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South African law, formally established in 1969 after the abolishment of the jury system is an amalgamation of African, Dutch, British, and Roman-Dutch law systems. Law systems, since the arrival of the Dutch in 1952, has evolved over many decades to become what we now know as South African law (Thomas 2000). South Africa held its first democratic election in 1994 after living under the Apartheid government for decades. Everyone who was a citizen of South Africa could vote for the first time in an election and South Africa could call itself a democracy.
The constitution was drawn up to for all the needs of the people of South Africa. The Bill of Rights was also drawn up which gave all South African people equal rights and responsibilities. In this assignment, we will define the different types of law and elaborate on its intents and what it means to the average citizen. We will also consider a court case, how this case is governed by the Constitution, how the Bill of Rights is involved in this case, and how it relates to the different types of law under the constitution and jurisdiction of South African law.
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Definition of Law: according to the Oxford Dictionary, Law is; A system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.
Simply stated the law is a set of rules governed by peoples which tell you what you must do, what you can do, and what you should not do.
South Africa has a democratic system of government meaning that we all can take part and contribute to making the law in our country. We can take part in this by voting in elections and by voicing one's opinions. (
There are different types of laws and sources of law, they are the following:
This is the supreme law of South Africa, in which all laws and State actions must be in. Telling the people how the State is organized and has a list with the rights of humans (Bill of Rights) in it. The constitution can be challenged by ay laws that go against our constitution. Stated in our constitution, South Africa can look for guidance form laws outside of South Africa such as Foreign Law or evens International Law, before interpreting the Bill of Rights. (
These are written Laws made by the highest law-making body in our country, The parliament. Municipalities are also allowed to make some laws, through the provincial legislatures. A statute can change old laws. An act can give power to a body, such as the Department of Education or it can give power to someone such as the minister to make laws under these acts. These new laws are then called regulations which are basically just more in detailed interpretations of the Act. The Statute also allows towns and cities to write laws for the town and these are then called By-Laws.
This law originates from the Roman-Dutch law and the English law, which was brought to our country from the settlers (the Dutch and English), and this law is not made by any law-making body or the parliament. This allows people with legal problems to look at the common law for answers if it was not covered by the Statute law. (
This can either be written or unwritten laws that develop from a community. If the customs become fixed that people believe in and uses, they can become customary law. These laws only become laws if they are generally known and followed by the community and is enforced by some way. Using these laws is difficult because they are very likely to be unwritten and if they are written it is false and are unreliable. An example of customary law is the Black Administration Act. (
When people are in conflict or have broken the law they would go to courts to dispute. The court makes their Decision (judgment) on the facts of the case and by looking at the laws. In South Africa, all courts must follow the same precedents. (
As stated above in the constitution these are human rights and how the state is organized. The Bill of rights is a list of rights all South African human beings have. This law tells you what the state's components can do and what each component must do. The state has 3 main components:
If the constitutional law is being violated the organization or the person can take this issue to court. Examples of such; people that feel their constitutional rights have been violated and this could be one person, a person acting in the best interest of another or a person of the community. An organization action on the behalf of its employees or members that feel that their rights has been violated.
A court can then decide if the person's rights have been violated and then right the wrong or pay the person for the harm caused. If the court decides that the law was unconstitutional it can say that the law is invalid.
These types of laws are how the state expects you to behave in public, and when you break this law you must be punished. This tells you which acts crimes are, while crimes are openly committed against another person it can be seen as a crime against the state. One can find these laws in Common law or in statute law.
If this law is broken, legal action is taken against the accused where the complainant is usually the witness in the court case. If found guilty the accused is either sent to prison or issued a fine that needs to be paid. (
This law states how you must behave in private relationships with other people and tells you about your duties and your rights in your relationship with others. Examples, marriage, rent agreements, and a contract to sell.
The plaintiff brings a civil claim to court against the defendant and the State does not get involved in these cases. If the plaintiff wins the case the defendant is ordered to pay money to the plaintiff, but sometimes the defendants are just ordering to change their actions put to the wrong to right.
In this case, a criminal act was committed where three men were accused of kidnapping and attempted murder which under the Criminal Procedure Act 51 of 1977 is either a schedule 2 offense part 2 and 3 stating assault when a dangerous wound is inflicted and kidnapping/murder or a schedule 5 offense that states attempted murder involving grievous bodily harm. However, due to the inadequate investigation findings presented in court on September 2.2019 pertaining to the two victim's medical records the Judge was unable to apply a ruling as the investigating Officer supplied insufficient evidence to prove that the three men accused will not be a threat to the victims nor to the community
If one looked at the lady of justice the first thing one would notice is that she is blindfolded, and this is because justice should be fair and blind. The balanced scale she holds in her left hand represents that the law should treat everyone equally. The sword that she is carrying depicts that justice has the power to enforce the law. The globe in the background shows that law is universal and that this is necessary for a good community, for freedom, and for liberty. One would ask we why justice is depicted as a lady, and this is because in history women are symbols of purity, protection, and virtue are associated with the law. This image illustrates the idea that equality and fairness are guaranteed to everyone before the law. Providing equal access to impartial judicial systems and protecting those who suffer from injustice. (
About this case regarding the Lady Justice, the judge's ruling was fair and balance with the information that was provided. Although the three men accused had no prior criminal records nor any outstanding warrants the information provided by the investigating officer does not validate the approval to their bail application as the victims were not interviewed by the investigation officer to find out whether they would feel threatened if the three accused were to be out on bail while pending their court appearance. The investigating officer also has not verified the three men accused alternative residential addresses which places the accused in a safe distance from the victim as they are all currently residing in the same area/community. So, therefore, the judge s ruling was motivated as she has postponed the ball application to September 6, 2019, and has instructed the investigating officer to appear with valid information (www.yambu.co.za/bail-application/)
In the constitution of South Africa, human rights are protected by Chapter 2 (section 7-36). This section describes the rights and the laws pertaining to these rights that were passed and gave effect to individuals' rights. These rights were created to protect the citizens of South Africa in court. Section 7 also states that the government must respect, protect, promote, and fulfill the rights in the Bill of Rights. This applies to all laws made by the parliament and must be followed by all the components stated above in the constitutional law.
The Bill of Rights was established to defend the civil, socio-economic, and constitutional rights of every South -African and was publicized in an interim in1993 at the end of the apartheid era. All South African citizens are equal, and no one is above the law. In this case, we have 3 men accused of kidnapping and attempted murder. The Bill of Rights states clearly that every human being has a right to life, and the accused were charged with attempted murder. Accused number 1 and number 3 was represented by a lawyer of the state, the Bill of Right states that if you can't afford a lawyer the state needs to supply you with one, while accused number 2 was represented by his own private advocate. The court did provide a translator to the 3 accused to prevent communication barriers because according to the Bill everyone has a right to speak his own language. The detainees were not forced to confess or to speak unless they want to, this could affect the outcome of this case. The Bill of Right states that you cannot be detained without a valid reason but due to inadequate proof by the investigating officer hence the bail application was postponed.
JC Van der Walt and Rob Midgley define delict as, wrongful and blameworthy conduct which causes harm to a person. This law mostly engages in circumstances where one person claims compensation from another for the harm that he/ she has suffered. In South Africa, this law is based on 3 components, the action legis Aquileia, the action injurious and the action for the pain and suffering.
Is an aspect of the law that deals with damages: to property, persons etc (Stirling, 2015) Does it also deal with contractual obligations, negligence, and injustices? According to Mangala Wijesinghe of the Gen Sir John Kotelawala Defence University, Delict can be defined as breach of duty (Wijesinghe 2018). A delict can be filed when a person feels that he/she had been wronged by another person and as such may seek compensation for the injustice from the alleged perpetrator, for example: if one person (person A) enters into a contract with another (person B) and contravenes the binding stipulations of said contract which results in a loss (financial or other) to person B then person B may sue Person A for breach of contract or loss of revenue etc· The law of delict is not relevant in this case, as this is a criminal case and a bail hearing, and the alleged actions of the accused were not considered negligent but rather a criminal act and a contravention of the constitutional rights of the plaintiff.
No doubt South Africa is a constitutional democracy, governed by its citizen. Everyone can legally contribute to making the laws of the country; these laws are the one that governs how everyone should behave. This could be done by either be it citizens voicing their opinions or voting during elections. And following this law simple brings tranquillity among citizens. As previously discussed, South African law stems from five different sources: The Constitution; Statute Law; Common Law; Customary Law; and Court Decisions. But Constitutional is the supreme law of them all, every law and ruling must be in conformity with it. The Bill of Rights the fundamental of all laws falls under this law. When being interpreted in court, it permits the court to look for guidance in foreign and international laws.
In the setting of this case (application for bail) hearing the accused were afforded a chance and tried according to as per Constitutional Law stipulates. According to the law the accused individuals have the right to a fair trial, which includes being presumed innocent by the presiding officer until proven guilty. During the cause of the bail hearing sitting each one of the accused had a legal representation, which legally is their right to. They went along and sworn out their signed statement that was previously submitted. The Section 60 (1) (a) of the Criminal Procedure Act clearly stipulates that an accused in custody in respect of a crime shall be entitled to submit a bail application to be released at any stage preceding his or her conviction in respect of such crime if the court is satisfied that the interest of justice permits. And this was the case here that we witness.
The Multicultural Roots of South African Law. (2019, Dec 08). Retrieved from https://studymoose.com/law-and-ethics-2-essay
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