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UNIT 3 - CLASSIFICATIONS OF LAW Cheat Sheet (DRAFT) by

Law defined in the sources of law cannot be studied as an incoherent body of rules.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

DISTIN­CTION BETWEEN INTERN­ATIONAL & NATIONAL LAW

INTERN­ATIONAL LAW
Also known as the law of nations or public intern­ational law
Consists of the rules that primarily govern the relati­onships between interd­epe­ndent states.
No intern­ational world government can lay down rules for all states and enforce them - nevert­heless, these rules do exist.
These rules may be created by intern­ational custom or by intern­ational treaties (conve­ntions) - states which sign the treaties regulate certain relations between them
Bilateral treaties: treaties between 2 states
Multil­ateral treaties: treaties between several states.
Customary Intern­ational law:
settled practices that states regard as legally binding norms.
S39(1) of the Consti­tution: courts in SA when interp­reting the Bill of Rights must have regard to intern­ational law.
NATIONAL LAW
Law of a specific state. Also called 'positive law' (objective law). The whole body of legal rules that is applied and enforced in SA.
Distin­guish between substa­ntive law and procedural law
Substa­ntive Law
Also called material law
The part of the law which determines the content and meaning of different legal rules/­legal princi­ples. E.g. prohibits criminal offences and determines which acts constitute criminal offences.
Determines the content and applic­ation of the different rights and individual may have. E.g. determine how an individual can obtain ownership of property.
Procedural Law
Also called adjective law
Part of the law which regulates the enforc­ement of substa­ntive law
It determines the manner in which a case must be practi­cally handled. E.g. provides the process according to which someone is prosecuted for murder­/pr­ovides you with the process of claiming damages.
Substa­ntive and procedural law are interd­epe­ndent
Legal system must determine the content and meaning of different legal rules and prescribe what must happen when such rules are violated so that disputes can be settled in an orderly and peaceful manner.

LAW OF CRIMINAL PROCEDURE

Prescribes how people who have allegedly committed criminal offences *(murder, robbery, rape) should be prosec­uted.
It is the task of the state to prosecute people who commit criminal offences.
The Law of Criminal Procedure lays down the rules for the invest­igation of the alleged offence as well as the process in court
-criminal case

LAW OF CIVIL PROCEDURE

Determines the procedure to be followed when an individual wishes to enforce her rights against another. E.g. someone wants to claim damages from another who has damaged their property.
The Law of Civil Procedure determines how such a claim should be instit­uted.
- civil case.

LAW OF EVIDENCE

Determines how the facts in either a crimin­al/­civil case must be proven.
E.g. regulates the manner in which witnesses should lay their evidence before the court; what kinds of evidence is admissible and inadmi­ssible.
 

SUBSTA­NTIVE LAW

PUBLIC LAW
Determines the extent of state authority
It regulates the:
(1) Organi­sation of the state
(2) The relation between the state and its subjects
Vertical relati­onship- state authority v legal subjects
PRIVATE LAW
Regulates the relati­onships between persons. (legal subjects)
Determines the different rights and duties that personas may have towards one another
These rights and duties may find their origin in contracts, delicts, marriage or ownership.
The state can also be a party in private law when, for example, it enters into a contract with an individual or causes and individual harm (e.g. police brutality)
The instance the state does not act with state authority, it is in the same position as any other person.
The private law relati­onship is an equal one - horizontal relati­onship
It should be noted that the idea that the relati­onship between non-state actors is always an equal one, is proble­matic:
(1) When the state enters into a contract with a person, stands in a position of power - power imbalance
(2) All indivi­duals are factually not equal to one another - individual entering into the contract with a mutlin­ational organi­sation.
When a person wants to enforce her rights against another in terms of private law - the law of civil procedure applies
NB- also noted that the distin­ction between public and private law is often artifi­cial. The state often encroaches upon areas of private law, e.g. state through legisl­ation dictates certain contra­ctual relati­onships between emplyer and employee

PUBLIC LAW

CONSTU­TITONAL LAW
The Consti­tution forms the basis of consti­tut­ional law
Consti­tut­ional Law determines the *nature of state, it consti­tuent
Divides state authority into three branches
(1) *the legisl­ature- which promul­gates legisl­ation
(2) the judiciary- which interprets and applies legal rules (the courts)
(3) the executive- handles government affairs, admini­sters the state and executes court orders (the president together with Cabinent.
Bill of Rights - Chapter 2
ADMINI­STR­ATIVE LAW
Controls the admini­str­ation of the state in general.
Determines the way in which the state is to exercise its executive powers through different bodies such as ministers, state depart­ments and numerous boards.
When these state functi­onaries make admini­str­ative decisions, they are supposed to do so on the basis of certain powers given to them by the Consti­tution or legisl­ati­on./To ensure that the government acts in accordance with the law.
Aims to prevent these bodies from exercising their powers in such a way that it prejudices indivi­duals.
S33 of the Consti­tution
- stipulates that everyone has the right to just admini­str­ative action that must be lawful, reasonable and fair. If an admini­str­ative decision has been taken against someone and it has an adverse effect on them, they are allow to request written reasons for that decision.
-The Promotion of Admini­str­ative Justice Act 3 of 2000 (PAJA) is a statute passed by Parliament to give effect to the section 33 right*
-According to PAJA, admini­str­ative decisions may be reviewed and invali­dated by a court for a number of reasons including unlawf­ulness, procedural fairness and unreas­ona­ble­ness.
e.g. legisl­ation that stipulates that government officials must together take a decision and only one official made the decision, the admini­str­ative act can be overturned because it was unlawfully made.

CRIMINAL LAW

Determines which acts amount to criminal offences, and it also dictates that criminal offences must be punished.
Criminal offence- act against the law - state prosecutes and punishes subjects who have committed criminal offences
The manner in which prosec­ution takes place and punishment is imposed is determined by the law of criminal procedure.
 

PRIVATE LAW

LAW OF PERSONS
Regulates the relati­onships between persons.
Persons are subjects of private law
Determines what a 'person' is in the legal sense
Humans and entities (compa­nies)
Determines the juridical status of persons, nature of a person's position in the law
e.g. children cannot conclude contracts or marry but can inherit.
FAMILY LAW
Regulates family relati­ons­hips.
Relates to matters such as *engag­ement, marriage, civil unions, marital property, divorce, and child-­parent relati­ons­hips.

LAW OF PATRIMONY

Part of Private Law that regulates the relati­onship between persons with respect to their means.
Means indicates the sum total of a person's assets and liabil­ities
- person's estate.
LAW OF PROPERTY
Deals with the relati­onships between persons with respect to things
Determines which rights persons can have with respect to moveable and immoveable property.
It also regulates the origin, termin­ation and protection of such rights.
The best known example of such a right is ownership.
The right to property is not only a private law right but is also protected by the Consti­tution in S25
LAW OF SUCCESSION
Determines what happens to an estate after a person's death
In a will, one can stipulate who is to inherit their estate (testate succes­sion). In the absence of a will, the law of instestate succession prescribes who will inherit the estate.
LAW OF OBLIGA­TIONS
Regulates the relati­onship between persons where one person (the creditor) has a right against another for perfor­mance, and the latter person (the debtor) has a corres­ponding duty to perform
This type of relati­onship is called an obligation
It is mainly contracts and delicts that create such obliga­tions.
CONTRA­CT/­DELICT
Contract
- an agreement between two persons in terms of which a right and a corres­ponding duty to perform come into existence
- the law of contract prescribes the requir­ements for the conclusion of contracts, and regulates the rights and duties created by a contract, as well as the termin­ation of a contract
Delict
- a wrongful and culpable act which causes damage to another. The persons who suffers the damage can claim damages from the person who caused it.
-Patri­monial loss: damage to property
-Non-P­atr­imonial loss: negligent medial practice, defama­tion, unlawful detainment by police that causes infrin­gement of bodily integrity.
A delict thus creates an obligation (the payment of damages)
Law of Delict determines what a delict is and regulates the rights and duties which arise from it.
Difference between criminal offence and delict
*criminal offence: purpose is to punish the offender (public law)
delict: compensate the person who suffered the damage (private law)
NB: a criminal offence that causes damage to another (assault, theft) also constitute a delict.
LAW OF INTELL­ECTUAL PROPERTY
Governs the relati­onship between persons with respect to intell­ectual property (immat­erial or industrial property).
Intell­ectual property denotes the creations of the human intellect or ingenuity.
eg, invent­ions, the content of literary works, and musical compos­itions.
Rights with respect to intell­ectual property include copyright and rights to patents.
Intell­ectual property as subject that falls within the domain of property law broadly unders­tood. Intell­ectual property rights are protected through s25 of the Consti­tution.
 

COMMERCIAL LAW

Commercial law embraces numerous branches of law important for commerce or trade and industry.
Mixture of public and private law.
Specia­lised private law. e.g Law of insurance
Sometimes exclus­ively regulated by the state in the form of legisl­ation, and entails a state-­citizen relati­onship.
eg., tax law, company law, law of insolv­ency, labour law, banking law.
BANKING AND FINANCE LAW regulates the powers and functions of banks and financial service providers by means of many different statutes, including the Banks Act, the Financial Advisory and Interm­ediary Services Act and the National Credit Act.
COMPANY LAW- in 2008, South Africa adopted the new Companies Act, which forms the backbone of South African company law dealing typically with issues such as the regist­ration, incorp­oration and management of companies.
THE LAW OF INSOLVENCY is concerned with insolvent estates, bankruptcy business rescue, the winding up and liquid­ation of companies and debt counse­lling based on, among other sources, the Insolvency Act.
LABOUR LAW comprises a wide array of legal sources regulating the relati­onship between employers and employees, the conditions of employment that must be adhered to by all employers, as well as the law relating to the recogn­ition of trade unions and their repres­ent­ation of workers.
TAXATION LAW deals with all matters related to the payment and collection of taxes and the relati­onship between tax payers and the South African Revenue Service (SARS)
INSURANCE LAW has to do with, among others, the regulation of the South African insurance industry as well as the requir­ements for insurance contracts and the rights and duties arising from these contracts.