Introduction to Historical Foundations

of South African law

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 SA law of procedure, succession, public, persons and
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• International law
• Public law
• Private law

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 SA law of procedure, succession, public, persons and
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•Humby et al Law and Legal Skills (Oxford University Press, Cape

Town, 2021, 2nd Edition), 238-253

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• South African law consists of:

• International law
• National law- which is further divided into substantive law( Public law
and Private law with hybrid sub-disciplines) and Procedural law.

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• International law can be understood as rules and principles governing the relations and dealings of nations with each other
as well as the relations between states and individuals and relations between international organisations.
• International law is used every day in diplomatic and consular relations, international trade transactions, inter-country
transportations of goods by sea and air, humanitarian intervention in armed conflicts, as well as the cross-border
extradition of criminals.
• International law consists of both substantive and procedural rules.
• The principal subjects of international law are states, represented by their governments. Hence the principal focus of
international law is on regulating the relationship between states at an international and/or regional level, collectively
referred to as the supra-national level.
• International law seeks to regulate issues that affect more than one state.
• Private international law consists of procedural rules aimed at resolving disputes between non-state actors usually
involved in cross-border transactions.
• See the explanation on the UN.
• Substantive law is concerned with the substance of legal rights, duties and obligations. It sets out legal norms that must
be complied with.
• Procedural or adjective law is concerned with how one goes about enforcing or protecting rights and duties.
• Jus cogens means compelling law. As a doctrine jus cogens deals with peremptory international norms accepted and
recognised by the international community of states as being fundamental to the maintenance of an international legal
order, and the difficulties in enforcing international law rules.

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• NATIONAL LAW- these rules apply only within the territorial area of South
Africa. Hence will in most instances NOT apply outside the borders of SA, not
even to a SA citizen in a foreign country.
• Domestic law of other states is referred to as foreign law.

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• PUBLIC LAW- the state is the key player in public law relationships.
• Public law regulates the relationship between government as the regulator
and bearer of authority and people, or subjects, as the regulated.
• Public law sets out the rules that tell us how the state must and may interact
with the people whom it aims to regulate.
• Provides the rules governing the relationship between state institutions and
functionaries of the state.
• Also referred to as vertical relationship which applies between the state and
private, non-state subjects.
• However, at the same time it could also be classified as a horizontal
relationship to the extent that it regulates the relationship between state
actors.

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• PRIVATE LAW- regulates the relationship between private persons, persons acting without
state or political authority. Private law most often comes into play in important social and
economic relationships, for example:
1. Conclude a contract
2. Become engaged, married or divorced
3. Claim compensation from one another because of a wrongful act
4. Determine what should happen to their estate on their death
• None of the parties in the private law relationship acts with state authority or power.
• However, while we have seen that the state or the government is the main actor in the public
law domain by virtue of having its power and exercising political authority, this does not mean
that it cannot also be a party to the private-law domain in certain instances where it does not
act as the state with public, political authority.
• Private law can be divided into substantive private law and procedural private law.
CONTINUED ON NEXT SLIDE

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• PRIVATE LAW- SUBSTANTIVE PRIVATE LAW
• SUB- CATEGORIES IF SUBSTANTIVE PRIVATE LAW:
1. LAW OF PERSONS
2. FAMILY LAW
3. PROPERTY LAW
4. LAW OF OBLIGATIONS, INCLUDING LAW OF CONTRACT, DELICT AND
SUCCESSION
5. LAW OF PERSONALITY

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• HYBIRD SUB-DISCIPLINES- some legal sub-disciplines cannot be
categorised as belonging solely to any one of the above categories, with their
content frequently transcending the public-private law divide and even the
national-international divide.
• Examples are:
1. Environmental law
2. Commercial law
3. Educational law
4. Information technology kaw
5. African law

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• INTEGRATION OF SUB-DISCIPLINES- In most instances, the facts and
remedies sought in a legal case will require skilful integration of various sub
disciplines. A single set of facts may require you to apply different rules and
principles from, for example , the law of contract, the law of civil procedure
and evidence as well as labour law. In light of the hierarchy of the courts,
some laws must always be applied consistently with other laws, for example,
almost all laws must be applied consistently with the constitutional law and
international law. Although, a systematic understanding of the classification of
South African law is important, one should always envision the different sub-
disciplines of the law as an integrated, closely interrelated whole.

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