📘 Chapter 1: The Law

The Nature and Purpose of Law

Law is not a fixed or sacred entity but a human construct developed for societal order. It
exists because people live together and must resolve conflicts, allocate resources,
and regulate conduct. Theories such as Hobbes’ and Locke’s social contract propose
that individuals give up some freedoms for the sake of peace and order. Hobbes saw
humans as inherently selfish, needing control; Locke viewed them as rational beings
seeking structured coexistence. John Rawls introduced a modern twist, suggesting that
laws would be just if agreed upon behind a “veil of ignorance,” where no one knows
their social position.

In contrast, African philosophy (as discussed by Cornell & Muvangua) rejects the idea
of separate, self-interested individuals entering a contract. Instead, humans are born
into a web of ethical obligations, captured by ubuntu — “I am because you are.” Law,
in this view, exists to foster human dignity and respect within community life.

What Law Is

Law consists of enforceable rules and principles that regulate human behaviour and
are backed by state authority. It offers predictability, structure, and recourse, often
enforced by police, courts, and other officials. Law is not universal — its content is
deeply shaped by history and culture, which is why South African law differs from
Egyptian or American law.

South African legal rules are sourced from:

• The Constitution (1996) – the supreme law.

• Legislation – acts of Parliament and other bodies.
• Common Law – mainly Roman-Dutch and English traditions.
• Customary Law – African indigenous systems.
• Case Law – judicial decisions that form precedents.
• Custom – practices accepted as law due to long use.
• International Law – agreements and conventions with other states.

Law ideally reflects a society’s shared values, including economic, political, social,
and moral ideologies. When it doesn't, it may suffer a legitimacy crisis, like apartheid-
era laws that denied political rights to most South Africans.
Law and Morality

Law overlaps with morality, religion, and community values, but it isn’t identical to
them:

• Religion: Some argue law should be secular (neutral), while others see law and
religion as interconnected. South African courts have occasionally recognised
Muslim marriages (e.g. Amod v MMF) or rejected religious justifications for
corporal punishment (Christian Education SA case).
• Individual Morality: Personal beliefs aren’t always enforced by law. The Prince
cases illustrate how moral views on cannabis shifted over time and were
eventually respected in law.
• Community Mores: Social norms may or may not be reflected in law. For
example, once-taboo ideas (interracial marriage, surrogacy for gay couples) are
now legally accepted. Courts often rely on public policy or boni mores, but
defining “community values” is tricky in a diverse society.

Law and Justice

Law and justice are ideally connected, but not always. Distributive justice demands
equal treatment, while corrective justice seeks to repair harm. South African procedural
law aims for fairness (e.g., presumption of innocence, fair hearings), but material laws
(e.g., apartheid laws) can be deeply unjust.

Two main philosophical views emerge:

• Legal Positivism: Law is valid if properly enacted, regardless of morality. Courts

apply it even if it’s unjust (S v Adams case).
• Natural Law: An unjust law is no law at all (Mandela, Gandhi, King Jr. all invoked
this idea). Our Constitution now embodies this view — it invalidates any law
inconsistent with fundamental rights and values.

Law and Certainty

While legal certainty is ideal (so people know where they stand), law isn’t always
predictable due to:

• Language ambiguity (Ex parte Dow on “in a house”).

• Changing societal values (e.g., recognition of rape in marriage; S v Ncanywa,
Prevention of Family Violence Act).
• Judicial discretion: Judges interpret law and values differently. Activist judges
push social reform; deferential judges respect legislative choices. Since 1994,
 judges must interpret law in line with constitutional values (Carmichele v
Minister of Safety and Security).

📘 Chapter 2: A History of South African Law

Why Study Legal History?

Understanding legal history is vital for any law student because:

• It explains the nature of current law — how and why it developed the way it did.
• It reveals the ideological biases and power structures embedded in the legal
system.
• It equips students to challenge outdated laws and support transformative
change.
• It shows that law is not static, but evolves alongside societal values.

South Africa’s legal system is a hybrid — a rich tapestry woven from indigenous law,
Roman-Dutch law, English law, and constitutional law. This chapter traces how each
layer developed and how they interact today.

1. Indigenous African Law (Customary Law)

Before colonisation, African communities regulated themselves through customary

law, an unwritten system passed through generations. This law:

• Emphasised community over individual rights.

• Was restorative rather than punitive — it sought harmony, not punishment.
• Used traditional leaders (chiefs and headmen) as decision-makers.
• Was deeply interwoven with religion, culture, and moral duties.

However, colonial regimes distorted and weakened this system:

• They codified and formalised customary law in ways that stripped it of its
flexibility.
• They refused to recognise its authority unless validated by colonial judges.
• As a result, today’s “official” customary law is often different from living
customary law — the actual practices used in communities.

Example: In many indigenous systems, women had strong social roles, but colonial
codification often entrenched patriarchal interpretations that didn't exist before.
2. Roman Law

Roman law (from the Roman Empire) is the oldest ancestor of South African law. It
was:

• Systematic, detailed, and philosophically advanced.

• First codified under Emperor Justinian (Corpus Juris Civilis).
• Focused heavily on private law — contracts, property, persons, obligations.

Roman law became foundational in continental Europe and would influence Dutch
law centuries later.

3. Roman-Dutch Law

When the Dutch colonised the Cape in 1652, they brought with them Roman-Dutch
law, which:

• Was a fusion of Roman legal principles and Dutch customary rules.

• Governed areas like property, contract, family, and succession.
• Was judge-made law, relying heavily on scholarly writings and court decisions.

Roman-Dutch law remains the core of South African private law (e.g., contract,
delict/tort, property).

Key Figures: Legal scholars like Grotius, Voet, and Van der Linden were highly
influential. Their works are still cited in courts today.

4. English Law

English colonisation began in 1795 (interim) and 1814 (permanent). The British kept
Roman-Dutch private law but imposed English law in many other areas:

• Public law: Constitutional structure, Parliament, democracy.

• Criminal law and procedure: Rules of evidence, jury system (later abolished).
• Commercial law: Negotiable instruments, insolvency, company law.
• Court structures: Circuit courts, the Supreme Court of Appeal.
 • Legal professions: Advocates and attorneys modelled on barristers and
solicitors.

This led to the dual nature of our system — Roman-Dutch in substance, English in
form.

Example: South Africa uses the term “contract” (from English) but applies Roman-
Dutch principles to define its formation, breach, and remedies.

5. The Apartheid Legal System

From 1948–1994, South African law was built around the ideology of apartheid — racial
segregation backed by law. Laws were:

• Unjust: e.g., Group Areas Act, Bantu Education Act, Pass Laws.
• Legally valid (under legal positivism), but morally indefensible.
• Aimed at dispossessing black South Africans of land, dignity, and rights.
• Opposed through both legal activism and civil disobedience (e.g., Mandela,
Gandhi, Bram Fischer).

Key insight: Apartheid law shows the danger of divorcing law from justice. This
historical failure justifies the modern emphasis on transformative constitutionalism.

6. Post-1994: Constitutional Supremacy and Legal Transformation

The 1994 democratic breakthrough fundamentally changed South African law:

• The 1993 Interim Constitution and the 1996 Final Constitution replaced
parliamentary sovereignty with constitutional supremacy.
• A new era of human rights, equality, and dignity was born.
• The Bill of Rights became the cornerstone of all legal interpretation.
• Courts gained the power to invalidate unjust laws, enforce socio-economic
rights, and hold the state accountable.

Judges are now required to:

• Promote constitutional values.

• Develop common law and customary law in line with the Constitution.
 • Be guided by international law and comparative constitutionalism (s 39(1) of the
Constitution).

Case example: Carmichele v Minister of Safety and Security (2001) — courts must
develop the common law in accordance with constitutional rights.

7. Current Legal System: A Pluralist, Hybrid Model

South Africa’s legal system today is a composite, drawing from:

• Roman-Dutch law in private matters.

• English law in procedural and commercial matters.
• African Customary Law in personal and communal contexts.
• Constitutional Law as the ultimate authority.

This pluralism must be balanced with the imperative to transform the law to redress
historical injustices and reflect modern democratic values.

Quick Summary Chart: Origins of South African Law

Source Area of Influence

Roman-Dutch Law Private law (contracts, property)
English Law Criminal, procedural,
commercial
African Customary Law Family law, succession, land
rights
1996 Constitution All law (supreme authority)

📘 Chapter 3: Sources of South African Law

Understanding “Sources of Law”

A source of law refers to the origin or authority from which legal rules are derived. It
answers the question: Where does the law come from? In South Africa, because we
have a plural, hybrid legal system, there are multiple sources of law that function
together, hierarchically and interactively.
Kleyn et al. distinguish between binding (authoritative) and persuasive (non-
authoritative but influential) sources. The most important ones are the Constitution,
legislation, case law, common law, customary law, and international law.

1. The Constitution of the Republic of South Africa, 1996

• The supreme law of the country (s 2 – Supremacy Clause).

• All law and conduct inconsistent with it is invalid.
• Contains the Bill of Rights, enforceable against the state and individuals (s 8).
• Judges must develop common law and customary law in line with
constitutional values (s 39(2)).
• Courts interpret all legislation and legal rules through a constitutional lens.

Example: A rule that discriminates on the basis of race, gender, or sexual

orientation would be invalid unless justifiable under s 36 (Limitations Clause).

2. Legislation (Statutory Law)

Legislation refers to laws made by Parliament, provincial legislatures, or municipal

councils. Examples include:

• Acts of Parliament (e.g. Marriage Act 25 of 1961)

• Provincial ordinances
• Bylaws

Legislation can override common or customary law but is itself subject to the
Constitution. The process of passing legislation involves public participation (s 59 &
72 of the Constitution).

Example: Prevention of Family Violence Act 133 of 1993 made it possible for a man
to be convicted of raping his wife — something the common law previously prohibited.

3. Case Law (Judicial Precedent)

South Africa follows a stare decisis system: courts are bound by the precedents set by
higher courts in the same jurisdiction.
Hierarchy of courts (binding from top to bottom):

1. Constitutional Court
2. Supreme Court of Appeal
3. High Courts
4. Magistrates’ Courts (not courts of precedent)

Horizontal precedents (from other provinces) are persuasive but not binding.
Judgments must be interpreted in context; the ratio decidendi (reason for decision) is
binding, while obiter dicta (side comments) are persuasive.

Example: In S v Makwanyane, the Constitutional Court abolished the death penalty

— binding all other courts.

4. Common Law

Refers to the judge-made, uncodified law inherited from Roman-Dutch and English
legal traditions. It is especially relevant in private law — e.g., contract, delict (tort),
property, succession.

Though authoritative, common law must be:

• Interpreted in light of the Constitution.

• Developed to align with modern values and justice (s 39(2)).

Example: In Carmichele v Minister of Safety and Security, the court developed

common-law delictual principles to include a duty of care by the state to protect
citizens.

5. Customary Law (African Indigenous Law)

This is the living law of African communities, based on custom and practice. It
governs:

• Family matters (marriage, inheritance)

• Communal land ownership
• Cultural practices

Customary law:
 • Is binding if consistent with the Constitution and recognized in court.
• May differ from official customary law (codified or written).
• Must evolve and adapt to modern human rights standards.

Example: Customary law must now recognize women's equal rights to inherit, due
to Bhe v Magistrate, Khayelitsha.

6. Custom (Legal Custom)

Custom arises from long-standing practices that are:

• Reasonable
• Uniformly observed
• Accepted as binding by the community

If proven in court, custom can become a source of law. However, it is subordinate to

legislation and the Constitution.

Example: Commercial customs in certain industries (like shipping or construction)

may be recognized and enforced by courts if proven.

7. International Law

International law influences South African law in two ways:

1. Binding international law – treaties and conventions South Africa has ratified
(e.g., Convention on the Rights of the Child).
2. Persuasive international law – non-binding norms, decisions of foreign
tribunals.

In terms of the Constitution:

• Courts must consider international law when interpreting the Bill of Rights (s
39(1)(b)).
• International law applies directly if it has been incorporated into legislation or
self-executing.

Example: The Constitution has been interpreted in line with CEDAW (Convention on
the Elimination of Discrimination Against Women).
8. Academic Writings

Though not binding, the works of legal academics are persuasive and often cited in
judgments — particularly when:

• There is uncertainty in the law.

• A new interpretation is proposed.

Historical examples: Voet, Grotius. Modern authors like Christie (on contract law),
Hahlo (family law), and Du Bois (property law) are also highly influential.

Quick Summary Chart: Sources of South African Law

Source Nature Authority Level Role in Practice

Constitution Written Supreme Overrides all laws; primary
reference
Legislation Written Binding Creates, modifies, or overrides
other laws
Case Law Judicial Binding/Persuasive Applies law and creates precedent
Common Judge- Binding (lower Fills gaps; applies mainly to private
Law made courts) law
Customary Tradition Binding (if Governs cultural/family matters
Law al constitutional)
Custom Practice- Persuasive/Binding Used when no legislation/case law
based exists
International Treaty- Binding/Persuasive Influences interpretation of
Law based rights/laws
Academic Scholarly Persuasive Supports interpretation and legal
Writings development

📘 Chapter 4: Classification of the Law

Introduction: Why Classify Law?

Legal systems are vast and complex, so classification helps us:

• Understand the structure of the law.

• Navigate legal problems by knowing which area applies.
• Systematise knowledge for legal education and practice.
South African law, like many legal systems, is classified along several axes. These
include:

1. Substantive vs. procedural law

2. National vs. international law
3. Public vs. private law
4. Branches of private law and public law

Each classification clarifies the law’s function, source, and application.

1. Substantive vs. Procedural Law

• Substantive law determines the actual rights and duties of people.

o Example: Law of contract (e.g., when a valid agreement exists).
o Example: Criminal law (e.g., what counts as theft or assault).
• Procedural law prescribes how to enforce those rights or apply remedies.
o Example: Civil procedure governs how to sue for breach of contract.
o Example: Criminal procedure regulates police investigations and trials.

Analogy: If law is a soccer game, substantive law defines the rules; procedural law
governs the referee’s whistle and red cards.

2. National vs. International Law

• National (domestic) law applies within the borders of South Africa and governs
the conduct of its people and institutions.
o Examples: Constitutional law, family law, traffic law.
• International law governs relationships between states and international
actors.
o Divided into public international law (e.g., treaties, diplomacy) and
private international law (e.g., cross-border contracts and marriages).

South African law is influenced by international law, especially through:

• Constitutional interpretation (s 39(1)(b)).

• Incorporation of treaties into domestic law (e.g., CEDAW, CRC).
3. Public Law vs. Private Law

This is the most important and traditional classification.

A. Public Law

Governs the relationship between individuals and the state, or between state organs
themselves. It is about public interest and public power.

Main branches include:

• Constitutional law – how government is structured, rights and limits of power.

• Administrative law – how public officials exercise power and how decisions are
reviewed.
• Criminal law – defines crimes and prescribes punishments.
• Tax law – regulates state revenue collection.

Example: If the police unlawfully arrest you, public law

(constitutional/administrative) provides remedies.

B. Private Law

Governs relationships between individuals or private entities. It protects individual

interests and regulates private interactions.

Main branches include:

• Law of persons – legal status (e.g., age, capacity, personality).

• Family law – marriage, divorce, adoption.
• Law of succession – inheritance.
• Law of property – ownership, possession, and rights in things.
• Law of obligations – contracts, delict (tort), unjustified enrichment.

Example: If someone crashes into your car, the law of delict determines if you can
claim damages.

4. Hybrid Categories

Some areas overlap public and private law:

 • Labour law – deals with individual contracts (private), but also with unions and
strikes (public).
• Commercial law – between businesses (private), but regulated by public acts
(e.g., Companies Act).

Courts and legal scholars often debate these hybrid fields — they show the dynamic
interaction between state interests and individual autonomy.

5. Functional Classifications

Sometimes, law is grouped based on purpose or field, such as:

• Environmental law
• Cyber law
• Medical law
• Sports law These cut across traditional categories, incorporating rules from
public, private, and even international law.

Example: Environmental law may include private remedies for pollution (delict),
public regulation (statutory compliance), and international treaties (climate change
agreements).

Quick Summary Chart: Classifications of Law

Classificatio Categories Key Distinction

n Type
By Content Substantive vs Procedural Rules vs enforcement mechanisms
By Geography National vs International Domestic vs cross-border law
By Power Public vs Private State vs individual interests
By Branch Criminal, Constitutional, Subject matter-based
Contract, etc.
By Function Labour, Environmental, Practical application across
Cyber, etc. multiple categories

Exam Tip: If you’re given a scenario (e.g., someone sues the government after
wrongful arrest), ask:

• Is this public or private law?

• Does it relate to substantive rights or procedural enforcement?
 • Is it influenced by international law?
• Could it involve a hybrid area, like environmental or labour law?

📘 Chapter 5: The Constitution — Structures of

Governance

Introduction: The Foundation of South African Government

The Constitution of the Republic of South Africa, 1996 is the supreme law of the land
(s 2). It not only enshrines the rights of people but also establishes the structure of
government, allocating powers among the three branches: the legislature,
executive, and judiciary. It reflects separation of powers, checks and balances,
democratic accountability, and cooperative governance.

Before 1994, the state operated under parliamentary sovereignty, meaning Parliament
could pass any law — even unjust ones. The current Constitution replaced this with
constitutional supremacy, ensuring all power is limited by law and subject to judicial
review.

1. Legislature (Makes Laws)

The legislative authority in South Africa is exercised at three levels:

• National: Parliament (National Assembly + National Council of Provinces)

• Provincial: Provincial Legislatures (one per province)
• Local: Municipal Councils

National Parliament

• National Assembly (NA): Directly elected; represents the people.

o Has the power to pass legislation, approve the budget, and hold the
executive accountable.
• National Council of Provinces (NCOP): Represents provincial interests.
o Ensures laws account for provincial concerns.

Example: A national law affecting water use must go through the NCOP because
water is a concurrent provincial competency.
2. Executive (Implements Laws)

The executive authority is held by:

• National Executive: President, Deputy President, and Ministers (s 85).

• Provincial Executives: Premiers and Executive Councils.
• Municipal Executives: Mayors and executive committees.

The President

• Head of state and government.

• Elected by the National Assembly.
• Must act within the bounds of the Constitution and law.

The President and ministers are responsible for:

• Developing and implementing policy.

• Administering national departments.
• Signing legislation into law (can refer bills back if unconstitutional).

Example: In President of the Republic of South Africa v SARFU, the court held that
the President must act lawfully and is subject to judicial review.

3. Judiciary (Applies and Interprets Laws)

The judiciary is independent and impartial (s 165). It ensures:

• That laws are interpreted in line with the Constitution.

• That unconstitutional conduct is struck down.
• That rights are enforced and disputes are resolved fairly.

Court Hierarchy:

1. Constitutional Court: Highest court on constitutional matters (and, since 2013,

any matter if it's in the interests of justice).
2. Supreme Court of Appeal (SCA): Final court of appeal on non-constitutional
matters.
3. High Courts: One in each province; handles serious civil and criminal matters.
4. Magistrates’ Courts: Deal with less serious matters.
5. Specialist courts: Labour Court, Land Claims Court, Children's Court, etc.
 Example: Glenister v President of RSA — the Constitutional Court ruled that the
state must ensure adequate, independent anti-corruption institutions, rooted in its
obligations under both domestic and international law.

4. Co-operative Government

South Africa’s state structure is based on three spheres:

• National
• Provincial
• Local

These are distinct, interdependent, and interrelated (s 40). The system avoids rigid
separation and instead promotes:

• Cooperation
• Mutual respect
• Assistance in service delivery

Disputes between these spheres must be resolved through constitutional

mechanisms (s 41), with courts only intervening as a last resort.

Example: If a provincial and national law conflict on a concurrent matter, courts

determine which prevails based on national interest and constitutional principles
(see s 146).

5. Democratic Features of Governance

The Constitution embeds the following principles:

• Regular elections (every five years)

• Multi-party democracy
• Accountability and transparency (e.g., Parliament holds Ministers
accountable)
• Public participation (e.g., open legislative process – see Doctors for Life
International v Speaker of the National Assembly)
 Case Highlight: In Doctors for Life, the Constitutional Court invalidated legislation
because the NCOP failed to adequately allow public participation — showing that even
the process of making law must be constitutional.

Quick Summary Chart: Structures of Governance

Branch Role Powers & Limits

Legislature Makes laws National Assembly + NCOP (subject to
Constitution)
Executive Implements laws President & Ministers (bound by legality and
accountability)
Judiciary Interprets laws Independent, enforces Constitution, reviews
state conduct
Spheres of National, Distinct but cooperative (s 40–41)
Government Provincial, Local

Exam Tip: For governance-related questions, always identify:

• Which branch or sphere is acting?

• Whether the action is within constitutional limits.
• Whether public participation, accountability, or cooperation was required or
breached.
• Case law that shows constitutional review in action (e.g., Doctors for Life,
Glenister, SARFU).

📘 Chapter 6: The Constitution — Human Rights

Introduction: The Shift to a Rights-Based Legal Order

The 1996 Constitution ushered in a transformative legal era, making human rights
the central concern of all law. Unlike the apartheid-era constitutions, which
entrenched state power without enforceable rights, the current Constitution:

• Guarantees a justiciable Bill of Rights (Chapter 2),

• Is supreme (s 2),
• Requires the development of all law in light of the Bill of Rights (s 39(2)).

This represents a shift to transformative constitutionalism — a vision where law not

only restrains state power but actively reshapes society by promoting dignity,
equality, and freedom (s 1(a)).
1. The Nature and Role of the Bill of Rights

The Bill of Rights (Chapter 2) is described as the “cornerstone of democracy” in South

Africa (s 7(1)). It:

• Applies to all law and conduct (s 8),

• Binds the state directly,
• Binds private individuals (when applicable),
• Requires all courts to interpret and apply law in accordance with its values.

Key Values Anchoring the Bill: Human dignity, equality, and freedom.

Example: In S v Makwanyane, the court abolished the death penalty, holding that it
violated dignity and life — even though most South Africans supported it. The court
prioritised rights over popular opinion.

2. Application of the Bill of Rights

Section 8 determines how the Bill applies:

• Vertical application: Between the state and individuals (e.g., unlawful police
conduct).
• Horizontal application: Between private parties (e.g., unfair dismissal by an
employer).

This means private power (like that of corporations, schools, etc.) can be tested against
constitutional rights.

Example: Daniels v Scribante — even a landowner must respect the dignity and
rights of a tenant under constitutional values.

3. Interpretation of the Bill of Rights

Section 39 guides courts in interpreting rights:

• Must promote the values of an open, democratic society based on dignity,

equality, and freedom (s 39(1)(a)).
 • Must consider international law (s 39(1)(b)).
• May consider foreign law (s 39(1)(c)).

Section 36 allows reasonable limitation of rights, but only if:

• The limitation is law of general application.

• It is reasonable and justifiable in an open and democratic society (taking into
account purpose, nature of right, less restrictive means, etc.)

Example: Prince v Minister of Justice (2018) — the court found the criminalisation of
private cannabis use unjustifiable under s 36 and declared it unconstitutional.

4. Categories of Rights

Rights in the Bill of Rights include:

A. Civil and Political Rights

These protect individuals against the state and uphold democracy:

• Right to life (s 11)

• Freedom of expression (s 16)
• Right to vote (s 19)
• Freedom of religion (s 15)
• Equality before the law (s 9)

Example: In Christian Education SA v Minister of Education, the court held that

religious schools could not claim exemption from laws banning corporal punishment,
because children's rights to dignity and protection from violence trumped religious
freedom.

B. Socio-Economic Rights

Guarantee access to basic necessities:

• Housing (s 26)
• Healthcare, food, water, and social security (s 27)
• Education (s 29)

These are subject to progressive realisation by the state within its available
resources.
 Key Case: Government of RSA v Grootboom — court held that housing programmes
must cater to the most vulnerable. The right to housing includes a positive duty to act
reasonably in policy-making.

C. Third-Generation / Collective Rights

Include:

• Environmental rights (s 24)

• Cultural and linguistic rights (ss 30–31)
• Right to access information (s 32)
• Right to just administrative action (s 33)

Example: Mazibuko v City of Johannesburg — court held that the state met its
minimum obligations in providing water, but emphasised that minimum standards
must not violate dignity.

5. Enforcement of Rights

Anyone can approach the courts when rights are threatened or violated (s 38). The
Constitution allows:

• Direct access to the Constitutional Court (in exceptional cases).

• Class actions and public interest litigation.
• Remedies such as:
o Declaration of invalidity
o Appropriate relief (e.g. structural interdicts)
o Compensation in some cases

Example: Khumalo v Holomisa — the court reaffirmed the horizontal application of

the Bill of Rights in defamation cases between private individuals.

Quick Summary Chart: Human Rights Under the Constitution

Feature Explanation
Supremacy Clause Constitution overrides all inconsistent laws or conduct
(s 2)
Application (s 8) Applies to state and sometimes private persons
 Limitation (s 36) Rights may be limited only if justifiable in a democratic
society
Interpretation (s 39) Guided by values, international and foreign law
Rights Categories Civil-political, socio-economic, and collective rights
Remedies (s 38) Courts grant relief, including declarations and
enforcement

Exam Tip: In human rights questions:

1. Identify the specific right(s) involved (e.g., dignity, housing, equality).

2. Check if there’s been a limitation — apply s 36.
3. Use relevant case law to show how the courts have applied or interpreted the
right.
4. Discuss whether it’s state conduct (vertical) or private conduct (horizontal).
5. Suggest the likely remedy (e.g., invalidation, interdict, compensation).

📘 Chapter 7: Private Law

Introduction: The Realm of Private Relationships

Private law governs relationships between private individuals or entities (like

companies). Its function is to protect personal and property rights, enforce obligations,
and resolve disputes fairly between equals — unlike public law, which deals with state
authority.

In South African law, private law is rooted in Roman-Dutch common law, but its
development is now guided by the Constitution, especially the values of dignity,
equality, and freedom. The courts are constitutionally mandated (s 39(2)) to develop
private law in a manner consistent with the spirit and purpose of the Bill of Rights.

1. Law of Persons

This area deals with the legal status of natural persons — including personality,
capacity, and legal subjectivity.

Key concepts:

• Legal subject: Someone who has rights and duties.

• Begins at birth, ends at death.
• A fetus may acquire rights in certain situations (e.g., inheritance).
 • Legal capacity includes:
o Capacity to have rights and duties
o Capacity to act (e.g., enter contracts — limited in children or people with
mental incapacity)

Example: A minor (under 18) may need a guardian’s consent to enter a binding
contract.

2. Family Law

Regulates marriage, divorce, adoption, maintenance, and parental responsibilities.

South Africa recognises:

• Civil marriages (Marriage Act 25 of 1961),

• Civil unions (Civil Union Act 17 of 2006),
• Customary marriages (RCMA 120 of 1998),
• Still evolving recognition of Muslim and Hindu marriages.

The Constitution requires equal recognition and protection of all family forms, and the
law has gradually become more inclusive and gender-neutral.

Case Example: Minister of Home Affairs v Fourie — court declared the exclusion of
same-sex couples from marriage unconstitutional.

3. Law of Succession

Determines how a person’s assets are distributed after death.

Two types:

• Testate succession: Where the deceased leaves a valid will.

• Intestate succession: If there is no will, the Intestate Succession Act 81 of
1987 governs.

Constitutional values of equality and dignity now influence this area. Discriminatory
rules in customary law or wills may be challenged.

Example: Bhe v Magistrate, Khayelitsha — rule of male primogeniture in customary

inheritance law was declared invalid for violating gender equality and children's rights.
4. Law of Property

Governs rights in or over things (not people).

Key features:

• Ownership: Full control over an object (use, sell, destroy).

• Possession: Physical control, may or may not include legal right.
• Limited real rights: E.g., servitudes, leases, mortgages.

Land and housing rights have a constitutional dimension — s 25 protects property but
also allows for redistribution and reform.

Example: Daniels v Scribante — the right to security of tenure under s 25(6) includes
the right to make property habitable, even without the owner’s consent.

5. Law of Obligations

Deals with legal duties to perform (or not perform) certain actions — mainly in:

• Contract
• Delict (Tort)
• Unjustified enrichment
• Negotiorum gestio (managing another’s affairs without their mandate)

A. Contract Law

Requires:

• Agreement (offer + acceptance)

• Capacity to contract
• Legality
• Possibility of performance
• Intention to be bound

Constitutional principles (e.g., good faith, fairness) increasingly influence contract

enforcement.
 Example: Barkhuizen v Napier — time-limitation clause in a contract was upheld
only because it wasn’t unreasonable or unjust.

B. Law of Delict

Applies when someone wrongfully and negligently or intentionally causes harm to

another.

Requirements:

• Conduct
• Wrongfulness
• Fault (intent/negligence)
• Causation
• Damage

Example: Carmichele v Minister of Safety and Security — developed delict to hold

the state liable for failing to protect someone from a known threat.

C. Unjustified Enrichment

One party is enriched at another’s expense without legal justification. The law may
compel restitution.

Quick Summary Chart: Branches of Private Law

Branch Focus Example Case or Law

Law of Legal subjectivity, capacity Minors’ contract capacity
Persons
Family Law Marriage, divorce, adoption, Fourie (same-sex marriage)
maintenance
Law of Inheritance, wills Bhe (customary inheritance rules)
Succession
Law of Rights in things (ownership, Daniels v Scribante (security of
Property possession) tenure)
Law of Duties between persons Barkhuizen (contracts); Carmichele
Obligations (contract/delict) (state delict)

Exam Tip: In private law scenarios:

 • Identify whether the case relates to persons, property, family, succession, or
obligations.
• Apply the common law rule, then check whether it’s affected by statutory law
or constitutional values.
• Refer to a case that illustrates constitutional development of private law
principles (especially from Carmichele, Daniels, Bhe, or Fourie).

📘 Chapter 8: Law and the Business World

Introduction: Law as the Framework for Commerce

Business and commerce thrive in an environment of certainty, enforceability, and

fairness — all of which are created and maintained through law. The legal system
ensures that:

• Commercial actors understand their rights and obligations,

• Contracts are enforceable,
• Business is conducted within ethical and legal bounds.

In South Africa, business law is influenced by Roman-Dutch private law, English

commercial law, modern statutory regulation, and the Constitution.

1. Legal Foundations of Commercial Activity

Business law regulates relationships between individuals or companies involved in

trade, industry, and finance. Core areas include:

• Contracts (e.g. sale, lease, agency)

• Company law
• Labour law
• Insolvency
• Consumer protection
• Tax and financial regulation

Example: If two businesses enter a contract and one defaults, contract law
determines remedies like specific performance or damages.
2. Company Law

Company law governs the formation, operation, and dissolution of companies. Key
legislation:

• Companies Act 71 of 2008 – regulates types of companies (private, public, non-

profit), directors’ duties, shareholder rights, and corporate governance.

Key features of companies:

• Juristic personhood – the company has its own legal identity.

• Limited liability – shareholders aren’t personally liable for debts.
• Perpetual succession – the company continues to exist despite changes in
ownership.

Example: A company may be sued or own property in its own name, not in the
names of its directors.

3. Law of Contract in Business

Contract law is central to commerce. Businesses rely on agreements for:

• Sales of goods,
• Services rendered,
• Employment,
• Partnerships.

Contracts must:

• Comply with general legal requirements (agreement, legality, possibility,

capacity),
• Avoid unfair terms (tested through public policy and constitutional values),
• Be honoured, failing which remedies apply (damages, interdicts, cancellation,
etc.)

Example: A lease agreement between a landlord and a business tenant is

enforceable, but must not contain unconstitutional or unconscionable clauses.
4. Consumer Protection

The Consumer Protection Act 68 of 2008 (CPA) gives consumers stronger rights and
imposes obligations on businesses.

Consumer rights include:

• Right to fair value and quality,

• Right to disclosure of information,
• Protection against unfair, misleading or deceptive conduct,
• Protection against unfair contract terms.

Example: A retailer who sells defective goods may be required to repair, replace, or
refund under the CPA.

The CPA reflects a constitutional commitment to human dignity, equality, and

freedom in consumer transactions.

5. Labour Law and Employment Relationships

Employment is vital to economic and human development. Labour law ensures:

• Fairness in hiring, conditions of service, and dismissal,

• Protection against unfair labour practices,
• Right to unionise and strike (s 23 of the Constitution).

Key legislation:

• Labour Relations Act 66 of 1995 (LRA) – governs collective bargaining,

dismissals, strikes.
• Basic Conditions of Employment Act 75 of 1997 (BCEA) – sets minimum
working standards (hours, leave, pay).
• Employment Equity Act 55 of 1998 – addresses discrimination and promotes
workplace transformation.

Example: An employee unfairly dismissed can take the case to the CCMA
(Commission for Conciliation, Mediation and Arbitration).
6. Insolvency and Business Rescue

If a business is unable to pay its debts:

• Insolvency law determines how assets are sold and creditors are paid (fairly
and in order of priority).
• Business rescue, under the Companies Act, allows financially distressed
companies to restructure instead of liquidating.

Example: Creditors may initiate sequestration or liquidation proceedings if a debtor

cannot meet obligations.

7. Commercial Dispute Resolution

Disputes in business can be resolved via:

• Litigation in civil courts,

• Arbitration (often quicker and private),
• Mediation or negotiation,
• Tribunals (e.g. National Consumer Tribunal).

Example: A dispute between a supplier and retailer under the CPA may go to the
Consumer Tribunal instead of a court.

Quick Summary Chart: Law in the Business World

Area of Law Description & Key Law Example Use Case

Contract Enforceable agreements; Service agreements, commercial
Law public policy scrutiny leases
Company Juristic persons, directors’ Registering and managing a
Law duties, governance company
Consumer Fairness, transparency, Refund or replacement after
Protection remedies for faulty goods purchasing defective product
Labour Law Employment standards and Unfair dismissal claim at the CCMA
dispute resolution
Insolvency Debt relief, liquidation, Saving a business through business
& Rescue business restructuring rescue proceedings
Dispute Litigation, arbitration, Commercial contract dispute
Resolution mediation resolved via arbitration
 Exam Tip: In commercial law questions, ask:

• What is the legal relationship? (contract, employment, consumer, etc.)

• Which law applies (CPA, Companies Act, BCEA, etc.)?
• Are constitutional values like fairness or dignity relevant?
• What is the most suitable remedy or forum?

📘 Chapter 9: Law of Civil Procedure

Introduction: The Framework for Enforcing Private Rights

Civil procedure governs the process through which private disputes are resolved in
court. It outlines how legal actions are initiated, conducted, and finalised when one
party claims their rights have been infringed by another. This includes disputes over
contracts, delictual harm, property, family matters, and more.

The rules of civil procedure are vital for ensuring that justice is not only done, but seen
to be done in a fair, orderly, and constitutional manner.

1. Sources of Civil Procedure

Civil procedure in South Africa is regulated by:

• Rules of Court (High Court and Magistrates’ Court Rules),

• Legislation (e.g., Magistrates’ Courts Act 32 of 1944; Superior Courts Act 10 of
2013),
• Common law,
• Case law, and
• The Constitution, which ensures that the process respects fair trial rights
under s 34 and other fundamental rights.

Example: s 34 of the Constitution guarantees the right to have disputes resolved by

a court in a fair public hearing.

2. Court Structure and Jurisdiction

Different courts hear different matters depending on:

 • Subject matter (civil vs criminal),
• Monetary value of the claim, and
• Geographical location.

Courts in Civil Matters:

• Magistrates’ Courts: Lower courts dealing with less complex, lower-value

cases.
o Jurisdiction limited to claims up to R400,000 in civil matters.
• High Courts: Hear more serious civil cases and appeals from Magistrates’
Courts.
o Have inherent jurisdiction to hear any matter unless assigned elsewhere.
• Supreme Court of Appeal (SCA): Hears civil appeals (excluding direct
constitutional issues).
• Constitutional Court: Hears cases of constitutional importance, including
civil disputes involving rights.

Example: A claim for damages exceeding R400,000 must be brought in the High
Court.

3. Parties in Civil Proceedings

• Plaintiff: The party who initiates the action (also “applicant” in motion
proceedings).
• Defendant: The party being sued (or “respondent”).
• May include natural persons, companies, government organs, or non-profits.

Legal representation is common, but parties may appear in person, especially in the
lower courts.

4. Stages of Civil Action (Action Proceedings)

These follow a trial-based format, with oral evidence:

1. Summons: Plaintiff serves a summons on the defendant, setting out the claim.
2. Plea: Defendant files a plea (defence), possibly with a counterclaim.
3. Close of pleadings: After exchanges, pleadings are “closed”.
4. Discovery: Each party discloses relevant documents.
 5. Trial: Evidence and witnesses presented; judge makes findings of fact and law.
6. Judgment: Final order is granted, enforceable by writ or execution.

Example: A breach of contract claim where the parties disagree on facts would go
through action proceedings.

5. Motion Proceedings

Used when there’s no dispute of facts, and parties rely on affidavits and legal
argument — no oral evidence.

Process:

• Notice of motion + supporting affidavit.

• Respondent files opposing affidavit.
• Applicant may file a replying affidavit.
• Matter is argued before a judge.

Example: An application to compel someone to comply with a contractual

obligation with no factual dispute would be resolved via motion proceedings.

6. Remedies and Enforcement

Common civil remedies:

• Specific performance: Court compels performance of an obligation.

• Damages: Monetary compensation for loss.
• Interdict: A restraining or compelling order.
• Declaratory order: A declaration of rights or obligations.

Enforcement mechanisms:

• Warrants of execution (attach property),

• Garnishee orders (deduct from salary),
• Contempt of court for non-compliance.

Example: If a court orders a tenant to vacate a property and they refuse, a warrant
of eviction can be issued.
7. Appeals and Reviews

• Appeal: Challenges the correctness of the judgment (facts or law).

• Review: Challenges the fairness or legality of the process.

Higher courts can confirm, amend, or overturn lower court decisions.

Example: A party can appeal a Magistrate’s Court decision to the High Court if the
outcome was unjust or legally flawed.

Quick Summary Chart: Civil Procedure

Feature Description Example

Sources Court rules, legislation, common law, Magistrates’ Courts Act; s
Constitution 34 Constitution
Courts Hierarchical structure: Magistrate → High High Court hears large or
Court → SCA → ConCourt complex civil claims
Parties Plaintiff (or applicant) vs. Defendant (or A company suing a supplier
respondent) for breach of contract
Action Trial format with pleadings, evidence, Personal injury claim
Proceedin cross-examination
gs
Motion Decided on affidavit; no dispute of fact Urgent interdict to stop
Proceedin unlawful eviction
gs
Remedies Damages, interdicts, performance, Order to refund money or
declaratory relief deliver goods
Appeal/R Appeal = merits; Review = Appeal against an incorrect
eview procedure/process interpretation of law

Exam Tip: For civil procedure questions:

1. Identify whether action or motion proceedings apply — is there a dispute of

fact?
2. Determine jurisdiction — which court should hear the case?
3. Apply the relevant steps in sequence — e.g., summons, plea, discovery, trial.
4. Mention possible remedies and enforcement tools.
5. Show how s 34 and constitutional values influence fairness of process.
📘 Chapter 10: Law of Criminal Procedure

Introduction: Justice in the Criminal Context

Criminal procedure governs how the state enforces criminal law through the courts. It
involves the process from arrest to trial, conviction, and sentencing. Unlike civil law,
where private individuals seek relief, criminal cases are prosecuted by the state,
which acts on behalf of society.

The aim is to balance two core goals:

• Crime control: Efficient prosecution and punishment.

• Due process: Protection of the accused's constitutional rights (especially the
right to a fair trial, s 35 of the Constitution).

1. Sources of Criminal Procedure

Criminal procedure is primarily regulated by:

• Criminal Procedure Act 51 of 1977 (CPA),

• The Constitution (especially s 35),
• Case law, and
• Common law principles.

Example: Section 35 of the Constitution ensures that arrested and accused persons
are treated fairly and tried lawfully.

2. Stages of Criminal Procedure

A. Investigation Phase

• Starts when a crime is reported.

• Police investigate and collect evidence.
• May involve arrest, search and seizure, and interrogation.

Rights during arrest (s 35(1)):

• Right to remain silent,

 • Right to be informed of the reason for arrest,
• Right to consult a lawyer,
• Right to appear in court within 48 hours.

B. Prosecution Phase

• Director of Public Prosecutions (DPP) decides whether to prosecute.

• Prosecution must prove the accused’s guilt beyond reasonable doubt.
• Charge is set out in a charge sheet or indictment.

C. Pre-Trial Proceedings

• Bail application: Accused can apply for release before trial.

• Plea proceedings: Accused pleads guilty or not guilty.
• If guilty, court proceeds to sentencing (if plea accepted).
• If not guilty, trial begins.

D. Trial Phase

Key features:

• Adversarial system: Prosecution vs defence.

• Presumption of innocence until proven guilty.
• Rules of evidence and procedure ensure fairness.

Example: The accused has a right to silence and cannot be compelled to testify (s
35(3)(h)).

E. Judgment and Sentencing

• If guilty: The court may impose fine, imprisonment, correctional supervision,

or suspended sentence.
• If not guilty: The accused is acquitted and released.

Sentencing must consider:

• The seriousness of the crime,

• The interests of society,
• The offender’s personal circumstances (age, background),
• Constitutional values (e.g. rehabilitation over vengeance).
3. Constitutional Rights of the Accused

Section 35 of the Constitution outlines the rights of arrested, detained, and accused
persons, including:

• The right to a fair trial (s 35(3)),

• To be presumed innocent,
• To remain silent,
• To be informed of charges,
• To have legal representation,
• To adduce and challenge evidence,
• To have proceedings interpreted if needed,
• Not to be tried twice for the same offence (double jeopardy),
• Right to appeal or review the verdict.

Key Case: S v Makwanyane — although primarily about the death penalty, this case
reinforced the values of dignity, life, and fairness that underlie criminal justice.

4. Plea Bargaining and Diversion

Plea Bargaining

• The accused pleads guilty in exchange for a reduced sentence or lesser

charge.
• Encouraged to relieve burdened courts, but must be fair and voluntary.

Diversion

• In less serious cases (especially involving juveniles), the matter can be diverted
away from the formal criminal justice system.
• Focuses on rehabilitation and restoration instead of punishment.

Example: A juvenile charged with shoplifting may attend a life-skills program rather
than face trial.
5. Appeals and Reviews

• Accused can appeal conviction or sentence to a higher court.

• Review procedures ensure legal and procedural fairness.
• Constitutional Court may be approached if there’s a rights-based issue.

Quick Summary Chart: Criminal Procedure

Stage Process Description Example or

Protection
Investigation Arrest, search, evidence collection s 35(1) rights
apply
Prosecution DPP decides to prosecute, sets out charges Charge sheet filed
Pre-Trial Bail, plea, legal preparation Right to legal
counsel
Trial Adversarial hearing, evidence, presumption s 35(3) guarantees
of innocence
Judgment & Verdict and sentencing considerations Rehabilitation
Sentencing focus
Plea Bargaining Guilty plea in exchange for reduced penalty Must be voluntary
Diversion Alternative to prosecution for Focus on
minor/juvenile offences restoration
Appeal/Review Challenge verdict or procedure Higher court
involvement

Exam Tip: For criminal procedure questions:

1. Identify which stage of the process is being discussed (arrest? trial?

sentencing?).
2. Always mention constitutional rights under s 35.
3. Discuss whether proper procedures were followed — was the arrest lawful?
Was bail fairly denied?
4. Cite key protections (e.g. presumption of innocence, right to silence).
5. In sentencing questions, mention rehabilitation, proportionality, and fairness.

📘 Chapter 11: Law of Evidence

Introduction: Proving Facts in Court

The law of evidence governs the rules and principles that determine:
 • What may be presented in court,
• How it must be presented, and
• What weight it carries in proving or disproving facts.

Its role is critical in both civil and criminal trials, as it ensures that findings of guilt,
liability, or innocence are based on reliable, relevant, and legally admissible
material. The system must balance efficiency with fairness, guided heavily by
constitutional values (especially the right to a fair trial in s 35 of the Constitution).

1. Sources of the Law of Evidence

• Common law (Roman-Dutch origins, modified by case law),

• Statutory law (e.g., Civil Proceedings Evidence Act 25 of 1965, Criminal
Procedure Act 51 of 1977),
• Constitutional rights — especially s 35 (rights of accused) and s 36
(limitations),
• Case law interpreting admissibility and fairness.

Example: Evidence obtained through torture or coercion will be excluded as it

violates the right to a fair trial.

2. Relevance and Admissibility

• Relevance: Evidence must logically relate to the facts in dispute.

• Admissibility: Even relevant evidence can be excluded if obtained unlawfully or
if it violates rights or public policy.

Key principle: All admissible evidence must be relevant, but not all relevant
evidence is admissible.

Example: A confession is relevant, but if obtained under duress, it may be ruled

inadmissible.
3. Types of Evidence

A. Oral Evidence

• Given by witnesses under oath.

• Direct testimony (what a person saw/heard) is preferred.

B. Documentary Evidence

• Written records, contracts, reports, electronic messages.

• Must usually be authenticated to be admitted.

C. Real Evidence

• Physical objects (weapons, fingerprints, stolen goods).

• Must be identified and linked to the case.

D. Circumstantial Evidence

• Indirect evidence from which facts are inferred.

• Can be powerful but must form a complete and logical chain.

Example: Fingerprints at a crime scene may prove presence (real evidence), even if
no one saw the act.

4. Rules Affecting Admissibility

A. Hearsay Rule

• Hearsay is a statement made outside of court, presented to prove the truth of

that statement.
• Generally inadmissible, unless it fits an exception (e.g. dying declaration,
business records, admission by a party).

Statute: The Law of Evidence Amendment Act 45 of 1988 allows hearsay with
consent of parties, or where the court finds it just to admit.
B. Character Evidence

• In criminal trials, evidence about the accused's character is usually

inadmissible unless they raise it first.
• Protects against bias and unfair prejudice.

C. Opinion Evidence

• Generally inadmissible unless from an expert witness.

Example: A psychologist’s opinion on a party’s mental state may be accepted if they

are qualified and impartial.

5. Burden and Standard of Proof

• Burden of proof: Who must prove what?

o In criminal cases: Prosecution must prove guilt.
o In civil cases: Plaintiff must prove their claim.
• Standard of proof:
o Criminal cases: Beyond reasonable doubt.
o Civil cases: On a balance of probabilities.

Example: In a criminal trial, any reasonable doubt must result in acquittal; in civil
cases, the more likely version wins.

6. Constitutional Influence

Section 35(5) mandates the exclusion of evidence if:

• It was obtained in a manner that violates rights, and

• Its admission would render the trial unfair or harm the administration of
justice.

Key Case: S v Tandwa — confessions obtained through threats and promises were
excluded; trial fairness was compromised.
7. Privileges and Protection

Certain evidence may be excluded to preserve rights:

• Legal professional privilege: Communications with your lawyer are

confidential.
• Spousal privilege: In some cases, spouses may not be compelled to testify.
• Self-incrimination protection: No one may be forced to confess guilt.

Example: An accused may refuse to answer a question if it would reveal

incriminating evidence (right to silence).

Quick Summary Chart: Law of Evidence

Principle Description Example

or Type
Relevance Evidence must relate logically to the A CCTV video of the incident
facts
Admissibi May be excluded if unfair or unlawful Coerced confession excluded
lity
Hearsay Out-of-court statements usually “He told me he saw the
inadmissible accused do it”
Opinion Only experts may give opinions Psychologist testifies about
Evidence mental fitness
Character Not allowed unless accused opens the Past convictions can't be used
Evidence door unless permitted
Burden of Plaintiff/prosecutor bears burden State must prove guilt
Proof
Standard Criminal: beyond reasonable doubt; Accused must be acquitted if
of Proof Civil: balance of probabilities reasonable doubt exists
Privileges Lawyer-client, spousal, and self- Refusal to testify to avoid self-
incrimination protections incrimination

Exam Tip: For evidence questions:

1. Ask: Is the evidence relevant?

2. Is it admissible — or excluded due to hearsay, unfairness, or privilege?
3. Who bears the burden of proof, and what standard applies?
4. What constitutional rights are implicated — s 35, right to silence, right to a fair
trial?
 5. Apply appropriate case law or statutory principles to justify inclusion or
exclusion.

📘 Chapter 12: Legal Interpretation

Introduction: Giving Meaning to Legal Texts

Legal interpretation is the process of determining the meaning and application of

legal texts — especially statutes, contracts, constitutional provisions, and court
judgments. Since language can be ambiguous, legal interpretation is vital in resolving
disputes, guiding judicial decisions, and applying law consistently.

Interpretation is not a mechanical act; it is shaped by:

• Textual meaning,
• Context,
• Purpose (teleology), and
• Constitutional values.

1. Types of Legal Texts Requiring Interpretation

• Legislation (statutes and regulations),

• Contracts (private agreements),
• Constitutional provisions,
• Judgments (precedent),
• Wills and other legal instruments.

Each may be interpreted using different emphases, but general principles apply
across the board.

2. The Constitutional Imperative

Section 39(2) of the Constitution requires that:

“Every court… must promote the spirit, purport and objects of the Bill of Rights when
interpreting any legislation…”
This means all legal interpretation must be informed by constitutional values,
including dignity, equality, and freedom. The plain meaning of a text is important, but
it must be read in context, with justice and rights in mind.

Key Case: Investigating Directorate v Hyundai — Court emphasised that statutes

must be interpreted in light of the Bill of Rights, and narrow interpretations that limit
rights must be avoided if alternatives are available.

3. Approaches to Interpretation

A. Literal (Textual) Approach

• Focuses on the plain, ordinary meaning of the words.

• Criticised for ignoring context, purpose, and justice.

Example: The term “vehicle” in a bylaw may literally include bicycles and
wheelchairs, but context may require a narrower meaning.

B. Purposive (Teleological) Approach

• Emphasises the purpose or objective of the legal provision.

• Favoured in constitutional and human rights matters.

Example: The purpose of equality legislation is to remedy past disadvantage, so

courts may interpret words broadly to promote substantive equality.

C. Contextual (Systemic) Approach

• Words must be interpreted in the context of the whole statute, and even
broader legal system.
• Includes historical, social, and linguistic context.

Example: Interpreting a provision in the Companies Act requires reading it with

other sections, and understanding commercial realities.

4. Presumptions and Aids to Interpretation

Courts use certain interpretive presumptions and tools when the meaning is unclear.
A. Common Presumptions

• The legislature does not intend absurd results.

• Law should be interpreted to promote justice and constitutional compliance.
• Rights-limiting provisions must be strictly construed.

B. Internal Aids

• The long title, preamble, definitions section, headings, and structure of the
text.

C. External Aids

• Hansard (parliamentary debates), law commission reports, dictionaries, or

international law.

Example: If a word is ambiguous, courts may consult legislative debates to

understand Parliament’s intention.

5. Constitutional Interpretation

This is a specialised field. Courts must interpret the Constitution to:

• Promote foundational values (s 1),

• Uphold rights (s 7),
• Ensure government accountability, and
• Support transformative goals.

Key Case: S v Makwanyane — Court interpreted the right to life in light of dignity,
leading to the abolition of the death penalty, despite public support for it.

6. Statutory Interpretation in Practice

Interpreting legislation often involves:

• Resolving ambiguity,
• Dealing with conflicts between provisions,
• Ensuring the law evolves with social changes and constitutional norms.
 Example: Barkhuizen v Napier — a time-limitation clause in a contract was
interpreted through public policy and constitutional fairness, not just its literal
wording.

7. The Role of the Judiciary

Judges are not merely mouthpieces for Parliament — they are constitutional
interpreters. Their role includes:

• Balancing certainty and flexibility,

• Ensuring justice and coherence,
• Developing the common law and interpreting legislation in transformative
ways.

Quick Summary Chart: Legal Interpretation

Method/To Description Example Use

ol
Literal Plain meaning of the text “Vehicle” in traffic law
Approach interpreted narrowly or broadly
Purposive Focus on the objective or spirit of Equality laws promoting redress
Approach the law
Contextual Interpret in relation to structure, Reading all sections of a statute
Approach other provisions, and context together
Presumpti Avoid absurdity, uphold Narrow construction of rights-
ons constitutional values limiting statutes
Internal Preamble, headings, definitions Using the long title to
Aids understand legislative intent
External Parliamentary records, dictionaries, Consulting Hansard debates or
Aids reports prior case law
s 39(2) All law interpreted in light of Bill of Hyundai case — avoiding unjust
Interpretati Rights limitations on liberty
on

Exam Tip: When interpreting any legal provision:

1. Ask: What is the ordinary meaning of the words?

2. Then: What is the purpose of this law or contract?
3. Consider context — structure of the text, broader law.
4. Apply constitutional values — does this promote dignity, equality, fairness?
 5. Mention cases like Hyundai, Makwanyane, Barkhuizen to show how
interpretation balances rights and logic.

📘 Chapter 13: The Legal Profession

Introduction: Legal Practice in South Africa

The legal profession plays a vital role in upholding justice, advancing rights, and
ensuring the legal system functions effectively. South Africa’s legal profession is
divided into two main branches:

• Attorneys, who engage directly with clients and offer a wide range of services,
• Advocates, who specialise in court work and legal argumentation.

Legal practitioners are officers of the court, bound by duties to the law, their clients,
the courts, and the public.

The profession has undergone transformation in line with the Constitution to ensure
access to justice, accountability, and diversity.

1. The Legal Practice Act 28 of 2014

This is the central statute governing legal professionals in South Africa. It:

• Created a single unified profession under the Legal Practice Council (LPC),
• Sets out the training, admission, conduct, and discipline of legal practitioners,
• Promotes access to legal services, transformation, and public confidence in
the legal system.

Key Purpose: To democratise the legal profession and align it with constitutional
values.

2. Attorneys

• Provide legal advice and services directly to the public.

• Draft legal documents, contracts, wills, and litigation papers.
• Represent clients in lower courts; can appear in higher courts with the necessary
right of appearance.
 • Typically run law firms or work in legal departments.

Training Path:

1. LLB degree,
2. Articles of clerkship (currently transitioning into practical legal training),
3. Practical Legal Training (PLT),
4. Board exams, and
5. Admission by the High Court.

3. Advocates

• Specialise in court advocacy, legal opinions, and trial strategy.

• Usually briefed by attorneys to represent clients in higher courts.
• Traditionally operate as independent practitioners in "chambers".

There are:

• Junior advocates, and

• Senior advocates (silks or SCs), recognised for excellence and experience.

Training Path:

1. LLB degree,
2. Pupillage (full-time apprenticeship under a senior advocate),
3. Bar exam (run by the General Council of the Bar),
4. Admission and enrolment as an advocate.

4. Differences Between Attorneys and Advocates

Feature Attorneys Advocates

Client
Deal directly with clients Typically briefed by attorneys
Contact
General practice; documentation Focused on court work and legal
Scope
and court work argument
Training
Articles + Board exams Pupillage + Bar exams
Path
Indepen Usually self-employed and in
Can be employees or firm partners
dence private chambers
Recent reforms allow attorneys to appear in superior courts, blurring the traditional
separation.

5. Legal Ethics and Duties

All legal practitioners must:

• Uphold the Constitution,

• Act with integrity, confidentiality, and diligence,
• Avoid conflicts of interest,
• Respect court decorum, and
• Promote access to justice.

Breaches can lead to:

• Disciplinary action by the Legal Practice Council,

• Suspension or striking off the roll.

Example: An attorney who misappropriates trust funds may be permanently

disbarred.

6. Other Legal Professionals

• State Attorneys: Represent the state in litigation.

• State Advocates / Prosecutors: Work for the National Prosecuting Authority
(NPA) — conduct criminal prosecutions on behalf of the state.
• Legal Advisers: In-house lawyers for businesses, municipalities, or government
departments.
• Judicial Officers: Magistrates and judges — often appointed from senior legal
professionals.

Example: A prosecutor in a criminal trial is an officer of the state but must act
impartially and ethically.
7. Access to the Profession and Transformation

Historically, the profession was exclusive and unrepresentative. Today, transformation

is a constitutional imperative (s 9 – equality).

Efforts include:

• Demographic and gender diversity,

• Support for disadvantaged law students,
• Increasing access to legal services in rural and under-resourced areas,
• Encouraging pro bono (free) services for the poor.

Case Support: The LPC and legal aid bodies support this transformation mission.

Quick Summary Chart: The Legal Profession

Role Function Regulation/Pathway

Attorney Direct client work, documents, Articles, PLT, board exams, LPC
court appearances registration
Advocate Court advocacy, legal opinions Pupillage, Bar exams, admission
by High Court
Legal Unified legal profession under one Legal Practice Council governs
Practice council all practitioners
Act
Ethical Integrity, fairness, accountability Constitution, LPC Code of
Duties Conduct
Transforma Broaden access and diversity in Legal aid, pro bono, support for
tion profession entry

Exam Tip: For legal profession questions:

1. Identify the type of practitioner involved.

2. Discuss their function, training, and regulation.
3. Mention the role of the Legal Practice Act and the Legal Practice Council.
4. Always link to constitutional values — dignity, access to justice,
transformation.
5. Use case examples or scenarios to highlight duties or misconduct.
📘 Chapter 14: Legal Writing and Research

Introduction: The Lifeblood of Legal Thinking

Legal writing and research are core skills for all legal professionals and law
students. They form the basis of:

• Legal argumentation,
• Court pleadings,
• Contracts and legal opinions, and
• Academic scholarship.

Unlike creative writing, legal writing is objective, precise, well-structured, and

evidence-based. It must persuade through logical reasoning, not emotion. Legal
research enables the writer to support claims with authoritative sources — statutes,
case law, and academic commentary.

1. Purpose and Nature of Legal Writing

Legal writing must:

• Present a clear legal question,

• Apply relevant legal rules to facts,
• Use appropriate legal sources,
• Be coherent, concise, and formal,
• Avoid personal opinion unless legally reasoned.

Example: A legal opinion on whether a contract is enforceable must focus on

statutory requirements, case law, and facts — not the writer’s personal feelings.

2. Types of Legal Writing

• Legal opinions: Objective advice to a client or colleague.

• Court documents: Pleadings (summons, affidavits, notices of motion).
• Contracts and legal instruments: Must reflect precise intentions and
obligations.
• Research essays/dissertations: Academic analysis of legal issues.
 • Case notes and commentaries: Focused discussion on judicial decisions.

Each has its own format, audience, and purpose, but all share the need for legal
clarity and authority.

3. Structure of Legal Writing

Most legal documents follow the IRAC model (Issue, Rule, Application, Conclusion):

• Issue: Identify the legal question.

• Rule: State the legal principle (legislation, precedent).
• Application: Apply the rule to the facts.
• Conclusion: State the outcome or recommendation.

Example: A case note on Barkhuizen v Napier would:

1. State the issue (enforceability of time-limitation clause),

2. Explain the applicable rule (public policy, constitutional values),
3. Apply the rule to the facts,
4. Conclude on the fairness of the clause.

4. Legal Research Process

Effective legal research involves:

1. Identifying the issue or topic.

2. Finding authoritative sources (statutes, case law, journals).
3. Reading critically — identifying key principles, arguments, and reasoning.
4. Organising and analysing information to answer the legal question.

Key Sources:

• Primary sources: Constitution, legislation, court decisions.

• Secondary sources: Academic articles, textbooks, commentaries.

Example: Research on same-sex marriage would require:

• Constitution (s 9 – equality),
• Fourie case,
 • Civil Union Act,
• Scholarly articles on family law reform.

5. Referencing and Plagiarism

Plagiarism is a serious academic and ethical offence. Legal writing must:

• Credit all sources using correct referencing styles (e.g., SA citation style,
footnotes, or in-text citations),
• Distinguish clearly between original analysis and sourced material,
• Use quotation marks for direct quotes and paraphrasing where appropriate.

Example: Failing to cite a judgment when quoting its holding constitutes plagiarism.

6. Style and Language in Legal Writing

Legal writing should be:

• Objective – avoid emotional or biased language,

• Clear – use simple, formal language; no unnecessary jargon,
• Concise – avoid verbosity and repetition,
• Logical – ideas must flow in a structured and coherent manner.

Bad example: “I think the court was really unfair.”

Good example: “The court’s decision failed to consider the accused’s right to legal
representation, contrary to s 35(3)(f) of the Constitution.”

7. Technology and Legal Research Tools

Modern legal research uses:

• Online databases: SAFLII, Juta, LexisNexis, Sabinet.

• Library catalogues and indexes: For finding books and journals.
• Search techniques: Boolean operators (AND, OR, NOT), quotation marks for
phrases.
 Tip: Searching "constitutional right to housing" AND Grootboom will
produce more precise results than a general search.

Quick Summary Chart: Legal Writing and Research

Componen Description Example or Tool

t
Purpose To communicate legal reasoning clearly Legal opinion, court
and persuasively document
Structure Issue, Rule, Application, Conclusion Used in case notes or legal
(IRAC) memos
Types of Opinions, pleadings, contracts, essays, Academic and professional
Writing case notes contexts
Research Constitution, statutes, case law, SAFLII, Juta, LexisNexis
Sources journals
Referencin Avoid plagiarism, use proper citations Footnotes, bibliography
g
Writing Objective, concise, formal, clear Avoid personal opinion or
Style emotional tone
Tools & Digital platforms for legal information SAFLII, Sabinet, Boolean
Databases search

Exam Tip: If asked to discuss legal writing or research:

1. Explain the function and form of legal writing.

2. Describe the research process and types of sources.
3. Mention the IRAC structure for organising legal analysis.
4. Highlight the importance of referencing and avoiding plagiarism.
5. Emphasise clarity, objectivity, and authority in all legal communication.

📘 Chapter 15: Law and Justice

Introduction: Is Law Always Just?

This chapter tackles the profound and complex question: What is justice, and how is it
related to law? While law is often viewed as the tool to deliver justice, legal history
(especially in South Africa) shows that laws can exist without being just — apartheid
being the most glaring example.

Justice refers to the ethical ideal that law should strive to uphold: fairness, equality,
and dignity. But defining justice is neither neutral nor universal — it is shaped by
philosophical, political, and cultural perspectives, and in South Africa, by a legacy of
inequality and the aspiration for transformation.

1. Competing Views of Justice

A. Formal Justice

• Requires that like cases be treated alike and legal rules be applied
consistently.
• Focuses on procedural fairness rather than the content of the law.

Example: A tax law that is applied equally to everyone may be formally just — even if
it disproportionately affects the poor.

B. Substantive (Material) Justice

• Considers the content and outcome of laws: are they fair in effect?
• Central to transformative constitutionalism, which demands substantive
equality and corrective justice in South Africa.

Example: Affirmative action policies may treat people differently to achieve true
equality — aligning with substantive justice.

2. Philosophical Theories of Justice

Several schools of thought offer competing frameworks for justice:

A. Utilitarianism (Bentham, Mill)

• Justice is achieved by maximising overall happiness.

• Criticised for possibly justifying harmful policies if they benefit the majority.

B. Liberalism (Rawls)

• Emphasises freedom, equality, and rights.

• Rawls' "veil of ignorance" test: Just laws are those you'd accept if you didn’t
know your status in society.
C. Communitarianism / African Philosophy

• Justice is relational and rooted in community and ubuntu.

• Values like restoration, dignity, and interconnectedness are central.

Example: Traditional dispute resolution methods in customary law often aim to

restore social harmony, not punish.

D. Critical Legal Theories

• Challenge the idea that law is neutral.

• Feminist legal theory, critical race theory, and postcolonial theory highlight
how law can reinforce power and privilege.
• Justice requires transforming the legal system to be inclusive and liberatory.

3. Law and Justice in South African History

• Under apartheid, laws were passed that violated human rights but were
formally valid.
• The 1996 Constitution reversed this by requiring that all law be consistent with
justice, rights, and democratic values.

Key Case: S v Makwanyane — the death penalty was abolished, not because it was
unpopular, but because it was unjust, violating the right to life and dignity.

4. Transformative Constitutionalism

Coined by Karl Klare, this idea means using the Constitution to fundamentally reshape
society. It seeks to:

• Break with the past (colonialism, apartheid, patriarchy),

• Advance social justice,
• Require that law be interpreted and developed in light of constitutional
morality.

Example: In Daniels v Scribante, the court held that the right to security of tenure
includes the right to make a dwelling habitable — a clear case of transforming private
property law in service of justice.
5. Justice in Customary Law

• Customary systems often emphasise restorative rather than retributive

justice.
• Dispute resolution is community-based, and remedies aim to restore
relationships, not merely punish.

Example: Compensation for harm (instead of prison) reflects a justice system

focused on healing and balance, resonating with ubuntu.

6. The Role of Legal Practitioners in Promoting Justice

Lawyers, judges, and scholars must:

• Ensure that the law is not just applied, but questioned and developed,
• Act as agents of social justice and transformation,
• Challenge legal rules that perpetuate inequality or exclude vulnerable groups.

Quick Summary Chart: Law and Justice

Theory / Concept Key Focus / Contribution Example / Implication

Formal Justice Treat like cases alike Neutral rule application (even
if outcome is unfair)
Substantive Fair outcomes; real equality Affirmative action, social
Justice redress
Utilitarianism Greatest happiness for the May justify harmful acts to
greatest number minorities
Rawlsian Fair laws under veil of Social and economic equality
Liberalism ignorance as a justice requirement
Ubuntu / African Communal harmony, dignity, Customary law dispute
Justice restoration resolution
Critical Legal Law reinforces power; must be Feminist/race-based critiques
Theory transformed of traditional legal systems
Transformative Using law to achieve social Daniels v Scribante,
Constitutionalis justice and structural change Makwanyane
m
 Exam Tip: For justice questions:

1. Define and distinguish formal vs. substantive justice.

2. Explain philosophical perspectives (Rawls, utilitarianism, ubuntu).
3. Discuss justice in South African legal history and under the 1996 Constitution.
4. Mention case law that exemplifies justice in action (Makwanyane, Daniels, Bhe).
5. Show how the law can either advance or obstruct justice — and the
responsibility of the legal profession to act as a catalyst for change.

📘 Chapter 16: Legal Pluralism

Introduction: More Than One Law in One Land

Legal pluralism is the coexistence of multiple legal systems within one jurisdiction.
In South Africa, this refers especially to the interaction between:

• State law (statutory, constitutional, and common law), and

• Customary law (African indigenous law).

Legal pluralism recognises that not all law flows from the state. Communities have
their own systems, shaped by culture, tradition, and lived reality — particularly in
African customary systems.

South Africa’s Constitution explicitly recognises this pluralism while ensuring that all
legal systems must conform to human rights, equality, and dignity.

1. Types of Legal Pluralism

A. Strong (Deep) Legal Pluralism

• Multiple legal systems exist independently, each with its own sources and
legitimacy.
• Common in postcolonial societies where indigenous systems were never fully
displaced.

B. Weak Legal Pluralism

• State law recognises or incorporates non-state systems as subordinate.

• The state decides when and how customary law applies.
 South Africa has moved from weak pluralism under apartheid (where customary
law was distorted and subordinated), toward a stronger, more respectful pluralism
under the Constitution — but tensions remain.

2. Recognition of Customary Law

Customary law is officially recognised as a source of South African law under:

• s 211 of the Constitution: courts must apply customary law when applicable,
subject to the Constitution.
• The Recognition of Customary Marriages Act 120 of 1998 (RCMA): gives full
legal recognition to marriages under African customary law.

Key Case: Bhe v Magistrate, Khayelitsha — the court struck down the male
primogeniture rule in customary succession as unconstitutional for violating equality
and dignity.

Key Insight: Customary law must be treated as a living system, not a static code.
Courts must understand it as practiced, not only as written or formalised.

3. Tension Between Legal Systems

Although pluralism is celebrated in principle, it brings legal and ethical challenges:

• Customary law is often oral and flexible, while state law is written and rigid.
• Patriarchal customs (e.g., in succession or marriage) may conflict with gender
equality.
• Courts may lack cultural literacy, leading to misinterpretation or distortion of
indigenous practices.

Example: A community may view bridewealth (lobola) as a symbol of union and

respect, while some courts may misunderstand it as commodification of women.

4. Constitutional Limits on Customary Law

Customary law is not absolute — it must:

 • Be consistent with the Constitution (especially the Bill of Rights),
• Promote gender equality, dignity, and freedom,
• Be developed by courts to align with constitutional values (s 39(2)).

Key Case: Shilubana v Nwamitwa — confirmed that customary law evolves, and
communities can adapt traditions (e.g., installing a woman as traditional leader) in line
with constitutional transformation.

5. Pluralism Beyond Customary Law

Legal pluralism also includes:

• Religious legal systems (Islamic, Hindu, Jewish law),

• Informal dispute mechanisms (street committees, restorative justice),
• Transnational norms (e.g., international law, community protocols).

Example: Muslim marriages were not recognised until recently — even though they
functioned with legal force in many communities. The Women’s Legal Centre Trust v
President of RSA case required Parliament to legislate for their recognition.

6. The Future of Legal Pluralism

South Africa must strike a delicate balance:

• Respecting cultural diversity and community autonomy,

• While ensuring constitutional rights and justice for all, especially women and
vulnerable groups.

Legal pluralism should not mean legal fragmentation or inequality — but a dialogue
between systems that serves the people.

Quick Summary Chart: Legal Pluralism

Concept / Description Example / Application

Issue
Legal Coexistence of multiple legal Customary + statutory law in
Pluralism systems family and land matters
 s 211 Courts must apply customary law Subject to Bill of Rights
Constitution when appropriate
RCMA 120 of Recognises and regulates customary Legal validity of lobola-based
1998 marriages marriages
Bhe Case Customary male-only inheritance Equality and dignity protected
rule struck down
Shilubana Community adapted rule to allow Living customary law
Case female leadership endorsed
Religious Islamic, Hindu, Jewish practices with Muslim marriages pending
Legal partial recognition legislative framework
Systems
Challenges Conflicts with gender equality; court Misinterpretation of lobola or
misunderstanding of custom succession norms

Exam Tip: In pluralism questions:

1. Define legal pluralism and distinguish strong/weak types.

2. Explain how customary law is recognised, but limited by the Constitution.
3. Use case law to show how courts balance cultural practices with rights (Bhe,
Shilubana, WLC Trust).
4. Discuss challenges of implementation and the need for judicial sensitivity
and cultural awareness.
5. Conclude with the role of living law and transformative constitutionalism in
harmonising different systems.

📘 Chapter 17: Access to Justice

Introduction: Rights Mean Nothing Without Access

Access to justice is about ensuring that every person, regardless of status or

income, can understand, assert, and enforce their rights through legal processes. It
is a cornerstone of constitutional democracy, directly linked to:

• Equality (s 9),
• Human dignity (s 10), and
• The right to a fair hearing (s 34).

Without meaningful access to justice, rights remain empty promises, particularly for
poor, rural, and marginalised communities.
1. Constitutional Guarantee: Section 34

Section 34 provides that:

“Everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.”

This right ensures:

• Fairness,
• Transparency,
• Equality before the law, and
• An impartial forum for resolving disputes.

Example: A domestic worker wrongfully dismissed must have the right to challenge
their dismissal at the CCMA or Labour Court — failure to do so denies access to justice.

2. Barriers to Accessing Justice

Despite the constitutional guarantee, many South Africans still face systemic
obstacles. These include:

A. Financial Barriers

• High costs of hiring lawyers, paying court fees, and prolonged litigation.
• Legal aid services are limited and underfunded.

B. Geographical Barriers

• Rural and remote areas lack courts, lawyers, and legal clinics.
• Courts are often far, costly to reach, and intimidating.

C. Linguistic and Cultural Barriers

• Court proceedings occur in English or Afrikaans, while many people speak

other languages.
• Legal terminology is complex and alienating.
D. Lack of Legal Literacy

• People don’t know their rights or how to enforce them.

• Mistrust of the legal system due to past exclusion or abuse.

Example: A woman evicted from informal housing may not understand the
Prevention of Illegal Eviction Act (PIE) and therefore not challenge the eviction, even if
unlawful.

3. Legal Aid South Africa (Legal Aid SA)

Legal Aid SA is a state-funded organisation that provides free or subsidised legal

services to those who cannot afford them.

Services include:

• Representation in criminal and civil cases,

• Assistance in labour disputes, family law, housing issues,
• Public legal education.

Limitation: Legal Aid must assess income; representation is prioritised for serious
matters and vulnerable persons (children, mentally ill, indigent).

4. Alternative Dispute Resolution (ADR)

ADR mechanisms promote access to justice by resolving disputes outside the courts:

• Mediation: Facilitated negotiation to reach voluntary settlement.

• Arbitration: Independent third party makes a binding decision.
• Negotiation: Parties work out an agreement themselves.

ADR is generally:

• Cheaper, faster, more flexible, and less adversarial.

• Used in family law, commercial disputes, and community justice forums.

Example: Family mediation is encouraged before divorce to resolve care and

contact arrangements amicably.
5. Small Claims Courts

Designed for quick and low-cost resolution of disputes up to R20,000.

Features:

• No lawyers allowed,
• Presiding officer is usually a magistrate,
• Accessible procedures for ordinary people.

Example: A mechanic who was never paid for work done can sue in a Small Claims
Court without hiring an attorney.

6. Community-Based Justice

In many areas, particularly rural ones, informal and customary justice forums still
operate. These include:

• Traditional courts, led by chiefs or elders,

• Community tribunals, street committees, or faith-based mediation.

While these offer familiarity, they must be aligned with the Constitution — especially
on gender equality and due process.

Case Warning: Practices that violate women’s rights (e.g., denying them a voice in
customary courts) cannot be tolerated under s 9 and s 34.

7. Transformation and Innovation

Access to justice is not just about litigation — it's about:

• Legal empowerment: Teaching people their rights,

• Mobile courts, legal clinics, and pro bono legal services,
• Use of technology — e.g., online dispute resolution, remote hearings.

Example: During COVID-19, courts conducted virtual bail hearings to ensure

continued access to justice.
 Quick Summary Chart: Access to Justice

Element Role / Function Example / Tool

Section 34 Right to fair public hearing Labour dispute at CCMA
Constitution
Barriers Financial, geographic, Rural resident unaware of eviction
cultural, informational law
Legal Aid SA Free legal services for Representation in criminal trials
qualifying individuals
ADR Mediation, arbitration, Settling divorce outside court
negotiation
Small Claims Simplified, no-lawyer Claim for unpaid small debt
Courts disputes under R20,000
Community Customary or local justice Traditional court resolving family
Forums systems dispute
Legal New methods to broaden Legal education, mobile advice
Transformatio access vans, online helpdesks
n

Exam Tip: In access to justice questions:

1. Refer to s 34 as a constitutional right.

2. Identify specific barriers (cost, language, distance, awareness).
3. Explain the role of Legal Aid SA, ADR, Small Claims Courts, or community-
based justice.
4. Emphasise the need for constitutional alignment, especially in customary
forums.
5. Use case examples or scenarios to show what meaningful access looks like.

📘 Chapter 18: Law and Transformation

Introduction: Reimagining Law in a New South Africa

Law and transformation is about how the South African legal system must evolve to
reflect the values of the Constitution: dignity, equality, freedom, and justice. It
requires more than legal reform — it demands a shift in the culture, structure, and
function of the law itself.
Transformation is necessary because our law developed within systems of
colonialism, patriarchy, apartheid, and economic exclusion. These legacies still
shape who accesses justice, who makes law, and who benefits from it.

1. What Is Legal Transformation?

Legal transformation refers to the deliberate restructuring of law and legal

institutions to:

• Redress past injustices,

• Promote substantive equality,
• Ensure inclusive access to justice,
• Make law reflect South Africa’s diverse cultures and lived experiences.

Not just change in content, but a shift in legal thinking, interpretation, and
practice.

2. The Constitution as a Tool for Transformation

The 1996 Constitution is a transformative document. It:

• Rejects apartheid legal culture,

• Establishes a rights-based legal order,
• Demands social and economic redress,
• Imposes positive duties on the state to achieve transformation (e.g., housing,
education, health care — ss 26–29).

Key Case: Minister of Finance v Van Heerden — equality sometimes requires

unequal treatment (affirmative action) to achieve real transformation.

3. Transformation in Legal Education and Profession

Historically, legal education:

• Reflected Eurocentric models,

• Marginalised African jurisprudence, and
• Excluded the majority population from participation.
Today, transformation requires:

• Decolonising the curriculum,

• Recognising customary law and indigenous knowledge,
• Diversifying student bodies and legal academics,
• Making law accessible in multiple languages and forms.

Example: Including ubuntu and restorative justice alongside Roman-Dutch

principles in legal training.

4. Transformation of Legal Institutions

Key institutions (courts, universities, professional bodies) must:

• Reflect racial, gender, and cultural diversity,

• Provide pro bono and community-based legal services,
• Engage in social justice work, not just commercial litigation.

Example: Legal Practice Act 28 of 2014 — mandates transformation and broader

access in the legal profession.

5. Transformative Jurisprudence

Judges are required to interpret law:

• In light of the spirit, purport, and objects of the Bill of Rights (s 39(2)),
• In a way that develops common law and customary law,
• To promote a democratic, inclusive, and humane society.

Key Cases:

• Daniels v Scribante — common law of property developed to promote human

dignity and living conditions.
• Glenister v President of RSA — court required effective anti-corruption measures
as part of constitutional accountability.
6. Economic and Social Transformation

Transformation includes:

• Addressing poverty and inequality,

• Providing basic services (housing, water, education),
• Supporting land reform, labour protections, and economic inclusion.

Law is a tool to:

• Correct structural imbalance,

• Enforce positive socio-economic rights,
• Create inclusive markets and fair labour conditions.

Example: Grootboom case — the state has a duty to act reasonably and
progressively in providing access to housing.

7. Ongoing Challenges to Transformation

Despite constitutional promises, transformation is often hindered by:

• Institutional resistance or legal conservatism,

• Inadequate funding for legal services and rights enforcement,
• Unequal access to legal knowledge and economic opportunity.

Legal transformation is a long-term, dynamic process, requiring commitment across

sectors.

Quick Summary Chart: Law and Transformation

Focus Area Transformation Goal Example / Case

Legal System From colonial/apartheid to Minister of Finance v Van Heerden
inclusive, rights-based
Constitutional Promote dignity, equality, ss 7, 9, 26–29 Constitution
Mandate social justice
Legal Decolonisation, African Inclusion of customary law and
Education jurisprudence, access ubuntu in curriculum
Legal Demographic and institutional Legal Practice Act 28 of 2014
Profession reform
Judicial Transformative jurisprudence Daniels, Glenister, Grootboom
Interpretation guided by s 39(2)
Socio- Real equality in housing, Government of RSA v Grootboom
economic health, education
Redress
Challenges Institutional inertia, funding Need for stronger public
gaps, elite capture accountability

Exam Tip: In transformation questions:

1. Define legal transformation clearly — more than reform; it’s a structural and
cultural shift.
2. Link it to the 1996 Constitution and its transformative purpose.
3. Show how education, institutions, and interpretation must evolve.
4. Use case law that exemplifies transformative rulings (Daniels, Grootboom, Van
Heerden).
5. Acknowledge challenges, but argue why transformation remains essential for
justice.

📚 Case Law Summary Sheet — Pillars of South African

Law
Case Name Legal Principle / Holding Relevant
Chapter(s)
S v Makwanyane Death penalty declared unconstitutional — Ch 6 (Human
(1995) violated rights to life, dignity, and fair trial. Rights), Ch 15
(Justice)
Daniels v Constitutional property rights include right Ch 6 (Human
Scribante (2017) to improve living conditions (dignity- Rights), Ch 7
focused). (Private Law),
Ch 18
Bhe v Magistrate, Customary male-only inheritance rule Ch 6 (Human
Khayelitsha (2005) struck down as unconstitutional (equality + Rights), Ch 7, Ch
dignity). 16 (Pluralism)
Doctors for Life v Lack of public participation in law-making Ch 5
Speaker (2006) process invalidated legislation. (Governance),
Ch 6 (Human
Rights)
Carmichele v State may be held delictually liable for Ch 6, Ch 7
Minister of Safety failing to prevent harm; courts must (Delict), Ch 18
(2001) develop common law to align with
Constitution.
Minister of Finance Affirmative action permissible under Ch 6 (Equality),
v Van Heerden equality clause; aimed at redressing Ch 18
(2004) disadvantage. (Transformation)
Shilubana v Customary law evolves; community may Ch 16 (Legal
Nwamitwa (2008) adapt customs (e.g., allowing female Pluralism), Ch
traditional leaders). 18
Government of Socio-economic rights (housing) must be Ch 6 (Rights), Ch
RSA v Grootboom realised progressively; reasonable state 18
(2000) action required.
Glenister v Government must create effective anti- Ch 5
President of RSA corruption measures in line with (Governance),
(2011) constitutional obligations. Ch 18
Investigating Laws must be interpreted to favour Ch 12
Directorate v constitutional values and rights when (Interpretation)
Hyundai (2001) ambiguity exists.
Barkhuizen v Time-limitation clause valid only if it is fair Ch 6, Ch 7
Napier (2007) and not contrary to public policy. (Contracts), Ch
12
Christian Religious freedom does not override Ch 6 (Rights), Ch
Education SA v children’s rights to dignity and protection 15 (Justice)
Minister of from violence.
Education (2000)
Prince v Minister of Criminalisation of private cannabis use Ch 6 (Rights), Ch
Justice (2018) unjustified; right to privacy upheld. 12
(Interpretation)
Women’s Legal Government has duty to legislate for Ch 6, Ch 16
Centre Trust v Muslim marriages — non-recognition (Pluralism), Ch
President of RSA violates equality and dignity. 18
(2022)
Mazibuko v City of Water policy met minimum standards; Ch 6, Ch 18
Johannesburg court emphasised dignity, but upheld (Socio-
(2009) state’s program. economic rights)
Khumalo v Bill of Rights may apply horizontally; Ch 6 (Rights)
Holomisa (2002) defamation between private parties must
consider constitutional values.