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Chapter 5 - COURTS AND COURT CASES

Introduction to law

What is law?

The law is a set of rules used to control the behaviour of people in society.

The law:

• tells you what you must do
• tells you what you must not do
• tells you what others may not do to you

In other words the law tells you about your legal 'rights' and 'duties'.

Punishment is part of the set of rules. If you do not follow the rules, then you can be punished.

Without laws there would be confusion, fear and disorder in society. But this does not mean that all laws are fair. So a law can be unfair and still be the law. Every society agrees that some laws are necessary. But the laws should be made in a democratic way, so that they will be just and fair.

Where does the law come from?

Before the European settlers arrived at the Cape, the people of South Africa had their own law and rulers. Today these laws are called 'indigenous law' or 'customary law'.

When Jan Van Riebeek arrived at the Cape in 1652, the Dutch Settlers brought their law from the Netherlands. This is called 'Roman Dutch Law'. For the next 150 years this Roman-Dutch law was the official law of the Cape.

In the early 1800s the British took over the rule of the Cape from the Dutch. They brought English law with them.

In 1910, the four colonies of South Africa joined together to become the Union of South Africa. This created one central government with the power to make all the laws of the country. But most people were not allowed to vote for this government. So laws were made by a government which was not elected in a democratic way. For the majority of the people of South Africa, many of these laws were very wrong.

In April 1994 one central government was elected democratically for the first time in South Africa.

So today's law comes mainly from these cultures:

• the culture of the people who were here in the beginning
• the culture of the settlers from the Netherlands
• the culture of the British settlers
• the culture of the liberation movements

Constitutional law

In 1996 South Africa got a new constitution, the Constitution of the Republic of South Africa Act 106 of 1996.

See SOUTH AFRICAN CONSTITUTION AND BILL OF RIGHTS, History of constitutions in South Africa.

Section 2 of the Constitution says that the Constitution is the supreme law of the land. No other law can go against the Constitution.

See SOUTH AFRICAN CONSTITUTION AND BILL OF RIGHTS , The relationship between our Constitution and other laws.

Provincial governments can make their own constitutions, but these constitutions cannot go against the national Constitution.

Statute law

Statute law is written law, that has been made by the government.

Laws made by Parliament are called statutes or acts. They are published in a government newspaper called the Government Gazette. An example of a statute law is the Protected Disclosures Act No 26 of 2000. This means it was the 26th law passed in 2000.

See SOUTH AFRICAN CONSTITUTION AND BILL OF RIGHTS , Making laws.

Parliament can give the power to make less important laws to other groups of people or to a minister.

Sometimes a statute gives power to a person (for example, a minister) or a body (for example, the Department of Welfare) to make regulations.

Provinces, towns and cities are allowed to make their own laws which only apply to them. These are called ordinances for the provinces, or by-laws for the towns and cities.

The Constitutional Court can declare any statute law invalid if it goes against the Constitution. Other courts can only declare less important laws invalid.

See SOUTH AFRICAN CONSTITUTION AND BILL OF RIGHTS , What happens if a Bill is, or might be, unconstitutional?

Common law

The common law is the set of laws not made by Parliament or any level of government. Crimes like murder, rape, theft and treason are part of the common law. The common law has developed through the decisions of judges in the Courts. The Roman Dutch and English law brought by the Dutch and British settlers is also part of the common law. The common law can be changed by new decisions in the courts.

The common law applies to everyone equally in the whole country. But statutory law is stronger than common law. It is only when there is no statutory law about something that the common law will apply.

Customary law

Customary law comes from indigenous cultures in South Africa and is also often referred to as indigenous law. When the settlers arrived in the Cape in 1652 there was already an established legal system being practiced by the people who lived there. This indigenous legal system was:

- unwritten
- passed on orally from generation to generation
- strongly tied to culture, tradition and the tribe.

But customary/indigenous law was not recognised as part of the South African legal system by the colonial powers. Roman-Dutch law was seen as the common law of the land after settlement of the Dutch-East India Company in 1652.

At that stage all the customary laws were passed on by word of mouth and were unwritten.

When Britain took over the Cape in 1814, the colonial policy was to keep on the local laws of the new colonies as long as they were “civilized”. Roman-Dutch law was seen as civilized and all other systems of law were ignored.

It was only when South Africa became a democracy in 1994 and adopted its Constitution that indigenous law was recognised as having the same standing as Roman-Dutch law.

Under the Constitution, Roman-Dutch and customary/indigenous law are now treated as equal. However if the customary law is in conflict with the Constitution, then the court has to apply the Constitution and the Bill of Rights.

Customary law is used in chief's or headman's courts, but these can only deal with certain cases between people who are part of the culture.

How is a court decision or judgment made?

The person who listens to both sides of the case in the court, and who then decides which side is right and which side is wrong, is called the judge or magistrate. The decision of the judge or the magistrate is called a judgment.

A judgment can be made in one of 3 ways:

• The judge or magistrate looks carefully at the law to see if there is a rule which fits the case. If there is already a rule, then the judge or magistrate must use it.
• Sometimes there is no rule to fit the case. The judge or magistrate must now make his or her own judgment. If the judgment sets a new rule of law, this creates a PRECEDENT. In other words, the judge sets a new standard.

For example, imagine the law says that you must rest on Sundays. You go to a film one Sunday and you are accused of breaking the law because you are not 'resting'. In court, you tell the magistrate that you were not breaking the law because watching a film is the same as resting for you. The magistrate decides that this is correct and so a precedent is set that you can now watch films on Sundays.

• Sometimes there is a rule which covers the facts of the case but it has always been applied in a particular way. A person may argue that the rule can be applied in a different way. If the judge or magistrate decides that the rule can be used in a new way, then the judge or magistrate gives a new interpretation or explanation of that law. This judgment can also be called a PRECEDENT.

A precedent becomes the law, unless it is rejected or changed by a higher court. A precedent is important because it becomes the new law and so will be used in future judgments.

In constitutional cases, the precedent of the Constitutional Court must be followed by all courts. In other cases, the precedents of the Supreme Court of Appeal must be followed by the courts below it. These courts are the High Court and the Magistrate's Courts.

In the same way, the precedents of the High Court (provincial and local courts) must be followed by all Magistrate's Courts.

Parliament can change a precedent by making a new law.

Kinds of law: criminal and civil

There are two main kinds of law in South Africa, CRIMINAL LAW and CIVIL LAW. Constitutional law affects both criminal and civil law.

Criminal law

In a criminal case the state prosecutes the accused person, for committing a crime or breaking the law. 'Prosecutes' means the state makes a charge against someone. If the court finds the person guilty, the person can be sent to prison, or fined, or punished in some other way. Examples of different crimes and breaking the law include rape, public violence, assault, theft and trespass.

Usually the state is not the complainant (the one making a charge). The state prosecutes, but any person or individual can be the complainant and lay a charge against another person or against the state.

A criminal case can be brought against anyone who broke the law, including a person who works for the state, such as a member of the police or defence force. So if, for example, you are unlawfully assaulted or shot by a member of the police or defence force you can bring a criminal case against them.

Civil law

Civil law is the set of rules for your private relationships with other people. The state does not take sides in a dispute between private people.

Civil law deals with cases such as:

• marriage and divorce
• if someone owes you money
• rent agreements
• evictions
• damage to property
• injuries to people
• disputes over a hire-purchase agreement

A civil case is usually brought by a person (called the plaintiff) who feels that he or she was wronged by another person (called the defendant). If the plaintiff wins the case, the court usually orders the defendant to pay compensation (money). Sometimes the court may also order a defendant to do, or stop doing, something - for example, to stop damaging the plaintiff's property.

The state may be involved in a civil case as a party if it is suing or being sued for a wrongful act - for example, if government property is damaged or a government official injures somebody without good reason.

Criminal and civil actions

Sometimes a person's act may lead to both criminal and civil actions. For example, Piet Fick hits one of the workers in his factory. This is a crime of assault. The state will prosecute him in the criminal court if the worker lays a charge against him. If there is enough proof to show that he is guilty, he may be punished by the state.

But Piet Fick ALSO causes pain to the worker. This is a damage that one person does to another person. The injured worker could sue Mr Fick for damages and make him pay compensation for medical expenses, lost wages and pain and suffering. This will be a civil claim for damages through the civil court.