THEME 1 STUDY UNIT 2

CREATION OF RULES
Mr S Makhubu
 STUDY UNIT 2: LEGAL SYSTEM AND CREATION OF RULES OF LAW
LEARNING OUTCOMES
After studying this section, you should be able to demonstrate your knowledge
and understanding of the South African legal system in the following manners:
• Define, explain, and distinguish between, the concepts of "law" and "rights";
• List, explain, distinguish between, and identify examples of the categories of
subjective rights;
• List, explain, and discuss the requirements of the sources of
South African law;
LEARNING OUTCOMES CONTINUES
Understand the South African court system, with specific reference to:
• The meaning of 'jurisdiction';
• The roles and jurisdictions of the various courts; o
• The similarities and differences between the various courts;
• The meaning of, and differences between, 'civil' and 'criminal' matters;
• The meaning of, and differences between, "application" and "action"
proceedings;
• The meaning, role, benefits and shortcomings of the 'doctrine of
precedent' in South Africa;
• The meaning and role of, and difference between, 'ratio decidendi' and
'obiter dictum';
• The meaning, process (briefly) and function of "an appeal";(LOOK AT
REVIEW AS WELL)
• APPLY THE PRINCIPLES TO PRACTICAL AND COMPLEX PROBLEMS.
Outline of the Unit
• What is law (Peremptory and regulatory law)
• What are Rights?
Creation of rules
-Custom as a source of law
-Legislation as a source of law (Legislation created by Parliament)
-Provincial legislation
• Municipal/local councils
• Subordinate legislative bodies
• Courts decisions as Sources of law (Doctrine of precedent/Stare decisis)
• Applications and Actions
• Higher courts jurisdiction
• Lower Courts jurisdiction
• Specialised courts
• Appeals/Reviews
• Doctrine of Precedent
• Reporting of cases
• How to deal with problem type questions
Self-assessment questions.
WHAT IS LAW?
• Law is the body of binding rules that regulate human
interaction with one another, with things and with the
government for the sake of orderly living.
• Without law we would be extinct (cease to exist). We would kill
each other and ourselves. We would resort to self help.
• The key word here is “binding”.
• The state or government has the power or the authority create and
enforce the law. This means that those who fail to obey the law may
be instructed to adhere to the law, apprehended (arrested) and
punished. This makes the law different to other systems of rules that
regulate human behaviour but are not enforceable by the state. E.g.
Religious rules.
THE RULES OF LAW CAN BE PEREMPTORY OR MERELY
REGULATORY IN NATURE.
PEREMPTORY RULES OF LAW

• Peremptory rules are rules that all members of the

community must adhere to. There is no liberty or
freedom to choose not to adhere to the law. E.g. In the
National Road Traffic Act, section 59(4) provides that no
person shall drive a vehicle on a public road in excess of
the general speed limit.
REGULATORY RULES OF LAW
• Regulatory rules are rules that allow parties to regulate
their own relationships. Parties may choose not to comply
with these laws. They will be bound if they choose to
comply. E.g. In the South African Electoral Act 73 of 1998,
section 6(1) provides that any South African citizen with a
South African ID may apply for registration as a voter. It is
not a must for South African citizens to register to vote as
they can choose to vote or not. If they do then they must
comply with the law.
WHAT ARE RIGHTS?

• A right is a legally protected interest of a subject in an

object or a thing (e.g house or a car) which is protected against
other subjects.
• A legal subject is a natural person or an entity that can be a
bearer of rights and duties in terms of the law.
• There are two types of legal subjects, natural persons and
juristic persons or legal persons.
WHAT ARE RIGHTS CONTINUES.
• Natural persons are regarded as legal
persons/subject from birth to death and juristic
persons such as companies are regarded as legal
subjects from incorporation (registration) to
dissolution.
• Thus, law is not rights, but law among other things contain
rights and duties of legal subjects, including the
Government. E.g. Duties of employers in the Labour
Relations Act such as a right not to unfairly discriminate or
unfairly dismiss an employee.
THE ARE FOUR DIFFERENT RIGHTS
• Real right this is a right to corporeal things or things we can touch. E.g
ownership of a house or car, this right is applicable and effective against the
whole world.
• Personal right this right entitles the holder some form of performance or
delivery of a thing. They arise as a result of a contract (lease contract lessor
must make the premises available and leasee must pay rent, lease has the right
to occupy and lessor has the right to rent).In a Delict or wrongful acts. You
negligently collide with my car, this entitles me damages caused in my car.
• Intellectual rights these are rights that a person has in the creations of his
mind. Eg Copy right and Patent.
• Personality right these rights refer to the rights that have to do with the some
aspects of your person as human being . e.g.
Right to dignity and right to life, right to your goodwill(reputation).
CREATION OF RULES OF LAW
• The basic source of law is common law which is the Roman
Dutch law and to a certain extent English law.
• However, new rules cannot be created through common law. The
rules can be created through:
❖ Custom

❖ Legislation

❖ Cases/precedent
CUSTOM
• Custom is an entrenched or a well- established
way of doing things that can create a binding
unwritten rule/law.
• The important thing is that it must be well-
established or deep rooted in a particular
community before it becomes custom.
 CUSTOM CONTINUES

The are REQUIREMENTS that a custom must meet before it

becomes a binding unwritten rule/law:
• It must be reasonable (sensible/fair)
• It must have existed for a reasonably long period of time.
• It must be accepted and complied with by the community that
created the custom. (No dissent by other members of the community.
• The contents of the custom must be clear and certain (not
ambiguous). See Van Breda and Green case.
Parliament (section 44 of the Constitution)
• Parliament is the highest body that has the authority to draft
or make (enact) laws.
• The laws are known as Acts Parliament, Legislation or
Statutory law. e.g. Companies Act 71 of 2008
• Parliament consists of two houses, National Assembly and
National council of provinces.
• 51% votes or more are required to pass the law.
• The law must be in line with Constitution, courts may declare
them invalid if they contradict the Constitution. E.g. when the
law fails to treat people with equality (s9 of the Constitution).
CONSTITUTIONAL SUPREMACY
The Constitutional Court has the power to declare invalid:
❑ any Act or provision that is contrary to the Bill Rights,
❑ any administrative action by the state that is contrary to the Bill
of rights,
❑ action by a private institution that is contrary to the Bill of rights
or
❑ any contract that is unconstitutional.
E.g. Where the government or a hospital unfairly discriminates another
on the bases of gender or an employment contract between an
employer and an employee amounts to an unfair discrimination on the
bases of gender. The court can declare such action or contract invalid.
LIMITATION OF FUNDAMENTAL RIGHTS
• However, the Constitution may allow a limitation of a
fundamental right provided the limitation is justifiable in
an open and democratic society.
• In other words, when it is reasonably necessary and in the
public interest for the fundamental right to be limited or
infringed.
LIMITATION OF FUNDAMENTAL RIGHTS CONTINUES
E.g. Right to freedom of speech, privacy, dignity, property, to
information may be limited if it is reasonably necessary and in
the public interest.
Let’s think about example here.
• You require a Government Department to give you access to
information which may jeopardise the safety and security of the
State and its people. Your right to information may be limited in the
interest of safety and security. This means that the limitation is
justifiable in an open and democratic society. It is reasonably
necessary to limit your right.
Provincial legislation(s104 Constitution)
• Provincial legislature has power to make provincial law, e.g. in
areas such as Health and Tourism.
• Provincial legislature must always act within the scope
provided by the Constitution.
• If not the Provincial legislation will be ultra vires (outside the
scope) and can be declared invalid.
• High Courts can declare such Acts invalid if they are ultra
vires or unconstitutional.
• Parliament may make laws in the area delegated to the provincial
legislator, provincial legislation will take precedence unless there is
a need for economic unity.
LOCAL GOVERNMENT OR MUNICIPAL OR LOCAL
COUNCILS

• Municipal/local councils may also make by laws.

• The rules provided above concerning Legislation
created by parliament and Provincial legislature
apply to the municipal by laws. (s156)
• E.g Health by law on the keeping of Animals.
SUBORDINATE LEGISLATIVE BODIES
• Legislative authority may be delegated to the Minister of
Trade and Industry to make regulations that serve to close
the gaps or areas that are not addressed by the Act of
parliament. To put the legislative provisions in practice or
provide detail.
• The Regulations of the Companies Act have the same weight
as the Act and serve to supplement the Act in areas that are
not addressed by the Act. E.g. Which forms to complete
when incorporating a company.
E.g. Regulation 9, the supplementary rules that are applicable
 REQUIREMENTS OF SUBORDINATE LEGISLATIVE BODIES’ RULES TO
BE ACCEPTED AS LAW:
• Must be within the scope of the delegated legislative
authority, otherwise they are ultravires.
• Be reasonable(sensible/fair).
• Must be impartial and unbiased
• Clear and certain
• Must be published (promulgated)
COURTS DECISIONS AS SOURCES OF LAW
• The primary function of the courts is to resolve disputes in a
just/fair manner (administration of justice).
• This function is necessary in ensuring orderly living.

• The courts do this by interpreting the law and applying it to the

facts that bring about a dispute.
• The courts’ primary function is not to create law, however, in
some instances legislation, common law and customary law may
not provide any regulation that governs the area of dispute
(lacuna). Then courts will then have to create law. This is known as
the doctrine or the principle of stare decicis or precedent.
 APPLICATIONS AND ACTIONS

ACTION
• There are two types of cases/disputes. There are cases where there is a material
dispute of facts. E.g In a case of collision of cars. Where A alleges that the
robot was green and thereby granted him or her right of way and where B alleges
the contrary. And cases where the parties agree with all the material facts of
the case.
• In cases where there is a material dispute of facts, one has to use action
proceedings. The plaintiff will issue summons and the defendant will file a plea
(which seeks to defend allegations made in the summons)
• The case will end up in court, where witnesses will be called to prove the versions
of the plaintiff and defended. Ultimately, the judicial officer will weigh the
evidence in support of each version and grant judgment in favour of the
person who presented a version of events and evidence that are
probable.(Balance of probabilities)
ACTION AND APPLICATION PROCEEDINGS CONTINUES
APPLICATION
• Where there is no material dispute of facts, application proceedings may
be used. Here the party instituting an application is called applicant and the
other party called a respondent.
• The party launching an application (Applicant) will do so with a founding
affidavit which contains the bases that support his application.
• The opposing party will write an opposing affidavit providing the bases of
opposition.
• The court will weigh the evidence from the affidavits and decide in favour of
the party that presented a version and evidence that are probable. However,
there are cases that should only be dealt with in terms of application or
action as prescribed by the law. E.g. Sequestration by application or Divorce
by action.
Higher courts are:
• The Constitutional Court is the Highest Court in
the land.
• Supreme Court of Appeal, is a court of appeal
not a court of first instance.
• High Courts which have divisions in all the
provinces of the country. Other specialist courts
such as Labour court, Competition court and
Tax court.
LOWER COURTS
• (Regional courts and District magistrates courts
in each district and regional area) and
• Small claims courts. Jurisdiction power to hear
civil cases and limit is R20 000 and no legal
presentation.
CONSTITUTIONAL COURT
This is highest court of the land.
Jurisdiction is the authority to hear and decide matters or disputes
• It decides matters that are constitutional in nature.
E.g right to life/right to education.
• It can also grant leave to appeal to it in matters that have an
arguable point of law that is of general public importance. E.g
matters that are in the public interest.
• It makes a final decision whether a matter is within its jurisdiction
(the authority to hear the matter)
SUPREME COURT OF APPEAL
• This court has the jurisdiction (the power and the authority to hear
and decide a dispute or matter) to hear any appeal from High courts in
the country.
• This is purely a Court of Appeal, not a court of first instance.
• This means that a matter or dispute must first be heard by another Court, usually
a High court before it comes to Appeal.
• When the latter High court has erred on the interpretation of law or
facts, then matter may be brought on Appeal, provided leave to Appeal is
granted by the court of first instance or Supreme Court of Appeal.
• This court may only decide matters that are: Appeals, Related to appeals,
Any matter provided in the legislation.
• It is the final court in Appeal matters. Constitutional court may also hear.
HIGH COURTS
• The High courts are found in all provinces and have the power to hear cases and
disputes.
• They can hear criminal cases or civil cases.
• Criminal cases are cases that arise as result of actions that transgress the
norms of society and the transgressions are punishable by the state to ensure
orderly living. Here the police will investigate the matter and the accused will be
charged by NPA on behalf of the state. E.g Fraud, Rape, and Drug Trafficking or
Dealing in Drugs. Here the state must prove beyond a reasonable doubt
before the accused can be found guilty.
• Civil cases are cases that arise as result of one person causing harm or
damage to another, their property or personality. E.g. You negligently collide
with my car and cause damage of R200 000. Here the plaintiff must prove on the
balance of probabilities that the defendant negligently caused the collision. Civil
cases may be instituted in terms of an application or action.
In civil cases the court may grant the:
• Claim or Application order,
• Interdict,
• Declaratory order
The High courts can hear and decide on matters of persons:
• Residing in their area of jurisdiction or all actions arising in
the area of jurisdiction.
• All actions that can be heard within its area of jurisdiction.
• No monetary limits.
• In criminal, High courts can hear any matter or crime and
impose any punishment within the bounds of the law.
LOWER COURTS
• Lower courts are divided into Districts Magistrates’ courts and
Regional Magistrates’ courts.
Regional courts have a broader scope:
• In civil matters, have the jurisdiction to hear matters that are
limited to R400 000 and can also hear divorce and
sequestration matters.
• However, parties may agree to higher amounts.
• In criminal matters they can hear any matter except High
treason.
• And in criminal matters its jurisdiction is limited to a fine of R600
000 or maximum of 15 years imprisonment.
 DISTRICT MAGISTRATES’ COURTS
• In civil matters, the jurisdiction of district courts is limited to R200
000.
• However, parties may agree to higher amounts.
In criminal matters jurisdiction is limited as follows.
The court can hear any crime except:
• High treason,
• murder and
• rape and
Can only impose a fine of not more than R 120 000 and maximum
term of imprisonment of 3 years.
SPECIALISED COURTS
• There are also specialist courts such as labour court,
competition court and equality courts, tax appeal court
and competition appeal court etc.
• These are specific problem-solving courts.
• Some of them such as Labour Court, Competition Appeal
Court and Divorce court have the status of the High
Court.
• And there is a small claims court with a limit of R20 000
and no legal representation is allowed.
APPEALS
• Decisions of lower courts may be appealed and heard by the High courts in
the region.
• Decisions of single judges in High courts may be appealed and heard by 2
OR 3 judges of the same court (FULL BENCH).
• Appeals from High Courts may be heard by the Supreme Court of Appeal.
• And the Constitutional court is the final court in constitutional matters.
• However, you need to apply for leave of appeal first before you can appeal.
• When one of the parties in a criminal case or a civil case is of the view that
the court made an error in the interpretation of law or facts, the party
may apply for the leave to appeal.
• Where one of the parties in a case is of the view that the court committed
an irregularity in its process (unfairness/biased/admission of
inadmissible evidence), the party may apply for review of the processes.
APPEAL CONTINUES
• The appeal process will be lodged to the court of first instance through an
application process within a specific time frame, where the applicant, the
party lodging an appeal makes an application supported by an affidavit. The
affidavit will contain the merits of the case or the facts that serve as the
bases of the application for leave to appeal.
• The court of first instances will most probably refuse and then leave to
appeal will be lodged with the Supreme Court of Appeal.
• The appellant will write an affidavit which contains the bases of his or her
application for leave or permission to appeal.
• The respondent may oppose leave to appeal with affidavit which contains
bases for opposition.
• The appellant will furnish the reply and then the judge will weigh the bases
and decide to grant leave to appeal or dismiss.
STARE DECISIS OR THE DOCTRINE OF PRECEDENT(STANDING BY THE
PREVIOUS DECISIONS)
• This principle means decisions of the Higher courts bind the decisions of the
lower courts and the courts are bound by their own decisions and decisions of
same court.
• However, the binding part is the ratio decidendi, which are the reasons of
judgment not passing remarks made by the courts which are the obiter
dictum.
• e.g. If a particular High court decides that denying citizens access to water by
the state is an infringement of a fundamental right and declare the decision of
the municipality to deny citizens water invalid and unconstitutional. The High
court is bound by its reasons of the decision in the future cases and also the
reasons of the decisions of the Higher courts.
STARE DECISIS CONTINUES
• The decisions of the Constitutional court bind future decisions of the
Constitutional court, the Supreme court, the High courts and lower courts.
• The decisions of the Supreme Court of Appeal bind its future decisions, the
decisions of the High Courts of the country and lower courts.
• The decisions of the full bench of a particular division bind the decisions of the
single judges’ court in the same court and the subordinate lower courts in the
area of jurisdiction.
• And the decisions of the single judge in the same court bind the future
decisions in the same court and lower courts in the area of jurisdiction.
• The lower courts are not bound by their own decisions.
 CRITICAL THINKING
The merits and demerits of the stare decisis
• Merit
This principle ensures that there is consistency in the decisions of the court.
• Demerit
However, cases where judges or judicial officers made errors in their reasons of
judgment, may influence future judges to commit the same errors.
Exceptions to the principle
• When the facts are materially different.
• When the reasons are incorrect, where the court erred in making the decision.
The key here is that reasons of decisions are binding not passing remarks
by a judicial officers.
• Some important decisions are published in law reports to provide access to
decisions.
Reporting of cases

• Samson v Jackson 2007 (5) SA 323 (SCA)

• Samson is Plaintiff or Appellant in the case
• Jackson is Defendant or Respondent.
• 2007 is the year publication.
• (5) Is the volume number of the law report.
• 323 page number of the law report.
• SCA is the abbreviation of the name of the court.
How to answer problem type questions

1. You must first and foremost identify the applicable principle in

the question.

2. Provide the theory of the principle that regulates that particular

problem.

3. Most importantly, apply the theory of the principle to the

problem or the set of facts (scenario) and show that you are
applying the theory of the principle to the scenario.

4. Lastly, based on the application of the theory of the principle

conclude.
SELF-ASSESSMENT QUESTIONS
Question1
Define the following terms
Law
Rights
Custom
Legislation
Jurisdiction
Personality rights
Intellectual rights
Appeal
Stare decisis
Question 2
1. Alex designed an original software which was subsequently patented.
Company Theeves reverse engineered his software and sold it on the open
market. Alex wants to claim damages for losses suffered. Name four courts
that would be able to decide on this matter and explain how each court
differs from the other. Provide comprehensive reasons for the statements
that you make. (15)
2. Alex is an upcoming artist who composes background music for motion
pictures. Alex’s roommate, who composes background music for video
games, stole Alex’s flashdrive with his recent compositions and sold it to a
video game manufacturing company for remuneration and without Alex’s
consent. Alex confronted his roommate about the theft, whereupon his
roommate posted about the incident on Facebook. The roommate wrote
that Alex was incapable of composing his own music, copies others' ideas
and lies about it. Which subjective rights of Alex were infringed upon?
2.3 In each of the following instances, identify the most appropriate court with
jurisdiction to hear the matter and indicate whether this will be a civil or
criminal case:
• Alex sues his roommate for telling lies on Facebook. He claims R750 000 in
damages.
• Alex roommate is accused of theft. The public prosecutor wants to push for
imprisonment of 2 years or a fine of R 100 000.00 upon a guilty conviction.
• Alex roommate severely assaulted Alex when Alex confronted him about the
theft. If found guilty after prosecution by the State, his roommate will face
imprisonment of 15 years.
If Alex wants to sue his roommate for telling lies on Facebook, and he
wants to claim R750 000 in damages, would he make use of the action or
application procedures? Provide reasons for your answer.