WELCOME TO HISTORICAL FOUNDATIONS OF

LAW
Module Code: LHF101
Lecturer Details
Name : Ms Nombuso Mashele
LLB (UJ), LLM in Labour Law (UJ)
LLM in Human Rights Law (Ongoing – UNISA)
Email: Nombuso.Mashele@ump.ac.za
Consultations: Archive Building, Office 212

LECTURE 1
Purpose and scope of the module
• To equip students with a basic understanding of the development of the South
African legal system, including the Roman-Dutch heritage, legal concepts,
principles and policy objectives underlying the South African legal system.
• To assist students to, inter alia, identify various sources of law and understand the
hierarchy of the courts as well as legal reasoning, with special attention to the
doctrine of precedent.
• To explain to students the role of the law in promoting constitutional democracy,
transformative constitutionalism, and transformative legal culture.
Prescribed textbook
Prescribed textbook Title: Introduction to Law and Legal Skills in
Title: Beginner’s Guide for Law Students South Africa

Edition: 5th Edition: 2nd

Author(s): Kleyn D and F Viljoen Author(s): Tshepo Madlingozi & Tracy Field
(Editors) Jacob Banard-Naude, Adrian Bellengere et
Year of Publication: 2018 al

Place of Publication: Cape Town Year of Publication: 2012

Publisher: Juta and Company Place of Publication: Cape Town

ISBN: 9781485128342 Publisher: Oxford University Press Southern

Africa
Prescribed textbooks
Title: Introduction to South African Law: Fresh Recommended Books
Perspectives Title: Transformative Justice: Essays in Honour of
Pius Langa
Edition: 2nd
Edition: N/A
Author(s): Meintjes-Van der Walt L et al
Author(s): Bishop, M and Price, A (eds)
Year of Publication: 2011
Year of Publication: 2020
Place of Publication: Cape Town
Place of Publication: Juta and Company
Publisher: Heineman/Pearson Education
Publisher: Cape Town
ISBN: 9781775780410
ISBN: 9781485107798
What is law?

• Characteristics of the law

• Body of rules and regulations regulating human interaction – binding standards for human
behaviour in society
• It orders society and gives some degree of certainty
• The law prescribes what is acceptable and what is not
• It holds people accountable for what they have done
• Rules often applied and interpreted by institutions of state
• Law is also related to the idea of a ‘social contract’, in terms of which the members of a community
authorize their leaders to organize the group to ensure its survival – in exchange for sacrificing their
unlimited freedom in a state of nature, they receive a guarantee of protection and order from their
leaders
• The content of law depends on the history of the specific country
• What has shaped the South African law?
Functions of Law in Society
• A core function of law is to ensure order in the relationships and
interactions between people and between people and things in
society
• Law maintains order and justice in the community
• Law specifies the nature and extent of rights, duties powers and
immunities arising in human relationships
• It also establishes authoritative systems of conflict resolution
Sources of Law in South Africa
Sources of South African law
• The Constitution of the Republic of South Africa, 1996.
• Legislation
• Customary law
• Common law
• Case law
• International law
Law and other social norms

• Shared values – law in a democratic state should reflect the shared values of society
– economic, social, political & moral values
• If rules do not reflect these values – legitimacy crisis, society has no belief or
confidence in their legal system

• Law & Morality

- The law is a set of norms that distinguishes good and bad. A norm is a rule
regulating human conduct. Are all norms legal rules?
- Normative systems regulating our lives – religion, individual morality, community
mores
Law and Morality

1. Religion
- Determines the relationship between an individual and a supreme being.
- African religion = customs passed down, rituals, dances, objects
- Christianity = Bible
- Muslim = Quran

Non-compliance with religious norms?

- Varying forms of the burning hell of fire
Should law and religion be the same?
Law and Morality

2. Individual Morality
- Every individual’s ideal self-image, it is a private conflict between an individual and
their conscience.
- Sometimes same as a person’s religious views
- Often has same content as legal rules, e.g honesty
- The law does not enforce morality e.g drinking alcohol
3. Community Mores
- Norms of a community or group – collective morals e.g etiquette, fashion, views
about free love etc.
- Some community mores coincide with legal rules e.g Killing
Law and Justice

• Justice considered as an ideal of any legal system (earliest times)

• Justice does not have a fixed content
• Distributive vs Corrective Justice
- Distributive = equal distribution among equals
- Corrective = aims at restoring inequalities
An NB element of justice is Equality
Our legal process strives towards formal justice – principle that like cases must be
treated alike
- Criminal law = innocent until proven guilty, both sides must be heard, appearance in
court within a reasonable time, prohibition of undue force
Law and Justice – Legal Positivism
• Legal positivists answer the question of what law is and not what it
ought to be
• Irrelevant whether law is just or fair
• Morality and law are distinctly separated from each other
• Law is what is set down in statutes, rules and court decisions
• Ius dicere non facere – judges speak the law, they do not create it
Law and Justice – Natural Law Approach
• The law has a moral dimension
• The law is not only that which is promulgated, but what ought to be
• Characteristic feature of this approach is that there is a moral code or
a set of moral principles that exist irrespective of human interaction
or positive law
• Norms are found in the harmony and order of nature or in human
nature
• Norms can be found by human reason
Law and Certainty

• Legal certainty – means that law is predictable, that it will be applied consistently
and has fixed and certain content.
• Large areas of law are fairly fixed and certain, however factors like language,
changing values and judicial discretion challenge that ideal
1. Language – Legal rules are cast in language and language is subject to
interpretation. Words do not have a fixed and simple meaning.
2. Changing values – changing values of the community, technology & other
developments. Law must adapt to remain effective.
3. Judicial Discretion – Interpretation by judges, subjective prejudices and attitudes.
S v Van Niekerk 1992 (1) SACR (A) – Death penalty vs life imprisonment