Introduction to legal concepts A

1. Introduction to legal concepts A 2019 Certificate in Forensic Investigation Techniques, Monday 26 August 2019

2. Introduction to legal concepts • Introduction to the role of a forensic investigator • Introduction to legal concepts • Introduction to Law, Definitions, Elements, Defences. • Video clips on Criminal Law • https://www.youtube.com/watch?v=50dqchEbS4Q • https://www.youtube.com/watch?v=JLwvbYXidFM • Common Law & Statutory Law • Legal Classification & Basic Principles of Law

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4. PART 1: Introduction to the role of a forensic investigator

5. introduction • Investigations, Technology & the changing crime scene • The nature of crime and methods of committing them have become more sophisticated and so have the nature and methods of investigation. • Criminal investigation is no longer a localized law enforcement tool used to control violent crime e.g. robbery, rape and murder. • Now it can reach into boardrooms of corporations and offices of public officials, uncovering illegal practices and exposing a wide range of corruption related activities.

6. introduction • New role players for example the forensic investigator, forensic auditors, the polygraphist, intelligence specialists and highly trained investigative project leaders have emerged. • The ability of the State to conduct criminal investigations has declined, leading to an increase in the number of private investigators and corporate forensic investigators, which has been accepted and supported by the courts - S v Botha and other (1) 1995(2) SACR598 (W) + S v Dube2000 (1) SACR53(N).

7. introduction How does the Forensic Investigator fit into the business world? • Stricter financial controls brought about by ‘new’ legislation, ‘new’ company directives and corporate codes of conduct, mean that managers and directors of companies are becoming much more aware of their obligations to deter- and combat fraud and corruption within their organisations.

8. introduction How does the Forensic Investigator fit into the business world? • Forensic investigators, audit committees and risk managers are meeting more frequently and more probingly with auditors and managers, requesting additional information of alleged frauds and corruption.

9. introduction • Forensic Investigators serving individual corporate clients – Defense of the senior government official or corporate leader • Future of Forensic Investigation: an increasing global demand • White collar crime creates huge losses for business and government in SA

10. introduction • Forensic investigation has become essential to private businesses (large/small), all government departments & organizations. The business community and government are relying more on it: resolve problems, deter new problems and contribute to new and tougher standards of corporate behaviour.

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12. PART 2: introduction to law & basic principles

13. Introduction to LAW • The law is not only found in our legal system, laws are found within ethical frameworks to which we adhere. • Take the isolated islanders as an example: what would happen if one islander killed another islander? If they had no written law prohibiting the killing of another human or a court system to enforce the law, would it follow that no law existed against such an act? Or no need for one? • You would quite correctly argue that such a killing was morally unjust, with its own unique repercussions, e.g. tribal expulsion, social disruption etc.

14. Introduction to LAW • Our formal laws which we adhere to today are derived from those fundamental laws which arose in earlier ethical frameworks. • For example, our laws range from the morally apparent ‘you may not kill another human being’ or more colloquially, murder someone, to the more abstract ‘you have the right to dignity, which all other persons shall respect’.

15. Introduction to LAW So what exactly does the law want to achieve? • The role of the law is to ensure certainty, and give rise to an orderly manner in which persons interact in society. • More formally NB: • Law is defined as “a body of rules governing human conduct that is recognised as binding by the state and where necessary enforced”.

16. Fundamental Concepts • Law: • “…is defined as the body of rules governing human conduct, recognized as binding by people and enforced by the state.” • Law prescribes how citizens of a state should act, and it sets out how they will be punished should they transgress the laws. • Where there is no law, however, there is no transgression.

17. The law is distinguishable from religion and morals, insofar as the law is enforceable by the state. However, it should be borne in mind that this is not universally true. There are states which enforce religious laws through court systems – theocratic states, etc. • It is thus a combination of the laws of a state, religious tenets and morals which citizens adhere to and are guided by in their conduct.

18. Fundamental Concepts • Jurisprudence: • This is the branch of philosophy dealing with legal topics. The jurists ask the following questions: • ‘What is the law?’ • ‘What should the law be?’ • There are many competing views in this respect, unfortunately too many for us to be able to explore the topic in any meaningful manner.

19. South Africa does adhere to a set of principles against which all our laws must comply. • The set of principles is contained in the Constitution. Section 2 of which states: ‘This constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’

20. The state and the rule of law: • South Africa, as a state, is split into three primary branches: • The legislature, • The executive, and • The judiciary. • The state refers to the structure, powers and functions of the South African state.

21. The Legislature: • The legislature is responsible for making laws in the form of primary legislation. • Parliament makes laws for the whole of South Africa. They make laws by passing ‘Acts’ of Parliament. • The ministers of each department respectively, in supplementation to the Acts passed by Parliament, make regulations.

22. The Executive: • The executive is responsible for implementing laws made by Parliament. • The President and the ministers and their deputies constitute what is called ‘the executive’. • The people who work in the various government departments are known as the public administration.

23. The Judiciary: • The judiciary is responsible for hearing legal disputes between litigants. • The court system is split into the lower and higher courts: • Lower Courts: small claims court, and magistrates’ court. • Higher Courts: High Courts, the SCA and the Constitutional Court.

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25. The rule of law: • https://youtu.be/0Hubr8mZlIc • https://youtu.be/9Gtlc7tBRMA • The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government.

26. The Rule of law implies that every citizen is subject to the law, including law makers themselves. The presence of the rule of law stands at odds with an autocracy or dictatorship where the rulers are held above the law. • The rule of law does not necessarily flourish under a democracy however, as there may very well be a lack of knowledge of the law, corruption, etc. which would undermine it’s authority. • Ultimately the rule of law flourishes where you have independent, transparent and accountable institutions of the state.

27. The rule of law would have publicly disclosed, written laws which are applied without bias, through an established procedural process known as DUE PROCESS. • Our Constitution, in Section 1(c), states that South Africa is a state which is founded on the rule of law, as is legitimacy of the exercise of authority by the state. • The rule of law thus allows for a fair playing field where laws may be challenged by persons who feel that they may be unconstitutional in some manner.

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29. Fundamental Concepts • Legal Relationships. • Legal Liability. • Legal Personality.

30. Legal Relationships: The key difference between a public and private relationship in law, lies in who the opposing party to the matter is. • Public legal relationships: the opposing party will be the State. • Private legal relationships: the opposing party will be another natural or juristic person. • In law, it is of paramount importance that you sue the correct party. This may sound patently obvious, but, believe me it can be a very time consuming venture in finding out who to sue!

31. Public relations put the full might of the state against a private individual, and therefore the state is in a powerful position.* • Whereas, in private relations, both parties are theoretically on equal footing. • QUESTION = What do you think the reality of the situation is? Is the state always the party with the ‘biggest guns’? Are private parties equal in standing?

32. Public legal relationships: • The state’s authority includes the power to enforce the law in various ways. • The state enforces it’s authority in various ways, such as fining you should you drive without a license, charging you criminally if you commit a crime, etc. • Where action is taken against you by the state, you are entitled to expect that such action is lawful, reasonable and procedurally fair. Where your rights have been affected, you have a right to be given written reasons.

33. Public legal relationships: • When a person feels that an action by the government was not reasonable or lawful, they may approach the courts for a decision on the matter.

34. Private legal relationships: • The private sphere of legal relationships involves the exercise of rights and duties. Parties approach the judiciary to enforce their rights in respect of some other parties obligation. • Not all persons, however, are capable of exercising these rights in their own capacity. E.g., minors need their parents to assist them should they suffer damage.

35. Private legal relationships: • Every right has a corresponding duty. What right would the purchaser of a motor vehicle have against its seller? What right do you have against the person trespassing on your property?

36. Real rights vs Personal rights: • Real rights may be enforced against anyone, with the owner being able to use and do with his property as he pleases – within the ambits of the law. • Personal rights on the other hand have another person’s performance as their object. • Which right would you be exercising if you took your tenant to court for not paying his rent? What about evicting them?

37. Legal liability: criminal and civil • Legal liability is the condition of being bound to carry out a legal duty and to bear the consequences of failing to do so. • A good example of a legal duty, is the duty which a parent owes to his or her children in taking care of them. • To be liable in terms of criminal law you would need to have committed an act (or omitted to perform one) in violation of a law forbidding (or commanding) it and for which punishment is imposed upon conviction.

38. The person who breaks into your house, steals your cellphone, firearm, and holds you captive has committed a number of crimes. • House breaking. • Theft. • Kidnapping. • Malicious injury to property. • Possession of an unlicensed firearm.

39. The house breaker had a duty to abide by the laws prohibiting this behavior, and would therefore have incurred criminal liability and be liable to suffer prosecution.

40. Liability in private legal relationships (Civil Law) has three forms: • Contractual liability; • Delictual liability; • Essentially deals with causing harm. • Where you have injured or harmed someone or something, you have caused damages to be incurred by another person. • The damages are then quantified, into a liquid amount, and you would then have legal recourse against that person.

41. Liability based on unjustified enrichment: • Arises where a party has been enriched at the expense of another and no legal basis exists for the transfer of the benefit. • E.g., Interest received above the legal interest rate, money mistakenly paid into your account, etc.

42. The three categories are not, however, mutually exclusive and may arise together within the same set of facts, even with criminal liability. • For example, the house breaker in our previous example would find himself to be delictually liable for the damage he caused to your property whilst breaking and entering your premises.

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44. PART 3: Common law & statutory law

45. Statutory Law = Legislation: • https://youtu.be/zAmw4xCM0Wk • Legislation is a broad term for law found in statutes, proclamations, regulations and by-laws. • Legislation is made by competent authorities, i.e., Parliament, Provincial Legislator or Municipal Councils. • Legislation is necessary for the introduction of laws to control new and emergent areas in a society, or to amend / develop old laws. 44

46. The two forms of legislation are: • Original legislation is made by the legislature. • This law is made at the national (parliament), provincial (provincial legislatures), and local (municipal councils) spheres. • Subordinate legislationis made by members of the executive (usually the minister of a particular portfolio).

47. The law making process: • The proposed law is drafted as a bill. • The bill is then submitted to Parliament for debate. • Parliament votes on the bill after discussions in the committee, and after having been tabled in one or both houses of parliament. • If the required consensus is not attained, the bill lapses, or where consensus is obtained, the bill is submitted to the president for signature. • Once the Bill has been signed by the president it becomes law.

48. Legislation is numbered chronologically and contains the year in which it is promulgated. • I.e. Choice on Termination of Pregnancy Act 92 of 1996.

49. Common Law: • The common law is a set of laws not made by Parliament or any level of government. • Crimes like murder, 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 British settlers is also part of the common law. The common law can be changed by new decisions in the courts.

50. The common law applies to everyone equally in the whole country. • It is only when there is no statutory law about something that the common law will apply. • For example, the common law crime of rape, by definition, excluded male complainants. Parliament passed a new piece of legislation The Criminal Law (Sexual Offences and Related Matters) Amendment act 32 of 2007.