This document includes a 43 page, complete and detailed summary of Part A, B, C and D in the CML1001F syllabus.
Part A covers an Overview of the SA Legal System.
Part B covers Financial Planning & The Constitution’s
Transformative Influence.
Part C covers General Principles of Contract...
PART A:
MEANING OF LAW:
Definition: The body of rules to regulate human conduct, recognised as binding and enforced by
the state.
● Ensures order and justice
● Prescribes what people can and cannot do
● Guarantees freedoms such as human rights
● Provides for state structure and exercise of power
NB: Laws are made by formal process and are consistent However, this does not mean that
they are moral. Morals are subjective and influenced by culture etc..
THE RULE OF LAW:
Laws must be reasonable and applied consistently to all legal subjects, it must apply equally
and be predictable.
- Cornerstone of constitutional democracy
ORGANS OF STATE:
South Africa uses a separation of powers between the organs of state.
Legislature:
● Makes laws
● Process undertaken in parliament in Cape Town
The Executive:
● Enforces the laws made by parliament
● Comprised of ministers and the president leads the executive
The Judiciary:
● Applies the laws
● Comprised of courts
LEGAL PERSONALITY:
Natural persons:
● Human beings hold rights and duties from being born alive until death.
, ○ Humans are born as soon as separated from their mother and the child can
breathe on its own.
○ Foetus is not a human being but a foetus does acquire the rights to its advantage
once it is born alive (nasciturus fiction)
Juristic persons:
● Non-living associations and companies
○ Private companies = Pty(Ltd)
○ Public companies = Ltd
○ Nonprofits = NPC
○ Limited Liability companies = Inc
○ State-owned = SOE
● Upon registration the company gains rights as a juristic person. It can then own property,
sue and be sued, enter into contracts etc.
● Higher institutions of education fall under the Higher Education Act and are thus juristic
persons.
RIGHTS VS INTERESTS:
A legal subject:
- Any person that can hold rights and duties in terms of the law.
A right:
- Any legal interest protected by the law
- Enables one to claim or protect something in which one has a legal interest from another
person.
Capacity to act:
- The capacity to perform juristic acts
- Animals do not have this, and thus have no legal capacity However, damages caused
by pets are claimable from the owner.
Juristic acts:
- An act to which the law attaches at least some of the consequences envisaged by the
parties
- Affected by age, mental health and marriage
,LEGAL SUBJECTS HAVE LEGAL RIGHTS TO:
Corporeal things:
● Tangible objects
Incorporeal things:
● Intangible things which have evidence of ownership via documents
○ Shares in a company
Intellectual property:
● Creations of the mind which are original
○ Trademarks, patents, copyright
Constitutional rights:
● Stipulated by the Constitution Act 108 of 1996 and the Bill of Rights
○ Prohibits discrimination
○ Right to education, religion, equality etc
TYPES OF LEGAL RIGHTS:
Personal rights:
A right that one holds against a specific person and can only enforce the right against that
person.
● Created by:
○ Agreement (contract)
○ One person getting an unfair benefit at the expense of another (unjustified
enrichment)
○ Harm done by another that causes injury to their body or property (delict)
○ Can be transferred from one person to another (cession)
○ NB: vicarious liability = employers are liable for celicts caused by their employees
while performing their duties.
Real rights:
A right one holds in a thing/property
● Enforceable against anyone who tries to cause loss or damage to it
● Created by ownership or procession
● Can be transferred by delivery or registration
The law provides the affected person with legal remedies:
- Measures through which the right can be enforced
, - Infringing a right attracts legal liability
- Most common remedy is action - claim that the other person must comply with the duty
or compensate for losses suffered.
LEGAL LIABILITY:
Legal liability is the condition of being bound to a legal duty and bearing consequences for
failure to do so.
Criminal liability:
● Public liability - duty to abide by provisions of criminal law
● Child/minor below the age of 10 does not have criminal capacity
● Between 10-14, can be proven as having criminal capacity
○ Burden of proof:
■ On the state, which a prosecutor represents (S v Phillips)
■ Victims do not get anything
Civil liability:
● Arises from private relationships, depending on a breach of obligations
● Plaintiff - person who institutes legal proceedings
● Defendant - accused party
● Appellant - party that appeals
● Respondent - other party in an appeal
○ Burden of proof:
■ On the plaintiff (Phillips v Lambrecht) (Phillips v S)
■ Victims get the proceedings costs covered, compensation, damages etc
TYPES OF CIVIL LIABILITIES:
Delictual liability:
● Minor below 7 does not have delictual capacity
● A minor between 7-14 can be proven
● A delict is wrongful and culpable conduct (act/omission) that causes harm/injury to
another person's property or personality
● Elements:
○ Act/conduct
○ Wrongfulness
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