Part A - B Flashcards
(53 cards)
1
Q
Branches of government
A
- Legislative (Parliament)
- Executive(President,Ministers,Police force, Civil servants)
- Judicial (Courts)
2
Q
Functions of each branch of government
A
- Legislative - makes law (constitutional authority), national & provincial (pass acts of parliament), municipal (bylaws)
- Executive - implement & enforce law
- Judicial - interpret & apply law in disputes between S v Accused or Plaintiff v Defendant
3
Q
Court structure - levels of judicial branch of government
name all 5 in descending order of authority
A
- Constitutional Court (Appex Court)
- Supreme Court of Appeal
- High Courts
- Magistrate Courts
- Special cases courts
4
Q
Types of jurisdiction
Competence of a court to hear a certain kinds of matters between
A
- Subject matter jurisdiction - can only hear certain kinds of matters
- Geographic juristicdiction - can only hear certain matters in a certain area (where dispute arose or where defendant lives)
5
Q
Structure and authority of Constitutional Court (Jurisdiction)
A
- Geographic jurisdiction - WHOLE SA
- Subject matter jurisdiction - CONSTITUTIONAL AND GENERAL PUBLIC IMPORTANCE
- Decisions bind - SCA, HC, MC
- Types of cases - first instance & appeal
6
Q
Structure and authority of the Supreme Court of Appeal
A
- Geographic jurisdiction - WHOLE SA
- Subject matter jurisdiction - CONSTITUTIONAL, CIVIL, CRIMINAL
- Decisions bind - SCA, HC, MC
- Types of cases - appeal
7
Q
Structure and authority of High Courts
A
- Geographic jurisdiction - PROVINCIAL (2 OR MORE CAN REPORT TO ONE)
- Subject matter jurisdiction - CONSTITUTIONAL(EXCEPT BETWEEN ORGANS OF STATE), CIVIL, CRIMINAL
- Decisions bind - HC (LOWER AND EQUAL STANDING), MC
- Types of cases - first instance & appeal
8
Q
Structure and authority of Magistrate Courts
A
- Geographic jurisdiction - Regional and district
- Subject matter jurisdiction - CIVIL & CRIMINAL (EXCEPT MURDER, TREASON, RAPE)
- Decisions bind - SOMETIMES OTHER MC
- Types of cases - first instance
9
Q
Subject matter jurisdiction (Criminal, Civil, General Public, Constitutional)
A
- Criminal - common crimes part of written legislature. NPA decides if guilty
- Civil - disputes between persons (private law)
- General public importance - uncertain questions of law that are of general public importance (decision made during case)
- Constitutional - matters relating to constitution of country (abolition of death penalty - went against constitution (Right to life))
10
Q
Binding sources of SA Law
A
- Constitution (Super legislation)
- Legislation
- Common Law (Roman - Dutch law)
- African customary law
- Custom
- Customary International law
- Judicial precedent
11
Q
Constitution
A
- Supreme law
- Bill of Rights - can be limited when reasonable and justifiable
- Used when courts interpret any law - BoR must always be appreciated in decisions
12
Q
Legislation
2 types
A
Type 1 - Original legislation
- Authority derived from the constitution
- Acts passed by parliament (challenged if unconstitutional)
- Direct law-making power
Type 2 - Delegated
- Authority derives from the original legislation
- Regulations passed by ministers (challenged if unconstitutional or ultra vires)
13
Q
Roman - Dutch Law
A
- Common law - bedrock of family, customary, contract law
- Applied to SA as a Dutch colony
14
Q
African Customary law
A
- Customs and usages traditionally observed amongst indigenous African of SA and which form part of culture of these people
- Applied hand in hand with common law (can modify it where necessary)
15
Q
Custom
A
- Potential source of law if affected people aren’t indigenous Africans
- Requires that custom is:
1. Certain
2. Reasonable
3. Long-established (community regards principle as legally binding)
4. Uniformally observed
16
Q
Customary International Law
A
- Law that binds states (slavery, torture, genocide)
- Not binding on individual citizens unless specifically written into acts of law
17
Q
Judicial precedent
Stare Decisis, Provisos
A
- Interpreting, applying and developing laws
- Stare decisis (interpetation of law by a judge legally binding on other judges in further matters)
- Provisos:
1. Bound only by RATIO DECIDENDI (reason for decision), not OBTER DICTUM (incidental statements)
2. Order in which ratio decidendi is binding:
1. CC binding on all other courts (except self)
2. SCA (bound by itself and all other courts (except CC))
3. HC binding on HC of lower or equal standing in province, MC in province
4. MC follows all courts (HC in own province), or HC with higher standing, or when HC judgements are equal - follow most recent
18
Q
Types of rights
A
- Real right
- Right over things, ideas, property
- Absolute right (enforceable)
- Protected by law (prove that you have right over that thing)
- Includes ownership, usufruct (enjoy product (music), can’t use as own), praedial servitude (right to use part of the property) - Personal right
- Against people (pay damages, transfer ownership etc)
- Delict, breach of contract, personal servitude - Constitutional rights, intellectual property rights
19
Q
Legal persons
A
- Natural persons (human persons by virtue of being alive you have this right)
- Juristic
* Organisations and companies (registered with CIPC)
* Created by legislation
* Have perpetual succession
* Have real rights
Only persons have rights, duties and can be held accountable
20
Q
Branches of Law
Know main 3, with general knowledge of what they entail
A
Under NATIONAL LAW
1. Public Law
* Constitutional
* Adminstrative
* Criminal
- Private Law
* Family
* Contract
* Delict
* Property - Commercial Law
* Company
* Banking
* Insurance
* Competition
21
Q
Public International Law
A
- Law that applies between different states
- Treaties (binding laws binding 2 states)
- No legal framework - operates through conventions of treaties
- Different international courts for international offences
22
Q
Crime vs Delict - by definition
A
- Crime
wrongful conduct, specifically prohibited by common law (unwritten) or statute (written and cited when charged), punishable by state - Delict
any conduct which causes harm to the person, property, personality in circumstance where conduct was wrongful and culpable
23
Q
Crime vs Delict (when case brought forward)
A
- Crime
* Offense - specific
* Parties - S v Accused
* Evidence - beyond reasonable doubt
* Charge - punishment - Delict
* Offense - general duty
* Parties - plaintiff v defendant
* Evidence - on balance of probabilities
* Charge - compensation
24
Q
Elements of delict
A
- Wrongful conduct
Committed intentionally or negligently - causes harm - Wrongful
Commission - causing harm prima facie
Ommision - not prima facie, legally and socially accepted - Negligence
Test - reasonable person (defendant) would foresee possibility of harm and take steps to avoid it.
25
Marriages - Types of regimes
1. Civil
2. Customary
3. Religious
26
All marriages conducted by marriage officer - what are examples?
- magistrates
- priests
- ministers
- religious people
27
What is customary marriage?
Marriage in accordance with customary law, customs and usages traditionally observed among indigenous peoples of SA and which form part of the cultures of these people
28
Contents of customary marriage (validity, consent)
1. Validity
- Registered at home affairs by law, but elders can also give evidence to prove if all requirements met
2. Consent
- 1st wife must consent to marriage of subsequent wives otherwise marriages are invalid
29
Same sex marriage contents
Allowed as civil union (2006 act) but not under marriage act (1961act)
30
What are the 3 types of civil marital regimes
1. MICOP
2. MOCOP (A)
3. MOCOP
31
Describe nature of MICOP marital regime (include description of estates, distribution of gains during marriage, insolvency)
MICOP
1. Estates are joint from time of marriage. This means all assets acquired before and during marriage are shared
2. Consent of one spouse needed for acquisition of certain assets and debt during marriage.
3. When marriage dissolves, 50/50 split
4. Can have partial seperate estate (inheritance, donations, non-financial damages, excluded asset)
5. If estate insolvent - joint and seperate assets at risk
32
Describe nature of MOCOP marital regime (include description of estates, distribution of gains during marriage, insolvency)
MOCOP (must sign ANC to exclude accrual)
1. Estates are seperate from time of marriage. This means all assets acquired before and during marriage are seperate
2. No consent of one spouse needed for acquisition of certain assets and debt during marriage.
3. When marriage dissolves, each keeps own estate
4. If estate insolvent - seperate assets at risk
33
Describe nature of MOCOP(A) marital regime (include description of estates, distribution of gains during marriage, insolvency)
MOCOP (A)
1. Estates are seperate from time of marriage. This means all assets acquired before and during marriage are seperate
2. No consent of one spouse needed for acquisition of certain assets and debt during marriage.
3. When marriage dissolves, each keeps own estate
4. If estate insolvent - seperate assets at risk
5. ACCRUAL - spouse who has experienced larger financial gain during marriage must share with other (excludes inheritance,donations, non-financial loss, specified assets)
34
Accrual calculation
| steps to working out
1. Starting value of each spouses' estate (if no value given = 0)
2. Calculate growth for each
3. Calculate different in growth
4. Spouse with most growth must give half of difference to other spouse
35
Succession
| 2 types
Testate - with will written up (anyone could be included within reason)
Intestate - no will, government decides (usually goes to family)
36
Freedom and limits of testation
| Why do you have this freedom? What can limit it?
You have the right to choose beneficiaries because:
1. Right to Human Dignity (respected and protected)
2. Right to choose how to dispose of property you own
Limited if:
1. Publicy policy - wishes offend legal and moral beliefs of community
2. Children & spouses - deemed to need more than set aside for them (claim maintenance)
37
Intestate Succession - order of inheritance
1. Spouse and children inherit equal shares of estate (**PER STIRPES** - if one child predeceases parent, their children share their portion of the estate equally)
2. Parents and siblings are not entitled to estate (or claiming maintenance once estate is deceased) until they are the closest living relatives
3. If executor cannot trace any relatives - state gets estate
38
Intestate sucession - multiple partners/estate too small
1. Multiple spouses
Each spouses entitled to min claim from estate or child’s share (whichever is more and fits into allocated estate amount)
2. Estate too small
Spouse takes share, children entitled to maintenance
3. Polygynous marriage
Unless contract drawn, 1st wife MICOP, rest are MOCOP
39
What is required for a valid contract?
1. Contractual Capacity
2. Intention to contract
40
When is a contract void/voidable?
1. Mistake in contract
2. Misrepresentation, undue influence
3. Illegality
4. Impossibility of performance
5. Formalities
41
Contractual capacity
| Requirements and limits
1. Age
* Age of majority is 18+
* Legal right to enter contract
2. Marriage
* MICOP - gives rise to requirement of consent
3. Insolvency
* Limits CC
4. Intoxication
* Can limit CC
5. Mental illness
* Limits CC
42
Age - CC limits for minors
1. Who is a minor?
* Anyone under 18 (unless married)
2. Contractual capacity
* 0-7 years - no CC. Parents can enter contracts on behalf of child (binds child, parents exercise duties and rights in contract.
* 7-18 years - limited contractual capacity
3. Enter contract with assistance
* Permission of parent granted
* Minor bound unless contract inherently prejudicial (then both parties restored to start position before contract)
4. Enter without assistance
* CL (Common Law) contracts with minors
* CPA (Consumer Protection Act) contracts with minors
43
Common law contracts with minors
Between 2 private persons
* Called limping contract (major fully bound, minor's parents have election - ratify post- hock (give permission) or repudiate (end contract - get money back) )
44
CPA contracts with minors
1. Voidable
* Valid contract that one party has right to end if:
1. Consumer is unemancipated minor
2. No parental permission
3. Agreement not ratified
2. Permission
* Express permission
* Ratification
* Tacid emancipation
45
Contractual capacity of married persons (permissions needed)
MICOP
1. Verbal consent
* Sell furniture, household objects
* Receive money, income, pension due to spouse
* Receive insurnace proceeds of spouse
2. Written consent
* Sell valuable jewellery, coins, stamps, painting s (assets held as investment)
* Sell shares, stocks
3. Written consent & 2 Witnesses
* Sell immovable property
* Buy immovable property in instalments (e)
* Buy goods on credit (e)
* Stand surety (e)
_______________________________________________________
If you enter into contracts in ordinary course of business, permission not needed but estate still held liable
________________________________________________________
Other cases - contract void if 3rd party was aware that spouse was MICOP and had not received permission
46
Mental illness (what does it limit and how do you test for it?)
limits:
* contractual capacity (everyone 18+ assumed to have full mental capacity)
test:
1. question of fact. if parties entering into contract understand terms of contract - assumed to have full mental capacity
2. consider the moment in time when contract was entered into - was the person lucid?
47
Who carries burden of proof for mental illness?
1. Person who entered into contract/family/court appointed curator
2. If court declares you mentally incompetent - burden of proof falls on person trying to uphold contract
48
How to prove mental illness at time of entering contract?
Satisfy court on **balance of probability** that you lacked capacity at that time (medical records, witnesses etc)
49
Void of contract with mentally incompetent person
Once proven mentally incompetent - claim back amount other party was enriched at time you took legal action against them (unjustified enrichment)
50
Insolvency - by definition
question of law - HC must make order declaring you to be insolvent
51
Limitation of CC when insolvent
1. May not enter into any contract - dispose of property in estate
2. May not enter contract - adverse effect on insolvent estate, trade as general dealer without consent from trustee
3. If entered into such contracts - voidable at instance
52
Who can apply for insolvency and when would it be granted?
1. Person can request to be declared insolvent ( you are sequestrated and after a period you start over with no debts)
2. Creditor / debtor
3. Court will only grant insolvency if it will benefit creditor to grant insolvency
53
Intoxication
Question of fact.
Contract void: so intoxicated you dont remember entering contract/have no memory of terms
Contract valid: merely so intoxicated to the point where you were able to be more easily persuaded, or more reckless
