Student notes and guide

Introduction

The aim of this module is to make the law relevant to everyday life. In the time available
it is impossible to cover every topic that students may need to know about the law and
how it affects them on a daily basis. A few areas have been chosen based on
relevance, interest and the graduate attributes that general education at DUT aims to
develop.

The module is based on the idea of combining theory and practice. In each section an
everyday life experience will be introduced and discussed. Subject specific
terminology will be explained and an understanding of key concepts will be developed.

Law as a topic for study lends itself to the development of basic competencies, such
as information literacy, oral and written communication and logic and reasoning .In
order to develop these skills a basic set of notes has been provided but they are not
intended to be comprehensive, as this course aims to developing the student’s
capacity for research, independent critical thinking and debate.

This module aims to develop the following DUT graduate attributes:

1. Critical and creative thinkers who work independently and collaboratively

2. Knowledgeable Practitioners
3. Effective communicators
4. Culturally, Environmentally and socially aware within a local and global context
5. Active and reflective learners

At the beginning of this module take a moment to think about or reflect on your
goals in this course and how you intend to achieve them.

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Readings

Please note that references are for the prescribed book unless otherwise stated

Prescribed book

Please note that due to COVID -19 students are not required to read the chapters
from the prescribed book.

Meintjies-Van der Walt, L., Singh, P., du Preez, M., de Freitas, S., Chinnian, K.,
Barratt, A., Govindjee,A., Iya, P., de Bruin, J.H. and van Coller, H. 2019.
Introduction to South African Law. 3rd ed. Cape Town: Pearson.

Recommended books

1. Kleyn, D. and Viljoen, F. 2011. Beginner's Guide For Law Students.4th ed.
Cape Town: Juta.
2. Kopel, S. 2010. Guide to Business Law. Cape Town: Oxford.
3. Govindjee,A., Holness, D., Shirk,A., S., with Hutchings,C. 2011. Commercial
Law 1 fresh perspectives. Cape Town: Pearson.
4. Govindjee,A., Holness, D., Driver, S., Etsebeth, V., Horsten, D., and Keep, H.
2011. Commercial Law 2 fresh perspectives. Cape Town: Pearson.

Websites accessing legislation and case law

1. www.saflii.org.za
2. www.gov.za
3. www.raf.co.za
4. www.sabinet.co.za

DUT Library

Please be note that the DUT Library has a large selection of online resources.
Go to the website and use the assistance provided by the library to help you.

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Topic: Introduction
Learning outcomes

At the end of this section the student will be able to

1. Understand the term jurisprudence and legal theory

2. Understand the concept of normative systems and different forms of social control.
3. Understand the law as distinct from other normative systems.
4. Develop an awareness of morality, ethics and religion as normative systems and
interrogate their own moral, ethical and religious views.
5. Explain the purpose of the law.
6. Recognise and access the different sources of law.
7. Recognise the different courts in South Africa.
8. Understand the concepts of legal theory and jurisprudence
9. Explain transformative constitutionalism and Ubuntu as legal theories.
10. Have a legal perspective to the HIV/AIDS pandemic in South Africa.

Life scenario

Imagine you are the only person left on earth following a

nuclear disaster.

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How would you behave? After six months you discover that
you are not alone and you join a community of people who
have also survived the disaster.

Reading from prescribed book

Please note that due to COVID -19 students are not required to read the chapters
from the prescribed book.

Chapter 1: Pages 3-5

Chapters 3 to 7

Chapter 9

Introduction
The aim of this section is to challenge students to begin to think critically about the
law, its function, origin and future. In other words, the role of the law in society. It is
important to question and understand in the concept of law in the challenging times in
which we live.

Jurisprudence and legal theory

Jurisprudence and legal theory attempt to explain the conceptual foundations of the
law. Jurisprudence and legal theory have a number of different approaches or theories
that attempt to explain the concept of law, why we requires law in society and the
nature of a legal system. These theories are used to analyse the law and legal systems
and attempt to answer questions such as:

What is law?

What is the purpose of law?

Where does the law come from?

What is the relationship between law

and justice/morality/ethics/democracy?

Do we have a duty to obey the law?

What makes the law valid? What is law?

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There are many different theories such as Natural law, Positivism, Critical legal theory
and Right-based theories. Learning about all these theories does not form part of this
course. You will be briefly introduced to Transformative Constitutionalism and Ubuntu
as legal theories.

The law and other forms of social control

If we lived alone on a desert island, the way in which we behave would not affect
anybody else and we could behave as we wanted to. However we do not live in
isolation and our behaviour affects others. It is for this reason that we require rules
that control the way in which we behave. Rules are required to ensure peaceful
interaction and a fair distribution of resources. The purpose of these rules is to control
the way in which each person behaves in relation to another. These rules that regulate
the way we behave are referred to as different forms of social control or normative
systems. There is no one universally accepted definition for different forms of social
control.

Normative systems: are sets of rules that regulate human behaviour so that human
beings can live together in harmony and have their interests protected. They also
prevent chaos in society.

Law
Law can be defined as

 “A set of rules to govern or control the behaviour of people” (Meintjies-Van der

Walt et al. 2019: 3).

 “A set of rules made by the State (or government) to order the way in which the
people in society behave. The state also reinforces the law by seeing that
people obey these rules” (Govindjee et al. 2011: 1).

Law is a form of social control. Law is backed by the state or government and is
enforced by the courts. However, law does not exist in a vacuum or a void it forms part
of a broader political, cultural and socioeconomic context. The law and the context
within which it is applied, cannot be separated from one another. The importance of
applying the law in its historical, socioeconomic and political context, has been
emphasised by the courts in South Africa.

Law is not the only form of social control. Moral, ethical and religious rules also affect
the way in which we relate to one another. These are rules or principles which
distinguish between right and wrong or good and bad behaviour. They guide how a
person or group should behave. Ethical, moral and religious rules are informally
enforced.

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Religion
Religion can be defined as an organized collection of beliefs, cultural systems, and
world views that relate humanity to an order of existence. Many religions have
narratives, symbols, and sacred histories that aim to explain the meaning of life, the
origin of life, or the Universe. From their beliefs about the cosmos and human nature,
people may derive morality, ethics, religious laws, or a preferred lifestyle.

Morality
Morality is the human attempt to define what is right and wrong about human actions
and thoughts. An attempt to explain what is good and bad. However, it is not all that
simple. Philosophers have been trying to answer the question for thousands of years!
It would be simple if everyone just did the right thing all of the time. However, who
decides what the right thing is? What happens when people don't agree? Who gets to
decide and how do they decide?

Ethics
Ethics: are a system of moral principles and a branch of philosophy which defines what
is good for individuals and society. Basically, ethics is a system of moral principles that
affect how people make decisions and lead their lives. Ethics can provide a moral map.
Some issues, such as euthanasia, abortion, the death penalty and the legalisation of
dagga, are for many people, deeply personal emotional issues. People often hold
strong views on what is right and wrong. Ethics provides a set of ethical rules and
principles that assist in solving moral problems. There are a number of different ethical
theories which can be used to provide assistance in solving difficult issues.

The relationship between different forms of social control

The relationship between law and morality/ethics/religion has long been the topic of
debate in jurisprudence, legal theory and philosophy. The debate about this
relationship can be seen from the many questions that are often asked. Such as:

? Are same sex marriages immoral?

? Why is racism wrong?

? Should the law permit abortion?

? Should the use of dagga be lawful?

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Activity: to be conducted during the tutorial.

Discuss the following questions in small groups of six to eight people:

1. One person is alone on an island. Discuss whether it is it necessary to have rules.

2. Another person arrives on the island. Is it necessary to have rules? Discuss.

3. Discuss the following topics in terms of religion/ethics/morality/law.

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Euthanasia
Abortion
Capital punishment
Dagga

The purpose of law and the rule of law

The purpose of law

The purpose of law is twofold. Firstly, to establish and maintain social order. However,
simply achieving order is not sufficient. Justice is also important.

Social order is a prerequisite for the survival of society. Without order there would be
chaos and without order there can be no justice. However, effective order will only be
possible where there is justice. Justice is a concept tied up with the ethical and moral
views of the individuals and society.

The purpose of the law, using order and justice is an attempt to balance the rights and
duties of people within society. There are different legal theories that have been
developed to try and explain the concept of justice. The theory of natural justice is an
example of a legal theory.

The theory of natural justice

The theory of natural justice states that in order for a law to be just it must comply with
the following principles:
1. Reasonableness: The law needs to be administered in a way that is fair to the
people, taking regard of their interests and expectations and based on principles which
are not arbitrary.

2. Generality: The law must cover general situations and not specific persons. Similar
situations must be treated alike, and the law should be administered impartially.

3. Certainty: The law should be certain and clear enough for the people to act (or not
to act) according to the requirements of the law. This gives rise to the problem of the
accessibility of the law (found in case law, Acts of Parliament, in publications like the
Government Gazette and Provincial Gazettes).

4. Fair court procedure: There must be a system of courts and law enforcement which
is manned by competent and impartial officers and which can operate with fairness
and independence.

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The rule of law

The rule of law is a founding principle of the Constitution. Section 1(c) states as follows:

The Republic of South Africa is one, sovereign, democratic state founded on the
following values:

Supremacy of the constitution and the rule of law.

The term the “rule of law” is often used in relation to the purpose and importance of
law in society. The rule of law requires everyone including the state to act according
to the law. This means that everyone must obey the law. The state has no power over
anyone unless the law allows it to exercise this power (Meintjies-Van der Walt et al.
2019: 10-11).

The rule of law means that the creation of laws, their enforcement, and the
relationships between legal rules must be regulated legally. No one should be above
the law. This is based on the idea of equality before the law, which basically means
that the law must apply equally to everyone. The application and adjudication of legal
rules must be impartial and consistent without taking into consideration the class,
status, or relative power between people.

The rule of law is a system of laws and institutions that is based on the foundation of:

 Accountability: The law applies equally to everyone and no-one is above the law
including government officials and private citizens.
 Justice: the law must be published and transparent, applied equally and protect
basic human rights. The process by which the laws are enacted, administered, and
enforced must accessible, fair, efficient and transparent.
 Accessible: justice must be delivered by a competent, ethical, and independent
system of courts. An independent judiciary to protect citizens against the arbitrary
use of power by the state is fundamental to the rule of law.
 Transparent: Everyone must have access to complete, accurate and up-to-date
legislation and case law in the administration of justice. A transparent legal system
is a fundamental to the rule of law.

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The South African legal system

The South African legal system is a hybrid or mixed legal system. This term will be
discussed in the section that explain the sources of law. This section will focus on
three parts of the legal system:

 The source of law

 The courts as institutions that are involved in the administration of justice
 The Constitution

Constitution

Sources
Courts
of law

Sources of law

Where does the law come from? How do people in a country know what the law is?
How is a dispute between people resolved?

The South African legal system is a hybrid or mixed legal system. The law comes from
different sources. It is not codified or contained in one source or body of rules. The
South African legal system is made up of:

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1. Common law
The common law can be described as that body of legal rules that has developed
over hundreds of years. The history of the law. The law that is not written down. It
is accessed by reading textbooks. The common law of South Africa is a mixture of
Roman-Dutch law, English law and customary law.

A brief history
 Prior to 1652:
The inhabitants of South Africa were governed by indigenous customary law.
Customary law is the term used to describe a legal system based on the
customs and social practices of a group of people.
 In 1652:
The Dutch (Holland) arrived and settled at the Cape of Good Hope. They
brought their law with them. This law was called Roman-Dutch law. It is a
system based on Roman law that was incorporated into Dutch customary law
when the Romans conquered Holland during the Roman Empire. The Romans
spoke Latin and because of the Roman-law influence, many legal terms used
in South Africa are in Latin.
 In 1806:
The English colonised the Cape of Good Hope. They brought with them their
law, called the English Common law. The English law did not replace the
Roman-Dutch law, but it had an important influence on different branches of
South African law, particularly commercial law. This is because of the Industrial
Revolution in England which gave rise to new concepts such as companies.

2. Legislation
Legislation is rules or law that is written down. This can be described as the law
made by the government. A draft of a proposed law is prepared-this draft is called
a bill. This bill is then debated before it is voted in or passed by the legislative
authority such as Parliament. The legislation is signed by the President. Legislation
is made at three levels:

National legislation is passed by Parliament. It deals with matters of concern to

all the citizens of the country. These are called Acts of Parliament/Statutes.

Provincial legislation is passed by the provincial legislature of a particular

province. It relates to the provinces, and deals with matters such as provincial
planning, health and education, provincial cultural matters, sport and provincial
roads. It is called provincial ordinances.

Municipal legislation is passed by a municipality. It deals with specific community

matters such as beaches, municipal roads, building regulations, noise and litter.
These are called municipal by-laws

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3. Judicial precedent
Court cases are heard in court by the presiding officers, who are called judges or
the magistrates depending on the court. The presiding officer listens to the
evidence and makes a decision on law in order to resolve a dispute.

This decision is called a judgment. This judgment is now part of case law and
creates precedent which is a guideline that has to be followed by other courts.
Judgments made by courts higher up in the hierarchy must be followed by courts
lower in the hierarchy. Judicial precedent is binding on lower courts.

The system of judicial precedent allows for continuity, because by presiding officers
following the precedent of established cases, like cases will be treated alike, and
people will make their actions according to the established law. This is called the
Doctrine of stare decisis. According to the doctrine of precedent (stare decisis = let
the decision stand) certain courts will either be obliged to follow the decisions of
higher courts or will have to consider decisions of other courts as persuasive.
Read the section on the hierarchy of the courts.

The system of judicial precedent creates certainty in the manner in which the courts
interpret and apply the law. This ensures that the system is not arbitrary and
uncertain. By reading case law, people can be guided in the way in which courts
will interpret and apply legal principles in similar cases.

4. Customary law
Customary law consists of social norms and practices that a certain community
considers law. There are many different customary law systems in South Africa.
Customary laws are not written down and vary from place to place. It is possible
that in certain circumstances neither legislation nor the common law can resolve a
dispute between parties. It may then be necessary to look to custom in order to
find a solution.

In the case of van Breda v Jacobs 1921 AD, the court listed the requirements that
a custom musty comply with before it can become law. They are as follows:

1. The customary practice must have existed from time immemorial (for as long
as anyone can remember).
2. It must be reasonable.
3. It must be clear and certain.
4. It must have been used continually without exception.

Once a court has adopted a custom to resolve a legal dispute that customary law now
forms part of the common law.

Courts in South Africa

The court system is part of the institutions that are involved in the administration of
justice. The rule of law requires that justice must be delivered by an independent
judiciary to protect citizens against the arbitrary use of power by the state. A

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transparent legal system is a fundamental to the rule of law. The hierarchical court
system in South Africa provides the framework for this system.

There are number different courts in South Africa each with its own jurisdiction. The
term jurisdiction means the power or authority a particular court has to hear a matter.
Different courts hear certain matters depending on the type of matter, where the cause
of the dispute happened or where the defendant lives. If a court is allowed to hear a
matter, this court has jurisdiction over the matter.

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HIERARCHY OF SOUTH AFRICAN COURTS

Constitutional Court (CC)

Interpretsand protects the Consitution
One CC in South Africa and has jurisdiction over the whol of South Africa

Supreme Court of Appeal (SCA)

Appeal court (from High court)
Unlimited civil and criminal jurisdiction
There is only one Supreme Court of Appeal in South Africa and this court has jurisdiction
over the whole country

High Court
Both a court of the first instance and an Appeal court
(Magistrates court)
Unlimited civil and criminal jurisdiction
Each province has a High court. Gauteng and KZN each have two
due to the size of the population. There are 11 High Courts.
They are referred to as local or provincial divisions.

Magistrate Court
Divided into the Regional and District courts
Over 700 district Magistrates’ Courts in South Africa and 9
Regional divisions

Small Claims Court

Civil jurisdiction only. Claims up to R20 000
No right of Appeal
No legal representation
Presided over by Commissioner

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Magistrates Court

DISTRICT COURTS REGIONAL COURTS

SPECIALIST COURTS
CHILDRENS COURT Limited civil & criminal Limited civil & criminal
jurisdiction jurisdiction
FAMILY COURT Civil: claims up to R200 Civil: claims R200 000-
000 R400 000
EQUITY COURT Criminal: maximum fine of Criminal: maximum fine of
R120 000 and/or 3 years R600 000 and/or 15 years
imprisonment imprisonment

Activity: Question to be answered during the tutorial.

1. What does the term “jurisdiction’ mean?

2. What is a court of the “first instance”?
3. What does an appeal court do?
4. What is the function of the Constitutional court?
5. What is the function of the Small claims court?
6. Name any courts you have passed or been to in KZN.

The Constitution of South Africa

The legal system in South Africa is a single hybrid (mixed) legal system, made up of
different sources that are guided by and subject to the Constitution. The Constitutional
Court, in the case of Pharmaceutical Manufacturers Association of South Africa: In the
case of Ex Parte President of the Republic of South Africa (2000: para 44) stated that

“there is only one system of law. It is shaped by the Constitution which is the supreme
law, and all law, including the common law, derives its force from the Constitution and
is subject to constitutional control”.

The Constitution of the Republic of South Africa Act 108 of 1996 is legislation. It is the
highest authority in the country- it is the supreme law. It sets out the rules on how
South Africa must be governed. It sets out the rights of citizens. All citizens, including
the President, the legislature and the courts, are subject to this supreme Constitution
and cannot act against it. All laws and conduct are subordinate to the Constitution and
will be unconstitutional and invalid if they are in conflict with the Constitution.

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The Constitution is divided into 14 Chapters that provide a framework on how South
Africa operates.

Chapter 1 contains the founding provisions and the supremacy clause.

Section 1: founding provisions in which South Africa is defined as one, sovereign,

democratic state based on principles of human rights, constitutional supremacy, the
rule of law and the right to vote.

Section 2: The supremacy clause which provides that the Constitution is the Supreme
Law of the Republic. If any law is in conflict with the Constitution, it can be set aside
by the Constitutional Court. This Court's function is to interpret, protect and enforce
the provisions of the Constitution.

Chapter 2 contains the Bill of Rights which explains the civil, political, economic, social
and cultural human rights of the people of South Africa. These provide for equality
before the law, the right to life, human dignity, and freedom of speech, press and
religion amongst others. The human rights contained in the Bill of rights are divided
into three categories.

1ST GENERATION RIGHTS

 Rights a person is entitled to because he/she is a human being
 Includes the rights to equality, freedom, life, freedom of speech, assembly and
association, amongst other rights.
 Government has a negative obligation not to act in a way so as to violate these
rights.

2NDGENERATION RIGHTS
 Based on the idea that first generation rights are closely connected with the
social conditions of individuals
 Also called socio-economic rights
 Includes the rights to housing, food, education, healthcare
 Government has a positive duty to secure all these basic social goods for its
citizens
 In South Africa the Constitution provides that the government must provide
access to the various socio-economic rights.
 A right of access is not a direct right to some socio-economic benefit.

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 The government has an obligation to pass laws and take other measures that it
can afford for the progressive realisation of the various socio-economic
rights.
 This means that a person cannot demand that government provides him/her with
free education, housing, health care etc.
 Government’s only obligation is to provide access to these rights, depending on
whether government has the resources to do so, and government is not forced
to provide these benefits on demand; it may do so over a period of time.

3RD GENERATION RIGHTS

 Right to a safe and protected environment
 Rights to a sustainable environment
 A safe environment is one in which people are not exposed to hazards such as
pollution
 The right to a sustainable environment means that our environment must be
taken care of and our natural resources must be used in a manner so as to still
be available for future generations

The legal framework established by the Constitution directs the courts to promote the
values that underlie an open and democratic society based on human dignity, equality
and freedom in interpreting the Bill of Rights (Section 39(1)(a)).

Jurisprudence and legal theories in interpreting the Constitution

and the law

The Constitution established a foundational legal framework for the introduction of

democracy in South Africa and the creation of a transformed society. Legal theories
have been adopted to aid in the interpretation and application of the law within the
Constitutional framework. Two legal theories are:

Transformative Constitutionalism

A popular legal theory for interpreting and applying the Constitution is known as
Transformative Constitutionalism. The term was first used by Karl Klare in 1998 and
has been used in academic literature, the jurisprudence of the courts and civil society.
Klare (1998: 150) views the Constitution as introducing a project of transformative
constitutionalism which he explains as a

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“long-term project of constitutional enactment, interpretation and enforcement
committed (not in isolation, of course, but in a historical context of conducive political
developments) to transforming a country’s political and social institutions and power
relationships in a democratic, participatory, and egalitarian direction”.

The case of Rates Action Group v City of Cape Town (2004: para 100), confirmed the
South African Constitution is a transformative constitution that provides a

“mandate, a framework and to some extent a blueprint for the transformation of our
society from its racist and unequal past to a society in which all can live with dignity”.

The judgment of the court, in City of Johannesburg v Rand Properties (Pty) Ltd (2006:
para 51-52), also held that the South African Constitution is a transformative
Constitution.

Ubuntu

Ubuntu has been characterised as a typically African concept, and has been
incorporated into the South African legal system (Radebe and Phooko 2017: 239),
thus providing a point of entry for South African law, to embrace African values and
ideas (Bennett 2011: 32).

From a legal perspective, Ubuntu as a concept, is largely accepted as not easily

definable (Mokgoro 2011: 1). Ubuntu has been explained as an African philosophy
that embraces the essence of what it means to be human, by incorporating respect,
moral virtue, compassion and an interconnected and cohesive society, in which the
interests of the vulnerable are prioritised, and individuality is combined with
communitarianism (Mokgoro 2011: 2; Radebe and Phooko 2017: 239-240).

Despite concerns that Ubuntu is difficult to define; it has been adopted by the courts
into the South African legal system. Du Plessis (2017: 92-93) notes that, should
Ubuntu assist in making value judgments, it is necessary to establish what values
define Ubuntu, by determining how it has been interpreted and applied by the court.

Ubuntu was introduced into the jurisprudence of the Constitutional Court in the case
of S v Makwanyane (1995). In her judgement, the judge described and explained
Ubuntu as follows:

“Ubuntu expresses itself in umuntu ngumuntu ngabantu, describing the significance of

group solidarity on survival issues so central to the survival of communities. While it
envelops the key values of group solidarity, compassion, respect, human dignity,
conformity to basic norms and collective unity, in its fundamental sense it denotes
humanity and morality. Its spirit emphasises respect for human dignity, marking a shift
from confrontation to conciliation”.

Justice Langa (para 224), in his judgement in the same case, also explains important
aspects of Ubuntu:

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“It is a culture, which places some emphasis on communality and on the
interdependence of the members of a community. It recognises a person's status as
a human being, entitled to unconditional respect, dignity, value and acceptance from
the members of the community [that] such person happens to be part of. It also entails
the converse, however. The person has a corresponding duty to give the same
respect, dignity, value and acceptance to each member of that community. More
importantly, it regulates the exercise of rights by the emphasis it lays on sharing and
co- responsibility and the mutual enjoyment of rights by all”.

In the case of Pharmaceutical Society of South Africa and Others v Tshabalala-

Msimang and Another; New Clicks South Africa (Pty) Ltd v Minister of Health NO and
Another (2005: para 38), Ubuntu was described as based on relationships requiring
mutual respect.

These judgments all emphasise the importance of community, together with respect
and dignity, as values that need to inform the behaviour of people while interacting
with one another. Justice Langa refers to the importance of “sharing”, “co-
responsibility” and “mutual enjoyment” of rights by everyone.

The application of Ubuntu within the law of contract was addressed in the case of
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (2012). In
accordance with Ubuntu, this judgment reaffirmed the importance of relationship,
community and the principle of good faith in contractual dealings. The court held:

“the values embraced by an appropriate appreciation of ubuntu are also relevant in

the process of determining the spirit, purport and objects of the Constitution”.

The court further held:

“Ubuntu is highly desirable and in fact necessary to infuse the law of contract with
constitutional values, including values of ubuntu, which inspire much of our
constitutional compact. On a number of occasions in the past this court has had regard
to the meaning and content of the concept of ubuntu. It emphasises the communal
nature of society and “carries in it the ideas of humaneness, social justice and fairness”
and envelopes “the key values of group solidarity, compassion, respect, human
dignity, conformity to basic norms and collective unity”.

Activity: to be answered in the tutorial

1. What is the symbol of justice?
2. Explain why this symbol represents justice.
3. Name one place where we can expect to see this symbol displayed.
4. Discuss the importance of the Constitution to South Africa.
5. Access the Constitution and read it.
6. Discuss three human rights that you consider important to you from the Bill of
Rights.
7. Explain the terms transformative constitutionalism and Ubuntu within the South
African context.

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Activity: Information to be gathered outside of contact time and discussed during the
tutorial.

1. Briefly explain the different sources of law and provide an example of each
source.
2. What is the Constitution?
3. What is the Bill of Rights?

Tutorial exercise

Using the law to protect rights in the HIV/AIDS pandemic

The law has been important in the HIV/AIDS pandemic. It has been used to provide
protection in many areas of life for those whose lives have been infected and affected.
The following is an example of how different sources of law have been used.

Legislation
The following Acts of Parliament can be explained and discussed as a source of law.

1. The Constitution of the Republic of South Africa 108 of 1996

Chapter 2 contains the Bill of Rights. The following rights have been important in
the context of the HIV/AIDS pandemic:
The right to equality and non-discrimination (section 9)
The right to human dignity (section 10)
The right to freedom and security of the person (section 12)
The right to privacy (section 14)
The right to fair labour practice (section 23)
The right to healthcare and social security (section 27)
Class exercise

1. Read the Bill of Right contained in the Constitution.

2. Identify six rights that are important in the context of HIV/AIDS.
3. Draw a table with each of these rights and explain how these rights can be
used to assist people living with HIV/AIDS.

2. The Labour Relations Act 66 of 1995

The LRA reinforces Section 23 of the Constitution which states that everyone has the
right to fair labour practice. The LRA (including the Code of Good Practice) is important
in respect of

1. Protecting employees from unfair labour practices

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2. Protecting employees against unfair dismissals by ensuring dismissals are
substantively and procedurally fair and listing certain dismissal as automatically
unfair dismissals.
Further, the problems that may be experienced by HIV positive people in the
workplace:
People with HIV may start to become ill with AIDS. They may finish their sick leave
and their capacity to work may be affected. The employer may dismiss on grounds
of incapacity. However, the principle of “reasonable accommodation” allows for the
adaptation of circumstances to assist employee to continue working.

Class exercise

1. Peter is HIV positive. He is fit and healthy and is able to perform his duties at work.
He tells the company he works for that he is HIV positive. Two weeks later he is
dismissed. Peter believes he was dismissed because he disclosed his HIV status.
Discuss in terms of the provisions of the LRA.
2. Sizwe is employed as an electrician in a large chemical factory. Sizwe is HIV
positive. He is regularly ill and can no longer perform the work he was employed
to do.

2.1 Explain whether Sizwe can be dismissed.

2.2 If so, what process must be followed?

3. The Employment Equity Act 55 of 1998

The aim of this Act is to create an environment of equality and non-discrimination in

the workplace. It was the first Act to provide that employers may not unfairly
discriminate against employees because of their HIV status.

No person may unfairly discriminate against an employee/job applicant in any

employment policy or practice based on the listed grounds, unless it is an inherent
(essential) requirement of the job. It may be an inherent requirement of a paramedic/
firefighter/ lifesaver’s work not to have a physical disability due to the physical nature
of the work they are required to do.

Comparison of listed grounds

Bill of Rights Employment Equity Act

Race, gender, sex, Race, gender, sex, pregnancy,
pregnancy, marital status, marital status, family
ethnic or social origin, colour, responsibility, ethnic or
sexual orientation, age, social origin, colour, sexual
disability, religion, orientation, age, disability,
conscience, belief, culture, religion, HIV status,
language and birth conscience, belief, political
opinion, culture, language
and birth

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It is unfair discrimination to use HIV status to:
Demote/ fail to promote an employee
Preventing an employee from accessing training and development due to their HIV
status
Unfair distribution of employee benefits such as medical aid and pension fund.

Testing of an employee to determine the employee’s HIV status is prohibited unless it

is considered justifiable by the Labour Court (Section 7). This section includes job
applicants, regular testing of existing employees and employees who may be required
to take an HIV test prior to promotion or training. Employers who wish to test
employees for HIV need to approach the Labour Court for an order declaring the HIV
testing justified in the employers workplace.

Class exercise

1. Compare the listed grounds contained in the Bill of Rights and those in the
Employment Equity Act.
2. Which Act was passed first?
3. Discuss possible reasons why the listed grounds were expanded in the EEA.
4. Compare the inherent requirements of the following types of employment: typist,
nurse, firefighter, teacher.
5. Phindile has been working for the same company for six years. She is hardworking
and dedicated. Fellow employees believe that she is due for a promotion. She tells
the company that she is HIV positive. The following month the person who works
under her in the department is promoted to the position she was expecting to get.
6. Zanele is young and ambitious. The company that she has been working for has
regular training programs to assist employees to improve their skills in the
workplace. Zanele has attended the training in the past and has been promoted as
a result. She tells the company that she is HIV positive. The next time she requests
to attend a training program her request is denied. Zanele believes that this is due
to the fact that she is HIV positive.

7. HIV as a story about stigma

World café exercise
Divide into groups of 4 - 6

1. Write the word stigma in the centre of the page.

2. List 3 other words for stigma.
3. Each member of the group to draw a picture about a story relating to
stigma and HIV/AIDS and share the story with the group.
3. Using the sources of law discussed, provide examples of legal protection
offered to people who have been stigmatised.

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4. Basic Conditions of Employment Act 137 of 1993

The aim of the Act is to set minimum working standards for all employment
relationships. The following sections of the Act are important to assist people living
with HIV/AIDS.

1. Leave provisions in respect of annual leave, sick leave and family responsibility
leave.
2. The right to confidentiality. HIV status is private, there is no legal duty to
disclose a persons status to an employer. ( See the Constitution, right to
privacy)
3. Medical professionals cannot disclose the HIV status of patient to his/her
employer without the consent of the person.
4. Medical certificates cannot disclose HIV without the consent of patient. It need
only state illness and not injury.
5. Working hours, overtime, daily and weekly rest periods and meal intervals.
Class exercise/assessment
Judith is HIV positive. She is able to perform her duties in terms of her contract
of employment but needs to ensure that she takes her medication as
prescribed, lives a healthy lifestyle, including rest and exercise. Discuss how
the provisions of the BCEA ensure that Judith is able to achieve this.

Judicial precedent (case law)

The role of the courts in interpreting and implementing the law. The
following cases are interesting to discuss:

Hoffman v South African Airways, 2001(1) SA 1 (CC)

The Constitutional Court had to decide whether SAA had violated Hoffman’s
constitutional right to equality, dignity and fair labour practice. Hoffman had applied
for a job as a cabin attendant. He was refused the job after testing HIV positive on
a test required by SAA. The court held “The denial of employment to the appellant
because he was living with HIV impaired his dignity and constituted unfair
discrimination” It was held that SAA had discriminated against Hoffman and the
discrimination was unfair, based on the medical evidence. Being HIV negative was
not an ‘inherent requirement’ (essential to do the work) of working as a cabin
attendant.

Joy Mining v NUMSA (2003)

The Applicant proposed voluntary and anonymous HIV testing for its employees in
order to determine the incidence of the disease and be in a position to deal with
the pandemic. Application was made to the Labour Court for order granting
permission to test HIV status in terms of section 7(2) of the Employment Equity
Act.

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The court was required to determine whether the proposed testing for HIV was
justifiable. It was held that regard needed to be had to the EEA/Code of Good
Practice: Key Aspects of HIV/AIDS (2000), the factual circumstances of each case,
the prohibition of unfair discrimination, the need for HIV testing, the purpose of test
and the general testing procedures for medical testing.
Further, the following are conditions the Labour Court can set:
• Pre- and post-test counseling
• Procedures to ensure confidentiality of test results
• Period for which testing is permitted
• Which employees can be tested
• NOTE: If employer does not have a court order permitting HIV testing-
employee can refuse to be tested.

Cass exercise

1. Ivan is HIV positive, he applies for work as a computer programmer. He is

advised that he needs to have an HIV test as part of the application process.
Ivan refuses and he is told that as a result his application for employment will
not be considered.
2. Discuss the manner in which the law is applied and interpreted in the cases
above.

Topic: Fields/branches of law and the

difference between civil and criminal
law
Learning outcomes for week 4 and 5

At the end of this section the student will be able to:

1. Recognise the different fields/branches of law

2. Recognise the difference between civil and criminal law.
3. Compare the different purpose of civil and criminal law.
4. Recognise the elements of a crime.
5. Understand the purpose and function of arrest and bail.
6. Summarise the steps in a criminal trial.
7. Describe the different sentences that can be imposed.
8. Explain the factors taken into account in sentencing a person convicted of a
crime.
9. Discuss the purpose of punishing the accused.
10. Understand the purpose of civil law.
11. Compare the difference in the burden of proof between a civil and criminal case.

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Life scenario

Andile has recently graduated from DUT. He purchased a new

motor vehicle. On his way home from his date with Thandi, another
motor vehicle went through a red robot and collided with Andile
and Thandi. The motor vehicle was driven by Mandla who was
drunk. Andile’s vehicle was badly damaged and both Andile and
Thandi had to be transported to hospital.

Reading

Chapter 13
Chapter 20

Fields or branches of law

Traditionally, the law has been divided into separate branches or compartments, to
assist in the analysis and application of legal principles within and between branches
that make-up the legal framework or system

There are different types of laws, each regulating different types of relationships or
issues. Below is a brief description of the different fields of laws.

FIELD OF LAW WHAT IT REGULATES

Public International law International law regulates the relationship amongst
different countries
National law National law is the law that applies within a country
only.
Constitutional Law Consists of the rules which regulate how a
government in a country is instituted, organised and
government’s exercise of powers
Administrative Law Consists of the rules which regulates how the
executive organs of government must be organised
and use their powers to run a country

25
Criminal Law Consists of the rules which describe what conduct is
a crime and the kinds of punishment which must be
imposed by the State
Civil Procedure Consists of rules regulating the procedure which must
be followed to institute a civil case in a court
Criminal Procedure Consists of rules regulating the procedure which must
be followed to institute a criminal case in a court
The Law of Evidence Regulates how evidence is presented in court and
what types of evidence may be used to prove the facts
in a court case
The Law of Persons Consists of rules which determines when a person has
becomes a legal subject, and when he stops being a
legal subject under law
The Law of Family Consists of rules which regulate certain aspects of
Relations family relationships
The Law of Personality Consists of the rules which regulates the rights that a
person has in respect of his personality
The law of Property Regulates the relationship of people with regard to the
different types of property that they may have rights
to.
The law of Things Regulates the relationship of people with regard to
physical things, in which they may have rights
The law of Succession Regulates what happens to an estate when a person
dies
Intellectual Property Law Regulates the rights and obligations a person has in
respect of intellectual property [creations of the
intellect which have monetary value]
Mercantile Law Regulates all types of commercial relationships
Labour Law Regulates all aspects of the employment relationship.
The employment relationships regulated in labour law
include the relationship between an individual
employer and employee, as well as collective labour
relationships such as those between trade unions,

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employer organisations and other workplace forums
and organisations representing employees
Private International Law Regulates which national law will be applicable in a
court case where more than one private law system is
involved
Interpretation of Statutes Regulates how laws which are ambiguous or unclear
must be interpreted
Indigenous Law Non-specialised legal systems which apply within a
particular community
Information Technology Regulates the use of information technology systems
Law and its effect on all categories of law

Difference between civil and criminal law

CIVIL CRIMINAL

Main aim Compensation for the person who has Punishment of accused
suffered damages

Parties Plaintiff vs Defendant (1st case) State vs Accused

Applicant vs Respondent (Appeal)

Burden of Balance of Probabilities Beyond a reasonable

proof doubt

Judgments In favor of the Plaintiff or Defendant Guilty or not guilty

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How to cite (refer to) reported cases:

1. Criminal: criminal cases fall into the subdivision of public law because the State is
represented in the proceedings. Firstly, the police investigate the case and then
the Public Prosecutor presents the evidence in court to the Magistrate or Judge
who will make a decision.

S v Makwanye 1995(2) SACR1 (CC)

State
Versus Accused year Court where case is heard- this is the Constitutional Court

2. Civil: civil cases fall in the subdivision of private law. The case is between
individuals.

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA)

Applicant versus Respondent Year Court where case is heard- Supreme Court of Appeal

This is an appeal case, the parties are referred to as the Applicant and Respondent.
If it was a case going to court for the first time the parties would be called the Plaintiff
and the Defendant.

Right of access to courts

The Constitution provides everyone with the right of access to courts. Section 34
states:

Everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.

Class exercise: Group exercise

Using the news, find three cases that are in court at the moment and discuss the
following:

1. Criminal/ Civil case?

2. Who are the parties involved?
3. What is the case about?
4. What court is the case in and why?

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Criminal law
The purpose of criminal law

The purpose of criminal law is to punish behaviour that is regarded as “wrong” by

society. There is no one definition of types of behaviour that are considered “wrong”
or “criminal” because what is considered “criminal” is defined by many different values
within a society – moral, social and legal.

South Africa has a high crime rate which affects everyone. Factors such as poverty,
inequality, unemployment, lack of education, breakdown in family structures and
morals and the influence of television, films and computer games do affect the crime
rate.

The elements of a crime

All crimes have elements that make certain behaviour a crime. A crime is only
committed if all the following elements are present.
ELEMENTS OF A CRIME

ACT OR
OMMISSION

UNLWFULNESS

FAULT

CAUSATION

1. Act or omission

Most crimes occur when a person commits an act that is against the law. A person
can also be guilty of a crime for failing to act or do something (omission), if there is
legal duty on them to act.

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2. Unlawfulness

The act or omission must be unlawful (against the law).

3. Fault (blameworthy state of mind)

Fault can either take the form of intention or negligence. Criminal intention means that
the person intended the crime and knew that his or her act was wrongful. Negligence
is similar to the concept of carelessness.

4. Causation
It is necessary to prove a link between the action of the accused person and the crime
committed.

Section 12 of the Constitution:

Freedom and security of the person

12. (1) Everyone has the right to freedom and security of the person, which includes
the right—

(a) not to be deprived of freedom arbitrarily or without just cause;

(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.

The Constitution gives arrested people the following rights:

 the right to be informed of the reason for his or her arrest.

 the right to remain silent. This means that the only information an arrested
person has to give to the police is his or her name and address.
 a right to choose, and consult with a lawyer.
 the right to be brought before a court as soon as is reasonably possible, but
not later than 48 hours after the arrest.

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Section 35 of the Constitution
Arrested, detained and accused persons
35. (1) Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used
in
evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later
than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48
hours expire outside ordinary court hours or on a day which is not an
ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to
reasonable conditions.

(2) Everyone who is detained, including every sentenced prisoner, has the
right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this
right promptly;
(c) to have a legal practitioner assigned to the detained person by the state and
at state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a court and, if
the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including
at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment; and
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(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of
this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and
at state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is
not practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that
person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the time
that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that
information must be given in a language that the person understands.

32
(5) Evidence obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the trial unfair
or otherwise be detrimental to the administration of justice.

Arrest and bail

An arrest is a serious interference with a person’s freedom. Therefore an arrest is

only lawful when it is allowed by law and follows proper procedures. The powers of the
police to arrest a person are controlled by the Criminal Procedure Act and the
Constitution.

A warrant of arrest is a document that gives a police officer the power to arrest a
person and bring him or her before a court. A Magistrate or Judge must issue the
warrant of arrest. There must be a reasonable suspicion that the person to be
arrested committed the crime.

A police officer may only arrest a person without a warrant if the police officer
witnessed a crime or if he is acting upon a reasonable suspicion that the person
committed a serious crime.

Bail

A sum of money paid by the accused to the State. It is paid to allow the arrested
person to be released from prison, it a “deposit” to make sure that the person will come
to court during the trial. If the person does not arrive in court on the date of the trial,
and remain in attendance for as long as the trial lasts, the money paid as bail will kept
by the State. Bail will be returned if the person appears in court.

33
The accused may also be released on warning. This means that the accused is
warned by the Magistrate or police officer to return to court on the day of the trial,
without having to pay bail. It is often applied to young accused people who are
released into the custody of their parents. The Magistrate or police officer will consider
the following facts when deciding whether to release the accused on bail or on
warning: the type of crime, the accused’s family and community relationships, financial
and employment situation, previous criminal record

Criminal Procedure
In terms of the Constitution every accused person has the right to a fair trial. This
involves a number of rights:

(a) be informed of the charge in enough detail to be able to prepare a defence

(b) have time and facilities to prepare a defence

(c) a speedy and public trial

(d) to be present when tried

(e) to remain silent

(f) to be represented by a lawyer; and, if the accused cannot afford a lawyer, have
lawyer provided at State expense.

34
Steps in a criminal trial

Arrest/ Bail

Charge

Plea of Guilty Plea of Not Guilty

Judgment Trial

Guilty State Case

Sentence Defence Case

Appeal or Review Judgment

Guilty Not Guilty

Sentence Acquitted

Appeal or Review

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Sentencing

The court takes the following factors into account in determining the appropriate
sentence.
 The seriousness of the offence
 The interests of the Community
 The circumstances of the accused ( criminal record, and his/ her social, medical,
educational and employment background,)
 Aggravating and mitigating factors
 Aims of punishment

A Magistrate or Judge may choose from one or more of the following sentences:

1. Caution and discharge: This is one of the most lenient sentences: Here the
criminal is warned that he or she should not commit the offence again and is
discharged without any penalty.
2. Postponed sentence: The court may delay the passing of sentence for up to 5
years on condition the criminal agrees to do or not do certain things. At the end of
the period laid down by the court, if the criminal is not convicted of any crime and
has carried out the conditions he or she will be “discharged”. This has the same
effect as if the accused had been found “not guilty” except that it is recorded as a
“previous conviction”.
3. Suspended sentence: A sentence is given but the convicted person is not
required to serve all of it, provided he or she is not guilty of a similar crime during
the period of the suspension. Eg: a person may be sentenced to 4 years
imprisonment, 3 years of which is suspended on condition that the accused is not
convicted of a similar crime during the next 5 years.
4. Fine: An amount of money that a criminal must pay to the court.
5. Compensation and restitution: Where the criminal has caused damage or loss
of property, the victim may ask the court to order the criminal to pay compensation
for the lost property or to return the property. (“restitution”).
6. Imprisonment: The criminal is sentenced to a period of time in prison.
7. Periodical imprisonment: A court may sentence a convicted person to a certain
number of hours in prison a week or on week-ends.

36
8. Committal to an institution: A criminal who is addicted to alcohol or drugs may
be detained at a rehabilitation centre.
9. Correctional supervision: Normally includes house arrest, monitoring and
community service.

The purpose of punishing an accused is to achieve the following:

1. Retribution: It takes the form of revenge to pay back the criminal for his
wrongful act. Retribution is used by the courts to show society’s disapproval of
what the criminal has done.
2. Deterrence: The court takes into account that the punishment may deter
(discourage) the criminal from committing another crime in future. It may also
act as an example to deter other people from committing crimes.
3. Rehabilitation: Based on the idea that criminals can be helped to overcome
the social, educational or psychological problems that caused them to commit
crimes. They can be encouraged to become responsible members of society.
4. Incapacitation: The criminal is put in prison. The court decides it is necessary
to protect society by separating the criminal for the community.
5. Restoration compensation: Paid to the person injured by the crime.

Activity: Questions to be answered in the tutorial.

The police arrest Mandla for driving under the influence of alcohol and reckless
and negligent driving. Mandla hears that you have done the module Law for
Life at DUT and comes to you for advice. Advise him about the following:
1. Explain whether this would be civil or criminal case.
2. Who would present the case against Mandla?
3. What is Mandla referred to as during the trial?
4. What is the purpose of arresting Mandla?
5. Mandla is granted bail of R1000. Explain the purpose of bail. Assume Mandla
is found guilty. Is he entitled to the return of the R1000 bail he paid?
6. Discuss the steps to be followed in a criminal trial in order to help Mandla in
what to expect.
7. Assume Mandla is found guilty of driving under the influence of alcohol. Explain
to him what factors the court would take into account when sentencing him and
list the possible sentences he could receive.

37
8. Assume Mandla is fined R150 000. Who would receive this money?

Civil law
The purpose of civil law

When one party violates or threatens the rights of another, such as breach of contract,
the injured party can approach the court for financial compensation in the form of
damages. Civil law is a branch of private law as the case is between private citizens.

Activity: Questions to be answered during tutorial.

1. If Andile wants to claim the cost of repairing his motor vehicle would he institute
a civil or criminal claim against Mandla?

Topic: Law of insurance

Life scenario

See weeks 4 and 5

Learning outcomes for week 6

At the end of this section the student will be able to:

1. Understand the purpose of insurance.

2. Explain the concept of risk and transferring risk.
3. Recognise the duties of the insurer and insured in a contract of insurance.
4. Interpret and apply the concepts of ‘insurable interest’, ‘premium’ and ‘doctrine
of subrogation’ in a contract of insurance.
5. Explain and apply the principles of over insurance, under insurance and double
insurance.

Reading

Govindjee,A., Holness, D., Driver, S., Etsebeth, V., Horsten, D., and Keep, H. 2011.
Commercial Law 2 fresh perspectives. Cape Town: Pearson.

Chapter 9

38
Purpose of insurance

There is always a risk that our possessions, such as furniture, motor vehicles, cell
phones or computers will be lost, stolen or damaged. The concern is that we will not
have enough money to replace these items. We therefore insure our possessions.
Insurance is a way to protect our possessions against theft, loss or damage.

Insurance contract

Insurance is a contract between the insurer and the insured. The insured pays a sum
of money called the premium to the insurer. In return the insurer insures his or her
interest against future unforeseen events. The insurer takes responsibility for the risk
of theft, loss or damage of the possessions.

The risk

The specified uncertain event is known as the risk. A contract of insurance transfers
the risk from the insured to the insurer. In return for payment of the premium the
insurer undertakes to bear a certain risk for the insured. Therefore a contract of
insurance transfers risk from the insured to the insurer.

Types of insurance

1. Indemnity: the amount for which the insured is covered is related to the actual loss
that he or she suffers. Insurance is protecting the insured against future financial loss
or damage. If loss or damage occurs, the amount of compensation is intended to return
the insured to the same financial position he or she was in previously. Indemnity
insurance includes motor vehicle insurance and householders insurance.

2. Non-indemnity: the amount for which the insured is covered is not related to the actual
loss. An agreed amount of money is paid to the insured when the risk occurs. Life
insurance is an example of non-indemnity.

Insurable interest

The insured must have a financial interest in the thing inured. This means that he or
she must stand to lose something of value if the object insured is destroyed.

Issues to be aware of

1. Over-insurance

The insured places too high a value on the item to be insured. The additional premium
paid is wasted because the insurer will compensate the insured based on the actual
value of the item.

2. Under-insurance

39
The insured takes out insurance that does not cover the value of the item. This may
be done to pay a lower premium. The insurer will reduce the compensation paid to the
insured by the extent to which the item is under-isured.

3. Double insurance

The insured insures the same thing with more than one insurer. The insurers are only
liable to pat the actual value. The insured has wasted the additional premium.

4. Doctrine of subrogation

This allows the insurer to recover the amount of damages, from the wrongdoer once
the insurer has fully settled the insured’s claim. The insured can choose to claim either
from the insurance company or from the person who caused the damage. He or she
cannot claim from both and be compensated twice for the loss suffered.

Activity:

1. Andile’s motor vehicle is worth R130 000 but he inures it for R250 000.What is
this called? What amount can Andile claim from the insurer of his motor
vehicle?
2. Andile insures is vehicle for R65 000 because he cannot afford to pay premiums
on the actual value of the motor vehicle, R130 000. What can Andile claim from
the insurer of his motor vehicle?
3. Andile insures his motor vehicle with two insurers. Can he claim from both of
them
4. What type of insurance is the motor vehicle insurance?
5. Can Andile claim for the damage to his motor vehicle from both the insurance
company and Mandla?
6. Mandla insures Dumi’s motor vehicle. He never drives this vehicle. Does he
have an insurable interest?

Topic: Road Accident Fund

Learning outcomes

At the end of this section the student will be able to

1. Explain the effect of the Road Accident Fund on the common law.
2. Understand the purpose of the Road Accident Fund.
3. Access and complete the relevant RAF forms.
4. Understand the concept of damages.
5. Classify and explain the different types of damages that may be claimed.

Reading
www.raf.co.za

40
The Road Accident Fund Amendment Act, 2005 came into operation on the 1 August
2008 and applies to motor vehicle accidents which happened after 31 July 2008. A
levy from every litre of fuel and diesel sold in South Africa is the main source of income
for the RAF compensation scheme.

The purpose of the Act is to pay compensation for personal loss or damage
wrongfully caused by the driving of a motor vehicle. This system indemnifies the driver
or owner of a motor vehicle against liability incurred as the result of the loss or
damaged wrongfully caused to another person in road accidents. This means that
Andile would not have a civil claim against Mandla for the injuries he sustained as a
result of the accident. He would claim from the fund.

The RAF is only responsible for paying compensation for loss or damage due to bodily
injury or death. The RAF does not pay for any loss or damage to property, such as
damage to motor vehicles. This means that Andile would have to lodge a civil claim
against Mandla for the damage to his motor vehicle.

Compensation paid by the RAF

The RAF will pay both special damages and general damages.

Special damages are paid for monetary losses that have been, or will be suffered,
such as past and future hospital, medical and related expenses; past and future loss
of earnings and past and future loss of support: capped at a maximum of R160 000
per annum and funeral expenses.

General damages are paid as compensation for loss of amenities of life, pain and
suffering, disability and disfigurement to persons who have suffered bodily injury in a
motor vehicle accident. General damages are now limited only to cases where a
serious injury has been suffered. An injury will be assessed as “serious” if the injury
results in 30% or more impairment of the Whole Person as provided for in the
American Medical Association Guides (“AMA Guides”). If an injury does not result in
30% or more Impairment of the Whole Person, such an injury may only be assessed
as serious if that injury resulted in a serious long term impairment or the loss of a body
function; permanent serious disfigurement; severe long-term mental or severe long-
term behavioral disturbance or disorder; or resulted in the loss of a fetus.

Activity
Access the RAF website via www.raf.co.za.
Download the form that Andile would use to claim for the injuries he suffered.

1. Explain what Andile can claim from the fund?

2. Can Andile claim the cost of repairing his motor vehicle from the fund?
3. Where are the offices of the fund in KZN?

41
Topic: Contract
Learning outcomes for week 8

At the end of this section the student will be able to:

1. Understand the difference between a valid contact and a void contract.

2. Explain the consequences of a valid and void
3. contract.
4. Recognise and apply the eight essential elements of a valid contract.
5. Recognise a breach of contract.
6. Explain and apply the remedies available in the event of a breach of contract.

Life scenario

Beulah enters into an agreement with Pravin. In terms of their

agreement Beulah agrees to sell her laptop computer to Pravin for
an amount of R5 300.

Reading

Chapter 16 pages 272-279

Additional reading:

Govindjee,A., Holness, D., Shirk,A., S., with Hutchings,C. 2011. Commercial Law 1
fresh perspectives. Cape Town: Pearson.

Chapter 3 to 12

Every day people enter into agreements or contracts. Buying a loaf of bread, a car,
opening a bank account, catching public transport or even getting married. All of these
are examples of agreements. However, not every agreement is a contract. If one of
the essential requirements for a valid contract is absent, there is no contract (even
though it is called a void contract.) No rights and duties therefore arise from such an
agreement and it is not enforceable. An obligation or duty may be defined as a legal
bond in terms of which the party or parties on one side have a right to a performance
and the party or parties on the other side have a duty to render that performance.

42
An obligation creates a relationship between two or more parties. The party who has
a right to claim performance is the creditor. The party who is obliged to render
performance is called the debtor. In most contracts parties are both a creditor and a
debtor.

Valid contract
This is a contract which comes into existence between two or more persons and which
complies with all the requirements for a valid contract. A valid contract gives rise to the
obligations/duties and rights for the parties to the contract. A valid contract is
enforceable in a court of law.

Void contract
If one or more requirements for the formation of a valid contract is not present, the
agreement is called a void contract. No contract comes into existence and no
obligations arise out of a void contract. A court cannot enforce a void contract. A void
contract is also called an invalid contract.

Voidable contract
This is a contract which comes into existence between two or more parties and which
complies with all the requirements of a contract. It is a valid contract. The contract can
be avoided because the requirement of consensus has been obtained in an improper
manner. The aggrieved party has the choice to continue with the contract, in other
words to treat the contact as valid or terminate the contract, in other words to treat the
contract as void.

A contract is

"A lawful agreement, made by two or more persons within the limits of their contractual
capacity, with the serious intention of creating a legal obligation, communicating such
intention, without vagueness, each to the other and being of the same mind as to the
subject matter, to perform positive or negative acts which are possible of
performance."

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The essential requirements for a valid contract
For a contract to be valid it must meet the following requirements:-

1. The contracting parties must have the serious intention to conclude a

contract
The requirement for serious intention is that the parties must intend that binding legal
relations flow from the agreement. If they do not, agreement is not a contract. The
following are not binding legal contracts:

1. Agreements of a social nature (here it is not intended that rights and duties should
result from the agreement). Intention is lacking.

2. Where serious intention is lacking because of sarcasm and jest.

3. Agreements entered into for an ulterior motive where the parties do not intend to
be bound.

4. When the parties agree that there will be no contractual consequences.

2. There must be consensus between the contracting parties

This is the process of negotiation between the parties in order to establish the terms
of the contract. The parties must make each other aware of their intentions, and so
communication must pass between them. The communication can be spoken,
written or tacit (by conduct). A contract is formed when a definite offer is made by
one party, and there is a definite acceptance of it by the other party.

3. The contracting parties must have contractual capacity

Contractual capacity is the ability of a person to enter into a contract. The extent of a
person’s contractual capacity is dependent upon his age, state of mind and the law.

General rule: everybody has full contractual capacity. However, there are groups
who have limited contractual capacity. These people need to be assisted to enter
into contracts.

Certain persons have limited contractual capacity and any supposed contract will be
void. Minors, married persons and mentally ill persons have limited contractual
capacity.

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4. The conclusion, performance and object of the contract must be lawful
Agreements will be lawful unless the subject matter or content is prohibited by statute
or common law. Examples of unlawful contracts:
Agreeing to kill someone
Selling illegal drugs

5. Performance must be possible and ascertainable at the time the contract is

entered into
A contract is void if, at the time it is entered into, or after the contract has been entered
into,(i.e. supervening impossibility of performance) performance is, or becomes
impossible.
The agreement must not be so vague that its meaning cannot be ascertained by the
court.
There is no contract if the parties are not in agreement as to the material terms of
their agreement. If a mistake is made, the contract is void.

6. Any prescribed formalities for the contract must be met

Generally, in terms of the common law, there are no formal requirements for a valid
contract, an oral or even a tacit agreement will be a valid contract. However, certain
Acts of Parliament require that formalities are observed for a valid contract to come
into existence.

The formalities that apply in our law are:

Writing - the parties' signatures and possibly witnesses.

Notarial execution: this is the execution of a written contract before a notary public.

Registration: An entry is made in a register kept by the State.

If in an agreement one or more of the above requirements for a valid contract is

missing, then the agreement will not be a valid contract.

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Breach of contract
There is a valid contract but one of the parties has failed to do what they agreed to do
in terms of the contract. There are different types of breach of contract.

The types of breach of contract are as follows:

1. Mora debitoris- is a breach of contract by the debtor in a contract which occurs

when he/she fails to render performance on time.
2. Mora Creditoris - is the failure of the creditor to accept proper performance when
tendered by the debtor and is only possible if the debtor requires the co-operation
of the creditor in order to perform.
3. Repudiation - Repudiation is a notice given by the debtor that he will not comply
with or continue to comply with his obligation/s in terms of the contract. The notice
of repudiation may be express [in writing or verbally] or tacit [by conduct].
4. Rendering performance impossible-Performance in terms of a contract may be
rendered impossible when one of the contracting parties either by his act or
omission, has caused the performance to become impossible.
If the creditor in a contract sues the debtor for rendering performance impossible
he must prove that performance is in fact impossible and there was fault on the
part of the party who rendered performance impossible
5. Positive malperformance - There are two forms of positive malperformance.
The debtor performs, but the performance is inappropriate, incomplete or defective
or the debtor does something which he may not do in terms of the contract.

Remedies for breach of contract

The remedies available depend upon whether there is breach of an essential or non-
essential term.

Breach of an essential term of the contract: The injured party may either treat the
contract as cancelled, or sue for damages, or he may abide by the contract, sue for
specific performance, and claim for damages.

Breach of a non-essential term of the contract: The injured party is not entitled to treat
the contract as cancelled, but may claim damages suffered as a direct result of the
breach.

Termination of contract
The contract is valid and there has been no breach of contract. The contract comes to
an end naturally.Contracts may be terminated in one of the following ways:

1. Fulfilment of performance - A contract is terminates automatically when

contracting parties have rendered proper performance in accordance with the
contract.

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2. Set-off - When both contracting parties owe each other money, the debts can be
weighed against each other and set-off or cancel each other. If the amounts are
equal, the debt is extinguished, and the contract is terminated.
If one debt is larger than the other, the smaller debt is extinguished and the larger
debt is reduced proportionately.

3. Merger- Merger occurs when the capacities of the debtor and creditor in a contract
are united in the same person; i.e. their capacities merge or join.
The debt is extinguished because a person cannot as debtor owe something to
himself as creditor.

4. Agreement - Contracting parties may terminate their contract through mutual

agreement. Both contracting parties agree to cancel the contract

5. Novation - Novation terminates a contract when contracting parties agree to

replace their old contract with a new contract.

6. Supervening impossibility of performance- Supervening impossibility of

performance occurs when performance is possible when the contract is entered
into but becomes objectively impossible after conclusion of the contract. A contract
will terminate because of supervening impossibility only if the impossibility of
performance occurred because of circumstances beyond the control of the
contracting parties. Therefore impossibility of performance must be caused by
either vis major or casus fortuitus.

7. Insolvency - A person is an insolvent only if he is declared as an insolvent by a

court of law.Once a court grants an order declaring a person to be insolvent, the
powers over his assets vest in the Master of the High Court and then later in a
curator. The curator of an insolvent estate may determine whether to continue with
or terminate any contracts which the insolvent person had entered into before he
became insolvent.Not all contracts are terminated by insolvency. The effect of
insolvency on a contract also depends on the type of the contract.

8. Death - Death of a contracting party does not usually terminate a contract.

The rights and the obligations created in the contract pass to the deceased estate.
Contracts of a personal nature are terminated by death.

9. Prescription- The passing of time has an influence on contracts. Prescription or

the passing of time results in certain debts created in terms of a contract to
terminate.

Activity: Questions to be answered in the tutorial

47
1. List the essential requirements for a valid contract.
2. What does it mean if an agreement is a valid contract?
3. What does it mean if an agreement is a void?
4. Read the life scenario and answer the following questions:

Beulah: Rights:

Duties:

Pravin: Rights:

Duties:

5. How do we know whether an agreement is a valid contract or whether it is void?

6. What does the term “breach of contract” mean?
7. Distinguish between an essential and non-essential term.
8. Explain the remedies available in the event of breach of contract.
9. Explain five ways in which a contract may terminate.

Marriage
Learning outcomes

At the end of this section the student will be able to

1. Interpret and compare the different marital regimes applicable in South Africa.
2. Compare civil and customary unions.
3. Compare same sex life partnerships with civil unions.

Life scenario

Andries meets Phumi and falls in love with her. He wants to marry
her. However, he is already married to Joyce.

Reading

Chapter 14 pages 252-260

In South Africa marriage is regulated by the Matrimonial Property Act No 88 of 1984.

The Act abolished marital power in respect of all marriages entered into before and
after the commencement of this Act. The effect of the abolition of marital power is that
the restrictions on the capacity of the wife to contract and to litigate have been

48
removed. Marriages in terms of this Act are referred to as civil unions. There are three
types of civil unions:

 Marriage in community of property

 Marriage out of community without or excluding accrual
 Marriage out of community with accrual

A person’s estate is made up of liabilities and assets. Assets are what we OWN and
liabilities are what we OWE.

Assets (Own) Liabilities (Owe) Debts

Furniture Accounts
Car Credit card
House Overdraft
Computer Mortgage bond
Money Credit Agreement
Clothing Loans

Marriages in community of property

Parties are automatically married in community of property unless they enter into
an ante-nuptial contract. The parties have one joint estate and assets in the joint estate
and are owned equally by both spouses in undivided shares.
1 joint estate ``

Assets/liabilities

Husband Wife
Half house Half house
Half furniture Half furniture
Half debt Half the debt

Both parties have the same power to dispose of the assets of the joint estate, to
contract debts against the joint estate, and to manage the joint estate. Unless it is an

49
activity for which the consent, or the written consent, of the other spouse is required,
spouse in a community of property marriage may perform any legal act regarding the
joint estate without the consent of the other spouse.

Legal acts for which the written consent of the other spouse is required are:
1. The alienation or mortgaging of immovable property which forms part of the joint
estate.
2. The selling, ceding, pledging of shares, insurance policies, Mortgage bonds, or
investment by the other spouse in a financial institution which forms part of the
joint estate.
3. The withdrawing of money held in the name of the other spouse in an account in
a banking institution, or Post Office Savings Bank.
4. Credit receiver in a credit agreement defined in the Credit Agreements Act.
5. Purchase of land.
6. Surety.

Legal acts for which the consent of the other spouse is required are:

1. Selling of furniture or other things of the common household forming part of the
joint estate.
2. Receiving money due or accruing to the other spouse or joint estate by means
of remuneration, earnings, royalties and pensions.

3. Donation to a third person of an asset of the joint estate.

Agreements entered into without the consent of the other spouse are, as far as a third
party is concerned, presumed to have been entered into with the consent of the other
spouse where the other person does not know or cannot reasonably know that the
consent was not obtained, as required by the Act.

On dissolution of the marriage each party is entitled to half of the joint estate.

Marriages out of community of property

If the parties wish to be married out of community of property they need to enter into
an ante nuptial contract before the marriage. An ante nuptial contract is a contract that

50
needs to comply with certain formalities. It must be in writing and signed by a notary
public and registered in the Deeds Office.

The parties each have their own estates.

2 separate estates

Husband’s estate Wife’s estate

Assets Assets

Liabilities Liabilities

Every marriage out of community of property in terms of an ante nuptial contract which
excludes community of property and community of profit and loss, and which is
entered into after the commencement of the Act is subject to the accrual system,
unless the ante nuptial contract expressly excludes the accrual system.

Without accrual

Each party has their own separate estate for which they are responsible.
On dissolution of the marriage each party receives their own separate estate.

With accrual

Each party has their own separate estate.

On dissolution of the marriage, the spouse whose estate shows no accrual (increase)
or a smaller accrual than the estate of the other spouse (or his estate, if he is
deceased) has a claim against the other spouse, or his estate, for an amount equal to
half of the difference between the accrual of the respective estates of the spouses.

Assets may be excluded from the accrual system in terms of the ante nuptial contract.

An inheritance, legacy or donation which is given to a spouse during the marriage

does not form part of the accrual of his or her estate, unless the parties agree

51
otherwise in their ante nuptial contract, or unless the testator (person writing the will)
or donor states otherwise.

The Act makes provision for determining the value of estates at the commencement
and dissolution of the marriage.

If a spouse married under the accrual system satisfies the court that the court that the
conduct of the other spouse is seriously prejudicing his or her right to share in the
accrual of the estate, the court may order the immediate division of the accrual.

EXAMPLE

Andile and Nobuhle get married:

At the time they get married, Andile’s estate is worth R 50 000.00 and Nobuhle’s
estate is worth R 100 000.00

When Andile and Nobuhle get divorced:

Andile’s estate is worth R 100 000.00

Nobuhle’s estate is worth R 500 000.00

The amounts Andile’s and Nobuhle’s estates therefore grew during the marriage (the
amount accrued to their estates) are:

Andile’s estate: R 100 000.00 – R 50 000.00 = R 50 000.00

Nobuhle’s estate: R 500 000.00 – R 100 000.00 = R 400 000.00

The amount Nobuhle’s estate grew more than Andile’s estate. She had the biggest
accrual.

Accrual to Nobuhle’s estate is R 400 000.00

Accrual to Andile’s estate is R 50 000.00

Difference in accrual/increase is R400 000 – R50 000 = R 350 000.00

Amount Andile’s is entitled to (50% of the difference between the accrued amounts):

R 350 000.00 ÷ 2 = R 175 000.00

Nobuhle must give Andile R175 000 (R400 000-R175 000= R225 000)

Andile gets R175 000 from Nobuhle (R50 000 + R175 000 = R225 000)

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Customary Marriage
Before 1998 customary marriages were not generally recognised as legal marriages
in South Africa. They allowed polygamy which was in conflict with the definition of
marriage in South Africa. The Recognition of Customary Marriages Act 102 of 1998
now provides legal recognition of any customary marriage entered into before or after
the Act. The status of married women who had entered into customary marriages was
in conflict with the equality clause of the Constitution, and in order to ensure their
equality legislation was enacted. This Act grants the wife of the customary marriage
equal status with her husband. A customary marriage is deemed to be one of
community of property and of profit and loss, unless the consequences are excluded
by an ante nuptial contract.

The Act states that if a person is a spouse in more than one customary marriage, all
valid customary marriages entered into before the commencement of this Act or after
the commencement of this Act, are for all purposes recognised as marriages.

Customary marriages are marriages in terms of the Customary law of South Africa.
Customary marriages allow polygamy, i.e. they allow one man to have more than one
wife. Such marriages have been formally recognised in South Africa since 1998 by the
Recognition of Customary Marriages Act 120 of 1998.

Same sex partnerships

Since 2006, marriages between persons of the same sex are recognised in South
Africa by the Civil Union Act 17 of 2006. Homosexual and heterosexual couples can
get married in terms of this act and the effect of such a marriage is similar to that of
civil marriages (heterosexual marriages in terms of the Marriage Act 25 of 1961).

South Africa is one of the few countries to give legal protection and marriage benefits
to partners in same-sex relationships. The legislation was passed as a result of the
Constitutional Court decision in the case of Minister of Home Affairs v Fourie. The
Court stated that the lack of the legal recognition of same-sex relationships was
unconstitutional and gave Parliament one year to develop a remedy that would allow
same-sex partners to formalise their relationships.

The Civil Union Act 17 of 2006 was passed. The definition of marriage was changed
to allow same sex couples to get married. Homosexual marriages are now recognised
as legal marriages in South Africa.

A "Civil Union" in Section 1 of the Act, is described as "the voluntary union of two
persons who are both 18 years of age or older, which is solemnised and registered by
way of either a marriage or a civil partnership.

53
The preamble to the Act states as follows:

Civil Union Act 17 of 2006

PREAMBLE

WHEREAS section 9(1) of the Constitution of the Republic of South Africa 1996.
provides that everyone is equal before the law and has the right to equal protection
and benefit t of the law;
AND WHEREAS section 9(3) of the Constitution provides that the state may not
unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and
birth;
AND WHEREAS section 10 of the Constitution provides that everyone has inherent
dignity and the right to have their dignity respected and protected;
AND WHEREAS section 15(1) of the Constitution provides that everyone has the right
to freedom of conscience, religion, thought, belief and opinion;
AND WHEREAS the rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom;
AND NOTING that the family law dispensation as it existed after the commencement
of the Constitution did not provide for same-sex couples to enjoy the status and the
benefits coupled with the responsibilities that marriage accords to opposite sex
couples.

Activity:

To be done during the tutorial

1. Name two pieces of legislation you have studied in this section.

2. Discuss one court case you have studied in this section. What type of source
of law is this?
3. Refer back to the life scenario at the beginning of this section and discuss
whether Andries can marry Phumi.
4. Imagine you are married in community of property and your spouse wants to
divorce you. What would you be entitled to?

54
5. Imagine you are married out community of property without accrual and your
spouse wants to divorce you. What would you be entitled to?
6. What do you need to do to be married out of community of property?
7. Imagine you are married out community of property with accrual and your
spouse wants to divorce you. You were both students when you got married
and had no assets. Your estate is now worth R450 000 and your spouse’s
estate is worth R650 00. What would you be entitled to?
8. In KZN what is the custom relating to marriage?

Succession
Learning outcomes

At the end of this section the student will be able to

1. Recognise the difference between testate and intestate succession.

2. Understand and apply the rules of intestate succession
3. List the requirements for a valid will in South Africa.
4. Describe the process of the administration of a deceased estate.
.

Life scenario

A man dies leaving three wives and eight children.

Reading

Chapter 14 Pages 260-264

The law of succession regulates what happens to a person’s estate after they die. A
person’s estate is their assets and liabilities. A person can either die testate which
means with a will or intestate which means without a will

55
Estate
Assets/liabilities

TESTATE
WILL INTESTATE
NO WILL

Testate succession
If a person dies and leaves behind a will, they die testate and their estate is wound up
in accordance with the provisions of their will.

South African common law upholds the principle of freedom of testation. This means
that a person making a will can leave his or her assets to whomever he or she chooses.
There are however limitations to the principle of freedom of testation.

In South Africa, there is no obligation on a parent to leave his or her estate to his or
her children. However, minor children do have a right to be maintained by their parents
and the minor child would have a maintenance claim against the deceased parent’s
estate before the heirs could receive the residue of the estate.

56
A spouse can be disinherited, but the Maintenance of Surviving Spouse’s Act 27 of
1990 states that a spouse may in certain circumstances lodge a claim for maintenance
against the deceased spouse’s estate.

Anyone over the age of 16 years, who is mentally capable of understanding the nature
and effect of what they are doing can make a will.
The rules of testate succession apply where the person has died leaving a valid will.
In order to be valid it must comply with the Wills Act 7 of 1953.

A will has to be in writing and comply with the following:

1. the will must be signed at the end thereof by the testator or by some other
person in his presence and by his direction; and
2. the signature must be made by the testator or by such other person or is
acknowledged by the testator and, if made by such other person, also by such
other person, in the presence of two or more competent witnesses present at
the same time; and
3. Such witnesses must attest and sign the will in the presence of the testator and
of each other and, if the will is signed by such other person, in the presence
also of such other person; and
4. if the will consists of more than one page, each page other than the page on
which it ends, is also signed by the testator of by such other person anywhere
on the page;

A competent witness is anyone over the age of 14 years who can give evidence in
court.

Intestate succession
If a person dies without a valid will, they die intestate and the rules of intestate
succession contained in the Intestate Succession Act 81 of 1987 apply.

Before the decision in the case of Bhe and Others v Magistrate Khayelitsha and
Others, 2005 (1) SA 580 (CC) the rules of intestate succession did not apply to black
people who died intestate and were married according to customary law. Now, the
estates of all persons, who die intestate, irrespective of race are governed by the
Intestate Succession Act 81 of 1987.

Rules of intestate succession in terms of the Intestate Succession

Act 81 of 1987:
1: The deceased leaves a spouse or spouses, but no descendants: the spouse or
spouses are the sole heirs. If the deceased was a husband in more than one
customary union, the surviving spouses will inherit the estate in equal shares.

57
When spouses are married in community of property the estate must first be divided
in half before the rules of intestate succession can be applied. The surviving spouse
will receive half because of the marriage and the other half will devolve according to
the rules of intestate succession.

2: If the deceased does not leave a spouse but leaves descendants: the descendants
inherit per stirpes and representation is allowed. All the deceased’s children are able
to inherit, whether they were born from a civil marriage, customary marriage, adopted
or illegitimate.

3: If the deceased leaves a spouse or spouses and descendants: The spouse or

spouses inherit R125 000 per spouse or a child’s share, whichever is the larger. The
descendants will inherit the residue per stirpes and representation is allowed.

4: If the deceased leaves no spouse or descendants but leaves both parents who are
still alive: the parents will inherit in equal shares.

5: If the deceased leaves no spouse and no descendants but leaves one parent and
the deceased parent left descendants: the surviving parent inherits half, and the
descendants of the deceased parent inherit the other half.

6: If the deceased leaves no spouse or descendants but leaves one surviving parent
and the deceased parent did not leave any other descendants: the surviving parent is
the sole heir.

7: If the deceased does not leave a spouse, descendants or parents, but the parents
both leave descendants: the descendants of the deceased parents will inherit the half
shares that would have been inherited by their parents.

8: If the deceased does not leave a spouse, descendants or parents, and only one of
the deceased parents has descendants, these descendants will be the sole heirs.

9: If the deceased does not leave a spouse, descendants, parents or descendants of

the parents: the nearest blood relative will inherit.

10: If the deceased dies intestate without leaving any person capable of inheriting: the
Executor will pay the deceased’s debts, and the residue will then be paid into the
Guardian’s Fund. If nobody is able to prove they have a claim to the estate of the
deceased after 30 years, the money will go to the state.

Administration of the deceased estate

In terms of the Administration of Estates Act, 66 of 1965, if a person dies in South
Africa then his or her estate must be reported to the Master of the High Court within
14 days after their death. The duty to report the estate rests on the surviving spouse
or the nearest relative who lives in the area where the death occurred.

58
Documents required when reporting a deceased estate:

Death notice

Death certificate

Original will or next of kin affidavit

Preliminary inventory

Acceptance of trust

Procedure

The administration of the deceased estate is done by the Executor under the
supervision of the Master of the High Court. The Executor takes control of the
deceased’s estate. He or she collects the assets, pays all the creditors and
administration costs, and then transfers the legacies to the legatees and the residue
of the estate to the heirs of the deceased. Where the deceased left a valid will, the
legatees and heirs are determined in the will. If there is no valid will the heirs are
determined in accordance with the rules of the Intestate Succession Act, 81 of 1987.

The estate of the deceased is frozen, and no-one may withdraw funds from the
deceased’s bank accounts or deal with any of the estate assets without permission
from the Master of the High Court. If the deceased was married in community of
property, the joint estate is frozen.

Activity:

To be done during the tutorial.

1. Discuss in groups: Who is considered to be a spouse for purposes of intestate

succession? Look at polygamous customary marriages in KZN and same-sex
marriages.

2. Discuss in groups: Who is considered to be a child for purposes of intestate

succession?

3. Answer the following questions regarding who would inherit from the deceased,
using the rules of intestate succession. Make use of diagrams to assist you.

3.1 Debbie was the only wife of Piet to whom she was married in community of
property. Piet died. They had no children. Their joint estate was worth R550.

3.2 Debbie was the only wife of Piet to whom she was married out community
of property. Piet died. They had no children. His estate was worth R550.

59
3.3 Debbie, Thandi and Verona were married to Piet. They had no children
Piet died. His estate was worth R550.
3.4 Debbie was the only wife of Piet to whom she was married out
community of property. Piet died. They had three children, who are all
still living. His estate was worth R550.
3.5 Debbie was the only wife of Piet to whom she was married in community
of property. Piet died. They had two children, who are all still living. Their
joint estate was worth R550.
3.6 Debbie, Thandi and Verona were married to Piet. They had four
children who are all still living. Piet died. His estate was worth R1000
000.
3.7 Debbie was the only wife of Piet to whom she was married in community
of property. Piet died. They had two children, one of whom has died.
Their joint estate was worth R1000 000.
3.8 Piet was never married. Both his parents are still alive.
3.9 Piet was never married. Both his parents are deceased. He has a brother
named Paul.

4. Discuss the requirements for a valid will and draft a simple will for yourself. If
you have minor children ensure they are provided for.

5. Emily leaves a valid will. In her will she makes no provision for her husband to
whom she is married out of community. She leaves her estate to the SPCA.
Explain whether she can do this.

6. Busi dies. She lives with her husband and children. Who must report her estate
and to whom? What documents will need to be submitted?

7. Bheki’s wife is very ill. He is married to her in community of property and they
have one joint bank account. What should he do to ensure he will have money
to live should his wife die?

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Glossary
Please refer to:

Multilingual Glossary of commercial terms. 3rd ed. Cape Town: Pearson.

Week 1 – 3: Introduction

Bill of Rights: Human rights protected by the Constitution.

Common law: Development of law over time.

Constitution: The supreme law of South Africa. A set of principles guiding how a
country should be governed.

Ethics: Rules which distinguish between right and wrong or good and bad behaviour.
They guide how a person or group should behave. Informally enforced.

Judicial Precedent: A system which allows for continuity, because by judicial officers
following the precedent of established cases, like cases will be treated alike, and
people will make their actions according to the established law.

Jurisdiction: The power or authority a court has to hear certain cases.

Law: Law is a form of social control. Law is backed by the State and is enforced by
the courts.

Legislation: Law made by the government.

Morals: Standards of behaviour not enforced by the government. Informally enforced.

Statute: Law passed by Parliament.

Week 4 – 5: Criminal and Civil law

Accused: A person accused of a crime in a criminal trial.

Appeal: Challenge of a court decision based on the facts of the case.

Balance of probabilities: The standard of proof required in a civil case. Is the parties
account probably true?

Beyond a reasonable doubt: The standard of proof required in a criminal case.

Breach of contract: A party to a contract fails to do what they agreed to in terms of

the agreement.

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Civil procedure: The procedure followed in a civil trial.

Criminal procedure: The procedure followed in a criminal trial.

Contract: A valid agreement between parties resulting in legally enforceable rights.

Defendant: A person who answers the claim of the plaintiff in a civil case.

Plaintiff: A person who makes a claim against another person in a civil case.

Remedy: An action taken in the event of a breach of contract.

Review: Challenge of a court decision based on the procedure followed in the case.

Valid: Not every agreement is a contract. If one of the essentials for a valid contract
is absent, there is no contract (even though it is called a void contract.) No rights and
duties therefore arise from such an agreement.

Void: See above

Week 6: Insurance

Insurance: A contract of insurance transfers risk from the insured to the insurer.

Insurable interest: The insured must have a financial interest in the thing inured.

Insurer: Person who transfers their risk.

Insured: The person who takes the risk.

Premium: A sum of money paid by the insured to the insurer.

Risk: The specified uncertain event.

Week 9 – 11: Marriage

Accrual: Increase in value of estate during course of marriage.

Estate: Assets and liabilities.

Week 13 – 15: Succession

Executor: He or she is responsible for the administration of the deceased estate.

Guardian: .A person who is appointed to look after and is legally responsible for
someone who is unable to manage their own affairs e.g minor children

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Heir: Heirs receive the residue or remainder of the estate after the debts,
administrative expenses and legacies have been paid.

Legacy: A legacy is a specific asset which is left to a named person called the legatee.
E.g “I leave my computer to my best friend Dumi.”

Trust and Trustees: The testator may direct that his assets are left for the benefit of
persons not yet ready to take ownership thereof. E.g. minor children. Assets will be
put in a trust and a trustee will be appointed to take care of the assets until the
beneficiaries are old enough to take control of the assets.

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