PVL1003W: Foundations of South African Law (PVL1003W)
Institution
University Of Cape Town (UCT)
This document contains case summaries of the cases required in Term 3 of the Foundations of Law course at UCT. It also includes how each case upheld or diminished the Rule of Law and whether there was a display of judicial activism or passivity in any of the judgements. The issues that come up in t...
PVL1003W: Foundations of South African Law (PVL1003W)
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1) Wookey v Incorporated Law Society 1912 AD (week 3)
2) R v Detody 1926 AD 221 (week 3)
3) R v Padsha 1923 AD 281 (week 3)
4) Minister of Posts and Telegraphs v Rasool 1934 AD 167 (week 4)
5) R v Abdurahman 1950 (3) SA 136 (A) (week 4)
6) Loza v Police Station Commander 1964 (2) SA 545 (AD) (week 5)
7) Rossouw v Sachs 1964 (2) SA 551 (A) (week 5)
8) Schermbruker v Klindt NO 1965(4) SA 606 (AD) (week 5)
9) Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) (week 6)
Women’s rights: Wookey v Incorporated Law Society; R v Detody
Public amenities: Minister of Posts and Telegraphs v Rasool; R v Abdurahman
Detainment: Loza v Police Station Commander; Rossouw v Sachs; Schermbruker v Klindt;
Minister of Law and Order v Hurley and Another
NB DUGARD AND EXPOSING INARTICULATE PREMISES OF JUDGES (also highlights
how judges hide behind positivism - escape accountability)
Common law presumption - only rights which are expressly removed by legislation
should be limited by the courts. (if the legislation itself does not contain wording that
limits the rights and liberties of the individual, then the court should apply provision
restrictively to not further limit the rights and liberties of the individual)
Important elements of the rule of law:
● Everyone is equal before the law (NB substantive vs formal)
● Separation of powers
● Independent judiciary
● Open and transparent lawmaking process
● Considering the morality of lawmakers and the inner morality of law - purpose it serves in
society
The most recent definition of rule of law also provides 3 elements:
1. law is supreme
1. that there must be certain basic rights and freedoms including equality before the law,
2. these basic rights and freedoms are not absolute
Dicey’s definition: absolute supremacy of the regular law, equality before the courts and
the fact that the rule of law is shaped from below
Dicey's basic features of rule of law:
a) Law does not recognise any special rights for any individual or group of individuals.
,b) Law does not recognise any distinction between one individual and the other on the basis of
religion, race, sex, etc.
c) None is punished without proper trial. (Sachs?)
d) All will be tried by the same court under the same law.
e) The rule of law does not give scope to absolute and arbitrary powers to the executive.
1: Wookey v Incorporated Law Society 1912 AD
Facts: Miss Wookey applied to be a candidate attorney, to be a clerk and serve articles as an
apprentice attorney. The Cape Law Society refused to register her articles and she decided to
approach the court. In the Cape high court Judge President Maasdorp ordered them to register
her articles, but the law society decided to appeal and was heard by the appellate division.
There were no women advocates during this time.
Issue: Whether or not Miss Wookey was a ‘person’?
Reasoning:
● Primary legislation referred to was s 20 of the Cape Charter of Justice which provided
that such ‘persons as may be instructed in the knowledge and practice of law may be
enrolled as attorneys’
● ‘Person’?
○ She argued that the words persons did not indicate a gender
○ Law society countered and said that there had never been any female
practitioners in the legal field and the practice of the time should inform the social
and judicial interpretation of the word persons
○ AD applied argument of the social and professional reality of 1912, court
maintained the cape charter of justice had been adopted during a time when
women could not be admitted as attorneys and that if the charter had intended to
change that reality it would have clearly stipulate men and women
○ AD also maintained that it was necessary to consider how the word persons was
used elsewhere in the act, the court did so and argued that it would have been
unthinkable to have had a female chief justice.
● AD lastly referred to roman dutch law which stated that women could not fulfill public
office.
○ Error in logic? One cannot rely on history, e.g. in earlier years it was
prohibited for blind people to hold public office or jewish people, laws which had
been amended by 1912
● AD relied on judicial precedents from SA and the UK, saying it should rely on imperial
authority and that since there were no female solicitors in england there should be no
female attorneys in SA
● Judge Innes claimed that he differed from Judge Maasdorp with ‘real regret’; stated that
parliament should change this law and that the court should not try to do so through
, interpretation of the statute (which was vague and gave the courts an opportunity to do
so)
Outcome: The law society’s appeal was unanimously upheld and the court maintained that
persons meant male only.
Attitude towards women changed:
● Act of parliament, Women Legal Practitioner’s Act 7 of 1923
○ Allowed women to become attorneys and advocates
● Two women in legal profession in 1994
1. Justice van den Heever - Appellate Division
2. Justice Treverso - Deputy Justice President of the Cape
Effect on rule of law: Not upheld because it infringes on the core principle of equality. Also
exemplifies how parliamentary sovereignty lacks accountability, another key pillar of the rule of
law, because the courts and public have no ability to hold Parliament accountable for oppressive
legislature, only the ability to mitigate its effect where possible and if the judges choose to do so.
Judicial activism/passivity?
● Innes, A,C.J. stated that while he sympathised with her position that the ‘Legislature of
the country is the only source from which relief in a case of this kind can be obtained’, which
absolves him of his duty to the equality pillar of the rule of law. The legislature is not
clear cut in its use of the gender neutral term ‘person’ which means if he had used his
discretion to interpret the definition more widely he could have solved her issue. Rather,
his narrow interpretation led to the infringement of her dignity to be treated as her male
counterparts entering the legal profession. He fails to acknowledge this as an option
available to him. He stated he believed that Parliament should change this law but that
the Court had no jurisdiction to do so. Example of how positivism and conservatism
resulted in the limitation of individual freedoms.
● De Villiers, J.P. ‘The question for the Court to decide is what the law is, not what the
law ought to be. Now, it may at once be conceded that when the statute says, " no
person . . shall be admitted as an attorney or notary" the word "person" is wide enough
to embrace women as well as men. Whether it does must be determined by ascertaining
the intention of the Legislature. For in employing the word "person" it must have been
the intention of the Legislature either to confine the exercise of these professions to men
only or to include women as well. The statute itself does not throw away light upon the
matter, and in the absence of any other or further indication of its intention on the part of
the Legislature, we have to look at the history of the subject. ‘
○ Error of history
○ Extremely positivist take, denying a value-based legal system wherein the inner
morality of law is considered and his responsibility to values such as equality
necessitated by the rule of law.
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