LEG2601-Legal Aspects of Environmental Management SUMMARY NOTES LATEST 2022. Learning Theme 1 – What is the law?
1.1 Introduction
- The law is the basis of any orderly society
- Moral and ethical rules that govern human behaviour are not usually legal rules.
- Biblical/ religious commandments...
LEG2601
Legal Aspects of
Environmental
Management
SUMMARY NOTES
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UNISA
LEG2601 – Legal aspects of
Evironmental Management
SUMMARY
IMPORTANT
- This is a summary of UNISA’s semester 1 &2 LEG2601 syllabus 2018
- READ THROUGH YOUR UNISA STUDY GUIDE FIRST!
- While the UNISA Study Guide and the relevant text book have been used to create
this summary, this summary is a broad outline of the syllabus.
- Get an overview of the module and then study each topic individually
- Use this guide in conjunction with the UNISA study guide – it is not a substitute
- Ensure you understand the content of this module in order to pass.
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Learning Theme 1 – What is the law?
1.1 Introduction
- The law is the basis of any orderly society
- Moral and ethical rules that govern human behaviour are not usually legal rules.
- Biblical/ religious commandments can constitute a legal norm e.g. thou shall not kill – murder is a crime and is the
intentional act of killing a person without jurisdiction
- Ethics: aka individual morality, comprise those guidelines that people may set for themselves and which they then
regard as binding in their conscience
- Community mores: aka positive morality, are the norms accepted as binding by a certain community,
1.2 defining “Law”
- The law can be defined as the only body of rules governing human conduct that is recognised as binding by the state
and if necessary enforced. ( the SA legal system & it’s background, 1968)
- Basic Characteristics:
o Society – must accept and obey these norms and rules
is a body of norms and riles that governs private and public action and interaction
o Must create order and legal security in society
o Is applied and enforced by the institution of the state e.g. courts
1.2.1 The law is a body of norms and values that must be accepted by the society as its legal system
- SA society must have confidence in the law and must approve and accept the body of rules, norms and values as the
law of the country
- The law must reflect the shared values, norms, and rules of the majority of society, but it must also be able to evolve
with a developing society
- The constitution is a “value-laden” document which is founded on democratic values of
o Human dignity
o The achievement of equality
o And the advancement of human rights and freedoms
- Courts have to interpret all law within the context of the constitution and give effect to these underlying values
1.2.2 The Law Governs relationships
- Rules and norms facilitate action and interaction between different people (legal subjects)
- The law determines how legal subjects should related to one another in a legal scenario
1.2.2.1 Legal subjects
- A legal subject is anyone who is subject to the norms of the law i.e. persons, bearers or rights and duties
- Natural or juristic person;
o Natural persons: human beings e.g. private property owners, rate payers etc.
o Juristic persons: (legal persons) are not natural persons but abstract entities.
The law gives them certain rights to act as a “person” in legal relationships
Have the capacity to perform certain legal actions e.g. buying and selling, suing, acting as a party in a
court case
- Other institutions and organizations that are not government institutions/ NGO’s and associations/ clubs/ groups are
recognised as legal persons in their different legal relationship with other legal subjects. They have entities who act as
agents/ spokespersons.
- A person (natural/ juristic) is a legal subject and is therefore a bearer of rights and obligations (duties)
- A juristic person does not have ALL the rights and duties of a natural person but the legal capacity to perform its
functions in terms of its legal relationship and be held accountable for its conduct.
1.2.2.2 Legal Relationships
- Legal relationships may exist between natural and juristic persons e.g. private company and private person
- A legal relationship may also exist between legal/ natural persons and the state e.g. government
1.2.2.2.1 Private Law relationships
- Private law is a branch of our law which has its origins in common law (unwritten law)
- Usually governed by sources of common law
- Between Natural or juristic persons – EQUAL relationship (horizontal).
- Represented by:
Natural/ juristic person Natural/ juristic person
- Relationship characteristics:
o Horizontal relationship-: equal relationship, both parties on equal footing
o Based on a voluntary agreement between subjects
o Persons are also called parties and act in their own (private) capacity to further their own interests
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- Established in the private law sphere without any interference from Government/ state – but The Constitution does
influence the same, the states Bill of Rights protects all persons against abuse by other private persons
1.2.2.2.1 Public Law relationships
- Public law is a branch which governs the public law relationship between legal subjects.
- More complex than private law
- ALWAYS UNEQUAL relationship (vertical)
- One party always holds an authoritative position
Organ of state
Subservient party
(Natural / Juristic person)
- Due to the unequal relationship, one party may be coerced by the authority
- The legal subject vested with authority is called -: “organ of state”
o Organ of state (Constitution)-:
“any department of state or administration in the national, provincial or local sphere of government”
“any other functionary or institution
(i) Exercising a power of performs a function in terms of the Constitution or a provincial constitution;
or
(ii) Exercising a public power or performing a public function in terms of any legislation”
- This does not include a court or judicial officer (magistrate/ judge)
- Difficult to determine what actually is an organ of state.
- A public power is obliged to work in an open, participative and accountable manner in the public interest
- The rights of a person may be limited – this needs to be evaluated in terms of the constitution
1.2.3 The Law must create legal order and legal security in society
- The law must create legal order and legal security by providing a system of legal rules
- Society must know what is illegal and legal & how to remedy a wrong
- When a law is ignored or disobeyed, the person accused of breaking the rules may be charged and punished if it is a
criminal offence.
o The law prescribes specific forms of punishment for specific offences or crimes and thus restores the legal balance
and maintains harmony in the community or society.
- Transgressing the law may give rise to a civil claim e.g. owning property- right of ownership- enforceable against other
people
1.2.4 The law is applied and enforced by institutions of the state
- The law is applied and enforced by institutions of the state e.g. courts & government bodies (Dept.)
- Procedures for enforcement are contained in the Constitution & legislation
- The law is applied and enforced by bodies or officials within the various government administrations – provincial/
national environmental depts. Local authorities etc. & specific bodies outside the dept.
- Anyone who is involved in a legal dispute may take their case to court to obtain a judicial decision
- The courts (judiciary) administer justice – interpret & apply the law in order to resolve a specific dispute
o Private, public or criminal law are seen in court
o Criminal offence – the alleged offender: the accused, the prosecutor presents the state’s case against the accused.
1.3 Classification of SA Law
- Law relating to the environment is a cross-divisional field of law
- Environmental law incorporates norms and principles of public, private and international law
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