what is law n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
What is Law? PowerPoint Presentation
Download Presentation
What is Law?

Loading in 2 Seconds...

play fullscreen
1 / 58

What is Law? - PowerPoint PPT Presentation


  • 94 Views
  • Uploaded on

What is Law?. The Rule of Law Definition of law: “The Law in the strict sense is the only body of rules governing human conduct that is recognised as binding by the state and which the state will, if necessary, enforce.” (Hahlo and Kahn, 1968:3)

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'What is Law?' - kana


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
what is law
What is Law?

Waheeda Amien 2008 Business Law I: Introduction

slide2

The Rule of Law

Definition of law:

“The Law in the strict sense is the only body of rules governing human conduct that is recognised as binding by the state and which the state will, if necessary, enforce.”

(Hahlo and Kahn, 1968:3)

“Authority, and in the last resort, force, are of the very essence of the law.”

(Hahlo and Kahn, 1968:4)

Waheeda Amien 2008 Business Law I: Introduction

slide3

Criminal: S v Jones

Civil: Jones v Smith

Magistrate = Magistrate’s Court

Judge = High Court

Magistrate & Judge must consider the following factors when presiding over a case:

particular facts of the case;

whether or not a particular rule or principle exists that is

relevant to the case; and

how the rule / principle has previously been interpreted

and applied by other judicial bodies.

Waheeda Amien 2008 Business Law I: Introduction

slide4

Bindingsources of South African Law:

The Constitution.

Legislation (and the interpretation of statutes).

Roman- Dutch Law (common law).

Judicial precedent (case law).

African Customary Law.

Custom.

Customary international law.

Waheeda Amien 2008 Business Law I: Introduction

slide5

Persuasive sources of SA law:

Laws and judgments of foreign countries.

Commentaries of legal academics.

South African judgments that the court is not obliged to follow.

Waheeda Amien 2008 Business Law I: Introduction

slide6

The South African Constitution

Supreme law of South Africa

(section 2).

Above all other law and legislation.

SA = ‘constitutional democracy’

(as opposed to ‘parliamentary democracy eg. Former apartheid SA).

All law must be constitutional otherwise it is invalid.

Waheeda Amien 2008 Business Law I: Introduction

slide7

The South African Constitution

Most important part = Bill of Rights.

Bill of Rights = chapter that contains the rights that we as citizens have.

27 rights-creating provisions = broadly categorised as

(1) civil and political rights and

(2) socio-economic rights.

Waheeda Amien 2008 Business Law I: Introduction

slide8

The South African Constitution

Examples ofcivil and political rights:

Equality

Dignity

Life

Freedom and security of the person

Privacy

Freedom of religion

Freedom of expression

Freedom of association

Rights of arrested, detained and accused persons to

remain silent; not to be compelled to make confessions; to receive a fair trial.

Waheeda Amien 2008 Business Law I: Introduction

slide9
The South African Constitution

Examples of socio-economic rights:

Education

Housing

Health care

Food

Water

Social security

Waheeda Amien 2008 Business Law I: Introduction

slide10

The South African Constitution

Rights in Bill of Rights adopted and adapted from international law namely,

International Convention of Civil and Political Rights (ICCPR)

International Convention of Economic, Social and Cultural Rights (ICESCR).

Adopted by the General Assembly of the United Nations in 1966.

State is obliged to promote, protect and fulfil civil and political rights immediately.

Socio-economic rights can be realised progressively subject to availability of resources.

Waheeda Amien 2008 Business Law I: Introduction

slide11

Legislation

Written laws that are passed by the legislative branches of government.

Parliament, provincial legislatures and municipal councils = legislative authority to make laws.

Original legislation – can only be set aside if unconstitutional.

Delegated legislation (regulations passed by government ministers) – can be set aside if ultra vires and unconstitutional.

Waheeda Amien 2008 Business Law I: Introduction

slide12

Legislation

Acts= passed by Parliament and the provincial legislatures.

Ordinances or by-laws = passed by municipal councils.

National legislation (passed by Parliament) = applicable throughout SA.

Provincial legislation = applicable within relevant province only.

Municipal legislation = applicable within borders of the particular municipality.

Waheeda Amien 2008 Business Law I: Introduction

slide13

Legislation

Parliament = exclusive jurisdiction:

to amend the Constitution; and

Over matters of national defence and foreign affairs.

Provincial legislatures = exclusive jurisdiction over eg., regulation of abbatoirs, ambulance services, granting of liquor licences.

Parliament and provincial legislatures = concurrent jurisdiction over eg., agriculture, consumer protection, health services, housing, tourism, trade and welfare services.

Conflict between national and provincial legislation? Question of uniformity.

Waheeda Amien 2008 Business Law I: Introduction

slide14

Judicial precedent

Case law.

Courts do not have direct law-making authority.

But courts acquire limited law-making powers that arise from the fact that they:

Must interpret laws when applying those laws; and

Obliged to follow earlier interpretations of courts of equal or higher standing (doctrine of stare decisis / judicial precedent).

Waheeda Amien 2008 Business Law I: Introduction

slide15

Judicial precedent

Relevant when facts of a later case are similar to facts of previous case, so that same legal issues are raised.

Applies to common law countries.

Create binding precedent where later courts are bound to follow the decisions of earlier courts of equal or higher standing.

Waheeda Amien 2008 Business Law I: Introduction

slide16

Judicial precedent

Ratio decidendi = ‘the reason for the decision’.

Ratio decidendi = statements that judge necessarily makes to arrive at final outcome of the case.

Obiter dicta = incidental statements delivered during the course of the judgment. Defined as:

“[A] judicial observation made in passing: one not necessary for the decision of the case. It is a stated thought that does not advance the reasoning by which the outcome is reached.”

(De Kock and Others v Van Rooyen 2005 (1) SCA 1).

Waheeda Amien 2008 Business Law I: Introduction

slide17

South African court structure

The Constitution vests judicial authority in:

The Constitutional Court.

The Supreme Court of Appeal.

High Courts.

Magistrates Courts.

Specialist Courts.

Waheeda Amien 2008 Business Law I: Introduction

slide18

South African court structure

Constitutional Court(1) Supreme Court of Appeal(1)

High Courts(13)

CPD, NCD, ECD, NPD, TPD, OFS, BOP, CK, TK, V, SEC, D&C, WLD

Magistrates Courts’ (+400)

Regional District

Waheeda Amien 2008 Business Law I: Introduction

slide19

Ratio decidendi

(which courts are bound by the decisions

of which other courts?)

All courts are bound by the decisions of the CC.

All High Courts and Magistrates’ Courts are bound by the decisions of the SCA.

Waheeda Amien 2008 Business Law I: Introduction

slide20

Ratio decidendi

High Courts:

Bound by earlier decisions of a bench of equal or higher standing within their own provincial division.

Single judge = bound by the decision of a previous single judge.

Full bench = bound by the decision of a previous full bench.

Full bench = not bound by the decision of a single bench.

High Court of one province = not bound by the decision of a High of another province.

Waheeda Amien 2008 Business Law I: Introduction

slide21

Ratio decidendi

Magistrate’s courts

Bound by High Court decisions of own province.

High Court within own province = not decided a point. But point = decided by High Court of another province. Magistrates’ court = bound to follow decision of High Court of other province.

Conflicting decisions between High Courts of two or more provinces:

Where point has not been raised in all High Courts, magistrates’ courts in provinces where High Courts have not had occasion to decide point must follow decision of High Court of higher standing (full bench vs single bench).

If High Court decisions are of equal standing, magistrates’ court must follow most recent decision.

Waheeda Amien 2008 Business Law I: Introduction

slide22

Roman- Dutch Law (common law)

Common law v Civil law.

African Customary Law

Section 211(3) of the Constitution elevated ACL from secondary status to level of common law.

Court can take judicial notice of ACL.

Judicial notice = court can accept existence of a customary law without requiring it to be proven provided it can be ascertained readily and with sufficient certainty.

Waheeda Amien 2008 Business Law I: Introduction

slide23

Custom (community practices)

Practices observed by particular communities.

Potential source of law.

To attain the status of ‘law’, a custom must be:

Certain;

Reasonable;

Uniformly observed by members of particular community;

Must have existed for a long time; and

Evidence of many community members is required to prove the existence of a custom.

Waheeda Amien 2008 Business Law I: Introduction

slide24

Customary international law

Longstanding practices / customs that exist between countries on an international level, which have given rise to binding principles.

Constitution obliges SA courts to apply the principles of customary international law unless they conflict with legislation that has been passed by Parliament.

Waheeda Amien 2008 Business Law I: Introduction

slide25

Legal Rights

Rights vs Duties.

Contractual rights.

Human rights (Bill of Rights).

Definition of a right:

“an interest conferred by and protected by the law, entitling one person to claim that another person or persons either give him something, or do an act for him, or refrain from doing an act.”

(Wille, 1991: 38).

Waheeda Amien 2008 Business Law I: Introduction

slide26

Legal Rights

Not all interests = rights.

Rights are whatever interests the state recognises as protecting as rights.

Two types of rights:

Personal rights; and

Real rights.

Waheeda Amien 2008 Business Law I: Introduction

slide27

Legal Rights

Personal rights

Lie against a particular person or persons only.

Personal rights are enforceable against a specific person only.

Waheeda Amien 2008 Business Law I: Introduction

slide28

Legal Rights

Real rights

Rights that a person has in things / physical objects.

Can be exercised against the world at large, including people who have done you no harm.

Waheeda Amien 2008 Business Law I: Introduction

slide29

Legal Rights

Real rights v Personal rights.

If one person has a real right in something and another person has a personal right in that same thing, the real right trumps the personal right.

Waheeda Amien 2008 Business Law I: Introduction

slide30

Legal Personality

Bearer of rights and duties;

Has capacity to acquire rights and duties by her / his own conduct;

Has capacity to sue or be sued.

Waheeda Amien 2008 Business Law I: Introduction

slide31
Legal Personality

Legal construct.

Identity of legal persons may change over time.

Two types:

Natural persons; and

Juristic persons.

Waheeda Amien 2008 Business Law I: Introduction

slide32

Legal Personality

Natural persons:

All human beings.

During life, human beings have rights, duties and capacities.

Determined by a range of factors such as age, mental health, insolvency, nationality.

Waheeda Amien 2008 Business Law I: Introduction

slide33

Legal Personality

Natural persons:

Age:

Children below seven = irrebuttably presumed to lack criminal and delictual capacity

Children between seven and 14 = rebuttably presumed to lack criminal and delictual capacity;

Everyone over 14 = rebuttably presumed to have criminal and delictual capacity.

Waheeda Amien 2008 Business Law I: Introduction

slide34

Legal Personality

Juristic persons:

Artificial persons.

Entities that do not have a physical existence in the same way that human beings do.

Examples: companies, universities, churches and charities.

Can acquire rights, duties and capacities.

Created by legislation.

Waheeda Amien 2008 Business Law I: Introduction

slide35

Legal Personality

Separation between legal personalities of juristic persons and natural persons = important.

Because people would be reluctant to invest in companies or be employed in companies if they could be held personally liable for the debts and legal obligations of the company.

So separation provides protection for investors and employees.

Waheeda Amien 2008 Business Law I: Introduction

slide36

Branches of the law

International law

National law / Domestic law

Public law Procedural law Private Law

Criminal law Civil procedure Property

Administrative law Criminal procedure Persons

Constitutional law Evidence Commercial law

Law of obligations

Company law Delict

Tax law Contract

Labour law Unjustified enrichment

Law of insolvency

Law of Negotiable Instruments

Waheeda Amien 2008 Business Law I: Introduction

slide37

Branches of the law

International law

Governs the relations between nation states.

Established through:

Treaties and conventions (agreements between/or among countries namely); and

Customary international law.

ICCPR, ICESCR, CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), Law of the Sea Convention, International Monetary Fund, World Bank and World Trade Organisation.

Parliament must expressly incorporate the provisions of a particular treaty into SA law.

Application of international law could influence the content and shape of national laws.

Waheeda Amien 2008 Business Law I: Introduction

branches of the law national law domestic law comprises procedural law and substantive law
Branches of the law

National law

Domestic law.

Comprises procedural law and substantive law.

Waheeda Amien 2008 Business Law I: Introduction

slide39
Branches of the law

Procedural law

Describes the procedures that must be followed for a case to be litigated before a court of law.

Waheeda Amien 2008 Business Law I: Introduction

slide40
Branches of the law

Substantive law

Sets out the specific rights and duties of persons.

Consists of public law and private law.

Waheeda Amien 2008 Business Law I: Introduction

slide41

Branches of the law

Public law

Governs the relations between the state (acting in a public capacity) and private individuals.

Private law

Governs the relations between private individuals.

Waheeda Amien 2008 Business Law I: Introduction

slide42

Branches of the law

One type of conduct could give rise to liability under different branches of law eg.:

Criminal law (branch of Public law)

Delict (branch of Private law / civil law)

Unjustified enrichment (branch of Private law / civil law)

Contract (branch of Private law / civil law)

Waheeda Amien 2008 Business Law I: Introduction

slide43

Branches of the law

A B

(employee of B)

C D

(knowledge of theft) (innocent buyer)

What legal action can be taken against A and C?

Waheeda Amien 2008 Business Law I: Introduction

slide44

Branches of the law

Criminal law

Any wrongful behaviour that is considered a crime is identified as such either by common law or statutory law.

S v Jones

(State versus Jones, the accused).

State investigates through police.

State decides to prosecute through prosecuting authority.

Victim = complainant.

Waheeda Amien 2008 Business Law I: Introduction

slide45

Branches of the law

Criminal law

Magistrate / judge = decides innocence or guilt of accused.

Accused = guilty, magistrate / judge can impose a fine and/or imprisonment.

Purpose of fine and imprisonment = punish the accused, not to compensate the victim.

Victim could obtain compensation through a civil claim under the law of delict.

Waheeda Amien 2008 Business Law I: Introduction

slide46

Branches of the law

Delict

Enables person to claim compensation from someone who has caused her / him harm.

Purpose of delictual action = compensate victim / injured party rather than punish perpetrator.

Action brought by injured party, not the state.

Law of delict rests on a general prohibition against causing harm to another.

Not always clear whether conduct can lead to delictual liability.

Waheeda Amien 2008 Business Law I: Introduction

slide47

Branches of the law

Delict

Conduct = both wrongful and blameworthy in particular circumstances of the case.

Conduct = wrongful if legalconvictions of society regard it as wrongful.

Conduct = blameworthy if perpetrator caused harm intentionally or negligently.

Waheeda Amien 2008 Business Law I: Introduction

slide48

Branches of the law

Delict

Harm caused intentionally:

Dolus;and

Dolus eventualis = intention by virtue of the fact that the possibility of harm was actually foreseen by the perpetrator.

Waheeda Amien 2008 Business Law I: Introduction

slide49

Branches of the law

Delict

Harm caused negligently:

Reasonable person test:

Would a reasonable person in the position of the defendant have foreseen the possibility of her / his conduct causing harm to another?

Would a reasonable person in the position of the defendant have taken steps to guard against such harm occurring?

Did the defendant fail to take such steps?

Waheeda Amien 2008 Business Law I: Introduction

slide50
Branches of the law

Delict

Compensation can be claimed for

financial losses; and

non-financial losses.

Waheeda Amien 2008 Business Law I: Introduction

slide51

Branches of the law

Delict

Damages for financial loss (quantifiable) includes:

Damage to or destruction of property.

Medical expenses.

Loss of income etc.

Waheeda Amien 2008 Business Law I: Introduction

slide52

Branches of the law

Delict

Damages for non-financial loss (unquantifiable) includes:

Injury to a person’s physical and emotional well-being (pain & suffering; emotional shock; loss of amenities of life).

Injury to ‘personality’ interests eg. impairing someone’s dignity or reputation.

Waheeda Amien 2008 Business Law I: Introduction

slide53

Branches of the law

Unjustified Enrichment

When one person has been unfairly enriched at the expense of another, the latter may be able to claim back the value of the enrichment.

Waheeda Amien 2008 Business Law I: Introduction

slide54

Branches of the law

Unjustified Enrichment

No general law of unjustified enrichment.

Specific enrichment actions:

Condictio causa data causa non secuta

(entitles a person to recover performance that was never legally owed);

Condictio indebiti

(entitles a person to recover where performance was legally owed eg. contract, will etc. but performance exceeds what was actually owed or was rendered to the wrong person).

Waheeda Amien 2008 Business Law I: Introduction

slide55

Branches of the law

Unjustified Enrichment

Success on an enrichment action depends on the following requirements being met:

Impoverishment of party who performed.

Enrichment of party who received performance.

Causal link between impoverishment and enrichment.

Waheeda Amien 2008 Business Law I: Introduction

slide56

Branches of the law

Unjustified Enrichment

Can only claim enrichment if it still exists at the time of issuing summons.

Enriched person has duty to preserve enrichment if s/he knew or should have known that s/he was being unjustly enriched.

If enriched person fails to preserve enrichment intentionally or negligently, s/he will be liable to compensate impoverished party.

Waheeda Amien 2008 Business Law I: Introduction

slide57

Branches of the law

Contract

Parties entering into a contract with each other = bound by terms and conditions that they agree to.

Failure to act in terms of contract = constitutes breach of contract.

Party against whom breach was committed could be entitled to:

Sue for specific performance; or

Cancel contract and claim damages for reasonably foreseeable financial losses that occurred as a result of the breach.

Waheeda Amien 2008 Business Law I: Introduction

slide58

Branches of the law

Contract

Conduct = constitutes breach of contract could also be = wrongful and blameworthy under law of delict.

Party could recover either contractual or delictual damages.

Waheeda Amien 2008 Business Law I: Introduction