Introduction to Law: South African study guide

Module blueprint

Introduction to Law gives a first-year student a working map of South African law: what law is, where it comes from, how it is classified, who makes and applies it, and how lawyers read, reason and write. Every later module depends on it.

Level: first-year LLB and BCom Law, no legal background assumed. Prior knowledge: none.

Curriculum basis and limits: a provisional general framework built from the shared core of UP (JUR 110/120), UCT (PVL1003W) and Rhodes (2024 outline). It is not any university's official curriculum. UJ, SU, UNISA and Wits are confirmed by module name only. Statutory interpretation and constitutional theory are first-year at UCT and SU; under the depth rule they are taught here at that full depth.

Learning outcomes

Topics

Teaching order: T1 and T2 give the vocabulary. T3 explains why the sources look as they do. T4 and T5 are the core, each followed by its Skills Lab unit. T6 and T7 show the system working. T8 and T9 come last because they draw on everything before.

Coverage: topics against outcomes

● = main home of the outcome; ○ = reinforced.

Assessment plan

• Each topic: 15 to 25 flashcards, and a quiz of 6 multiple-choice, 3 short-answer and 2 application questions with a separate answer key.
• End of module: one diagnostic test and two original practice exams (2 hours, 100 marks each) with model answers and marking guides. These are original practice papers, not any university's format.

Source plan

• Primary: the Constitution of the Republic of South Africa, 1996; Superior Courts Act 10 of 2013; Magistrates' Courts Act 32 of 1944; Legal Practice Act 28 of 2014; Legal Aid South Africa Act 39 of 2014; judgments from SAFLII.
• Candidate cases, all unchecked until read on SAFLII: Camps Bay Ratepayers' and Residents' Association v Harrison (precedent); Natal Joint Municipal Pension Fund v Endumeni Municipality (interpretation); Fedsure Life Assurance v Greater Johannesburg TMC (legality); Carmichele v Minister of Safety and Security (developing the common law).
• Further reading (listed, not reproduced): Kleyn and Viljoen, Beginner's Guide for Law Students; Madlingozi et al, Introduction to Law and Legal Skills in South Africa; Maisel, Greenbaum and Stopforth, Introduction to Law and Legal Skills in South Africa.

Known gaps: topic outlines for UJ, SU, UNISA and Wits.

Topic 1: What law is

A. Chapter identity

B. Start with a problem: a morning at the taxi rank

It is 07:10 at a busy taxi rank. Three things happen within ten minutes.

1. A man pushes to the front of the queue. The rank marshal sends him to the back, pointing to the taxi association's rule that passengers queue.
2. An elderly woman collapses near a food stall. The stall owner sees her and keeps serving customers. A uniformed metro police officer on duty at the rank also sees her and walks away. Help arrives forty minutes later, and the delay makes her condition worse.
3. A passenger spits on the ground. People nearby click their tongues and look away.

Think first: Which of these situations involve law, rather than some other kind of rule? Did the stall owner have a legal duty to help? Did the officer? Write one sentence for each; we come back to your answers at the end.

C. The big picture

In short: law is the set of rules that come from a recognised source, bind everyone whether they agree or not, and are applied by the courts. It overlaps with morality but is not the same thing, it creates rights and duties between legal subjects, and in South Africa all of it sits under a supreme Constitution.

This topic answers the question every other topic assumes: what counts as law? Lawyers need a working answer, because only law can be enforced through the courts. A rule of etiquette, a church rule or a taxi association's queueing rule can matter a great deal in daily life, but a court will not enforce it just because it exists.

By the end of this chapter you should be able to answer six questions:

1. What makes a rule a legal rule?
2. How is law different from morality, religion and social rules?
3. What are the main theories about what law is?
4. What is law for?
5. What are legal subjects, rights, duties and legal objects?
6. What does the rule of law mean?

Key words

D. Teaching the concepts

T1.1 What makes a rule law?

In short: a rule is a legal rule when it guides conduct, comes from a recognised source, binds you whether you agree or not, and will be applied by the courts.

There is no single definition that every legal theorist accepts. For a first-year working definition, look for four features:

1. It guides conduct. It tells people what they must do, may do, or must not do, or it gives them a power with legal effect, such as making a will or a contract.
2. It comes from a recognised source. In South Africa: the Constitution, legislation, court decisions (precedent), the common law, customary law and, in some ways, international law (Topics 4 and 5).
3. It binds you whether or not you agree. You cannot opt out of the law of theft because you disagree with it.
4. The state's institutions will apply it. Courts decide disputes under it, and the state can enforce the outcome: a fine, an order to pay damages, an order to stop doing something, or imprisonment.

Each feature separates law from a neighbouring kind of rule. Feature 2 rules out a rule someone simply invents. Feature 4 rules out rules whose only sanction is disapproval.

Careful: law is not the same as punishment. Much of law does not punish anyone. The rules on making a valid will or forming a company enable people to do things. If you ignore them, the "sanction" is that what you tried to do has no legal effect.

• An example of a legal rule: you may not take another person's property without consent. It comes from a recognised source (the common-law crime of theft), it binds everyone, and courts apply it.
• Not a legal rule: the taxi association's queueing rule. The marshal enforces it, but its force comes from the association and from social pressure, not from a recognised source of law. Unless some law makes it binding, a court would not convict the man for pushing in.
• Change one fact: if a municipal by-law made queue-jumping at public transport facilities an offence, the same conduct would break a legal rule, because a by-law is a recognised (delegated) source of law (Topic 4).

Checkpoint 1. A university residence has a rule: no visitors after 22:00. Is this a legal rule? Give a reason based on the four features. (Answer: practice section, CP1.)

T1.2 Law and other rules: morality, religion and social norms

In short: law and morality overlap a lot, but they come from different places and are enforced differently, and sometimes they point in different directions.

We all live under several sets of rules at once: moral rules (right and wrong), religious rules, social norms and etiquette, and the rules of organisations such as schools, clubs and employers. They differ from law mainly in where they come from and who enforces them.

Law and morality overlap a great deal. Murder and theft are both immoral and unlawful, and the Constitution itself is built on values such as human dignity, equality and freedom. But they also part ways, in two directions:

• Immoral but lawful: breaking a promise to meet a friend, or lying about why you missed a family event, is usually not unlawful.
• Unlawful but not obviously immoral: driving at 65 km/h in a 60 km/h zone on an empty road is unlawful; few would call it a moral wrong.

The taxi-rank collapse shows the clearest difference. Most people think there is a moral duty to help someone who has collapsed. South African law has no general legal duty to rescue. Whether failing to act (an omission) is unlawful depends on whether the law placed a legal duty on that particular person. Courts decide this by asking whether, in all the circumstances, the legal convictions of the community required that person to act.

Case: Minister van Polisie v Ewels (Appellate Division, 1975)

• Legal issue: When is an omission (a failure to act) wrongful?
• Held: An omission is wrongful when the legal convictions of the community require it to be treated as unlawful, not merely when it provokes moral indignation. On-duty police officers had a legal duty to protect a person being assaulted in their presence.
• Key facts: Police on duty watched a colleague assault a man in their station.
• Why it matters: a legal duty to act can arise from a person's role; this is where law and morality part ways on omissions.

Case: Van Eeden v Minister of Safety and Security (Supreme Court of Appeal, 2002)

• Legal issue: What is the test for wrongfulness of an omission under the Constitution?
• Held: An omission is wrongful if the legal convictions of the community, now informed by constitutional values, require the person to act (paras 9, 12).
• Why it matters: it is the modern statement of the test you will use for omissions (studied fully in Delict: Module 4, D2 and D3).

"Legal convictions of the community" does not simply mean popular opinion. In S v Makwanyane (Constitutional Court, 1995) para 88, the court said public opinion "may have some relevance" but "is no substitute for the duty vested in the Courts" to interpret and uphold the Constitution.

• Back to the officer: he is in a position close to Ewels: a public official whose job is to protect the public. There is a strong argument that the law placed a duty on him to act. (Whether he is actually liable also depends on other requirements you meet in Delict, Module 4.)
• Back to the stall owner: he may have failed morally, but nothing suggests a special role, control over the danger, or earlier conduct that created the risk. A court is unlikely to find a legal duty.
• Change one fact: if his gas cooker had caused her collapse, he would have created the danger, and a legal duty to act would be much more likely.

Checkpoint 2. Give one example of conduct that is immoral but lawful, and one that is unlawful but arguably not immoral. Explain each in one sentence. (Answer: CP2.)

T1.3 Theories about what law is

In short: thinkers disagree about whether a rule must be morally good to count as law; South Africa's Constitution settles part of the argument by making unconstitutional law invalid.

You will meet these ideas again in Jurisprudence. For now, recognise four broad views and one South African theme:

• Natural law: law should match higher moral principles, so a gravely unjust rule is not truly law, or is law only in a defective sense.
• Legal positivism: law is whatever the recognised authorities have validly made; whether it is good is a separate question.
• Legal realism: to understand law, look at what courts and officials actually do, not only at the written rules.
• Critical perspectives: law often reflects and protects the interests of those with power, and should be examined with that in mind.
• Ubuntu and African jurisprudence: law is understood through community, interdependence and human dignity. The Constitutional Court discussed ubuntu in Makwanyane and later cases.

This matters in South Africa because apartheid laws were validly passed by Parliament. A positivist would say they were law; a natural lawyer would ask whether they deserved obedience. The 1996 Constitution answers part of this directly: law inconsistent with the Constitution is invalid (s 2), so whether a law is valid now depends partly on constitutional values.

Checkpoint 3. In one sentence each, say how a positivist and a natural lawyer would describe an apartheid-era statute. (Answer: CP3.)

T1.4 What law is for

In short: law keeps order, settles disputes peacefully, protects rights, limits power and can change society, and these aims sometimes pull against each other.

• Order and predictability: people can plan because they know the rules in advance.
• Settling disputes peacefully: courts replace self-help. Section 34 of the Constitution gives everyone the right to have a legal dispute decided in a fair public hearing.
• Protecting rights and interests: life, bodily integrity, property, reputation and dignity.
• Limiting power: the state may act only as the law allows (T1.6).
• Social change: under s 7(2) the state must "respect, protect, promote and fulfil" the rights in the Bill of Rights. Law is used to change society, not only to keep it as it is.

The tension shows up often: predictability favours keeping a rule, while social change may favour developing it. Much of your later study involves watching courts balance the two.

T1.5 Legal subjects, rights and duties

In short: law gives rights and duties to legal subjects (people and recognised entities), and every right is about some legal object and has a matching duty.

A legal subject is someone the law recognises as able to have rights and owe duties. There are two kinds:

• natural persons: human beings;
• juristic persons: entities the law treats as legal subjects, such as companies, universities and municipalities.

The Law of Persons module studies when legal subjectivity begins and ends, and how age or mental capacity affects what a person can do.

A right is a legally protected entitlement. Much South African teaching explains rights through the subjective rights doctrine: a right links a legal subject to a legal object (something of value the law protects) and requires others to respect that link. Commonly taught kinds of legal object:

(Textbooks differ slightly on this list; check the version your course uses. Law of Persons revisits it in P1.)

Every right has a matching duty. Two contrasts matter:

• A real right such as ownership works against everyone: nobody may interfere with your bicycle.
• A personal right works against one particular person: if you lend Ayanda R500, only Ayanda owes you the money.

Fundamental rights are different again. The Bill of Rights mainly binds the state: s 8(1) says it binds "the legislature, the executive, the judiciary and all organs of state". Under s 8(2) a right also binds private persons "if, and to the extent that, it is applicable", depending on the nature of the right and the duty. You study this in Constitutional Law.

Not a legal right: "I have a right to be invited to my cousin's wedding." No legal object is involved, no source of law creates the entitlement, and no court would enforce it. It is a social expectation at most.

Checkpoint 4. Thandi owns a laptop and has lent it to Musa for a week. Musa refuses to give it back. Identify the legal subjects, the legal object and the rights involved. (Answer: CP4.)

T1.6 A first look at the rule of law

In short: the rule of law means that everyone, the government included, is under the law, and public power may be used only as the law allows.

Section 1(c) of the Constitution lists "supremacy of the constitution and the rule of law" among the values the Republic is founded on. Section 2 says:

"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."

Case: Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council (Constitutional Court, 1998)

• Legal issue: May the state exercise power that no law gives it?
• Held: No. The legislature and executive "may exercise no power and perform no function beyond that conferred upon them by law" (paras 56–58). This is the principle of legality, part of the rule of law.
• Why it matters: any use of public power that has no legal basis is invalid. You will rely on this case throughout Constitutional and Administrative Law.
• An example: a municipality charges residents a new fee without any law allowing it. Under the principle of legality the fee is invalid, however sensible it may seem.
• Not covered: a private gym charges its members a new monthly fee. That is not public power, so the principle of legality does not apply; whether the gym may do so depends on its contract with members and on consumer law.

Careful: the rule of law does not just mean "obey the police". It is first of all a limit on those who hold public power. Topic 9 develops this.

Checkpoint 5. Why does the principle of legality apply to the municipality but not to the gym? (Answer: CP5.)

Constitutional provisions used in this topic (text checked on gov.za; no version date shown there, so confirm no later amendment in review):

How to use cases in an answer: state the principle first, then the case that supports it. For example: "An omission is unlawful only if the law imposed a duty to act, judged by the legal convictions of the community (Van Eeden para 9)." Never list case names without the principle they stand for.

I. Common mistakes

J. Recap in five sentences

1. Law is the set of rules from recognised sources that bind people whether they agree or not, and that courts apply and the state enforces.
2. Law overlaps with morality but differs from it, and omissions show the difference most clearly: there is no general duty to rescue, only duties the law places on particular people (Ewels; Van Eeden).
3. Thinkers disagree about whether law must be morally good, and the Constitution answers part of this by making unconstitutional law invalid (s 2).
4. Law creates rights and duties between legal subjects (natural and juristic persons) in respect of legal objects, and real rights bind everyone while personal rights bind one person.
5. In South Africa all law sits under a supreme Constitution, and the rule of law means public power may be used only as the law allows (Fedsure).

Back to the taxi rank. The queueing rule is an organisation's rule, not law, unless a by-law adopts it. Spitting breaks a social norm (a local by-law may also apply). The collapse raises a real legal question: the on-duty officer probably had a legal duty to act; the stall owner probably did not.

Explain it to a friend. In about 120 words, explain to someone who does not study law why the stall owner probably had no legal duty to help, while the on-duty officer probably did.