CML1004S Notes
Overview of the South African legal system
Law is the body of rules to regulate human conduct, recognised as binding and enforced by the state.
Compliance with the law is not voluntary.
- Failure to comply will result in sanctions, for example, arrest by the police, imposition of a fine or
confiscation of goods, etc.
Moral: Principles of what is right and wrong behaviour – norms that prescribe how people act.
- Compliance is voluntary
Some laws can be considered morally repugnant, in the contrast, some laws are morally neutral.
Ethics influence our decision-making and are guided by our values and morals.
Rule of law: Laws must be reasonable, apply consistently to all legal subjects (no one is above the law),
apply equally in all circumstances and be predictable, in order to be considered “just”.
SA is a constitutional democracy
- State of the governor in power has been selected by the people
- Equality: Everyone is equal in front of the law
There is a separation of power among the three organs of state.
- To avoid one person having all the power.
- May not interfere with each other’s powers.
Organs of state
- The South African state’s structure, powers and functions as set out in the Constitution.
Legislature - Makes the laws
- Parliament
- The constitution also recognises provincial and local government levels
(municipality councils) legislative structures.
Executive - Enforcing the law
- President leads
- Supported by various ministers
Judiciary - Applies and interprets the law
- Comprised of various courts
- Head of Superior Courts: Chief Justice R.M.M. Zondo
-
Legal personality
Persons are capable of holding rights and duties.
- Must have the legal capacity to be the bearer of rights and duties.
, - Capacity to act is the capacity to perform juristic acts – an act to which the law attaches at least
some consequence envisaged by the law parties.
- Legal capacity can be affected by certain factors
o Marital status
o Age
o Insolvency
o Mental illness
Natural persons
- All human beings
- Hold rights and duties from being born till death
- A foetus is not a natural person according to the law.
- Protects the interest of unborn persons using the nasciturus fiction.
o The child must have been conceived at the time the benefit would have accrued to him
or her, and the child must be subsequently born alive. If the child passes away, the
estate goes back to the surviving parent
Juristic persons
- Non-living associations that are given the capacity to hold rights and duties in terms of enabling
legislation.
Companies Act 71 of 2008
- Gain capacity upon registration.
Private Company (Pty) Ltd
Public Company Ltd
Non-profit company NPC
Limited liability Company Inc
State-owned company SOC Ltd
- A company requires a separate legal personality
o Separate from its founders and shareholders
o Recognised as a juristic person
Can own property
Be sued
Sue
Have perpetual succession (continuous to exist even if the founder dies)
Enter into contracts
Liable for debts
- Natural person acts on behalf of the company
Higher Education Act 101 of 1997
- Regulates Public Universities
- Section 22
o Upon declaration as a public higher education institution, the assets, liabilities, rights
and obligations devolve upon the institution.
o Any agreement entered into by or on behalf of the institution is deemed to have been
concluded by the institution.
Duty registered institutions of higher education in terms of the act given juristic
persons’ status.
, Animals in law are not legal subjects nor have legal capacity.
The law takes note of animals’ behaviour, and any person who suffers harm caused by an animal can
claim damages from the animal’s owner.
Legal rights
- Refers to a legal interest protected by the law
- Enables one to claim or protect something in which one has a legal interest from another person.
- An interest is not protected in law.
Real right Personal right
What is it Right you hold in a thing. Hold against a specific person and enforceable
Enforced against anyone. For against a specific person. For example,
example, a laptop maintenance
How are they Ownership/possession, Contract
created usually created by contract Delict
- Act that is harmful towards a person or
property.
- Scratch a car
Unjustified enrichment
- Someone receives due benefits not due
to them
- Student received a huge amount from
NSFAS
Method of Delivery, registration Transferred from one person to another by a
transfer cession.
- Seeded personal rights to another
person.
- Provides affected persons with legal remedies
o Measure through which rights can be enforced
o Provides remedies because infringing a right or legal duty attracts legal liability.
Action
Claim that the other party must comply with the duty or compensate for losses
suffered.
- Vicarious liability: Employers are liable for delicts caused by their employees while performing
their duties.
- Rei vindication: Real right to the something
- Legal subjects may have legal rights to:
o Corporeal things
Tangible things
o Incorporeal things
Intangible things
Shares to a company
o Intellectual property
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