LEARNING UNIT 1: INTRODUCTION TO LAW

Objective:
 Define what law is
 Make a distinction between law, ethics and positive morality
 Discuss the sources of South African Law
 Classify the South African Law

Anticipated outcomes:
After discussion of topics under this learning unit, the students must know the following:
 Understand the term ‘Law’
 Appreciate the distinction between law, ethics and positive morality
 Know the sources of South African Law
 Have a grasp of various classifications of laws under South African jurisprudence

1. Concept of Law

There are different kinds of law which in one way or another, determine and control one’s
relationship with other people and things. Examples are: the laws of nature, the laws of
science, the laws of economics, laws applied by the courts etc.

However, for the purposes of this course, the focus is on laws that regulate human
behaviour and human conduct, that is, the laws that regulate the legal relationships
between human beings and between human beings and things.

These laws constitute the normative systems that prescribe, determine and regulate the
norms or standards of human conduct, that is, what a person may or may not do in relation
to oneself, in relation to other persons and in relation to the things around us.

Normative systems have as their primary objective the regulation of a person’s behaviour in
human society so that peace and order can prevail in a civilized state. The most significant of
the normative systems are the law, ethics and positive morality.

The next question that will now be asked and answered is: What is law?

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2. Defining the term ‘law’

There is no universally accepted definition of the term ‘law’. Basically, the difficulty in
defining ‘law’ lies in fact that there are so many things that need to be included and the
things to be included are so unbelievably different from each other.

In defining law, philosophers and jurists have approached legal science from different angles
and perspectives. Each method of approach seems to emphasize a particular fact of law.

Be that as it may, the law may be defined as that body of rules that governs the conduct of
persons, both natural and juristic, is recognized by the state as binding and enforceable. It is
very instructive to note that “In the definition stated above, reference is made to ‘natural
and juristic persons’ and this brings the discussion to the meaning of the phrase ‘natural and
juristic person’.

In every society, primitive or civilized, there must be body of rules, which members of the
society must regard as the standard of behaviour, without which there may be anarchy. In
other words, law is aimed at social arrangement for human existence. Without law, ‘the
society becomes the devil’s workshop where the logic of the criminal reigns’.

One of the striking nature of law is that it is dynamic; it keeps changing.

A very interesting account of law covering its various facets, given by Chief Justice Mukherji
of India, is very instructive in this regard.

According to him:

“In the garden or forest of jurisprudence, there are many fruits. Law is divine. Law is
natural. Law is custom. Law is contract. Law is a command of the human sovereign.
Law is a social fact. Law is a union of primary and secondary rules. Law is prediction.
Law is experience. Law is an unrealizable ideal. Law is a practical and realizable
compromise. Law is a balance of social and individual interests. Law is a tradition.
Law is morality. Law is what judges say from the Bench. “The Law” is different from
“Laws”. Confusing as all these may appear and which confusion led someone to say
that “Law is an Ass”, there is perhaps a strain of fusion in the midst of all this
confusion. If the law is like the beast of burden, it is because law has to bear many
burdens of human life in action, old and new, predictable and unpredictable.”

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3. Distinction between law, ethics and positive morality

Though the law may be recognized by the state as biding upon its subjects, it is by no means
the only normative system that governs human behaviour. Ethics and positive morality are
other normative systems that also regulate human conduct.

 Ethics

“Ethics” are the norms or rules of moral conduct that are prescribed by individuals for
themselves. For example, an individual may prescribe for himself that he will not smoke,
while another may prescribe for himself that he will neither drink nor smoke. Ethics are
adopted by individuals for the purpose of attaining virtue and the perfection of character
and are, therefore, directed towards the development of the inner character.

 Positive morality

“Positive morality” relates to the ethical principles that are adopted by a community at a
given time as binding upon the whole or part of that community. Unlike ethics that
prescribe norms of conduct for the individual, positive morality prescribes behavioural
patterns or norms of conduct for the community. For example, although gambling is allowed
in law, some communities may not allow its members to participate in it. In other words,
such an activity is frowned upon by the community.

The main purpose of ethics, positive morality and the law is to maintain order and regularity
in human society. It is not surprising, therefore, that an ethical principle may develop into a
rule of positive morality, which may ultimately attain the force of law. However, this not
always the case in every jurisdiction. For an example, adultery which is ethical in origin and
frowned upon by the community is not a punishable criminal offence in South Africa, but it
is punishable in many nations especially in the Arabs countries, where Islamic law is
practiced.

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4. Purposes of law
There are 2 purposes of law: order and justice.
 Order
The main purpose of the law is to maintain order and peace in the community. The law
limits what people may do and by placing rules on people, the law makes it possible for
people to live together peacefully, even if they have competing interest. For example, all
motorists must drive on the left hand side of the road in South Africa. This rule maintains
order on the South African roads.

These rules are both the price and the reward for people living in communities. The same
rules that prevent us from abusing others protect us from the abuse of others. As pointed
out by Cicero, a Roman Statesman who died in 43 BC, “We are the slaves of the law in order
that we may be free’.

 Justice
The concept of ‘justice’ refers to the general sense of people as to what is fair and right. The
closer a legal system comes to being just, the more willingly it will be obeyed by people. The
law must be seen to be just and fair. An unjust system of law can only be enforced by strong
punishment, and the people ultimately will rebel against that.
For the law to be seen as just, it must meet the following requirements. These requirements
are called ‘the postulates of justice’.

 Reasonableness: Legal rules must be reasonable to achieve justice. Random,

senseless, or silly rules bring the legal system into disrepute;
 Generality: Legal rules must apply equally and consistently to all legal subjects.
 Equality: Legal rules must apply equally in similar circumstances. However, this does
not mean absolute equality for everyone. For example, it would not be rational to
treat adults in the same way as minors, or the insane in the same way as sane
people. But different rules must not be random, unpredictable, or unreasonable. For
example, racial discrimination does not treat people equally in similar circumstances.
 Certainty: The same result must be achieved if the circumstances are similar. The
law should generally be predictable. This allows people to adjust their conduct
because they know that the law will say.
 Due process: An independent, unbiased judiciary must apply the law. Judges must
give serious thought to the facts of each case, as well as the law. Their decisions
must be made in the interests of the law and justice. They must not favour one side
or the other. Courts should be open to the public, and the loser of a court case

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 should be allowed to take a decision on appeal or review. Courts must be impartial
and judges should not be influenced by outsiders to the case, such as a political
group or the government. A judge should not hear a matter in which he or she has a
personal interest. This is referred to as the principle of nemo judex in causa sua,
which simply means, ‘You cannot be a judge in your own case’.

Justice must not only be done but should be seen to be done, a party to a case must
be given an opportunity of presenting his or her own version. This is called the
principle of audi alteram partem, that is, both sides to a dispute must be heard.

Justice delayed is justice denied. Therefore, it is important that courts deal with
cases as soon as possible.

5. Rule of law
The ‘rule of law’ is an important legal concept that has huge influence on our lives as it is the
basis for our whole system of constitutional democracy. A country that adheres to the rule
of law ensures that all persons and organisations, including the government, are subject to
the law and accountable to it. The rule of law involves concepts larger than government and
citizens knowing the law and obeying it; the concept includes ‘checks and balances’ on the
use of government power and the independence of the judiciary.

The rule of law provides a basis for many fundamental human rights, some of which are
expressed in the Constitution of the Republic of South Africa. These include: the right to life
and the right to liberty and security.

Many international human rights documents refer to the importance of the rule of law,
including the European Convention on Human Rights 1950 and the preamble to the
Universal Declaration of Human Rights of 1948, which declares that is ‘…..essential, if man is
not to be compelled to have recourse as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of law.’

There are 3 meanings to the above phrase: first, law should prevail over arbitrary power.
Secondly, under the law everyone is equal, and no one can avoid complying with the law.
Thirdly, the rules set out in the Constitution are not regarded as the source, but rather the
results, of the individual rights of the people.

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6. The Sources of South African Law

The term “sources of law” refers to the origins of the law, and discussion around the sources
of South Africa Law will focus on the important sources which are: common law, legislation
(statute law), judicial precedent and custom.

 Common Law

The common law of South Africa is the law that developed under the influence of other legal
systems. Roman-Dutch law–the root of South Africa law–is frequently described as the
common law of South Africa.

However, it is not only Roman-Dutch law, but also Roman law and English law, which have
given rise to the principles that undergird the South African legal system today.

In the next segment, a brief discussion on the historical background will assist in
understanding how the South Africa law developed from these legal systems.

 Roman Law

Arguably, Western civilization’s greatest heritage is Roman law, which developed from basic
religions and customs into a precise science of the legal principles relating to human
conduct. This was achieved during the growth and expansion of the Roman Empire which
happened between the years 753 BC and 565 AD.

This period is classically divided into 3 phases namely:

o The era of kings (753 BC – 510 BC)

o The Roman Republic (509 BC – 27 BC)
o The imperial period (27 BC - to the fall of the Roman Empire)

 The era of the kings (753 BC-510 BC)

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  During this period, Rome was a small and a primitive state with an essentially
agrarian community. The laws of that community were likewise primitive and
unsophisticated, being a mixture of religious morals and customs.
 Although Rome was ruled by kings, the application and administration of the law was
essentially in the hands of the priests.
 However, as the city of Rome grew, it became necessary to consolidate the laws into
one piece of legislation and the attempt to do so resulted in the Law of the Twelve
Tables, published circa 450 BC. The Law of the Twelve Tables was to form the basis
of future Roman Law.

 The Roman Republic (509 BC-27 BC)

 It was during this period that the small city-state of Rome extended its boundaries
into Western Europe, to grow into the mighty Roman Empire.
 In response to the growth of the Roman Empire, the law naturally had to be
developed to provide for the increasing commercial and foreign activities in Western
Europe.
 The praetor, the most important official responsible for the administration of justice
in Rome during this period under reference, together with the jurists, contributed
immensely to the development and modification of the existing laws in order to
regulate relationships, not only between Roman citizens, but also between Roman
citizens and foreigners within the Roman Empire.

 The Imperial period (27 BC-to fall)

 The Imperial period of the Roman Empire can be divided into 2 periods, namely: the
Principate (27 BC-284 AD) and the Dominate (284 AD-to fall of the Roman Empire).
 The Principate, characterised by a republican government, came under the influence
of the emperor, who was now called the princeps (the first person). While the
influence of the princeps as a legislature grew, that of the praetor began to diminish.
It was during the period of the Principate-which came to be regarded as the golden
age of Rome-that the Roman Empire and its laws reached their greatest heights.
Roman law had by now developed into a highly sophisticated and precise system.

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  The Dominate was characterised by the absolute rule of the emperor, now called the
dominus (the master). This period first witnessed the division of the Roman Empire
into the Eastern and Western Roman Empires and later also the decline of the
Roman Empire and the concomitant decline and deterioration of legal science.
 Legislation by the emperors became the principal source of law, but a plethora of
legal works by classical jurists saw the light of the day.
 In the end, it was Emperor Justinian who made a lasting contribution to Roman Law
when his codification of the law, called Corpus Juris Civilis or Corpus Juris Iustiniani,
was published.

 Roman-Dutch Law

The fierce offensive of the Germanic tribes of Western Europe culminated into the collapse
of the Western Roman Empire in 565 AD.

The 5th and 6th centuries saw the rise of the Germanic Empire.

Although it would have been expected that Germanic law would replace Roman law
completely, this did not happen. Instead, Roman law was adopted or received either
formally or informally in several Germanic states of Western Europe.

By the close of the 15th century, the reception of Roman law into the Netherlands which was
a feudal dependency of the Germanic Empire had been accomplished.

Roman-Dutch law was as a result of the fusion between Roman law and the Germanic laws
of Netherlands. Beside political and economic factors, several reasons could be adduced for
this. However, two major reasons stand out for the reception Roman law in Netherlands and
these are:

o Roman law was a codified, systematic and scientific legal system, whereas
the Dutch customary laws were unwritten and unsystematic. As a result,
where no Dutch customary law was unavailable, recourse was had to the
Roman law;
o The courts and jurists of Netherlands were in the fore-front of the
adoption of Roman law in Netherlands. Because of the unscientific and

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 unsystematic character of Germanic laws, the Dutch jurists engaged
themselves in a systematic development of the law of Netherlands and as
a result, strong reliance was placed on Roman law.

Roman-Dutch law was formally introduced into the Cape by Jan van Riebeeck, who
established a refreshment station for the Dutch in 1652.

By the time a Dutch colony was established at the Cape, Roman-Dutch law had become
firmly rooted as the foundation of the South African common law, which was to be carried
across the borders of the Cape into the erstwhile Orange Free State, Transvaal and Natal.

With the adoption of Roman-Dutch law in the Cape Colony, institutions for the
administration of justice, namely the Raad van Justitie, the Landdrost and the heemraden,
were introduced.

 English law

In the late 18th and early 19th centuries, Britain occupied the Cape, first in 1795 and again in
1806. Despite the occupation, Roman-Dutch law remained intact as the common law of the
inhabitants of the Cape.

When the Cape was ceded to Britain circa 1814, the English legal rules took over. Initially,
the reception of the English was confined to the administration of justice where, for
example, the Council of Justice (Raad van Justitie) was replaced by the Cape Supreme Court
and the inferior courts of the Dutch colonists, the courts of the landdrost and heemraden,
were replaced by resident magistrates or magistrates’ courts.

Inevitably, the reception of English legal system became more direct and normal after the
British settlers arrived in the Cape. In 1826, English criminal procedure was introduced to
the Cape, followed by the English law of evidence in 1830 and the regulation of insolvent
estates in 1843.

Later the English companies’ laws and the laws governing negotiable instruments were
adopted and to that extent, the present-day South African company law and the law on

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negotiable instruments can be said to have been modelled directly on their English
equivalents.

It must be noted that although the common law of South Africa has been modified to a
great extent by legislation and judicial decisions to cope with the complexities of modern
society, it is entrenched as part of our law by the Constitution of the Republic of South
Africa (section 108 of 1996) which provides that all laws prior to the commencement of the
Act shall remain in force until altered or repealed by parliament.

 Legislation (statute law)

Legislation or statute law is the most important source of South African law.

The Constitution vests legislative powers in 3 spheres of government: Parliament, consisting

of the National Assembly and the National Council of Provinces, responsible for national
legislation; the provincial legislatures responsible for legislation at the provincial level and
the municipal councils responsible for local government.

Constitution is the supreme law and all other laws are subject to it. It is against this
backdrop that any legislation passed may not be in conflict with the Constitution, in
particular, Chapter 2 on Bill of Rights. The Bill of Rights deals with the fundamental rights of
individuals.

Essentially, in terms of sections 43 and 43 of the Constitution, the legislative powers of the
Republic vest in the President and Parliament.

Once a Bill has been adopted by the Parliament, it is assented to by the President, by him
appending his signature to it and it becomes law as soon as it is promulgated, that is,
published in the Government Gazette.

Although law passed by the Parliament are the primary source of legislation, other forms of
legislation are made by bodies and persons with authority to do so. These forms of
legislation are referred to as “delegated legislation” and they include the following-

o Proclamations by the State President in terms of the Constitution;

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 o Regulations by ministers of state departments in terms of the relevant
empowering laws;
o Provincial legislation or ordinances of the provincial legislatures;
o By-laws of the various municipalities;
o Rules and regulations made by statutory bodies such as the South African
Medical and Dental Councils and universities, in terms of the relevant
enabling statutes.

 Judicial precedent

Constitutionally, judiciary interprets and applies law through the courts as institutions.
When a court is seized of a legal dispute, the judge applies an existing legal rule in order to
resolve the dispute.

Judicial precedent or case law is a common law doctrine and sometimes referred to as stare
decisis. It has become a vital bridge for continuity of established judicial practice.

Under the doctrine, cases decided by higher courts are binding on lower courts within the
same judicial hierarchy. A precedent may either be binding or persuasive. If it is binding, it
becomes obligatory for the lower court to toe the line of the decision handed down by the
higher court. A judge may not settle a dispute arbitrarily. If this were allowed, there would
be a variety of judgements for disputes that are of a similar, if not identical, nature. This in
turn would lead to uncertainty and lack of uniformity in the development of law in a
country.

In order to avoid this and achieve consistency and uniformity in the application of law,
judges must adhere to the rule of stare decisis which literally means “to stand by previous
decisions”. This means that the judgement delivered in a previous case is followed in a
subsequent matter of a similar nature.

There two aspects of a court’s decision that deserve particular mention: the ratio decidendi
and the obiter dictum.

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 o The ratio decidendi is the reason in law for the decision and it is this aspect of
a decision that is binding and must be followed by lower court in a
subsequent and similar case.
o An obiter dictum is an incidental remark or remark made in passing by a
judge in arriving at a decision. It does not form part of the ratio decidendi and
is, therefore, not binding on other courts in subsequent cases.

However, obiter dicta have persuasive value and are usually used by legal counsels to
persuade the court of their arguments.

Below is the summary of the manner in which judicial precedent is applied by courts in
South Africa-

o The Supreme Court of Appeal is qualifiedly bound by its own decisions, which
means, that the court has to follow its own previous judgements, unless it is
satisfied that the earlier decision was wrong;
o The judgement of the Supreme Court of Appeal binds all the other courts
excluding the Constitutional Court. Thus the provincial and local divisions of the
High Court as well as all lower courts are absolutely bound to follow the
decisions of the Supreme Court even if that decision is wrong;
o The divisions of the High Court are qualifiedly bound by their own previous
decisions, that is, they are bound by their previous judgements, unless the earlier
decision is wrong.
All the courts subordinate to a provincial division and in the jurisdictional area of
that provincial division are absolutely bound by the decisions of that provincial
division, even if they are wrong;
o The decisions of one provincial division do not bind the courts in the
jurisdictional area of another provincial division, but such decisions nevertheless
have persuasive authority on the courts in other areas.

The judicial decisions of the Constitutional Court, the Supreme Court of Appeal and the High
Court are reported in order to provide easy access to those decisions that have to be
followed. There are several publications containing these judgements such as The South
African Law Reports and the All South African Law Reports.

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  Customary law

Customary law has its origins in the habits or traditions of a community and it is unwritten.
By repeated usage and observance, a custom may develop into a rule of law, provided it is
recognised as such by a competent authority such as a court of law.

In the commercial context, customary law is also referred to as trade usages and plays an
important role in the business and commercial world. It is often alleged that a trade usage
exists within a certain trade or business and that the parties to a contract are bound by it.

In the celebrated case of Van Breda and Others v. Jacobs and others, the then Appeal Court
or Appellate Division (as it then was and now the Supreme Court of Appeal) laid the
thresholds for a rule of custom to be recognized as a rule of law-

o the custom must be reasonable;

o the custom must have existed for a long time;
o the custom must be generally recognized and observed by the community; and
o the contents of the customary rule must not contradict any existing rule of law.

 Public International Law

Public International Law is another source of South African law, especially the rules of
customary international law and treaty obligations. It is sometimes called the law of nations
and consists of the body of rules governing the relations between countries in terms of both
peace and war.

The basic principles are the recognition of the ‘sovereignty of states’ and the obligation to
respect agreements between independent countries, which is also known as pacta sunt
servanda.

Under the South African law, an international convention or agreement does not become
part of the national law unless it is ratified by the Parliament. In other words, even if the

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President signs a treaty or an international agreement, it will not be binding on the country
until it is agreed to by the Parliament.

Treaties in particular, after being consented to, ratified and incorporated into the municipal
law, form the bulk of the international law source of the law.

 Text Writers

The influence of academic writers on the development of law has been marked. Academic
writings have played a vital role in stimulating intellectual discourse, which, over the years,
have succeeded in improving the legal and intellectual contents of the bodies of laws and
eventually removing defects in the law and pointing the way forward.

7. Hierarchy of Courts

The Constitution of the Republic of South Africa, 1996, is the supreme law of the country
and binds all legislative, executive and judicial organs of State at all levels of government.

The judicial authority in South Africa is vested in the courts, which are independent and
subject only to the Constitution and the law.

No person or organ of State may interfere with the functioning of the courts, and an order
or decision of a court binds all organs of State and people to whom it applies.

A distinction is usually made between lower and higher courts. In addition, there are
specialized courts dealing with particular types of cases.

The court system in South Africa is hierarchical with the Constitutional Court and Supreme
Court of Appeal at the apex, followed by the High Courts and then the regional and district
magistrates’ courts. All courts, however, are required by the Constitution to function
independently and impartially. The capacity and authority of a court to inquire into and
decide upon a matter is termed its jurisdiction, and this is limited by factors such as
geographical territory, the amount being claimed in a civil trial, and the severity of sentence
in a criminal trial.

The Constitution provides for the following courts:

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 o Constitutional Court-the highest court in constitutional matters and sits in
Johannesburg.
o Supreme Court of Appeal-the highest court in all matters except constitutional
issues and is based in Bloemfontein;
o high courts, including any high court of Appeal that may be established by an Act
of Parliament to hear appeals from high courts;
o magistrates’ courts;
o any other court established or recognised in terms of an Act of Parliament,
including any court of a status similar to either high courts or magistrates’ courts.
o Other courts include: income tax courts, the Labour Court and the Labour Appeal
Court, the Land Claims Court, the Competition Appeal Court, the Electoral Court,
Divorce Courts, Small Claims Courts, Military Courts and Equality Court.

Decisions of the Constitutional Court, the Supreme Court of Appeal and the High Courts are
an important source of law. These courts uphold and enforce the Constitution, which has an
extensive Bill of Rights binding all State organs and all people.

The courts are also required to declare any law or conduct that is inconsistent with the
Constitution to be invalid, and develop Common Law that is consistent with the values of
the Constitution, and the spirit and purpose of the Bill of Rights.

 Jurisdiction

Judicial power is the ability to deal with a matter within jurisdiction. There is no power to act
except with respect to a subject matter within the jurisdiction.

Jurisdiction therefore refers to the power and authority of a court to hear and resolve a
dispute before it.

The jurisdiction of a particular court is determined by the following factors:

 Authority to hear constitutional matters-The courts’ powers to hear constitutional

matters in South Africa vary. For example, if a case raises a constitutional question,

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 the matter will have to be instituted in the High Court as magistrates’ courts have no
constitutional jurisdiction. From the High Court, the appeal will lie to either the
Supreme Court of Appeal or to the Constitutional Court directly. If one of the parties
is not satisfied with the Supreme Court of Appeal’s decision on a constitutional
matter, he or she may subsequently appeal to the Constitutional Court. The
Constitutional Court’s decision on a constitutional matter is final, and no further legal
process may take place. This is why decisions of the Constitutional Court are so
important. The jurisdiction to hear constitutional matters goes together with the
authority to declare law or conduct inconsistent with the Constitution null and void
to the extent of its consistency.
 Geographical territory-The territorial jurisdiction of the Constitutional Court and
Supreme Court of Appeal are national. These courts have jurisdiction to hear a
matter irrespective of where the parties to the litigation live or work or where the
acts that gave rise to the legal dispute took place. The jurisdiction of all other courts
however is limited.
 Amount of the claim in civil proceedings-A civil claim instituted in a district
magistrates’ court can generally not exceed R100, 000. While there is no upper or
lower limit on a civil claim instituted in the High Court, in practice it would be
sensible to institute all claims below R100 000 in a magistrates’ court , as legal costs
are calculated on a lower scale in the lower courts. In small claims courts, the
amount claimed may not exceed R11 000.
 Severity of sentence in criminal proceedings- All the courts may hear criminal
matters, but the jurisdiction of the courts is limited by the sentence which can be
imposed in terms of the amount of the fine or number of years’ imprisonment. The
district magistrates’ courts may not impose a fine exceeding R60 000 or a term of
imprisonment exceeding three years, while the regional magistrates’ courts may not
impose a fine exceeding R300 000 or imprisonment exceeding 15 years.
 Nature of the proceedings-Some civil and criminal matters may not be heard by the
magistrates’ courts. The district magistrates’ courts can hear all civil matters except
for cases which affect the status of natural persons, such as divorces, a declaration of
insanity, or a presumption of death order, cases which involve the interpretation of a
will, and cases which claim specific performance without an alternative claim for

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 damages. As regards criminal matters, the district magistrates’ courts can hear all
matters except treason, murder and rape, while the regional magistrates’ courts can
hear all criminal matters except treason.
 Appeal jurisdiction-Magistrates’ courts have no appeal jurisdiction. In principle, all
High Courts are courts of first instance and courts of appeal. If the court consisted of
a single judge, an appeal lies to a full bench of the same Division, or to the Supreme
Court of Appeal. In the case of an appeal against a full bench of a Division, an appeal
lies only to the Supreme Court of Appeal. The main seat of a Division has concurrent
appeal jurisdiction over the area of jurisdiction of any local seat of that Division.

8. Classification of South African Law

The starting point is to distinguish substantive law and adjectival or procedural law

Substantive law lays down people’s rights, duties, liberties and powers, while adjectival or
procedural law relates to enforcement of rights and duties, in particular, it concerns
procedure and evidence.

For example, if rules of procedure are ignored or neglected, a perfectly valid and
recognizable right is lost to a person undoubtedly entitled to assert it. A claim, which is mis-
stated or not lodged in time, or a document not correctly stamped, can ruin one’s chances
of obtaining title at law or of recovering damages for breach of contract or for negligence.

To that extent, procedure can determine substantive rights, but procedural law is not a
branch of law that deals primarily with a person’s rights; it is the substantive law that does
so.

Also, international law should be distinguished from national laws. International Law is the
“Law of Nations” and regulates the relationship between States in time of peace and war.
Also, it regulates matters such as international treaties, boundaries of states, territorial
waters, air space and the organs of state in international relations. On the other hand,
National Law is the law of a country. South African legal system is traditionally divided or
classified into public law, private law, and formal law. There are other branches as well,
although there is a no clear-cut distinction.

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It is also important to distinguish written Law (Lex Scriptum) from unwritten Law (Lex Non-
Scriptum).

o Written laws or leges scripta, are those laws that are enacted in some written form,
such as an Act of National Assembly or Parliament. They have the advantage of being
ascertainable and found in a compendium. They are more precise and easy to apply
to a given situation than laws that are no written.
o On the other side of the coin, unwritten laws or leges non-scripta such as moral laws
or customary laws inherently lack precision, not easy to ascertain and profoundly
difficult to apply. They have the character of being flexible at times, unreliable. There
may be conflicting versions. Example is customary law.

 Public Law

Public Law regulates the legal relationship between the state and the legal subjects of the
state. In other words, Public Law concerns the public or general interest.

Public Law is divided into Constitutional Law, Administrative Law and Criminal Law.

o Constitutional Law-Constitutional Law deals with the Constitution, powers

and functions of the bodies of government and regulates the relationship
between these bodies inter se and between these bodies and the legal
subjects of the state.
o Administrative Law-Administrative Law deals with the organization and
authority of the executive organs of state. It is concerned with the structure,
powers and functions of the administrative organs of state and the
relationship between these organs inter se and these organs and the legal
subjects of the state.
o Criminal Law-Criminal Law defines which human acts are unlawful and
prescribes the punishment for such crimes. It covers both the common law
crimes and statutory crimes.

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  Private Law

Private Law is that branch of the law that regulates the relationship between individuals or
persons on an equal footing.

Private Law is sub-divided into: the Law of Persons and Family Law, the Law of Things,
Mercantile Law, the Law of Succession and the Law of Obligations-

o The Law of Persons and Family Law-This branch of law deals with the public and
domestic status or persons, such as minors and insane persons.
o Family Law deals with the family relationships and governs the engagement,
marriage and its consequences, legitimacy and illegitimacy of children and divorce.
o The Law of Things-This branch of law concerns the real rights and these are rights
that a person may have to a thing such as the right of ownership, possession,
mortgage, pledge and liens.
o The Law of Obligations-It deals with personal rights, that is, a claim which one legal
subject may have against another, for example, a claim for repayment of money lent
to a borrower. Obligations usually arise from contracts, delicts and various other
sources such as a parent’s duty to support his child.
o The Law of Succession-It deals with the manner in which a person’s estate (assets) is
distributed after his death. This branch of the law is sub-divided into testate
succession where distribution takes place in terms of a will, and intestate succession
where no will is left and distribution takes place according to prescribed laws.
o Mercantile Law-This branch of the law concerns the laws relating to commercial
transactions such as banking, insurance, floatation of business enterprises,
competition law, consumer rights and insolvency law. Intellectual Property Law and
Labour Law are also part of this branch of law.

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  Formal Law

Formal Law covers the Procedural Law and Law of Evidence.

Procedural Law deals with the enforcement of the rights which a legal subject has. Basically,
it defines the procedure to be followed where an aggrieved legal subject seeks a remedy for
an infringement of his rights.

Procedural Law is however divided into the Civil Procedure and the Criminal Procedure.

o Civil Procedure defines the procedures to be used when one private

individual sues another private individual;
o Criminal Procedure defines the procedure to be followed when the
State prosecutes a person who has committed a crime.

The Law of Evidence defines what facts should be proved in a court case and how they
should be proved.

Interpretation of Statutes as a branch of law deals with rules that are applied in interpreting
or constructing the meaning of a statutory provision where there is ambiguity or unclear.
Rules of interpretation are applicable not only to statutory provisions but also to contracts,
wills and other written documents.

 International Law

International Law is divided into two branches-Public International Law and Private
International Law also known as the Conflict of Laws.

While Public International Law focuses primarily on the relation between states and consists
of international agreements and customary rules, Private International Law deals with the
way by which civil disputes should be resolved where a national law of a country is in
conflict with a foreign legal system.

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