What is Law?

1. What is Law? Waheeda Amien 2008 Business Law I: Introduction

2. The Rule of Law Definition of law: “The Law in the strict sense is the only body of rules governing human conduct that is recognised as binding by the state and which the state will, if necessary, enforce.” (Hahlo and Kahn, 1968:3) “Authority, and in the last resort, force, are of the very essence of the law.” (Hahlo and Kahn, 1968:4) Waheeda Amien 2008 Business Law I: Introduction

3. Criminal: S v Jones Civil: Jones v Smith Magistrate = Magistrate’s Court Judge = High Court Magistrate & Judge must consider the following factors when presiding over a case: particular facts of the case; whether or not a particular rule or principle exists that is relevant to the case; and how the rule / principle has previously been interpreted and applied by other judicial bodies. Waheeda Amien 2008 Business Law I: Introduction

4. Bindingsources of South African Law: The Constitution. Legislation (and the interpretation of statutes). Roman- Dutch Law (common law). Judicial precedent (case law). African Customary Law. Custom. Customary international law. Waheeda Amien 2008 Business Law I: Introduction

5. Persuasive sources of SA law: Laws and judgments of foreign countries. Commentaries of legal academics. South African judgments that the court is not obliged to follow. Waheeda Amien 2008 Business Law I: Introduction

6. The South African Constitution Supreme law of South Africa (section 2). Above all other law and legislation. SA = ‘constitutional democracy’ (as opposed to ‘parliamentary democracy eg. Former apartheid SA). All law must be constitutional otherwise it is invalid. Waheeda Amien 2008 Business Law I: Introduction

7. The South African Constitution Most important part = Bill of Rights. Bill of Rights = chapter that contains the rights that we as citizens have. 27 rights-creating provisions = broadly categorised as (1) civil and political rights and (2) socio-economic rights. Waheeda Amien 2008 Business Law I: Introduction

8. The South African Constitution Examples ofcivil and political rights: Equality Dignity Life Freedom and security of the person Privacy Freedom of religion Freedom of expression Freedom of association Rights of arrested, detained and accused persons to remain silent; not to be compelled to make confessions; to receive a fair trial. Waheeda Amien 2008 Business Law I: Introduction

9. The South African Constitution Examples of socio-economic rights: Education Housing Health care Food Water Social security Waheeda Amien 2008 Business Law I: Introduction

10. The South African Constitution Rights in Bill of Rights adopted and adapted from international law namely, International Convention of Civil and Political Rights (ICCPR) International Convention of Economic, Social and Cultural Rights (ICESCR). Adopted by the General Assembly of the United Nations in 1966. State is obliged to promote, protect and fulfil civil and political rights immediately. Socio-economic rights can be realised progressively subject to availability of resources. Waheeda Amien 2008 Business Law I: Introduction

11. Legislation Written laws that are passed by the legislative branches of government. Parliament, provincial legislatures and municipal councils = legislative authority to make laws. Original legislation – can only be set aside if unconstitutional. Delegated legislation (regulations passed by government ministers) – can be set aside if ultra vires and unconstitutional. Waheeda Amien 2008 Business Law I: Introduction

12. Legislation Acts= passed by Parliament and the provincial legislatures. Ordinances or by-laws = passed by municipal councils. National legislation (passed by Parliament) = applicable throughout SA. Provincial legislation = applicable within relevant province only. Municipal legislation = applicable within borders of the particular municipality. Waheeda Amien 2008 Business Law I: Introduction

13. Legislation Parliament = exclusive jurisdiction: to amend the Constitution; and Over matters of national defence and foreign affairs. Provincial legislatures = exclusive jurisdiction over eg., regulation of abbatoirs, ambulance services, granting of liquor licences. Parliament and provincial legislatures = concurrent jurisdiction over eg., agriculture, consumer protection, health services, housing, tourism, trade and welfare services. Conflict between national and provincial legislation? Question of uniformity. Waheeda Amien 2008 Business Law I: Introduction

14. Judicial precedent Case law. Courts do not have direct law-making authority. But courts acquire limited law-making powers that arise from the fact that they: Must interpret laws when applying those laws; and Obliged to follow earlier interpretations of courts of equal or higher standing (doctrine of stare decisis / judicial precedent). Waheeda Amien 2008 Business Law I: Introduction

15. Judicial precedent Relevant when facts of a later case are similar to facts of previous case, so that same legal issues are raised. Applies to common law countries. Create binding precedent where later courts are bound to follow the decisions of earlier courts of equal or higher standing. Waheeda Amien 2008 Business Law I: Introduction

16. Judicial precedent Ratio decidendi = ‘the reason for the decision’. Ratio decidendi = statements that judge necessarily makes to arrive at final outcome of the case. Obiter dicta = incidental statements delivered during the course of the judgment. Defined as: “[A] judicial observation made in passing: one not necessary for the decision of the case. It is a stated thought that does not advance the reasoning by which the outcome is reached.” (De Kock and Others v Van Rooyen 2005 (1) SCA 1). Waheeda Amien 2008 Business Law I: Introduction

17. South African court structure The Constitution vests judicial authority in: The Constitutional Court. The Supreme Court of Appeal. High Courts. Magistrates Courts. Specialist Courts. Waheeda Amien 2008 Business Law I: Introduction

18. South African court structure Constitutional Court(1) Supreme Court of Appeal(1) High Courts(13) CPD, NCD, ECD, NPD, TPD, OFS, BOP, CK, TK, V, SEC, D&C, WLD Magistrates Courts’ (+400) Regional District Waheeda Amien 2008 Business Law I: Introduction

19. Ratio decidendi (which courts are bound by the decisions of which other courts?) All courts are bound by the decisions of the CC. All High Courts and Magistrates’ Courts are bound by the decisions of the SCA. Waheeda Amien 2008 Business Law I: Introduction

20. Ratio decidendi High Courts: Bound by earlier decisions of a bench of equal or higher standing within their own provincial division. Single judge = bound by the decision of a previous single judge. Full bench = bound by the decision of a previous full bench. Full bench = not bound by the decision of a single bench. High Court of one province = not bound by the decision of a High of another province. Waheeda Amien 2008 Business Law I: Introduction

21. Ratio decidendi Magistrate’s courts Bound by High Court decisions of own province. High Court within own province = not decided a point. But point = decided by High Court of another province. Magistrates’ court = bound to follow decision of High Court of other province. Conflicting decisions between High Courts of two or more provinces: Where point has not been raised in all High Courts, magistrates’ courts in provinces where High Courts have not had occasion to decide point must follow decision of High Court of higher standing (full bench vs single bench). If High Court decisions are of equal standing, magistrates’ court must follow most recent decision. Waheeda Amien 2008 Business Law I: Introduction

22. Roman- Dutch Law (common law) Common law v Civil law. African Customary Law Section 211(3) of the Constitution elevated ACL from secondary status to level of common law. Court can take judicial notice of ACL. Judicial notice = court can accept existence of a customary law without requiring it to be proven provided it can be ascertained readily and with sufficient certainty. Waheeda Amien 2008 Business Law I: Introduction

23. Custom (community practices) Practices observed by particular communities. Potential source of law. To attain the status of ‘law’, a custom must be: Certain; Reasonable; Uniformly observed by members of particular community; Must have existed for a long time; and Evidence of many community members is required to prove the existence of a custom. Waheeda Amien 2008 Business Law I: Introduction

24. Customary international law Longstanding practices / customs that exist between countries on an international level, which have given rise to binding principles. Constitution obliges SA courts to apply the principles of customary international law unless they conflict with legislation that has been passed by Parliament. Waheeda Amien 2008 Business Law I: Introduction

25. Legal Rights Rights vs Duties. Contractual rights. Human rights (Bill of Rights). Definition of a right: “an interest conferred by and protected by the law, entitling one person to claim that another person or persons either give him something, or do an act for him, or refrain from doing an act.” (Wille, 1991: 38). Waheeda Amien 2008 Business Law I: Introduction

26. Legal Rights Not all interests = rights. Rights are whatever interests the state recognises as protecting as rights. Two types of rights: Personal rights; and Real rights. Waheeda Amien 2008 Business Law I: Introduction

27. Legal Rights Personal rights Lie against a particular person or persons only. Personal rights are enforceable against a specific person only. Waheeda Amien 2008 Business Law I: Introduction

28. Legal Rights Real rights Rights that a person has in things / physical objects. Can be exercised against the world at large, including people who have done you no harm. Waheeda Amien 2008 Business Law I: Introduction

29. Legal Rights Real rights v Personal rights. If one person has a real right in something and another person has a personal right in that same thing, the real right trumps the personal right. Waheeda Amien 2008 Business Law I: Introduction

30. Legal Personality Bearer of rights and duties; Has capacity to acquire rights and duties by her / his own conduct; Has capacity to sue or be sued. Waheeda Amien 2008 Business Law I: Introduction

31. Legal Personality Legal construct. Identity of legal persons may change over time. Two types: Natural persons; and Juristic persons. Waheeda Amien 2008 Business Law I: Introduction

32. Legal Personality Natural persons: All human beings. During life, human beings have rights, duties and capacities. Determined by a range of factors such as age, mental health, insolvency, nationality. Waheeda Amien 2008 Business Law I: Introduction

33. Legal Personality Natural persons: Age: Children below seven = irrebuttably presumed to lack criminal and delictual capacity Children between seven and 14 = rebuttably presumed to lack criminal and delictual capacity; Everyone over 14 = rebuttably presumed to have criminal and delictual capacity. Waheeda Amien 2008 Business Law I: Introduction

34. Legal Personality Juristic persons: Artificial persons. Entities that do not have a physical existence in the same way that human beings do. Examples: companies, universities, churches and charities. Can acquire rights, duties and capacities. Created by legislation. Waheeda Amien 2008 Business Law I: Introduction

35. Legal Personality Separation between legal personalities of juristic persons and natural persons = important. Because people would be reluctant to invest in companies or be employed in companies if they could be held personally liable for the debts and legal obligations of the company. So separation provides protection for investors and employees. Waheeda Amien 2008 Business Law I: Introduction

36. Branches of the law International law National law / Domestic law Public law Procedural law Private Law Criminal law Civil procedure Property Administrative law Criminal procedure Persons Constitutional law Evidence Commercial law Law of obligations Company law Delict Tax law Contract Labour law Unjustified enrichment Law of insolvency Law of Negotiable Instruments Waheeda Amien 2008 Business Law I: Introduction

37. Branches of the law International law Governs the relations between nation states. Established through: Treaties and conventions (agreements between/or among countries namely); and Customary international law. ICCPR, ICESCR, CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), Law of the Sea Convention, International Monetary Fund, World Bank and World Trade Organisation. Parliament must expressly incorporate the provisions of a particular treaty into SA law. Application of international law could influence the content and shape of national laws. Waheeda Amien 2008 Business Law I: Introduction

38. Branches of the law National law Domestic law. Comprises procedural law and substantive law. Waheeda Amien 2008 Business Law I: Introduction

39. Branches of the law Procedural law Describes the procedures that must be followed for a case to be litigated before a court of law. Waheeda Amien 2008 Business Law I: Introduction

40. Branches of the law Substantive law Sets out the specific rights and duties of persons. Consists of public law and private law. Waheeda Amien 2008 Business Law I: Introduction

41. Branches of the law Public law Governs the relations between the state (acting in a public capacity) and private individuals. Private law Governs the relations between private individuals. Waheeda Amien 2008 Business Law I: Introduction

42. Branches of the law One type of conduct could give rise to liability under different branches of law eg.: Criminal law (branch of Public law) Delict (branch of Private law / civil law) Unjustified enrichment (branch of Private law / civil law) Contract (branch of Private law / civil law) Waheeda Amien 2008 Business Law I: Introduction

43. Branches of the law A B (employee of B) C D (knowledge of theft) (innocent buyer) What legal action can be taken against A and C? Waheeda Amien 2008 Business Law I: Introduction

44. Branches of the law Criminal law Any wrongful behaviour that is considered a crime is identified as such either by common law or statutory law. S v Jones (State versus Jones, the accused). State investigates through police. State decides to prosecute through prosecuting authority. Victim = complainant. Waheeda Amien 2008 Business Law I: Introduction

45. Branches of the law Criminal law Magistrate / judge = decides innocence or guilt of accused. Accused = guilty, magistrate / judge can impose a fine and/or imprisonment. Purpose of fine and imprisonment = punish the accused, not to compensate the victim. Victim could obtain compensation through a civil claim under the law of delict. Waheeda Amien 2008 Business Law I: Introduction

46. Branches of the law Delict Enables person to claim compensation from someone who has caused her / him harm. Purpose of delictual action = compensate victim / injured party rather than punish perpetrator. Action brought by injured party, not the state. Law of delict rests on a general prohibition against causing harm to another. Not always clear whether conduct can lead to delictual liability. Waheeda Amien 2008 Business Law I: Introduction

47. Branches of the law Delict Conduct = both wrongful and blameworthy in particular circumstances of the case. Conduct = wrongful if legalconvictions of society regard it as wrongful. Conduct = blameworthy if perpetrator caused harm intentionally or negligently. Waheeda Amien 2008 Business Law I: Introduction

48. Branches of the law Delict Harm caused intentionally: Dolus;and Dolus eventualis = intention by virtue of the fact that the possibility of harm was actually foreseen by the perpetrator. Waheeda Amien 2008 Business Law I: Introduction

49. Branches of the law Delict Harm caused negligently: Reasonable person test: Would a reasonable person in the position of the defendant have foreseen the possibility of her / his conduct causing harm to another? Would a reasonable person in the position of the defendant have taken steps to guard against such harm occurring? Did the defendant fail to take such steps? Waheeda Amien 2008 Business Law I: Introduction

50. Branches of the law Delict Compensation can be claimed for financial losses; and non-financial losses. Waheeda Amien 2008 Business Law I: Introduction