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SOUTH AFRICAN LAW
François Smuts
Tafelberg
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 I do not quote from textbooks, although at the end of this book I do provide a list of textbooks you can refer to if you want to know more about something I have touched on.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