INTRODUCTION TO SOUTH AFRICAN LAW

LAW AND RELATED CONCEPTS

The aim of this section is to give you a basic understanding of how people have
tried to define what law is and what it is not. First, we make the point that no one
has yet managed to arrive at a short definition of law that is universally agreed
upon, and we suggest why this is so. We then describe the relationship of law to
other concepts such as morality and justice.

1. WHAT IS LAW?
Law is a concept that is notoriously difficult to define. While we probably all think
that we know law when we see it, and while philosophers have been attempting
to define the concept for centuries, there remains little agreement on the subject
of law and its essence. Today most people would agree that law has to do with
the ordering of society and that it has to do with prescriptive rules, as opposed to
descriptive or scientific rules.

One of the reasons why law is so difficult to pin down is that it appears in diverse
forms, emerges from a variety of sources and embraces a variety of functions.

As to form and source, lay persons tend to think of law as something (i) written
down (ii) by a group of elected lawmakers. While written law such as legislation is
a very important source of legal rules, law also comes in the form of completely
unwritten rules such as modern custom and customary law. In Britain, even the
Constitution – the most fundamental law of all – has not been fully codified
(written down). In addition, much law is created by the judgments of courts rather
than by elected lawmaking bodies.

In relation to function, various branches of law may have completely different

purposes. Lay persons tend to conceive of law in terms of crime and punishment:
they think of the police, of prosecutors and defence lawyers, and of prison
sentences (and television dramas do nothing to dispel this very one-sided view of
law). Thus they tend to view law as having the function of discouraging anti-
social conduct. Yet this type of law, criminal law, is only one branch of a much
larger system. There are other branches of the law that involve the state, and so
are part of 'public' law, but which have nothing to do with crime: constitutional
law, for instance. Then there are many branches of 'private' law, dealing mainly
with relationships between citizens, such as the law of contract, the law of
property, family law and the law of delict.

Each of these types of law has a different purpose. One could say, for instance,

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that the purpose of commercial law is to facilitate commerce; that the purpose of
labour law is to regulate the employment relationship and to protect the interests
of both employers and employees; that the purpose of administrative law is to
control the powers of public authorities; and that the purpose of delict is to
compensate the victims of other people's carelessness.

Once one grasps the many different forms, sources and functions of law, it is
easy to see why short definitions of law are inevitably unsatisfactory.

1.1 The need for law

Law is an attribute of human beings that appears when groups of people have
associated themselves into a society. Such groups organize themselves into
socio-political clusters when there is a need for civilization. Some authorities
suggest that primitive people lived in a state of chaos where there were no real
rules, duties or limitations. The philosopher Thomas Hobbes (1588-1679) called
this a 'state of nature'. In such a state, ruled by pure instinct, small groups of
human beings such as families or tribes eventually came to the realization that if
they did not order their society they would soon become extinct. This realization
amongst the group gave rise to a 'social contract', in terms of which the members
of the group authorized the leaders to organize the group to ensure its survival.
In exchange for the sacrifice of their unlimited freedom in a state of nature, they
received in return the guarantee of protection and order from their leaders.

According to some thinkers, it is only once such a society comes into being that
one can start talking of civilization and law. The stable and progressive primitive
society that has entered into the social contract can now start to enjoy the luxury
of thinking of the future and planning ahead. When members of a tribe have the
stability and self-confidence to sow seeds for next season's use, they stop being
hunter-gatherers and become pastoral. This is often mentioned as a prerequisite
for the establishment of law in a society.

1.2 Some attempts to define law

A 'definition' is usually understood as a short and precise statement of the
essential nature of a thing.

In the South African context, Hahlo and Kahn 1 offer this definition:

‘Law in the strict sense is the only body of rules governing human conduct
that is recognized as binding by the state and, if necessary, enforced.'

1
H R Hahlo & Ellison Kahn The South African Legal System and its Background (1968) 3.

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Law is related to, and sometimes confused with, concepts such as religion,
morality and justice.

2. LAW AND RELATED CONCEPTS

2.1 Law and religion
Religion is associated with a belief in powers superior to man; powers which are
thought to control the course of nature and human life itself, and which may
dictate rules of conduct for humans. Law tends to be associated rather with
imperfect rules handed down by a human agency. But there is a close link
between the two, since the roots of law can generally be traced to custom, and
custom is to some extent based on religion. An English jurist, Henry Maine
(1822-1888), went so far as to say that every system of law was originally bound
up with religious ritual.

Certainly it is true that in ancient times there were many societies where the
functions of priests, lawmakers and judges overlapped. In ancient Rome, for
instance, the king was also the high priest and the supreme lawgiver; and in
ancient Egypt the Pharaoh was regarded as the incarnation of God on earth.
Even in modern times there are societies in which law and religion are hardly
distinguishable. The Koran, for example, is both an expression of religious beliefs
and of Islamic law. Furthermore, Jewish law in modern Israel contains reference
to rules of worship and religious behaviour.

Religious states such as Israel and Islamic states such as Iran and Afghanistan
tend to insist on a close correspondence between secular and religious
institutions. By contrast, most Western societies today tend to resist the
overlapping of law and religion, especially in countries where there is no single
dominant religion or where (as in South Africa) the constitution allows for
freedom of religion. The view in such countries tends to be that law is something
objective and secular imposed by the state, whereas religion involves subjective
spiritual belief and is dictated by upbringing and conscience. Each should enjoy
sovereignty within its own sphere of influence and remain independent of the
other. When law and religion conflict, the Western view is generally that law
takes precedence.

Nevertheless, there tend to be many similarities between the content of law and
the dominant religion, even in Western societies. Western legal philosophy is
strongly influenced by Judeo-Christian thought. Most obviously, perhaps, many
crimes would be regarded as sinful conduct by religious institutions. For example,
murder, rape and theft are sins in religious terms and also crimes in South
African law.

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A sin, however, is not always a crime. To tell a lie to someone is not punishable
by law unless it amounts to fraud or was something said under oath. In many
religions it is a sin to lust after someone else's wife or envy someone’s
possessions, but the state cannot practically enforce this as a crime.

2.2 Law and morality

Morality is a system of morals: individual or group beliefs about what is right and
wrong. There is obviously a close connection between morality and religion,
since many standards of right and wrong are dictated or inspired by religion.
There is also a connection between law and morality, since the law is concerned
with upholding standards too. The standards of law and morality are not
necessarily the same, however. In apartheid South Africa, for instance, a social
system internationally regarded as morally wicked was upheld and enforced by
law for more than forty years.

As with religion, there are some societies in which law and the prevailing morality
coincide to a remarkable degree. In other societies, it is possible to draw a fairly
sharp distinction between certain laws and the moral beliefs of many of its
citizens. But even then there remains a large measure of overlap. One reason is
that law frequently intervenes in areas in which people tend to hold strong moral
opinions: for instance, in questions about contraception, abortion and the death
penalty, the status of women, the treatment of children and animals. If the legal
rules imposed do not have the moral support of a large section of the community,
those rules are in danger of being disregarded.

Law and morals also tend to feed and reinforce each other. The belief that it is
wrong to kill others in certain circumstances may induce a lawmaker to enact a
legal rule that forbids murder; and that law will in turn reinforce the moral belief
that murder is wrong. Or a particular activity will be decriminalized, helping to
reinforce the idea that the activity is not immoral. An example is the
decriminalization of the common-law crime of sodomy and the resultant
legitimizing of gay sex in South Africa by the Constitutional Court in the case of
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA
6 (CC). This case is likely to have a considerable effect on the way in which
homosexuality is viewed.

Another factor contributing to the overlap is that moral standards inevitably

influence judges when they set legal standards in cases. In criminal law this is
particularly evident. The idea of guilt or mens rea is based on the notion of moral
responsibility in most legal systems, so that people who have committed a

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criminal act while insane or while sleepwalking, say, will not be found criminally
guilty: they cannot be held responsible for their actions. And in sentencing a
convicted criminal, his or her moral blameworthiness is a crucial consideration in
determining the severity of the penalty. This is well illustrated by the case of S v
Hartmann 1975 (3) SA 532 (C). Here a medical doctor was found guilty of
murdering his father, but nevertheless received an astonishingly light sentence.
The court was influenced by the fact that the elderly father had been dying
painfully of cancer and that his son had killed him as an act of mercy. (Don’t try
this at home!)

Law and morals have a considerable vocabulary in common, such as 'just',

'reasonable', 'right' and 'duty', but in most societies there are also clear
divergences between the two concepts, either because it would be impractical or
unrealistic for law fully to enforce the prevailing morality, or because there is no
prevailing morality on the topic.

Governments often abstain from setting standards that are too high, or too
invasive, or that will be too expensive and burdensome to enforce. In law, one
can ignore the shouts of a drowning person unless there is a prior relationship
which places on one a legal duty to attempt a rescue. On the other hand, morality
would surely require one to attempt a rescue unless this would cause extreme
danger to one's own safety. Then, most people would agree that cheating of any
kind is morally wrong; but it would be unrealistic for the law to attempt to prohibit
and punish every single form of cheating, no matter how trivial. So the law only
prohibits serious and socially disruptive forms of cheating, such as theft and
fraud. As it is sometimes said, de minimis non curat lex (that is, the law does not
concern itself with trivialities). For reasons of practicality the law also draws
morally arbitrary lines when dealing with issues such as drugs and pornography:
often it is an offence to deal in these materials, but not to possess them.

As for the idea of a 'prevailing' morality, or a 'moral majority', such a thing does
not necessarily exist, especially in heterogenous societies like South Africa. Even
if it does exist, how does one go about establishing what the people's views are?
And are those views necessarily the best path to follow? Most people do not
have the opportunity or inclination to make carefully considered moral judgments,
and their moral views may well be the product of ignorance or prejudice. This is
perhaps why, in spite of majority opinion, governments have often had to take the
enlightened lead in matters such as removing discrimination against women, the
abolition of the death penalty, and outlawing cruelty to animals. It is interesting
how often public opinion actually changes as a result of such government action.
Child labour in England during the industrial revolution was thought by most

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people to be a perfectly acceptable social institution – until it was abolished by
the government of the day.

Morality is something that a particular group or a particular society believes to be

right and wrong. Transgression of such morals is not visited by a state sanction,
but could lead to severe social denouncement. The standards of morality not only
vary from one society to another, but can also change dramatically from time to
time to adapt to changes in society itself.

2.3 Law and justice

One likes to think the aim of law is to deliver justice, and indeed lawyers are
always talking about it: the 'administration of justice', 'miscarriages of justice', the
'interests of justice', and so on. Early on in their careers, lawyers learn that law –
an imperfect social construct riddled with political and moral compromises – does
not always coincide with common perceptions of justice. But then justice, like any
other moral value, is a contested and highly subjective ideal. One person's idea
of justice is not necessarily the same as another's, and will very likely depend on
their social, political, moral and economic views. Nor is justice an exclusively
legal concern. It is inextricably linked with religion, morality and other spheres of
human belief and endeavour.

The modern view is that justice and equality are intimately linked: that justice is a
case of treating people in the same way. But in a legal context this can refer to at
least two different things.

OVERVIEW OF THE SOURCES OF SOUTH AFRICAN LAW

The process of colonization began at the Cape in 1652 when Jan van Riebeeck
arrived, bringing with him the law of the province of Holland: Roman-Dutch law.
For the next 150 years, Roman-Dutch law was the official law of the Cape. First in
1795 and finally in 1806 the British took over the rule of the Cape from the Dutch.
They then introduced and applied English law, but did not abolish Roman-Dutch
law as the common law of South Africa. The result was that notwithstanding the
strong English-law influence, Roman-Dutch law continued to survive at the Cape
and was steadily developed in the case law.

Before the Dutch and British arrived at the Cape, the indigenous people of the
area were already in occupation and lived by their own system of law – customary
law. The fact that this indigenous system was misunderstood and largely
disregarded by the colonial authorities from the start helps to account for the
secondary status that customary law has had and still has in South Africa.

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Today most authorities seem to agree that South African law comes from five
primary sources. There are also other sources, but these are usually regarded as
subsidiary or secondary for reasons that we will explain further below. The
distinction between primary and secondary sources is not cast in bronze,
however, and nor is it entirely uncontroversial. It could be argued, for instance,
that customary law has a status similar to the common law, at least in cases
where customary law clearly applies.

THE PRIMARY SOURCES

In order of importance, the six primary sources are:

 The Constitution of the Republic of South Africa, 1996 (referred to as the

Constitution);
 Other legislation, particularly Acts of Parliament, provincial Acts and municipal
by-laws;
 Judicial precedent or case law, which arises from the decisions of judges;
 The common law, which is the writings of old Roman-Dutch authorities, some
principles of English law and even some Roman authorities, as developed by
the judges to meet modern-day needs and changing social circumstances;
 Customs and trade practices that are developed by people, often in trades
and professions, to regulate their activities.
 Customary law, which refers to the principles arising from long established
practices in culture and religion – for example, lobola in African customary
law.

These are thought of as ‘primary’ sources because they are formal sources of
law that have binding authority and govern all the citizens of South Africa. The
courts are bound to apply them in certain circumstances and in accordance with
the rules of judicial precedent. You will be studying all of the sources in more
detail later on in this course; but here we outline each of these sources to help
you understand from the outset how the legal system works.

1. The Constitution
A Constitution is a fundamental law that sets out the power of the state. It is the
source of all authority in the state, and is thus the ultimate source of law. Section
2 of South Africa's Constitution (Constitution of the Republic of South Africa,
1996) makes this clear by stating that:

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 ‘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.'

Our Constitution includes a Bill of Rights, which protects certain fundamental

rights and prevents them from being violated (usually by the government).

How does the Constitution relate to other sources of law? First, it refers to and
recognizes various other sources of law, such as the common law and custom.
For example, s 39(3) says that

‘[t]he Bill of Rights does not deny the existence of any other rights or
freedoms that are recognized or conferred by the common law, customary
law or legislation, to the extent that they are consistent with the Bill.’

Secondly, the Constitution sets out detailed rules about which organs may make
legislation and the process they have to follow in making it (see under the next
heading).

Thirdly, the Constitution makes it clear that all the other sources have to conform
to the Constitution. Section 2 indicates this by saying that the Constitution is the
supreme law, and that any law or conduct inconsistent with it is invalid. As you
have just seen, s 39(3) insists on consistency between other sources and the Bill
of Rights. Section 39(2) goes even further by imposing a positive duty on the
courts to promote the Bill of Rights:

‘When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.’

2. Legislation
Legislation is written law made by the legislative branch of government, often
called the legislature. The other two arms are called the executive and the
judiciary. They are responsible respectively for making policy and implementing
the law; and interpreting or applying the law.

Legislation tends to be the most important and the most prolific source of law in
modern Western societies. This is because it is the quickest and most convenient
way of changing and reforming the law. While other sources of law, such as
precedent and custom, tend to develop slowly, incrementally and unpredictably,

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legislation allows the government to make significant and systematic changes to
the law in a very short time.

The most important legislative (lawmaking) organ in South Africa is our national
Parliament, which makes and enacts Acts of Parliament or statutes. It consists of
two houses, the National Assembly and the National Council of Provinces. But
Parliament does not have time to deal with every single detail in its statutes, so it
often delegates some of its lawmaking authority to other state organs associated
with the executive arm of government. These organs, including the President,
Cabinet Ministers and other officials, then make ‘delegated’ legislation to flesh
out the Act of Parliament.

Acts of Parliament are published in the Government Gazette. The statutes of

South Africa are collected in the Butterworths Statutes of South Africa (and
certain other collections), and are available in the law library.

Our nine provinces, too, have legislatures which make provincial laws; and the
many local authorities (municipalities) in the country also make laws, such as
municipal by-laws and budgetary resolutions. Like Parliament, provincial and
municipal legislatures may also delegate some of their lawmaking power to other
organs.

How does legislation relate to the other sources?

 First, legislation is enabled by the Constitution, since the Constitution officially

appoints Parliament, the provincial legislatures and municipal councils as the
main lawmaking bodies.
 Secondly, and like all the other sources, legislation is subordinate to the
Constitution (s 2 of the Constitution, quoted above, makes this clear). If
legislation violates the Bill of Rights or is contrary to any other provision of the
Constitution, it will be invalid – though no one can be sure that it is invalid
unless and until a court of law says so.
 Thirdly, legislation trumps (overrides) all the other sources of law – except the
Constitution, obviously – in the sense that it can at any time change what
those sources say about the law. For example, it can overturn a precedent set
by a judge in a court case, and it can do away with an ancient principle of the
common law.
 In turn, however, the courts have the power to interpret legislation and say
whether it is constitutionally valid or invalid. They can find that legislation is
invalid on formal or technical grounds (such as failure to comply with the

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 lawmaking process laid down in the Constitution) or on substantive grounds,
such as conflict with a right in the Bill of Rights.

3. Judicial precedent
A court decision is essentially made in one of three ways:

(a) The court looks at the law to see if there is a rule that covers the facts of the
case. If there is an existing rule, the court applies it to the case. The court
does not set a precedent; it simply applies the existing law (which may itself
be a precedent).

(b) Sometimes there is no rule that covers the facts of the case. Then the court
must make a decision based on its own view. It does this by considering the
facts of the case, the existing law and social policy. The court’s decision then
effectively creates a new rule of law, and we say that the court has set a
precedent.

(c) Sometimes there is a rule, but it has always been applied to specific factual
situations and so it does not quite cover the facts of the case before the
court. The court may decide to extend the rule to cover the facts in its case,
meaning that the law is developed. Here, too, the court sets a precedent.

Precedents are used to guide the courts in future cases. The precedents of the
highest courts (the Supreme Court of Appeal in non-constitutional cases, and the
Constitutional Court in constitutional matters) must be followed by all other
courts, ie the High Courts and all magistrates' courts. Only these courts (SCA or
CC) can change a precedent that has been set by one of them. In turn, the
precedents of the High Courts must be followed by all magistrates' courts.

How does precedent relate to the other sources?

 As we have seen, the Constitution recognizes the existence of case law and
places a duty on the courts to promote the Bill of Rights when they are
deciding cases. Section 39(2) provides:

'When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.'

 We have also seen that legislation can effectively change a precedent set by
a court.

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 On the other hand, legislation can itself be declared invalid (struck down) by
the courts for formal or substantive reasons.
 Judicial precedent recognizes and develops the remaining two primary
sources, common law and custom.

4. The common law

The common law is a set of rules and principles, often very ancient ones, that
have not been written down in legislation. The common law is very extensive and
it contains all sorts of principles – some being regarded as merely persuasive,
while others are so well established that they are treated as binding. For
example, murder is a common-law crime. It exists not because a statute says so
but because this is an extremely well-established principle of our common law. A
court would never ignore the common-law definition of murder, and would
develop it only with the greatest care.

Our common law comes from the Roman-Dutch law, from English law to some
extent, and sometimes even from ancient Roman law. It has been interpreted,
developed and reformulated by judges in the decisions they make and the
precedents they set.

The old Roman-Dutch authorities were men such as Hugo de Groot, Simon van
Leeuwen, Johannes Voet and Johannes van der Linden. The phrase 'common
law' in the South African context is sometimes used narrowly to refer specifically
to these old Roman-Dutch authorities. In this course, however, the phrase is
generally used in a wider sense to mean all the old, established principles of law
that have been passed down to us and which have been applied, interpreted and
developed in the courts. In this sense the common law encompasses judicial
precedent to a considerable extent – it is often difficult or impossible to
disentangle the two – but obviously excludes all legislation and the Constitution.

How does the common law relate to the other sources?

 It is recognized by the Constitution, particularly in s 39 (see above).

 It can be changed by legislation at any time. Legislation trumps or overrides
the common law.
 It is constantly being developed by the courts, and thus becomes entangled
with judicial precedent. Though it is said to be a ‘binding’ source of law, the
courts often have considerable freedom as to which common-law principles
they uphold and which they disregard.

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 Custom is also entangled with the common law and with precedent, since it is
common-law principles (recognized by the courts) that tell us when the courts
will recognize customs!

5. Customs and trade practices

A custom is a long-established practice that eventually acquires the force of law.
It may be difficult to prove that a particular practice exists as a custom, since
custom does not consist of written rules. Rather, it develops from the practices of
the community, and is carried on from generation to generation. Because it
develops so slowly, custom is not generally an important source of law today; but
there are certain fields, such as banking law, in which it plays a fairly significant
role.

The leading case on custom, Van Breda v Jacobs 1921 AD 330, is based on
common-law authorities. It establishes that a custom must meet certain
requirements before it can be recognized as law:
 it must be a long-standing practice;
 it must have been in existence without exception since its origin;
 it must be reasonable;
 it must be certain; and
 it must be generally recognized and observed by the community.

Custom as a primary source of law must be distinguished from customary law or

indigenous law, which is generally regarded as subsidiary or secondary source of
law.

How does custom relate to the other sources?

 It seems to be recognized in the Constitution. The references in s 39 to

‘customary law’ are probably broad enough to cover ‘custom’ too.
 It can be changed at any time by legislation, which trumps or overrides
custom.
 Custom is thoroughly entangled with the common law and with precedent.
This is because common-law principles developed and stated by the courts
(in cases like Van Breda) tell us when the courts will be prepared to recognize
customs.

6. Customary law
Customary law encompasses not only African customary law, or indigenous law,
but also customary rules from ethnic and religious groups such as Muslims and

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Jews. It is considered by many to be a subsidiary source of law, mainly because
it does not apply to everyone in South Africa. The courts will only apply
customary law to people from the relevant group, and then only if those people
live according to that law and tacitly or expressly indicate their willingness to
have the customary law applied to them.

In chapter 12 the Constitution recognizes customary law and the ‘institution,

status and role of traditional leadership’ (s 211(1)). It says that the courts ‘must
apply customary law when that law is applicable, subject to the Constitution and
any legislation that specifically deals with customary law’ (s 211(3)). There do
tend to be tensions between rights in the Bill of Rights (particularly the equality
clause) and customary and religious practices that are perceived to discriminate
against women and in such situations the Constitution will obviously prevail.

SUBSIDIARY OR SECONDARY SOURCES OF LAW

1. International law
International law is the law that applies between the states of the world. It is
covers matters of inter-state concern such as the boundaries between states, the
law of the sea, global environmental issues, humanitarian law and refugee law. It
mostly comprises rules and principles set out in international treaties which are
agreements concluded by the representatives of various states, but also includes
so-called ‘customary international law’. The rules applicable to the conclusion of
treaties and the recognition of customary international law form part of the
subject public international law, which you will study later on in your legal
education. Treaties can be bilateral (between two states only) or multilateral
(between more than two states). Different states have different rules as to when
a signed international agreement becomes binding. In South Africa, these rules
are set out in s 231 of the Constitution. The general rule is that while the
President together with members of the Cabinet are responsible for signing
international agreements, they only become binding (giving rise to international
legal obligations) after they have been approved by resolution in both houses of
Parliament (you will learn more about these structures of the state in the course
Introduction to Constitutional Law).

Since the passing of the 1996 Constitution, international law has increased in
significance as a secondary source of law. Firstly, s 39(1)(b) provides that any
court, tribunal or forum that interprets the Bill of Rights must consider
international law. International human rights law – as contained in the
International Covenant of Civil and Political Rights and the International
Covenant of Social, Economic and Cultural Rights would be particularly relevant
here. Secondly, s 232 provides that when interpreting any legislation, every court

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must prefer a reasonable interpretation of the legislation that is consistent with
international law, over any alternative interpretation that is inconsistent with
international law.

2. Foreign law
Foreign law is not generally binding in this country, and our courts do not have to
follow precedents set by foreign courts. However, our courts do quite often
consider the reasoning of judges in other countries and sometimes find foreign
precedents persuasive. In fact, the Constitution actually encourages our judges
to consider how the law is being developed elsewhere when they are interpreting
the Bill of Rights (s 39(1)).

As long as it does not conflict with the Constitution, legislation or a binding South
African precedent, there is nothing to stop a South African judge from following a
precedent set by a court in another country. In this way, foreign law works its way
into our law and may be said to be a secondary source of law.
Sometimes the courts actually have to apply foreign law to the case before them,
eg when the parties are foreign or South African private international law requires
foreign law to be applied to solve a problem. For example, if German nationals
get divorced in South Africa, the court will divide up their property in accordance
with German law. Section 1 of the Law of Evidence Amendment Act of 1988
allows for a court to take judicial notice of the law of a foreign state ‘in so far as
such law can be ascertained readily and with sufficient certainty’.

3. Modern writings
Modern writings, such as books and journal articles, are definitely not regarded
as part of our common law. Indeed, strictly speaking modern writings on the law
are not sources of law at all. This is because they describe and discuss and
argue about the law rather than create the law. They are a convenient place to
find out about the law, but are not themselves law.
The tradition in English courts, inherited here to some extent, is against citing
living authors. It often used to be said that English academic lawyers are much
less influential in the courts than their continental and American colleagues. But
things have changed a great deal in this regard, especially over the last thirty
years or so. Not only in England but also in South Africa, academic and other
modern writings are increasingly being relied upon by practitioners and judges in
the courts. One might say that they are either becoming a secondary source, or
at least starting to be treated as a secondary source of law.

Whatever their precise status as a source, modern writings are not regarded as
binding on anyone, and have only persuasive force. The persuasiveness of a

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particular book or article depends essentially on its quality and the cogency of its
arguments, of course; but it would certainly be influenced by the seniority and
reputation of the author. A substantial and scholarly book written by a famous
professor of law, ie someone who is known for his work in the relevant field,
would tend to carry more weight than a brief case note written by an unknown
junior lecturer on the same subject.

Apart from being mentioned in chapter 9, modern writings are not dealt with
again in this pack. It is essential that you remember what has been said about
modern writings here.

A MORE DETAILED LOOK AT THE CONSTITUTION AND LEGISLATION AS

SOURCES OF LEGAL AUTHORITY

1. THE CONSTITUTION
A constitution is the most fundamental law of any society. It may be defined as a
foundational law that sets out all the powers of the state. It is also the most
important source of law, since it provides the basis from which the state acquires
its lawmaking authority.

In the narrow sense, a Constitution (spelled with a capital ‘C’) is a written

document setting out all the powers and functions of the various arms of
government and establishing the sort of legal relationship the government has
with its people. In the broader sense, the term (usually with a small ‘c’) refers to
the entire system of government, including all the rules, conventions and
customs that govern it. Some countries, such as Britain and Israel, do not have
written Constitutions; but they do have constitutions in the broader sense.

Constitutions are the ultimate source of law in any country. This is because they
are like a map or blueprint of the legal power in a country. They establish where
that power is to be found, who holds it and how it must be exercised. If, for
instance, you wanted to find out whether a piece of legislation is formally valid,
you would ask whether the Constitution (or some other piece of legislation
authorized by it) confers legislative powers on the body that enacted the
legislation. You would also need to know whether the body in question validly
followed the procedures laid down in the Constitution or that other piece of
legislation.

South Africa has a written Constitution, a lengthy document whose full title is
Constitution of the Republic of South Africa, 1996. It is usually called simply ‘the
Constitution’ or ‘the 1996 Constitution’, and sometimes (rather optimistically) ‘the

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final Constitution’. The 1996 Constitution came into effect on 4 February 1997. It
was preceded by the 1993 Constitution (Constitution of the Republic of South
Africa, Act 200 of 1993). Most people call the 1993 Constitution ‘the interim
Constitution’ because it was an interim, transitional measure. This is explained
further under the next heading.

1.1 How our Constitution came into being

Most Constitutions come into being as a result of some crucial event in a
country's history, such as a revolution, the gaining of independence, unification or
war (two-thirds of the world's Constitutions have been written since World War II).
It usually represents an attempt by the country's political leaders to break with the
past and make a fresh start. South Africa is no exception to this trend. During the
twentieth century new Constitutions were drawn up at the time of Union in 1910,
at the time of becoming a republic in 1961, to mark a shift towards limited power-
sharing in 1983, and to introduce democracy for the first time in 1993.

The 1993 or interim Constitution was transitional. It was a temporary measure

that remained in force while the 1996 or ‘final’ Constitution was being written.
However, it was remarkable in that it represented a sharp break with South
Africa's history of racial discrimination and oppression. It came into being after
protracted negotiations at the Congress for a Democratic South Africa
(CODESA) and in the multi-party negotiating process between the major political
groups. The 1993 Constitution was not only this country's first democratic
Constitution, but also the first South African Constitution to contain a Bill of
Rights.

1.2 How power is divided up in our Constitution

The 1996 Constitution sets out the powers and functions of the state. In
particular, it divides power up amongst three arms of government: the legislature,
the executive and the judiciary.

This division gives effect to the separation of powers, a doctrine or principle of

constitutionalism advocated by John Locke (1632-1704) and refined by the
French philosopher Charles Louis Montesquieu (1689-1755) in his work L'Esprit
des Lois (1748). The fear of absolute power lies behind the doctrine of the
separation of powers. It is based on the idea that dividing power between three
arms will prevent any one arm of government from wielding too much power and
becoming oppressive. Montesquieu’s work had an especially strong influence on
the Constitution of the United States of America, which embodies a fairly rigid
version of the separation of powers.

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South Africa’s brand of the doctrine is not as strict as that practised in the USA,
but the division of power is nevertheless a distinctive feature of our Constitution.
As can be seen from what follows, each arm of government has its own special
role to play and its own special function to perform.

1.2.1 The legislature

The legislature is the arm of government concerned with making laws (enacting
legislation) according to procedures set out in the Constitution. In South Africa
we have three spheres of government – national, provincial and local – so there
are quite a number of bodies with lawmaking powers. We call such bodies
‘legislatures’. The most important of these is the national Parliament, which
makes laws for the entire country (see chap 4 of the Constitution). The nine
provincial legislatures make laws for the various provinces (see chap 6 of the
Constitution), while municipal councils make laws for local communities (see
particularly s 43 in chapter 7 of the Constitution).

In this course we focus mainly on the national Parliament and the special kind of
law it makes, known as statutes or Acts of Parliament. You will learn more about
the provincial and local lawmaking bodies in courses that teach constitutional
law.

In terms of s 46 of the Constitution, Parliament comprises a National Assembly

(NA) of no fewer than 350 and no more than 400 persons; and a National Council
of Provinces (NCOP) consisting of ten delegates from each province. It is worth
noting that in terms of s 46, the electoral system used for the election of the NA
must result 'in general' in proportional representation. A party-list system was
used in the last two national democratic elections. A new electoral system is
currently under consideration – but as a result of s 46, South Africa could never
opt for a purely majoritarian system such as first-past-the-post, which was used
in the pre-democratic era. In terms of this system, a candidate wins a seat if he
or she gets a simple majority of the votes in a constituency.

1.2.2 The executive

The executive is the body responsible for formulating state policy, which is then
made into legislation by the legislature. The executive is also responsible for
implementing, administering and enforcing the laws made by the legislature. One
of the ways in which the executive implements legislation is by making ‘delegated
legislation’. Although the executive is not a lawmaking body, it is allowed to make

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this kind of second-order legislation by virtue of powers delegated to it by the
legislature.

The central executive consists of the President, the Deputy President and the
Cabinet (see chapter 5 of the Constitution). Besides the central executive, there
is also a large network of secondary executive bodies responsible for the day-to-
day enforcement of the laws of the country. These include the various state
departments (Education, Justice, Health, Transport, etc) and many other
administrative bodies.

At its first sitting after an election, the NA elects the President from amongst its
members (s 86(1) of the Constitution). The President can be removed from office
in fairly exceptional circumstances (s 89). He or she appoints, and has the power
to dismiss, the Deputy President and the various Cabinet Ministers (s 91(2)).

1.2.3 The judiciary

The judiciary encompasses all the country’s judges and magistrates and the
various courts they work in. This arm of government is responsible for
interpreting and applying all the laws of the country, including the Constitution.
The judiciary has the power to strike down unconstitutional laws made by the
legislature as well as unconstitutional action taken by the executive arm of
government. This helps to ensure that citizens are not treated arbitrarily and that
their rights are not violated.

The courts forming the judicial arm of government (described in previous

chapters of this pack) are the Constitutional Court, the Supreme Court of Appeal,
the High Courts, the magistrates' courts and any other courts established or
recognized by an Act of Parliament (s 166 of the Constitution).

As you have already seen in this course, judges are appointed and not elected.
Their appointment and removal from office is dealt with in chapter 8 of the
Constitution.

1.3 The Bill of Rights

Amongst many other matters dealt with in the Constitution, it contains a Bill of
Rights. This all-important part of the Constitution (often referred to as ‘chapter 2’)
confers certain human rights on the South African people and prevents the

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government2 from acting in ways that will violate those rights. The rights laid
down include the rights to life, equality, dignity, freedom and security of the
person, freedom of religion, freedom of speech, and many others.

Bills of Rights have vast implications for the way in which laws are interpreted
and applied. Our first Bill of Rights appeared in the interim Constitution and
marked a change from the old system of legislative or parliamentary sovereignty
to a new system of constitutional supremacy. It is essential to understand this
shift, as it is absolutely fundamental to the South African legal order. We describe
it under the next heading.

2. THE SHIFT FROM PARLIAMENTARY SOVEREIGNTY TO

CONSTITUTIONAL SUPREMACY

The South African Constitutions of 1910, 1961 and 1983 (mentioned above) all
upheld the principle of legislative or parliamentary sovereignty, which we
inherited from English law. Put crudely, this principle allows the lawmaking arm of
government to make or unmake any laws whatsoever, regardless of whether
they are just or unjust. In other words, it subordinates people's human rights to
the power to make laws.

Under this system, our courts had only limited review or ‘testing' powers in
relation to Acts of Parliament. They could strike down Acts of Parliament as
invalid on procedural grounds only – that is, if Parliament had failed to follow the
method for enactment laid down in the Constitution.

A famous example of the use of such review powers is the case of Harris v
Minister of the Interior 1952 (2) SA 428 (A). Here the government had purported
to remove coloured voters in the Cape from the common roll, and put them on a
separate roll. Having only a bare majority of support for this change, the
legislature accomplished it by enacting a statute (the Separate Representation of
Voters Act 46 of 1951) by a simple majority in each of the two houses of
Parliament. The Constitution, however, required a special ‘entrenched' procedure
for the enactment of such legislation – a two-thirds majority of both houses sitting
unicamerally. The Appellate Division (AD) decided that the Voters Act was
invalid, as the procedure laid down had not been adhered to.

2
A Bill of Rights typically applies against the government, or ‘vertically’. However, s 8 of the 1996
Constitution envisages that where appropriate, rights will also apply ‘horizontally’ against citizens.
You will learn more about horizontal application in the course Constitutional Law.

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However, the courts could do nothing on substantive grounds. This helps to
explain why the apartheid system of racial discrimination and oppression reigned
for so many years in this country. Infamous apartheid statutes such as the
Reservation of Separate Amenities Act 49 of 1953 and the Group areas Act 36 of
1966 had to be upheld by the courts in spite of their obvious injustice.

The events that occurred after the Harris case provide an illustration of the
problem. Having lost that case, the government shamelessly tried to override the
authority of the courts by enacting the High Court of Parliament Act 35 of 1952.
The statute was enacted in the usual way, with a simple majority of both houses
sitting separately. It allowed a special court of Parliament to set aside any
decisions of the AD relating to the validity of a statute. The 'High Court of
Parliament' was duly summmoned, and of course it declared the decision in
Harris to be invalid.

The same voters who brought the Harris case now challenged the validity of Act
35 of 1952 (in Minister of the Interior v Harris 1952 (4) SA 769 (A)), and were
again successful in the AD. The AD held that Parliament, by enacting the statute,
had attempted to do by indirect means what it could not do by direct methods –
that is, remove coloured voters from the common roll. The High Court of
Parliament was not a true court of law, said the judges, but just Parliament sitting
under another name.

However, the story has a sad ending. The government first changed the
composition of the Senate (by means of the Senate Act 53 of 1955) so as to
increase the number of government supporters in that house, and then enacted
an amendment to the Constitution whereby the entrenched voting rights were
eliminated. In Collins v Minister of the Interior 1957 (1) SA 552 (A) it was argued
that this was yet another attempt to do indirectly what could not be done directly.
This argument failed, and as the court had no power of substantive review, it
upheld the validity of both Acts.

The courts did, however, have greater review powers in relation to delegated
legislation; that is, legislation enacted by authorities subordinate to Parliament by
means of powers delegated by Parliament. Delegated legislation, such as
regulations made by government Ministers, could be declared invalid on the two
grounds of vagueness and unreasonableness, as well as on procedural grounds
(that is, failure to observe legislative methods and procedures laid down). These
powers of review were not fully extended to provincial ordinances or to the
legislation of the national states (‘homelands’), as these authorities were – rather

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illogically – regarded as having the status of original (not delegated) lawmaking
powers.

The limited review powers described above are a thing of the past. The reason
for this is that we now have a ‘human rights Constitution' which replaces the
principle of legislative sovereignty with that of constitutional supremacy. This is
clear from s 2 of the 1996 Constitution, which states that:

‘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.’

Section 8, which is contained in chapter 2, reinforces s 2 by stating that the Bill of

Rights applies to all law and binds ‘the legislature, the executive, the judiciary
and all organs of state'.

The effect of these provisions is that the government may not enact laws that
violate the rights of the people. An Act of Parliament that purports to take away
one's freedom of speech, for instance, could be struck down as contrary to the
Bill of Rights, or unconstitutional.

Any other type of legislation, original or delegated, can also be reviewed in this
way. Moreover, s 8 makes the Bill of Rights applicable to executive organs of
government. This means that not only laws, but also executive and administrative
actions may be struck down by the courts as unconstitutional. For example, if the
police purported to detain someone indefinitely without trial (a common
occurrence in the old South Africa), this action could be struck down as violating
the right to freedom and security of the person.

The courts' powers to strike down legislation are not completely unlimited.
Section 36 of the Constitution, also known as the limitation clause, provides that
the rights in chapter 2 may be limited in terms of 'law of general application'. The
limitation must, however, be ‘reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom'. Finally, some
rights conferred in chapter 2 may be suspended during a state of emergency.

We have seen that the Constitution is the ultimate source of law in the sense that
it is the ultimate source of authority for lawmaking. The Bill of Rights also makes
it a source of substantive rights to which all the citizens are entitled. All other
sources of law are now measured against the provisions of the Constitution. In
this sense it constitutes a higher law.

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Now that we have dealt with the Constitution and its impact on our legal system,
we are in a position to consider other legislation in more detail.

3. LEGISLATION
In South Africa, as in other countries, legislation takes various forms and is
arranged in a sort of hierarchy. The highest-ranking type of legislation is the
Constitution. Then come Acts of Parliament (or statutes) and other kinds of
‘original’ legislation. At the bottom of the hierarchy one finds ‘delegated’
legislation such as regulations. (These terms are fully explained below.) But
whatever form it takes, legislation has certain distinguishing characteristics. It is
also thought to have definite advantages when compared with other sources of
law such as precedent.

3.1 Characteristics and advantages of legislation

(a) Legislation is flexible, and can be enacted, amended or repealed quickly.

(b) It is usually general (applying to all people or to classes of people) and

prospective (applying to the future, and not the past). It is not usually
concerned with resolving individual disputes, but with implementing social
policies that are intended to advance the public interest.

(c) It is enacted in terms of a set procedure, and usually only after debate or due
consideration.

(d) Legislation is published in official newspapers known as the Government

Gazette and the provincial Gazettes (examples are provided in this pack). At
common law the general rule is that legislation becomes operative only once
it has been ‘promulgated’; that is, published officially. Requirements relating
to publication can also be found in the Constitution (s 81 concerning Acts of
Parliament; s 123 concerning provincial laws; s 162 concerning municipal
laws) and in the Interpretation Act 33 of 1957 (s 16 requires delegated
legislation to be published).

(e) Legislation often allows for further action from someone. Thus an Act of
Parliament will often enable a government Minister to make detailed
regulations (a type of delegated legislation) in order to flesh out the Act, or it
will allow an official to exercise powers under the Act – for example, to issue
permits or licences.

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Owing to these characteristics, legislation has several advantages over other
sources of law such as precedent:

(a) Courts react to individual situations and make rules in an incremental fashion.
Legislators deliberately set out to create rules in advance, making legislation
a more systematic and consistent source of law.

(b) Courts have to wait until a particular issue comes before them. This means
that judicial lawmaking is largely a matter of chance, and certain unsettled
issues or principles may remain unsettled for years. A legislature may enact,
amend or repeal legislation at any time, so it can respond relatively quickly to
social issues. It is ideal for law reform.

(c) Legislation is enacted at a higher level of abstraction than case law, and is
usually framed so as to apply to a wide range of cases falling within its scope.
Rules made by courts, on the other hand, are responses to individual cases.

(d) Legislation is generally more accessible than case law. For example, it is
much easier to track down an Act of Parliament than a rule developed in a
series of cases.

Some of these advantages are theoretical. In practice, legislation can have

serious disadvantages when compared with case law. For example:

(a) Parliament does not necessarily respond quickly to social problems even
though it has the capacity to do so. For instance, the South African
government has often been criticized for its slow and reluctant response to
the AIDS pandemic, and for its failure promptly to enact legislation to deal
with the problem.

(b) Legislation can be too rigid, or perhaps badly drafted, and can wreak injustice
in individual cases. Case law, on the other hand, is ideal for dealing with
individual cases, and judges are often better at formulating rules than legal
draftsmen.

(c) As regards accessibility, the pervasiveness of legislation can sometimes

make it difficult to find out exactly what the law is on a particular point. One
may have to wade through reams of regulations in order to discover the law
relating to some aspect of licensing, for instance. By contrast, textbooks and
published indexes to law reports can make the task of tracking down judicial
precedent much simpler.

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BRANCHES OF SOUTH AFRICAN LAW
Law can be divided into many different branches or areas. This kind of division is
undoubtedly convenient for some purposes. For instance, law schools routinely
divide the law into different areas or subjects for teaching purposes. However, it
is important not to take this kind of division too seriously. For one thing, division
into areas is highly artificial. In real life legal problems do not come neatly
labelled as problems of delict or contract or property, but will often straddle
several subjects.
Another problem is that there is no single ‘right’ way of dividing things up. An
example of division into branches appears in diagrammatical form at the end of
this chapter, but you will see that every textbook has a slightly different way of
dividing and describing the various areas of law.

If you look at the diagram you will see that law is divided at the outset into
national law and international law. National law is the law that governs people
within the national boundaries of the country, and international law deals with the
law between different states. National law is then divided again into substantive
law, procedural law and conflict of law.

Procedural law relates to ‘procedure’, by which we mean the body of rules that
governs the way in which cases are brought to court, conducted and adjudicated.
For example, the law of criminal procedure tells us what will happen to a person
who is accused of committing a crime. But the question of what makes one’s
conduct a crime in a particular situation is a matter of the content or substance of
the law. Therefore criminal law is a substantive branch of the law that describes
in what circumstances a person may be found guilty of murder, rape, theft and so
on. Criminal procedure describes the process that must be followed for dealing
with suspected criminals, and it is thus part of procedural law.

Public and private law

The terms ‘public law’ and ‘private law’ are widely used to express the difference
between areas in which the state is always extensively involved and the
relationships tend to be ‘vertical’ – such as administrative law and criminal law –
and areas in which individual citizens have ‘horizontal’ legal relationships with
each other. This distinction is becoming increasingly strained, however, mainly
because the modern state is inclined to intervene more and more in what used to
be ‘private’ areas.

For example, the law of contract is supposed to be part of the heartland of private
law. It is supposedly about legal relationships entered into voluntarily on a level

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playing field. The reality is that few contracting parties have equal bargaining
power and equal resources, and the state has intervened more and more over
the last fifty years to protect vulnerable parties from the abuse of power. For
instance, it has enacted legislation to protect consumers.

Labour law is an even better example. Thirty or forty years ago it was known as
‘the law of master and servant’, and was simply part of contract law, but state
intervention and regulation in this area has been so extensive that we are
probably justified in classifying labour law as an area of public law these days.

Civil and criminal law

A very important division is generally drawn between civil law and criminal law,
and between civil and criminal cases. (This distinction does not appear clearly
from the diagram except in the context of procedural law.) The distinction is dealt
with in detail in chapter 6, where we consider the jurisdiction (power) of the
courts to handle the two different types of case and we examine the different
procedures used in civil and criminal cases. For the moment, it is sufficient for
you to understand the main differences between civil and criminal cases.

By means of the criminal law the state defines various kinds of human conduct
as crimes or offences,3 and provides for the punishment those who break the
law. For example, the common law says that it is a crime to kill another person
intentionally and without lawful excuse, and legislation says that it is an offence
not to pay income tax that is due to the state. The main aims of criminal law are
to protect society against harmful conduct (eg murder) and to enforce important
social policies (eg by encouraging people to pay their taxes). People who have
been accused of crimes are also prosecuted by the state. The relationship in
criminal law is thus essentially a vertical one.

Civil cases usually arise when there is a dispute between two parties. The
relationship is essentially horizontal as the state is not necessarily involved,
although it may of course be one of the parties. For example, you could sue the
state in a civil case for wrongful arrest, or a government department could sue a
builder for breach of contract. But the relief sought by the parties in such cases is
not punishment. One party generally wants the court to order the other party to
pay him a sum of money or to do (or stop doing) something.

3
Lawyers generally use the word ‘crime’ for common-law crimes, which tend to be fairly serious,
and ‘offence’ for statutory crimes, which range from the trivial (traffic offences) to the serious
(drug offences).

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In line with this distinction, the law also distinguishes between criminal wrongs
and civil wrongs. Breach of contract is not criminally wrong, but it is a civil wrong:
you can sue me for it.

Sometimes one course of conduct gives rise to both kinds of wrong. If I assault
you physically, for instance, I have committed a criminal wrong (the crime of
assault). You or someone else will report my conduct to the police; the police will
investigate; and the state will then decide whether to prosecute me for assault.
But I have also committed a civil wrong in that I have caused you damage, and
you can sue me civilly in delict for that damage. If I am prosecuted for assault by
the state and sued in delict by you, the victim, these two different cases will be
heard in different courts by different judges or magistrates at different times.

THE DISTINCTION BETWEEN CIVIL AND CRIMINAL CASES

Before we consider the jurisdiction of the courts, it is essential that you have a
thorough understanding of the important distinction between civil cases and
criminal cases. Civil cases are always heard in civil courts and criminal cases are
heard in criminal courts. Civil matters are never heard in criminal courts or vice
versa. They are also governed by completely different rules of procedure and
evidence.

Whether a case is a criminal or civil one depends on the type of law involved and
the relief being sought. A case is a criminal one when it involves a breach or
transgression of the criminal law. In a criminal case the state seeks to have the
transgressor punished so as to uphold the law in the interests of society.

Thus the main features of a criminal case are:

(a) the state is the dominant party, ie the party launching the case; 4
(b) if the state is successful, the other party will be punished in some way.

In civil cases a dispute arises between two or more parties which they are unable
to settle without the intervention of the courts. But the relief sought by the parties
is not punishment. The dominant party in a civil action generally wants the court
to order the other party to pay a sum of money, to give the dominant party
something, or to do or stop doing something.

The parties to a civil case may be private persons 5 or the state. The state is
always indirectly involved in a civil case because the court buildings and
4
What we mean by ‘the state’ in this context is the National Prosecuting Authority. This is
constituted by s 2 of the National Prosecuting Authority Act 32 of 1998 read with s 179 of the
Constitution.

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personnel are administered by the Department of Justice. However, in the
context of civil cases the state may also be directly involved as a party to a case,
eg because a dispute has arisen between it and another person over the
payment of a sum of money.

For example, say that a member of the public is injured by a policeman and sues
the state in a civil action for compensation for the injury. In this example the state
is represented by the government official responsible for the police, namely the
Minister of Law and Order. However, the dominant party (the party launching the
litigation) is the injured person.

Thus the main features of a civil case are:

(a) the dominant party may be either a private person or the state; and
(b) if the dominant party is successful, the other party will be ordered to pay
money, give something or do or refrain from doing some action.

1.1 Criminal cases6

In criminal cases the dominant party, the government, is referred to as ‘the state’.
The party being prosecuted is referred to as ‘the accused’. If the victim of the
crime is alive, she is called ‘the complainant’.

In South Africa the responsibility for prosecuting crimes vests in the National
Prosecuting Authority (NPA). The NPA is headed by the National Director of
Public Prosecutions. The NPA has regional branches located where the High
Courts are. Each branch of the NPA is headed by a Director of Public
Prosecutions (DPP) who exercises prosecutorial authority over the same area of
jurisdiction as the High Court. In the magistrates’ courts the staff of the DPP are
designated as prosecutors, and in the High Courts they are called state
advocates.

The complainant does not have control over whether a matter will be prosecuted
or not. The final decision whether to prosecute someone vests in the DPP. In
practice the DPP delegates authority to certain senior members of his staff to
prosecute certain types of crimes without his personal decision. This means that

5
A ‘person’ may be individuals or groups of individuals, companies, institutions or organizations
that are recognized by the law as having legal capacity to sue and be sued. You will find out more
about legal capacity in the course on Persons and Family Law. Provided they are recognized as
persons by the law, persons may be South African or foreign. Jurisdiction over foreign persons
and cases is dealt with in the course Civil Procedure.
6
Based largely on Duard Kleyn & Frans Viljoen Beginner’s Guide for Law Students 3 ed (2002)
chapter 8.

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the senior state prosecutor in a magisterial district has the authority to prosecute
certain kinds of offences on his own initiative, but must obtain the DPP’s decision
if the crimes are more serious.

The whole process of criminal prosecution usually starts when someone reports
a crime to the police. Sometimes it is the victim herself. The complainant is said
to ‘lay a charge’. The charge may be against a person or persons unknown. If the
matter is sufficiently serious the police will investigate. The investigating officer
‘opens a docket’, which is a file, and proceeds to gather information. When an
investigating officer is satisfied that he has sufficient information to prove the
case against a suspect, the docket is handed to the DPP.

Independently of the police, the DPP must decide whether to prosecute the
accused person. In deciding whether to prosecute, the DPP must decide whether
there is a ‘prime facie’ case against the accused, ie whether the state has
sufficient evidence to convince a reasonable person ‘at first glance’ that the
accused is guilty.

If the DPP decides to prosecute he may direct, depending on the seriousness of

the crime, whether the matter must be prosecuted in a magistrate’s court or in a
High Court.

Once the decision to prosecute is made the prosecutor (or the state advocate)
draws up a statement setting out the particulars of the offence with which the
accused is charged. In the magistrates’ courts the statement is called a ‘charge
sheet’ and in the High Courts it is referred to as an ‘indictment’.

The accused is then brought before the court. The accused’s attendance is
secured in one of two ways: either he is arrested or he is summoned. If the
prosecutors and police believe that the accused may try to escape, he will be
arrested. If he is arrested he must be brought before the court within 48 hours. If
there is no reason to believe he will try to escape, then the accused can be
warned by means of a summons to appear in court on a specific date. If he does
not appear he will be in contempt of court, which is itself a crime. He will then be
arrested and brought before the court.

A criminal trial has two parts: the merits stage and the sentencing stage. The
merits stage of the trial is to decide whether the accused is guilty or not guilty. If
the accused is found guilty he is ‘convicted’, and if he is found not guilty he is
‘acquitted’. When the accused is convicted the trial on sentence takes place in
order to decide on an appropriate sentence.

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At the trial on the merits, the prosecutor (or state advocate) puts the charge to
the accused. The accused must plead guilty or not guilty. If the accused admits
guilt, the court must ask questions to satisfy itself that the accused understands
all the issues and really is guilty. If the court is not satisfied, it will enter a plea of
‘not guilty’ and the trial will proceed in the normal way. If the court is satisfied of
the accused’s guilt, he will be convicted without hearing evidence on the merits,
and the trial will proceed to the sentencing stage.

If the accused pleads ‘not guilty’, he is given an opportunity to give an

‘explanation of plea’. The accused is not obliged to do so but it gives the
prosecution and the defence the opportunity to identify the issues in dispute, that
is, which elements of the offence the accused admits and which he denies. For
example, the accused may admit to killing the victim but he may deny that his
conduct was unlawful. He may allege that he did it in self-defence.

In criminal proceedings the standard of proof required to convict the accused is

proof ‘beyond a reasonable doubt’. To achieve this, the prosecutor (or state
advocate) will call witnesses and produce documents or other objects as
evidence. The accused may cross-examine the state’s witnesses, ie question
them with a view to discrediting their testimony. When the prosecution is satisfied
that it has proved the case sufficiently to eliminate any reasonable doubt the
court may have about the accused’s guilt, it will close its case.

The accused, in defence, then has the opportunity to answer the state’s case.
The accused may call witnesses and may testify himself. The accused is not
obliged to testify, but if he does he will be open to cross-examination by the
prosecution.

When the defence has completed its case, both sides have the opportunity to
address the court. The prosecution will present argument on the facts and the
law to show that the accused is guilty. The defence will argue for the innocence
of the accused. The court will then adjourn to consider the matter. It will
reconvene to convict or acquit the accused.

If the accused is convicted, the trial on sentence takes place. The court will give
a sentence after it has considered evidence about the following:

(a) any previous convictions;

(b) mitigating factors, eg evidence about the accused’s difficult childhood or
his remorse;

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(c) aggravating factors, eg how the accused tortured his victim before he
killed her.

The court will then give an appropriate sentence.

1.2 Civil cases

Civil cases are dealt with either by the parties themselves or through their legal
representatives. The decision to begin, continue or cease a civil case is the
decision of the party launching it. In a civil case the standard of proof required is
proof ‘on a balance of probabilities’.

The law of civil procedure and the law of evidence provide rules as to how the
matter must be heard before the courts. There are two kinds of civil
proceedings:7 action and application proceedings. Applications proceedings are
also called motion proceedings.

A key to the difference between action and motion proceedings lies in the
distinction (raised in chapter 4) between disputes of fact and disputes of law.
When the parties have fundamental disputes about the facts, they must proceed
by way of action. If there are no fundamental disputes of fact they will proceed by
way of application proceeding.

STRUCTURE AND JURISDICTION OF THE COURTS

The various courts in South Africa have different jurisdiction, ie power or authority
to hear and adjudicate matters brought before them. We will start by looking at
the structure of the courts. As we go along we will also consider their jurisdiction.

Section 165 of the 1996 Constitution vests the judicial authority of the country in
the courts. It states that the courts are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear,
favour or prejudice. No person or organ of state may interfere with the functioning
of the courts. A decision or order issued by a court binds all persons to whom,
and organs of state to which, it applies.

Section 166 of the Constitution sets out the structure of the courts as follows:
 the Constitutional Court;
 the Supreme Court of Appeal;
7
Not all civil proceedings are disputes between two parties. There are ‘ex parte’ applications, in
which a party makes an application to the court to obtain a certain right. Another type of
application is headed ‘in re’, meaning ‘in the matter of’, and is brought for the purpose of obtaining
certainty or interpretation of a certain point.

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 the High Courts, including any high court of appeal established to hear
appeals from High Courts;
 the magistrates' courts; and
 any other courts established or recognised in terms of an Act of Parliament;
including any courts of a status similar to either the High Courts or the
magistrates' courts.

The courts in South Africa may be broadly divided into superior and lower courts.

All courts are constituted (created or set up) to perform a judicial function, ie to
hear and adjudicate legal proceedings brought before them. The main difference
between the various courts is the extent of their jurisdiction. Jurisdiction means
the authority or competence that a particular court possesses to hear and
determine matters validly brought before it. But it also refers to territory, ie the
geographical area within which the court may determine matters. So the question
which court should hear a particular case concerns both the matter that the court
has to decide and the town or part of the country in which the matter should be
heard.

THE SUPERIOR COURTS

The superior courts consist mainly of the Constitutional Court (CC), the Supreme
Court of Appeal (SCA) and the various High Courts. (There are some special
superior courts, too: see under heading 4 below.)

The Constitutional Court

The CC was established in 1994 in terms of South Africa's first (interim)
democratic constitution, the Constitution of the Republic of South Africa, Act 200
of 1993. This court was established to protect human rights, which became part
of our law in terms of the interim Constitution. For political reasons, the parties
that took part in the multi-party negotiations decided not to give this new role of
protecting human rights to the existing Appellate Division (now called the
Supreme Court of Appeal). The Appellate Division (AD), it was felt, had to some
extent collaborated with the apartheid regime and had not done enough to
protect the citizens of the country from legislative and executive oppression.

The CC is the highest court in both constitutional and non-constitutional matters

(matters of general public interest). Matters can be referred to it or go to the CC
on appeal from some other court. There is no appeal from its decisions. It is also
a court of first instance, although it is fairly rare for cases to start off in the CC.

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One of its main purposes is to overrule or set aside any legislation and any
governmental action that violates the provisions of the Constitution, including the
list of fundamental rights in chapter 2 (the Bill of Rights). For example, in one of
its first cases, S v Makwanyane 1995 (3) SA 391 (CC), the court declared
unconstitutional s 277 of the Criminal Procedure Act 51 of 1977, which provided
that a person could be sentenced to death. The court held that death penalty
infringed the right to life, human dignity and freedom from cruel, inhuman or
degrading punishment.

The CC sits in Braamfontein, Johannesburg. It has 11 judges, including a Chief

Justice and a Deputy Chief Justice. A matter before it must be heard by at least
eight judges. Judges in the CC are known as 'justices'.

The geographical jurisdiction of the CC extends to the whole of South Africa. It

may decide any constitutional matter, or issues connected with decisions on
constitutional matters. In terms of s 167(4) of the Constitution, the CC has
exclusive jurisdiction in the following matters:

 disputes between organs of the state in the national or provincial sphere

concerning the constitutional status, power or functions of those organs;
 the constitutionality of any parliamentary or provincial Bill;
 the constitutionality of any amendment to the Constitution;
 whether Parliament or the President has failed to fulfil a constitutional
obligation; and
 the certification of a provincial constitution.

The Supreme Court of Appeal

The SCA (formerly known as the Appellate Division) was the highest court of
appeal in the country in non-constitutional matters. It may decide only appeals or
issues connected with appeals. An appeal is a legal complaint that the court
below erred in its decision. This means that cases cannot be heard for the first
time in the SCA. In addition, the SCA may, in terms of s 168(3)(c) of the
Constitution, decide any other matter that may be referred to it in circumstances
defined by an Act of Parliament.

The SCA sits in Bloemfontein. It consists of a President, Deputy President and a

number of judges of appeal. There are also a few acting judges of appeal. Five
judges of the SCA sit in most cases.

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The geographical jurisdiction of the SCA extends to the whole of South Africa. It
may hear any type of appeal and may impose any sentence or fine prescribed by
law. It has constitutional jurisdiction in terms of s 172(2) of the Constitution to
make an order as to the constitutional validity of an Act of Parliament, a
provincial Act or any conduct of the President of South Africa; but any such order
has to be confirmed by the CC.

There has been much debate about the possibility of merging the Constitutional
Court and the Supreme Court of Appeal into one court, perhaps with two
chambers. One of the considerations in favour of such a merger is that the SCA
has a much heavier case-load than the CC, and yet it is not nearly as well
resourced in terms of research staff and computer technology. Another
consideration is the location of the SCA in Bloemfontein, well away from the
commercial hub of South Africa. However, some opponents of fusion argue that it
is essential to keep the CC completely separate from the SCA in order to ensure
its political independence. Others reason that not all CC judges would be able to
cope with the variety of matters heard by the SCA, since several of the CC
judges are academic specialists rather than judges with general court
experience.

The High Courts

What were formerly provincial and local divisions of the Supreme Court are now
known as High Courts, although we still speak of provincial and local divisions in
this course and these terms are still used in the law reports. The High Courts
include six provincial divisions, of which three have local divisions, and the courts
of the former national states or 'homelands'. There are also special courts
dealing with specific matters (such as the Land Claims Court) which have the
status of High Courts.

Under the current court structure each provincial division is headed by a Judge
President, who is often the most senior judge of that provincial division. The
division is staffed in addition by a number of 'ordinary' or 'puisne' judges. One or
more Deputy Judges President may be appointed. The local divisions are
presided over by the same judges who hear matters in the parent provincial
division.

The high court structure is in a state of flux, and changes will soon be made to
bring it into line with the post-1994 setup of nine provinces. The Hoexter
Commission of Inquiry has made its recommendations regarding the
restructuring of the courts, and the Department of Justice is finalizing a draft Bill
dealing with the superior courts. During the Commission hearings, a strong view

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emerged that each province should have its own High Court in its provincial
capital.

General jurisdiction of the High Courts

High Courts have ‘inherent’ jurisdiction. This means that they do not derive their
powers solely from statute. They may generally hear any matter that is not
excluded from their jurisdiction by statute.

The provincial and local divisions are courts of first instance, which means that
cases can be instituted and heard for the first time by these divisions. In addition,
the provincial divisions and the GSJ may in certain cases hear appeals against
decisions handed down by a single judge. Such appeals are heard by a full
bench of two or three judges. The provincial divisions and the GSJ may also hear
appeals from magistrates' courts within their areas of jurisdiction.

Unlike the CC and the SCA, the High Courts are limited in their territorial
jurisdiction. A provincial or local division has jurisdiction over all persons residing
in or being in, and in relation to all causes arising and all offences committed
within, its area of jurisdiction.

Please note the following essential points:

(a) In civil cases the general rule is that the plaintiff must seek out the
defendant and institute the action in the court of the area in which the
defendant resides or works. Alternatively, the plaintiff may bring the case
in the court of the area where the cause of action arose.

(b) In criminal cases the state must either seek out the accused (ie prosecute
in the area where he lives or works) or prosecute in the court of the area
where the crime allegedly took place.

(c) If more than one court has jurisdiction, then the plaintiff or the state (as
appropriate) may choose between them.

If we look carefully at the various areas of jurisdiction, we see that in each case
the area served by a local division forms part of the area served by its parent
provincial division. This means that if a dispute arises in the area of a local
division, then legal proceedings may be instituted either in the local division or its
parent provincial division. The party who institutes the proceedings can choose
whether she wishes to do so in the local or provincial division. This is expressed
by saying that a local division and its parent provincial division exercise

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concurrent or co-ordinate jurisdiction within the local division's area of jurisdiction,
for that area is served by both the local and provincial divisions.

Constitutional jurisdiction of the High Courts

In terms of s 169 of the Constitution, a High Court may decide any constitutional
matter, except a matter that only the Constitutional Court may decide (see
above); or a matter that is assigned by an Act of Parliament to another court of a
status similar to a High Court. In terms of s 172(2), orders as to the constitutional
invalidity of an Act of Parliament, a provincial Act or any conduct of the President
of South Africa must be confirmed by the CC.

Civil and criminal jurisdiction of the High Courts

The provincial and local divisions may adjudicate any type of civil case, including
matters affecting status (such as divorce) and the validity of wills. There is no
monetary maximum, and nor is there a minimum. However, if the amount
claimed falls within the jurisdiction of the magistrates’ courts, a High Court may
show its displeasure by awarding costs on the magistrate's court scale. In other
words, if plaintiff has taken action in the High Court instead of the magistrate
court, and if he has won his case in which he has included an order for costs in
his prayer, the court will order that the court fees of the magistrates’ court, which
are lower than the high court fees, should be paid to him by the defendant. He
will have to pay the difference himself. In the interests of justice people should
make full use of the lower courts, where proceedings tend to be quicker and
cheaper for all concerned.

Jurisdiction over certain matters has been given to special courts, such as the
Labour Court and the Land Claims Court; but the provincial and local divisions
may have concurrent jurisdiction with these courts in some cases. The special
High Courts obviously have more limited and specialized jurisdiction, which is
described below.

High Courts may try any offence, and they may impose any lawful sentence.
However, the state tries to prosecute in the magistrates’ courts whenever this is
feasible, and in practice only the most serious criminal cases (or those involving
complex questions of law) find their way into the High Courts.

OTHER SUPERIOR COURTS

Courts of the former national states

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The former courts of the ‘homelands’ (the TBVC states) have been converted
into High Courts by sub item 16(4) of Schedule 6 to the Constitution, subject to
the further rationalization of High Courts. They are as follows:

Transkei High Court;

Bophuthatswana High Court;
Venda High Court; and
Ciskei High Court.

Special courts
Labour Appeal Court (LAC)
Section 167 of the Labour Relations Act 66 of 1995 (the LRA) establishes the
LAC. The LAC has exclusive jurisdiction to determine appeals from the Labour
Court and to decide questions of law in terms of s 158(4) of the Act. It has a
status equivalent to that of the Supreme Court of Appeal.

Labour Court
The LC is established by s 151 of the LRA. It has exclusive jurisdiction with
regard to labour matters. In addition, it has concurrent jurisdiction with High
Courts in respect of violations of fundamental rights relating to labour matters.

Land Claims Court

The LCC was established in terms of s 22 of the Restitution of Land Rights Act
22 of 1994. The function of the court is to restore land rights to people who were
dispossessed of such rights after 19 June 1913 as a result of racial
discrimination.

Other special courts

Other special courts having the status of High Courts include the Special Income
Tax Courts, the Competition Appeal Court, the Special Consumer Court and the
Electoral Court. All High Courts are also equality courts for the purposes of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

THE LOWER COURTS

The lower courts do not have inherent jurisdiction. These courts are 'creatures of
statute'. This means they only have jurisdiction to hear matters that they are
permitted by statute to hear. For example, the jurisdiction of the magistrates'
courts is strictly limited to the terms of the Magistrates’ Courts Act 32 of 1944.

Magistrates' courts

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There are two main types of magistrates' courts in South Africa: regional
magistrates’ courts and district magistrates’ courts.

Regional courts
A regional magistrate's court exercises jurisdiction over a region (which is made
up of a number of magisterial districts) determined by the Minister of Justice. For
example, the Pretoria Regional Court serves a number of magisterial districts.
The regional courts have criminal jurisdiction. 8

District courts
When we talk about magistrates' courts in general, it is the district magistrates'
courts we mean. The whole of South Africa is divided into 367 magisterial
districts, each of which is an area served by a particular magistrate's court. Thus,
for example, the magisterial district of Dundee will be served by the Dundee
magistrate's court.

Each district court is presided over by a chief magistrate (the most senior
magistrate in that district) and a number of ordinary or ‘additional’ magistrates.
District courts have both criminal and civil jurisdiction.

QUESTION: What is the civil and criminal jurisdiction of the magistrates’ courts?

Constitutional jurisdiction of the magistrates' courts

For a variety of reasons, it was decided not to give constitutional jurisdiction to
the magistrates' courts when the 1996 Constitution was drafted. This thinking has
now apparently changed: it seems from the recommendations of the South
African Law Reform Commission (Project 111) that magistrates' courts may after
all receive limited constitutional jurisdiction. In terms of s 170 of the Constitution
the magistrates' courts may decide any matter determined by an Act of
Parliament. Should the recommendations of the Law Commission be accepted,
they would be included in an Act of Parliament to that effect.

The proposals would enable magistrates to rule on the constitutional validity of

any administrative action and any statutory proclamation, regulation, order or
other delegated legislation; and any rule of the common law or customary law.
However, they would not be able to rule on the constitutional validity of an Act of
Parliament, provincial legislation passed after 27 April 1994, or any conduct of
the President; and they would thus have to assume that any such Act, legislation
or conduct was valid.
8
Although the Magistrates' Court Amendment Act 120 of 1993 provides for civil regional courts,
these have not yet been established. In practice, only district courts currently hear civil cases.

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Small claims courts
The Small Claims Courts Act 61 of 1984 was enacted pursuant to the
recommendations of the Hoexter Commission. It provides for the establishment
of a number of courts presided over by officers called commissioners for small
claims, for the hearing of civil matters in which the amount in dispute does not
exceed a particular limit. This is currently R15 000, but in terms of the Small
Claims Courts Amendment Act 92 of 1986 the Minister of Justice is empowered
to change the monetary limit from time to time.

A person wishing to bring a claim for an amount of R 20 000 or less is not obliged
to proceed in a small claims court, and may institute action in the appropriate
district magistrate's court instead.

The idea behind the small claims courts is to offer a quicker, easier and cheaper
legal process to South Africans. The procedures are much more informal than in
other courts, and also more inquisitorial. This means that the commissioner
participates in the proceedings. She becomes involved in questioning the
plaintiffs and defendants to see that they understand the issues and to examine
their evidence more fully.

To keep the parties on as equal a footing as possible, they must appear in

person and may not be represented by a lawyer. In addition, there are various
limitations as to who may sue or be sued in a small claims court. Only a natural
person may institute an action in such a court. Juristic persons such as
companies may not bring claims in these courts, although they may be sued by
natural persons. Furthermore, no action may be instituted against the state in a
small claims court.

Small claims courts may not hear divorce cases, cases in which the validity or
meaning of a will is in question or claims for defamation, even where the amount
in dispute is less than R20 000.

Each small claims court exercises jurisdiction over an area for which it has been
established. It has no appeal jurisdiction. Furthermore, its judgments or orders
are final and cannot be appealed against, though they may be taken on review.
In a review, the complaint is not that the court was wrong in its legal conclusions
but that the proceedings were irregular in some way; for example, that the
presiding officer was biased (see further under heading 7 below).

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According to the annual report of the Department of Justice for 2003-4, more and
more people are making use of small claims courts. A total of 153 courts have
been established around the country, 12 of them during the period covered by
the report. A task team has been appointed to investigate ways of improving the
small claims system, including decentralization to rural areas and the use of law
students to assist in the courts.

Other special courts

Special divorce courts were established in terms of the Black Administration Act
38 of 1927 to hear cases of divorce and nullity between blacks. The Divorce
Courts Amendment Act 65 of 1997 now allows these courts to exercise
jurisdiction in respect of all South Africans. They have the same jurisdiction in
relation to divorce and nullity as the High Courts, and appeals lie from them to
the High Courts. Presiding officers in the divorce courts have the status of
regional magistrates.

Magistrates’ courts may be designated as equality courts for the purposes of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

APPEAL AND REVIEW

An appeal is a complaint to a higher court on the basis that the original court (the
‘court a quo’ or the ‘court of first instance’) decided the case wrongly. The appeal
court does not hear all the evidence from the court a quo again. The appeal court
makes its decision based on the records of the court a quo. In a criminal case, for
example, the complaint may be that the accused should not have been convicted
or that the sentence was too heavy. An appeal relates to the merits or substance
of the case.

In a review the complaint does not relate to the merits but to the process, or the
way in which the case was decided. For example, the complaint may be that the
judge was biased, took inadmissible evidence into account, exceeded her
jurisdiction or otherwise acted irregularly.

Automatic review
A person who has been convicted in a magistrate’s court sometimes has an
automatic right of review from the magistrate’s court to the High Court, meaning
that the person does not have to apply for review:

 If a district court magistrate of less than seven years' experience hands down
a sentence of more than three months' imprisonment without the option of a

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 fine, the case will be subject to automatic review by a judge of a High Court.

 Where the magistrate has more than seven years' experience, all cases in
which the sentence involves more than six months' imprisonment without the
option of a fine will be subject to automatic review.

TABLE SUMMARIZING CIVIL AND CRIMINAL ACTION

CRIMINAL ACTION CIVIL ACTION

1. Usually arises from conduct which 1. Usually arises from disputes and from
threatens the safety of the state and its negligent conduct that causes harm.
citizens, and for which the state will One party takes legal action against the
intervene to protect society. other to settle the dispute or claim
compensation.

2. Called CRIMES. 2. Called CIVIL WRONGS.

3. The parties to the action are the state 3. The parties to the action are the
and the accused. plaintiff and the defendant.

4. Wrongdoer is called the accused. 4. Wrongdoer is called the defendant.

5. Victim is called the complainant. 5. Victim is called the plaintiff.
6. State takes action against the 6. Plaintiff takes action against the
accused. accused.
7. Aim of state’s case is to punish the 7. Aim of the civil case is to compensate
accused with a fine or jail sentence. the plaintiff.
8. Often starts when the victim lays a 8. Starts when the plaintiff causes a
charge at a police station. summons to be served on the defendant
by the court.
9. Criminal proceedings are governed 9. Civil proceedings are governed by the
by the rules of criminal procedure and rules of civil procedure and the rules of
the rules of evidence. evidence.
10. The prosecutor must provide 10. The plaintiff must provide sufficient
sufficient evidence to convince the court evidence to convince the court that the
that the accused is guilty beyond defendant is liable on a balance of
reasonable doubt. probabilities.

Judicial Precedent and the 17th Amendment Act and the Superior Courts
Act:

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In 2012 the Constitution was amended in terms of the 17 th Amendment Act. This
Amendment Act caused changes to the jurisdiction and structure of courts. In
respect of jurisdiction the Amendment Act increased the jurisdiction of the
Constitutional Court to hear not only constitutional matters but also non
constitutional matters (see section 167(3) of the Constitution). This means that
the Constitutional court is the highest court to hear constitutional matters as well
as non-constitutional matters. The result is that the Supreme Court of Appeal is
no longer the highest court of appeal when it comes to non-constitutional
matters. The 17th Amendment Act also changed the structure of the court by
creating a single High Court. Following the changes made by the 17 th
Amendment Act the Superior Court Act was introduced in 2013 and set out the
structure of a single High Court with various divisions of the High Court (see
section 6 of the Superior Courts Act). The Superior Courts Act also changed the
names of High Courts and also introduced new divisions of the High Court. This
new court structure could mean that in future divisions of the High Courts in
different provinces could be bound by each other’s decisions. However, it is still
unclear what the real impact of the change in the court structure will be on the
rules of judicial precedent in the future.

(EXTRACTS FROM THE INTRODUCTION TO LAW COURSE PACK, SCHOOL

OF LAW)

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