Introduction to Law · Lexicon

Lexicon

Key terms explained in plain language — filter by letter or search below.

Administration of justice: The system through which the courts and legal officials resolve disputes and enforce the law fairly, independently and according to proper procedure.
Advocate: A legal practitioner who specialises in courtroom advocacy and expert opinions. Traditionally part of the referral profession — briefed by an attorney rather than approached directly by the public.
Alternative dispute resolution (ADR): Ways of resolving disputes outside formal litigation — chiefly negotiation, mediation and arbitration. Often faster, cheaper and more private than a trial.
Attorney: A legal practitioner who deals directly with clients, handles legal work and litigation, and may brief an advocate for specialist courtroom work.
Bill: A draft law tabled in Parliament. It becomes an Act once passed by the legislature and assented to and signed by the President.
Bill of Rights: Chapter 2 of the Constitution; the cornerstone of democracy that entrenches fundamental rights. It binds the state and, where applicable, private persons.
Binding precedent: A decision of a higher court that a lower court in the same hierarchy must follow. The mechanism of stare decisis.
Case law: The body of law found in the decisions of the courts. A primary source of law; each judgment may create precedent.
Civil law: (1) The branch of law governing disputes between private parties (e.g. contract, delict), where the plaintiff sues on a balance of probabilities. (2) The civil-law tradition descended from Roman law, contrasted with the English common-law tradition.
Common law: In South Africa, the uncodified Roman-Dutch law as developed by the courts — distinct from legislation and from customary law. (Note: in England, ‘common law’ means judge-made law generally.)
Constitution: The supreme law of the Republic. In terms of s 2, any law or conduct inconsistent with it is invalid. It sets out the structure of the state and the Bill of Rights.
Constitutional Court: The highest court in all matters. The final authority on the interpretation and application of the Constitution.
Constitutional supremacy: The principle that the Constitution — not Parliament — is supreme. All law and conduct must conform to it. Contrast parliamentary sovereignty, the pre-1994 position.
Constitutionalism: The idea that government power is defined and limited by a constitution, so that the state itself is subject to the law.
Cooperative government: The constitutional principle governing relations between the national, provincial and local spheres of government, which must cooperate in mutual trust and good faith.
Criminal law: The branch of public law that defines crimes and their punishment. The state prosecutes the accused, who must be proven guilty beyond reasonable doubt.
Custom: A long-established practice that can be a source of law if it is reasonable, long-established, uniformly observed, and certain in content.
Customary law: The indigenous law of African communities. Recognised by s 211 of the Constitution and applied by the courts subject to the Constitution and relevant legislation.
Delict: A civil wrong that unlawfully and culpably causes harm to another, giving rise to a claim for damages (a matter of private law).
High Court: A superior court with general jurisdiction over its division. Hears serious civil and criminal matters and appeals from the magistrates' courts.
Horizontal application: The application of the Bill of Rights between private persons (e.g. one individual against another). Contrast vertical application.
Jurisdiction: The power of a court to hear and decide a matter — determined by geographic area, subject-matter, and (in civil cases) the amount in dispute.
Justice: The moral ideal of fairness the law strives to achieve — giving each person their due. Includes distributive justice (fair allocation) and corrective justice (righting wrongs).
Law: A system of binding rules, enforced by the state through sanctions, that regulates conduct and orders life in society.
Legal positivism: The theory that law is whatever is validly enacted by the recognised authority, regardless of its moral content. Contrast natural law.
Legal system: The institutions, rules and processes by which a society makes and enforces law. South Africa's is a mixed (hybrid) system.
Legislation: Law made by a body with law-making authority — Parliament, provincial legislatures or municipalities. A primary source, also called statute law or enacted law.
Limitation clause: Section 36 of the Constitution. A right may be limited only by law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society.
Living customary law: Customary law as actually practised by communities today, as opposed to the ‘official’ version frozen in old textbooks, codes and precedent.
Magistrates' Court: The lower court with limited civil and criminal jurisdiction — the court most people encounter. Bound by the decisions of the superior courts.
Mixed (hybrid) legal system: A legal system drawing on more than one tradition. SA blends Roman-Dutch civil law, English common law influences, customary law, and an overarching constitutional law.
Morality: Society's sense of right and wrong. It overlaps with but is distinct from law: not everything immoral is illegal, and not everything illegal is immoral.
Natural law: The theory that law derives from universal moral principles discoverable by reason, so an unjust law may not be true law. Contrast legal positivism.
Obiter dictum: A remark ‘said in passing’ in a judgment that is not essential to the decision. It is persuasive but not binding. Plural: obiter dicta.
Old authorities: The writings of the Roman-Dutch jurists (such as Voet, Grotius and Van der Linden) that remain a source of the common law where no statute or precedent governs.
Parliament: The national legislature — the National Assembly and the National Council of Provinces — which makes national legislation.
Persuasive precedent: A decision a court may follow but is not bound to — for example a judgment of a different division, a lower court, or a foreign court.
Precedent: An earlier court decision that guides later cases on similar facts. The doctrine that gives precedent its force is stare decisis.
Private law: The branch regulating relationships between individuals — the law of persons, family, property, contract, delict and succession.
Procedural law: Also called adjectival law. The rules governing how legal proceedings are conducted and rights enforced (civil procedure, criminal procedure, evidence). Contrast substantive law.
Public law: The branch regulating the state and its relationship with individuals — constitutional law, administrative law and criminal law.
Ratio decidendi: The legal reason for a decision — the principle a court applies to the material facts. It is the binding part of a judgment.
Reception: The historical process by which Roman-Dutch law (and later some English law) was adopted and took root at the Cape.
Roman law: The ancient law of Rome, gathered in Justinian's Corpus Iuris Civilis. It underlies the civil-law tradition and, through Roman-Dutch law, South African common law.
Roman-Dutch law: The law of the province of Holland — a blend of Roman law and Dutch custom — brought to the Cape in 1652. The historical basis of South African common law.
Rule of law: A founding value (s 1(c)): everyone, including the state, is bound by law. Public power must be exercised lawfully and rationally, not arbitrarily.
SAFLII: The Southern African Legal Information Institute — a free online database of South African case law and legislation.
Sanction: The penalty or consequence attached to breaking a legal rule. The backing of state-enforced sanctions distinguishes law from mere morality or custom.
Separation of powers: The division of state authority among the legislature (makes law), executive (implements law) and judiciary (interprets and applies law) as a check against the abuse of power.
Socio-economic rights: Rights of access to housing, health care, food, water and social security (ss 26–27). Subject to progressive realisation within the state's available resources.
Source of law: A place where law is found or from which it derives authority: the Constitution, legislation, case law, common law, customary law, custom, old authorities and international law.
Stare decisis: ‘To stand by decisions’ — the doctrine that a court must follow the binding precedents of the courts above it, so that like cases are treated alike.
Statutory interpretation: The process of determining the meaning of legislation. SA now follows a purposive, context-sensitive approach, reading text in the light of its purpose and the Constitution.
Subordinate legislation: Also delegated legislation. Regulations, proclamations and by-laws made under authority delegated by an Act. It must stay within the empowering statute.
Substantive law: The law that defines rights, duties and liabilities (e.g. that a contract must be performed). Contrast procedural law, which governs enforcement.
Supreme Court of Appeal (SCA): The second-highest court, sitting in Bloemfontein. The highest court in matters not involving the Constitution.
Ubuntu: An indigenous value of communal humanity — ‘a person is a person through other persons’ — recognised by the courts as informing South African law and the spirit of the Constitution.
Vertical application: The application of the Bill of Rights between the state and individuals. Contrast horizontal application, between private persons.