South African Law: What you should know

By François Smuts

An accessible and utterly readable guide to the South African legal system. This book provides expert answers to all your legal questions and addresses a comprehensive list of day-to-day issues such as:

Family law: from marriage through divorce to deceased estates

Money matters, such as buying, leasing and debt

Neighbour disputes

Rights in the workplace, including labour law and starting a business

Contracts and the traps they may contain

What to do when you are involved in an accident

Court procedures

This book not only explains the legal principles pertaining to these and many other aspects of South African daily life in simple, understandable language, it is also full of practical advice, and tells you where to go for help and how to keep legal costs down.

• Language: English
• Publisher: Tafelberg
• Release date: Jun 5, 2013
• ISBN: 9780624054405

François Smuts

François Smuts is an advocate at the South African Cape Bar, but in his time he has been a newspaper delivery boy, sales assistant in a book shop, security guard, medical student, salesman, manager and magistrate. He has an extensive legal practice and is passionate about making the law accessible to everyone: "This book is not written in the stuffy style of legal textbooks … my aim is to equip ordinary people with a basic working knowledge of the law."

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Patri mei, qui et canebat in catenis sicut mare.

INTRODUCTION

This is not a book for lawyers. You won’t find dry explanations of the legal principles relating to a specific topic here. And you will notice that it is not written in the funereal style of legal textbooks, because my aim in writing this book is not to make a name for myself as an academic. (I would never be able to make up all those lectures I missed at university.) In any event, once I started practising law, I learnt that most of the legal problems facing the average person do not involve subtle distinctions or complicated arguments. For that reason, the purpose of this book is to give ordinary people a basic legal toolbox that will enable them to understand the workings of the law and to take simple preventative legal action. Most of the problems about which I am consulted in my practice could be avoided by taking a few precautionary measures. For example, by putting a contract in writing and knowing what to insert in that contract; by knowing the correct procedure to follow before dismissing an employee; or by remembering to take a few photographs on your cellphone after a car accident.

This is therefore a book for the layperson. I am assuming that you possess some ability to think rationally, but I do not expect you to have a university qualification in logic in order to understand this book. I do not refer to court cases, except if it is a juicy story or if the case illustrates an important point. I use Latin only when it is interesting (or if I find it particularly poetic) and in such cases, I also say what I mean in plain English. I do not quote from textbooks, although at the end of this book I do provide a list of textbooks you can refer to if you want to know more about something I have touched on.

This book is not intended to be comprehensive or very detailed. So you will not find anything here about aviation law, mining law or something like the exceptio non adempleti contractus or the Turquand rule. I have rather tried to summarise those legal topics that the lay reader is likely to encounter.

But isn’t a little knowledge of the law a dangerous thing? Well, yes and no. Yes, in the same way that it is dangerous to start fiddling with the engine of your car if you aren’t qualified to do so. No, in the same way that it isn’t dangerous to check that there is water in the radiator, oil in the engine and petrol in the tank before you set out on a journey. Where does one draw the line between the two? That is something that you must decide for yourself, but I hope that this book will assist you in making that decision.

1

THE BASIC TOOLS

1.1 IS THE LAW REALLY RIGHT?

How old is the law? As old as humankind itself. There isn’t a history of a nation that isn’t also a history of the rules of how people interact with each other: what you may and may not do, and what the consequences are of breaking the rules.

The law is not just old, it is as broad as daylight. There isn’t a country that does not have a legal system and that legal system develops as society develops. We live in an incredibly complex society today that is intertwined with the rest of the world as never before.

Now, you would expect that a judicial system would usually cause the just in justice to prevail, especially in a highly sophisticated legal system like ours. But I have to explain to astounded (not to mention angry!) clients from time to time that one may not be able to fault a judge’s judgement from a legal point of view, but that doesn’t necessarily mean that a fair outcome has been achieved. This is the case for a number of reasons.

The first is that there is an incomplete overlap between the generally held view of what is fair and what the legal system of a particular society upholds as fair. An excellent example of this is the death penalty. Many South Africans would like to reinstate the death penalty if they had the choice, with much of society regarding it as acceptable and right. However, when the Constitutional Court, which is supposed to represent society’s ideas of justice, got the chance to rule on the matter, it shot down the death penalty in flames. Why? Because it is in conflict with the Constitution and is therefore illegal.

You may ask where the Constitution gets its moral authority from, but that is a subject best left for another day. The point is that the view of the majority of people does not always find its way into court judgements.

One must also remember that most judgements are given by a single justice official with his or her own ideas of what is fair, particularly so in a given situation. That idea does not necessarily correspond with your opinion or mine, or even the opinion of the majority. I remember, for example, a magistrate who gave lenient sentences to those she found guilty of burglary – until her own house was burgled. After that, woe betide the burglar she found guilty!

Furthermore, we must remember that the main purpose of a legal system is not to achieve a fair result in a specific case. The purpose of a legal system is to settle disputes in accordance with the established legal principles and the rules of society at a particular point in time. Ideally, the correct application of the rules will lead to a fair result, or close to what is a fair result in a specific case. For example, you cannot use evidence obtained by torture against an accused in a criminal case. If such evidence were used to find a person guilty, the sentence would be reversed on appeal. Disallowing this evidence would therefore lead to an unjust ruling (in the sense that a guilty person could be found not guilty), but the fairness of the legal system in its entirety would be maintained.

Ultimately there is one legal principle that, more than any other, ensures that our idea of justice is not compromised: audi alteram partem, which has nothing to do with the parts of an alternator in an Audi. It is an idea thought up by St Augustine and it contains a profound wisdom. Literally translated, it means that the other side should also be heard. In English, we would say that there are two sides to every story. Let me explain.

People usually come into my office with a fixed idea of who the villain is in the piece – and it is seldom them. Often they talk about a guilty person as if the opposing party has committed a crime, even if the matter is a contractual dispute. One even finds legal practitioners who swallow their clients’ stories hook, line and sinker, and defend their client’s cause as if it were their own. However, most legal practitioners who have been to court a few times know that different people can view the same facts from widely differing perspectives and that it is quite possible that their client has the wrong end of the stick. Often the judge hearing a case has no way of knowing what the true story is. What’s more, the judge has to seek the truth between two stories that are often diametrically opposed. Was the traffic light red or green? Was the contract ultimately concluded or not? The judge then weighs up the probabilities of the opposing versions in order to decide which one is going to be accepted. A judge is compelled to do this, as it is usually simply not possible to state without doubt that one party is lying and that the other is telling the truth.

In a criminal matter, for instance, the test is for the state to prove its case beyond reasonable doubt. This means that a judge cannot have reasonable doubt as to whether the accuser’s story is true. If the judge finds against the accused, it means that there is not a reasonable possibility that his story is true. If there is even a reasonable possibility that the story is true, it must be accepted (regardless of whether the judge believes it or not) and this usually means that the accused is acquitted.

Has justice prevailed in such a case? Often not, but the principle is aimed at preventing an innocent person being found guilty just because he has an unlikely story about what happened. Now I have often heard an accused (especially in the case of politicians) who is acquitted of criminal charges, proclaiming loudly after the court case that he is innocent. This is not entirely correct. The legal system could in fact simply not find him guilty. This is audi alteram partem in action: necessary but not always fair.

Another way of looking at the same issue is to place justice and fault under scrutiny. For Calvinists, it is often difficult to understand that something can go wrong and that you can obtain a judgement against a person even if nobody is at fault. The fact of the matter is that, except in criminal cases, the law is not concerned with fault, or guilt, as theologians understand it. In the case of everyday disputes, such as whether a contract was concluded between two people and what the terms were, fault is not an issue.

Sometimes the issue of fault is discussed, particularly in the context of the law of delict. Briefly, the law of delict deals with the damages suffered because of negligence. Negligence is a form of fault, although when we talk about fault here, we are not necessarily placing moral blame on someone. In the context of negligence, someone is at fault if they deviate from the standard of the reasonable person. If the issue of negligence arises in a case, one would ask how the hypothetical reasonable person would behave – the person who behaves correctly in every situation. Would the reasonable person have gone through a stop street? Would the reasonable person expect someone wearing dark clothing to be lying in the middle of an unlit road? If the answer to any of these questions indicates that your behaviour deviated from that of the reasonable person, even if only by 1 per cent, then there is fault in the form of negligence on your part.

A good way of illustrating this is by looking at motor accidents. Anyone who gives the matter some thought will agree that most motorists do not drive like the reasonable motorist most of the time. We talk on cellphones or send text messages, shave, eat, turn round and shout at the children, admire pretty girls in cars driving by, or are lost in thought about our day at work. Are we at fault? Yes we are if you compare us with the superhuman reasonable driver. However, your sense of justice tells you that this is the way people are, that we cannot be perfect all the time. On long journeys, it can be difficult to concentrate throughout. And if you have an accident, then along comes the legal system with its fastidious fault-finding enquiry into your behaviour to decide if there was negligence – fault – in the way you drove the vehicle. Why? For the simple reason that someone suffered damages and someone will have to pay for it, and the law seeks to identify that person. Is it, however, an enquiry into what is fair or just? In most cases that legal practitioners encounter, the answer is no, and even in the few instances where there is such an enquiry, the question is one that may range far and wide.

1.2 WHY SO MANY BIG WORDS?

Jurisprudence is like politics and religion, in that you do not require specialist knowledge to have an opinion about it. Notwithstanding this, the law is still fairly inaccessible even for educated people. This inaccessibility stems largely from the difficult language that you encounter the moment you start reading a legal textbook or the findings of a court of law. Is all this Latin and highbrow language really necessary?

Well, yes and no. On the side of yes, the first reason is that the law is centuries old. The roots of our legal system go back as far as the Roman Empire. If you have problems with your neighbour, you often have to read up about legal principles that date back to Roman times but that are still binding today. That’s where the Latin comes from. Besides the Latin, one often encounters Dutch because in South Africa we inherited many of our legal principles from the Dutch, and many of these are still binding today.

One could argue that there is no reason why these phrases cannot be translated. If inaccessibility were the only reason, the translation argument would probably be valid. However, there are other more important reasons why legal language is so complicated.

Probably the most important of these is that we live in a complex society that grows more complex by the day. People’s interactions with each other are complicated and the legal system that regulates them has to be complicated to make provision for this. For example, if people bought and sold things using only coins, the law of contract would be relatively simple, but when there are credit cards, cash, financing, credit agreements and insurance as well, the picture becomes a lot more complicated and each of these variations needs to be regulated by the legal system.

People are also constantly doing new things and the pace of change is increasing. For instance, in 1910 aviation law did not exist. In 1950 nobody wondered about the legal implications of computers. In 1970 nobody was concerned about defamation on the internet. Today we worry about the magnetic information on credit cards being copied using special equipment – something that was unheard of in 1990. And I am convinced that one day we are going to need specialised legislation dealing with the cloning of human tissue.

Speaking of legislation, governments are passing more and more laws and South Africa is no exception. One could argue about whether this is a good thing but it is undoubtedly also the state’s reaction to the increasingly complex society that it has to manage.

All these factors lead to difficult words and long sentences that are difficult to unravel, even for lawyers. There have been a great number of cases centring on the deconstruction of a sentence in a piece of legis­lation or in a contract, or turning on the meaning or use of a specific word in a sentence, and I must confess that I sometimes have great difficulty in understanding the judgements in these cases.

In short, the law is a difficult science and, like all sciences, it has its own jargon. When people talk legalspeak, they will often communicate old and complicated concepts to each other by means of a single word, just as doctors do. In addition, these concepts are often difficult to explain such as replication, Himalaya clause and quantum meruit. The difference between the language used by doctors and that employed by lawyers is that large parts of legal language sound so familiar. We use words such as reasonable, application and guilt, which, although they sound simple, mean something completely different in legal language to what the layperson would understand by them.

That was the yes of why legal language needs all those highfalutin words. Before we get to the no, firstly an appendix to the yes: just as with medicine, you need to understand relatively few words about a particular subject before you are able to participate meaningfully in a discussion about legal matters. It is a phenomenon I experience frequently at braais. Someone asks a question, I explain the most important ideas, and the rest is common sense, as they say.

Which brings us to the no. The law is undoubtedly a science everyone needs to know something about, because it affects everyone, often in ways that can profoundly impact our lives. This is why the state ordered recently, in the Consumer Protection Act, that contracts be worded in simple language so that the economically powerful drafters of a contract cannot simply bamboozle the other party to the contract with terms they don’t understand.

It is for this very reason I wrote this book and why from the outset – in the next section in fact – I have included a list of words you must understand if you wish to speak or understand legal language.

1.3 TROUBLESOME TERMS TAMED

And here it is: a list of terms you will need for most discussions about the law. I know that most people don’t enjoy vocabulary lessons – neither do I. However, I do suggest that you take a deep breath and go through the list, as it will be extremely useful for understanding the rest of this book. And you can refer back to the list when you encounter any tongue-twisters or brain-teasers later (set in italic text).

absolution from the instance – a court order that means that the plaintiff does not succeed in a civil action because of insufficient evidence. If an order of absolution is given, the plaintiff is entitled to attempt to prove his case again if he is able to obtain better evidence, which is not possible if the action is dismissed.

accused – the person who has been charged with committing a crime in a criminal case.

acquittal – if in a criminal case the state has not proved its case beyond reasonable doubt, the accused gets an acquittal. We say that the accused is found not guilty and discharged.

action – one of the two ways of bringing a civil action (the other is an application). An action commences when someone sets out his case in broad terms in a summons and also states what order he is seeking from the court and then has the summons served on the person against whom he is issuing the action. Such a document is not used in an application. After the summons has been served, a number of documents are exchanged between the parties so that the issues about which the parties differ are set out and clarified, and notice is given by each party to the other of what documents they are going to use, whether they are going to be calling expert witnesses, etc. The hearing of an action involves people standing in a witness box and giving evidence while being questioned under oath, which is another way in which an action differs from an application.

amendment – a change, usually to a pleading. It can also mean a change in a law or a contract but in this book it is used only in the first sense.

answering affidavit(s) – the sworn affidavit(s) in an application in which a respondent answers an applicant’s founding affidavit(s) point by point and gives his own version of events.

appeal – the procedure when one of the parties in a case is of the opinion that the court’s judgement is wrong and therefore follows a process to have the judgement and court order, changed by a court with higher authority.

applicant(s) – the party(ies) who launch(es) an application. These may include people or legal persons (entities), for example companies, trusts and so on.

application – one of the two ways of bringing a matter to court (the other is an action). Applications are generally used in cases where there is not a substantial dispute between the parties with regard to the facts, but there is a dispute regarding the legal principles that must be applied to it. The hearing of an application consists only of arguments that are set out in the application documents, which are called application papers or the papers. Generally speaking, the papers consist of two parts: a notice of motion, in which the party bringing the application states what he is asking of the court; and sworn affidavits, in which the evidence stating why the party bringing the application is entitled to the relief he is asking from the court is set out on paper.

argument or submission – at the end of any case, the legal representatives of both parties present their arguments to try to convince the judge why their client should win. These are called arguments or submissions. Submissions are the building blocks of such an argument. In the case of a motor-vehicle accident, for example, I would submit that my client’s evidence should be believed rather than the evidence of the other party. I would then give reasons to support this submission and use these together with other submissions in support of the argument that my client should win the case.

bar – when the time for the delivery of a plea to an action has passed without the defendant having pleaded, the plaintiff can send a notice to the defendant compelling him to plead within a certain period after which he will be barred from pleading. If he does not do so, the plaintiff may apply for default judgement.

beyond reasonable doubt – the manner in which it is decided in a criminal case whether an accused is guilty or not and, at the same time, the hurdle the state must overcome in order to prove its case against an accused. If the judge has reasonable doubt as to whether the accused’s version is possibly true and/or if the accused is possibly not guilty, then his version is accepted and/or he is acquitted. If an accused is found guilty, he is, in other words, found guilty beyond reasonable doubt. Compare this with on a balance of probabilities, the standard used in civil cases.

burden of proof – see onus.

case – a dispute between two or more parties that goes through the formal court process.

civil case or matter or proceeding – any case that is not a criminal case. This definition may sound unhelpful, but civil cases can be conducted around a wider variety of topics than can be covered by a single definition.

clerk of the court – the official in the magistrates’ court who attends to the administrative side of court cases.

closure of pleadings – an important point in time in an action, when it is clear from the pleadings what the issues in dispute between the parties are. The Latin phrase is litis contestatio.

common cause/evidence – evidence about which the parties in a case are in agreement and which is therefore not part of the issues in dispute. The term is also used when the parties agree about which legal principle applies to a specific issue in the case.

constitutional law – legal rules and principles that concern, or flow from, the provisions of the Constitution.

convention – used when parties claim something from each other in an action and you therefore do not just have a plaintiff who is claiming something and a defendant who denies that the plaintiff is entitled to it. It is a situation where there are two plaintiffs and two defendants, which can be rather confusing. The initial plaintiff and defendant are called the plaintiff and defendant in convention. When referring to the defendant’s claim against the plaintiff, he becomes the plaintiff in reconvention and the plaintiff becomes the defendant in reconvention.

costs – the money that it costs to conduct a court case. This can also refer to the so-called cost order, which forms part of the court order that is ultimately made at the end of a case, and which states who must pay the costs of conducting the court case. If, for instance, the plaintiff loses the case, the court order would normally declare: Plaintiff’s action is dismissed with costs.

counter application – when a respondent in an application brings his own application, as part of the same application. For example, you bring an application against me to forbid me from entering your land. I then bring a counter application for a court order stating that I have a right of way over your land.

counterclaim – when a defendant institutes his own action against the plaintiff as part of the same action. For example, you bring an action against me for payment of the balance of the contract price for building work you did for me. I then bring a counterclaim against you because I have had to have your bungled workmanship put right, costing a lot more than the balance of the contract price. The dispute is usually about the same set of facts, but seen from different perspectives.

court – a word with several meanings. Firstly, the physical court building and secondly, the court as an institution in the general sense. The most important and most confusing meaning is that of a specific court, consisting of legal representatives and the judge or magistrate.

court order – an order made by a court.

credibility – a judgement about whether a witness’s evidence can be believed or not. This always runs alongside another judgement about the probability of evidence. The two are, however, not the same because to say that I shot a lion in the head from a distance of a thousand paces may be improbable and therefore not credible. If, however, I have three witnesses who confirm it, it remains improbable but becomes more credible. Evidence can even be probable but not credible, although this is seldom the case.

creditor – a person or entity to whom money is owed.

crime – an act forbidden and punishable by the state.

criminal case – the case between the state and a person charged with committing a crime.

criminal procedure – the formal rules in terms of which criminal cases are conducted and administered.

criminal sanction – when an act committed by a person is punishable by the state.

cross-examination – the second part of the oral evidence given by a witness in a trial. The witness is questioned by the opponent’s legal representative in an attempt to discredit the witness’s evidence or to elicit favourable evidence for the opposing party.

debtor – a person or entity owing money in a transaction.

declaratory order – when two parties are unsure of what their rights are, they can ask the court to give finality on whose interpretation of the legal position and their respective rights is correct.

default judgement or judgement by default – a judgement that is given in an action either because the defendant did not defend the action or because he has not delivered his plea timeously and has therefore been barred from doing so. With a default judgement, the judgement is given as if the plaintiff had proved his case without opposition or contradiction.

defence – the reason(s) why a defendant thinks that a plaintiff in an action should not be successful.

defendant – the party against whom an action is brought.

delict – an act or omission whereby someone suffers damages and to which the law attributes fault, and which is not excusable in some or other way (put differently, it is said to be unlawful).

discovery – the process whereby copies of documents to be used in a case are given to the opposing party. Initially each party discloses its documents to the opponent in a sworn affidavit. The opponent may respond to this by asking for specific documents that have not been disclosed. Discovery is used to prevent your opponent from being taken by surprise by the use of documents at the trial.

dismissal – when the state has finished leading its evidence in a criminal case and there is insufficient evidence on which to find the accused guilty. Application for dismissal is then made and if the application is successful, the accused is released without having to give evidence. This application is not an ordinary application because oral evidence has already been led. An application is therefore not made in the usual way, but simply argued.

dismissed – a court order meaning that someone who brings an application or an action is unsuccessful. The difference between such an order and absolution from the instance is that once your application or action has been dismissed, you cannot try again. See also granted.

domicilium citandi et executandi – a phrase one often sees in contracts. Translated literally, it means "where the party may be cited and where attachment in execution can take place". In plain language, it is the address where notices and court pleadings can be delivered. (Execution can take place anywhere a person against whom a court order has been obtained finds himself.)

ex parte – bringing an application against a person without giving notice to the person against whom the application is being brought. This is done if the application is very urgent, if giving notice would thwart the purpose of the application, or if it would make no sense, for example if the person is mentally incapacitated.

examination in chief – the first part of a witness’s oral evidence in a court. It consists of the legal representative of the party who called the witness asking a number of questions in order to extract evidence that is favourable to the party concerned.

exception – a technical objection against a plaintiff’s particulars of claim or against a defendant’s plea, either because it is without sufficient grounds or because it is vague and embarrassing.

execution – the process whereby a court order is carried out. If, for example, a court orders that money is to be paid, execution means that money is recovered from the person who owes it. This can be done either by collecting the money from the person or by selling the assets of that person. This is always done by the sheriff.

execution creditor – the party in whose favour a judgement is given and who can therefore demand payment of the judgement debt. See creditor.

execution debtor – the party against whom a judgement is given and who is therefore liable to pay the judgement debt to the execution creditor. See debtor.

expert evidence – evidence by a specialist containing opinions that can help the court to reach a finding about something of which it does not have expertise itself. Good examples are medical evidence about the consequences of bodily injuries and experts on speedometers at trials about speeding offences.

filing – handing in a document at the office of the registrar or clerk of the court. Filing gives official status to the document.

founding affidavit(s) – the first affidavit or set of affidavits in an application, in which the applicant and his witnesses set out his evidence.

further particulars – particulars which you request from an opposing party in an action to tell you more about his case so that you can prepare for the trial.

further party – a party such as a third party or intervening party who becomes party to an action or application.

granted – an application is granted if it is successful. See also dismissed.

heads of argument – a document summarising the submissions that will be used in argument. Heads of argument are given to the judge and to the opponent’s legal representative before final argument to give them a chance to weigh up and consider the submissions.

in camera – when a court is closed to the public, unlike normally, when it is open to the public. Only the legal representatives, necessary court officials, parties (or the accused in a criminal case) and the judge or magistrate are allowed in the court.

in forma pauperis – when a poor litigant is given free legal representation.

interdict – a type of court order that orders someone to do, or refrain from doing, something.

interim/interlocutory application – application in an action to bring about something that is relevant to conducting an action. If, for example, one of the parties refuses to discover, his