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Historical Foundations of law
Classifications of law
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Classification of the law
What does this mean?
Law is classified into different parts
The tradition of classifying the law into different
disciplines/branches comes from Roman Law
The classification of law is not perfect/ not always
necessary
Classification of the law can be helpful/necessary
Classification of South African Law
SA law
Internatio National
nal law law
Substantiv Private Commerci
e law Law al law
Classification of South African Law
Constitution
al Law
Law of
Family Law
Persons
Administrati Law of Intellectual
ve law property Property law
Classification of the law
Law of
Successi
on
Law of
Law of
obligatio
contract
n
Criminal Law of Law of
law contract delict
Classification of South African Law
Procedural
law
Law of
evidence Civil
Procedure
Legal
Jurisprudenc Criminal
interpretatio
e Procedure
n
Difference between substantive and
procedural law
Our law is divided into two systems:
Procedural and substantive (material) law
Substantive law deals with the content and the meaning of different rules
(legal principles)
For example; describes what a crime is and determines which human acts
are against the law
Basically deals with the substance of our law
e.g substantive law will determine how a person can obtain a driver’s license.
Procedural law
Also known as adjective law
Regulates the enforcement of substantive law
Thus: it determines how a rule should be enforced.
e.g regulates how a murder should be dealt with
Provides the process of how a person who has
murdered should be dealt with
Procedural law
Divided into 2:
Law of criminal procedure- provides rules by which people
who have been accused of a crime should be prosecuted.
Law of civil procedure- provides rules on what procedure a
person should follow if she/he has an issue with another
person. e.g what do you do if someone owes you money
Law of Evidence
Area of law that deals strictly with evidence
It determines the rules regarding which
evidence can be accepted in a court of law
It deals with rules regarding how evidence
should be legally collected
Deals with how witnesses should give evidence
in court
Public law
Regulates how the state should be
organised
Deals with the relationship between
the different state organs
The state and the people
Private Law
Regulates the law between individual people
Deals with the different right that people have over
another
Sometimes the state can be involved in matters
involving private citizens
When people enter into contracts and one person fails
to do their part- matter of private law
Divisions of Private Law
Family Law
Law of Property
Law of Succession
Law of obligation/delict
Law of intellectual property
Commercial law
Supplementary disciplines
Private international law- marital issues between
people from different states
Jurisprudence/ legal philosophy
Legal Interpretation
Comparative law (legal comparison)
Legal history
Scenario
Suzan’s daughter who is 2 years old chokes on a piece of meat and struggles to
breathe. Suzan then puts her daughter into the car and drives to hospital. On the
way to the hospital she doesn’t stop at the traffic lights which were old red
(meaning she was required to stop before driving). She makes it to the hospital
and her daughter is assisted by the doctors and recovers and they both go home.
A week later Suzan gets a letter for a fine of R2000 for not stopping at the robots.
Which classification of law applies to this matter?
Types of Constitution
PAGE 158 PRESCRIBED TEXTBOOK
Types of Constitution
What is a constitution- body of rules which govern the exercise of political
power
Written Constitution- usually made up of one written document
Written constitution is difficult to amend/change
However, some constitutions are made up of a collection of conventions
and customs
For example; the UK does not have a written constitution
England does not have a Constitution
These countries have an ‘uncodified constitution’
Types of Constitution
Sovereign or Subornate-
Sovereign- a Constitution that is the highest authority
in the land (i.e South Africa)
Subordinate- a document that merely sets out the
structures of government thus Parliament is
supreme law/highest law
Types of Constitutions
Flexible or inflexible
Flexible constitution- can be easily amended
Inflexible Constitution- cannot be easily amended- e.g South African
Constitution
Unitary or Federal- concerns the level of government
Some state have one central government for the whole state (e.g France,
Namibia)
Federal Constitution– exercise of power is divided amomg national,
provincial and local government
The Constitution: Structures of
Governance- chpt 5 prescribed textbook
Introduction:
What is a constitution?
Most organisation such as clubs and societies have a constitution
Most state/countries have a constitution
The constitution sets out the rules and functions of government- Chp 8 of the
Constitution
Government has three function; Legislature (make laws)
The executive (apply and execute the law)
1993 Interim Constitution
‘Interim’- in the meantime
Negotiations from 1990 were directed converting South Africa into a full
democracy
The release of Nelson Mandela and unbanning of political parties was a step
towards democracy
There was a need to create an interim Constitution
1993 interim Constitition was a break away from the previous political order- e.g
First democratic Constitution that allowed everyone over the age of 18 to vote
The system of parliamentary sovereignty was abolished
The Constitution: Structures of
Governance
Judiciary – a body of magistrate and judges who sit on courts
in South Africa
- apply the law, execute the law and resolve legal disputes
NB!! at the core of our democracy is the separation of powers
For example
The principle of separation of powers- why is it important?
it provides a vital system of ‘checks and balances’:
NB Separation of Powers
The Constitution
Firstly, it ensures that the different branches control
each other. This is intended to make them accountable
to each other – these are the ‘checks.
Secondly, it divides power between the different
branches of government. This balance aims to ensure
that no individual or group of people in government is
‘all powerful’
What it the purpose of separating powers?
The Constitution
‘principle of separation of powers-checks and balances’
Thus- The constitution regulates who has power to do what and ensures that
powers are not abused.
The constitution regulates who makes the laws, who regulates the laws and who
implements the law
NB! Every constitution starts with a preamble
What is preamble? A declaration which states the basic purpose of the
constitution
The preamble is not binding but serve as a guide to how the constitution should
be interpreted
The Constitution
How is law made
The history of the South African
Constitution
Aim- to bring about social and political change (transformative constitution)
Serves as a bridge between a regime (apartheid) that abused its powers in the
past
1993 interim Constitution- between 1990 onward there was an aim to move
towards a democratic state
This was followed by violence (e,g Soweto uprising in 1976)
The 1993 interim Constitution:
South African’s first democratic Constitution- the first time all South African’s over
the age of 18 were allowed to vote
The history of the South African
Constitution
The system of parliamentary sovereignty was
abolished- thus the Constitution became the sovereign
law of the land
A new court was created- The Constitutional Court
A voting system was introduced- instead of voting for a
specific candidate voters voted for a particular party
The country was for the first time divided into nine
different provinces
The Constitution of the Republic
of South Africa
Similar to the interim constitution
For example;
Basic rights for everyone
Supremacy of the constitution
None racialism and non sexism
The Constitution of the Republic
of South Africa 1996
Three distinct but related spheres of government
Co-operative government-National, Provincial and local
The interim constitution created nine provinces and these were carried over to
the new Constitution
Legislative authority- performed at national, provincial and local sphere
Legislative authority- functions as the national level and is performed by
parliament
A provincial legislature is elected in every province
