Where action is taken against you by the state, you are entitled to

expect that such action is lawful, reasonable and procedurally fair.

Where your rights have been affected, you have a right to be given
written reasons.

When a person feels that an action by the government was not

reasonable or lawful, they may approach the courts for a decision on
the matter.

b) Private legal relationships:

The private sphere of legal relationships involves the exercise of

rights and duties. Parties approach the judiciary to enforce their
rights in respect of some other parties obligation.

Not all persons, however, are capable of exercising these rights in

their own capacity. E.g., minors need their parents to assist them
should they suffer damage.

Every right has a corresponding duty. What right would the

purchaser of a motor vehicle have against its seller? What right do
you have against the person trespassing on your property?

Real rights vs Personal rights:

Real rights may be enforced against anyone, with the owner being
able to use and do with his property as he pleases – within the ambits
of the law.

Personal rights on the other hand have another person’s

performance as their object.

Which right would you be exercising if you took your tenant to court
for not paying his rent? What about evicting them?

See table 1.1 on page 12 of the text book.

?

Legal liability: criminal and civil

Legal liability is the condition of being bound to carry out a legal duty
and to bear the consequences of failing to do so.

A good example of a legal duty, is the duty which a parent owes to

his or her children in taking care of them.

To be liable in terms of criminal law you would need to have

committed an act (or omitted to perform one) in violation o f a law
forbidding (or commanding) it and for which punishment is imposed
upon conviction.

The person who breaks into your house, steals your cellphone,
firearm, and holds you captive has committed a number of crimes.

1. House breaking.

2. Theft.

3. Kidnapping.

4. Malicious injury to property.

5. Possession of an unlicensed firearm.

The house breaker had a duty to abide by the laws prohibiting this
behavior, and would therefore have incurred criminal liability and be
liable to suffer prosecution.

Liability in private legal relationships (Civil Law) has three forms:

1. Contractual liability;

2. Delictual liability;

Essentially deals with causing harm.

Where you have injured or harmed someone or something, you have
caused damages to be incurred by another person.

The damages are then quantified, into a liquid amount, and you
would then have legal recourse against that person.

3. Liability based on unjustified enrichment:

Arises where a party has been enriched at the expense of another

and no legal basis exists for the transfer of the benefit.

E.g., Interest received above the legal interest rate, money mistakenly
paid into your account, etc.

The three categories are not, however, mutually exclusive and may
arise together within the same set of facts, even with criminal
liability.

For example, the house breaker in our previous example would find
himself to be delictually liable for the damage he caused to your
property whilst breaking and entering your premises.

We have spoken about liability, but what is the point of holding

someone liable? Shouldn’t we just forgive and forget?

What is the point of suing someone for damages if they committed a

delict against you?

What is the point of imprisoning someone? Why don’t we just let

their parents or community handle transgression?

Sources of south African law

1. Legislation
2. Case law
3. Common law
4. Customary law
 5. Indigenous law
6. Modern writers
7. constitution

• South Africa has a 'hybrid' or 'mixed' legal system, formed by

the interweaving of a number of distinct legal traditions: a civil
law system inherited from the Dutch, a common law system
inherited from the British, and a customary law system
inherited from indigenous Africans (often termed African
Customary Law).

• These traditions have had a complex interrelationship, with the

English influence most apparent in procedural aspects of the
legal system and methods of adjudication, and the Roman-
Dutch influence most visible in its substantive private law.

• History of our SA Law

Historically SA Law originates from the following sources:

• Roman Law; Reception in Western Europe (Canon law +

commentators); Roman-Dutch Law (Roman-Dutch Jurists; Jan
van Riebeeck).

• English Law (Statutory Acts + Case Law)

• Now move towards Decolinisation & Africanisation of Law

When we speak of sources of our law, we are referring to those

places which we drew upon in making our current laws.

• In South Africa, we draw upon a variety of sources in making

our laws.

• Our various sources are as follows:

• https://youtu.be/0UzKD8rZCc0
a) The Constitution

• The Constitution is the supreme law of the land, and prevails

over all other laws.

• The Constitution is made up of fourteen chapters.

• The chapters deal with human rights, the structure of the

state, powers of the institutions, administration of justice,
etc.

• The document guides the entirety of our political and legal

endeavors.

• Chapter 2 sets out the Bill of Rights to be promoted, and the

limitations clause limits their use.

• Rights range from:

• The right to life.

• The right dignity.

• The right to equality.

• Privacy

• Freedom of expression.

• Political rights.

• Citizenship.

• Health care, food, water and social security.

• Access to Courts.

• Section 36 is responsible for the limitation of any rights

contained in the Bill of Rights.
 • These rights may only be limited by a law of general
application, which is reasonable and justifiable in an open and
democratic society based on human dignity, equality and
freedom.

• What would happen if parliament tried to pass laws which

re-enacted the group areas?

• What if a law was passed which required that all citizens

were required to get married in a church? What right
would that infringe?

• https://youtu.be/zAmw4xCM0Wk

b) Legislation:

• Legislation is a broad term for law found in statutes,

proclamations, regulations and by-laws.

• Legislation is made by competent authorities, i.e., Parliament,

Provincial Legislator or Municipal Councils.

• Legislation is necessary for the introduction of laws to control

new and emergent areas in a society, or to amend / develop old
laws.

The two forms of legislation are:

• Original legislation is made by the legislature.

• This law is made at the national (parliament), provincial

(provincial legislatures), and local (municipal councils)
spheres.

• Subordinate legislation is made by members of the executive

(usually the minister of a particular portfolio).
The law making process:

1. The proposed law is drafted as a bill.

2. The bill is then submitted to Parliament for debate.

3. Parliament votes on the bill after discussions in the committee,

and after having been tabled in one or both houses of
parliament.

4. If the required consensus is not attained, the bill lapses, or

where consensus is obtained, the bill is submitted to the
president for signature.

5. Once the Bill has been signed by the president it becomes law.

• Legislation is numbered chronologically and contains the year in

which it is promulgated.

• I.e. Choice on Termination of Pregnancy Act 92 of 1996.

• Acts take a specific form, as will be illustrated:

• ?

c) Common Law:

• The common law is a set of laws not made by Parliament or any

level of government.

• Crimes like murder, theft and treason are part of the common
law. The common law has developed through the decisions of
judges in the Courts.

• The Roman Dutch and English law brought by the Dutch and
British settlers is also part of the common law. The common law
can be changed by new decisions in the courts.
• The common law applies to everyone equally in the whole
country.

• It is only when there is no statutory law about something that

the common law will apply.

• For example, the common law crime of rape, by definition,

excluded male complainants. Parliament passed a new
piece of legislation The Criminal Law (Sexual Offences and
Related Matters) Amendment act 32 of 2007.

d) Case Law and Judicial Precedent:

• Judicial precedent refers to the body of law resulting from

decisions on points of law made by other courts with regards to
the same circumstances.

• A precedent becomes the law, unless it is rejected or changed

by a higher court. A precedent is important because it becomes
the new law and so will be used in future judgments.

• Doctrine of stare decisis: “to stand by previous decisions”

• Court must take into account previous decisions with

similar facts.

• In constitutional cases, the precedent of the Constitutional

Court must be followed by all courts. In other cases, the
precedents of the Supreme Court of Appeal must be followed by
the courts below it. These courts are the High Court and the
Magistrate's Courts.

• It is important to remember that a precedent set by one High

Court, is only persuasive for another High Court.

e) Indigenous Law / Customary Law:

Customary law comes from indigenous cultures in South Africa and is
also often referred to as indigenous law. When the settlers arrived in
the Cape in 1652 there was already an established legal system being
practiced by the people who lived there. This indigenous legal system
was:

• Unwritten;

• passed on orally from generation to generation;

• strongly tied to culture, tradition and the tribe.

• These laws were largely ignored until our recent Constitutional

dispensation (1994 democratically elected government).

• Today these laws have to pass Constitutional muster, and must

not be at odds with it.

f) Custom:

• Sometimes the courts will recognize that a community will do

things in a particular way. The courts may even enforce these
practices or customs.

• For a custom to have the force of law it must show:

1. To be long established,

2. Certain,

3. Reasonable,

4. And uniformly observed.

• Van Breda v Jacobs: upheld custom that cannot places lines in

front of other fishermen – damages awarded to aggrieved
fishermen.
 g) Modern Writings:

• Textbooks and law journals

• No inherent authority of their own, but may have persuasive

influence on the courts.

Categories of law:

The legal field is diverse, and we have laws in many fields, but the
legal topics are broken down into certain broad subjects.

Public law vs Private law

The subjects within public law are:

Administrative law,

Criminal law,

Labour law,

The law of Taxation.

The subjects within private law are:

The law of property

The law of companies

The law of insolvency

Competition law

And banking law.

The distinction between the two areas of law has been criticized due
to the overlapping of the areas.
In what ways do they overlap?

Litigation:

https://youtu.be/B7dOWSQMM0k

Litigation:

Litigation is the term used for legal processes aimed at providing an

authoritative mode of dispute resolution.

There is a distinction drawn between civil and criminal trials:

Their object,

The initiating party,

The standard of proof required,

And the remedy granted.

Distinction between a civil and criminal trial:

In criminal trials the object is to seek retribution for and protect

society against those alleged to have transgressed the law.

In civil trials the object is to resolve a dispute between two or more

parties who stand on an equal footing in relation to each other.

Distinction between a civil and criminal trial:

Where the state is successful in the criminal trial, the accused will be
penalized – i.e. imprisoned, house arrest, fine.

When a person (the plaintiff) is successful in a civil trial, damages

and/or performance will be awarded. Costs will also be awarded.

The Criminal trial:

the initiating party in a criminal trial is the State, and the responding
party is the accused:

S v Pistorius 2014 JDR 2127 (GP)

A crime will always involve a transgression against a particular

person or group of persons:

In the case of S v Pistorius the victim of the crime was Reeva

Steenkamp (deceased).

The Criminal trial:

The complainant (victim) usually reports the crime, but as in the

above case this could not have occurred.

Why do you think the state prosecuted Oscar despite there being no
complainant from the victim?

After the investigation of the incident has taken place, the matter is
referred to the National Directorate of Public Prosecutions, who will
then decide whether they have sufficient evidence to pursue the case.

The accused will either be held in custody, or will be summoned to

court for the day of his first hearing. From here, the matter proceeds,
and prosecution will set various dates by which they will need
evidence, and finally when the trial will begin.

During the criminal matter, the state is required to prove the

accused’s guilt beyond a reasonable doubt.

During the trial, the accused’s guilt will be established through the
use of evidence which will be produced by both sides.

The trial is essentially to prove the ‘merits’ of the charge against the
accused, and then moves to sentencing should the charge be
successfully proved.
The different types of civil trial:

There are two main forms in which you can start a matter:

1. Action proceedings – where a dispute involves disputes of fact,

and or questions of law.

Basically where evidence needs to be proved in order to prove your

claim.

2. Motion proceedings – in these matters there is no dispute of

fact, and only questions of law to be dealt with.

What are some examples of an action proceeding? Motion

Proceeding?

The different types of civil trial:

Ex parte

Ex Parte Sapan Trading (Pty) Ltd 1995 (1) SA 218 (W)

the applicant party applied to court on an ex parte basis in order to

obtain an order to attach a foreign companies assets which were in
south Africa so as to found jurisdiction.

Why did they apply ex parte, without notifying the other party?

The different types of civil trial:

Ex parte … in re

The ‘in re’ indicates that there is no dispute, but rather that the
applicants have approached the court for clarity on a legal matter.

Appeal and review:

Appeals arise when either party in either a criminal or a civil trial is

dissatisfied with the judgement of the court.
When appealing the matter you must receive permission from the
court a quo (the court who heard the matter originally).

Once the appeal goes to the appeal court the matter is heard on the
papers only – that is the court record of the original trial; no new
evidence is called.

A Review procedure is used when:

1. In the sphere of public relationships more generally (i.e.

challenging an administrative decision): to take a state
official’s decision on review to the High Court. The court’s
finding will not replace the officials, but the official will
need to reconsider their decision.

2. Where a party to the litigation is dissatisfied with the

magistrate’s or judge’s decision due to an allegation of
bias, exceeding his or her jurisdiction, etc.

The matter would be heard by a higher court.

To be continued…

The court system

The court system in South Africa is hierarchical with the

Constitutional Court and Supreme Court of Appeal at the apex.

Section 34 of the Bill of Rights in our Constitution says everyone has

the right to have any legal problem or case decided by a court or an
independent body.
The ability of each court to inquire into and decide upon a matter is
termed it’s jurisdiction, and this is limited by certain factors.

Jurisdiction:

A court is restricted by certain factors which limit the ability of the

court to hear a matter.

The jurisdiction of a court is determined by the following factors:

Authority to hear constitutional matters: not allowed in magistrate’s

court, usually start in the HC, and follow path upward by use of
appeals.

Jurisdiction:

The jurisdiction of a court is determined by the following factors:

Geographical territory: CC and SCA have national Jurisdiction,

whereas other courts are restricted to certain geographical locations.

Amount of claim in civil proceedings: magistrate’s court is usually

limited to claims of R100 000.00. whereas claims in the High court
have no such limit. The Small claims court has a limit of R15 000.00
(increases regularly).

Jurisdiction:

The jurisdiction of a court is determined by the following factors:

Severity of sentence in criminal proceedings: magistrate’s court

cannot impose a fine exceeding R60 000.00 or a sentence over three
years. The Regional Magistrate’s court cannot impose a fine
exceeding R300 000.00 or a sentence exceeding fifteen years.
Matters out of the reach of the MC or RC are handled by the HC.

Jurisdiction:
The jurisdiction of a court is determined by the following factors:

Nature of the proceedings: A magistrate’s court cannot hear certain

criminal and civil matters. A regional court cannot hear matters
which affect the status of natural persons (however, this has recently
been updated: RC’s can hear divorces).

Appeal jurisdiction: magistrate’s courts have no appeal jurisdiction.

High courts are courts of appeal for magistrate’s courts.

The Constitutional Court:

The Constitutional Court is in Braamfontein, Johannesburg and it is

the highest court in South Africa. It only deals with constitutional
issues.

There are 11 Constitutional Court judges but cases only need to be

heard by 8 of them.

No other court can change a judgment of the Constitutional Court. If

the Constitutional Court makes a decision that says a law must be
amended or it cannot be passed because it is unconstitutional,
Parliament can decide to change the law in order to make it
constitutional.

The SCA:

The Supreme Court of Appeal is in Bloemfontein in the Free State.

Except for the Constitutional Court, this is the highest court in South
Africa. It only hears APPEALS from the High Court.

All cases in the Supreme Court are heard by three or five judges.

Except for the Constitutional Court, no other court can change a

judgment of the Supreme Court of Appeal. Only the Supreme Court of
Appeal can change one of its own decisions. But if parliament does
not like the way the Supreme Court of Appeal interprets a law, then
parliament can change that law (if the majority vote for this).

The High Courts:

The High Courts can hear any type of criminal or civil case. The High
Courts usually hear all the cases that are too serious for a
Magistrate's Court. It also hears appeals and reviews against
judgments in the Magistrate's Court.

Cases in the High Courts cost more money.

All cases in the High Courts are heard by judges. In civil cases usually
only one judge hears the case. But if the case is on appeal then at
least two judges must hear the case.

In criminal cases only one judge hears the case.

Sometimes in very serious criminal cases the judge appoints two

assessors to help a judge. Assessors are usually advocates or retired
magistrates. They sit with the judge during the court case and listen
to all the evidence presented to the court. At the end of the court
case they give the judge their opinion.

The judge does not have to adhere to the assessors' opinions, but it
usually helps the judge to make a decision.

Magistrate’s Courts:

These are the lower courts that deal with the less serious criminal
and civil cases.

The Regional Magistrate’s courts deal with both civil and criminal
matters and have recently been given jurisdiction to deal with divorce
cases. The District Magistrate’s courts deal with criminal and civil
cases.
The magistrate makes the decisions in a Magistrate's Court
sometimes on the advice of assessors.

Most magistrate’s courts can hear Equality Court cases. These are
cases where you feel you have been discriminated against or
harassed or subject to hate speech.

Magistrate's Courts can be divided into either criminal courts or civil

courts.

Small Claims Court:

https://youtu.be/yvWjvZm1RfI

Small Claims Court:

SCCs are situated in the magistrate’s courts. If there is no SCC in your

area, you must bring your case in the Magistrate’s Court.

A Commissioner presides over the proceedings and decides who is

right and who is wrong.

The SCC is easier and cheaper for people to use to settle disputes. The
court charges a small fee to cover the cost of the summons and the
fee of the Sheriff of the Court.

You cannot use legal representation in the SCC (be represented by

one) but you can get advice from a paralegal or an attorney to
prepare for your case in the SCC.

Further, a juristic person cannot use the SCC.

You can only use the SCC for claims up to a value of R 15 000. If you
claim is for more than R15 000 you can give up part of the claim so
that it is R15 000 or less.

Legal Professionals:
The legal discipline consists of many vocations:

Judges and magistrates

Officers of the court

State advocates and State attorneys

Advocates and attorneys

Attorneys:

Handle the general legal work, that is, meet with clients, draft
contracts, set up companies, advise on legal matters, etc.

Attorneys are usually tied up to the logistics and overview of a matter

which has gone to court – although it is their responsibility to advise
the client through the use of strategic and tactical thinking.

Advocates:

Advocates are legal specialists. That is, they are responsible for
having and deploying a much deeper knowledge of the law.

Further, they are the predominant professional used to represent a

client in court.

They cannot, however, be directly briefed by a civilian as they always

receive their matters via an attorney.

Attorneys and advocates both have legal professional privilege which

is necessary to protect the confidentiality of communication between
legal practitioners and their clients.

Better known as ‘attorney-client privilege’.

The purpose of this privilege is to allow the client and legal
practitioner to communicate freely about issues that are the subject
of legal proceedings, or are anticipated to be.

Communication meeting the criteria of legal professional privilege

cannot be required to be produced in court or used as evidence in
legal proceedings.

See table 1.5 for the differences between attorneys and advocates on
page 35 of the text book.

To be continued…

Section A:
Decolonisation of the Law

The law is a set of legal rules that govern how people should conduct
themselves.

The three arms of government play an important role in the

establishing of a legal system.

South Africa is one of the unique countries that have gone through
periods of social and legal oppression.
 South Africa went through a period of colonisation.

During colonization, South Africa adopted many features from the

colonial system.

Many of these systems still exist today within our legal system

Roman- Dutch law is embedded in South African law, that is an

example of colonial traces left in our legal system.

There have been many attempts, protests and movements that have
sought to eradicate any form of colonialism. Those processes have
been termed DECOLONISATION.

DECOLONISATION

Prof Habib noted that some work has been done, in the past 20 years,
in terms of decolonisation of the LLB curriculum. He added: ‘We
recognise customary law, we have looked at the legal framework on
traditional leadership and government. We also apply the law to the
context and realities of South Africa. However, there is still much
more to be done. We need to protect the rights of citizens and if that
is done the law will be deployed to assist the fundamental problems
in society.’ FOUND ON http://www.derebus.org.za/nadel-discuss-
decolonisation-law-agm/ ( ACCESSED ON 30 JUNE 2018.

Decolonisation unpacked

Issues to consider before the vid is played.

What do you regard to be decolonization?

Can it be eradicated? If so, How?

How can the law be decolonized.

Is decolonization the same as affirmative action

https://www.youtube.com/watch?v=RCkXeMaaSwU

Class Discussion

Questions and comments on what you thought decolonization was

before the talk.

Customary Law in South Africa

Customary law comes from indigenous cultures in South Africa and is

also often referred to as indigenous law. When the settlers arrived in
the Cape in 1652 there was already an established legal system being
practiced by the people who lived there. This indigenous legal system
was:

Unwritten;

passed on orally from generation to generation;

strongly tied to culture, tradition and the tribe.

These laws were largely ignored until our recent Constitutional

dispensation (1994 democratically elected government).

The role of customary law is another indication of how decolonisation

has worked.

Previously these laws were ignored and they took a back seat.

The law now recognises custom including lobolo, Ukwa-luka(

initiation), customary marriages

Custom:

Sometimes the courts will recognize that a community will do things

in a particular way. The courts may even enforce these practices or
customs.
For a custom to have the force of law it must show:

1. To be long established,

2. Certain,

3. Reasonable,

4. And uniformly observed.

Van Breda v Jacobs: upheld custom that cannot places lines in front
of other fishermen – damages awarded to aggrieved fishermen.

THE END

Section B:
GENERAL PRINCIPLES OF CONTRACT

The Definition of a Contract:

A contract is an agreement that creates a legal obligation between

the parties to the contract.

Some of the basic features of a contract include: an agreement (the

core element); involving legal obligations; between at least two the
parties and only the person’s privy to the contract are bound by it.

Unilateral and bilateral juristic acts

A contract is regarded as a juristic act which is a manifestation of

human will, which gives rise to legal consequences.

A unilateral juristic act – performed by one person alone (e.g. to

execute a will) which gives rise to an obligation on one of the parties
(i.e. a donation) OR
A bilateral juristic act – performed by at least two persons (a
standard contract) means that both parties are obliged to perform.

Unilateral and bilateral juristic acts

THUS a contract is a bilateral juristic act

It involves a coming together of two minds, and the making of an

agreement.

As an agreement needs two or more people to undertake, as a

contract must have at least two parties.

The concept of a legal obligation

An obligation is a legal bond between two persons in terms of which,

one person, the debtor, is bound by law to render a performance of
some kind (i.e. to give something) to or for the other, the creditor.

One party (the creditor) has a right to (receive) performance of some

kind from the other party (who is referred to as the debtor) who has a
duty to render the performance.

A contract normally gives rise to more than one

obligation/performance

E.g. Sam will only deliver the goods, once Bob has paid for them.

In this instance, each party is simultaneously the debtor and creditor.

The creditor’s right is called a personal right because the subject

matter is another person.

The Doctrine of Privity: A contract in only binding on those privy to it

– it only deals with the personal rights of the creditor or debtor (e.g.
the parties to the contract).

The elements of a contract:

 1. There must be an agreement (consensus conveyed by offer and
acceptance) to perform something;

2. There must be an intention to create a legally binding

relationship (known as animus contrahendi);

3. There must be reality of consent between parties;

4. Parties must have capacity to enter into a contract;

5. The terms of the contract must be sufficiently certain to be

enforced;

6. The contract must be possible of performance;

7. The contract must be lawful;

8. Any formalities required of the contract must be in place.

The elements of a contract:

1. There must be an agreement (consensus conveyed by offer and

acceptance) to perform something;

2. There must be an intention to create a legally binding

relationship (known as animus contrahendi);

3. There must be reality of consent between parties;

4. Parties must have capacity to enter into a contract;

5. The terms of the contract must be sufficiently certain to be

enforced;

6. The contract must be possible of performance;

7. The contract must be lawful;

8. Any formalities required of the contract must be in place.

Formalities

8.1 Statutes requiring formalities:

Basic Rule: No formalities are necessary and no written document is

needed.

• The vast majority of contracts are made without formalities

(e.g. a purchase at a supermarket).

• It is open to parties to choose to make a written contract. This

may be useful as proof of agreement; as a reminder of terms;
and for purposes of certainty.

The legislature has prescribed formalities for certain contracts

Examples:

• Any contract concerning land has to have writing and signature

(The Alienantion of Land Act)

• Some Lease agreements (more than 3 years) (The Property

Time-Sharing Control Act)

• A suretyship contract requires writing (General Law

Amendment Act).

• Some agreements must also contain prescribed particulars and

terms.

• Notarial execution or registration may also be formalities

required.

• The failure to comply with a statutory formality will generally

result in the agreement being void, and any performance may
then only be recovered under the doctrine of unjustified
enrichment.
8.2 Types of formalities imposed

a) A written record (reduced to writing):

• Writing includes typing, printing or any other mode of

reproducing words in visible form.

• It need not be on paper (it can include data messages) and can
be in the form of numerous documents.

Writing requires two things:

• The writing must contain the whole agreement – all the

essential and material terms. (It is not necessary that tacit
terms and common law consequences of a contract be present
for validity.

• The nature and effect of the terms must be sufficiently precise

to be capable of being determined or ascertained without
recourse to the prior (oral) agreement of the parties.

• If any party later believes that the written document does not
reflect the intention of the parties, that party may apply to
court to correct the document.

• This process is known as rectification, and may be used to

remove a term mistakenly inserted into a contract or to insert a
term mistakenly omitted.

b) Signature:

A person may sign with any mark he/she chooses (initials, cross,
thumb-print, and may even be in the form of an “advanced electronic
signature” for data messages).

– All that is required is that the mark is intended to make

the document an act of the signer.
 – This mark is presumed to be a person distinguishing mark
unless proved otherwise.

• The date and place of the signature need not be inserted, but
the information may be useful.

• A witness to the signing is also not necessary, but may be

important authority if there is a dispute.

c) Notarial execution:

• The contract must be signed in front of a specialist attorney

called a notary public, who then signs the document, seals it
and keeps a copy.

• For example, this required for antenuptial contracts.

d) Registration:

• Copies of the contract must be lodged with a government

department.

• For example, this is required for sales of land and long

leases, as well as for the formation of companies and
close corporations.

e) Revenue Stamps:

• The failure to put a revenue stamp on a document which may

require such a stamp (such as a lease, mortgage bond,
insurance policy, or promissory note) does not affect the validity
of the contract or of the document.

• It simply means that the unstamped document cannot be used

in evidence in a court of law.

8.3 Self-imposed formalities

 • Formalities may be self-imposed by the parties themselves, and
may relate either to the creation, the variation, amendment, or
the cancellation of the contract.

a) Creation of the contract:

• The parties can agree that they will be bound by their oral
agreement immediately, but that it will be reduced to writing
for purposes or proof and convenience.

• In some cases, parties may want to impose formalities on

themselves. They can agree that their transaction will not be
binding until it has been reduced to writing and signed by both
of them.

• The result of this is that there is no contract until the

parties have complied with the formalities.

b) Variation of the contract:

• The parties may agree to a non-variation clause in their written

agreement, which typically provides that no variation to the
written contract is of any legal effect unless the variation is in
writing and signed by both parties.

c) Amendment of contract:

• The parties may agree to amend the contract they have entered
into previously.

• In general, no formalities are required unless formalities for the

original contract are prescribed by statute, or unless the parties
had previously agreed to a non-variation clause in the contract
which prescribed formalities.

d) Cancellation of contract:
 • The parties may agree to a cancellation clause in their written
agreement, which typically provides that a mutual agreement
to terminate the contract must be in writing and signed by both
parties.

• This type of clause does not prevent a party from applying to

court to cancel a contract if it has been breached by the other
party.

To be continued…

Section B:
GENERAL PRINCIPLES OF CONTRACT

The Essential elements of a contract:

1. There must be an agreement (consensus conveyed by offer and

acceptance) to perform something;

2. There must be an intention to create a legally binding

relationship (known as animus contrahendi);

3. There must be reality of consent between parties;

4. Parties must have capacity to enter into a contract;

5. The terms of the contract must be sufficiently certain to be

enforced;

6. The contract must be possible of performance;

7. The contract must be lawful;

8. Any formalities required of the contract must be in place.

Lawfulness

Lawfulness

• The principle of sanctity of contract means that agreements

reached between people should be recognised as binding and
enforced by the courts.

BUT for an agreement to give rise to obligations the terms must be

lawful.

The requirement of lawfulness includes statutory law and the

common law.

• There are some agreements which are contrary to our morality

or that are against social or economic values, and therefore
should not be enforced on the grounds of public policy.

• Courts, therefore weigh competing principles of sanctity of

contract, with prevailing legislation, common law, morality and
the public interest, to determine what public policy is.

The concept of public policy is a developing standard that changes

from time to time.

General principle: (note, there are exceptions, e.g., statutory

illegality)

A contract is unlawful if:

● The making of the agreement is illegal (drug deal, unregistered

firearm).

● The contract provides for a performance which in itself is

unlawful (agreement to rob a bank).
 ● The agreement is made for a common purpose which is illegal
(X agrees to sell a gun to Y, knowing Y wants gun to kill mother-
in-law).

● The agreement is unlawful is it facilitates or indirectly

encourages an illegal act (the effect).

It is important not to confuse illegality with:

● The failure to follow statutory formalities (it is not an illegality).

● Lack of capacity, which does not give rise to illegality (the

agreement may be unenforceable, but is not unlawful).

● Lack of authority, which does not equate to illegality.

• As a general rule, all agreements are lawful unless they are

prohibited either by statute or by common law.

• Agreements against public policy or good morals will be

prohibited by common law.

• An unlawful agreement is void.

Common law

● General principle – an agreement is illegal and void under the

common law if it offends against public policy.

● This refers to both the making and the enforcement of the

contract. If either is against public policy, the agreement is
regarded as void.

Public policy: Doesn’t have a clearly defined content or meaning.

It has been described by the English judge Burrough as “a very unruly

horse, and when once you get astride it you never know where it will
carry you”. However, the difficulty is not insurmountable, and Lord
Denning stated that, “With a good [person] in the saddle, the unruly
horse can be kept in control [and it] can jump over obstacles”.

Important considerations:

(1) Public policy is continually changing (each generation has its own
set of ideals).

For example, prostitution.

(2) It is shaped by a multiplicity of factors, for example:

Society’s morals and values, religious convictions, constitutional

values, behavioural trends; government practices and policies,
population growth, crime stats, unemployment, the needs of the
environment.

The enquiry may be even more difficult in SA as opposed to other

countries due to the diverse ethnic groupings. There is also a vast
array of different cultures, wealth classes and historical
disadvantages and many of these groupings have divergent
perceptions.

● For example, in one society it is permissible to have more

than one wife, while in others, it is not.

The following examples of contracts would be contra bonos mores

and would not be enforced by the courts:

1) An agreement to support an enemy of the state.

2) An agreement to undermine order, the administration of justice or

the functioning of the courts, for example, to commit a crime or a
delict, or to bribe a witness.

The following examples of contracts would be contra bonos mores

and would not be enforced by the courts:
 3) An agreement unreasonably restraining the freedom to marry
or divorce.

4) An agreement to defraud the public, or for a public official to

use his or her influence corruptly to obtain a benefit for another
person.

5) An agreement for an immoral purpose, for example, to sell a

human being.

6) Agreements that are so unfair that they are contrary to public

policy (Unconscionable agreements)

• The courts have recently recognised that an agreement may be

so unfair, harsh or oppressive as to be contrary to public policy.
However, it is stressed that this is limited to extreme cases.

Statute

• There are a large number of agreements which are prohibited

by statute (for example, the Competition Act, the Consumer
Affairs Act and the Sale and Service Matters Act).

• Statutory prohibition or illegality does not always render a

contract void.

• General Rule: An agreement is void for illegality if it is

prohibited and rendered void by a legislative enactment.

● E.g. The sale of a portion of agricultural land without Ministerial

consent.

● A sale of foreign currency without treasury permission.

• The courts will assess each matter on a case by case basis to

determine whether the legislature intended that an agreement
be rendered void.
 • In determining this intention, the court will consider the
language, scope and object of the Act, and the justice of taking
one side in the case as opposed to taking the otherside what
precedent they set.

• The court will also consider:

– The criminal sanctions, if any in the statute.

– Whether sanctioning the activity would give rise to the

purpose of the legislation.

– Whether greater hardship would follow by voiding the

agreement vs if left legal.

• The courts take a vigorous view, however, and try to uphold

agreements in cases where it would cause more harm to hold
the agreement void than it would to allow the agreement to be
enforced.

To be continued…

Section B:
GENERAL PRINCIPLES OF CONTRACT

Section B:
GENERAL PRINCIPLES OF CONTRACT

Week 4 - Serious Intention: Chapter 2 p58-65

Week 4 - Capacity: Chapter 2 p65-78

The Essential elements of a contract:

1. There must be an agreement (consensus conveyed by offer and

acceptance) to perform something;
 2. There must be an intention to create a legally binding
relationship (known as animus contrahendi);

3. There must be reality of consent between parties;

4. Parties must have capacity to enter into a contract;

5. The terms of the contract must be sufficiently certain to be

enforced;

6. The contract must be possible of performance;

7. The contract must be lawful;

8. Any formalities required of the contract must be in place.

Capacity to Contract

https://youtu.be/WsZ38Je2yB0

and

https://youtu.be/lq8-JHCCuKs
Insolvency:

• Once a company has been declared to be insolvent and wound

up, it ceases to exist and loses it’s status as a juristic person,
and thus it’s capacity to contract.
Marriage:

• Under the previous matrimonial property laws, many married

women were subject to the marital power of the husband.

• This meant that they could not enter into contracts

without the permission of their husbands.

• A woman married under this system was in a similar legal

position to that of a minor.

• The Matrimonial Property Act now grants married women the

same contractual capacities to those of married men.

Mental illness:

• All persons are presumed sane unless declared mentally

disordered or mentally ill by the High Court in terms of the
Mental Disorders Act or the Mental Health Act.
 • Once a person has been declared to be mentally unsound, any
contract which they had entered into will be void if they could
not appreciate and understand the nature of it.

• Where a person had a lucid moment, when he entered into a

contract, it will be a valid and enforceable contract.

• A person of unsound mind may still incur obligations on the

grounds of unjustified enrichment.

Prinsloo’s Curators Bonis v Crafford and Prinsloo:

• A man was declared by the court to be of unsound mind.

• After this, during a moment when he understood the nature

and significance of his conduct, he married in community of
property.

• Held: that the marriage was valid.

Intoxication:

• The contract will only be void if the person was so intoxicated

that he or she had no idea of the terms of the contract or did
not know he or she was even entering into a contract.

• May still incur an obligation on the grounds of unjustified

enrichment.

Prodigality:

• A prodigal or more colloquially a spendthrift, is a person who,

through a defect of character or will, squanders his assets with
such abandon that it threatens to reduce the person or his
dependents to destitution.
 • The HC can appoint a curator bonis to care for his
property affairs. The curator retains full capacity, except
in matters relating to his property. Unassisted contracts
may be ratified by the curator.

Insolvency:

• Once someone is declared to be an insolvent, his or her estate

vests in a trustee.

• Certain restraints are placed on the insolvent’s contractual

capacity. For instance, they may not dispose of property
falling into the insolvent estate, or enter into a contract
which prejudices the estate.

• All contracts entered into by an insolvent remain valid until

canceled by the trustee.

• Criminal conviction:

• Where someone is convicted of certain crimes – usually relating

to money and trust – they may not be appointed as a director of
a company

• Alien enemy:

• All contracts entered into with any person living or carrying on

business in enemy territory are prohibited.

• As a general rule should one of these factors be present, the

contract is void.
 • A guardian may enter into contracts on behalf of minors
regarding their maintenance and estate

HOWEVER,

• where a contract entered into on behalf of a minor proves to be

prejudicial to him the minor may, upon majority, apply to the
HC to cancel the contract and obtain restitution of his entire
performance.

• The minor must show that the guardian consented or

acted in a way in which no reasonable person would have
done.

• The minor restore to the other party any benefit which he

received under the contract and has under his control and
possession at the time of the court matter.

• The prejudice must be substantial, not trivial.

• A fraudulent minor will probably not be able to claim

restitution in integrum. That is to say, they will not be
able to claim back the performance which they rendered
in fulfilling the terms of the contract.

The contractual capacity of minors over 7:

• Deemed by law to possess an independent will, but lacks

maturity of judgement.

• These minors have limited contractual capacity, and require a

guardians assistance (may also requires the assistance of the
guardian in court.

• Where the parents are married, they are joint guardians

of the minor. Each of them is able to exercise
 independently any right or responsibility arising from their
guardianship.

The contractual capacity of minors over 7:

• A guardian must administer and safeguard the child’s property

interests, and assist or represent the child in administrative,
contractual and legal matters.

• Where a child is born outside of marriage the sole guardian is

the mother, unless she is herself a minor, in which case her
guardian will also be guardian of the child.

The contractual capacity of minors over 7:

• The High Court is the upper guardian of all minors – it’s

decisions override even those of a parent.
Minority is terminated either on achieving the age of 18 years or on
marriage or with emancipation

• All contracts entered into by a minor without assistance are

void, even if it is to the minors advantage. In Edelstein v
Edelstein the court set aside an antenuptial contract which had
been entered into by a minor prior to her marriage. Even
though the guardian had agreed to the contract of marriage, he
had not given permission to enter into the antenuptial contract.

2) Married persons under the age of 18 years:

• These ‘minors’ have full contractual capacity as they are now

majors in the eyes of the law.

• A guardian must consent to the minor marrying in the first

place.

• Where the female is between 12 – 15, and the male 14 – 18

years of age, the consent of the Minister of Home Affairs is
necessary to marry.
3) Emancipation:

• The law accepts that minors may work for a living.

• Guardians may allow, expressly or impliedly, the minor to

control his own affairs. Permission may be granted to a lesser
or greater extent. Separate residence and financial
independence are factors considered by the court in deciding
whether the guardian has released the minor.

Dickens v Daily:

• A minor was sued on a cheque and raised the defence of

minority – and thus incapacity…

• The plaintiff alleged that the minor was tacitly emancipated.

He had been living with his mother and stepfather for the past
12 years, contributing an amount for board and lodging, he had
been employed as a bank clerk for four years, and he had
operated a bank account unassisted.

Dickens v Daily:

• His father lived in another province and did not exercise any
control over him.

• Held: the minor had been tacitly emancipated.

Emancipation:

• The guardian must have actually given some kind of consent for
the emancipation. Simply establishing that the guardian shows
no interest in the minor, does not prove that the minor has been
released from the guardian’s authority.

4) Ratification:
 • Any contract entered into by a minor without the guardian’s
consent can be confirmed by the guardian or by the minor
himself on reaching majority.

• Once ratified, the contract is valid from the date of the

agreement.

5) Statutory Exceptions:

• Various statutes have enabled minors to enter into certain types

of contractual or legal arrangements without their guardian’s
assistance.

• The Children’s Act allows a child over the age of 12 to consent

to medical treatment - provided that he/she has the capacity to
understand the implications

5) Statutory Exceptions:

• In terms of the Choice on Termination of Pregnancy Act, a

female minor, irrespective of age, does not require the consent
of her parents for the termination of a pregnancy.

5) Statutory Exceptions:

• The National Road Traffic Act provides that a person who is 17

years or older may obtain or hold a learner’s driving license.

• In terms of the Wills Act a minor of 16 years may make a valid

will.
There are three forms of marital regime today:

• Community of Property: both spouses’ separate estates are

joined upon marriage, and is now owned by the spouses in
equal undivided shares.

• Out of community of property (with / without accrual):

• Spouses sign an antenuptial agreement before marriage.

• Both spouses have full contractual capacity towards their

own estates and are not liable for each other’s debts.

Accrual:

• The spouses can enter into the accrual system.

• A commencement value for the estate of each spouse is

agreed upon at the beginning of the marriage. At end of
the marriage, the final value of each estate is calculated.
 The difference in growth between the two estates is
divided and shared equally.

• Inheritances, legacies, and donations are excluded from the

accrual.