SECTION: 1
Overview of the Law
1. Overview of the Law
TABLE OF CONTENTS
Content Page
Section 1 Overview of the Law 1
Overview 3
The concept “Law” 5
The origin of Law 8
Criminal and Civil Law 12
1.4 The concepts “natural person” and legal person 14
1.5 Summary 16
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Learning Outcome The following is the Learning Outcome of this Section:
1. Have an Overview of the Law.
Learning The Learning Objectives are as follows: Objectives On completion of this Section, you will be able to:
1. Have an Overview of the Law by:
Comprehending the concept “Law”
Realising the origin of Law
Differentiating between Criminal and Civil Law
Differentiating between the concepts “natural person” and “legal person”
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Assessment To demonstrate the achievement of the Learning Objectives, you are required to Criteria meet the criteria and/or provide the following evidence:
Comprehending the concept “Law” Define the concept “Law” Identify the purpose of Law Describe the objective of the Law
Realising the origin of Law Describe the origin of Law Identify the function of: Constitutional Law Statute Law Common Law Customary Law
Differentiating between Criminal and Civil Law Differentiate between Criminal and Civil Law Describe the function of criminal and civil actions
Differentiating between the concepts “natural person” and “legal person” Differentiate between a “natural person” and a “legal person” Identify the rights of a natural person Identify the rights of a legal person
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1.1 The concept “Law”
Introduction With a view to peace and order in any community, some or other form of authority is essential to deal with possible conflicts of interest and to maintain order. Without laws, there would be confusion, fear and disorder in society. This does not mean that all laws are fair – a law can be unfair and still be the law.
Every society agrees that some laws are necessary, but the laws should be made in a democratic way, so that they will be fair and just.
Purpose of law The first and foremost purpose of law is to maintain peace and order in the community. Our society cannot exist without law. Without rules of conduct, there cannot be order, and without order, there cannot be peace and progress.
The concept “law” In the world in which we live, there are various laws and rules to which everything and everybody is subject – from nature to man himself.
Firstly, we have laws of nature, for example, the law of gravity and the laws of conservation of energy and matter. The Creator established these laws and they control the functions of nature – they are universally applicable and leave no freedom of choice.
Whilst natural laws order the functions of nature, normative laws regulate our behaviour. These laws cover every imaginable human action and relationship from birth to death; they allow a certain degree of freedom of choice and they differ from one community to another.
Use the space below and note any laws that affect you directly, every day of your life. Think about your working conditions, for example, law governs your working hours. On your way to work today, you adhered to traffic rules and regulations – also regulated by law.
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The concept A characteristic of all these types of laws that you have listed above, in contrast “law”, continued to the laws of nature, is that they are not objectively valid laws of nature, but are merely man-made principles.
In this Unit, we are dealing with the “law” of legal science, in other words, the rules of law, which control human behaviour by forcing people to perform certain actions and restraining them from performing others.
Again, think about your journey to work this morning. You were “forced” to obey certain traffic rules and regulations, for example, stopping at a red light or at a stop street. There are also certain laws that “force” your employer to provide you with a clean and safe work environment.
Think about the credit environment and particularly your job function. Note any two laws that “forces” you to behave in a certain way, for example make credit decisions, etc.
If you cannot think of any examples, talk to your colleagues or your Coach.
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Definition of “law” It is not easy to give a definition of the concept “law”. Experts in law maintain that the concept ”law” has more than one definition. The following are two examples:
“Laws in the wide sense are simply rules of action. In this sense, a law is a statement of what invariably recurs time after time in certain given conditions or circumstances. There are, for example, the laws of science, such as the laws of mechanics, of chemistry or of botany. Or the laws of art, such as the laws of logic, music and painting. The kind of law, however, with which we are concerned is the law which regulates the actions or conduct of human beings, that is, the law which obliges people to do certain acts and to abstain from doing others.” (Gibson, 1977, p. 9.) “… law in the strict sense is the only body of rules governing human conduct that is recognised as binding by the State, and if necessary, enforced.” (Hahlo & Kahn, 1973, p. 3).
In short, we can say that the law is a set of rules used to control the behaviour of people in society. The law tells you what:
You must do You must not do, and Others may not do to you
In other words, the law tells you about your legal “rights” and “duties”.
Read through and discuss the above definitions with another Learner or colleague. Write down your understanding of the concept “law” in the space below.
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1.2 The origin of law
Introduction Before the European settlers arrived at the Cape, the people of South Africa had their own law and rules. Today these laws are called “Indigenous Law” or “Customary Law”.
When Jan van Riebeeck arrived at the Cape in 1652, the Dutch Settlers brought their law from the Netherlands. This is called “Roman Dutch Law”. For the next 150 years, this Roman-Dutch Law was the official law of the Cape.
In the 1800s, the British took over the rule of the Cape from the Dutch. They brought English law with them.
In 1910, the four colonies of South Africa joined to become the Union of South Africa. This created one central government with the power to make all the laws of the country. But most people were not allowed to vote for this government. So, the laws were made by a government, which was not elected in a democratic way. For the majority of people of South Africa, many of these laws were very wrong.
In April 1994, one central government was elected democratically for the first time in South Africa.
Today’s law comes mainly from these cultures:
The culture of the people who were here in the beginning The culture of the settlers from the Netherlands The culture of the British settlers, and The culture of the liberation movements
Our laws are derived from various sources, i.e.:
Constitutional Law Statute Law Common Law Customary law, and Judicial Precedent
Constitutional In 1996, a new constitution was established in South Africa, namely the Law Constitution of the Republic of South Africa, Act 106 of 1996.
Section 2 of the Constitution says that the Constitution is the supreme law of the land. No other law can go against the Constitution.
Provincial Governments can make their own constitutions, but these constitutions cannot go against the National Constitution.
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If you have access to the internet, you can access the Constitution at the following address: http://www.gov.za/constitution/1996/96cons.htm
Statute Law Statute Law is written law (legislation), which has been made by the government. Laws made by Parliament are called statutes or acts. They are published in a government newspaper called the Government Gazette. Parliament can give the power to make less important laws, to other groups of people or to a minister.
Legislation means the creation of a legal instruction by a competent authority. Legislation plays an extremely important role at all times.
Legislation may be said to be the enunciation of binding rules of law in a formalised way, by an authority endowed with legal capacity to do so.
(Hahlo and Kahn, 1973)
These rules and regulations are always expressed in written form. In South Africa, Parliament, which consists of three chambers, is the highest legislative authority. Although Parliament is the highest legislative body, it is not the only body invested with legislative power. There are also Provincial councils, Divisional Councils, etc.
Sometimes a statute gives power to a person (for example a minister), or a body (for example the Department of Welfare) to make regulations.
Provinces, towns and cities are allowed to make their own laws, which only apply to them. These are called ordinances for the provinces, or by-laws for the towns and cities.
The Constitutional Court can declare any Statute Law invalid if it goes against the Constitution. Other courts can only declare less important laws invalid.
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Statute Law, In short, we can define legislation as follows: continued Legislation is the creation of new legal rules where none existed before and it comprises acts of Parliament, government regulations, provincial ordinances, municipal by-laws, etc.
“This source of law is considered the most important source because it is a deliberate law-making process which can be used to achieve innumerable results in society.”
(Swanepoel, 1984, p. 4.)
Common Law Common Law is the set of laws not made by Parliament or any level of government. Crimes like murder, rape, theft and treason are part of the Common Law. The Common Law has developed through the decisions of judges in the courts. The Roman Dutch and English Law brought by the Dutch and the British Settlers is part of the Common Law. The Common Law can be changed by new decision in the courts.
The Common Law applies to everyone equally in the whole country. But Statutory Law is stronger than Common Law. It is only when there is no Statutory Law about something that the Common Law will apply.
Customary Law Custom is the primary source of law in any tribal society where rules of law are not recorded in writing. Because of prolonged and common use in a specific society, a custom or habit can obtain the force of law. It is known to be the oldest form of law.
There is not much Indigenous or Customary Law in today’s South African law. There are chief’s or headman’s courts, but these can only deal with some cases between African people. An example of such law would be the Code of Zulu Law in KwaZulu-Natal, where this Code would apply in family matters.
In most instances, Customary Law has already been included in some form in legislation, or has become recognised by judicial precedent.
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Judicial precedent This is the law, known as Case Law, which derives from judgements made by the (Case Law) courts.
The judge or magistrate looks carefully at the law to see if there is a rule, which fits the case. If there is already a rule, then they must use it.
Sometimes, there is no rule to fit the case. The judge or magistrate must now make his or her own judgement. If the judgement sets a new rule of law, this creates a precedent, in other words the judge sets a new standard.
Sometimes there is a rule, which covers the facts of the case, but it has always been applied in a particular way. A person may argue that the rule can be applied in a different way. If the judge or magistrate decides that the rule can be used in a new way, then the judge or magistrate gives a new interpretation or explanation of that law. The judgement can also be called a precedent.
Although it is the function of the court to implement the law and not to act as legislator, new legislation is often a consequence of the discharge of this duty.
In this way, the courts can interpret any obscurities in any Act, especially a new one, so that people will know what is expected of them. The constant developments of the law are reflected in judgements handed down by the courts.
Discuss the above sources of law with another Learner/s or a colleague. Use the space below and summarise your understanding of each of the sources of law.
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1.3 Criminal and Civil Law
Introduction There are two main kinds of law in South Africa, Criminal Law and Civil Law. Constitutional Law affects both Criminal and Civil Law.
Criminal Law In a criminal case, the state prosecutes the accused person, for committing a crime or breaking the law. If the court finds the person guilty, the person can be sent to prison, fined or punished in some other way.
Examples of different crimes and breaking the law are:
Assault Trespass Public violence Money laundering, etc.
Usually the state is not the complainant (the one making the charge). The state prosecutes, but any person or individual can be the complainant and lay a charge against another person or against the state.
A criminal case can be brought against anyone who broke the law, including a person who works for the state, such as a member of the police or defence force. So, if, for example, you are unlawfully assaulted or shot by a member of the police, you can bring a criminal case against them.
Civil Law Civil Law is the set of rules for your private relationships with other people. The state does not take sides in a dispute between private people.
Examples of what Civil Law deals with are:
Marriage and divorce If someone owes you money Rent agreements Evictions Damage to property Injury to people Disputes over a hire-purchase agreement, etc.
A civil case is usually brought by a person (called the plaintiff), who feels that he/she was wronged by another person (called the defendant). If the plaintiff wins the case, the court usually orders the defendant to pay compensation.
The state may be involved in a civil case as a party if it is suing or being sued for a wrongful act. An example would be if government property is damaged or a government official injures somebody without good reason.
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Criminal and civil Sometimes a person’s act may lead to both criminal and civil actions. For actions example, Joe Soap steals money from the Bank. This is a crime of fraud. The state will prosecute him in a criminal court if the Bank lays a charge against him. If there is enough proof to show that he is guilty, he may be punished by the state.
But Joe Soap also caused injustice to the Bank. The Bank could sue Joe Soap and make him pay back the stolen money. This will be a civil claim through the civil court.
The two kinds of laws, Criminal and Civil, are quite self-explanatory. If you are uncertain what these two kinds of laws entail, discuss this with your Coach or fellow Learners. Ensure that you understand the difference between the two. Note your understanding of these laws in the space below.
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1.4 The concepts “natural person” and “legal person”
Introduction The term “person” is commonly used in legal science. Where this term is used, it is used as a legal term and it does not only mean a human being, but is a synonym for “legal subject”.
Definition of the A person is somebody who, or something which: concept “person” Can make contracts and thereby become a creditor or a debtor Can enrich and be enriched by other persons Can injure and be injured by other persons Can acquire and alienate real rights in property Can legally enforce his rights, and Be liable to have his duties and obligations enforced against himself (Gibson, 1977, p. 57.)
From the above we can conclude that the term “person” is also used in a wider context. In South African Law, there are two kinds of persons, namely a natural person and a legal person.
Natural person In terms of modern legal systems a natural person is a: Human being Legal subject, whatever his/her shortcomings may be
A person’s legal personality begins as soon as a child is born alive. A still-born child is not a person in the eyes of the Law.
Legal person A legal person is a human being or entity subject to the law. A legal person comprises a certain community, association or body of people. Examples are a church, sports club, company, etc. It can also consist of certain societies or associations. Examples of these are a sports union consisting of a number of clubs or a company, which has individuals, as well as other companies as members. “An artificial, fictitious, or juristic person is an entity, with a name of its own, but having no physical existence, and existing only in contemplation of law, on which the law confers personality, that is, the capacity to acquire rights and to incur obligations.”
(Gibson, 1977, p. 155)
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Rights of a natural It was mentioned that a person’s legal personality starts at birth. This does not and a legal person however mean that the unborn child has no rights. For example:
A child, whose father died before his birth, has the right to share in the estate of his father, with or without a will, as if he was born at the time of his father’s death.
Where the father of a child is killed because of the negligence of a third person before the child was born, the child has a right to claim damages from the person who committed the unlawful deed.
A natural person is a legal subject with legal subjectivity. Legal subjectivity means the competence to acquire rights and to possess those rights after acquisition.
Therefore, a person can, for example, acquire the right of property. This does not however mean that all persons have the same legal capacity.
Legal capacity means the ability in law to take legal action or to have action taken against you.
There are differences in legal capacity between major and minor, South African citizen and a foreigner, etc.
We mentioned that a legal person also has rights. A legal person, such as a company, can own property and take legal action in its own name.
Discuss the concepts “natural person” and “legal person” with your Coach or fellow Learners. Ensure that you understand the difference between the two concepts. Note your understanding of the concepts in the space below.
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1.5 Summary
Summary Below is a summary of the key learning points of this Section. Read through them carefully and ensure that you understand all the concepts. Discuss any uncertainties with your Coach before you move on to the next Section.
The purpose of laws is to maintain peace and order in the community. Laws promote order – without order there cannot be peace and progress
The Constitution is the supreme law of the land. No other law can go against the constitution
Legislation, as a source of law, comprises the following:
Acts which are passed by Parliament Ordinances, proclamations and regulations of the various provincial councils By-laws and regulations of municipalities, divisional councils, etc., and Proclamations and regulations promulgated by the State President and Administrators
Common Law is the set of laws not made by Parliament or any level of government. The Common Law has developed through the decisions of judges in the courts. Common Law is unwritten law, common to a country as a whole and not limited to a specific area. Also referred to as Roman- Dutch Law
Statute Law is written law, and includes all acts, ordinances, by-laws, regulations, etc
Judicial precedent, also known as case law, is derived from judgements made by the courts
Customary Law does not comprise written rules or rules made by a sovereign legislative body, but they are binding, in other words, rules of law
This law is rules of behaviour, which must be obeyed because it has become a custom for people to respect them
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Summary, The two main kinds of laws in South Africa are Criminal and Civil Law. continued Criminal Law includes theft, rape, etc. Civil Law is the set of rules for private relationships with other people
A legal person is a human being or entity subject to the law
Man is not the only person who is recognised by the law – the legal person is also recognised
A natural person as well as a legal person can enter into legal transactions
The legal capacity of persons differs
Legal capacity means the ability in law to take legal action or to have action taken against you
Use the space below and summarise the key learning points from this Section.
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