South African Law. François Smuts
settle/settlement – this is what happens in a court case when the parties reach an agreement about what the outcome is to be. A settlement is a contract and is almost always made an order of court, and with that the court case is ended.
sheriff – the messenger of the court who serves legal documents and court orders.
summary judgement – a shortened procedure followed in an action where a sum of money (usually) is being claimed and the plaintiff is of the opinion that the defendant does not have a defence. The defendant then sets out his defence in a sworn affidavit and the court decides whether there is merit in the defence. If there is no merit in the defence as set out, summary judgement is granted and that is more or less the end of the road for the defendant’s defence of the case.
summons – the document that initiates an action. It contains the details of the plaintiff(s) and the defendant(s), and the particulars of claim.
sworn affidavit(s) or affidavit(s) – affidavit is the shortened term for a sworn affidavit, which consists of evidence on paper. Evidence is the rendering of facts under oath. A sworn affidavit must be commissioned by a commissioner of oaths, who must ask the person making the affidavit if he knows and understands the contents thereof, if the contents are true and correct and whether he considers the oath binding on his conscience.
third party – someone who was not initially involved in a case but is brought into the matter by one of the parties because the dispute between one of the parties and the third party is more or less the same as the dispute between the original parties.
1.4 LET’S BEGIN AT THE BEGINNING
With the legal dictionary behind us, our battle is half won. However, you will have an even better understanding of the concepts explained in this book if you come to grips with certain basic legal ideas and concepts. Let’s begin at the beginning: at the sources of the law. For each set of facts (or story), a basic legal position (or set of legal principles) applies.
Let’s take a car accident as an example. Car A drives into the back of car B. There is a basic legal rule which states that if you collide with the rear end of another car, either you have been driving too fast, or you have not been keeping a proper lookout, or you have not maintained a proper following distance between you and the car in front of you. Therefore you are usually 100 per cent negligent if you collide with the back of another car. That does not mean that there is not often uncertainty over the legal position applicable to a specific set of facts. For example, if you were to come over a rise on a misty night and suddenly encounter a stationary car without lights or warning signals in the middle of the road, would you still be 100 per cent negligent if you did not swerve in time and avoid hitting the car?
This illustrates one of the reasons people go to court: because the two parties both think that their interpretation of the legal position is correct. But where does the basic “legal position” come from and how does one obtain clarity, or at least direction, when one is uncertain? Lawyers look for answers in the sources of the law.
The first and oldest source in South Africa is called the common law and consists of the law we have already discussed: Roman law as the Dutch applied it and imported it to the Cape. British common law was added to this when the British took over the Cape and added their own stamp to the legal system. However, various legal systems already existed in the Cape when Van Riebeeck and the Dutch East India Company arrived here, such as the Xhosas’ legal system, the Zulus’ legal system, the Sothos’ legal system, and so on. These systems are grouped together and called indigenous law, and this too added its own flavour to our legal system. This was supplemented by the arrival of the Malay slaves, who brought with them their own (chiefly Islamic) legal system, in addition to their delicious cuisine.
These legal ingredients have developed over time into a uniquely South African bredie through their interpretation by our courts. Unlike in the American legal system, our courts follow what is called legal precedent, which means that courts are bound by the judgements previously given by other courts on that specific matter.
Legislation plays an even more important role as the source of the legal position on matters. Of all laws, the South African Constitution is undoubtedly the most important, because these days it is the yardstick against which the validity of all laws is measured, and also according to which the common law is interpreted and developed.
In addition, judges also take the legal position in other countries into account if it is akin to the set of facts under consideration by the judge or can shed light on how the situation should be handled.
Finally, they also look at what academics have to say on the subject. However, the last two sources are not binding on judges and the opinions expressed in them have only persuasive value.
Now that you know the origins of our law, it is time to look at a few distinctions in the law, because it is extremely important to know which part of the law you are talking about if you are discussing a problem.
1.4.1 Criminal law and civil law
Let’s start with the distinction most often misunderstood by the layperson: that between criminal and civil law. Criminal law has to do with acts that are forbidden by the state and therefore attract a punitive sanction. In other words, the state can sentence you to punishment if you are found guilty of a criminal act. When I was a state prosecutor, I often heard people say, “I instituted proceedings against him” when in fact they meant that they had laid a charge at the police station. In a criminal case, the dispute is between the state and the accused, because the purpose of criminal law is ultimately to keep order in society, not to remedy the grievance of the complainant. The complainant is no more than a witness. Criminal law is concerned with a list of crimes and follows its own set of procedural rules. The outcome may be a sentence, which is usually in the form of a fine or a prison sentence.
In civil law, on the other hand, although the state is sometimes a party and the matter may be about an act that is forbidden by the state, nobody goes to jail or receives a fine at the end of a civil case. The case is about a grievance or issue between the opposing parties. In most civil cases, the dispute is between two (or more) private individuals. Civil cases also follow a different set of procedural rules to criminal cases. Although the overwhelming majority of cases that come before the courts are civil cases, it is usually the criminal cases that make headlines.
1.4.2 Public law and private law
Another important distinction is that between public law and private law. Public law is that part of the law that concerns the composition of the state and other statutory or public bodies (hence public law), such as Telkom or Metrorail, the underlying legal relationships between the state and public bodies, and the relationship between the state and individuals. Private law, on the other hand, governs the relationship between individuals.
Public law consists of a number of branches, of which constitutional law is the most important these days. Constitutional law consists of all the rules contained in the Constitution (or which can be inferred from it) about all the issues dealt with in the Constitution. These issues are chiefly the composition, functions of and relationships between the different divisions of government, as well as the relationships between those parts of the government and the citizens of the country. An important part of constitutional law is human rights, as reflected in the all-important Bill of Rights.
Besides constitutional law (as a subsection of public law), there is administrative law, which deals with the actions of state officials and is chiefly governed by the Promotion of Administrative Justice Act. Other matters that fall under public law are criminal law, environmental law, aeronautical law, local authority law and international law. All of these mean what their names indicate, with the exception of international law, which deals with the law that applies in dealings between different countries.
1.5 LAW OF PROCEDURE: THE RULES OF THE GAME
The law of procedure encompasses the rules by which the game of litigation is played. Why would you as a layperson want to know the rules? Because the rules can sometimes