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Introduction to Law (ILW1501)
WHAT IS THE LAW - answer- The law governs human behavior/conduct
- The law should be obeyed by all of society. -The law is enforced by state organs. -By ignoring or disobeying the law we may be prosecuted and punished or ordered to pay compensation for damages or injury. parties in Public law - answer Individual(s) and State Parties in Private law - answer Individuals and individuals Formal/Procedural law - answer Deals with the procedures that must be followed in legal proceedings. Substantive/Material law - answer determines the content and meaning of the different legal rules. Religion - answer apply to who- with the people who practice that religion noncompliance- every religion has its own sanction or punishment. enforced- is enforced by each separate religion. Individual morality - answer Are standers that every individual sets for themselves. the sanction for noncompliance is personal and self- imposed and is enforced by the individual. Community mores ( collective morals) - answerNorms of the whole community non compliance with the rules will result in varying degrees of disapproval/ rejection/ discrimination by other members of the community and the rules are enforced by the community. Justice - answerEquality before the law. Formal Justice - answerDeals with the procedures that must be followed in legal proceedings(rules, conduct, evidence) Basic requirements for formal justice - answer-There must be explicit rules laid down to show how people must be treated in specific cases
- The rules must apply generally ( all people in the group under the same circumstances)
- The rules must be applied impartially by a legal institution ( judge may not be biased`
Substantive justice - answerConcerns the content of the rule and not the way in which it is applied requirements for Substantive Justice - answerhere the content of the rule is looked at to determine whether it is fair and just. ex- The apartheid rules were specific, applied to all and were applied impartially- however, the content of the rules were unjust and therefore justice was not served. Legal subject - answeris anyone who is subject to the norms of the law and who also may be the bearer of rights and duties. Legal object - answerMay be anything that is of economic value to people ( cost, usefulness, scarcity) every Right concerns two parts - answer1. a relationship between a legal subject and the object of the right.
- A relationship between the legal subject who is the holder of the right, and other legal subjects ( person - person) Real rights - answerright of ownership right of pledge right of servitude Personality rights - answerThe rights each one has to part of their personality the right to physical integrity, the right to your good name/ reputation, the right to honor. Intellectual property right - answerrelates to the creation of the human mind. A work of art, an invention, a trade mark, copyright. Personal Right - answerA personal right is a right to performance. also called a claim. Delivery, payment, service. Action of doing something or not doing something. The connection - answerThe content of a right is limited. the rules of law decide what the powers of the holder of a right are and hat the limits to the content of the right are. Classical roman Law - answerWhen the Roman Empire was reaching its highest level of development Canon Law - answerRoman Law formed the foundation of church law( roman catholic Church) The Corpus Iuris Civilis - answerThe Emperor of the eastern Roman empire ordered the codification of early writings of the classical jurists and all the laws which had been passed during the time of the emperors ( collected and written down as a code) Roman Law(753BC - 476AD) - answerClassical Roman law
Governs the powers of the organs of state parliament, the court, cabinet, etc.) Administrative Law - answerControls the administration of the state in general and determines the way in which state bodies should exercise their powers (non abuse of powers) Criminal law - answerStates which acts are criminal in nature and the penalties imposed by the state for the commission of these crimes. Law of procedure - answerSubdivided into three divisions: Civil procedure Criminal Procedure Law of evidence Private law - answerRegulates relationships between individuals Plaintiff versus defendant Law of persons - answerconcerned with the persons as subjects of the law: legal subjects beginning, status and end Family law - answerconcerned with the legal relationship of spouses, parents & child, guardianship. Governs marriage and its consequences, as well as relationships within the family. Laws of personality - answerConcerned with personality rights and the consequences of the infringement on these rights (damage to reputation, dignity, etc) Laws of Patrimony - answerconcerns persons & their means( property of a person with monetary value.) subdivided into: -law of things: movables and immovable's -Law of succession: resolution of an estate or testament Laws of obligation - answerthe legal relationship between parties i.t.o performance 3 sub divisions:
- laws of contract- performing and receiving
- laws of delict- compensation for damage
- Unjustified enrichment- obtaining a benefit at the expense of another Authoritative sources - answera. Legislation, statutory law, acts of parliament b. Court decisions c. Common law d. African indigenous law Other sources - answerdifferent persuasive influences can be utilized:
- other modern legal system ( particularly those related to ours) to look for similar legal principles.
- consulting foreign law when interpreting the provisions of the bill of rights.
- views of published legal writers, journals such as the South African law journal. responsibilities and powers of the government - answer- expected to protect citizens' rights
- expected to develop and advance the country politically and economically -expected to look after the well-being/ interests of inhabitants by regulating, for example, matters such as health, environment, education, tourism, housing and population development.
- To do these things government require certain powers that are balanced with the rights of the individual. A Constitution - answerthe rules by which a country is governed is stipulated in a constitution, which also sets out the structure and the functions of government as well as the standards required to protect the individual against abusive powers of state. A detailed plan (blueprint) for the running of our country on a sound democratic basis. South Africa Constition history - answer1910 constitution when the union of Soith africa was formed 1961 constitution when South africa became a republic 1983 constitution with the establishment of a tricameral parliament 1993 interim constitution(came into effect on 27 april 1994) 1996 the constitution of the republic of South Africa our constitution broadly entails - answergoverning of the country at national, provincial and local level legislative powers and processes at each of the levels Administration of justice by all the different courts Rules relating to regular elections Functions of the police, the army and other security services constitution entails resume - answerManner of which the finance of the country must be managed. Provisions regarding the powers of national leaders. Establishment of institutions such as the human rights commission to support our democracy Sets out the 9 provinces of the country, the 11 official languages, the national symbols(flag) The Bill of rights(list of fundamental rights) rights protected by our constitution. Why is the Constitution important? - answerit is the foundation of our democracy. to ensure that our democracy succeeds, a number of special features are built into our Constitution.
Equality - answerEveryone is equal before the law and has the right to equal protection and benefit of the law an includes the full and equal enjoyment of all rights and freedom. Human Dignity - answerEveryone has inherent dignity and the right to have their dignity respected and protected Life - answerEveryone has the right to life Freedom and security of the person - answerEveryone has the right to freedom and security of the person as well as the right to bodily psychological integrity. Slavery, servitude and forced labour - answerNo one may be subjected to slavery, servitude or forced labour Privacy - answerthis right includes the right not to have their person /home/property searched, possessions seized or the privacy of their communications infringed Freedom of religion, belief and opinion - answerEveryone has the right to freedom of conscience, religion, thought and opinion Freedom of expression - answerThis right includes freedom of the press, freedom to receive or impart info or ideas, artistic creativity, academic freedom & scientific research. This does not extend to propaganda of war, incitement of violence, advocacy of hatred. Assembly, demonstration, picket and petition - answerTo be peaceful and unarmed Political Rights - answerEvery citizen is free to make political choices and has the right to free and fair elections where everyone can vote. Citizenship - answerNo person may be deprived of citizenship Freedom of movement and residence - answerThis includes leaving the country or residing anywhere of choice within SA. Every person has the right to a passport. Freedom of trade, occupation and profession - answerAlthough everyone has a right to this the practice there of may be regulated by law. Labour relations - answerEveryone has the right to fair labour, practices, including joining a Union Environment - answerEveryone has a right to an environment that is not harmful to their health/ well-being and to have the environment protected for the benefit of present and future generations
Property - answerNo one may be deprived of property except i.t.o law of general application and no law may prevent arbitrary deprivation of property Housing - answerEveryone has the right to have access to adequate housing and may not be unlawfully evicted or have their homes demolish Healthcare, food, water and social security - answerEveryone has a right to these benefits and no one may be refused emergency medical treatment Children - answerAimed at the best interests concerning children younger than 18 years Education - answerEveryone has the right to basic education and further education must be made accessible Language and Culture - answerEveryone has the right to use the language and to participate in the cultural life of their choice Access to information - answerEveryone has the right of access to information held by the state or any information held by anyone required for the exercise of protection of any right Just Administrative action - answerWhich is lawful,reasonable and fair Arrested, detained and accused persons - answerAny person arrested for the allegedly committing an offence has the right to remain silent, be duly informed of rights and reasons for detention, may not be coerced to confess, to be brought before a court asap, Arrested, detained and accused persons- continue - answerHas the right to a legal practitioner, may challenge the lawfulness of proceedings, has a right to decent upkeep while detained, has the right to contact and be visited by person of choice, has the right to a fair trail. Limitations of fundamental rights - answer1. The law that limits the right must be of a general application(apply to everyone)
- The limitation must be reasonable and justifiable in an open and democratic society based on human dignity,equality and freedom( there must be good reason to limit the right within the context of democracy.) Limitations of fundamental rights- continue - answerThe following must be taken into account: a. Nature of the right b. Purpose of the limitation and its importance c. Nature of the limitation and the extend thereof d. The relation between the limitation and the purpose of the limitation must be justifiable
State advocate - answerconducts the states case in the high court, may also serve as legal advisor to the state and be involved in drafting legislation Presiding officer - answerin magisrates court it is the magistrate in high court it is a judge Our Judicial system - answer-Constitutional court -supreme court of appeal -high courts -magistrates courts -other courts established/recognised i.t.o an act of parliament 3 basic legal principles that form part of the legal process - answerPrinciple appeal review
