Street Law Textbook notes (LSKL 1514) PDF

Preview

Summary

The South African Street Law program is designed to teach law to learners from a variety of backgrounds, including law students, school learners, school educators, police and correctional services officers, security officers, trade unions, workers, women's organizations, children's organizations, yo...

Description

1|Page Street Law notes LSK151 What is Street law? 

Street law tells people about laws that affect them in their everyday life ‘on the street’.



Street law will help you understand how the law works and how it can protect you.

 

It also explains what the law expects you to do in certain cases. It tells you about the different legal problems you should watch for and how you can solve them.

What is law? 

law can be defined as a set of rules used to control the behaviour of people in society. Their legal rights and duties and how they will be protected by the courts.



Law governs human behaviour



Obeyed by all of society



It is enforced by state organs



Disobeying the law you may be prosecuted and punished.

Law vs Morals 1. The law is binding on people. This means that its rules must be followed. 2. Morals refer to behaviour that a particular society regards as right or wrong, and unless these morals have become part of the law, the courts cannot be used to enforce them. o The Constitution contains a Bill of Rights and is the supreme law of South Africa. Parliament is the main law-making body in South Africa. Provided it acts within the Constitution and the Bill of Rights. o Parliament cannot, however, make laws that conflict with the Constitution. Laws are necessary, without laws there would be confusion, fear and disorder.

NAMHLANDILE ZIHLANGU

2|Page Where South African law comes from o The pre-colonial rulers used indigenous law/customary law to govern the people. The law was based on traditions and customs. o 1652- Roman-Dutch Law comes to the cape. Roman-Dutch law still today forms the backbone of most of our law. Our Roman-Dutch legal system makes it easy for modern South African lawyers to communicate and interact with lawyers in many countries across the world ◊ Early 1800s the British occupied the Cape, this resulted in the reception of English Law.

The court procedure changed from the Dutch ‘inquisitorial’ system where the judges or magistrates ran the trials, to the English ‘adversarial’ system, where the lawyers run the trials and the judges or magistrates act as referees. The position in South Africa today is as follows:

1. The Constitution is the supreme law of the country and all laws – customary law, common law and statute law – must be in line with the Constitution, otherwise the parts of the law that conflict with the Constitution will be declared invalid. 2. The application of customary law is usually limited to the courts of the chiefs and headmen, which operate in areas where communities still live according to customary law. Customary law is recognised in the Constitution but must be in line with it and the courts have sometimes taken note of indigenous

3. Roman-Dutch law has remained the basis of the South African commonlaw system.

4. English law has had an influence on South African law as it is today,

NAMHLANDILE ZIHLANGU

3|Page especially in regard to court procedures and many of the statutes (see below para 1.2.2.3) that Parliament has passed regarding commercial transactions and court procedures. 5. South African common law is mainly Roman-Dutch with some English law and statute law (law made by Parliament) influences, and limited recognition of customary law. 6. Statute law is made by Parliament, the provincial legislatures and local authorities such as municipalities. How South African law is made

In 1910, the four colonies of South Africa, the Cape Colony, the Orange Free State, Transvaal and Natal joined together to become the Union of South Africa- This created one central system of government with the former colonies as provinces. The central government was given the supreme lawmaking power.

9 provinces

3 levels of government

NAMHLA

National

Provincial

South Africa is governed by

The provinces are governed by provincial legislatures.

Parliament, which consists

Local municipal areas are governed by municipal councils.

4|Page

Each of the above bodies have the power to make laws. 

Laws passed by these bodies are called Legislation



law is made by Parliament it is called a statute or an act.



Law made by a provincial legislature it is called a provincial act.



law is made by a municipal council it is called a by-law.

If a specific matter is not governed by legislation then the common law applies. The common law is not made by Parliament, or any of the bodies mentioned, and is not written down in statutes. Instead, it comes mainly from Roman-Dutch law.

NAMHLANDILE ZIHLANGU

5|Page

THE CONSTITUTION Acts that conflict with the Constitution are invalid 

Before 1994, South Africa had a ‘sovereign’ Parliament. This meant that the courts, and ordinary people, could not challenge the laws made by Parliament.



But Post-1994 The Constitution sets out the basic laws according to which South Africa is governed.



It is the supreme law of South Africa



This means that if Parliament makes a law that conflicts with the Constitution certain courts can declare these laws invalid.



the Bill of Rights is only 1 out of 14 chapters in the Constitution.

What is meant by the ‘separation of powers’. What are the main branches of government? Explain what each of them does. Why is the separation of powers important? 

The power of the state is divided between three different but interdependent components or arms, namely the executive (Cabinet consists of presidents and ministers and which executes laws), the legislature (Parliament which makes the laws) and the judiciary (Courts of law, resolve legal disputes by interpreting law )- Separation of Powers . The intent is to prevent the

NAMHLANDILE ZIHLANGU

6|Page concentration of power and provide for checks and balances so that executives do not hold too much power. 

The Bill of Rights sets out basic human rights. All South Africans are entitled to these rights. These rights protect citizens in their dealings with the state (eg the Bill of Rights gives rights to people who have been arrested)

The Constitution contains the following types of rights:

1. Civil and political rights. These rights protect people against the state and against one another. For example, rights to equality and freedom from unfair discrimination (including on the grounds of race, gender, sex etc)

2. Economic and social rights. These rights require the state to take positive action to improve people’s standards of living within its available resources. For example- rights of access to adequate housing and access to health care services. This means that the state must take steps to realise these rights but is not expected to do so immediately

3. Environmental, cultural and developmental rights. These rights relate to groups of people. For example,

the Constitution

contains a

right to an

environment that is not harmful to one’s health or well-being. The Constitution says that this is also for the benefit of ‘future generations.’

NAMHLANDILE ZIHLANGU

7|Page

COMMON LAW The common law is the law not made by Parliament, a provincial body or a municipal council. The common law comes mainly from Roman-Dutch law, English law, and sometimes even ancient Roman law. Since 1994, in keeping with the spirit of the Constitution, the courts have also taken note of customary law and law brought to South Africa by other communities, such as the Islamic and Hindu communities 

Judges in South Africa have developed the common law by interpreting and applying it to individual cases. Common law therefore develops from the rules made by judges in court decisions and written down in their judgments.



Sometimes new decisions are taken by judges as to what the common law means. These decisions state how the law must be interpreted in future and are called ‘Precedents’.



Decisions by judges are called Judgments.

A court decision or judgment is made in one of three ways: a) Is there a rule covering the facts? The judges look at the law to see if there is a rule that covers the facts of the case. If there is a rule, they apply it to the case. b) Precedent- Sometimes there is no rule that covers the facts of the case. Then the judges must make a decision based on their own opinion. They do this by looking at the facts of the case and the existing law. The judgment sometimes includes a new rule of law. This is called a ‘precedent’ . c) Applying the rule differently- Sometimes there is a rule that covers the facts of the case, but it has always been applied in a particular way. A person may argue that the rule can be applied in a different way.

NAMHLANDILE ZIHLANGU

8|Page The judge must then decide if this new approach is correct. If the judge decides that the new approach is correct, he or she has given a new interpretation or explanation of the law. This judgment can also be called a precedent. Courts are guided by precedents:



In law the courts are guided by precedents. A court must follow precedents set by courts that are higher than it. The highest courts in South Africa are the Supreme Court of Appeal (the highest court in all matters except constitutional matters) and the Constitutional Court (the highest court in constitutional matters).



If a precedent has been set by the Constitutional Court on a constitutional matter, even Parliament may be bound by it and only the court itself can change it.



Lower courts must follow the decisions of higher courts



Supreme Court of Appeal was previously called the Appellate Division.

Statute Law o Statute law is written law. It is made by Parliament, provincial legislatures and municipal councils. However, they may not make laws about anything. o Parliament may make laws about almost any matter. There are some matters, however, such as provincial roads, that only provincial o legislatures may make laws about.

Parliament is the most important law-making body

How does it make law? 1. Parliament

should

always

consist

of

representatives of the community, chosen through

NAMHLANDILE ZIHLANGU

9|Page free and fair elections that are held regularly, in which all adult citizens may vote. 2. When a need for a law arises it is introduced to the National Assembly by Cabinet Ministers. The Bill is debated by the members of the National Assembly, who may propose amendments to the Bill. Eventually, the members vote on whether the Bill should be passed. 3. The National Council of Provinces must approve all Bills. The purpose of the National Council of Provinces is to ensure that the provinces have a say regarding national legislation that affects the provinces. 4. The Bill is also debated, and voted on, in the National Council of Provinces. If it is rejected, and the two houses are in disagreement, Constitution says how the dispute must be resolved. 5. If the NCP approves the Bill it is referred to the President, who signs it. 6. The Bill then becomes a statute or an ‘Act’. The Act must be in line with the Constitution. 7. Acts are published in the Government Gazette.

statutes may allow Ministers of government departments to make regulations. These regulations are not written in the Act but are published in the Government Gazette and other newspapers.

Kinds of Law There are two main kinds of law: criminal and civil. Criminal Law - the state brings criminal cases to court. If a person is found guilty by the court the person concerned can be imprisoned, fined (made to pay money), or punished in some

NAMHLANDILE ZIHLANGU

10 | P a g e otherway. Therefore, we can say: ‘A crime is a wrong agains the state for which the wrongdoer (criminal) is punished by the state’.

Civil law- a civil case is usually brought by a private person called the ‘Plaintiff’ v Defendant. If the plaintiff wins the case, the defendant will usually be ordered by the court to pay compensation. Sometimes the court may also order a defendant to do, or stop doing, something (e.g to deliver something he or she has sold, or to stop damaging the plaintiff’s property). o Civil cases usually deal with actions for damage to property,

injuries

to

people,

consumer

problems,

employment troubles, family problems, etc. We can summarise this by saying: ‘A civil wrong is a wrong against an individual for

which the wrongdoer

must

pay

compensation to the injured person’. o Sometimes an act may be both a civil wrong and a crime; For example, a person who assaults (wrongfully and intentionally injures) someone can be prosecuted by the state and, if convicted, punished for committing a crime.

Different Kinds of Courts in South Africa Constitutional Court: This court is the highest court in South Africa for constitutional matters and may only hear constitutional matters.  Located in Braamfontein, Johannesburg.

NAMHLANDILE ZIHLANGU

11 | P a g e

 The Constitutional Court is, in part, a court of appeal and hears appeals against constitutional judgments of the High Courts and the Supreme Court of Appeal. 

For example, only the Constitutional Court can decide on the constitutionality of an amendment to the Constitution. Finally, when a High Court or the Supreme Court of Appeal declares that an Act of Parliament, a Provincial Act or the conduct of the President is unconstitutional, the order will only come into effect once it has been confirmed by the Constitutional Court.

Supreme Court of Appeal: This is the highest court in South Africa in all matters except constitutional cases. The court does not conduct trials, but only hears appeals. These judges are appointed from the ordinary judges who sit in the High Courts. Decisions by the Supreme Court of Appeal must be followed by all the High Courts and magistrates’ courts in South Africa.

High Courts: These are the higher or superior courts which usually hear more serious criminal or civil cases. There are only a few High Courts. They do not hear as many cases as the magistrates’ courts. They hear about 5 000 criminal cases a year. It is more expensive to bring an action in the High Court than in the magistrate’s court.  however, the High Court will only hear criminal cases that may result in serious forms of punishment (life imprisonment or longer or a fine of more than R400 000).  A charge of treason must always be heard by the High Court.  There are also certain civil matters that must be heard by a High Court (eg interpretation of wills, declaration of a person as insane)

NAMHLANDILE ZIHLANGU

12 | P a g e

 . High Court may also decide any constitutional matter, except for some matters that can only be heard by the Constitutional Court.  A High Court can, however, rule on the constitutionality of an Act of Parliament, a Provincial Act or the conduct of the President. Such a ruling will only come into effect once it is confirmed by the Constitutional Court. High Courts also hear appeals and reviews from the magistrates’ courts.  cases are heardby judges  In complex matters a judge may be helped by one or two other people called ‘assessors’ who are not judges. Assessors are usually retired lawyers, magistrates and university lecturers who help the judge decide the facts – not the law. The judge decides the law. The following High Courts exist: • • • • • • • • • • • • • •

Eastern Cape High Court (Bhisho) Free State High Court (Bloemfontein) Western Cape High Court (Cape Town) KwaZulu-Natal High Court (Durban) Eastern Cape High Court (Grahamstown) South Gauteng High Court (Johannesburg) Northern Cape High Court (Kimberley) KwaZulu-Natal High Court (Pietermaritzburg) Eastern Cape High Court (Port Elizabeth) North Gauteng High Court (Pretoria) Limpopo High Court (Thohoyandou) Eastern Cape High Court (Mthatha) North West High Court, Mafikeng (Mmabatho) and Polokwane Circuit Court of the North Gauteng High Court, Pretoria.

 permission must be obtained to appeal from a High Court to the Supreme Court of Appeal.  The High Courts must follow the decisions of the Constitutional Court in constitutional cases and the decisions of the Supreme Court of Appeal in non-constitutional cases.

NAMHLANDILE ZIHLANGU

13 | P a g e

Magistrates’ courts: These are the lower or inferior courts which deal with less serious criminal and civil cases. There is usually a magistrate’s court in every town. It is cheaper to bring cases in the magistrate’s court than the High Court. Magistrates’ courts may be divided into district and regional magistrates’ courts. District magistrates’ courts are presided over by ordinary magistrates. District courts hear about 600 000 cases a year Criminal Courts  Regional Magistrates Court -

-

have more power than the ordinary magistrates’ courts. may hear all criminal offences, except treason may sentence a person to a maximum fine of R400 000 or imprisonment including life imprisonment. usually hear cases involving serious crimes like murder, rape, armed robbery and serious assaults.

Civil Courts  Regional Magistrates Court - can hear claims of up to R400 000. -However, like district magistrates’ courts, they cannot hear actions for interpretation of wills and whether someone is insane. They can, however, hear divorce cases. -

NAMHLANDILE ZIHLANGU

District Magistrates Court -less

power

than

the

regional

magistrates -

may

sentence

a

person

to

a

maximum fine of R200 000 or three years’ imprisonment. - Some statutes may extend these powers (eg laws dealing with drug crimes). They may not try cases of murder, rape, and treason.

District Magistrates Court -the ordinary magistrates’ courts cannot usually hear claims involving more than R200 000. - cannot hear certain actions like divorce, interpretation of wills (documents saying how people want their property distributed after their death) and whether someone is insane.

14 | P a g e

 In the magistrates’ courts all matters are heard by magistrates. Magistrates are civil servants who are usually appointed from people who have worked as prosecutors and clerks in the Department of Justice.  A person involved in a criminal or civil case can ask the High Court to examine the decision of the magistrate’s court and decide whether it was correct. The person asks the High Court to change the decision of the magistrate’s court. This is called an ‘appeal’. If a person believes that the proceedings in the magistrate’s court were unlawful or unfair, he or she can bring the case to the High Court. This is called a ‘review’.

Regional courts are presided over by regional magistrates who hear more serious criminal and civil cases. Regional courts hear about 60 000 cases a year. Small claims courts: These are the newest courts in South Africa and have been set up in a few of the major towns. These cou...