supply of services to the public it can be assumed
that it is not a GOV body
• Is the organ a bearer of GOV authority? If all tests are passed and this one fail it is not a
GOV body.
4.3 Two types of statutory appeal (2 x 2)

• Appeal from the lower court to High court / Supreme Court of Appeal
• Appeal by statutory body (liquor licence board)
5.1 Delegation of administrative powers (5 x 3)

Mandate
• E.g. Minister instructs the Director-General to build houses. DG must carry it out but if it
De-concentration
• E.g. Director-General acts in the name of the Minister
• The lower organ acts in the name of the higher organ
• The higher organ must exercise control over the lower organ e.g. reports.
Decentralisation
• The organ performs the functions in it’s own name (Northlink College)
• E.g. Minister appoints board of experts to grant licences. Minister cannot issue licences as
well
• The higher organ (Minister) is still in control by appointment of the members of the
board
5.2 Liability of the state (5 x 2)

• Any suit against state is tri-able in court
• Doesn’t matter if it is from contract closed with state or unlawful act of official
• Lawsuit initiated against Minister of the department
• Claim for an amount
• Claim settled or not
Conditions
• Liability of state or dept limited to action or neglect of official
• Set time limit to initiate suit
• State must be held responsible on behalf of official
• No difference between state & officials
38
Exemplar paper 1
• Official acting as official – be on duty

• Official commit unlawful act within her duties
5.3 Five sub-sections of public law (5 x 1)

• International law Constitutional law Administrative law
• Criminal law Procedural law
6.1.1 Preface / preamble (4)

• Refers to the general set-up to portray the true meaning of the legislator
• Key to determining the thoughts of legislator during coding of law
• If words are unclear will go back to preamble
6.1.2 Long title / elaborated title (4)

• Short description of the subject of the law
• Referred to if there is uncertainty about meaning of article
• Only applied if words of law are unclear
6.1.3 Appendices / Addendums (4)

• Reduce the contents of the articles
• Contain lists / definitions
• Can contain charts
6.2 Rule of law (6 x 2)

• Important principle in judicial system
• State not execute powers arbitrarily (not misuse their powers)
• Individual liberty upheld (rights of individuals)
• Everybody equal before law
• Principles that law rules & not person or body
• No person punished or rights interfered with if law was not broken
• Breach of law must be established in court of law
• Nobody above the law
• All citizens rights & freedoms are guaranteed by the Constitution
6.3 Doctrine of sovereignty (6 x 1)

• In every state there is highest authority which is not subject to anything or anybody.
Such authority is called sovereign
• Sov started in 17th century under Louis XIV who used it to be free from the law
• This view caused that subjects (people) had not legal power over Louis XIV
• Bodinus, French writer, felt that sovereign power can do as it pleases without
responsibility to anyone and only answerable to God
• Thomas Smith claimed that Sovereignty belonged to parliament, not king/queen
• English view was that Parliament is not ruler, but nation ruled by means of vote &
election
• Thus the doctrine of national sovereignty developed
• King & Queen are officials not rulers and can be dethroned if they abuse power
• Sovereignty means the ultimate decision rests with the people
• This was accepted by old Voortrekker states and is valid till today in SA
• In SA parliament is highest authority and therefore sovereign
• Parliament is however bounded by certain rules and subject to the Constitution.
• No law passed in Parliament be declared invalid in a court of law except CC
39
7.1.1 Legal verdicts

• ‘legislative function’ of court (when deciding on admin principles) set guidelines for
further laws
• In SA courts have authority to review admin actions
• E.g. DHET cannot transfer a teacher without consulting with the teacher – the rule of
natural lawfulness must apply
• The authority to review of a court leads to development of legal rules w.r.t. admin law
• Means a higher court can review cases and verdicts of lower courts, and may change it
• Legal verdicts can thus influence admin law
7.1.2 Common law

Common law unwritten legal rules and is which is called unwritten administrative laws.
From Roman Dutch law comes:

• Rules regarding the interpretation of law
• Rules regarding the compensation by the state
• Rules regarding the legal powers of legislative actions
• Rules determining the invalidity of an action which is in conflict with a stipulation of law
• Rules for procedures where admin bodies don’t have procedures
From English taw comes:

• Royal prerogative
• The ultra-vires doctrine
• The division of administrative action into quasi-judicial and purely admin actions
• Rules determining liability or the State
7.1.3 Administrative practices

Common law sprouts from practices with legality that becomes legal rules.
Admin practice must fulfil certain conditions:

• Long established
• Reasonable and sure
• Used generally
• Applied consequently
7.2 Roman Dutch law

• By end of 15th century Roman and Dutch law merged
• Roman Dutch law was formed which was the best of both systems
• It was a systematic legal system
• A group of jurists (legal officials) wrote down the R-D law
• Roman law was used where Dutch law did not exist (Roman law was used for the cases
which they did not have Dutch law)
• That system came to SA in 1652 when Jan Van Riebeeck set foot in the Cape of Good Hope
• This system was taken by the Voortrekkers into the rest of the country
English law
• 1826 English Gov instructed Bigge to examine legal system in the Cape Colony
• He recommended that English replace R-D law
• Old Council of Justice to be replaced by Supreme Court with British Judges
• This was fruitless – in 1934 the Carted of Justice ruled that R-D law was valid law
• Thus R-D law was modified with English law
40
Exemplar paper 1
• The Voortrekkers carried R-D law into SA

• English law contributed to Mercantile law, Company law, Insurance law etc.
• English textbooks was made available and judges studied in English law.
7.3 Small claims court powers and functions

7.3.1 Legal capacity of court
• Chairman of court is commission of small claims
• Civil servant may not be appointed as commissioner
• Must be advocate or practising lawyer
• Parties appear for themselves
• May not receive legal aid & Minor assisted by parent I guardian
7.3.2 Cases that can be heard:

• The delivery or transfer of movable goods with the value of R............
• The eviction of an occupier of premises if rent is less than R12000
• From a credit agreement amounting to max R12000
• Where claim of value is max R12000
• For a counter claim of max R12000
Cases not heard in Small Claims Court

• Dissolution of marriages (divorce)
• Validity or interpretation of wills
• Compensation regarding libel
• Malicious persecution (break-inns)
• Unlawful industrial theft
• Unlawful arrest and seduction
• Breach of promise of marriage
41
Exemplar Paper 2
Questions
Section A
Question 1
1.1 Complete the following sentences by using the words provided in the list below. Write only the
word(s). Write only the word(s) next to the question number (1.1.1 – 1.1.16) in the ANSWER
BOOK.
mandamus; constitutional law; administrative law; respondent; Clerk of the Court; criminal
law; local, plaintiff, judge; private law; applicant; court orderly; civil; national law; interdict;
defendant; law of evidence; magistrate; criminal; provincial, state.
1.1.1 The Supreme Court can consist of a/an (a) … division and a/an (b) ... (4)
1.1.2 The presiding officer in the Supreme court is … (2)
1.1.3 The person who maintain order in the court is known as the ... (2)
1.1.4 The person instituting a claim is the (a) ... and the person against whom the
claim is instituted is the (b) ... (4)
1.1.5 Public law comprises of (a) … , (b) … and (c) … (6)
1.1.6 The (a) … is defined as a legal person who consists of people living in certain
areas under common authority. (2)
1.2 Indicate whether the following statements are TRUE or FALSE. Choose the answer and write
only ‘true’ or ‘false’ next to the question number
(1.2.1 – 1.2.10) in the ANSWER BOOK.
1.2.1 A public prosecutor appears on behalf of the plaintiff in a civil case.
1.2.2 A magistrate appears on behalf of the state in a criminal case.
1.2.3 The Director of Public Prosecutions is responsible for all criminal cases in his/her
provinces, as such all the prosecutors are under his/her control.
1.2.4 The Small Claims Court has jurisdiction to hear any criminal case involving less than
R12 000, unless both the person suing and the person being sued agree to limit the
claim to less than
R12 000.
1.2.5 The Legal Aid office in South Africa is an autonomous body established by the Legal
Aid Act (Act No. 22 of 1969).
1.2.6 According to the Doctrine of National Sovereignty, in every state there must be a body
or an institution in which the highest authority rests.
1.2.7 Administrative law refers to the rules valid for the entire country and not a certain part
only.
1.2.8 Constitutional law organises and rules over the power of an organisation and the
actions of civil servants.
1.2.9 In the case of decentralisation, the lower body may transfer powers to a higher organ.
1.2.10 The principle of legality means that all actions of an administrative organ should be
permitted by law. (10 x 2) (20)
42
Exemplar paper 2
1.3 Give ONE word/term for each of the following descriptions. Write only the word/term next to
the question number (1.3.1 – 1.3.5) in the ANSWER BOOK.
1.3.1 The function of this court is to concern itself with the care and welfare of the children.
1.3.2 This is the manner which cases are brought from lower court to a higher court for
revision purposes.
1.3.3 This is a completely prescribed, where nothing is left to the own discretion of the
administrative body.
1.3.4 This branch of law regulates the relationship between the state and subjects.
1.3.5 The legal functionary appointed by the state to handle the deceased estate and who
makes recommendations to the court regarding custody access and guardianship.
(5 x 2) (10)
[50]
TOTAL SECTION A: 50
43
Section B
Answer any FIVE questions in this section.
Question 2
2.1 Give a brief description of the principle of legality and indicate the application
thereof in administrative law. (9 x 1) (9)
2.2 Name the different sources of administrative law and indicate the contribution of
each source. (4 x 4) (16)
2.3 Distinguish between the golden rule of interpretation of and literal interpretation. (5 x 1) (5)
[30]
Question 3
3.1 Briefly explain the fundamental rules for interpretation of law (4 x 3) (12)
3.2 Write explanatory notes on the delegation of administrative powers and give
some practical examples. (6 x 3) (18)
[30]
Question 4
4.1 Name and discuss various types of ‘administrative proceedings’. (12)
4.2 Briefly distinguish between the doctrine of national sovereignty and the doctrine
of trilateral division of powers. (9 x 2) (18)
[30]
Question 5
5.1 Distinguish between objective sense and subjective right and indicate the objects which an
individual has rights against. (9 x 2) (18)
5.2 Which requirements should a custom comply with, before it can be regarded as a source of
law? (6 x 2) (12)
[30]
Question 6
6.1 In order to establish whether an administrative body is a legal body of the state, a number of
tests must be simultaneously applied.
Name and briefly explain such tests. (5 x 2) (10)
6.2 Discuss the liability of the state due to administrative proceeding. (5 x 2) (10)
6.3 Distinguish between internal relationship and independent control relationship. (3 x 2) (6)
6.4 Name FOUR forms of control regarding administrative proceeding. (4 x 1) (4)
[30]
Question 7
7.1 Briefly explain the following aids in the interpretation of statutes:
7.1.1 Appendices (4 x 1) (4)
7.1.2 Long title (4 x 1) (4)
7.1.3 Preamble (5 x 1) (5)
44
Exemplar paper 2
7.2 South Africa courts can only exercise their jurisdiction of appeal if allowed by the
law of Parliament or regarding facts of legal questions.
Explain TWO kinds of statutory appeal and give examples (4 x 2) (8)
7.3 Briefly explain any THREE categories of public law. (3 x 3) (9)
[30]
TOTAL SECTION B: 150
GRAND TOTAL: 200
45
Exemplar Paper 2
Answers
Question 1
1.1 1.1.1 (a) Provincial
(b) Local (4)
1.1.2 Judge (2)
1.1.3 Court orderly (2)
1.1.4 (a) Plaintiff
(b) defendant (4)
1.1.5 (a) Constitutional law
(b) Administrative law
(c) Criminal law
(d) Law of evidence (Any 3 x 2) (6)
1.1.6 State (2)
1.2 1.2.1 False

1.2.2 False
1.2.3 True
1.2.4 True/False
1.2.5 True
1.2.6 True
1.2.7 False
1.2.8 False
1.2.9 False
1.2.10 True (10 x 2) (20)
1.3 1.3.1 Juvenile Court/Children’s Court/Family Court

1.3.2 Revision/Review/Appeal
1.3.3 Mechanical admin proceeding
134 Public Law
1.3.5 Master of the Supreme Court or Master of the Court
Master of the High Court or Magistrate (5 x 2) (10)
[50]
TOTAL SECTION A: 50
Question 2
2.1 Principle of legality (9 x 1)
• Administrative actions must comply with the rules of natural lawfulness
• Legislation must be in the public interest
• The government body must pursue a lawful aim
• Any tacit authority must be granted according to the principle of legality
• Administrative actions must comply with both the law in general and also with common
law
• Nobody may be apparently wronged
46
Exemplar paper 2
• Powers of the government body may not be executed in an arbitrary way (misused)
• Authority may not cause extreme hardships
• No discrimination against individuals or classes is allowed.
2.2 Sources of administrative law and contribution of each source (4 x 4)
Constitution
• Constitution: the most important legal rules regarding the political system
• Parliament: Laws originate in parliament
• Provinces: Are authorized by parliament who give them power to manage the province
• Proclamations: The State President can issue a proclamation e.g. date of election
• Regulations: include by-laws, rules of city councils, wage councils, liquor licence boards,
etc.
Legal verdicts & Judicature:

• Courts decide on administrative principles & can set guidelines for further laws
Common law:
From Roman Dutch law:
• rules regarding the interpretation of laws
• rules regarding the compensation by the state
• rules determining invalidity of an action in conflict with the law
• rules regarding procedure to be followed by admin bodies
• English law
• royal prerogative
• ultra vires doctrine
• division of admin actions
Administrative practices: practice must be

• long established
• reasonable to be considered
• used generally
• recognised by people
2.3 Distinguish between Golden rule & literal rule of interpretation (5 x 1)

Golden rule of interpretation
• True meaning of the legislator should be followed
Literal rule of interpretation

• Meaning of legislator as presented by wording of the law
Golden rule does NOT apply to strict literal BUT meaning of legislator
Question 3
3.1 Fundamentals rules of interpretation (4 x 3)
• Interpreter must interpret the law literally
‘Words of law’ are the major source of information
Words of law should be given their original meaning

Words of law given their ordinary meaning and used for the trade they are part of
47
• Common words must be interpreted in the common usage

If prescription is for common usage, application should also be ‘common’
‘No person shall’ means that in common usage
• Interpreter may not step outside the wording of law

Court will not deviate from literal interpretation
No deviation from the words of the law
Words of statute should never be added or subtracted without necessity
• Each word must have a meaning

Legislator must choose words carefully and not include idle or senseless words
3.2 Delegation of admin powers

Mandate
• E.g. Minister instructs the Director-General to build houses. DG must carry it out but if it
De-concentration
• E.g. Director-General acts in the name of the Minister
• The lower organ acts in the name of the higher organ
• The higher organ must exercise control over the lower organ e.g. reports.
Decentralisation
• The organ performs the functions in its own name (Northlink College)
• E.g. Minister appoints board of experts to grant licences. Minister cannot issue licences as
well
• The higher organ (Minister) is still in control by appointment of the members of the board
Question 4
4.1 Types of administrative proceedings
Legislative administrative proceedings
• Deals with administrative rules, proclamations, regulations and decrees
• E.g. city council sets down building regulations
Judicial administrative proceedings

• No admin organ has purely judicial proceeding
• Have judicial bodies e.g. water court
Purely administrative proceedings

• Not legislative of judicial of nature
48
Exemplar paper 2
Multilateral administrative proceedings

• Co-operation of consent of more the one subject in and individual relationship. Between
Gov. & individual
• E.g. Collective labour agreement
• City & town planning; contract with officials
• Agreement for the supply of services
Unilateral administrative proceedings

• Called decrees. A complete prescribe proceeding, where nothing is left to discretion
• E.g. Mechanical admin proceedings – can be delegated
• Limited discretion – not delegated
Mechanical admin proceedings

• Organ exercise no discretion
• E.g. sum of money for vehicle licence (amount set)
• Rubber stamp proceeding which is precisely prescribed
Limited discretion
• Executed within limits of a narrowly prescribed discretion
• E.g. magistrate may issue or refuse a liquor licence – if he errors – proceeding invalid
4.2 Distinguish between national sovereignty and trilateral division of powers

Doctrine of Sovereignty
• Highest authority which is not subject to anything or anybody
• Started in 17th century under Louis XIV who used it to be free from the law
• Bodinus, French writer, felt that sovereign power can do as it pleases without
responsibility to anyone and only answerable to God
• This view caused that subjects had not legal power over Louis XIV
• In England, Thomas Smith claimed that Sov power belonged to parliament & not king /
queen
• English view was that Parliament not ruler, but nation ruled by means of vote & election
of members of parliament
• Thus the doctrine of national sovereignty developed
• King & Queen official and is responsible to nation – if abuse power can be dethroned e.g.
Sovereign means ultimate decision rests with people
• In SA parliament is highest authority and therefore sovereign
• Parliament is however bounded by certain rules
• No law passed in Parl can be declared invalid in a court of law except CC
Division of powers
• Montesquieu developed doctrine of division of powers
• Government is divided into three authorities
The 3 authorities can control one another to restrain abuse of power & promote civil
liability
▷ Legislative authority (make laws) e.g. NA
▷ Executive authority (carry out – execute laws) Ministers, departments
▷ Judicial authority (decide if law was broken) e.g. courts
49
Question 5
5.1 Distinguish between objective sense and subjective right
Objective sense:
• Legal rules which order society – Statutory and Common law
• Laws, ordinances and regulations which order our daily lives
• Laws regarding transfer of property, marriage, speed limits, functioning of courts, etc.
• Rules regarding everyday life, commerce and industry.
• “The law” which objectively controls our day to day lives to guarantee order.
Subjective right:
• Relationship between an individual and an article to which the individual has a right
e.g. house, material, physical things and the subjective rights regarding those things, e.g.
property law
Examples – personal property (persons character)

– Immaterial property – spiritual property e.g. trademark, artworks,
– Performance – human conduct – person perform – get paid
5.2 Requirements a custom should comply with:

• Long established
Existing of a long time
• Reasonable
Not contrary to the law or public interest
Not oppressive, damaging or unfair
• Definite
Enough witnesses must prove that such a custom exists
• Constant observance
Observed and practiced by an entire community or part of community
Community must acknowledge custom
Question 6
6.1 Test to determine if admin body is legal body
• Is there a higher authority which influences the behavior of the lower organ e.g. traffic

• If the work has nothing to do with the supply of services to the public it can be assumed
that it is not a GOV body
• Is the organ a bearer of GOV authority? If all tests are passed and this one fail it is not a
GOV body.
6.2 Liability of the state

• Any suit against state is tri-able in court
• Doesn’t matter if it is from contract closed with state or unlawful act of official
• Lawsuit initiated against Minister of department
• Claim for an amount
• Claim settled or not
50
Exemplar paper 2
Conditions
• Liability of state or dept limited to action or neglect of official
• Set time limit to initiate suit
• State must be held responsible on behalf of civil servant
• No difference between state & officials
• Official acting as official
• Official commit unlawful act within her duties
6.3 Distinguish between internal relationship and independent control relationship

• Develop when 2 GOV organs within the same power base oppose each other
• E.g. Director-General and Minister of same department come into conflict
• Most important issue is whether higher organ (Minister) gave orders to the lower organ
(D-G)
• and if it has authority to change actions of the orders within it’s sphere of power

• The two organs function independently e.g. Premier and City Council
• E.g. the Premier cannot order City Council to act or not to act, but he can approve or not
• Approve actions of the City Council
6.4 Four forms of control

• Internal control
• Control by Parliament
• Investigation by the Public Protector of parliamentary official
• Control by civil servants
Question 7
7.1 Appendices
• ???? in which repeat concepts are defined
• ???? definitions to which original law refers
• ???? law more manageable
Long title
• Short description of subject to the law
• Referred to if uncertainty about meaning of article of law
• Only used if meaning of words of law is unclear
Preamble
• led considerance and reflects true meaning of legislator
• Determine thoughts of legislator during the coding of the law
• One only refer to preamble if words of law is unclear
7.2 Kinds of statutory appeal

• Appeal from lower court to High Court (Supreme court)
▷ E.g. Person appeal against liability settlement or sentence
• Appeal by a Statutory body (non-judicial)

▷ E.g. liquor licence board did not award licence and applicant appeals
51
7.3 Briefly explain three categories of public law

International law
• Deals with the relationship amongst states, e.g. law of war/peace.
Constitutional law
• Orders the organisation & establishment of the state organs
• Deals with the composition, authority and functions of state organs
• Powers and functions of presidents, ministers, departments, state officials, etc.
Administrative law
• Deals with the activities of the state bodies
• Deals with the authority and functions of state bodies
• E.g. Deals with workings of licensing board when applying for liquor license.
Criminal law
• Deals with acts of people which is criminal – seen as criminal cases
• What punishment must be conflicted according to law e.g. (theft, assault, murder, etc.)
Procedural law
• Organises the relationship between courts (state) and the suitors
• It lays down the procedures which the suitors must allow in court.
Procedural law is divided into:
▷ Civil procedural law (claim for medical fees after accident)
▷ Criminal procedural law
▷ Law of proof
52
Subject work scheme and assessment plan
SUBJECT WORK SCHEME AND ASSESSMENT PLAN
PROGRAM & LEVEL
SUBJECT & LEVEL
SUBJECT CODE
DATE
YEAR/SEMESTER/TRIMESTER YYYY/SS (E.G. 2012/S1)
SUBJECT LECTURER
Index
Nr. Table of Contents Page
1 Purpose of Subject Work Scheme
2 General Information
3 Prescribed Text Book
4 Other Learning Resources
5 Year/Semester/Trimester Plan
6 Formative Assignments
7 Summative Assessment Plan
53
1. PURPOSE OF THE SUBJECT WORK SCHEME
This subject work scheme provides a structure of the subject content and syllabus. It can be used as a
framework to reach learning outcomes and to better student-performance. The subject work scheme must
be consulted regularly to stay alert of learning objectives and outcomes and to prepare yourself for the
lectures.
2. GENERAL INFORMATION
Course :
Subject :
Subject Code :
Lecturer :
Study year :
Subject credits :
Offering Time :
Lecturing Time : x (hours) per week
3. PRESCRIBED TEXT BOOK(S)

Name:
Edition:
ISBN:
Author:
Publisher:
4. OTHER LEARNING RESOURCES

You can do research using the undermentioned sources to better your knowledge and understanding and
to broaden your perspective of the subject.
1 Name:
Edition:
ISBN:
Author:
Publisher:
2 Name:
Edition:
ISBN:
Author:
Publisher:
3 Name:
Edition:
ISBN:
Author:
Publisher:
54
5.1 SEMESTER 1 SUBJECT WORK SCHEDULE/SEMESTER PLAN FOR 2015 and LESSON PLAN
TEACHING TEACHING
LEARNING
METHOD (e.g. RESOURCES
TOPICS OF THE CURRICULUM MATERIAL SIGN OFF &
Class discussion, (e.g. PowerPoint
WEEK DATE (Breakdown of Topic in detail and RANGE (e.g. NOTES DATED AS
Group Work, Presentation,
sub-sections) Text book pages COMPLETED
Role Play, Notes, Overhead
4-16)
Simulation) Projector)
1 Registration
2
3
4
5
6 Assessment 1 (Practical Assignment)
7
8
9
10 Assessment 2 (Written Test)
11
12
13
14
15 Assessment 3 (Internal Exam)
16
17
18
19
20
National External Examination
21
22
College Close
55
56
5.2 SEMESTER 2 SUBJECT WORK SCHEDULE/SEMESTER PLAN FOR 2015 and LESSON PLAN
TEACHING TEACHING
LEARNING
METHOD (e.g. RESOURCES
TOPICS OF THE CURRICULUM MATERIAL SIGN OFF &
Class discussion, (e.g. PowerPoint
WEEK DATE (Breakdown of Topic in detail and RANGE (e.g. NOTES DATED AS
Group Work, Presentation,
sub-sections) Text book COMPLETED
Role Play, Notes, Overhead
pages 4-16)
Simulation) Projector)
1 Registration
2
3
4 Assessment 1 (Practical Assignment)
5
6
7
8 Assessment 2 (Written Test)
9
10
11
12
College re-opens
13
Assessment 3 (Internal Exam)
14
15
16
17
18
National External Examination
19
20
21
6. FORMATIVE ASSESSMENT PLAN AND SUPPORTING TASKS
Resources needed
Detailed Description of Formative Task/Activity/Assignment and to complete the Proposed Date to Actual Date
Task Number
Topic/Learning Material Range e.g. Pg 5-10 task e.g. Graph Complete Completed
Paper, Work Sheet
3
57
58
7. SUMMATIVE ASSESSMENT PLAN
Topic and Mark

Learning Assessor Moderator Weighing
Assessment Assessment
Assess- Material Range (Name, (Name, Time (% Con-
Instrument Tool (e.g. Date of Marks
ment e.g. How to write Surname, Surname, e.g. tribu-
Type e.g. Memo, Rubric, Assess-ment e.g. 100
Nr. a Business Letter E-mail, E-mail, 2 Hours tion to
Written Test Checklist)
Module 1-3 Cell phone) Cell phone) the year
Page 5-22 mark)
Practical
Assignment
(Minimum 70 Rubric/
1 20%
Marks Checklist
Due dates to be
provided)
Written Test
(Minimum 50
2 Marks Memorandum 30%
Minimum
50 minutes)
Internal Exam
(Minimum 100
3 Marks Memorandum 50%
Minimum
1½ hours)
Exemplar paper 2
59
60
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Public Law Study Guide

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Public Law N6

First published 2015

Module 3 - Subjective laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Module 4 - Classification of law and the different courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Module 5 - Legal functionaries and court officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Module 6 - Doctrines of law and the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Module 7 - Civil liability of the state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Module 8 - Administrative law and the principle of legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Module 9 - Sources of Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Module 10 - Administrative relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Module 11 - Internal governmental relations and delegation of authority . . . . . . . . . . . . . . . . . 24

Module 12 - Administrative proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Module 13 - Judicial control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Module 14 - Interpretation of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Module 15 - Aids in the interpretation of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Exemplar Paper 1: Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Exemplar Paper 1: Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Exemplar Paper 2: Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Exemplar Paper 2: Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Subject work scheme and assessment plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

2. What are the characteristics of law?

3. Identify all the branches of law in South Africa.

4. Explain what Private Law means.

5. List five divisions of Private law.

6. Explain the meaning of Public Law.

7. List three types of Public Law.

8. What is the difference between Private and Public law?

9. Explain Constitutional Law as part of Public Law.

1.2 Roman-Dutch law

1.3 British law

2.2 from 1948 - 1961

2.3 from 1961 - 1990

2.4 after 1990

3. List and explain the sources of South African Constitutional Law.

VERDICTS (Judicial precedent) Discuss verdicts as a source of SA law

TRADITION / CUSTOM (Identify the characteristics of a custom / tradition)

INTERNATION LAW / FOREIGN LAW

4. Discuss the division and execution of government authority as a function of

1. Distinguish between the doctrine of objective sense and subjective right.

2. Explain objective sense as a doctrine of private law.

3. Explain subjective right as a doctrine of private law.

5. Briefly explain performance as an object with regard to traditional theory of subjective

INTERNATIONAL LAW NATIONAL LAW

Material law Adjective law:

Public law Private law

Law of commitment / obligation

Law of Intellectual property

5. Identify the different divisions of Procedural Law and if it falls under

• Law of obligations / law of commitment

• Law of intellectual property

7. Identify the higher courts in the South African legal system.

8. Identify the lower courts in the South African legal system.

9. Distinguish between a criminal case, a civil case and a constitutional case.

10.2 The jurisdiction of the court / ability regarding constitutional matters

10.3 The functioning of the court

11. Discuss the jurisdiction of the following courts in South Africa.

11.2 High Court

• Deal with civil claims of more than R100 000

Cannot deal with:

12.2 Small Claims court

Cases not heard in Small Claims Court (matters excluded)

12.3 Chief and Headman’s court

Children’s Court (Juvenile Court)

Identify the following legal functionaries in South Africa:

Chapter and article headings (3)

Peripheral circumstances (3)

2.3 Sources of SA constitutional law (5 x 1)

3.1 Internal and independent control relationship (7 x 1)

4.1 Principle of legality (8 x 2)

4.2 Test to determine if admin body is body of the State (5 x 2)

4.3 Two types of statutory appeal (2 x 2)