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Introduction to Law 171 - First semester notes
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  • Course
  • Introduction To Law 171
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  • Stellenbosch University (SUN)

Notes from the slides and lectures for semester 1's work of Introduction to Law 171. Covers all of the topics discussed before Legal History and Constitutionalism.

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  • October 26, 2021
  • 51
  • 2021/2022
  • Class notes
  • ...
  • All classes

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  • first semester
  • intro to law

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  • Stellenbosch University (SUN)
  • Introduction To Law 171
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INTRODUCTION TO LAW 171 –
SEMESTER 1 SLIDES AND CLASS NOTES
ERNST PIETERSE


TOPIC 1

OVERVIEW


WHY DO WE NEED THE LAW ?
 Why do we need the law ?
o People need rules – to maintain order. What is allowed, what is not/ acceptable or not.
o To ensure order. Otherwise chaos ensues? Ensures that we all can live alongside each other


WHAT IS THE LAW ?
 The law is a Body of rules and principles –facilitating and regulation human interaction
 Law: orders society and gives certainty
 Institutions of State
o play an important role in making law
o enforcing the law
o and interpreting/application of the law/
 How is the law then enforced ?
o The State; individuals, self-regulating bodies, international organizations.
o Impose certain sanctions – may call it punishment  fines, imprisonment, etc.
 Philosophy about law
o legal positivism; natural law, social contract
 I give up something so that you can have something and vice versa. But this
agreement has to be made with the State. Submitting to the authority of the State.
 Problematic from an African perspective – the idea of individualistic rights
(separated individuals) who are born into a moral and ethical society where a
person is duty-bound to fulfill certain obligations. Notion of a social contract not
reconcilable with the idea that people are born into a community from which they
cannot ever truly be separated. Rather respect one another’s dignity because of our
humanity – Ubuntu: I am because you are.
 RULE OF LAW: the principle that the same law applies equally to everyone, including the state, and
state officials.
o And BOSASSA Linked to this is the supremacy of the Constitution.
 Where does justice fit in?
o Carries with it the idea of equality, fairness.
o Is the law always fair? Always just? Does justice always prevail? (Example of Apartheid
definitely where justice did not prevail – was not achieved through the law)


THE RELATIONSHIP BETWEEN LAW & RELIGION AND LAW & MORALITY

LAW AND RELIGION

,  Question is if religion = the “ultimate set of rules” ?
 There is a secular approach to law
 There is also the right to freedom of religion
 Some overlap between law and religion.
o But also differences
 adultery is not a crime; do not cut of the hand of a person who steals, death penalty
etc. because law is also influenced by MORALITY.

LAW AND MORALITY
 Morality is a set of norms/beliefs/values of what an individual or group belief is right and wrong.
 Linked to culture ?
 There is overlap between the purpose of law, religion and morality
o Again, also differences: Once again example of Apartheid – one group of morals were used to
rule over another; also Choice on Termination of Pregnancy Act


HOW DOES THE LAW WORK ?
 By specifying the nature and extent of rights, duties, powers and immunities


OVERVIEW OF SOUTH AFRICAN LAW

International
National Law
Law


Substantive Law
Adjectival law
(Material law)


Law of
Public Law procedure -
criminal & Civil


Private Law Law of evidence



Mercantile Law


PUBLIC LAW


Public law



Constitutional Administrative International
Criminal Law
Law Law Law


PRIVATE LAW

, Private law


Law of Law of
Law of Family law Law of Law of delict
things succession
Persons contract


MERCANTILE LAW

Mercantile
Law

Law of Insolvency Banking Tax Law Labour Intellectual
enterprises Competition
Law law Law Property Law Law
Law of
partnerships

Law of
companies


SOURCES OF SA LAW


THE LAW AS RULES
 Legal sources are: Authoritative rules; defining the law
o Distinction between primary and secondary sources
 Primary sources of law: refer to law generated by institutions vested with law-
making authority , for instance Parliament or the provincial legislatures or
judgments of the courts.
 The secondary sources provide further information on primary sources of law.
Secondary sources does not have binding force, it is merely supplementary or
persuasive force. Secondary sources include sources containing materials created by
lawyers/advocates or academics – that provide an overview of and critically
comment on the content of constitutions, statues, judicial precedent and various
other primary sources.
o Obiter: Legal sources is very important, as it tells you what the law entails and also where
you can find it
o The legal rules also is responsible for regulating the relationships between people (legal
subjects) and also between people and things.
 For legal sources to be authoritative, (and to be legitimate) :
o it must be formulated by people and institutions that society has designated for this
purpose.
 In SA context, this will be Parliament, who consist of two houses namely the
National Assembly and the National Council of Provinces.
o Legal rules are expressed in a linguistic way – for the benefit of society, legal rules must
be collected in some form, stored, updated and made available for the benefit of the
entire society.

,  For legal rules to have legitimacy, only certain institutions have the power to make and extend
(amend) the law, since they are mandated by the majority of the society bound by the law.
 Legal certainty: we as society must know what the law is and where to find it, and to what extent it is
applicable on our daily lives. Legal certainty is central to the principle of the rule of law, and
maintaining a just and peaceful society.
 The sources of SA Law are:
o The Constitution
o Legislation
o Court Decisions
o International Law & Foreign Law
o Common Law
o Customs
o Indigenous Law (Customary Law)
o Writings of modern authors

CONSTITUTION

 A constitution is a body of principles according to which a state or organization is governed
o In law: ‘Rules according to which a country is governed’
 Government’s functions:
o Make laws
 (as the Legislative Authority)
o Apply laws and execute them
 (as the Executive Authority)
o Resolve legal disputes
 (as the Judicial Authority)
 South Africa has had a number of constitutions before the Constitution of the Republic of South
Africa, 1996 (1910 Union Constitution, 1961 Constitution, 1983 Constitution, Interim Constitution of
1993)
o The 1910, 1961 and 1983 Constitutions had a common principle = Parliamentary Supremacy
o ‘Parliament may make any encroachment upon the life, liberty or property subject to its
sway … and … it is the function of the courts of law to enforce its will’
 Sachs v Minister of Justice 1943
 Constitution of the Republic of South Africa, 1996 differs substantially from 1910, 1961 & 1983
constitutions
o Constitution of the Republic of South Africa, 1996 is a supreme constitution
 Looking at the Interim Constitution of 1993
o Chapter 16: This Constitution provides a historic bridge between the past of a deeply divided
society characterized by strife, conflict, untold suffering and injustice, and a future founded
on the recognition of human rights, democracy and peaceful co-existence and development
opportunities for all South Africans, irrespective of colour, race, class, belief or sex.
o Section 4: This Constitution shall be the supreme law of the Republic and any law or act
inconsistent with its provisions shall … be of no force and effect to the extent of the
inconsistency
 The 1996 Constitution and Constitutional Supremacy
o Section 1(c): The Republic of South Africa is one, sovereign, democratic state founded on the
following values: Supremacy of the Constitution and the rule of law
o Section 2: This Constitution is the supreme law of the Republic; law or conduct inconsistent
with it is invalid, and the obligations imposed by it must be fulfilled.

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