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FSAL first year study notes
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Table of ContentsLaw and its functions
Functioning of a legal systems
Factors that determine effectiveness of law
Natural law vs positivism intro…………………………………………………………………………………………………………………………………………………………………….1
Colonialism and legal culture
How did state force races apart?
English influence during formation of SA law:
The constitution:
Constitutional history of SA
Direct vs indirect horizontal application …………………………………………………………………………………………………………………………………………………….2
What is Jurisprudence?
main features of Legal Positivism
Early positivism (Benthem, Austin, Kelsen)
20th century positivism (Hart)
Minimum requirement for natural law (hart, fuller)
Fuller’s criteria for inner morality.
Ronald Dworking (judge hercules)……………………………………………………………………………………………………………………………………………………………. 3
Jurisprudential perspectives:
Marxist theory of law:
Legal Formalism
Feminist legal theory
Legal Realism:
Critical Legal Studies (CLS):
The Decolonial approach:
SA common law:
Roman law: Lex mercatoria, Roman Dutch law:
SA common law: …………………………………………………………………………………………………………………………………………………………………………………………4
Sources of law:
Making of legislation
Participatory democracy (the Restoration Act)…………………………………………………………………………………………………………………………………………….5
Common law, customary law, international agreements………………………………………………………………………………………………………………………………6
Substantiative vs procedural law
Divisions in public and private law
Subjects vs objects
Rights vs duties……………………………………………………………………………………………………………………………………………………………………………………….…….7
Hierarchy of courts
Action proceedings
Appeals
Judgments and reported cases
Law reports
When court can deviate from precedence……………………………………………………………………………………………………………………………………..……………. 8
Stare decisis
Full bench
Local and provincial divisions
Magistrates court
Doctrine of precedent…………………………………………………………………………………………………………………………………………………………………………………. 9
Jurisdictions of courts…………………………………………………………………………………………………………………………………………………………………………….…..10
Litigation vs ADR (CCMA) ……………………………………………………………………………………………………………………………………………………………………..…….11
Rights (democracy, constitutional, limitations)………………………………………………………………………………………………………………………………..………… 13
Legal practice act (LPA) and code of conduct ……………………………………………………………………………………………………………………………….…………….14
Fit and proper person
Legal representatives of state …………………………………………………………………………………………………………………………………………………………………….15
Ethics (Rest, utililtariasm, deontology, virtue)
Theories justifying lawyers role…………………………………………………………………………………………………………………………………………………………………..16
Experiments (milgram, good Samaritan)
Requirements for admissions into law
Struck from roll………………………………………………………………………………………………………………………………………………………………………………………….17
Public law: administration, constitution, criminal law (elements of crime)
Promotion of administrative justice act (PAJA)…………………………………………………………………………………………………………………………………..……..18
Private law
Original and derivative modes of acquisition…………………………………………………………………………………………………………………………………………..…19
0
,Definitions:
boni mores: legal convictions of community
Co -operative government: all spheres of government must work together to preserve peace.
Colonialism: period of transfers of legal institutions
Direct intention: deliberately plans to brin about outcome through act.
Doctrine of Judicial precedent: lower courts must follow higher courts.
Doctrine of stare Decisis: Like cases must be treated alike.
Eventual intention: did not wish for outcome but could have predicted it will result from actions.
Equal before the law: a necessary requirement for the application of the rule of law is that everyone
is judged equally.
Executive branch: implements new and existing laws.
Grundnorm clause: laws should be based on norms and be enforceable through coercion.
Horizontal application of constitutional rights binds natural persons and juristic persons by
themselves and one another.
Indirect Intention: did not aim for outcome but knew it will result from act.
Ius Commune: common law
Judgement: court’s reasoning (contains law, application, and conclusion)
Judicial branch: interprets law and ensures compliance.
Jurisdiction: Geographical area, type of case (civil, criminal, etc), court a quo or of appeal?
Jurisprudence: study of knowledge, science, philosophy of law, school of thought
Juristic person: Body recognised by law that has same rights as natural person.
Legislative branch: makes and changes law.
Obiter Dicta: Remarks in passing do not have binding force, do not create precedent. Can only
persuade.
Precedent: created by courts from case law and is principled on all being equal before law
Ratio Dicidendi: Reasoning of application of law (not reasoning of facts, must be necessary for law)
Rules: the legitimate exercise of individual external freedom in relation to other society members
Sanctions: consequences of breaching a law
Separation of powers: branches of government must check on each other without intruding.
Sovereign: person who makes and enforces rules in a society
State of nature: a lawless, rule-less society
State racism: racism embodies in laws and policies.
Supreme clause: binds national persons, juristic persons, and government.
Territorial jurisdiction: the geographical area over which the law has jurisdiction.
Transfer: where law is adapted and changed when imposed onto a colony
Transplant: where law is directly exported, as is, onto a colony (Britain’s English law)
Vertical application of constitutional rights only binds government/state.
1
,What is law?
It aims to balance peace and order.
What are its functions? SP(5)F
1) Settles conflicts by setting pre-existing impartial rules:
Must be impartial, accessible, no retrospective application.
2) Protects rights of groups and the individual:
Constrains, realizes, and protects law, sets sanctions, protects the rights of the majority and has
its limits.
3) Protects society by serving as framework for orderly conduct:
Must define persons status, functions, and powers. Regulates relations between persons and
institutions and conflict resolution. provides sanctions.
4) Protects legal systems:
Law protects itself with rules, i.e., constitution states that constitution can only be amended by
2/3 majority.
5) Provides mechanism to legitimise actions by state:
Defines function of government organs, regulates state conduct, and holds state accountable.
6) Provide institutions to settle disputes:
Determine conflict resolutions procedures and allows 3rd party resolution (CCMA)
7) Facilitates change:
Must accommodate change in society and allow new legislation, enactments, and amendments.
Court may employ a declaration of invalidity. (i.e., decolonisation of law)
How does a legal system function?
Law making > legal interpretation> adjudication > law enforcement> legal administration > legal
advice and representation. miaeaa
Factors that determine effectiveness of law: (CCCPE)
Clarity in drafting. Consistency, Changes and stability, Public awareness, Enforcementq
Natural law vs Positivism
Natural law Positivism
A set of higher norms (morality) against A law is valid as long as it follows procedure
which all posited (enacted) laws are Is not determined by morality.
measured. (if king said so, then is so)
Comes from god and can be discovered
through reason
Humanity and human dignity
2
, Colonialism and legal culture:
SA (as part of British empire) developed within a colonial legal context (in a racist state)
during the expansion of European law.
Colonies developed in relation to Britain and with awareness of each other.
Law forced races apart in a display of state racism during Nazism and segregation, implying
an international culture of racism.
How did state force races apart?
Racism within legal systems such as the transplant and transfers of British systems and the
introduction of binary systems (customary law for black people and common law for white people)
English influence during formation of SA law:
SA mimicked their organisation and procedures, self-conception of judiciary and profession, and
language of statutes and judgment.
Existing SA laws were considered non-existent/uncivilised and too focused on past traditions.
SA lawyers and judges were educated din Europe and Britain.
The constitution:
Basis of SA law with freedom charter at core.
Moves from sovereignty to interlinkage of parliament, executory and judicial branches, thereby
separating powers and eliminating possibility of abuse of power.
Dismantles racism, colonialism, imperialism, and apartheid systems.
Promotes dignity, equality, non-racialism, gender equality.
Any law inconsistent with constitution is invalid (supreme law)
Combines vertical and horizontal application of law.
Constitutional history of SA
1963: not supreme (parliament was sovereign), represented only white interests
1983: Tricameral constitution: protected white interests, parliamentary sovereign
1993: Interim constitution which was supreme law, represented all od SA, outlawed discrimination,
and contained 34 principles of final constitution
1996: Final constitution, certified by court, contained all 34 principles, has entrenchment allowing
amendments
Direct vs indirect horizontal application
direct indirect
Natural/juristic persons relying directly on bill of rights to when persons call for interpretation of constitution to
claim protection claim right in bill of rights
3
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