A comprehensive summary of the course notes for CML4607F. The following topics are covered, including case examples required for 2024: The South African Legal System, The World of Work, Law of Contract, Labour Law, Risk Management, Legal Structures for the Carrying On of a Business & Corporate Gove...
What is the Law?
• Various rules and norms regulate human behaviour
• Four types of conduct rules:
1. Rules of religion
2. Rules of individual morality
3. Rules of collective morality
4. Rules of law:
principle of governance in which all people, institutions, entities and the
state are accountable to.
• Rules and norms often overlap
• E.g. A murders B → murder is a crime, goes beyond the law
• Rules of law may supersede other types of conduct rule
• The role of the law within the engineering profession:
- Ethics (creates standards by which parties must act)
- Labour relations
- Legal structures to carry on a business and corporate governance
- Contracts
- Intellectual property
- Risk management
- Dispute resolution (provides mechanisms to resolve conflict)
Is the Law fair or just?
• Could be subjective → not always fair or agreed with by individual/collective
morality
• Often seen as a rigid structure but law evolves (what is acceptable changes
over time)
• Natural law: a set of unwritten rules (values and law) that humans must
adhere to without other intervention through formal legislation
• Positive law: the law is what it is, and must be adhered to regardless of
morals and values
• Juristic personality: a non-human entity, such as a corporation or religious
group, that the law recognises as having legal rights and duties of a human
being → has the responsibility to not infringe on others’ rights
, Classification of the Law
The Law
International Law National Law
Procedural Law
Substantive Law
comprises procedural principles and
comprises legal principles requirements
i.e. it is a criminal offence to i.e. you must reply to pleading
commit murder (document that needs to be submitted
during court proceedings) within 10
days
Examples: Criminal procedure, Civil
procedure, Law of evidence, Legal
interpretation
Public Law Commercial Law
Private Law
law that exists combination of public and
between the state law that exists private law (to some extent)
and its subject between persons or and is also law of relavance
which deals with
i.e. the goverment to commerce, trade and
persons alone industry
and a person
The different types of law and what it aims to regulate:
,Sources of South African Law
1. The Constitution and Legislation
The Constitution:
• Supreme law and all other laws/actions/policies must comply with it
• Regulates the structure of the state, including:
➢ Parliament
➢ National Council of Provinces
➢ President & Executive
➢ Provincial legislatures
➢ Local government
➢ The courts
➢ Chapter 9 institutions (Public Protector, SAHRC, Auditor
General, Electoral Commission)
➢ Public administration
➢ Security services
➢ Traditional leaders
➢ Finance
• Also regulates the role and status of international law in South Africa
• Includes the Bill of Rights (applies to all law)
• Refer to the Constitution Section 1 entitled “Republic of South Africa”,
Section 2 entitled “Supremacy of Constitution” and Section 8 for
Application
Legislation:
• Written laws passed by national/provincial/municipal government,
which bind everyone or specific groups within the population
(e.g. creditors and debtors)
• Refers to statutes, acts, regulations etc.
• Types of legislation include:
➢ The Constitution
➢ Parliamentary legislation (national legislation)
➢ Provincial legislation (provincial regulations)
➢ Subordinate legislation (local level and other)
• Can change existing law (e.g. common law principles)
, • Designed to:
➢ Fills gaps and loopholes
➢ Update existing law
➢ Engage in social engineering
➢ Ensure legal protection
➢ Promote legal certainty and provide clarity
• Statutes are found in Government Gazettes and electronic versions
• You can search by title, year and category (i.e. Labour Relations Act,
Act 66 of 1995, Employment/Labour Law)
• Legislation is enforced as follows:
➢ Criminal law – by police, prosecutors, and the courts
➢ Administrative law – by courts, tribunals and criminal
prosecution
➢ Civil law – litigation/arbitration by individuals (courts and other
bodies)
2. Common Law
• Not a codified system
• Applies where there is no specific legislation e.g. lease contract
• Can be ‘abrogated by disuse’ (to abolish by authoritative action)
e.g. crime of adultery
• Section 39 (2) of the Constitution: duty on courts to develop the
common law (in line with the constitution and Bill of Rights)
• May also be amended by legislation
• SA law influenced by Roman Dutch Law and English Law
e.g. locatio conductio operarum (roman employment relationship) -
contract for rendering of personal services
3. Custom Law
• Long standing, established practices within specific communities
• Derived from the customs of society which are carried from one
generation to another
• Usually unwritten
• A custom can be a source of law only if it meets the following 4
requirements:
1. In use for a long time
2. Must be fair/reasonable
3. Certain and clear content
4. Generally recognised and faithfully observed by society
4. Indigenous Law
• Unwritten customary law which applies to many African communities in
South Africa
• Applied in the ordinary courts in accordance with the principles of
conflict of laws
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