WELCOME TO

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INTRODUCTION
TO LAW
(LWITA1-B22)
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LECTURER DETAILS
▪ NAME: NADINE NYAMANGIRAZI

▪ OFFICE: 2ND FLOOR (NEAR THE FACILITIES ROOM/ KITCHEN)

▪ EMAIL: NADINE.NYANAGIRAZI@EDUVOS.COM

▪ CONSULTATION: PLEASE REQUEST FOR CONSULTATION VIA

EMAIL.
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NB
▪ STUDY MATERIAL

▪ MODULE GUIDE

▪ TEXTBOOK

▪ MAKE YOUR OWN NOTES

▪ MYLMS

▪ ANY OTHER PRESCRIBED MATERIAL

▪ CLASS ATTENDANCE RECORDED

▪ CLASSES – TUESDAYS AND WEDNESDAYS

▪ (2 HOURS WITH A BREAK IN BETWEEN)

▪ DISCUSSION FORUM ON MYLMS

▪ CLASS REPRESENTATIVE NOMINATIONS

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ASSESSMENTS

Online test Online quiz Examination

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Prescribed textbook
–
W Du Plessis:
Introduction to Law
and Legal Skills in
South Africa
 THIS WEEKS ADGENDA

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QUESTION

WHAT IS THE
LAW?
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▪ Rules that are binding on society

▪ A set of prescriptions for orderly conduct in society.

▪ The law prescribes what is acceptable and

unacceptable

▪ The law prescribes what type of behavior must be

WHAT IS punished

THE LAW? ▪ Different types of laws exist

▪ Rules applied or interpreted by institutions of state if

necessary

▪ Reflects the shared values of the majority of the

population

Examples of laws?
WHAT IS THE LAW?
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CHARACTERISTICS OF LAW
▪ Law can reflect the shared values of a majority of the population

▪ Law provides certainty and predictability

▪ Law is made by the people for the people

▪ Law is institutionalized and recorded

▪ Law is subject to change

▪ Law maintains an element of authority

CHARACTERISTICS OF
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LAW CONTINUED…
Consequences of not following law
• Coercion
• Sanctions that provide punishment for
unacceptable behaviour – e.g prison or a fine.

The law is applied/ interpreted by

institutions of state
• If necessary, they are enforced by employers
of the state e.g police officers
 LAW AND CERTIANITY
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▪ legal certainty as a principle promotes the notion that law must be adequately
clear, so that those to whom the law applies, are able to regulate their own
behaviour, and they must be able to protect themselves against the arbitrary use of
public power

▪ No legal certainty = consequences

• Chaos

• No standardization of behavior
LAW AND CERTIANITY
Factors affecting certainty
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▪ Language

▪ Ex Parte Dow

▪ the Marriages Act stated that a valid marriage needs to be “in” a house

▪ argument = marriage was invalid because it took place in the garden of a house.

▪ one needed to look past the strict language of “in” and look at the purpose of the act which was to prevent
secret marriages

▪ Changing values

▪ Boni mores vs Contra boni mores

▪ Clarke v Haurst - The law must adapt to changing values of the community to remain effective.

▪ The most important way in which this occurs is through legislation, but judges must take changing
values into account when they give decisions on matters which are not clearly covered in legislation.
The law often stipulates that judges must decide certain matters based on the legal convictions of the
community

▪ Judicial discretion

▪ Judicial activists – judges use their own discretion to apply the law

▪ Judicial deference – judges stick to the legal framework

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1. What would happen if there were no laws in place?

DISCUSSION
2. What could be the short- and long-term consequences for
a country in which ‘lawless’ conditions prevail, and would
these consequences be confined to the borders of the
country in an era of globalization?
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PURPOSE OF HAVING LAW

▪ Without the law, we would have a lawless society

▪ Lawless society = unfairness, unreasonableness, inequality

▪ People would resort to self-help

▪ To avoid anarchy

▪ Law plants an element of fear – fear of going against the law.

▪ To protect citizens
LEGAL POSITIVISIM VS NATURAL
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LAW
LEGAL POSITIVISIM NATURAL LAW
Focus on what the law is Law has a moral dimension
No focus on what the law ought to be Looking at wat law ought to be
Irrelevant whether the law is just or fair Higher norms which can be used to judge the
Morality and law = separate positivist law
Judges must apply the law = S v Werner 1981 (1) Unjust law = not law
SA 187 (A)
• Group Areas Act = Werner, a ‘coloured’
person, was forced to live in an area
designated for ‘coloureds’.
• Werner moved to a white area
• Contravention of the Group Areas Act
• Appeal = argued that the Act was unfair
• Courts function was not to strive towards
fairness but apply the Acts of Parliament
irrespective of the social, political and
economic implications.
 WHO MAKES THE LAWS?
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▪ Parliament is the national legislature (law-making body) of South

Africa.
▪ Major functions
▪ pass new laws, to amend existing laws, and to repeal or
abolish (cancel) old laws.
▪ Functions are guided by the Constitution of South Africa, which
governs and applies to all law and conduct within South Africa.

▪ Both Houses of Parliament, the National Assembly (NA) and the

National Council of Provinces (NCOP), play a role in the process
of making laws.
DIAGRAM: HOW LAW IS MADE

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CLASS ACTIVITY

▪ HOW DOES LAW RELATE TO:

▪ MORALS?
▪ RELIGION?
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LAW AND OTHER SOCIAL

NORMS
▪ The law is a set of norms that distinguishes between good and bad

▪ A norm is a rule which regulates human conduct

▪ NB- not all norms are legal rules

▪ Various normative rules that influence our lives and determine our conduct

1. Religion

2. Individual morality

3. Community mores
ACTIVITY
R
z ead the following extract from an Article by Grietje
Commelin and determine any conflicting views
between law and normative values
“In many countries around the globe, abortion is considered a legitimate option when a woman is
pregnant but doesn’t want the baby. The proponents of abortion argue that women should have a free
choice to terminate their pregnancy.

The opponents of abortion argue that a fetus is a developing human person and has the basic human
right to live. Abortion is thus considered murder.

Since this debate is literally of life importance, let’s explore what the Bible tells us about God’s view of
abortion.

▪ The Bible is clear that humans are not allowed to murder fellow human beings: “You shall not
murder” (Exodus 20:13). Killing defenseless children is an abomination in God’s sight (see e.g.
Jeremiah 32:35, Psalm 94:6-10).”
RELIGION z

▪ Religion determines the relationship between an individual and a supreme being

▪ Religion highlights what can be constituted as right or wrong

▪ Law is often influenced by religious rules, practices and beliefs

▪ Examples of religions

▪ On one hand people believe that religion and law should be mutually exclusive

▪ On the other hand, people believe that religion and law should have the same content
▪ e.g Islamic religious states where law and religion are equated
 INDIVIDUAL MORALITY
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standards of behavior; principles of right and wrong.

the prevailing standards of behavior that enable people to live cooperatively in groups

Individual morality deals with a private conflict between an individual and her conscience .

Can have the same content as religious views

Sanctions for non-compliance

- Does the law always enforce morality?

- Think of drinking alcohol.
- Think of smoking cannabis
- Prince v President of the Cape of Good Hope and Others
- Minister of Justice and Constitutional Development v Prince (Doctors for Life International Inc
Amicus Curiae) 2018 JDR 1588 (CC).
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COMMUNITY MORES

▪ Collective morals

▪ Norms of the whole community or group within that community

▪ They are not private matters concerning specific individuals

▪ Sanction for non-compliance – disapproval by other members of

society
CLASS ACTIVITY
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KwaZulu-Natal MEC for Education v Pillay

Read the extract from the case of Pillay. Comment on the aspects of law and
morality in this case

▪ Chief Justice Langa held that it constituted unfair discrimination for a public school to
prevent a learner from wearing a nose stud to school, because wearing the stud was
a voluntary part of the learner’s religion and, more importantly, her culture.

▪ He held that the rule prohibiting the wearing of jewellery had the potential for indirect
discrimination because it allowed certain groups of learners to express their religious
and cultural identity freely, while denying that right to others

▪ The evidence before the Court showed that the wearing of a nose stud was a
voluntary practice that formed part of Sunali Pillay’s South Indian Tamil Hindu culture,
which itself was inseparably intertwined with Hindu religion. He emphasised that both
obligatory and voluntary practices qualified for protection under the Equality Act.
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LAW TRUMPS RELIGION

▪ An example of where the law and religion have conflicted is the case of Christian Education South
Africa v Minister of Education 2000 (4) SA 757 (CC).

▪ Section 10 of the South African Schools Act 84 of 1996 prohibits the administration of corporal
punishment in schools. A group of Christians challenged the legislation on the grounds that it
limited their constitutional right to freedom of religion (see section 15 of the Constitution of the
Republic of South Africa, 1996). They showed that there are biblical instructions to beat
children who misbehave. The Constitutional Court held that a child’s constitutional rights to
dignity (section 10), bodily integrity (section 12, specifically the right to be free from public and
private sources of violence) and to have their best interests upheld (section 28), trumped the
religious freedom of the Christian group.
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END OF LECTURE
▪ QUESTIONS?
 NEXT LECTURE
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▪ In person lecture-led session

▪ Legal history and the post-apartheid legal
order

TO DO LIST
❑ Baseline assessment on MYLMS
❑ Discussion forum question
legal positivism vs natural law
❑ QUIZ – Week 3 – early preparation
❑ Consultation?
❑ Nomination of class representative
 WELCOME TO

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INTRODUCTION
TO LAW
(LWITA1-B22)
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RECAP
▪ WHAT IS LAW?

▪ LAW AND MORALITY

▪ Religion
▪ Individual morality
▪ Collective morality
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LEGAL HISTORY

PRELIMINARY QUESTION

▪ WHAT IS THE IMPORTANCE OF

LEGAL HISTORY?
 HISTORICAL DEVELOPMENTS IN SOUTH
AFRICA
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▪ PHASE 1 – Pre-colonial period

▪ Those first inhabitants — indigenous or First Nations peoples

▪ societies with their own legal systems.

▪ Customary law

▪ PHASE 2 – 1652-1795

▪ Dutch colonisation

▪ Jan Van Riebeeck’s arrival in South Africa

▪ Community was set up in the Cape – Dutch took control

▪ PHASE 3 – 1795 - 1806

▪ Cape was occupied by the British who made amendments to administrative justice
 EVENTS LEADING TO THE FALL OF
APARTHEID
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Township revolts
International sanctions placed on South Africa because of apartheid

Mandela
• 11 February 1990 – freed from prison
• 4 May 1990 – Negotiations for a democratic SA
• National Party and the ANC
• 6 August 1990 – ANC suspended the armed struggle against apartheid
• 20 December 1991 – Convention for Democratic South Africa (CODESA)
• 17 March 1992 – De Klerk institutes a white only referendum – 68% voted in support
• 10 April 1993 – Assassination of Chris Hani (racial divide)
• 10 May 1994 – Nelson Mandela elected as the first black president
27 April 1994
• Interim constitution
• Non-racial elections
1996, Final constitution
HISTORICAL DEVELOPMENTS IN SOUTH AFRICA
▪ z 4 – 1948- 1994 - APARTHEID
PHASE
▪ “social engineering”

▪ Examples of Apartheid laws

▪ Population Registration Act

▪ Group Areas Act

▪ Reservation of Public Amenities Act

▪ Prohibition of Mixed Marriages Act

▪ Bantu Education Act

▪ Protests against apartheid

▪ Sharpveille marsarce

▪ Literature, music and poetry

▪ More events?

▪ PHASE 5 – CONSTITUTIONAL DEMOCRACY

▪ Democracy

▪ Interim and final constitution

POST-APARTHEID LEGAL ORDER
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SOUTH AFRICAS LEGAL

SYSTEM
▪ Hybrid system
▪ Define?

▪ Other countries that have a hybrid system?

▪ South African law is UNCODIFIED

▪ Our law is found in various sources
▪ Sources: legislation, common law, customary law, judicial
precedent, etc.
 Examples of adaptations in SA
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law
▪ Roman law

▪ Restitutio in integrum – restitution to the original position

▪ English law

▪ Doctrine of stare decisis – NB

▪ To stand by previous decisions

▪ Also known as the “doctrine of precedent”/ “judicial precedent”

▪ S v Makwenyane
▪ Con court decision
 SECTION 39(2) OF THE
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CONSTITUTION

39 (2) When interpreting any legislation,

and when developing the common law
or customary law, every court, tribunal
or forum must promote the spirit, purport
and objects of the Bill of Rights.
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CLASS ACTIVITY:
https://twitter.com/MadiBoity/status/1445759953025728518?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1445776097191153672%7Ctwgr%5E51c22823
6a7a7537c0f3e37a556c03d2c9690a21%7Ctwcon%5Es3_&ref_url=https%3A%2F%2Fwww.timeslive.co.za%2Fnews%2Fsouth-africa%2F2021-10-08-watch--clueless-or-just-
nervous-mzansi-weighs-in-on-high-court-judge-applicants-interview-moemish%2F VIDEO

What is meant by constitutional

supremacy? How does it differ from
parliamentary sovereignty?
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CONSTITUTIONAL SUPREMACY VS
PARLIAMENTARY SOVERIGNTY
Constitutional supremacy
▪ “A written constitution is the legislation or compact which establishes the state itself. It
paints in broad strokes on a large canvass the institution of that state; allocating
powers, defining relationships between the people themselves…the existence and
powers of the institutions of state, and between the people themselves… the existence
and powers of the institutions of state, therefore depends on its terms. No institution
can claim to be above the constitution; no person can make such a claim.”
▪ S v Makwenyane ?

Parliamentary sovereignty
▪ Parliamentary sovereignty meant that members of parliament could pass any laws they
wanted
TRC (TRUTH AND RECONCILIATION COMMISSION)
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▪ The Promotion of National Unity and
Reconciliation Act (PRUNA)
▪ Established the TRC

▪ Purpose was to provide investigations

into human rights violations of the past
▪ Amnesty process facilitated by the TRC
▪ Amnesty - an undertaking not to
prosecute someone for acts that
would under normal circumstances
constitute crimes
▪ Section 20(7) of the PRUNA – a person
granted amnesty = no longer criminally or
civilly liable for their act
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Different from corrective/
retributive justice

Perpetrators would confess to

Originated from the
TRC
TRANSITIONAL their crimes in return for
amnesty

JUSTICE Victims' loss = right to

prosecution and right to receive
reparation

Ensuring accountability
Truth
Reconciliation
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THE RULE OF LAW

Same law applies to everyone

Section 9 (1) of the Constitution

• Everyone has the right to equal benefit and equal protection of the law.

Section 1(c) of the Constitution

• “Supremacy of the constitution and the rule of law”

Some characteristics of the rule of law

• General expression and application of law
• Law should be consistent i.e should not contradict each other
• Law must be expressed in understandable terms
• Laws must be publicly promulgated.
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CLASS ACTIVITY
▪ You are a researcher for a new dictionary of
post-apartheid legal terminology. You are
required to research the meaning of ubuntu and
formulate a definition for the law dictionary. Write
down your definition and discuss it with your
class.
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UBUNTU
▪ TRC – “people are people through other people”

▪ As Mokgoro J put it in S v Makwanyane and Another [1995] ZACC 3;

1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 308,
▪ “ubuntu . . . metaphorically, it expresses itself in umuntu ngumuntu
ngabantu, describing the significance of group solidarity on survival issues
so central to the survival of communities.

▪ key values of group solidarity, compassion, respect, human dignity,

conformity to basic norms and collective unity, in its fundamental sense it
denotes humanity and morality.
HUMAN RIGHTS VIOLATIONS
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How do we define human rights? Examples of human rights?

Human Rights Violations Protection of human rights today?

Committee
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END OF LECTURE
Questions?
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NEXT WEEK

- CLASSES
ONLINE
- SOURCES OF
SOUTH AFRICAN
LAW