Study unit 5.

2
Private law
• Private law regulates the relationship between private persons,
in other words, persons acting without state or political
authority.
• Private law most often comes into play in important social
relationships such as when people:
• Conclude a contract
• Become engaged, married or divorced
• Claim compensation from one another because of a wrongful act
• Determine the transmission of their estate on their death.
• None of the parties in the private law relationship acts
with state authority or power.
• However, while we have seen that the
state/government is the main actor in the public law
domain by virtue of it having power and exercising
political authority, this does not mean that it cannot
also be a party to the private law domain in certain
instances where it does not act as the state with public,
political authority.
• As with criminal law, private law can also be
divided into substantive private law and
adjectival private law.
 Substantive Private law
• It is intuitive to assume that people or persons are the
main subjects of law.
• From everyday life, however, we know that law also binds
and regulates 'non-persons' or a collection of persons
working towards one goal such as banks, universities,
churches and companies.
• These entities or institutions are clearly no 'persons' in the
strict sense, but rather a collection of persons acting as
one entity.
• The fact that they are regulated by law means that they
are regarded by the law as being one person.
• Whereas a single person for the sake of regulation by law
is called a natural person, these collections of persons are
called juristic persons and are as subject to the law as
natural persons are.
• This means that where practically possible, all the areas of
private law are equally applicable to a bank, for example,
as they are to a natural person.
• Clearly then, matters that family law regulates would
hardly be applicable to a bank as we shall see below.
• In these 'absurd' instances, certain divisions of the
private law are not applicable to juristic persons.
• The following are all sub-categories of substantive
private law which provide the substantive private law
provisions for those instances where people (or the
state) act without state authority:
• Law of persons
• Family law
• Property law
• Law of obligations, including the law of contract, delict
and succession
• Law of personality.
 Law of Persons
• In its most general sense, the law of persons
determines what a person is in the eyes of the law.
• It determines a person's status and his or her standing
in law.
• The law of persons clearly affects everyone as it forms
part of the South African objective law which orders
the conduct of legal subjects as entities capable of
holding rights, duties and capabilities.
• 'Legal subjects' is the way in which persons are referred to in
law.
• However, not every legal person is necessarily a human
being.
• The law recognises two classes of persons, namely natural
and juristic persons – both have legal personality.
• Thus a company listed on the Johannesburg Stock Exchange
could conceivably also fall under the remit of the law of
persons.
• Animals and deceased people, however, are not
classified as persons and do not have legal personality.
• Legal personality begins on the day of birth.
• This immediately raises questions about the legal
status of the unborn child.
• You will learn more about the position of unborn
children and abortion in the law of persons.
• You will also learn about the end of legal subjectivity
including the legal requirements for death, the registration of
death and the presumption of death.
• The law of persons further deals with important issues which
affect the person such as domicile and citizenship, adoption,
minority, prodigality, curatorship, insolvency and legal
capacity.
• In dealing with the law of persons, issues of race, custom and
religion are often also important.
 Christian Lawyers Association of SA v Minster of
Health 1998 (4) SA 1113 (T)

• Transvaal Provincial Division of the High Court of South Africa ruled on

the constitutionality of the Choice on Termination of Pregnancy Act,
the law which governed abortion in South Africa.
• The Christian Lawyers Association claimed that abortion violates
section 11 of the Constitution, which provides that "Everyone has the
right to life."
• The state noted an exception on the grounds that constitutional rights
do not apply to fetuses and that there was therefore no case to
answer.
• The court accepted the government's argument and the case was
dismissed ruling that constitutional rights only apply to born people
and not to fetuses.
• The Constitution does not explicitly mention abortion, but two
sections of the Bill of Rights mention reproductive rights.
• Section 12(2)(a) states that, "Everyone has the right to bodily and
psychological integrity, which includes the right [...] to make decisions
concerning reproduction," while section 27(1)(a) states "Everyone has
the right to have access to [...] health care services, including
reproductive health care."
 Family law
• South African family law covers the legal rules
applicable to family relationships such as the
relationships between parents and children, and
between spouses.
• It is a subdivision of the substantive private law and
regulates the origin, content and dissolution of the legal
relationships between husband and wife, parties in a
civil union, parents or guardians and children as well as
the relationship between other relatives.
• In family law, you will learn more about the legal
nature and types of marriages in South Africa
including civil and customary marriages.
• You will learn about the recognition of Muslim and
Hindu marriages, for example, as well as the statutory
protection afforded to same-sex partnerships in the
Civil Union Act 17 of 2006.
• You will also learn about the legal implications of
domestic partnerships between people of the
opposite sex, the process of getting engaged, as well
as about the legal rules regulating divorce.
• You will also learn more about the regulations of
domestic violence based on, among others, the
content of the Domestic Violence Act 116 of 1998.
 Property law
• It deals with legal persons' ability to undertake certain
actions with regard to certain types of objects (res).
• Thing (res): Everything that can be the object of a
right; anything that have monetary value.
• Property law, in essence, regulates the rights of
people over certain types of objects or things.
• Things are usually the property of someone, hence property
law.
• The main function of this branch of the law is to regulate the
competing interests of the legal subjects acquiring property
rights and interests.
• Since 1996, the Constitution also affords protection to
certain proprietary relationships such as the rights that
indigenous communities vest in historical land.
• In property law, you will learn more about the notion of
ownership and the protection thereof as well as the
range of forms of property rights that exist including
real security, servitudes, mineral rights, land rights and
water rights.
• You will also learn about ways in which property could
be expropriated by the state (see s 25 of the
Constitution) and the ways in which ownership in
property is transferred.
 Intellectual property law
• Intellectual property also regulates property, but in
this instance it is a specific type or kind of property.
• People do not only own or control movable and
immovable property such as a car or a house.
• They could also, for example, own a song that they
have written and performed.
• However, the song is abstract and cannot be tangibly
perceived in the same way as a house.
• Yet, if the song reaches the charts, it could earn the
owner a lot of money.
• If someone else wants to perform the song, he or she
must obtain the express permission of its creator and
pay that person a certain amount of money for this
privilege
• You are also not allowed to download a film or a
television series from the Internet because they are
the intellectual property of the creators.
• Downloading them without permission and payment
of the relevant fee to the creator amounts to theft.
• Intellectual property law then regulates and protects
the intellectual property rights someone has to his or
her intellectual property, for example patents,
copyright and trade-marks, and the concomitant
duties the rest of the world has with respect to this
property.
 Law of obligations
• The law of obligations is that part of patrimonial law
which regulates personal rights and obligations.
• Patrimonial law – all rights and duties of an individual
that can have an economical value, that can be
measured in money.
• Personal rights and obligations stem from contracts
and delicts, which are subdivisions of the law of
obligations.
• Law of contract: deals with how different forms of contract
come into being, are managed and terminated, and the
results that flow from premature breach of agreement.
• Law of delict: The law of delicts is a significant branch of
South African law dealing with the circumstances in which a
person can claim compensation from another for harm that
has been sustained.
 Law of succession
• The law of succession deals with what happens to a
person’s estate after he or she dies.
• A person can choose how this should occur and to
whom to leave all his or her possessions by drafting a
document called a will, in which case the person will
die testate
• Alternatively, a person can allow his or her estate to
devolve or pass to other people without a written will
by operation of the law.
• In this case, the person is said to die intestate.
• The rules for both testate and intestate succession are
grouped together under the law of succession.
• The law of succession also describes how to draft,
formalise and execute a will.
 Personality law
• Personality rights are distinct types of rights.
• They should not be confused with subjective rights which are
regulated by the law of persons discussed above.
• Personality rights instead relate to issues of someone’s
personality such as a good name, honour and reputation.
• People often feel that their good name or reputation has
been violated by, for example, a report in the newspapers.
 Adjectival Private law
• Law of civil procedure and civil evidence
 Civil procedure
• As a branch of adjectival law, civil procedure is the
body of law concerning the claiming of relief by
means of civil proceedings in a court of law, for
example the magistrates’ courts, the High Courts or
the Constitutional Court.
• In civil procedure, you will learn about the different
sources of South African civil procedure and evidence,
the different models or types of proceedings for
resolving civil disputes resulting from, for example,
delicts, and the jurisdiction and specific procedures of
the different civil courts in the country.
 Law of evidence
• The law of evidence is closely related to the law of civil
procedure and regulates the manner in which witnesses
should testify in court and what types of evidence are
considered to be admissible and inadmissible in a court.
• While studying civil procedure and evidence, you will
also realise that court trials in South Africa work in a
fundamentally different manner to those in England or
the United States of America.
 Hybrid sub-disciplines
• Some legal discipline cannot be categorised as
belonging solely to any one of the above categories,
with their content frequently overlapping the public-
private law and even the national-international divide.
• The sources of law in which the rules of these sub-
disciplines are contained are frequently mainly
statutory in nature.
• Environmental law: Focus on sustainable
development and environmental issues, including the
design and enforcement of legal rules relating to
climate change and protecting plants, animals and
people from pollution.
• Educational law: Sets out the rights and duties of
those involved in the SA school system
 Commercial law
• Deals with the branches of law important to
commerce or trade and industry.
• Banking law
• Law of insolvency
• Labour law
• Taxation law
• Insurance Law
End of semester

Thank you!