FOUNDATIONS OF LAW

SEMESTER 1
INTRO TO LAW

FUNDAMENTAL PRINCIPLES
- Law comprises of a body of rules and regulations facilitating and regulating human interaction
- Law is not set in stone: it evolves and is adapted and is not “black or white”
- Law presupposes society (because society requires order and has a need for structure) and aims to order
it
- Rules are created, applied, interpreted, and enforced by institutions of the state
- Fair, peaceful, productive interaction is made possible by rules
- Rule of law: a principle that refers to the fact society is governed by legal rules and adheres to these rules
- Legislative authority makes laws —> judicial authority applies laws & other legal principles —> executive
authority enforces laws
- A sanction (form of punishment, e.g. fine / imprisonment) will be enforced if non-compliance with laws
has been demonstrated
- Content of law depends on the history of specific countries, legal development in countries are different

PHILOSOPHERS
1. Thomas Hobbes: 17th century English writer, believes people are slaves to desire and his/her own
selfinterest in his/her original state, believes everyone has to give up his/her desires in order to not
destroy one another and to become sustainable
2. John Locke: believed humans are governed by reason and live good, stable lives

SOCIAL CONTRACTS
- Social contracts: people sacrifice their unlimited freedom (desires, self-interest, etc.) to bring about
peaceful co-existence under the law/government/authority, as everyone fears their own destruction
- Social contracts are justifications for the need of the rule of law
- Western social contracts: separated individuals in an original position; fictitious agreement between those
individuals
- African social contracts: communities are a priority; everyone has “ethical relations and obligations”;
individuals have obligations to one another (hence, there is no need to pretend that a fictitious contract
was entered into with the state) [Ubuntu = umuntu ngumuntu ngabantu: a person is a person because of
other persons]

SOURCES OF SOUTH AFRICAN RULES AND PRINCIPLES OF LAW

1. The Constitution of the Republic of South Africa (1996) (democratically-elected Constitutional Assembly
writes and gives it the force of law; includes the state’s powers and a bill of human rights; all other laws
must coincide with what is laid out in the constitution)
2. Legislation (statues, Acts —> laws written by democratically-elected bodies, e.g. Parliament, and have the
force of law)
3. Customary law (laws of the First Nation peoples of Africa, a.k.a. African law)
4. Common law (laws inherited from South African colonial heritage)
5. Custom law (practices that develop as law due to continued usage over long periods of time)
6. Case law (decisions by courts)
7. International law (laws usually drafted by agreement between different states)
LAW AND MORALITY
- The law is a normative system which regulates human conduct by distinguishing good from bad
- Norms are rules that regulate human conduct (legal rules are examples of norms)
- Normative systems influencing human conduct: 1. Religion 2. Individual morality 3. Community mores

1. RELIGION
- Religion: relationship between an individual and a higher power/being
- African religion: source lies in the customs handed down, rituals, objects, and dances
- Christianity: source lies in the Bible
- Islam: source lies in the Quran
- Judaism: source lies in the Torah
- Some believe religion and law should be mutually exclusive (secular approach to law)
- Some believe religion and law should have the same content (religious states such as Islamic
fundamentalist religious states)

SIMILARITIES BETWEEN LAW AND RELIGION

- Law and religion is studied through the use of authoritative texts
- Law and religion have rituals, formalities, and fixed procedures
- Sanctions for non-compliance with religious norms (e.g. hell) and with law (e.g. fines or imprisonment) -
Some legal traditions have Christian influences (e.g. in Western countries)

DIFFERENCES BETWEEN LAW AND RELIGION

- The state does not regard all things stated in religious texts as a sin to be a crime (e.g. adultery is a sin in
religions, but is not a crime in law)

OVERLAPS BETWEEN LAW AND RELIGION

- Certain Christian holidays — Christmas, Easter, Good Friday — are given preference by the government -
In most religions, murder, fraud, and theft is frowned upon, as with legal rules

2. INDIVIDUAL MORALITY
- Individual morality is an individual’s own values and what she/he believes to be right or wrong and bad or
good conduct — a private conflict between an individual and his/her conscience
- Morality quite often ties with an individual’s religion and will often have the same content as legal rules
(e.g. honesty is often something valued for both individual morality and law, theft is not, etc.)
- Law will not always enforce individual morality (e.g. some may find the consumption of alcohol
unacceptable, but alcohol consumption is legal)
- Sanction for non-compliance: own conscience (e.g. guilt) — sanctions are not enforced by an external
source

3. COMMUNITY MORES
- Community mores are the norms and collective morals of a whole community/group within a community
- Legal rules and community mores can coincide
- The law does not necessarily always take cognisance of community mores (e.g. the community may feel as
though taxes should be reduced, but the law does not represent the community’s values if it does not reflect
these values)
- To determine whether socially deviant or unacceptable conduct should be criminalised or regulated, harm
is often used to make a decision
- The sanction for non-compliance is disapproval / ostracism from other members of the society
Legal systems reflect the shared values of society and should be based on:
• Economic values [capitalism, socialism, communism…]
• Political values [one-party dictatorship (such as totalitarianism or authoritarianism…), democracy,
monarchy]
• Social values [safety, equality]
• Moral values [conservative, permissive]

• Ideologies shape one’s understanding of what the law is and what the law should be (many different
ones)
• Democracies should reflect the shared values / beliefs of the majority of the population

• Legitimacy crisis = individuals in a society lose their belief and confidence in their legal system (example
of a legitimacy crisis: people protested against the laws in apartheid)

OBJECTIVES OF THE LEGAL SYSTEM

- Individuals are aware of their rights and to have access to the legal system
- Problems and disputes are dealt with quickly and efficiently
- The legal process involved is not too expensive (accessible) — enables people to have access to justice -
The legal system handles problems in a consistent way (certainty, no discrimination)
- All persons are given a fair hearing
- There is a right of appeal to a higher authority
- Disputes are heard by relevant or appropriate bodies that are prepared to process each case with
consideration and formality (tribunals, various different courts, etc.)
- Trials are conducted according to recognised procedures
- Orderly and harmonious social interactions take place between members of society and individuals and
the state
LAW AND JUSTICE
- Justice is the ideal of any legal system, usually encompassing equitable and fair treatment (however, there
is no precise definition of what justice is)
- Distributive justice is an equal distribution amongst equals (however, if not everyone is equal, not everyone
is therefore entitled to equal distribution according to distributive justice) - Corrective justice aims at
restoring inequalities
- Equality is the emphasis in both distributive justice and corrective justice
- Justice has an emphasis on equality
- If a law is unjust and is not in accordance with the Constitution, the Constitution must declare it invalid
(invalidity is not automatic)

- Adjective law (procedural law — the legal rules and processes according to which a court makes a decision
or solution — eg. Criminal procedure, what tells you how to detain a person)
- Substantive law (material legal rules — does not necessarily coincide with justice: e.g. Group Areas Act 41
of 1950; e.g. Criminal law, which outlines what crime is)

The legal process strives towards formal justice in the following respects:
—> arises from the principle that like cases must be treated alike (the judicial system of precedent [i.e. court
decisions] is the instrument which ensures this)
—> criminal procedure regards an accused person as innocent until proven guilty (the process requires both
sides be heard, that a person must appear before court within a reasonable time, and that no force or undue
influence may be used to induce an accused to confess to a crime)

• Judicial precedent is the instrument for like cases being treated alike, and judicial precedent is the evidence
that South African courts are striving to legal justice
• South African procedural law strives towards justice, but law does not always embody justice

2 different jurisprudential (legal philosophical) approaches:

1. LEGAL POSITIVISM
- Law is what is and not that what ought to be
- Irrelevant whether law is just and fair: morality and law are separated from each other
- Law is what is set down in statute books, in rules, and in court decisions
- Positivistic approach because only those rules given the positive force of law can be regarded as law - Ius
dicere non facere: judges speak the law, but do not create the law
- Court’s function is to apply laws, irrespective of whether it is socially, economically, and politically ‘just’
2. NATURAL LAW
- Law is not only what is, but what ought to be
- Law has a moral dimension
- Legality of laws depends on the moral content of the laws
- An unjust law is invalid
- Natural lawyers believe if the law conflicts with a higher power, the law is invalid
- It is called natural law because these norms are found in the harmony and order of nature, in human
nature, or in the eternal laws of God
- Organised systems of oppression is not advocated for by natural law as it is unmoral
LAW AND CERTAINTY
- Legal certainty is defined as the law being predictable, that it will be applied consistently, and that it has a
fixed and certain content
- A large part of the law is fixed and certain, aside from language (i.e. interpretation), changing values, and
judicial discretion (these 3 factors impact the certainty of law)

I. LANGUAGE
- Legal rules are written in a language, which must be interpreted — there are varying interpretations of a
singular thing as words do not have a fixed meaning (definitions of words recall other words, which in their
definition will refer to other words)
- A singular word or phrase can be interpreted in different ways

II. CHANGING VALUES

- Law must adapt to changing circumstances (community values and technological advancements) to remain
effective
- This adaption comes about through promulgating new legislation (however, any law inconsistent with the
Constitution have no legal validity)
- Law often stipulates that judges must decide certain matters based on the “legal convictions of the
community” (also referred to as “public policy”)
- Problem with judges basing decisions on changing community values is the uncertainty of who and what
society comprises of, and it could also allow the judge’s own preferences/prejudices to be passed
- The legal convictions of society are given content to with reference to the Constitution of the Republic of
South Africa, 1996

III. JUDICIAL DISCRETION

- Judges have discretion in applying law through the interpretation of words and norms, which indicates
subjective prejudices and attitudes
- e.g. some judges are more predisposed to imposing the death penalty than others
- The Constitution requires judges to promote the values of equality; freedom; and human dignity
The approach of judicial officers is divided into:
1. Judicial activism
Judicial activist judges use discretion creatively in order to interpret the law in order to effect social change

2. Judicial deference
Judicial deferential judges use discretion by deferring to the executive or legislature, often allowing them to
effect social change
- Constitutional dispensation: judges do not merely “speak” the law, they also play a role in “creating” it
through their judgements
- Constitution contains open-ended values — relatively wide latitude of discretion inevitable
- Kriegler J [in S v Makwanyane 1995 (3) SA 391 (CC)] states that constitutional adjudication must be legal
— governed by legal text (the Constitution) and performed by lawyers
CLASSIFICATION OF LAW
• Law is classified into different disciplines and branches (there is no ideal classification of the law)
• The Romans started a tradition of classifying the law into different disciplines
• Any classification of law provides an overview of different divisions/areas of law
• Classification should also display how the law fits together and how it functions
• Distinction between different branches of law can be quite artificial
• Classification should not restrict constitutions or laws as they do not “fit in a box”
• South African law recognises one system of law and that the law is subject to the Constitution
• Classification is important to understand SA’s uncodified system
• South Africa has a SINGLE SYSTEM OF LAW

3 principles for the categorisation / classification of positive law:

1. Mode of operation:
- Mode of operation: classify the law according to the way in which it operates
- Regulative law [law that automatically applies UNLESS the parties make another arrangement. Default law.
e.g. interstate succession: if no will has been made and a person dies. e.g. contract of sale: period in
 between concluding the contract and the item reaching you — in SA, there are laws regulating if the
seller/buyer is responsible for responsibility
(risk rule)]
- Coercive law [applies to all people in all circumstances; cannot be substituted by own arrangements;
cannot be changed. E.g. supremacy of constitution: everyone is bound by it, no matter religion, culture,
etc.]

2. Issuing body and sphere of validity (state law; non-state law; church law…)

3. Traditional classification (SA legal system is classified in terms of traditional classification of Roman law)
DISTINCTION BETWEEN INTERNATIONAL AND NATIONAL LAW
INTERNATIONAL LAW
- Rules that primarily regulate the relationships between independent states
- Known as the law of nations / public international law
- There is no international government that lays down and enforces legal rules for all states

- Rules may be created by international custom or by international treaties (conventions) in order for states
to regulate certain relations between them if they sign these treaties
- These treaties can exist between 2 states (bilateral treaties) or between several (multilateral treaties)

- Customary international law is settled practice which states regard as legally binding norms
- International law is incorporated into the national legal system of a state
- International law applies in SA as long as it’s not in conflict with South African Constitution/legislation
- Section 39(1) of the Constitution states that a court must have regard for international law when
interpreting the Bill of Rights

- International organisations such as the UN and AU lays down rules of international law
- International law covers diplomatic relations, air traffic between states, the use of open sea, international
principles concerning human rights, the law relating to human warfare (aka humanitarian law), and
international criminal law [war crimes, crimes against humanity, genocide, crime of aggression]

- If rules of international law are violated, the matter can be heard by the International Court of Justice (ICJ)
in the Hague — however, a state cannot be compelled to appear before it
- The ICJ is one of the organs of the UN

- International Criminal Court (ICC) has the jurisdiction to prosecute and convict persons accused of
international crimes
- The ICC was established under the ICC Statute (aka the Rome Statute)

NATIONAL LAW
- National law is the law exclusive to a specific state
- Known as the domestic law
- National law of another country is known as foreign law
- “Positive law” (objective law) is the whole body of legal rules applied and enforced in South Africa
- South African national law is divided into supplementary disciplines, and substantive and procedural
law

DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW

—> substantive and procedural law are interdependent
—> the legal system determines content and meaning of different legal rules (substantive) AND prescribes
what is to happen when such laws have been violated in order to be settled properly (procedural)
—> procedural law cannot exist without substantive law as it cannot provide for the enforcement of legal
rules of which the content and meaning are unknown

SUBSTANTIVE LAW
- Also called material law
- The part of law that determines the content and meaning of different legal rules (legal principles)
- Prohibits people from committing criminal offences & determines which acts constitute criminal offences
- It determines the content and application of the different rights an individual may have
- e.g. substantive law determines how someone can obtain ownership of a motor vehicle
- Substantive law is divided into public, private, and commercial law

PROCEDURAL LAW
- Also called adjectival law (means: accessory to the main as it relies on substantive law [i.e. laws in place])
- Regulates the enforcement of substantive law
- It determines the manner in which a case must be practically handled when a legal rule has been violated,
what evidence may be admitted to court, terms of sentencing and bail, etc
- e.g. procedural law provides the process according to which someone is prosecuted for murder / when
someone wants to claim damages, etc.
- Procedural law is divided into criminal procedure, civil procedure, law of evidence, legal interpretation

DIVISIONS OF PROCEDURAL LAW

1. Law of criminal procedure
- Adjectival criminal law — criminal procedure
- Prescribes how people accused of committing criminal offences should be prosecuted
- The state has to prosecute and punish people who (allegedly) commit criminal offences
- Lays down the rules with regard to investigation, process in court, rules and punishment imposed by judges

2. Law of civil procedure -

Adjectival private law
- Determines the procedure to be followed when an individual wishes to enforce his/her rights against
another (e.g. damages)
- Documents to initiate the case, the steps to be followed in the trial process, the orders the court can
impose
- The law of civil procedure determines how such a claim should be instituted — a civil case
- Usually private individuals, or a company v private individual, sometimes a state can be involved
3. Law of evidence
- Determines how the facts in either a criminal or civil case should be proved
- Regulates the manner in which witnesses should lay evidence before the court, and determines what kinds
of evidence are inadmissible (regulation and admissibility of evidence)

4. Legal interpretation
- To establish the meaning and provisions of law (legislation) — statutory interpretation
- Lays out the rules, presumptions, and procedures which must be followed to establish the meaning of the
provisions of law of legislation
- Determines how legislation must be determined if there is uncertainty/ambiguity
DISTINCTION BETWEEN PUBLIC AND PRIVATE AND COMMERCIAL LAW
—> the distinction between public and private law can be unrealistic and artificial
—> often the state encroaches upon the area of private law when the state (e.g.) through legislation dictates
certain contractual relationships between employer and employee

PUBLIC LAW
- Determines the content and extent of state authority
- Regulates the organisation of the state, the relation between different organs of state and the relation
between the state and its subjects
- The state acts with state authority in this law
- The public law relationship between the state and its subjects is a vertical relationship (thus, unequal) —
the state has direct authority over the subject

PRIVATE LAW
- Regulates the relationships between persons (legal subjects)
- It determines the different rights and duties that persons may have towards one another
- These rights and duties may find their origin in contracts, delicts, marriage, or ownership
- The state may also be party in the area of private law when it enters a contract with an individual or causes
an individual harm (e.g. police brutality)
- In these instances, the state does not act with state authority — it is in the same position as any other
person — the private law relationship is equal (a horizontal relationship)
- It however cannot be said that the relationship between the state and a contractual party is equal and
private, as the state is standing in a position of power over the contractual party and the contract may
have consequences for the country as a whole

- Private law should only be used as a descriptor for subjects that have been classified together, e.g. law of
persons, family law, law of succession, contract law, delict, and property law
- When a person wishes to enforce his/her rights against another in terms of these branches of private law,
the provisions of the law of civil procedure apply
COMMERCIAL (MERCANTILE) LAW
- Embraces numerous branches of law with respect to commerce, trade, and industry
- It’s a mixture of public and private law
- Some branches are specialised private law (e.g. law of insurance)
- Some branches are regulated by the state in the form of legislation, entailing a state-citizen relationship
(e.g. tax law)
- Commercial law: law of business entities (company law); law of insolvency; labour law; law of insurance;
tax law; banking law
DIVISIONS OF PUBLIC LAW
1. Constitutional law
- The Constitution forms the basis of constitutional law
- Constitutional law determines the nature of the state, its constituent organs, and relationships between
the different organs of state
- Regulates the relationships between different organs of state - Constitutional law divides state authority
into 3 branches:
1. The legislature [which promulgates legislation — Parliament]
2. The judiciary [which interprets and applies legal rules — the courts]
3. The executive [which handles governmental affairs, administers the state and executes court
orders — the President and the Cabinet]
- Chapter 2 of the Constitution contains the Bill of Rights: human rights serve (amongst others) to curtail
state authority

2. Administrative law
- Controls the administration of the state (how state bodies function)
- Determines the way in which the state is to exercise its executive powers through different bodies such as
ministers, state departments, and numerous boards
- The Constitution and/or legislation gives these state functionaries certain powers to make administrative
decisions, which ensures that the government acts in accordance with the law
- Rules of administrative law try prevent these bodies from exercising their powers in a prejudicial manner
- Aims at preventing the abuse of power by state bodies
- Section 33 of the Constitution stipulates everyone has the right to administrative action that must be
lawful, reasonable and fair
- The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) is a statute passed by Parliament to give
effect to the section 33 right — administrative decisions may be reviewed (or invalidated) by a court for a
number of reasons, including unlawfulness, procedural unfairness, and unreasonableness
- e.g. if a piece of legislation stipulates that 3 government officials must take a decision and only 1
government official made such a decision, the decision can be overturned because it was unlawfully made

3. Criminal law
- Determines which acts amount to criminal offences, and also dictates that criminal offences be punished
- A criminal offence is an act against the law
- The state must prosecute and punish its subjects who have committed criminal offences
- Has a relationship with procedural law (more specifically, the law of criminal procedure): criminal
procedure lays down the procedure by which accused persons are brought before the court and tried for
the offences, criminal law stipulates what conduct amounts to a crime
- Law of criminal procedure determines the manner in which prosecution takes place & punishment is
imposed - Criminal law determines which acts amount to criminal offences and how that offence should
be punished - Examples of crimes: fraud, rape, theft, murder, driving under the influence of alcohol, etc.
DIVISIONS OF PRIVATE LAW
1. Family law
- Regulates family relationships (e.g. engagements, cohabitation, surrogacy, marriages, divorces, child
custody, etc.)
- Matters like: engagement, marriage, civil union, marital property, divorce, and parent-child relationships -
[under common law, marriage used to be defined as the legal union of one man and one woman]

2. Law of persons
- Private law regulates relationships between persons —> persons are therefore subjects of private law —>
law of persons determines what a person is
- The law regards human beings AND entities (e.g. companies) as persons
- Determines the juridical status of persons (i.e. the nature of a person’s position in law)
- Provides a legal definition as to what a legal person is
- The law that determines what certain persons can or cannot do — what certain status a person has - The
legal capacity of natural persons — who can be held liable for their actions (age, insanity, etc.)

3. Law of patrimony
- Regulates the relationships between persons with respect to their means (the sum total of a person’s assets
and liabilities — the whole estate)

Law of patrimony is divided into:

I. Law of succession [determines what happens to a person’s estate (things/property) after his/her death;
testate succession: one stipulates who’s to inherit one’s estate in a will; in the absence of a will, intestate
succession is applicable: determines who inherits the estate if there’s no will]

II. Property law [deals with the relationships between persons with respect to things/property; determines
the rights persons have with respect to moveable (cars) and immovable (land and buildings) property;
regulates the origin, termination, and protection of these rights — e.g. right of ownership; right to
property is not just in private law as it is protected in s25 of the Constitution]

III. Intellectual property law [governs the relationships between persons with respect to intellectual
property; i.e. the creations of human intellect or ingenuity (patents, copyright, trademarks); e.g.
inventions, content of literary work and musical compositions, etc.; copyright and rights to patents are
rights with respect to intellectual property; intellectual property rights are protected in s25 of the
Constitution]

IV. Law of obligations [regulates the type of relationship between 2 persons where one person (creditor) has
a right against another for performance, and the latter person (debtor) has a corresponding duty to
perform — an obligation relationship (contracts and delicts mainly create such obligations)]

Law of obligations can be subdivided into contracts, delicts, unjustified enrichment:

- Law of contract: relationship between persons who reached agreement in terms of which a right and a
corresponding duty to a performance came into existence. It prescribes the requirements for conclusion
of contracts, and regulates rights and duties created by contracts, as well as the termination of contracts
(NB: contracts & agreements can be verbal)

- Law of delict: wrongful & culpable acts causing damage to another — obligation to restore the situation
through damages/compensation. Types of harm in the law of delict is patrimonial loss (e.g. damage to
property); non-patrimonial loss (e.g. pain and suffering caused by a botched surgery); infringement of
reputation and dignity; unlawful detainment. The law of delict determines what a delict is (which creates
an obligation due to the payment of damages) & regulates the rights and duties which arise from it
- Law of unjustified enrichment: regulates the relationship where an obligation is created because one
person is enriched at the expense of another and there is no legal basis for that enrichment (e.g. making
a

payment to someone by mistake)

- Difference between contracts and delicts: an obligation arises in contracts between the parties because
they agreed to it, whereas there is no agreement between parties in delicts AND contracts are not unlawful
cases whereas delicts are
- Similarity between contracts and delicts: there is an obligation (a party has a duty to perform and there is
a party with a right against another for performance)

- Difference between criminal law and delicts: punishment to the offender occurs in criminal offences,
whereas compensation to the person who suffered damages occurs in delict AND criminal offence is a
public-law matter (state prosecutes and punishes the offender) whereas delict is a private-law matter
(claim for damages has an interpersonal nature)
- Similarities between criminal law and delicts: delicts and criminal law both deal with unlawful conduct;
some criminal offences are also delicts (e.g. assault and theft)

4. Rules of customary law

- Customary law can fall under law of contract, family law, etc.
DIVISIONS OF COMMERCIAL LAW
1. Company law
- Regulated by the New Companies Act 71 of 2008
- Deals with registration, incorporation, and management of companies

2. Insolvency law
- Regulated by Insolvency Act 24 of 1963
- Deals with insolvent estates, bankruptcy, liquidation of companies, and debt review

3. Insurance law
- Deals with the regulation of SA insurance industry and requirements, rights, and duties that result from
insurance companies

4. Labour law
- Regulated by the Basic Conditions of Employment Act 75 of 1997 and Labour Relations Act 66 of 1995 -
Concerns the relationship between employers and employees, as well as the conditions of employment

5. Banking law
- Regulated by the Banks Act 94 of 1990 and National Credit Act 34 of 2005
- Regulates responsibilities and functioning of banks
SUPPLEMENTARY DISCIPLINES

1. PRIVATE INTERNATIONAL LAW (CONFLICT OF LAWS)

- Seeks to determine which legal system governs a dispute between persons who act across international
boundaries
- SA courts sometimes apply laws of other countries, which is applicable when there is some connection
between the parties/facts of the case and a foreign legal system
- The rules of private international law (conflict of laws) determine which legal system the court must apply
for certain cases
- Each country has its own rules of private international law (no international set of rules in existence)
- In which jurisdiction should the dispute be decided? Which law should be applied? How should a foreign
judgement be enforced?

2. LEGAL PHILOSOPHY (JURISPRUDENCE)

- Law is analysed from a philosophical perspective
- Concerns the questions of what the law is and what the law’s function is/should be
- Different perspectives: positivism; natural-law approach; Marxism; critical race theory; feminism
- The need for legal reform can be determined through a philosophical evaluation of law as one gains a
better understanding of law and acquires a critical approach towards it

3. LEGAL INTERPRETATION
- Prescribes how the meaning of statutory provisions is determined
- Large sections of substantive law are regulated by legislation
- The meaning of different rules of substantive law must be clear in order to enforce its sections
- Some general principles of legal interpretation is applied in order to determine the meaning or provisions
and clauses in contracts and wills
- The rules of legal interpretation are used to apply the rules of substantive law in practice

4. COMPARATIVE LAW (LEGAL COMPARISON)

- The study of foreign legal systems
- This is done in order to compare other systems to the South African one, and to aid one in finding answers
about certain problems
- Other countries that have common legal history with SA are analysed to see how they resolve disputes
- Many South African statutes are based on foreign counterparts because our legal system shares a common
legal history

5. LEGAL HISTORY
- Important in an uncodified legal system such as the South African one because it forms part of common
law, a source of law
- Knowledge of legal history creates better understanding of the character of our legal system, which may
be necessary when a specific common-law rule is unclear
HYBRID LAW DISCIPLINES
I. ENVIRONMENTAL LAW
- Regulation of use of natural resources, protection for future generations
- Spans private and public law rules, as well as international law
- Environmental issues, e.g. design and enforcement of legal rules relating to climate change, protecting
plans and animals, protecting people from pollution

II. EDUCATION LAW

- Sets out rights and duties of all involved in SA education system, including the administration of schools and
higher education institutions, the functions of school governing bodies, and the duties of the government
in respect of providing education

III. INFORMATION TECHNOLOGY LAW

- Popularly referred to as IT law
- Sets out rules relating to the use of the internet, protection of electronic information, electronic
agreements, etc.

IS CLASSIFICATION REALISTIC?
- There are many disciplines that aren’t discussed as they’re considered sub-divisions of larger disciplines,
for example: forensic medicine, environmental law, municipal law, media law, military law
- New areas of law emerging: cyber law; international criminal law; international trade law
- Classification can create the perception that different types of law are isolated compartments and does
not relate to any other type of law, which is unrealistic and wrong

- The transformative Constitution pervades every area of the law

- The Constitution creates “blurred lines” between certain types of law that have previously been regarded
as “separate” (e.g. public and private law)
AJUDICATION
- Adjudication: process in which a party/parties refers a legal dispute to an impartial arbitrator (e.g. a judge)
in order to decide the case in accordance with the applicable law

- Rule of law: peaceful institutional resolution of disputes

- Rule of law is a key constitutional value
- Fundamental principles (s34 of the Constitution):
1. No one is permitted to take the law into their own hands — prohibition against self-help
2. Anyone has the right to challenge the legality of a law or conduct

- There is an emphasis on the importance of the independence and impartiality of the judiciary: s34 of the
Constitution: “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.”

INDEPENDENCE OF THE JUDICIARY

- s165(2) of Constitution: “the courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour, or prejudice”
- s165(3) of Constitution: “no person or organ of state may interfere with the functioning of the courts”.
- Prohibition of interference with the functioning or courts, which applies to the organs of state and persons
- The word “interfere” relates to the exercise of power
- No organ or person of state must exercise power in such a way that it improperly influence the functioning
of courts

IMPARTIALITY OF THE JUDICIARY

- Impartial refers to a “state of mind or attitude of the court in relation to the issue and the parties in a
particular case and connotes the absence of bias”
- Absence of bias, prejudice, or preconceived notions about the case (e.g. deeming whether one is guilty or
innocent without first reviewing evidence)
- Judges should NOT have any personal relations with any of the parties to the case
- Judges should NOT gain anything financially if a particular party wins/loses a case
- Judges are presumed to be impartial
- Rebuttal of presumption with cogent or convincing evidence
- Judge must recuse him/herself
- Recusal: to disqualify or remove oneself as a judge in a proceeding because of a reasonable apprehension
of bias

—> value judgements: a judge makes a decision based on values (exercise his/her discretion)
JURISDICTION
- Defined as the competence of a particular court to hear a specific case
- 3 general principles of jurisdiction: type of case, geographical area, whether the case is appearing before
a court of first instance or not
Type of case: SA law distinguishes between criminal cases, civil cases, and constitutional matters •
Criminal cases: court’s jurisdiction determined by the kind of offence and possible sentence.
• Civil cases: legal disputes where a crime has not been committed. Often private law matters. Arises
from disputes in private law, public law, or commercial law cases that are not criminal in nature.
Jurisdiction of court determined by the amount being claimed and the nature of the relief sought.
• Constitutional matters: any issue involving the interpretation, application, or enforcement of the
Constitution. e.g. alleged infringements of human rights, someone wants to challenge the
constitutionality of an organ of state, someone wants to challenge the constitutionality of legislation.
Classification of constitutional matters is important as the Magistrate’s Court has no constitutional
jurisdiction, thus this court cannot declare invalid conduct and laws that violate the Constitution.

Geographical area: for a court to have jurisdiction, there must be a connecting factor between the persons
before the court and the court’s jurisdictional area (a person must be domiciled in the area or the crime must
have been committed there)
• Criminal cases: the area where the crime was committed is usually where the accused is tried.
• Civil cases: the place where the cause of action arose (e.g. where the motor vehicle accident
happened) or the defendant’s domicile — generally provides a clue as to which courts could have
jurisdiction over the dispute.
• Constitutional Court (CC) & Supreme Court have jurisdiction in entire geographical area of SA.
• High Courts: each of the 9 provinces have a seat of the HC. Some provinces have a provincial HC and
a local division of the HC [e.g. in the Gauteng province, there is the Gauteng Division, Pretoria (located
in Pretoria, jurisdiction covers all of Gauteng, including JHB) and Gauteng Local Division,
Johannesburg (located in JHB, jurisdiction restricted to JHB). Thus there are 2 courts that have
concurrent jurisdiction in JHB]. HC also goes to small towns or rural areas in its area of jurisdiction —
a circuit court. Concurrent jurisdiction only applicable to a certain geographical area.
• Magistrate’s Courts: separated into regional and district courts. Magistrate’s Courts are divided into
regional divisions, which are subdivided into magisterial districts. Regional courts: jurisdiction within
a particular regional division. District court: jurisdiction within a particular magisterial district.

Court of first instance: known as court a quo — i.e. this is the first court where the matter started
• Can a court hear a case for the first time?
• Can a case start in this particular court?
• Court’s jurisdiction: geographical area and type of case
• If unsatisfied with the decision of the court of first instance, there is a possibility of appeal or review
• Appeal: appeal is lodged when court a quo has allegedly erred in its decision. On appeal: court does
not listen to oral evidence about facts of case. Only studies typed record of court a quo, in which all
evidence is documented, and listens to arguments by legal representatives. Appeal may be upheld:
meaning that decision of court a quo is set aside. Appeal may be dismissed: meaning that decision of
court a quo remains in force. Usually, appeals made to courts higher than court of first instance.
COURTS AND APPROPRIATE DISPUTE RESOLUTION
- Judicial authority in SA vests in the courts (s165 of the Constitution)
- Decisions and orders of the courts are binding
- Hierarchy of courts — courts are listed in order of authority in s166
JUDICIAL SYSTEM (s166)
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Court of South Africa, and any high court of appeal that may be established by an Act of
Parliament to hear appeals from any court of a status similar to the High Court of South Africa;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status
similar to either the High Court of South Africa or the Magistrates’ Courts.

GENERAL PRINCIPLES OF JURISDICTION

- Jurisdiction: the competence of a particular court to hear a specific case -
Types of factors relevant in determining jurisdiction:
A) Type of case
B) Geographical area
C) Whether the case is appearing before a court for the first time or not

A. TYPE OF CASE
- Criminal case: appropriate sanction for a criminal offence is punishment by the state — the court’s
jurisdiction determines punishment according to the kind of offence and possible sentence.
- Civil case: factors in determining jurisdiction are the amount claimed, the nature of the relief sought, and
whether it is a specific performance that has been claimed (only the performance that one party owes
another is claimed) or whether damages are claimed in the alternative.
- Constitutional matters: Constitutional Court is the highest court in all matters, and deals with any matters
involving the interpretation, application, and enforcement of the Constitution.

B. GEOGRAPHICAL AREA
- Courts have jurisdiction within a specific geographical area in the country
- There must be a connecting factor between the persons before the court and the court’s geographical area
- Criminal cases: area where the crime was committed is where the accused is tried
- Civil cases: place where the cause of action arose, or the defendant’s domicile is where the case occurs

Magistrate’s Court: each province has regional divisions, which has magisterial districts. A Regional Court has
jurisdiction in a regional division, and a District Court within a magisterial district.

The High Court (HC): each province has its own seat at the High Court. Some provinces have a provincial High
Court and a local division of the High Court.

The Supreme Court of Appeal (SCA): has jurisdiction within the entire geographical area of SA. Located in
Bloemfontein, Free State.

The Constitutional Court (CC): has jurisdiction within the entire geographical area of SA. Located in
Braamfontein, Johannesburg, Gauteng.
C. COURTS OF INSTANCE, APPEALS, AND REVIEWS
Courts of first instance: “court a quo”; determines whether a case can “start” in a particular court; each court
has its own rules about whether it hears certain matters as a court of first instance; possibility of appeal or
review if one is unhappy with the outcome.

Appeal: reconsideration of case on its merits. Question: was the decision right or wrong? Appeal is followed
when one of the parties considers that the court a quo’s decision was incorrect, either on the facts or on the
law. Appeals are lodged when the court has allegedly erred its decision based on facts provided to it; court
only studies the typed record of the court of first instance in which all evidence is documented and the
arguments by the legal representatives are made (i.e. not the evidence regarding the facts of the case); if the
appeal is upheld, then the decision of the court of first instance is set aside; if the appeal is dismissed, the
decision of the court of first instance is kept; appeals are made to a court higher in hierarchy than the court
of first instance. CC is the highest court of appeal in SA.

Review: involves a limited rehearing. Question: was the correct procedure followed? Takes place in the case
of a possible irregularity in the proceedings (e.g. if judge was biased/if judge did not afford one party a fair
opportunity to present their case); the HC automatically reviews heavy sentences made by the MC;
applications are brought to the HC; the HC can review decisions of quasi-judicial tribunals.
TYPES OF COURTS
HIERARCHY OF THE COURT SYSTEM:
Magistrates’ Courts —> High Courts —> Supreme Court of Appeal —> Constitutional Court

MAGISTRATE’S COURT
- The Magistrate’s Courts Act 32 of 1944 creates the powers of the Magistrate’s Court
- “Magistrates” = presiding officers in the Magistrate’s Court - Regional Court has jurisdiction within a
regional division
- District Court has jurisdiction within a magisterial district
- Regional Courts and District Courts function ONLY as courts of first instance

DISTRICT COURTS
—> Criminal cases (limited criminal jurisdiction: cannot try offences like murder, rape, compelled rape,
treason)(tries less serious offences like theft, drunken driving, assault)(cannot impose a sentence of
imprisonment of more than 3 years / a fine of more than R120 000)

—> Civil cases (limited civil jurisdiction: no jurisdiction in matters falling within exclusive jurisdiction of HC
concerning status matters, mental capacity, and wills)(only hears cases with the amount of claim being less
than R200 000)(can hear the matter if the claim is one for specific performance with damages [R200 000 or
less] in the alternative)

—> Constitutional matters (only has jurisdiction if an Act of Parliament provides it with jurisdiction)(cannot
decide on the constitutionality of any legislation or any conduct of the President: sec 170 of the Constitution)

REGIONAL COURTS
—> Criminal cases (can try any criminal offence except for treason)(common law: it can impose imprisonment
of up to 15 years / a fine not exceeding R600 000)(as master of proceedings, the Director of Public
Prosecutions decides in which of the two courts the accused is to be prosecuted)(HC will be used as court of
first instance is the jurisdiction of Regional Court is exceeded)(in cases of rape or murder, life imprisonment
can be sentenced)(in cases of drug trafficking and armed robbery, 15—25 years can be imposed)

—> Civil cases (can hear matters where the amount of the claim is R200 000—R400 000)(Regional Court’s
jurisdiction has now expanded — family matters now heard: involves divorce, maintenance, adoption, and
matters relating to custody of minor children, in which it has the same jurisdiction as the HC)(disputes over
movable and immovable property between R200 000—R400 000)(no jurisdiction in matters falling within
exclusive jurisdiction of HC concerning mental capacity and wills)

—> Constitutional matters (only has jurisdiction if an Act of Parliament/legislation provides it with
jurisdiction)(cannot decide on the constitutionality of any legislation or any conduct of the President)(same
jurisdiction as the District Magistrate’s Courts)
Differences between regional and district courts: geographical area of district court is smaller than that of a
regional court; each province is divided into a number of regions and each region is subdivided into a number
of districts; different jurisdictions concerning types of cases and sentencing jurisdiction
HIGH COURT
Superior Courts Act 10 of 2013 stipulates:
• High Court is a Superior Court
• A Judge President heads a division of the High Court (read with s169 of the Constitution)
• Jurisdiction of HCs is regulated by the Superior Courts Act of 2013

- Other presiding officers: Deputy Judge President and other judges - Each HC has
jurisdiction within a particular provincial area
- Has appeal jurisdiction and can function as a court of first instance

For jurisdiction as court of first instance, usually only 1 judge presides, but the Judge President has the
discretion to direct that a case be heard by a maximum of 3 judges

Jurisdiction as a court of first instance in the following cases:

—> Criminal cases (charges of treason are always heard by the HC as the court of first instance)(can try any
criminal offence, but usually only tries serious cases in which the possible sentence can be more than 15 years
imprisonment or a fine more than R600 000 — only HCs can impose these sentences)

—> Civil cases (claims more than R400 000 must be instituted in the HC)(only the HC can hear cases
concerning matters of status — e.g. issues of mental capacity, applications for a presumption of death, and
matters concerning wills)(Regional Courts and HCs have concurrent jurisdiction in divorce cases)(previously
the HC had exclusive jurisdiction in divorce cases, but due to the amendment act, Regional Courts have the
capacity to hear these cases)

—> Constitutional matters (HC can decide any constitutional matter except that which falls under the
exclusive jurisdiction of the CC)(it cannot decide on matters assigned by an Act of Parliament to another court
of a similar status to the HC — e.g. one of the special courts)(like the SCA, the HC can declare an Act of
Parliament, a provincial Act, an amendment to an Act, or conduct of the President to be unconstitutional,
which will only come into force after it has been referred to and confirmed by the CC — referral to the CC is
compulsory)(start with the premise that HC has jurisdiction in constitutional matters, except that which falls
under the exclusive jurisdiction of CC or the matters assigned by an Act to another court of similar status)

—> Appeal and review jurisdiction (the HC can review and hear appeals of criminal and civil cases which were
first heard in the Magistrates’ Courts)(a further appeal can be thereafter made to the SCA)(one can also
appeal within a HC against the decision of a single judge to a full bench of the HC, which will generally be
2/3 judges)
NB: one cannot challenge a BILL; but one can challenge the constitutionality of a Bill that has been signed in
the High Court
SUPREME COURT OF APPEAL
Superior Courts Act 10 of 2013 stipulates:
• The Supreme Court of Appeal is a Superior Court
• Head of Supreme Court of Appeal is called the President (read with s168 of the Constitution)
• Generally 5 judges of appeal will hear a matter unless the President deems 3 or more than 5 is necessary

- Other presiding officials: Deputy President and judges of appeal

- Has jurisdiction within the entire geographical area of SA
- s168 of the Constitution outlines that the SCA functions only as a court of appeal, not as a court of first
instance
- In the past, the head of the SCA was the Chief Justice — a title now given to the head of the CC
- Hears appeals from the HC
- Is the second highest court of appeal
- Can appeal a matter from the SCA to the CC (which is the highest court of appeal)

—> Criminal and civil cases (can decide all criminal and civil cases on appeal)(second highest court of appeal
in such matters)(can impose any sentence and make any order — no limit on its sentences)(its decisions bind
all courts below it)

—> Constitutional matters (can decide appeals on constitutional matters except matters which only the CC
can decide, i.e. the matters which fall within the exclusive jurisdiction of the CC)(it can declare an Act of
Parliament, a provincial Act, an amendment to an Act, or conduct of the President to be unconstitutional,
which will only come into force after it has been referred to and confirmed by the CC to create binding
authority — referral to the CC is compulsory)
CONSTITUTIONAL COURT
Superior Courts Act 10 of 2013 stipulates:
• The Supreme Court of Appeal is a Superior Court
• Head of the Constitutional Court is the Chief Justice (read with s167 of the Constitution)

- Apex Court
- Decisions made in the CC binds all lower courts
- The Chief Justice is also the head of the South African judiciary as a whole
- Other members of the court: Deputy Chief Justice, nine other judges
- At least 8 judges must hear ANY matter

s167(3) of the Constitution states the CC: (a)

is the highest court of the Republic; and
(b) may decide—
I. constitutional matters; and
II. any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises
an arguable point of law of general public importance which ought to be considered by the Court; and (c)
makes the final decision whether a matter is within its jurisdiction.

Meaning of s167(3)(b):
- It is the highest court of appeal in SA in all matters (subject to the court granting leave to appeal as outlined
above)
- Decisions of the CC are final and binding on all other courts in SA
- A decision made by the CC cannot be appealed to any of the courts below it

- In the past, the CC only had constitutional jurisdiction

s167(4) of the Constitution states that the CC has executive jurisdiction in the following matters:
• Disputes between organs of state in the national or provincial sphere;
• Constitutionality of parliamentary or provincial bills after the President or the Premier of a province,
respectively, has referred them to the CC, which can happen when the President or a premier refuses to
sign a Bill;
• Constitutionality of a parliamentary or provincial Act after members of the national assembly or a provincial
legislature, respectively, have applied to the CC for an order declaring such an Act unconstitutional;
• Constitutionality of any amendment to the Constitution;
• Question whether Parliament or the President has failed to fulfil a constitutional duty;
• Certification of a provincial constitution.

- Exclusive jurisdiction means NO other courts may hear disputes pertaining to the six points listed above -
The CC is thus the court of first instance in these cases
- A decision made by the CC cannot be overturned by any courts below it
- The CC has the final say over the unconstitutionality of an Act of Parliament, a provincial Act, or conduct
of the President
- A declaration of unconstitutionality and invalidity only takes effect once the CC has confirmed it

s167(6) of the Constitution makes it possible for a litigant to approach the CC directly without first
approaching any other court (this is called “direct access”). The CC explains that a person who wants to obtain
direct access to the CC must make a case for why the interests of justice require it. This application is made
by means of notice of motion and supporting affidavits.
SPECIAL COURTS
Special courts have been instituted for the purposes of specialised litigation. Special courts can decide
constitutional matters only if an Act of Parliament allows it. Special divisions of the HC: (1) Labour and Labour
Appeal Court; (2) Court for income tax appeals; (3) Commercial Court; (4) Land claims court. Special lower
courts: (1) Children’s Court; (2) Maintenance Court; (3) Family Court; (4) Small Claims Court.

1. Chiefs’ and Headmen’s Courts

- Civil disputes may be decided by the chief or headman sitting as a court in communities headed by
chiefs or headmen
- These courts cannot dissolve customary law marriages in terms of the Recognition of Customary
Marriages Act 120 of 1998, though it may mediate marital disputes
- Minor crimes may be adjudicated
 - Traditional Courts Bill: indicates the review of traditional courts would be handled by the HC (costly),
uniform legislative framework for structure and functioning of traditional courts in line with
constitutional values, traditional court system may become obsolete?
- Customary law leadership disputes usually settled within the community, otherwise the Traditional
Leadership and Governance Framework Act 41 of 2003 provides the dispute must be referred to the
provincial house of traditional leaders, otherwise the Premier of the Province could be approached
to resolve the dispute in consultation with the parties and the house of traditional leaders, otherwise
the dispute goes to the Commission on Traditional Leadership Disputes and Claims

2. Small Claims Court

- Established by the Small Claims Court Act 61 of 1984
- Settles disputes concerning small civil claims of not more than R20 000 speedily and inexpensively
- Some disputes that fall within the R20 000 limit may still never be heard by a small claims court (e.g.
divorce and claims for wrongful imprisonment)
- Presiding Officer: Commissioner
- Only natural persons are involved; not juristic persons like companies
- Rule of law of evidence is relaxed
- Parties are in control of their own cases and no legal representation is allowed
- Proceedings are simple and the rules of the law of evidence do not apply
- The Commissioner takes an active part in the proceedings and asks questions (process is inquisitorial)
- No right of appeal against the court’s judgement, but proceedings may be taken on review
3. Children’s Court
- Each Magistrate’s Court functions as a Children’s Court within its magisterial district
- It investigates matters relating to children (e.g. adoption of children; children whose parents/
guardians cannot be traced; children whose parents/guardians are unfit; etc.)
- Can make various appropriate orders with respect to these matters
- Proceedings are confidential and may not be published without permission
4. Maintenance Court
- Each Magistrate’s Court functions as a Maintenance Court within its magisterial district
- Some persons (e.g. parents) are legally liable to maintain (support) others (e.g. their children)
- If these persons don’t fulfil their duties, a complaint can be lodged with court’s maintenance officer
- The maintenance officer will investigate the case and submit it to the court
- The court can make an appropriate order
- It can also increase the amount of maintenance in the light of changed circumstances

5. Labour Court and Labour Appeal Court

-Established in terms of the Labour Relations Act 66 of 1995
-Labour Courts adjudicate labour disputes concerning strikes, retrenchments, and discrimination, etc.
-An appeal can proceed from the Labour Court to the Labour Appeal Court
-Labour disputes are dealt through ADR before they can go to the Labour Court
6. Land Claims Court
- Instituted by the Restitution of Land Rights Act 22 of 1994
- Function is to restore land rights to people who have been dispossessed of such rights due to racial
discrimination after 19 June 1913 (Natives Land Act of 1913)
- The court can restore the original land, provide alternative state land or award compensation
 - Usually such cases are first dealt with by the Commission on Restitution of Land Rights (set up 1995)
- If the Commission cannot settle the claim, it is referred to the Land Claims Court - Consists of a
President and additional judges as members

7. Equality Court
- The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 provides for the
establishment of Equality Courts
- Anyone who alleges a violation of her right to equality may approach an Equality Court
- Ordinary HCs and Magistrates’ Courts function as Equality Courts if the Minister has designated a
presiding officer in this capacity
- A “designation” is made on the basis of training experience, and expertise in the field of human rights
and equality

8. Community Court
- Plays an important role in the administration of justice in certain areas
- Not politically aligned
- Parties voluntarily subject themselves to their jurisdiction
- Arbitrators elected by the community resolve disputes in these courts - Sometimes liaise with the
police
APPROPRIATE (ALTERNATIVE) DISPUTE RESOLUTION [ADR]
- Disputes are settled by: the state (courts), people themselves, appropriate (previously: alternative) dispute
resolution [negotiation, mediation and conciliation, arbitration]
- No one can take the law into their own hands (cannot force a solution onto another) - Agreements may
be reached between people without immediately seeking legal settlement

Problems experienced by formal litigation:

—> litigation and legal representation can be very expensive (especially in civil cases)
—> settlement of cases is often a long process
—> locations of courts can be far away from where the parties live
—> policing is often inadequate, making it impossible to bring the law of criminal procedure into action
—> court proceedings can make people who do not understand it feel culturally alienated
—> accusatorial (adversarial) process doesn’t always satisfy the parties & makes them feel excluded from the
proceedings because the legal representatives take charge of the case (win-lose situation in which one party
takes all and the loser gains nothing is not always what the parties want)

- The state has attempted to overcome these problems (e.g. by establishing the Small Claims Court) but
efforts to establish other courts like a court for a short civil process and family courts were less successful

ADR IN SOUTH AFRICA

• Not necessarily suitable for the resolution of all disputes — litigation in the courts is sometimes inevitable
• ADR is becoming very popular in SA: there are organisations which specialise in ADR and provide
professional services and assistance in this regard, e.g.:
AFSA (Arbitration Foundation of Southern Africa) specialises in commercial and international
arbitration Association of Arbitrators specialises in construction arbitration
• Labour disputes are dealt through ADR before they can go to the Labour Court — most large institutions
have a bargaining council to resolve labour disputes in this manner; in the cases where no bargaining
council exists, the Labour Relations Act has instituted the Commission for Conciliation, Mediation, and
Arbitration (CCMA)
• The function of the CCMA is to attempt to resolve disputes through conciliation, and if unsuccessful, to
arbitrate the matter (CCMA does not have power to arbitrate certain disputes —> goes to Labour Court)
• The principle of ADR has been applied informally for years outside the framework of official courts
• Justice tribunals and makgotla (“people’s courts”) solved disputes according to traditional values and
norms, and reconciled parties through an informal process
• Community Courts have today replaced the people’s courts
• Community Courts: play an important role in the administration of justice in certain areas, not politically
aligned, parties voluntarily subject themselves to their jurisdiction, arbitrators elected by the community
resolve disputes in these courts, sometimes liaise with the police

APPROPRIATE DISPUTE RESOLUTION

- Parties settle disputes themselves / with the help of a third party in Appropriate Dispute Resolution (ADR)
- Can be inexpensive and is speedy
- Less aggressive than court proceedings and the parties are more at ease
- Most common forms of ADR are negotiation, mediation, and arbitration
- Advantages: voluntary; the process is informal and speedy (saves time and legal fees); parties determine
the date, time, and pace of ADR (impossible to do with court proceedings); confidential, private processes
(unlike court proceedings which take place in public)
I. NEGOTIATION
- Conflicting parties communicate directly with each other to find a solution that satisfies them both -
Resolving the dispute through private decision making
- Parties themselves are in control of the whole process and the solution is their own (both should win)
- No third party involved
- Purpose is to find common ground
- Must be serious in their intentions to settle the matter
- In more complex situations, the parties may need to have lawyers to negotiate on their behalf

II. MEDIATION
- Takes place in cases where conflicting parties ask a third party, the mediator, to assist them in finding a
solution through discussions and negotiations
- Negotiation with the aid of a third party
- Mediator assists and encourages the parties to reach a solution themselves, does not decide dispute
- Mediator usually communicates with the parties individually
- Information given by one party to the mediator is confidential and is not communicated to the other party
- Mediator assists parties to consider all possible solutions as a go-between — may recommend a solution
- Parties themselves try to find a solution where they both win [like negotiation]
- Decision is not left in the hands of a third party [unlike arbitration]
- For mediation to be successful, the mediator must be impartial and has to have the trust of the parties
- Often used to resolve disputes in the commercial sector and in the world of international politics
- Parties can avoid considerable costs and trauma in court cases (e.g. for divorce) by settling their disputes
beforehand through mediation

III. ARBITRATION
- Parties agree to refer dispute to arbitration to resolve the dispute — third person (arbitrator) is appointed
- Although the parties can appoint anyone as an arbitrator, the arbitrator will usually be an expert in the
particular field — independent and impartial third party acts as a “private judge” and solves the dispute
- Similar to a court process: arbitrator listens to parties; applies applicable legal principles; decides the
matter by making an award
- The parties are free to agree upon the details of the process as it suits them, and may agree on the
parameters within which the arbitrator may give her decision
- The parties are compelled to abide by the arbitrator’s decision, which is final — no right of appeal
- If necessary, the arbitrator’s decision can be made a court order and can be enforced in the usual way

- If arbitration agreement between the parties is in writing, it’s governed by the Arbitration Act 42 of 1965
- s28: arbitration awards are final and binding, and therefore isn’t subject to appeal to the courts
- s33: provides for review jurisdiction for courts, where a party believes that there was a material error in
the arbitration process

- Often used in disputes regarding building contracts, contracts of sale, labour disputes, and disputes
between partners
- Arbitration may NOT be used for disputes with respect to marriage, status, and criminal matters
- Advantages: cheaper than litigation, solves the dispute more speedily, parties have free choice of who the
arbitrator may be, parties have a say regarding the nature of the proceedings
- Disadvantages: as in court, the resolution implies a win-lose situation
LEGAL TRADITIONS
TRADITION
- A belief / way of doing things that has existed for a long time
- Tradere: “deliver” or “hand down”, which indicates that traditions have been continuously passed down
- Implication of traditions is that they need not be tested against an external standard/set of values: positives
of this is diversity in different societies, negatives of this is that they are justified on the basis that they are
inherently worthy of continued adherence and respect when they may undermine basic rights
- Indigenous peoples’ traditions have been marginalised by colonialism, globalisation, and oppression
- Role of tradition in modern society: politics, religion, communication, identity
- Critical questions: should traditions change or stay fixed? Are traditions always “correct”? Is tradition
inherently good and how is this assessed?

LEGAL TRADITIONS
- Legal tradition (Merryman): “a set of deeply rooted, historically conditioned attitudes about the nature of
the law, about the role of law in the society and the polity, about the proper organisation and operation of
the legal system, and about the way the law is or should be made, applied, studied, perfected, and taught.”

- Legal traditions: different laws, legal practices, and legal systems applying to particular regions or peoples,
developed over time as a result of different influences
- Legal system: an operating set of legal institutions, procedures, and rules of a particular entity (e.g. a
sovereign state)

- Critical questions: why laws are so different across the world? Why do they change over time? (e.g. some
legal systems recognise juries, whereas others have never recognised them and others have abolished
them)
- Legal traditions are influenced by social, political, and economic histories of certain states, and how these
states view these histories
- National legal systems are often classified into groups or families, but membership of a group does not
mean that institutions, processes and rules are shared
- Legal traditions provide a broader context within which one can understand a legal framework

SOUTH AFRICAN LEGAL TRADITIONS

- 3 important legal traditions of South African legal system: civilian tradition; the common law tradition; the
African customary law tradition
- The study of modern SA law can be enhanced by an understanding of legal traditions that are relevant to
development of this legal system over time, or to put it more simply, that are relevant to its history
- Some main legal traditions of the world are relevant to the development of the South African legal system
- Comparative law: which legal rules apply to the development of South African law
- The South African legal system is a MIXED LEGAL SYSTEM

Froneman J identifies 3 legal traditions that play an important role in South Africa’s legal heritage in paragraph
110 of Beadica 231 CC v Trustees, Oregon Trust 2020 5 SA 247 (CC):
“A country’s choice of how it conceives its contract law is influenced by its social, political and economic history, how it
views that history and how it chooses to forge its fundamental values into its conception of contract law.[220] This should
not be a controversial statement. There are discernible differences in perspective and emphasis in what was, before the
Constitution, the two sources of our mixed legal system, the civilian tradition and the English common law tradition. To
that mixed legal heritage the Constitution now adds its own overarching objective value system. This must inform not
only our views on our mixed common law and civilian heritage, but must embrace also the neglected “third grace” [221]
of our legal heritage, namely African customary law and tradition.[222]"
TYPES OF LEGAL TRADITIONS
I. Civilian tradition (civil law tradition)
- Origins in the West and gained global significance/dominance — is a source of SA’s mixed legal system
- Civil law tradition is linked to the classification of the South African legal system
- In the form of Roman-Dutch law, this civil law tradition influenced SA law from the 17th century onwards
- Does NOT make use of juries

Brief history
- The term “civil” (comes from a latin term, ius civile) is the opposite of criminal — associated with private
law as opposed to public law and was the law of the church
- Civil law originally devised for citizens of ancient Rome, thus this tradition dates back to ancient Rome -
Jurists had started to write on and interpret law in a rigorous, learned manner — focus on rationality
- Roman law expanded its influence throughout Europe and ended up having mass global influence:
colonial and territorial expansions
- The influence of civil law is currently seen in Japan, Korea, many European countries, etc.

Observations
- Roman law will always retain its character as a model for rational solution of legal conflicts (topicality &
educational value maintained by Roman lawyers’ problems raised, arguments advanced, solutions found)
- Roman law can provide the learning of legal ingenuity
- The way in which jurists used Roman legal rules and systems to change and reshape existing law:

• e.g. naturalisation — how a foreigner becomes accepted as a citizen of a country

• Local laws of various Italian communities allowed for naturalisation under certain conditions
• Roman law also had instructions regarding transformation of foreigners into citizens
• By studying both, ius commune jurists invented theory that explained what naturalisation was and what it
required (this theory held that individuals’ adhesion to communities was normally tied to birth & descent)
• It was therefore by nature that certain people belonged to a polity (to an organised entity such as a state)
• So therefore, for naturalisation to occur, foreigners needed to change their nature (this could occur if
sufficient time had elapsed since the foreigner arrived at the locality & if he could demonstrate that this
prolonged residence had influenced him)
• Starting from these premises, jurists listed the conditions for naturalisation and the type of proofs that
were required, as well as how these could be substituted by legal presumptions
• They also concluded that different practices followed by various Italian communities were but local
manifestations of this common rule
• Ways that each Italian commune treated naturalisation were different — some communities wanted
foreigners to marry locally, others demanded they pay minimum amount of taxation, or forced them to
acquire property — but these differences, jurists argued, were inconsequential because all conditions were
directed to the same end (they all sought to establish the same thing, namely, that the person requiring
naturalisation had changed his nature and was no longer a genuine foreigner) [formation of ius commune
through this process]

Rogerius
- A 12th century Glossator: defined justice as a constant & perpetual desire to give to each man his due right
- Concluded that this was a purposeful choice of word [“desire”] to indicate the intention to dispense justice
was sufficient, even if the goal of dispensing it was not achieved —> this establishes the importance of
“intent” in legal interactions
- Observed that justice contained 3 central mandates: to live justly, not to injure others, and to render to
each his own (i.e. to ensure that each person received treatment that he/she deserves)
- Commission and omission
- Rogerius thus justified some of the most basic categories of law still used today
- Demonstrated the importance of intention, and clarified the difference between performing a wrongful
act (commission) and failing to do the right thing (omission)
Core features
Jurists writing on and interpreting law in rigorous, learned manner. Hallmark of this scholarship was
its focus on rationality, on creating and developing concepts and structure. Glossators, scholars in the
Middle Ages, focussed on reading and understanding the Roman texts which had re-emerged. Gloss
was brief annotation/note between lines or on margins of text. Glossators tried to harmonise
different fragments by demonstrating that what seemed to be contradiction or lack of coherence was
not. Gloss also functioned as index, allowed medieval jurists to develop specialised terminology,
invent new categories, and suggest new ways of thinking about the law.

Many legal systems influenced by this “rational” tradition adopted codes. A code is a form of
legislation which aims at comprehensively dealing with whole areas of law as opposed to “ordinary”
legislation, which is more specific in its scope. Format traditionally was a collection of
abstractlyformulated general principles contained in numbered paragraphs, which, in turn, are
grouped together in “books” and further sub-divisions. Codes weren’t an invention of civilian
tradition. Using codes is not an essential feature of legal systems influenced by civilian tradition.

The role of academic jurists was prominent (due to their contribution to development of this law
through writing standard text or commentaries on codes), the role of judges less prominent.
Merryman: “the civil law is a law of professors.” What academic jurists did was bring logic & system
to what law should be — and in this quest Roman law provided an ideal model for the ius commune.

As far as the content of the laws associated with civil law tradition is concerned, certain core concepts
arise from this tradition and are of fundamental significant for modern SA law and law globally. These
include the basic notions of who can bear rights and have duties (concept of the “person”); in respect
of what “things” persons could have such powers (namely things of value, such as tangible property
 including land, and also intangible property such as debts owed by others); and how these rights
could be enforced, or what “actions” or “procedures” give effect to them. These concepts can be
traced back to Gaius, a Roman jurist of 2nd century AD. Though boundaries between categories were
undeveloped in early civil law, these concepts underlie a fundamental distinction between various
branches of private law (laws of persons, property, contract, delict, etc.).

Individual rights: in civil law tradition a more expansive notion of individual rights, which Glenn calls
the “centrality of the person” evolved. This can be ascribed to religious notions that each person is
created in the image of a diving being, and here should be valued as an individual. Support within
this tradition for recognition of fundamental human rights in reaction to crises that originated within
Europe in the twentieth century.

Renewal of the study of Roman law brought about the following

1. The renewal of idea of rule of law: that law is the basis of civil order, and;
2. It meant that law’s vocabulary, divisions into which rules were arranged, and the concepts that were
used, were to be vocabulary, divisions and concepts of Roman law

- And so the study of Roman law, through the work of academic jurists, is the principle event that shapes
the birth of civil law tradition
- The judge or judicial officer, by contrast, is only supposed to apply the law WITHOUT having a lawmaking
function (SA law DIFFERS from this — court decisions are binding)
- Judges form a professional class, individuals choose specifically to study to become a judge (SA law DIFFERS
from this in terms of paths followed — study a degree, become an attorney/advocate, move up to become
a judge)
- Judges are actively involved in controlling the legal procedure
II. Common law tradition
- Origins in the West and gained global significance/dominance
- Common law tradition: a legal tradition that emerged in England, attaining global influence
- Common law means the law not found in statues or legislation

- A source of SA’s mixed legal system

- Common law influencing SA law: based on seventeenth and eighteenth century Roman-Dutch law as well
as English law from the nineteenth century onwards
- Thus, part of common law is civil law (as it’s Roman-based tradition)
- Non-statutory law: the law found in South African cases

Brief history
- Emerged in England in eleventh cent. during Norman conquest of England (Normans came from Europe)
- Civil law did not dominate in England
- Common law gradually developed, characterised by the prominent role played by the judiciary
- Prominence of judges and their prestige: historical basis — they were particularly close to the sovereign in
fulfilling both legal and other functions as counsellors of state, only gradually coming to administration of
justice
- Attained global influence largely through colonisation
- “Common”/shared character of the common law tradition can essentially be ascribed to the role judges
played in ensuring the same law was applied across the land, supplanting/assimilating indigenous custom
- Civil law influenced common law: both traditions are products & representatives of ‘Western’ culture

Core features
Prominent role that precedent or recorded judicial decisions plays as a source of law (contrast with
civil law’s “codes”). However, this generalisation is misleading: legalisation also plays a prominent role
in common law tradition and judges undoubtedly make law in the civil law tradition. Academic
commentary on core doctrines of common law has become important, which means common law
does not solely comprise of judge-made law: [common law hands down decision and also typically
explains why decision has been made — it’s not to justify position to parties as much as to meet
historical need to instruct law students and future barristers. Hence common law judges explain rules
and principles of law involved in the decision, often going broader in the discussion. In applying
precedent, it’s then necessary to identify from reasons given for decision, which are necessary for
decision (ratio decidendi) and those not necessarily required to make the decision (obiter dicta). Ratio
thus forms part of “judge-made” rule to be applied in future, while obiter is merely persuasive]. Judge-
made law: courts play a leading part in creating new law and give binding pronouncements on true
interpretation of statutes passed by legislature (not same authority as parliament).

Disputes are litigated in an “adversarial” (or “adversary”) approach, whereby parties present their
cases (“fight it out”) in front of a more passive judge (contrast with civil law, where the judge is more
actively involved in resolving disputes). Involvement of laypeople, to varying degrees, as jury members
in the judicial process. Jury members perform functions such as finding facts and deciding cases
(contrast with civil law, where these functions are fulfilled by a judge — judge in Roman times was
actually a layperson).

Substantive law rules. English law attached great importance to writs, which were documents issued
on royal order, indicating to which remedy an aggrieved party may potentially be entitled. Armed
with a writ, parties approached the court for a remedy, such as payment of damages. The substantive
law the party had to rely on in order to succeed was “hidden” behind the writ (contrast with civil law:
from the outset, the principles on which to base a case was identified). Writs were inflexible: the
parallel court [court of Chancery] was created with the power to apply principles of equity to
overcome the limitations of common law — flexible system with rules allowing discretion. To this day
many common law systems still recognise the law of equity as distinct body of law — this however is
not the position in SA (equity is supposed to be built into SA law — “Roman-Dutch law is itself
inherently an equitable legal system”).
[Link] customary law and tradition (indigenous tradition)
- A neglected “third grace” of SA’s legal heritage
- Customary law is a source of South African law
- In the South African legal system, it is still sometimes overshadowed by other legal traditions even though
this indigenous tradition has been adopted

Brief history
- Oldest legal tradition (identification of when customary/indigenous tradition established itself isn’t known)
- Nowadays, virtually no indigenous peoples live purely according to customary tradition, but rather in
contexts where it interacts with other traditions (legal pluralism)
Observations
- Incompatibility, to some at least, of notion of (individual) rights with customary tradition:
The law doesn’t protect purely individual interests
Obstacles to integrating the concept of rights into customary tradition
There’s a focus on community (customary tradition) rather than individual rights (law)

- Since customary traditions (generally) have no central institution of the state, they’re technically not laws
- Difficulties to be confronted: containing indigenous approach within strict European model of legislation
and adjudication (as opposed to community involvement in the process), applying indigenous law to new
societal changes and developments, sifting out what is proper customary law and what is colonial accretion
- Africa may be seen as a “comparative law laboratory”

- Conflict between customary law and Constitution?

- Compliance with the Constitution: concept of ubuntu can be seen as a constitutional value in that it
requires the respect for the dignity and humanity of others

Core features
Handed down by “word of mouth” or orally (contrast with other traditions that rely on writing for
recording and preservation of law). Customary law has written down, but this is not part of the
tradition.

Communal nature: it exists because it’s generally known and practiced, as opposed to the written rule
that could survive in relative obscurity for centuries. Councils of elders play important roles. Dispute
resolution is achieved through informal mechanisms involving the community, its aim is reconciliation
(contrast with formal courts of law aimed at adjudicating disputes with reference to specific written
laws).

Difficult to generalise the substance/content of customary laws, but it’s apparent that these laws/
norms bear imprint of very close connection to land on which customary communities depend for
their existence (contrast with Western norms in which exclusive ownership of land is practiced).
Individuals have limited personal/private assets. “Informality” of family relationships as they’re not
regulated by a central authority. Absence of such authority means crimes are dealt with by the
community and leaves room for negotiation, as opposed to fixed/written punishment.
IV. The Constitution
- Adds an overarching objective value
OVERVIEW

Features of customary law

—> word of mouth
—> communal
—> difficult to categorise and generalise
—> substantive content: community concerns and land and nature-related content
—> idea of law and morality of mixed: morality informs law and law informs morality (ubuntu), thus not
always compatible with the Bill of Rights and Constitution

Features of civil law

—> rational
—> codes — abstract general principles
—> importance of academic jurists (over judges)
—> individualism and individual rights (centrality of the person)
—> categorisation of law (SA legal classification based on it)

Features of common law

—> use of writs
—> precedent
—> role of judiciary “judge-made laws”
—> adversarial approach
—> principles of equity

Advantages of customary: closely associated with the community it operates in; this law addresses proper
communities and helps override some of the past enforcement of racist laws; helps people practice diversity
and culture; reflects communal interest. Disadvantages: being unwritten makes it difficult to codify and apply
this tradition consistently; may conflict with the Bill of Rights and Constitution; incompatibility with Western
legal culture (e.g. written laws and punishments); does not easily fit into structure of state.

Advantages of civil: certainty and predictability of law due to rationality of laws; codes and legislation provide
a framework of rights and orderliness in classification; focus on justice. Disadvantages: inflexibility of system,
especially for judges; judges have no room for interpretation of laws as they don’t have much discretion and
have to implement laws as they are.

Advantages of common: precedent-based, thus flexibility and more certainty in the way the law must be
consistently applied to similar cases; idea of equity. Disadvantages: past court decisions may be wrong/have
mistakes, and so judgements may be flawed in future; less coherent in principles approach.
NB: common IS codified through the use of precedent, it’s less codified than civil law
NB: equity is more the fairness of outcomes, whereas equality is the application of fairness from the start
CONCLUSION
• The world is a diverse place in terms of rules and norms that have governed human action
• Much internal diversity within traditions
• In Africa, a variety of sub-traditions of different indigenous peoples exist within the broad category of the
indigenous legal traditions
• Sub-traditions of other traditions have interacted and influenced these indigenous African traditions in a
variety of ways (e.g. civil law influences of French and Belgian origin are stronger in parts of West Africa,
civil law of Dutch origin is more influential in Southern Africa)

• Some traditions share common features in terms of the way they engage in legal reasoning (e.g. through
studying and comparing cases, or employing certain forms of logic)
• A few traditions share the feature of the influence that “private” or non-state actors such as jurists could
have in shaping their development
• Many traditions face the common challenge of retaining their independence, while being responsive to the
demands of basic standard in the form of human rights

• Legal education generally tends to be narrow inasmuch as it focusses on the history of the traditions directly
related to a particular legal system
HISTORICAL DEVELOPMENT OF SA LAW
TERMINOLOGY
- External legal history: includes all the different factors that may have had an influence on the development
of the law in a particular period, including social, economic, political, religious, and cultural circumstances
and associated philosophical ideas (e.g. ideology of communism in 20th cent influenced law in eastern
Europe)
- Internal legal history: refers to the development of the material or substantive law (which is defined as the
set of rules that defines rights and duties of marriage, murder, contracts, leases, etc.). The internal history
of law is thus the narrative of the development of substantive legal norms
- Legal-historical method: an exploration of development of material legal norms over the ages (internal
legal history) in the context of socio-economic, philosophical, religious, & political factors (external legal
history)

BACKGROUND
- The law is not a modern concept, it has been in existence since the earliest of times
- Even ancient communities had rules to establish & regulate order, resolve conflict, & ensure reconciliation
- These rules typically based on custom or religion & focused on the community in which they operated
- Over the years these rules developed into the legal systems we have today
- A legal system is usually one of the cultural products of a community, and is, like the community itself, the
product of its history
- Same factors (geographical, religious, political, etc.) which have contributed to the formation of the
community also have a share in the formation of the legal system formed
- While each country has its own legal history and its own unique legal system, the various legal systems are
created by the objectives they share: securing order, resolving conflict, ensuring universal harmony and
community wellness

- Despite these common goals, each system developed according to social and political ideas which
prevailed at time it was written or formulated:
• Ancient Greece and Rome: limited democracy (male vote and participation only)
• South Africa: limited democracy (pre-1994 excluded certain people from voting via apartheid ideology)
• Middle Ages: feudal system
• French Revolution
• Social structure informed law: polygamy and monogamy (example)

Judging history:
- Ancient legal systems were racist, patriarchal, and socially unjust
- Though the law has changed, there is a legacy of that system that may still be seen today
- Note “chronological snobbery”
- Study of system (even Western ones) useful to instruct how law developed in response to societal
challenges
- Remember legal history may judge the legal system of our generation too
- Must have an in-depth understanding of the society (the people, institutions, particular problems) in order
to determine its legal system’s “justness”
- SA lawyers need to not only know the law but know and appreciate where the law comes from —
remembering the spread of Western legal systems by reason of colonisation, but also effectiveness
- Pure historical approach must be balanced with a functional approach, where emphasis is on moulding
the law to combat social problems
- Knowledge of historical development helps one understand why a legal rule exists and what its content is:
it explains present character of law, facilitates necessary change, is living law, & links to other countries
- Historical study brings with it a sharper realisation of the social function of the law and the continuing
struggle to find the best way to fulfil this function — enables one to adopt critical thinking to develop law
- Comparative law cannot be understood without legal history
- The importance of external legal history is mainly that it sheds light on the internal history of law

The roots of SA law include a number of systems:

- Including Western legal tradition (RDL, Roman law, English law) — SA is a mixed legal jurisdiction - Includes
sources such as custom, legislation, court decisions, and works of writers
- Even where a particular legal rule has changed through legislation of judicial precedent, it may still be
useful to trace its origins for the sake of context

Important to understand the roots of a rule, as the courts (or authors in their writings) may use old sources:
- For reasons of citation as authority, or
- To support an approach, or
- To indicate the need (or lack thereof) for legal development

SOUTH AFRICAN LAW FROM A HISTORICAL PERSPECTIVE

SA law consists of a combination of elements from different legal systems:
1. Roman law: law of persons, law of property, laws relating to specific contracts (e.g. law of sale)
2. RDL: legal system in Holland in 17th & 18th centuries. The product of fusion of 2 elements: medieval
Dutch law (mainly of Germanic origin) & the Roman law of Justinian (as adopted in the Reception)
3. Germanic law: certain aspects of the law of marriage
4. English law: law of evidence, law of procedure, administrative law, commercial law
5. Indigenous law
6. Religious systems (such as Islamic, Hindu, and Jewish legal systems)
7. Canon law

Some areas of our law are mixed, such as:

I. The law of succession: ideas of wills from Roman law became part of Germanic law through Canon
law II. Intestate succession rules are Germanic in origin
III. Office of executor is of Canon law origin, legal position of executor, heir, and legatee are regulated by
English law rules

- Using the legal-historical method, legal historians have developed legal-historical frameworks for
understanding the development of law over time in different places, which helps categorise the
development of law and distinguish particular schools of law and legal philosophies
- Possible to select good legal principles from various systems as SA legal system made up of elements from
different legal systems
- Private law is still fundamentally based on Roman-Dutch law, as modernised by English law, some unhelpful
English law influences were removed from our law by courts
- RDL was adapted to typical SA circumstances such as: (1) lack of water, (2) presence of an abundance of
metals and minerals, (3) plant and animal life

- The SA legal system is an uncodified legal system

- Advantages of codification: better systemisation of law, easier to find (better than uncodified legal system)
- Disadvantages of codification: not possible to anticipate all conflicts of interest which may occur in the
future, so appropriate solutions in these circumstances are not provided for, especially as the judge in a
codified system is bound to the code
- Systemised legal system: a legal system where legal rules cohere with each other logically & meaningfully
- Casuistic legal system: a legal system where legal rules prescribe particular solutions for particular conflicts
of interest, in such a way that similar conflicts of interest are not necessarily dealt with in a similar way
- South African law is systemised for the following reasons: it has a Roman law basis, further classification
by jurists in civil law tradition, unity of Roman-Dutch rules
- SA law is caustic in nature because: it is uncodified like English law, stare decisis (judicial precedent) rule
[the judge can use discretion and develop the law — not bound by code to make specific decisions)

FRAMEWORK TO UNDERSTAND THE ROOTS OF SOUTH AFRICAN LAW

JURISPRUDENTIAL PERSPECTIVES ON THE LAW
- The following 5 jurisprudential perspectives are described with regards to the hypothetical case, “Case of
the Speluncean Explorers”
- 5 different judgements to represent different approaches to law —> in this hypothetical case, 5 members
of Speluncean Society penetrated a cave and were trapped by rockfall, 10 members of the rescue team
died, the members didn’t have many resources left. To increase their chances of survival, they killed a
member and consumed him: they determined who would die by the throw of a dice even though Roger
Whetmore (the deceased) pulled out. Upon being rescued, they were prosecuted for murder.

1. JUDICIAL DEFERENCE
- Judicial deference (aka, judicial restraint) is linked to legal positivism, according to which judges limit the
exercise of discretion and prefer to leave decision to executive and legislative branches of government
- Judicial activism vs judicial restraint (deference to other branches of government)
- Judicial activism is when judges exercise discretion to resolve dispute creatively and boldly to arrive at an
answer that often leads to societal change
- Another word for judicial deference is executive-mindedness
- More focussed on allowing for government power when its exercise is challenged before him than in
protecting the rights and entitlements of individual citizens
- Again, may not be a conscious bias, simply a matter if predisposition (such was arguably the case with
Steyn CJ)

Truepenny CJ
- Truepenny CJ wants to escape responsibility by referring the matter to the executive — confirms the
conviction, but recommends pardon
- Tcoeib case — an unreported case referred to in this Speluncean case — is life imprisonment a cruel and
unusual punishment? Parol usually granted - Tatting withdrew from decision of this case - Validity of
Truepenny approach?
- Validity of Tatting approach?

Superior Courts Act 10 of 2013 — preamble: s165 of the Constitution provides that:
(a) the judicial authority of the republic is vested in the courts;
(b) the courts are independent and subject only to the Constitution and the law, which they must apply
impartially and without fear, favour, or prejudice;
(c) no person or organ of state may interfere with the functioning of the courts;
(d) organs of state, through legislative and other measures, must assist and protect the courts to ensure the
independence, impartiality, dignity, accessibility and effectiveness of courts;
(e) order or decision by a court binds all persons. To whom and all organs of state to which it applies;
(f) Chief Justice is the head of the judiciary and exercises responsibility over the establishment and
monitoring of norms and standards for the exercise of the judicial functions of all courts…

—> RULE OF LAW CRUCIAL TO DEMOCRACY + VALIDITY OF LEGAL SYSTEM

—> independent judiciary one of the cornerstones of freedom

Oath/affirmation of judicial officers (Constitution, schedule 2): each judge/acting judge must swear/affirm:
I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High
Court/E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the constitution
and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour,
or prejudice, in accordance with the Constitution and the law (in case of an oath: “so help me God”)
Goldberg v Minister of Prisons 1979 (1) SA 14 (A)

• Commissioner of Prisons made a special determination for convicted political prisoners depriving them of
access to news of a political nature
• Majority of Appellate Division (per Wessels ACJ): proceeding from the assumption that prisoners have no
enforceable legal right to receive news, held that the Commissioner’s decision could not be questioned by
a court of law
• Minority judgement of Corbett JA: proceeding from the premise that a convicted and sentenced prisoner
retains all basic rights and liberties, except those taken away by law, held otherwise
• Both approached employed tenable methods of legal reasoning… but which is preferable?

LC Steyn
 studied law at Stellenbosch
 went into the public service and had a brilliant career
 appointed to the Bench in 1951 (regter), to the Appellate Division in 1955 (appelregter), and then as
Chief Justice in 1959 (hoofregter), over the heads of senior colleagues
 the government’s man? A purist, but a man of formidable intellect and autonomous conviction, who
did what he thought was correct — as it happens, his approach to legal philosophy just happened to
fit very well the broader nationalism in SA at the time

GROUP AREAS CASES:

[Group Areas Act 41 of 1950 provided for residential segregation between race groups in urban areas]

Cassem v Oos-Kaapse Komitee van die Groepsgebiederaad 1959 (3) SA 651 (A)
• Group of Indian persons from (then) Port Elizabeth wanted access to planning reports to anticipate
recommendations — Steyn CJ said that as the climate decision is taken in Cabinet, where there is no right
to be heard, there is no “right” being infringed by not allowing access
• Point is that he could have held differently, allowing a little more protection to those affected by the
legislation — there was a previous decision of the Eastern Cape Division which had done just that (which
was overruled)
• [to allow] could mean that such an investigation, both regards ambit and time, could assume dimensions
which would not be manageable, would impede the implementation of the Act… surely it cant be supposed
that the “legislator implicitly wished to ordain such quasi-procedural limitations of the Board’s freedom of
action”
• What weighed most heavily — the “Board’s freedom of action”, there were no considerations of individual
justice and fairness

Down v Malan NO 1960 (2) SA 734 (A)

• Held that there was no duty to fully inform an owner who was objecting to a valuation under the Act of
facts which may influence the Board (who conducted these valuations) — the owner needed to anticipate
these, and if he was not careful enough to do so, then he had no remedy
• Steyn CJ acknowledged that in deciding this he was breaking new ground — previous appellate decisions
had required that the affected party actually knew and realised the prejudicial information
• Judgement removed potential procedural obstacles to executive freedom of action
• Again, matter could have been decided differently

Group Areas Development Board v Hurley NO 1961 (1) SA 123 (A)

• Provincial decision allowing the Roman Catholic Bishop of Natal (a White person) to hold land as a trustee
in an Indian group area, on behalf of a group of Indian Catholics, was reversed
• Even though he found that using the trust device would not offend against the policy of the Act, Steyn CJ
applied the letter of the Act

Minister of the Interior v Lockhat 1961 (2) SA 587 (A)

• Steyn CJ concurred with Holmes JA’s statement: “the Group Areas Act represents a colossal social
experiment and a long term policy… Parliament must have envisaged that compulsory population shifts of
persons occupying certain areas would inevitably cause disruption and, within the foreseeable future,
substantial inequalities”
• Who was affected by “compulsory population shifts” and “substantial inequalities”? Overwhelmingly
Coloured, Black, and Indian peoples
• Approach to the court to try get procedural fair play and administrative due process in enforcement
of this legislative policy, which the court acknowledged made major inroads on individual rights and
entitlements
• Steyn CJ and his court did nothing to block executive’s “freedom of action” in implementing its
“colossal social experiment”
• Steyn CJ’s point of departure was that judge’s interpretative role is merely mechanical — helps to
distance oneself from inequitable laws, but on a less charitable view, it allowed judges who sympathise
with the legislative programme to give full effect to predispositions without having to accept public
responsibility for doing so
• Because language is elastic, judge is called to affix a meaning to words whose application to a range
of situations can’t be preordained
• “LC Steyn presided over a court that did little to fortify fundamental rights and entitlements at a time
when these were under increasing attack from executive encroachment. His own judgements provide
notable evidence to justify this charge. And in matters concerning the disrupted application of this
country’s discriminatory laws in the field of race, he revealed himself to be empathetic to the programme
of legislative racialism that was being enacted” — Edwin Cameron

R v Pitje 1960 (4) SA 709 (A)

• What about the judge as a referee in the adversarial process? Should he/she not maintain silence? Silence
can also express a viewpoint, just as strongly as outspokenness
• And so when there is a chance to speak, as a judge, should you not do so?
• “Notwithstanding the detachment required by judicial office, a judge may speak out on fundamental issues
of justice. After all, if judges do not speak out of do the intellectual prodding — they who confront directly
and day to day the iniquities and the inequalities and the stupidities of our legal system — if they cannot
give the leadership to instigate reform and renewal, who can? Is there any other single group in society
who could, at least in theory, be more knowledgeable about the defects of our legal system than this group
of lawyers who daily preside over the fortunes of the victims of the institutionalised injustices of our legal
system?” — Barend van Niekerk
• So if judges should speak out, how should they do so? When should they do so?
 • Specifically, the role of the judge must be in accordance with the doctrine of separation of powers —
the judge should not take on the role of the executive or legislature. The doctrine of separation of powers
does not have one single model — as former Chief Justice Sandile Ngcobo has said, the challenge facing
our courts is to develop a distinctively South African doctrine of the separation of powers — one that
preserves these checks and balances while allowing the different branches of government, including the
judiciary, the latitude they require to help achieve the vision of a democracy based on human values. He
specifically explains in the context of socio-economic rights, where the courts are inevitably required to
identify the shortcomings of the other branches of government:
• “What is required of courts is to hold the state accountable in a manner consistent with the
separation of powers…. Ultimately courts must adjudicate claims based on socioeconomic rights in a
manner that recognises their institutional incapacity to deal with the polycentric issues and respect the
role of the other branches of government, but at the same time they must hold the other branches of the
government accountable to their obligations…”
• Judicial activists not necessarily socially progressive
• Judicial restraint is not necessarily an act of conservatism

2. JUDICIAL POSITIVISM
POSITIVISM
- Positivism places emphasis on the formation of legal rules
- Once the rule has been given positive content in a valid way, as per the will of the legislature, then effect
must be given to that rule
- The will of the legislature represents law, and must be given effect
- Legal positivism is based on the premise that law and morality can (and must) be distinguished & separated
- “Law is the law”
- Justice Keen is a positivist in the hypothetical Speluncean case

Attributes of positivist thinking:

- Laws are commands of human beings
- There is no necessary connection between law and morals
- The analysis of legal concepts is: (i) worth pursuing, (ii) distinct from (though not hostile to)
sociological and historical enquiries and critical evaluation
- That a legal system is a “closed logical system” in which correct decisions may be deduced from
predetermined legal rules by logical means alone
- That moral judgements cannot be established, as statements of fact can, by rational argument,
evidence, or proof
- Positivists would argue that moral judgements are not completely excluded, but that the most
effective method of analysing and understanding law and the legal system involves suspending moral
judgement until it is established what it is we are seeking to explain (if you are explaining the operation of
an engine, you need to know how it works before you start suggesting alternatives or limitations)
- Positivism: in opposition to natural law: only the positive law, the concrete legal rules that have been
promulgated by a competent legislative organ, form the judicial reality

- Austin: in the broadest sense a law can be defined as a “rule laid down for the guidance of an intelligent
being by an intelligent being having power over him”
- The command theory of law — law as a command of the sovereign
 - To be positive law (“law simply and strictly so called”), it is additionally required that the rule be
posited (set out or laid down) by a person or group of people who have sovereignty, while those to who
the rule applies must be subordinate to the sovereign
- The sovereign is that person or group of people who are usually obeyed by the majority of the
community, but who do not have to be obedient to anyone else
- Autinian positivism was exported to SA in the 19th century, replacing the natural law heritage of the
RDL - Reasons: decline of natural law doctrine in Europe & English legal influence (where
positivism=dominant)
- English law has now moved away from this form of positivism, but in SA the strict separation of law
and morality, as per Austin’s theory, was the approach adopted in practice and the courts

Hart’s critique of Austin (command theory typified by a situation in which a command is given by a gunman
to a bank clerk to hand over money):
(i) The content of law is not like a series of orders backed by a threat (works in criminal law, but what
about contracts, wills, marriages…?) (ii) Law binds the lawmaker
(iii) Mode of origin of law not like mode of origin of threat (not all laws can be said to have their origin in a
deliberate act performed at a particular time)
(iv) Why do people continue to obey the law after the sovereign changes?
(v) Supreme legislatures are limited, e.g. by the Constitution
- Hart's legal philosophy — his version of positivism: law is a combination of primary duty-imposing rules
(such as rules of criminal law and delict) and secondary-power conferring rules (such as rules of private and
administrative law) - In addition to these rules, there are 3 types of secondary rules:
[1] rules of recognition (which determine criteria to establish the validity of rules)
[2] rules of change (which regulate the way in which legal rules can be changed)
[3] rules of adjudication (which determine how disputes are to be settled)

- This is then the combination of rules, but for a legal system to truly exist, it must be generally obeyed
and its rules of change and adjudication must be effectively accepted as common public standards of
official behaviours by its officials
- It is not just that you can predict that punishment will follow if a rule is not obeyed — the internal
aspect of rules acquires that at members of the community must also support the system in order to keep
it going
- Positivists have focussed primarily on issues regarding legality and authority
- “Central to positivism’s analysis of legality is the institutional nature of law; central to its analysis of
authority is the idea of efficacy”
- Thus positivists believe that a law’s moral desirability (whether it is good) is not relevant
- A number of critics have held positivism responsible for the way in which apartheid courts dealt with
apartheid laws
- Others have argued that the problem does not lie with positivism itself, but with a confusion between
positivism and authoritarianism
- 2 main criticisms of positivism: (i) that it cant include values (ii) that it can’t explain the discretion that
judges exercise in hard cases
- Response to these criticisms: (i) once the values have been included, via constitutional text, no need
to seek values outside of rules (ii) Hartian positivism states that judges do not have discretion, and that in
constitutional adjudication they do not need to resort to natural law
3. NATURAL LAW
- Justice Foster — proponent of natural law
- Validity of law not based on the fact that it appears in a statute book
- Law should be based on certain values, which can be rationally established and are universally valid
- Thus the validity of law is based on whether the legal rules in question give effect to the universal
values - What naturally is, what it ought to be
- Oldest theories of law all variations of natural law
- Most important until about 1830, when positivism ousted it from position of dominance
- Remarkable resurgence in 20th century
- Difference between classical natural law theory and modern natural law theory
- Natural law defines and explains law in terms of a higher law, a system of non-posited (not set of laid
down) legal principles
- These legal principles are known as “natural law” because traditionally the point of departure is that
they are rooted in nature and that like the laws of nature, they are valid without being set out or laid down
by humans

In its “original classical” understanding, classical natural law has 4 essential features:
1. A set of legal norms that are valid per se (in themselves)
2. A set of legal norms which have universal application
3. A set of legal norms that are able to be rationally known
4. A set of legal norms that correspond with the ideal law

Reasons for revival of natural law theory:

I. Recognition of human rights after WW1 — Universal Declaration of human Rights (natural law conceived
not as higher law, but as yardstick against which to measure positive law)
II. Impact of Nuremberg trials, which established that certain acts constituted as crimes against humanity
III. Development of constitutional safeguards for human rights in various jurisdictions
IV. Revival of natural law theory in writers such as Fuller and Finns

- Modern natural law theory differs in one important respect: universal validity has been dispensed
with in favour of the idea that the content of the natural law can differ from time to and place to place,
according to the natural, juridicial, and social circumstances which the legislator has to confront at a
particular time and place, and which it has to subject its legal prescriptions to
- In addition: almost every modern natural law theory is associated with the doctrine of human rights
- In the form of the doctrine of human rights, the modern understanding of natural law has worldwide
prominence - SA examples: Mandela, 1962, upon conviction for involvement in the struggle against the
apartheid state: “I would say that the whole life of any thinking African in this country drives him
continuously to a conflict between his conscience on the one hand and the law on the other. This is not a
conflict peculiar to this country. The conflict arises for men of conscience, for men who think and who feel
deeply in every country… the law as it is applied, the law as it has been developed over a long period of
history, and especially the law as it is written and designed by the Nationalist Government, is a law which,
in our view, is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it,
that we must oppose it, and that we must attempt to alter it.”
- Bram Fischer, Mandela’s defence counsel, 1966, charged with sabotage, admitted all allegations against
him, refused to plead guilty
Modern natural lawyers:

FINNIS:
Seeks to identify basic human goods, which can only be secured through human law (“forms of human
flourishing” — knowledge, life, play/work, aesthetic experience, social ability/friendship, practical
reasonableness, religion) and sets out the requirements of practice reasonableness that forms a set of
guidelines for behaviour — the content of natural law. The active pursuit of goods, a coherent plan of life, no
arbitrary preference among values, no arbitrary reference among persons, detachment, and commitment,
the limited relevance of consequences: efficiency within reason, respect for every value in every act, the
requirements of the common good, following one’s conscience. Finnis explains that the first principles are
not derived from facts or principles, or viewpoints, but rather that they are underived. The purpose of Finnis:
to understand “what is really good for human persons.” Before we can pursue the human good, we need a
community.

“This explains his view… that unjust laws are not simply nullities, but — because they militate the common
good — lose their direct moral authority to bind. Similarly, it is by an appeal to the common good that Finnis
develops his conception of justice. For him principles of justice are no more than the implications of the
general requirement that one ought to foster the common good in one’s community” (Wacks).

FULLER:
Fuller is a procedural natural lawyer, he doesn’t so much focus on content as Finnis does. He emphasises the
minimum requirements of morality that must be present in the legal process: he is more of a procedural
natural lawyer than a substantive natural lawyer for this reason. Law should be: general, promulgated, not
be retroactive, understandable, not contradictory, not require more than those affected can do, relatively
constant, congruent with its administration.

4. AMERICAN LEGAL REALISM

- If, as Hart says, law is best understood as a system of rules, then surely legal cases are best understood as
the application of rules?
- Why then do so many cases get litigated (why don’t people simply apply rules as they would do in a game
such as chess?) & why is it that, in most cases that do get litigated, the outcome could really go either way?
- Maybe because the law is not a system of rules kept in a safe to be taken out and mechanically applied to
cases as they arise?

- The realist position is that the role of the judge is actually much more discretionary and creative than this
- Since the rules allow the judge considerable free play, he/she can decide the case in a variety of ways, and
the way that is in fact adopted will be more of a function of such factors as the judge’s psychological
temperament, social class, and values than of anything written down and called “rules”

- Realists took aim at the dominant “mechanical jurisprudence” or “formalism” in the early to mid 20th
century, which held that judges decide cases on the basis of distinctively legal rules and reasons that justify
a unique result in each case
- Realists argued how judges really decide cases is not primarily because of law, but based on their sense of
what would be “fair” on the facts of the case

- Oliver Wendell Holmes, Supreme Court Justice and realist (USA): if one wants to know what the law is, one
must put oneself in the position of the criminal, in which one wants to know what the judge is going to do
 with one (i.e. law is thus law as it is practically applied — what is important is prediction of what the law
will do)

- Realists would criticise natural law approach as too obscure and metaphysical, and the positivist approach
as too rigid and abstract
- They would argue that law is political, and can be defined as a method of dispute settlement by appeal to
the authority of an office, especially a court, and that the law is what judges say it is
- Closer to natural law (probably) — more concerned with justice

- A judge cannot remove himself/herself from external influences which influence his/her judgements
- The judge’s personality, his social status, the economic circumstances in which he grew up, his business
interests, his thoughts, his emotions, his psychological condition, and so on, are all factors which contribute
to the unpredictability of judgements by judicial officers

- Knowledge of legal rules is therefore of little assistance in predicting the decision of a particular judge
- No one knows the law about any case or with respect to any given situation, transaction, or event, unit
there has been a specific decision (judgement, order, or decree) with regard thereto (Frank)

- Far from rules being the basis of a judge’s decision, the realist assumption is that judges work backwards,
that they are not inhibited by rules but liberated by them, since by resorting to rules judges are able to
retroactively finish their instincts with authority

- Rule/norm sceptics rejected legal rules as providing uniformity in law, and tried instead to find uniformity
in social science rules — that, for example, judges’ economic background and professional experiences
operate on judges to force them to respond in predictable ways
- Fact sceptics abandoned all attempts to seek rule certainty, and pointed to the uncertainty of establishing
even the facts in trial courts, given the attitudes, beliefs, and prejudices at play in relation to the parties,
the witnesses, and the facts

- Handy J (example of a legal realist) regards law not as abstract, but as courts’ decisions in concrete cases
- What is written down in statute books or in legal rules is not sufficient to explain what the law is
- To Handy J, the solution lies in common sense — takes a pragmatic approach and refers to opinion polls as
a guideline for his decision
- Holmes: “the life of the law has not been logic; it has been experience”

Evaluation:
- Through various factors, the realist movement stopped its development, but a number of notable
jurisprudential developments were built on these insights, including feminist legal theory, Critical Legal
Studies movement, and critical race theory
- It undermined faith in a science of law based on correct answers from applying legal principles
- It also offered arguments that could be used to support claims of pervasive bias in the legal system, tools
used by water critical movements

Criticism:
(i) Rules are part of legal process, a lot of law is certain
(ii) Theory that law is a prediction of what the judge will do does not work in highest courts
(iii) Realists never quite got to grips with social science concepts
Response:
(i) Realists did not deny the existence of rules, but highlighted the phenomenon of choice, which allows
judge to make decision on policy grounds — there is more to law than rules
(ii) Focus on prediction for purposes of advising clients, not as theory of law
(iii) While not completely successful, promoted the use of social science and interdisciplinary work in law
5. FEMINIST LEGAL STUDIES
- Feminism is a movement stemming from, among other things, the recognition that men dominate women
in various spheres of society
- Feminists claim that the law has traditionally been approached from a male POV
- The values underlying law are those that are historically and stereotypically attributed to men — in other
words, “male values” such as rationality, reasonableness, and objectivity
- Values such as emotion, subjectivity, context, and can are suppressed, as they have traditionally been
regarded as “female"
- Feminists maintain that behind men’s claims to neutrality and objectivity lies the reality that law is an
instrument of women’s subordination
- Rejection of patriarchy (patriarchy: the systemic subordination of women to men)
- Not just sexism, but a world view, which affects everything
- Sachs J — in SA patriarchy has the dubious honour, in feminist and apartheid terms, of being one of the
few institutions which has been non-racial

Cahn J and Coombs J

➔ historic lack of access to the legal profession
➔ sex offences, and in particular the traditional definition of rape
➔ pregnancy
➔ acknowledgement of the myth of legal objectivity: legal language overtly sexist (“all law is man-made”)
➔ do women function most effectively in an adversarial system? (women tend to mediate)

Many feminisms, typically each bound up with a particular attack on patriarchy:

1. Liberal feminism [“equality as sameness”]
2. Marxist feminism [“class the source of gender oppression”]
3. Socialist feminism [gender inequality shaped by interlocking systems: colonialism, capitalism, apartheid]
4. Radical feminism [gender differences viewed through lens of domination and subordination — violence,
abortion, pornography, sexual harassment in workplace]
5. Relational/cultural feminism [emphasises gender difference, women’s moral reasoning more consistent
with the ethic of care, so rights should be construed in a way in which affirms relationships which
underpin rights]

- Given the pervasiveness of patriarchy, not so surprising that different feminists would describe it differently

FIRST PHASE OF FEMINISM: emergence of a feminist jurisprudence — fight for women’s rights and equality

SECOND PHASE OF FEMINISM: the not different/difference debate — move from equality to acknowledge
difference. More focus on the subjectivity of law. Debate: do women want to be treated as men, or should
sexual differences be recognised, and used to compel affirmative treatment, for the purposes of practical
equality?
THIRD PHASE OF FEMINISM: not only about gender as a source of inequality, but also gender bound up with
inequality based on race, class, ethnicity, religion, culture
Liberal v radical feminists
1. Rights vs domination of women by men
2. Acceptance of reasoning process of law vs rejection of this process as patriarchal
3. Objective and focussed on individuals vs subjective and focussed on generalised power and domination
4. Focus on public issues vs focus on private areas
5. Pornography should not be restricted vs pornography should be banned or restricted
6. Valuing autonomy vs valuing community
7. Focus on similarities between women and men vs focus on difference
8. State intervention limits freedom vs state intervention is required

Both are different to relational/cultural feminism

The great diversity within feminism has led some to argue that there is no common feminist perspective. Not
only do feminists not all agree, but not all women would agree. Some women take an anti-feminist stance,
and would support patriarchy. Some women take a non-feminist stance, and argue that patriarchy does not
matter. There are vast differences amongst women: rich, poor, weak, strong, dominating, passive, and so on.
Women are members of every race, religion, nationality, class, or ethnic group.

There is NO common feminist perspective. In contrast to anti-feminists and non-feminists, feminists argue
that patriarchy does matter, and needs to be opposed. So, the one feature that defines a theory as feminist
is that it takes the changing of patriarchy as its central focus. This is what makes feminist jurisprudence
feminist, despite all the variations.

Feminist perspective on law: if law stands for justice, it must be justice for all.
6. CRITICAL LEGAL STUDIES (CLS)
- Questions many of the generally-accepted views in Western thinking
- Effect of post-modernism: questioning validity of objective knowledge and ability of language to express
knowledge, resulting in emphasis being placed on subjective observations and perceptions of investigators
- Law not neutral and logically ascertainable, as traditionally held, rather a smokescreen for deep-rooted
political, social, and economic conflict (example of circularity of definition)
- CLS highlights the political nature of law — not distinct from but part of the power struggle in society, and
an instrument to maintain existing power relations
- Law can be regarded as a tool of power

- Law isn’t a system — indeterminacy — law does not provide a determinate answer to questions, nor can
it - There is no autonomous and neutral mode of legal reasoning: anti formalism
- “Doctrine” does not encapsulate a single, coherent view of human relations, it represents several different,
often competing views
- Even if there is a consensus, the law is not a decisive factor in human behaviour — marginality
- “If law is indeterminate, all legal scholarship on what the law is becomes merely a form of advocacy; if
there is no distinct for of legal reasoning, such scholarship becomes a political debate; if legal “doctrine” is
essentially contradictory, legal argument cannot rely on legal materials if it is not result in a tie; and if law
is marginal, social life must be ordered by norms outside the law” (Wacks)
- Like realism, anti formalistic and sceptic but, unlike realism, not interested in how the law works, focussed
on theory, and denies the possibility of the neutrality of the law — all law is politics

CRITICAL RACE THEORY (CRT)

- Calmore J
- Derives from the USA
- Focuses on the role of race in legal practice and interpretation
- Has an activist dimension
- Postulates that racial prejudice and structural advantage often lurk in ostensibly neutral legal rules and
concepts such as reasonableness, neutrality, equality, and in the application of the criminal justice system

- Professor Modiri
- Foundational principles of CRT: centrality of racism; white supremacy not about extremist white
domination, but about a system which enables white control — blind spot post-1994
- Liberal post-1994, but structures still in place to enable white domination

6 key theoretical elements of CRT:

(1) critique of liberalism
(2) “anti-essentialism” [not one single black identity or experience]
(3) intersectionality [looks at the intersection of race, gender, class, nationality, sexual orientation, religious
and cultural beliefs, disability, and at consequent forms of discrimination or oppression]
(4) structural determinism [how the structure of legal thought and the prevailing legal culture determines
law’s content and who benefits from it]
(5) social science/multidisciplinary insights
(6) storytelling and narrative

7. AFRICAN CONSTITUTIONAL JURISPRUDENCE

- Is there room for a distinctively African approach?
- Judges are often confronted with the question of whether their judgements are resonant with the values
of the majority of South Africans, whose worldviews are, to varying extents, rooted in African soil
- 1993 Constitution opened the concept of ubuntu into South African law by providing, in its “post-amble”,
a need for understanding, reparation, and ubuntu
- Ubuntu is part of indigenous South African values
- 1996 Constitution has omitted reference to ubuntu, but it has remained part of the jurisprudence of CC

- Mokgoro J (discusses ubuntu as humaneness) and Langa J (discusses ubuntu as relevant to values we need
to uphold) - Ubuntu umuntu ngabantu = “I am because you/we are”
- Humaneness = ubuntu
- Courts have on number of occasions grappled with the notion of ubuntu — so perhaps the seeds of an
African constitutional jurisprudence may indeed be sown

- African de-colonial jurisprudence includes pan-Africanism, which aims to deal much more decisively with
the injustices that stem from colonisation
- Ramose, an African philosopher: difference between decolonisation (which involves revolutionary legal
and social change) and democratisation (which focuses on inclusion) — the choice in SA was for the latter.
Ramose argues that this enables a defence and consolidation of previous entitlements, criticises the use
of ubuntu as a tool to achieve this, and sees the process of constitutionalisation as injustice. Critical of
constitutional ubuntu.

Case law in which ubuntu is emphasised:

- Petropulos and another v Dias 2020 (5) SA 63 (SCA): rigid English law must be evaluated against
constitutional value of ubuntu

- AB and Another v Pridwin Preparatory School and others 2019 (1) SA 327: law of contract should be infused
with values of ubuntu

- Motto v Minister of Police 2024 (1) SACR (KZP): ubuntu was not seen in the manner in which the plaintiff
was treated by the SAPS — treated as if he was a non-person and had no rights (detained for 2 years and
8 months in prison and was denied bail — it was established that the police witnesses fabricated evidence)

- S v Matiwane 2013 (1) SACR 507 (WCC): theft of small item from shop resulted in 3 years imprisonment =
sentence disproportionate to offence — principles of ubuntu should have been applied — accused’s
socioeconomic circumstances should have been taken into consideration
- S v Manyaka 2022 (1) SACR 447 (SCA): community sentences, of which reparation and service to others
are prominent components, form part of African tradition (ubuntu) — restorative justice — correctional
supervision as an appropriate form of punishment