INTRODUCTION TO PUBLIC LAW: NOTES

{These notes are designed to assist students in making sense of the content of the
discussions had in class as well as to help with understanding important concepts.
This summary is not a complete set of notes and students must supplement this
summary with their own reading from the recommended textbooks and lecture slides.}

UNIT 1: INTRODUCTION TO LAW AND BASIC LEGAL CONCEPTS

The Functions of Law in Society and The Origins of South African Law

Law and its Function in Society

What is law?

When legal practitioners of the law talk about law, they refer to it in a different sense
as when physicists, mathematicians and economists talk of ‘law’ in their disciplines
(area of study). In those disciplines ‘laws’ are meant to describe certain uniformities,
regularities and phenomena.

In the law discipline, ‘law’ refers to a body of rules that govern or regulate human
conduct, that is recognised as binding and enforceable by public authorities (the state).
Therefore, when we talk of ‘law’ in this and other Units of Study, we are referring to
rules that prescribe how we behave and interact with each other.

But beyond this broad definition of the law, there still remains a debate on what law is
and what its role in society is.

Laws function in society

In a society, law is a device that is used to regulate economic and social conduct.
Because people (including juristic persons) have different interests (needs and wants),
living alongside each other may give rise to disagreements (legal disputes). The law
exists to solve these disputes with the judicial system (the courts) as the authoritative
system through which disputes are resolved. The law prescribes what people can do,
what they cannot do and what they must do.

Law and other social norms.

Law is not the only system of rules that attempts to regulate human conduct. Religion
(a system of belief guided by a ‘higher power’) and morality (individual or group beliefs
about what is right and wrong) have been used to regulate human conduct. However,
law is not always moral.

The Purpose of Law

Law is necessary (a) to preserve order and prevent chaos (b) to achieve justice. In
other words, for members of a society to know what to do, when to do it, how to do it,
who is allowed to do it and why it should and should not be done: law is necessary.
Further to this, if a member of society does not abide by these rules, the law would
state the type of punishment and/or sanction that they should face (i.e., justice).

Reflection Box: Ethics, Morality and Law

The discussion above may give rise to a question such as “how is law different from
the personal beliefs of an individual and the collective beliefs of a society or section of
society?” To provide – somewhat – of an answer to this question, it would be
necessary for us to briefly discuss ethics and morality and how these are different from
legal rules that a binding on society.

Ethics

Ethics are the rules of moral conduct that are prescribed by the individuals for
themselves. Ethical rules function through the conscience of the individual and hence
an individual can accept or reject ethical norms. The ‘punishment’ that one
experiences include individual guilt that affect their conscience.

e.g., Harry decides that he will not drink and smoke. When he does drink and smoke,
he feels guilty. His punishment is internal and not imposed by others.

Morality

Whilst ethics prescribe norms of conduct for the individual, morality prescribes norms
of conduct for the community. It deals with standards of conduct actually accepted by
the community. The sanction that the people who acted contrary to these community
norms (i.e. conta bonos mores) might experience excommunication and/or rejection
by community.

e.g., In a particular community it may not be acceptable to indulge in sexual relations

before marriage. People who do so may be shunned or treated differently by the
community. However, it is important to note that since norms of morality reflect the
prevailing standards of the community, they will change as the community changes its
concept about right and wrong.

Legal Rules

Legal rules are recognised and enforced by the state. The punishment or sanction for
not following these rules set out by the state can include fines, imprisonment,
damages, community service.

For example, When the robot i.e., red, you must stop your motor vehicle. If you fail to
do so, functionaries of the state (in this case police officers) may impose a fine.

The difference between ethics, morality and law lies mainly on, firstly, who imposes
the rule and, secondly, what the sanction or punishment is.

Ethics are imposed by the individual, morals by a community and law by the state.
Ethics is sanctioned by the individual; law is sanctioned by the state and morality is
sanctioned by public opinions such as scorn and rejection.

Important Note: Though the definitions of ethics, morality and legal rules may refer to
different things, there are circumstances where there may be some overlaps. For
example, members of a community may individually and collectively include a
provision in their law that expresses their individual and collective ethics and morality.

Now that we have an idea on what law is and its functions in society, we will consider
the roots of South African law.

A Brief History of South African Law

In the main, South African law has its roots in Roman Law, Roman Dutch Law and
English Law. Other systems of law have, at later stages of South African history, come
to be recognized as a part of South African law. These include African Customary law
and other religious based systems of law such as Islamic, Hindu and Jewish legal
systems.

The over three hundred and fifty years of colonialism and apartheid resulted in a South
African legal system that reflected the values of the colonial and apartheid rules.
During this time, a distinction was drawn between South African common law, the "law
of the white people" and traditional African law which was referred to as "native law".
This "native law" was supposed to represent the customary law (unwritten) of the
indigenous people. Colonial and apartheid rule not only marginalised indigenous or
customary law but in the process of interpretation, legislation was given a slant which
facilitated colonial and apartheid rule. In this regard the role of traditional leaders and
traditional courts is a case in point.

The Union of South Africa formed in 1910 represented an alliance between English
and Dutch speaking whites and the triumph of white domination over Black people. 1
The legal system reflected that domination. In the past, the court system, the
administration of estates, and all other parts of the system of justice were moulded
around the needs of the minority. The Black majority who made up more than 80% of
the population, had marginal services that were segregated and of a low standard.
Instead of being helped by the justice system, black people were most often the victims
of it.

The South African Constitution of 1996 sought to bring about a positive change to the
South African legal system.

Sources of (South African) Law

As stated above, the law is comprised of rules formulated to regulate the relationship
between (i) the state and people; (ii) people and other people; and (iii) people and
things. However, these rules must come from ‘somewhere’, in other words, there must
be a source of their existence.

To fulfil its purpose and to have authority and legitimacy, the law must have an origin
(i.e., it must be formulated by people and institutions within society that are designated
for this purpose).

Sources

The primary sources of law are those that that originate from a primary institution (i.e.,
institutions vested with law-making authority). These include sources such as the
Constitution 2, legislation, and case law. These sources are binding which means that
they must be obeyed.

1
In these notes, reference to ‘Black people’ includes members of the Coloured community as well as South
Africans of Indian descent.
2
Unless an indication has been provided to the contrary, please note that all references to ‘the Constitution’
refer to the Final Constitution of 1996 (as periodically amended).
Secondary sources of law, on the other hand, provide further information on primary
sources of law and are non-binding (this means that judges and
practitioners/interpreters of the law do not need to follow these opinions). These
include sources such as journal articles and opinions of legal experts.

The Hierarchy of Sources and How They Work

In terms of section 2 of the Constitution, the “Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by
it must be fulfilled”. This means that all law (and actions) must be in line with the
Constitution because the Constitution is supreme. Therefore, all other sources of law
must flow from and be consistent with the Constitution. The supremacy of the
Constitution places it at the top of the legal hierarchy followed by all other sources.

Primary Sources of Law

1. Legislation
Legislation is the law that Parliament makes. It is also known as statutes and more
commonly as Acts of Parliament. It is mostly called original legislation because
Parliament has the inherent power to make laws. Provincial legislatures can also pass
provincial acts and municipal councils can pass by-laws. Legislation is a powerful
source of law. In principle it binds the whole society. It is different from subordinate or
delegated legislation (regulations) that is made by government ministers.

2. Case Law (Judicial Precedent)

Courts are empowered to apply the law. Judges and magistrates, consult primary
sources of law to apply to the particular case before them (i.e., give meaning to the
text on the page). Courts also take into account their previous judgements in similar
cases, because they are bound to the approach followed in the past. Previous judicial
decisions therefore constitute law and the way in which the law was applied there is
authoritative. The reason for this lies in the system of judicial precedent which applies
in South Africa. The application of the doctrine of precedent depends, among other
things, on the place which a court occupies in the hierarchy (see discussion in Unit 2
on the court structure).

3. Common Law
South African common law is mainly made up of 16th, 17th and 18th century Roman-
Dutch, English law and old Germanic law that was imposed on the indigenous
population of modern-day South Africa. This forms part of South African law and is
binding where it is in line with the Constitution and legislation. The common law is still
relevant in that some crimes find their origin in the common law these include murder,
robbery and rape, etc. It is important to note that common law comes about because
of custom. In law, a custom is the established pattern of behaviour that can be
objectively verified within a particular social setting. Any assertion of a custom as law
has to be proved. The court in the well-known case of van Breda & Others v Jacobs &
Others 1921 AD 330, required that the following be proved before a custom could
qualify as law:

• It must have existed for a long time;

• It must be reasonable;

• It must be generally accepted and observed; and

• It must not contradict any existing law.

4. African Customary (or Indigenous) Law

Many communities live according to indigenous law, which also takes on the form of
written or unwritten customary law. Indigenous law is applied in the ordinary courts.
The Evidence Amendment Act, (Act 45 of 1988) stipulates that a court can take judicial
notice of indigenous law, provided that it is not in conflict with the principles of public
policy or natural justice. In some instances, an expert will have to give testimony on
the content of these rules. The

Secondary Sources of Law

1. Journal Articles
Journal articles are scholarly articles written by mostly law academics. Practicing
lawyers, judges and law students also contribute to journals. However, the articles that
are contained in the journals are not a definitive and binding authority particularly in
court. They may, however, be used in support of a legal representative’s arguments
to persuade the court to follow that interpretation of the law. At times, even the court
relies on journal articles to inform and support their decisions.
Journal articles may be written on any area of law. However, some journals only
publish articles on a specified area of law such as Intellectual Property, Mercantile
Law etc. They are published periodically throughout the year (this is why they are
sometimes called ‘periodicals’). Most times, law journals published in the same year
form part of the same volume of that year.

Parliamentary Sovereignty & Constitutional Supremacy

Before 1994 South Africa was governed under a system of parliamentary sovereignty.
This means that parliament was the supreme authority, it could make any laws that it
wished. What it commanded was law. The legislature could write and rewrite the
legislation. The legislature could change the basic structure of the state as it liked and
attack human rights. The people themselves could not participate in any critical
enquiry about the society they wanted to live in. Parliament adopted any law, no matter
how discriminatory or repressive the effect. No institution including the courts could
challenge the laws of Parliament.

A court could only declare an Act invalid if it had not been passed in accordance with
the procedures or formal requirements for passing legislation laid down in the
Constitutions. The court could not review parliamentary legislation on substantive
grounds such as equality, justice and fairness.

An Injustice in the Law that Could not be Challenged

An example of an unjust Act is the Group Areas Act 41 of 1950. Testing the substantive
provisions of the Act 3 in S v Werner 1981 1 SA 187 (A) resulted in the intention of the
legislature being emphasized over the injustice perpetuated by the Act.

The court admitted that the application of the Act was unfair but remarked that this
unfairness was something that the legislature had foreseen. The intention of the
legislature was to see that the Act was in place and enforced to prevent Black from
residing in white areas.

3
In law, to ‘test the substantive provisions of an Act’ (or any other law) means that one of the parties is
unhappy with what the law says and wants the court to declare the law – or parts of it – unlawful. This is
different from challenging the procedure that was followed when the law was adopted (We will cover aspects
of adoption of law in later Units of Study).
The court’s function was not to strive towards fairness but to apply the Act of
parliament, irrespective of the social, political and economic implications.

After the adoption of the Constitution in 1994, the strong central government of the
past was replaced by a system of government in which legislative and executive power
was divided among national, provincial, and local spheres of government. the Bill of
Rights was put in place to safeguard human rights. The courts were given the power
to declare invalid any law inconsistent with the Bill of Rights and the Constitution.

Under a system of constitutional supremacy, any law or conduct of the state that is
inconsistent with the fundamental values is invalid. The supreme authority is the
Constitution and the fundamental values enshrined and entrenched in it. Therefore,
interpretation is no longer literal (i.e., looking for the intention of the legislature) but is
informed by the values of Constitution.

But what then is ‘The Constitution’: Enacted Law-Text that is not Legislation

As you probably know by now, the Constitution was enacted following the adoption of
the constitutional principles as outlined in the agreement between political parties at
the conclusion of a long and arduous negotiation. This included a political and legal
process that comprised of the Convention for a Democratic South Africa (CODESA),
a whites-only referendum, broad consultations, the Multi-Party Negotiating Forum
(MPNF) and its certification by the Constitutional Court. The Constitution was adopted
and enacted in a special sitting of Parliament that acted as a Constitutional Assembly.
Following its adoption, and subsequent enactment, the Constitution – then referred to
as Act 108 of 1996 – became the supreme law of the Republic (section 2). However,
in 2005 this defect was corrected with the enactment of the Citation of Constitutional
Laws Act 5 of 2005. In essence, this Act changed the manner in which the Constitution
is cited. Instead of being cited as ‘The Constitution of the Republic of South Africa Act
108 of 1996’, it would now be cited as ‘The Constitution of the Republic of South Africa,
1996’.

The question that arises is: why was this ‘defect’ in need of a ‘correction’? In the years
between its enactment and the enactment of the Citation Act it became apparent to
legislators and the judiciary that the Constitution was not just another piece of
legislation in a sequence of legislations being enacted by Parliament. It was the
highest law that was adopted in a special sitting of Parliament sitting as a
Constitutional Assembly and therefore could not be referred to as an Act of Parliament.

In this respect, the Constitution is an “enacted law-text” that, for the reason outlined
above, is not considered legislation. It is more than just a source of law, it is the source
from which all other sources are written, corrected, developed and removed. The rules
and principles that govern the interpretation of its provisions are different to that of the
rules and principles that would apply to legislation.

To clarify this example further, imagine that South African law is a tree with branches.
The Constitution is not a ‘branch’ of the law, and neither is it the trunk. It is a the roots
or even the tree itself. All laws – at least since 1996 – come from and are influenced
and changed by the Constitution.

The Difference Between Parliamentary Sovereignty & Constitutional Supremacy

Parliamentary sovereignty is a concept that a legislative body – i.e., parliament – has

absolute sovereignty and is supreme over all other government institutions, including
the executive or judicial bodies. Under this system, the laws of parliament cannot be
challenged even in the courts (except on a procedural basis).

However, under constitutional supremacy the powers and functions of parliament are
outlined by a constitution. In such a system, the constitution states and limits the
powers of the legislature. Therefore, parliament cannot behave as it did in the pre-
constitutional era in South Africa. The exercise of parliament’s powers is subject to
judicial review (challenge in the courts) even on a substantive basis.

Application of the Constitution & Bill of Rights

Section 7 (2) states that “the state must respect, protect, promote and fulfil the rights
in the Bill of Rights”. Further to this, section 8 (1) states the “Bill of Rights binds the
legislature, the executive, the judiciary and all organs of state”. Similarly, section 8 (2)
states that the Bill of Rights binds a natural or juristic person”. What can be seen from
these provisions is that the Constitution applies in two ways: Vertically & Horizontally.

• Vertical Application: applies between state and citizens

• Horizontal Application: applies between citizens

This means that not only the state has the duty to act in line with the Constitution, but
all conduct of natural & juristic persons must be in line with the Constitution

Divisions/Branches of Law

South African Law (our national law) is divided into 2 broad categories: Substantive
Law & Adjectival Law. These categories describe the legal rights that we have, their
limitations and the procedures we should follow to enforce and protect those rights.
These categories are further divided into different branches.

Before we delve further into the branches of our national law, it is important to
distinguish it from international law and foreign law

International law

This is the law of nations and regulates the relationship between states in times of war
and peace. It regulates matters such as boundaries of states, territorial waters, air
space. These rules are created by international custom or international treaties. If the
rules of International Law are violated, the matter can be heard by the International
Court of Justice or – in matters concerning international criminal law – the International
Criminal Court.

Foreign law

Foreign law is the national law of a country other than South Africa. the foreign law of
a particular nation state defines the legal relationships within its borders.
 SOUTH AFRICAN
NATIONAL LAW

SUBSTANTIVE LAW ADJECTIVE LAW

Public law Private law Procedural law
Constitutional Law Law of Persons Law of Evidence
Criminal Law Family Law Interpretation of Statutes
Administrative Law Law of Things Criminal Procedure
Public International Law Law of Obligations Civil Procedure
Law of Succession
Mercantile Law
Private International Law

Substantive Law

Substantive law is that part of the law according to which rights, duties, and the
remedies for the infringement of rights and failure to carry out their duties, are
determined. Substantive law 1. describes the nature of the various rights the duties;
2. explains how these rights and duties are constituted; 3. explains what their legal
effect is; and 4. how they are extinguished.

Substantive Law can be further divided into Private Law and Public Law. Below we will
expand on what each of these deal with as well as the divisions of law that can be
found within both.

Private Law

Private Law governs the relationships between individuals on an equal footing. Here,
the State is also classified as an individual (not in its capacity as a sovereign power).
A Private Law relationship is an equal one and can be described as a horizontal
relationship. Private Law has the following five subdivisions:

Law of Persons

Deals with the legal status of persons, e.g., minors. Factors that are taken into
consideration to determine status are age, gender, nationality, mental capacity, etc.
For example, if Anika is 16 years old and she wishes to get married the Law of Persons
will determine her legal status and consequently whether she can marry.

Family Law

Deals with family relationships such as marriage, divorce, guardianship, etc. for
example, Anika and her husband wish to adopt a child, Family Law will help us
determine the relationship between Anika and her child. It will further tell us about the
circumstances under which they can divorce and the proprietary consequences of that
divorce.

Law of Things

Deals with real rights. Real rights are rights that a person may have to a thing, both
movable and immovable. It is enforceable against the whole world. For example, Anika
and her husband have just bought a house and a car. Their rights to possession and
ownership will be determined by the Law of Things. This part of law is often called
property law.

Law of Obligations

Deals with personal rights i.e., the rights and duties of persons towards each other, to
do or not to do something. A personal right exists only against a specific subject. These
legal rights can come about through Contract or Delictual Action.

In the Law of Contract, there exist an intention to enter into an agreement with another
part e.g. Anika and her husband buy their second-hand car from Beauty for the sum
of R20 000,00 and finance their house through ABSA bank. These legal relationships
(between Anika and Beauty and Anika and the Bank) come about through and are
regulated by contracts.

For a delictual action to arise, the parties are not necessarily in agreement with each
other. For example, while running errands for her family, Anika drives recklessly and
causes an accident. Juliet is seriously injured. It is possible for Juliet to sue Anika for
damage to her own vehicle as well as her injuries.

Law of Succession

This deals with the administration of a person’s estate after their death. This branch
is further subdivided into the following: -
(a) Testate Succession

Distribution of assets in terms of a will. For example, if Anika or her husband pass
away and they have written valid wills, their property (and liabilities) will be
distributed according to their wishes as laid out in their wills.

(b) Intestate Succession

Distribution of the estate according to prescribed rules where no valid will has been
left. If Anika does not have a valid will, her property will be distributed by what the
law prescribes.

Mercantile Law

This branch of law is concerned with the laws relating to commercial transactions such
as the law of negotiable instruments, company law, agency, insolvency, insurance and
even labour law (this branch can overlap with the Law of Obligations in Private Law).
For example, the contract that Anika enters into with her employer will largely fall into
the law of obligations. However, because it concerns her employment, it may also fall
under mercantile law. Similarly, the agreement (i.e contract) that she enters into with
her insurance company falls both into the realm of the law of obligations as well as
insurance.

Public Law

Public law regulates the relationship between the individual and the state (as the
governing authority). A Public Law relationship is an unequal one and can be
described as a vertical relationship. Public law is divided into the following subdivisions
listed below.

Criminal Law

Criminal Law defines what human acts constitute a crime and prescribes punishment
for the crimes. It deals with both common law crimes (e.g. murder) and statutory
crimes (e.g. traffic offences). For example, Anika kills her husband of his mistress. The
rules of Criminal Law will apply do determine her guilt and sentence.

Constitutional Law
This branch of law mainly deals with the Constitution, the structure of powers of the
state, the powers and functions of the various bodies of government and regulates the
relationship between the various bodies inter se as well as the relationship between
these bodies and the individual. An example of this is that the Constitution provides
for two houses of parliament – the National Assembly and the National Council of
Provinces – as well as their powers and functions. It also out the procedures on how
disagreements between these houses of Parliament may be resolved.

Administrative Law

Deals with the administration of the state - the organisation and authority of the
executive organs of the state. It is concerned with the structure, function and powers
of the administrative bodies of the state and the relationship between these bodies
inter se and between the bodies and the individual. An example of administrative
authority is the South African National Roads Agency Limited (SANRAL), the National
Liquor Authority (NLA) and the different Municipal Police. For instance, if Anika is
driving her car on a National Road (e.g., the N2), SANRAL is in charge of ensuring
that that the road is suitable for all road users. If she decides to stop and have an
alcoholic drink at a bar, the NLA has the duty to ensure that the product she is
consuming has been produced in line with the necessary standards set out in
legislation. If Anika decides to drive after having a few drinks, the Municipal Police in
the city/town that she is in may detain her.

Very often there are a number of overlaps between administrative law and other
branches of law. For example, if Anika dies her estate will be administered in terms of
the law of succession. However, regardless of whether she has died testate or
intestate, her estate will – for some time – be over seen by the Master of the Court (an
administrative body). The Master will have to ensure that the division does not happen
contrary to any law including constitutional law and in terms of procedures laid out in
certain aspects of Adjectival Law (the duties of the Master and other legal actors will
be covered in a later Unit of Study).

Adjectival Law

Adjectival Law deals with the procedure for enforcing the rules of substantive law, e.g.,
civil procedure, criminal procedure, the law of evidence and interpretation of statutes.
It can be further be divided into the following categories:
Law of Evidence

It determines what facts and how the facts of a criminal or a civil case must be proved,
what evidence is admissible or not. For example, if Anika murders her husband, a
neighbour who was not on the scene but heard from another neighbour that on the
day Anika killed her husband, she had had a fight with her husband would not be
brought to court to testify because this would be what is called hearsay and is not
permitted in South African law.

Interpretation of Statutes

These rules prescribe how the meaning of statutory provisions are determined. Rules
of interpretation also apply to wills, contracts, and other written documents. For
example, it is a rule of the Interpretation of Statutes that when an Act of Parliament is
studied, it is important to consider the Constitution (where relevant), the context within
which the legislation is written and, at times, the intention of legislature to determine
the true meaning of legislation.

Civil Procedure

Describes the procedure to apply when an individual wishes to enforce their rights
against another. For example, where Anika’s employer terminates her contract of
employment without a proper reason, civil procedure will lay out how and when she
can start legal proceedings against her employer. Similarly, it is civil procedure that
will lay out the process of how and when Juliet can go about claiming damages against
Anika.

Criminal Procedure
Describes the procedure to follow when the State prosecutes a person who has
committed a crime. For example, the Criminal Procedure Act lays out how and when
the state should inform a person of a criminal charge against them and how the
proceedings will unfold.

The Intersection of Public International Law, Private International Law and

National Law
As outlined above, International Law is law of nations and regulates the relationship
between states. However, a question may arise as to what law applies where citizens
of different countries interact and transact with each other. Going back to our recurring
example above, we could think of the following: if Anika is South African who studied
in the Netherlands and meets her future husband in Germany and he proposes while
they are in Italy. They decide to get married in America and eventually decide to settle
back in South Africa. Questions may follow regarding which proprietary regime their
marriage will follow and what the consequences of divorce will be.

The answer can be found in Private International Law which deals with private law
issues which involve the laws of different countries and sets out the rules determining
the law under which the dispute will be settled. These rules will determine which legal
system will apply in such a case. The applicable rules may be the body of rules of a
specific country (national law).

Public International Law – on the other hand – deals with the law between countries.
For example, if Anika is wanted in the USA for a crime she committed while on holiday,
her capture in Germany (by the state authorities) and transfer to the USA (to the
custody of state authorities) will fall in this area of law.