SECTION A: INTRODUCTION TO LAW (15 MARKS)

Question 1

Explain the Sources of Law

Answer 1

• “Mixed” jurisdiction.
• Law is not collected & specified in codes as done in many European countries.
• Conduct of citizens & the state governed by legislation & common law under supremacy of the Constitution.

Question 2

What are the Sources of Law

Answer 2

1. Common Law
2. Legislation
3. The Constitution
4. International Law

Question 3

Explain Legislation

Answer 3

• The primary source of law.
• Acts of parliament, regulating specific matters, e.g. Labour Relations Act 66 of 1995 (LRA) or Basic Conditions of Employment
  Act 75 of 1997 (BCEA).
• Laws contain broad provisions establishing procedures. Regulated in more detail focusing on practical implementation, e.g. Employment Equity Act 55 of 1998 (EEA).

Question 4

Explain The Common Law

Answer 4

• The secondary source of law.
• Common law is residual (can be relied on unless overridden or excluded by legislation).
• Set of principles developed by South African Courts over decades, initially drawing on Roman-Dutch and English law.
• Unwritten, but contents become clear as courts consistently applied the same legal principles to the cases that came before, e.g. Law of Contract is found in the common law.
• Remains an important & binding source of law.

Question 5

The Law of Contract

Answer 5

• Found in Common Law.
• No statutes setting out requirements of valid & binding contract.
• Terms are implied in the employment contract.
• Employees under common law, have duty to act in good faith.
• Employers obliged to remunerate employees for work & provide - safe working conditions.

Question 6

Explain The Constitution of the Republic of South Africa (1996)

Answer 6

• It is the Supreme Law.
• Framework against which all other laws must be measured.
• If laws don’t conform to requirements of constitution, they can be struck down.
• NB! Party to dispute may rely directly on fundamental right in the Bill of Rights only in exceptional cases. If there is legislation, party must show court that this is unconstitutional before they can rely on rights contained in the Constitution.

Question 7

International Law

Answer 7

• The Constitution makes it clear that provisions of the Bill of Rights must be interpreted with reference to International Law.
• Foreign Law can also be relied on where appropriate.
• This means that international instruments (conventions & recommendations of the International Labour Organisation) have a role to play in determining the content of labor rights in the Bill of Rights.

Question 8

Subjective Law

Answer 8

A right which a person has to something, i.e. ownership of a house or car.

Question 9

Explain Divisions of Subjective Law

Answer 9

• Real Rights: Rights to a thing, ownership of a house, book, watch.
• Immaterial Property Rights: Rights enjoyed by a legal subject on the
  creations of his mind, e.g. invention, painting, or poem.
• Personality Rights: Right to good name, dignity & bodily integrity.
• Personal Rights: Claim against another to perform an obligation
  stemming from contract, delict, or unjust enrichment.

Question 10

What is a Subjective Right?

Answer 10

A legally protectable interest, held by a legal subject (person or company) to a particular legal object, against other legal objects.

Question 11

Name the 4 kinds of Subjective Rights.

Answer 11

1. Real Rights
2. Immaterial Property Rights
3. Personality Rights
4. Personal Rights

Question 12

Definition: Obligation

Answer 12

A legal tie between two or more persons by which one can claim performance from the other (to do/deliver/refrain from doing something), and the other is obliged to perform.

Question 13

The sources of obligation are:

Answer 13

1. Delict.
2. Contract.
3. Unjustified enrichment.

Question 14

NB!

Definition: Delict

Answer 14

• A culpable, wrongful act by a person (wrongdoer) that causes patrimonial loss to another or impairs their personality.
• A delict is also known as a wrongful act.
• There is an important distinction between a delict and a crime.

Question 15

Delict (destinction)

Answer 15

• Purpose of private law: to protect personal interests.
• Delict gives rise to private law action that 1 person can institute against another.
• Purpose of delictual action: To allow victim to claim compensation from wrongdoer for the loss/injury caused.
• Social policy requires: Everyone has to bear loss that he/she suffers (damage rests where it falls).
• To assist persons who suffer losses, acknowledged legal obligation between person suffering loss and another person causing it would allow former to recoup losses from the latter by instituting a delictual/contractual claim.

Question 16

Crime (destinction)

Answer 16

• Purpose of criminal law (as part of public law): To maintain order in the interest of the general public.
• A crime is an illegal culpable act.
• The state can prosecute a person for a crime that he committed & punish him for his violation of the public interest.
• these sanctions are punitive and entail imprisonment, payment of a fine, or other punishment, e.g. community service.
• When an accused is sentenced to pay a fine, the amount falls into the State fiscus’ doesn’t compensate a person prejudiced by the accused’s crime.
• A traffic accident caused by a person’s negligence gives rise to both criminal (the offense of reckless/negligent driving) and civil (based in delict) liability.

Question 17

NB!

Elements of a Delict

Answer 17

Each of these elements must be presented before a person can be held liable in a delict:
1. Act
2. Wrongfulness (unlawfulness).
3. Fault (intent or negligence).
4. Causation
5. Patrimonial Loss / Impairment of Personality.

Question 18

3 Delictual Remedies

Answer 18

1. Actio Legis Acquiliae
2. Actio Injuriarum
3. Action for pain and suffering

Question 19

Actio Legis Acquiliae

Answer 19

• Can be instituted to claim damages for pecuniary (financial) loss caused by all forms of culpable conduct.
• Claim can be ceded (surrendered) to another person since it’s concerned with recovery of patrimonial damage to an estate.
• The right to claim from the wrongdoer can be transferred to another person, enabling him to recover the amount from the wrongdoer.

Question 20

Actio Iniuriarum

Answer 20

• Satisfaction can be claimed for the intentional impairment of one’s personality.
• Purpose: To provide injured party with personal/psychological satisfaction for the intentional injury to their bodily & mental integrity.
• Action bound to the injured party & cannot be ceded to another.
• Awards are assessed according to what is right & fair under the circumstances.

Question 21

Action for Pain & Suffering

Answer 21

• Where the impairment of person’s personality was caused by negligent conduct, a special action of germanic law origin may be instituted for the recovery of satisfaction from pain & suffering.
• The amount of satisfaction is for the personal benefit of the injured party.
• The action cannot be ceded to a third party.

Question 22

NB!

Definition: Contract

Answer 22

• An agreement (based on consensus between legal subjects who have the capacity to do so, which is lawful, physically possible & complies with prescribed formalities) reached with the intention of creating a legal obligation with resulting rights & duties.
• It gives rise to a legal obligation.
• A social appointment between parties does not constitute a contract between them.

Question 23

NB!

Explain 5 requirements for the Conclusion of a Contract

Answer 23

1. Consensus: Parties must have corresponding intentions.
2. Contractual Capacity: Must have the capacity to be able to form legal contracts.
3. Lawfulness: Must be lawful, not go against common & statutory law.
4. Physical Possibility & Certainty: Must be objectively possible, determinable with certainty.
5. Formalities: Must comply with formalities prescribed by Law.

Question 24

Name 3 Types of Contracts

Answer 24

1. Contracts which are Null and Void.
2. Voidable Contracts.
3. Unenforceable Contracts.

Question 25

Contracts which are Null & Void

Answer 25

- If 1 or more contract requirements are absent, no contract, consequently no legal obligation can come into being. - No contract exists at all. E.g. when parties do not have the contractual capacity or there is no consensus because one party is making material and reasonable error, The contract is void. - Contractual provisions in contravention of the Consumer Protection Act 68 of 2008 is void.

Question 26

Voidable Contracts

Answer 26

- When a contract can be set aside because of some defect in the process of concluding the contract, it is a Voidable Contract. - The defect must have been present at the time of conclusion. - Where parties reach a consensus but it was obtained improperly, e.g. misrepresentation, under the influence or duress, the consensus can be negated. - However, If the prejudiced party chooses to uphold it, it remains valid.

Question 27

Unenforceable Contracts

Answer 27

- When a contract creates a legal obligation that is recognized but not enforceable by law. - The law will not assist parties in enforcing contracts due to unsavory elements involved in the contractual process. - The contract is valid but unenforceable, e.g. when parties conclude a wager, the law will acknowledge the contract but no court order will be given to enable parties to enforce the contract.

Question 28

Requirement for the Conclusion of an Employment Contract

Answer 28

1. Consensus 2. Contractual Capacity 3. Legality 4. Physical Possibility 5. Formalities (The general rule is that no formalities are required. Contract may be concluded in writing/verbally/tacitly.)

Question 29

NB! Duties of the Employer

Answer 29

1. To accept the employee into service. 2. To provide the employee with work. 3. To pay the agreed remuneration (not less than minimum wage). 4. To provide safe working conditions. 5. To comply with statutory duties: - Constitution - Labour Relations Act (LRA) - Basic Conditions of Employment Act (BCEA) - Employment Equity Act (EEA) - Occupational Health & Safety Act (OHSA) - National Minimum Wage Act (NMWA)

Question 30

NB! Duties of the Employee

Answer 30

1. To make his/her personal services available. 2. Warrant their competence & efficiency. 3. To obey the employer. 4. Obligation of good faith. - avoid conflicts of interest. - not compete with employer. - refrain from dishonest conduct. 5. Exercise reasonable care when using the employer's property. 6. Refrain from misconduct.

Question 31

NB! Remedies Available to the Employer

Answer 31

1. Dismissal of Employee. 2. Specific performance. 3. Damages.

Question 32

NB! Remedies Available to the Employee

Answer 32

1. Cancellation of the employment contract. 2. Reinstatement. 3. Specific Performance. 4. Damages.

Question 33

NB! Delictual Liability of the Employer (Vicarious Liability)

Answer 33

Requirements must be met for employer to be held liable for Employee's action: 1. Employer/Employee relationship must exist. 2. Commitment of delict by employee. 3. Delict must be committed by employee in the course of the performance of his duties.