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KTH CH 2 Summaries.pdf - Creation of legal rules and the...

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Creation of legal rules and the administration of Justice1Creation of legal rules and theadministration of JusticeCustom as a source of lawRequirements for a custom to qualify as a legal rule:1.Reasonable2.Existed for reasonable period3.Generally observed by the community in which it applies4.Certain and clearVan Breda v JacobsClaim of existence of custom → proveGreen v FitzgeraldLegal rules → abrogated by disuse/ by development of custom to the contraryA new custom to the contrary can abrogate a previous custom or a rule of thecommon law, but legislation cannot be abrogated by a custom to the contrary.
Creation of legal rules and the administration of Justice2Legislation can only be repealed by a body (like Parliament) which passeslegislation.Trade usage → develop into rule of lawcustomary to pay compound interest on an overdrawn cheque account and it is notnecessary for the parties to expressly agree thereto. The usage is a rule of law andwill be enforced by the courts.Legislation as a source of lawLegislation →rules of law promulgated by a body or person bestowed with thepower of creating rules of law.→ passed by a body such as Parliament→ then authorises a particular individual (such as a Minister or the President) topromulgate subordinate legislation by means of regulations or proclamations interms of the parliamentary Act.Acts of ParliamentSouth Africa’s interim Constitution, Act200 of 1993 + Constitution of 1996,→radical change in the legislativeprocess and powers of the new SouthAfrican Parliament formed in 1994.Parliamentsupreme legislative authoritymay legislate on any subjincluding matters delegatedto provincesConsists of:→ National assembly→ National Council of Provinces→ Legislation on national level is passed by Parliament.→ Act; passed by an ordinary majorityexceptions;BoR - can be amended by a 2/3rds majority
Creation of legal rules and the administration of Justice3Constitution - amended by two-thirds majority only of the members of theNational Assembly and six of the nine provinces in the National Council ofProvinces.All legislation: may be tested against the provisions of the Constitution anddeclared invalid if found in conflict therewith.The Constitution contains fundamental rightsincludes a general prohibition onunfair discriminationon the grounds of;sexracereligionethnic origin,agelanguageculture and sexual orientation.A person’s right to privacyhuman dignityfreedom of religionfreedom of expressionequality before the law and cultural lifeIn principle:legislation may not violate these rights.However, these rights are not absolute.The Constitution allows the fundamental rights to belimited by the law ofgeneral applicationto theextentthat it isreasonable and justifiablein anopen and democraticsocietybased onhuman dignity, equality andfreedom.

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Term
Fall
Professor
S van wyk
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