Understanding Pillars of Law II

Okay, good evening everyone. My name is Dr. Ada and I'll be taking you for Pillars 2. Sorry about that. I actually logged in very early and I thought everything was fine until you all couldn't hear me. You've already done Pillars 1. So this is part two of pillars, which is also known as your introduction to law. So introducing you to various aspects of law. And with pillars two, we're going to go into more details on the different areas of law. The first part is going to be quite a refresher for you. In fact, a lot of the sections will be you would have learned something in other areas, in other courses. So as we're going through it, you feel like, oh, okay, I know this or I know that, and that's great. So as we proceed with this clause, please, we expect full participation from everyone. No question is ever stupid. Ask as many questions as you want. The ones I can't answer, I will. I will refer you to somewhere to get the answers or I can come back with the answers for you. I'm not in the best position to answer your administrative questions, so please, please, if you have administrative questions, take it to Student Support. They will provide answers for you. You can email them and they'll give you feedback on it. All right, we are going to have a different segment. So the first session will, the first segment we just teach and then we'll take questions. And then after I finish a certain section, then I will take questions again so that I'm not interrupted in the process or just lost in thought during the teaching. So I know you guys all prefer different methods of teaching, but just bear with me. It just helps me to finish. every section well before I take questions. Okay. All right. So your study materials is the same study materials that you had for pillars of law one, which is your textbook. Please go through that textbook. There's also new versions of the textbooks. For those of you that have bought it, that's great. That's fine. I stand to be corrected, but I think there was an email that was sent out saying. Just be careful how you get updated versions of the textbooks. Wait for communications first as well. So I just wanted to point it out there for those who haven't received that communication. Then with case law, we're going to have a few case law that we'll look at. But you can find the prescribed case law in your source reference in each under each study units of theme. within the study guide. You can also find it in various law reports, your prescribed textbooks, and we have a copy of the textbook in the library that you can have a look at or ask if you can even borrow it. All right, so basically in this module the primary outcome or rather this course, we no longer call it modules, we call it courses. So in this course, the idea really is for you to be able to explain and compare South Africa's legal system with those of some other countries. So at the end of this course, you should be able to do that, bearing in mind also that you've already done pillars of law one. In pillars of law one, we had looked at the historical underpinnings, the development of the South African law. hybrid system how it works and what it comprises of but here in this particular section we'll look at more than just the historical development we'll look at different areas of lawyer civil procedure your criminal procedure and other areas of law would look at the processes the the procedures and various practical elements of law as well will be discussed in pillars of law too So the first section will be your private law. So we'll look at private law. What is private law? We'll also look at... Under private law, what are the components of private law? Things like your legal subjectivity, your capacity. This is the capacity of individuals, capacity of legal objects, legal subjects versus legal objects. We'll look at all that. Then, like I say, different areas of law, your law and civil procedure. We'll look at criminal law. We'll look at law and criminal procedure. And then we'll also look at evidence, which is your law of evidence. So let's start with private law. Here are the sources that have been used. You will get a copy of the slides. So here are the sources that have been used. Please do make an effort to source them out. Some of the articles as well, source them out and read them in your own time. Okay. So let's start with outcomes for private law. The first thing is be able to... private law. Of course, for those of you that have already, in fact, all of you that have done Pillars of Law 1, you would have noted that there are ways to get like really easy marks, and some of it is definitions. So be able to define private law. It could come out as a question, short question, and you could easily get like three marks, four marks from it. And then also be able to distinguish or discuss the distinction between positive law and and natural law, discuss law in a subjective sense, and explain the positivist legal theory. A lot of this we've also done in Pillars of Law 1, so it would be a major refresher for you, so I'm expecting maximum engagement here. Okay, so we're just going to do a brief activity because we've done, we know what private law is. Let's even start from there. What is private law? Does anybody want to volunteer to give us the definition before we go to the activity? What is private law? If nobody raises their hands, I'll randomly pick anyone. You can just put up your hand and I will pick you out. What is private law? what is private law yes rex um private law um is the law that regulate a legal subject to legal subject in other words person to person another way it is um thank you let me pause there no continue well i was saying it involves what we call horizontal relationship because it's about person to persons person to person that's correct thank you so much and um what's the distinction between positive law and natural law um anybody want to volunteer apart from rex rex you've already taken the first one bongiwe distinction between positive law and natural law This one should be so easy. Yes, Taliwe. Okay. With the public law, it determines the extent of estate authorities and the private, it regulates relationships between persons to persons. Okay. Thank you so much for that. We've moved from the first point to the second one, which is the distinction between positive law and... natural law. Confidence, you want to give it a shot? Yes, Nklobo? Yes, positive law is that law is when the people that decide the law look at the law as it is and not what it's out to be, and then natural law is more flexible in that it can be transformative. And it is what law can be and not what it is, but what it ought to be. Correct. That's the most simple definition you can have with respect to the difference or the most simple distinction between positive law and natural law. Positive law, the law is what it is and not what it ought to be. Natural law is the law is what it ought to be and not what it is. With natural law, we're looking at ethics. We're looking at morality and all. With positive law, we're just saying. we're looking at the statute as it is we're not concerned about any other extrinsic factors, we stick to what the statutes say and that's it. Then when we talk about law in a subjective sense, what do we mean? Law in a subjective sense. Anyone want to try? Yes, Taliwe. Oh, in a subjective sense, it's where the traditional is divided into public and private. Okay. Divided into public and private. Private law. Okay. Anybody else want to give it a shot? Di como? Dion, Elanio, anyone? Remember when we talk about your subjective rights, basically, we're talking about, okay, Dikale? Well, just to try it, I would say the law in this particular sense. should at least include transformation or transformative. In other words, the law should not necessarily be what it is, but it also takes the aspect of what it ought to be. In other words, it must be subjected to particular theories. Thank you. Okay, thank you. So when we look at legal subjectivity, the... Basically, what we're talking about is the subject, the legal subject itself and their rights and duties. And the legal subject itself is basically the quality of the legal subject in terms of the law, right, in the eyes of the law, in simple sense. So every legal subject, right, for you to be a legal subject, you have. rights and duties, you have capacity to act, you have all that bestowed upon you once you become a legal subject. So we're looking at the law in a subjective sense, which is the law that has endorsed all these rights and duties on this legal subject. But we're going to go into more detail into it as well. The positivist legal theory, same thing when it comes to positive law, the law is what it is. not what it ought to be, but then we have various legal philosophers that speak to the positivist legal theory, which is strictly that it is the law as it is and not what it ought to be. So briefly, we are going to just to ensure that you all understand the difference between positive and natural law. We are going to split up into two groups briefly. It's just going to be a five to ten minute exercise maximum. OK, and it is your responsibility in your group to come up to create a brief case study where the legal positivism or natural law approach was applied to resolve legal issues. So you need to show us how the legal positivism and natural. Law approaches used in a case in the case and discuss the outcomes. So if you remember, if you remember one of the cases that we did in the past, right, during the apartheid era in I don't quite remember the name of head, but I'll give you the fact. So what happened was what is it? the different areas, the areas were divided, white people were not, there was so much segregation, white people were not supposed to pass through those areas, black people were not supposed to pass through those areas, however, a group of black people did pass through the areas and when it went to court and even went to reside in those areas and when it went to court, their primary issue was you were not supposed to go there, the law says you're not supposed to go there, irregardless of the fact that it wasn't morally right, that law in itself wasn't morally right, but they still proceeded to penalize them for passing through that area. So in this particular case, what we're expecting you to do is come up with a case scenario, right, where legal positivism or natural law approach could possibly be applied. Okay. Come up with a case study. Okay. This is just your activity. It doesn't have to be anything complex. This is a simple activity. It doesn't have to be anything complex where either the legal positivism or natural law approach is applied. And then also discuss those approaches in that case and possible outcomes as well. Okay. Timber, your hand is up. Good evening, everyone. Good evening, Doc. Good evening. I'm just wanting to ask if there are any slides posted. I seem to be in the dark here. You can't see my slides? No, ma'am. On Teams? Yeah, I can't. Oh, sorry. Okay, try and log out and then log back in again. okay okay cool so um i'm just going to split everyone into two rooms and then we'll do that quickly and um come back all right which room is which one um so there's room one and there's room two Room one, you guys can take. OK, I'll come into each room. OK, just to make sure that the person assigned to facilitate the discussion actually is in that room and not out. So I'll come into each room after I speak to you guys. Yes, it looks like others have been removed. Okay, I'm not sure what group is this and whether we should tackle a natural law or a positive law because we were told that our lecturer will come and give further directions. or maybe in the interest of time we can do both colleagues are you here yes we are in that direction in the interest of time we can do both we can just talk about positive law define it and give some scenario in a form of a case law and do the same on natural law and give some scenario in the form of case law and that is it where it was applied okay um is it okay okay let me just um if i can share what i have here is the case that she spoke about um which speaks to legal positivism and it is the s versus adams this is winner case so whereby there was a colored and an indian family that moved from a colored an Indian area to a white people area. But then because the group areas at that time did not permit that kind of migration, then it didn't matter that it was not moral that they were living under unlivable conditions. What mattered was that the law did not permit them to move into a white area. So I think that we can use that case for legal positivism. and to and to add on that to say in that legal positivism the law is interpreted as is the law is law regardless of whatever circumstances or conditions that's what is all about this legal positivity positivity so i agree with you now um thank you my brother can we then quickly go to natural law how it was Sorry, Mshaba, you said the case is of Adams versus who? Mshaba? Yes, S versus Adams. Oh, it's S versus Adams. Okay. Yes, the state. The state, yes. Oh, a state versus Adams. The S stands for state. thank you for clarifying yes my sister then are we happy with the definition how a legal positivity was applied and then it clearly shows that in that case the law was interpreted as is regardless of the circumstances or the conditions of the people and in the process people were prejudiced so we agree so how let's go to brother red's here too fast okay you said the law is has or is interpreted as is correct uh-huh then you after that you wrote yeah i said in legal positivism the law is applied is interpreted as is regardless of the circumstances or conditions or prevailing conditions of um the person or the legal subject at the time are you okay now I see the thumbs up. Now let's go to natural law. We need to come up with a case law and demonstrate how natural law was applied. And then that will be it and define what is it like we did with the very same first question. any volunteer want to um take a lead on this i can try i can try brax thank you on the on the natural law approach it um it states that law is what it ought to be not what it is correct and it it believes it says that uh people are in and inherently born with the moral code. To say a person is naturally born with good moral codes and the moral values, they exist irrespective of the positive law and it believes that the positive law is derived from the natural law concept. That is what I can say. And then when we're discussing this concept they... referred us to the Mandela treason trial and the Brown Fisher case where there was a suppression of human rights and they said that those apartheid laws were very unjust and were acting in the suppression of the black people. That's what I can submit. Yeah, correct. And another case law that demonstrate how natural law was applied as we have correctly defined what is natural law because we are moving from the premise that the law is not what it is but it is what it is it ought to be it evolves and then it must take care of certain conditions of human beings and then we are saying even legal positivism derived from the very same natural law itself. One of the cases that we can cite here is S. versus Magwenyana and others. That is the case of 1995, which was a landmark case which led to the abolition of the debt penalty in South Africa. And then the court cited that natural principles such as right to life and human dignity are of paramount importance. So those are the two cases that we are sponsoring to demonstrate how the natural law is being applied. And we have also explained and defined what is natural law. Sorry to interrupt, Rex. Thank you. Sorry to interrupt, Rex. So the question says you create a brief case study, not necessarily that you should refer to the cases that we have, right? brief case study and from that case study that you create then you can tell us how the natural law approach or legal positivism is applied to resolve the legal issue. So you are the one creating it, you're not relying on precedence. Okay, fair enough. Colleagues, let's come up with scenarios. Yes, thank you. they may not necessarily based on the existing authorities but to demonstrate that we understand what we're talking about given the perfect definitions that we have provided into in legal positivism and the natural law thank you colleagues okay yeah it's tricky now i'm thinking look our definition was spot on. Let's build from that definition and build a scenario to demonstrate the application of such. Sorry, colleague. Can I quickly ask a question? Are we... Are we, is one group doing natural law and the other is doing legal positivism? No, in our case we have taken both because there were no further instruction what should, which one should we do. So we said in the interest of time we will do both and we have done both. We have provided both definitions, one for legal positivism and how it can be applied and then now we have also defined what is natural law. Now what we need to do now is just to create based on our definition in a scenario to demonstrate how it was applied. Ah okay I understand thank you in the direct. Just to recap remember we said in legal positivism the law is interpreted as is regardless of any circumstances and there was a perfect definition that was provided so we need to create a scenario to demonstrate that certain things that has to do with morality certain things that has to do with societal values and so forth were not taken into consideration we can come up with the scenario whereas on natural law we said the law is not what it is but it is what it ought to be it evolves and it takes into issues of moral, societal moral fiber, justice and all those things, humane or humanistic, all those things are taken into consideration as far as natural law is concerned. And we are saying even the very same positive law is inherently originating or deriving from the natural law. Thank you. Can I give it a try to say in the legal positivism, we can give, I just want to try to say the way I understand it, we can give an example for a democratic state and an authoritarian state to say, I will take you for example, in Zimbabwe, there is no democracy. It's an authoritative kind of a government where they actually portray an image of legal positivism to say what is law is what is written down. Even though they know that what they have written down as the law is totally against the will of the people. So they just go and write whatever they want to write and say, if you kill, I come and shoot you. They write it down. And then they are doing that to protect their power. And then when you go there, they come to you and say, what is law to us is what is written in the statute books. It is the set of rules, what is said in court. And they go to the courts. The court system is very biased to say it's politically connected. If they see that whatever you want to do will go against their will, they put their judges there. So that whatever is said in court is the law. That's an authoritative kind of leadership that I just wanted to throw as an example. Thank you. Much appreciated, my brother. It's a perfect example, a perfect scenario. So an authoritarian state versus a democratic state. The law is being applied, and what is being applied is legal positivism, and they interpret the law based on the statitude. regardless whether it does in crunch on people's right it does it violates human dignity and so forth they don't give a term they just interpret the law as is so that's a perfect example a totalitarian versus democratic state that is perfect as far as legal positivism is concerned now let's go to natural law let's craft a scenario thank you very very much my brother natural scenario deafening silence i don't know how should i interpret it does it mean we hear you just struggling to think of the situation. Hello, can I? Yes, madam. Yes. Okay. I think the way I understand the doctor said we need to find a case study. So, and then on that case study, we find the approach of legal positivism. And we also find the approach of natural. So I was thinking, how about we use something that we went through, all as South African, during the time of the vaccination policy in our workplace. I remember there were some people lost their jobs because they didn't want to take the vaccine. And. citing their constitutional rights. So I was thinking that how about we use this method of maybe if it's okay with the group, of course, use that example and find the legal positivism with that one. And when we're done, then we go to the next one. No, no, fair enough. In other words, we'll be now having two scenarios for what is it, legal positivism, because the initial scenario was perfect. That was a democratic state versus authoritarian state. The examples that we provided are powerful. But even on the COVID context, we can also do that where regulations. I think we will be Thank you very much We are told that we will be back in 10 seconds Thank you so much everyone Are we back? We are all back now I'm bringing back everyone Yes, thank you Okay, now leave with the first that we have crafted Thank you Okay Thank you so much. Let's start with the room that had Yolandi, that's room two, that had Yolandi as a spokesperson and then, or facilitator rather, and then Dion after that and then we can have Rex. Okay, Yolandi. Okay, thank you, Doctor. In our group we have Isabella will present for us But we have four points that we've made in our case study. We will be speaking on societal norms, protection by legislation. Oh, okay, okay, I'm mixing things now. We're talking about same-sex marriages, though. That's where our case study, we're building it on same-sex marriages. And then we have points that we will allude to, which are societal norms, the legislation protection, and human rights and morality. So Sabelo will speak on the first one of societal norms and morality. Sabelo over to you. Good evening, class. I was nominated here forcefully. So in our group we We said that there are two legal philosophies and jurisprudence approaches, which is legal positivism and natural law. And our group is focusing more on natural law approach. And saying natural law approach promotes the notion that law is what it ought to be and not what it is. And also it believes in the moral code. And given the case study that we have picked of safe sex and marriage, we say that the couple, be it safe sex, marriage or couple, is their choice and their way of living. And they are protected by the Constitution and the Bill of Rights. That gives them rights as citizens to live their lifestyle. as they wishes and they need not to be segregated, discriminated against or isolated in any way because of our belief systems or our religious beliefs. Our community does not often, you know, open up to this kind of relationships, even families at times. They tend to sort of segregate people who have chosen to to live in this manner thank you so much i'll pause there for now okay thank you sabella were you speaking sorry i was kicked out i was kicked out of the class um were you speaking for dion god no i'm i'm in your land is group in your land is group okay do you mind just um repeating what you said apologies for that all of it Okay, summarize it please. All right, no problem. I'm in room two. In our group, we have been assigned to come up with a case study and focusing more on natural law. So we're saying that there are two legal philosophies and jurisprudence approaches, and natural law is one of them. and saying that natural law promotes the notion that law is what it ought to be and not what it is. And also, natural law believes in the moral code. And we have picked a case study that focuses on same-sex marriages. And we say that there are societal norms of tending to segregate, discriminate against, people who fall in this ambit of marriage. And we're saying that these people are protected by law. They have rights and they are protected by the Constitution and the Bill of Rights. And they should be treated with dignity and not be discriminated against because of their sexuality and choices in life. So those are the sort of points we wanted to bring across. Okay, thank you for that. So in essence, a natural law approach is applicable to them because it goes even beyond just application of the law as it is, but you look at moral code, you look at ethics, or when it comes to same-sex marriages, correct? Correct. Okay. Dion, who's speaking for Dion? I just saw on the chat box that Dion said he was driving. Deon's book. Chairperson, I was a take-take. I was, Bradion was on his way. May I address you, Chair? Okay. All right, you may proceed. Thank you, Chairperson. From our group, we are a group that strongly, in fact, before I get there, since Raisiba is going to introduce our case that we've chosen, we are... A group that strongly believes in legal positivism, law is what it is. It is not what it ought to be. Judges are not there to make the law. The law is handed to them. They must implement the law and they must apply the law to the case that is before them. And Mrs. Raisiwa is going to just introduce our case to you. Thank you. Okay, thank you. Okay, we're waiting for the case study. We can't hear you. Unmute yourself. I think she has unmuted. It's probably the same thing that was happening to me. No, we can't hear you. Okay, try again. Try again. No, unmute and then try speaking. Okay. Does anybody, can anybody help her from the group as well? Just give us the case study quickly, please. Which group is that, Doc? It's Dion's group. Can somebody give us your case study or should we move to the next group? Yes, Dikale? I was saying that we can also ask Thabo to present in brief the other case that he proposed during the discussion. Okay, Tabo, can you please? In the absence of a racist case, yes. Okay. Yeah, okay. So this case was the second case that we discussed, state vices arms, in terms of the court seeing that when the legislature drafted the act, the group areas act. Oh, sorry, Tabo. Sorry to interrupt, please. You guys were not supposed to look at case law. You were supposed to come up with your own case study. So it's like craft your own example. So make up a case. Yes. It doesn't even have to be a case, a legal case, but come up with your own example and how legal positivism. Also, we discuss in terms of crime. Okay. Yeah. We also discuss in terms of crime that... As crime happens in every society, there's what we call relativism, where criminals are given light sentences also because there's human rights. For example, here in South Africa, in terms of a person being sentenced to a life in prison, after so many years, that person can... then also be given parole. But also, there's been so many cases where people revert back to crime and create more serious crimes. So we are saying that in terms of legal positivism, like if a person is sentenced to life in prison, that's it, life in prison, no talk of parole and any other things, because if you have a wrong society and then the law says you need to, the case that you... The crime that you committed was so serious that you should spend your life in prison. It ends there. There shouldn't be any human rights to say the person maybe spent 20 years, maybe they have repented because we have other cases in terms of where people have went back to crime and created more serious crimes. So the law needs to just end there. If you are sentenced to 15 years in jail. you need to spend 15 years. So that's one of the things that we discussed. Thank you. Okay, thank you. I mean, crime, I don't know if crime would be the best example for, you know, sentencing, life imprisonment, because there are other extrinsic factors that are applicable, and people actually don't spend their whole life. Some people don't spend their whole life in prison. You know, there's always room for parole and all that to be granted, depending on the terminology for it in criminal law, depending on how well you behave and all that in prison, whether you've been well rehabilitated, good conduct, all that stuff. So I don't know if that would be applicable with risk would be a good example with respect to legal positivism, because with legal positivism, we're saying that we don't care. what the law is. We just apply the law as it is. Yeah. So that one wouldn't be the best example. Let's move to Rex group. But thank you so much for that, Thabo. Thanks, Doc. Our presentation will be done by Ntatem, Shorwa and my team. We have defined both natural law and legal positivism. created our own scenario based on um democratic state and totalitarian state and then also there's another example of a covet epidemic where directions were issues and how uh legal positivism were applied over to you that day and followed by my beloved sister thank you hi everyone um but it just threw me under the bus now um yeah but it's more or less what he said we were discussing uh we first discussed both natural law and um legal positivism and then we defined what they were and then um we looked to uh we took zimbabwe as an example to say that zimbabwe might be a legal positivism state whereby they apply law the way it is without any regard for the morals or the situation that other people may suffer at that particular moment. Okay, thank you for that. Who's the person? And COVID is a good example because in COVID, there was no regard of what you felt, how you felt. whether it was morally right or ethically right they were just concerned about you know we have to do what we have to do at this time and that was it you know um and failure to abide by the rules then you're persecuted um who else is giving the next example rex uh porsche um i thought my example was declined No, it was not declined. Okay. Okay. Okay. We came with the the example of a study case. We said during the COVID-19 vaccination, there was a policy which was saying that all employees must take the vaccine. And with that, some of the people, if you refuse to take the vaccine, some people lost their job during that time. And so we wanted to look at it in natural law and say natural law emphasizes the justice, fairness and universal moral principle. So natural law approach is considered. So the impact of the policy on the fundamental human right was such that some people just felt that they would be violated their freedom of choice. So some people didn't want to do it, cited that their constitutional right, but the law was actually... saying that everybody, as long as you're working in a certain kind of environment, especially hospitals and whatever, must take the vaccination. Yeah, just before you come in, Doc, just to correct one aspect. Okay. on natural law it was based on legal that visit where um directions to issue issues i'm still whatever am i saying yes you're audible you were breaking up right but you're wonderful yes you are yeah we yeah we're seeing um uh regardless of ethics morals how those things directions are impacting on human dignity human rights because like the the the directions and the police were interpreted as is, we're told that that is law, that is how we ought to do it. So that is one of the examples of legal positivism and how it has been applied during a COVID-19 pandemic in South Africa. Thank you. Thank you. So with the COVID vaccinations, right, it could also be, the natural law approach could also be applicable, and that's simply because a lot of employers were taken to court. The government was sued several times. They had to prove that indeed this vaccine existed. It's not a violation of their religious beliefs. A lot of doctors refused to take it, even though it was compulsory, because, I mean, somebody, a few people argued that it was against their religion to take such vaccines. And, you know, they couldn't fire them, especially the specialists. So I think both would be applicable in terms of. freedom of movement. We didn't have a say in that. We had to stick to what was prescribed or what was legislated in terms of law. So that would be legal positivism. But in terms of the vaccine, I think it would be both legal positivism and natural law approach, but more of the natural law approach because there was a fight against it and some people actually really succeeded. I know in some organizations where they threatened to fire employees, employees actually, especially senior employees, you know, sued the company and walked away with lump sums. Of course, a lot of them were settled out of court. But, yeah, it could be both, but more of the natural law approach. Okay, so it's good that you guys all have an understanding, a good understanding of. legal positivism and natural law approach. That was the essence of this exercise. So let's move on to legal subjects. So under private law, we have legal subjects and legal objects. And we also have what we call the horizontal relationships and the vertical relationships. So when we look at the horizontal relationships among legal subjects, we're looking at person to person and then legal objects. When we look at the vertical relationship, we're looking at public and private law, which is state and person. OK, so in this particular study unit, we're going to look at the term legal subjects. We're going to define the meaning within the context of positive law, the difference between natural persons and juristic persons. We're going to define the terms natural persons and juristic persons with reference to the Constitution. and then discuss the idea of subjectivity. Okay, so let's start with legal subjects. It's anyone or anything that can be a bearer of rights and duties. So if you can't be a bearer of rights and duties, then of course you will not be identified as a legal subject. But of course we know that juristic persons also. can be considered to be bearers of legal rights and duties. So there are two kinds of legal subjects. You have human beings, that's you and I, which are known as natural persons. And then we also have juristic persons. Those are companies, entities. So any entity you can think of can be a bearer of rights and duties. All right. So positive law. When we look at the meaning of legal subjects within the concept of positive law, right, we're basically saying that positive law enables legal subjects to have subjective rights and duties, which is rights that they can attribute as their own. I'm entitled to this thing. It is mine. It's for me. And these rights are also enshrined in various legislations, okay, with respect to each other and with respect to certain objects. So an example of... a legal subject having a subjective right over a property. An example would be over a property. You have your title deed. It's your property. You do as you wish. Nobody should encroach your property. Another example would be your subjective right as a legal subject over your phone. So that would be an example of legal subjects having a subjective right over a legal object. Okay. And when we talk about legal objects, we're basically talking about things that you can hold on to. Now, juristic persons also, which are entities like we had already said, also have our bearers of rights and duties. And. These rights for juristic persons are often enshrined in various legislations. For example, our primary legislation when it comes to companies is our Companies Act. So if you want to know what a company is entitled to, what a company should do, the different types of companies, how they should run their companies, your starting point would be that. So they have all these rights that they're entitled to and the duty, which is an obligation. that is placed on them by law. If you also look at our constitution, you'll also find several provisions that speak to juristic persons as well. Okay, so these duties and responsibilities, duties and rights that they have as an entity, as a juristic person, also have to be carried out by... their members throughout. So an example of a case where juristic persons are considered to have the same responsibility as human beings would be the Blacker case, which is an illustration of a juristic person participating in private law relations, which is the same as a natural person. So let me give you an example, right? A trust. We know a trust as a juristic person, right? Not even only a trust. companies can generally enter into agreements. So I can, as a person, enter into an agreement with a company. I would enter into that company with the company in its name and with its registration number. And that's how I would fight it. So if anything happens, so if there's a breach of agreement with respect to that company, the person I contracted with is the company, not not necessarily the members of that company. And that's why you find that the company has an obligation to abide by the agreements that they entered into with me. They have an obligation to perform the duties in terms of that agreement. And if there is a breach by the company, so the company fails to enter to perform in terms of the agreement, what I then, I can't just go straight to the director of that company. I can't pursue. um, my, um, rights or my, my entitlements or any remedy that I seek against the company, I can't proceed against the members of that company or the directors of that company. For me to be able to do that, I need to go to court, um, and pierce the corporate veil. So I literally need to get an order from court to say that, um, you are entitled to pierce the corporate veil to go beyond just the company and actually, um, claim your remedies from the directors of the company. So the mere fact that the company has rights and duties, its rights and duties are also very much separate from its members. However, with the individual, once you enter into an agreement with the individual, that individual is bound by it. But who carries out the rights and duties? and whatever obligation that this company has to perform. It's the members. It's the directors. However, when there's an issue, you can't go straight to the directors and the members of that company because your agreement is with the juristic person and the company itself. Okay. So when we look at the definition of natural persons and juristic persons in terms of our constitution, the first provision, which I know you guys are all conversant with, is Section 8 of Section 2 of the Constitution, which basically states that a provision of the rule of rights binds natural and juristic persons, if and to the extent that it is applicable, taking into account the nature of the right and the nature of the duty imposed by that right. Okay, so that's just as far as it pertains to. legal subjects within the concept of positive law, defining legal subjects as well as within the context of the constitution. Examples of various juristic persons that we have, Regenesis, Escom, Cecil, there's so many companies that you can think of. These are just examples of some of those companies that would fall under juristic persons. Yes, you can sue juristic persons. Yes, juristic persons have rights and duties and obligations. They're considered as legal subjects. However, if there is a breach with respect to juristic persons, you can't pursue your rights against the members of that company because they're considered to be separate from the juristic entity. But with a natural person, if there's a breach in terms of the agreement or there's an issue between the parties, you can proceed straight to the national natural person and claim all the benefits all Claim all the remedies that you deem fit or you are entitled to in terms of the law. So let's look at the Constitution and private law. We had already said it's Section 8. So if you look at Section 8, Subsection 1, basically talks about the Bill of Rights applying to legislature, executive, judiciary, and all organs of state. Section 8.8.2 deals with... the Bill of Rights binding natural and juristic persons, and then A3 deals with application of the Bill of Rights with respect to natural persons and juristic persons and how it must be applied to each party. Okay, so whether it's a natural person or it's a juristic person. So please bear this in mind if you have any questions with, if you get any questions with respect to the application. and this would be the primary provision section to rely on which is your section 8 of the constitution any questions so far yes can you um i'm just asking a question out of clarity right so i have i i have a problem in a company um i'm buying a contract i'm an employee i am employing this company and then there's a maybe there's a sexual harassment case and it's considered a civil case is then the civil case against the person who harassed me if the person maybe is part of the executive i'm not sure like just an example is then the harassment case against the person who erased me or is it against the company because they failed to protect me in that company okay and it's just an example everyone okay so um you would you would cite the company the case is against the person who harassed you but you would cite the company as well because they harassed you in while in the premises of the company am i correct yes so You'd also side the company, but the case is against the individual. When I was talking about not going against the company, it was with respect to maybe there's a contract that has been signed and was signed in the company name and all that. When it comes to things like sexual harassment or anything that has to deal with an individual, right, maybe defamation within the office and all, you can go straight at the person who did it. But of course, in your court papers, you're going to sign the company as well. So the company will be a possibility. Okay. Temba? Temba? Yes, ma'am. I heard you mention something about piercing the corporate veil, and I just wanted to just get more clarity on what it entails. And how does one go about it? I've had an issue with someone that we sued a couple of years ago that owed the business that I work for. He owed them money. So they sued and a default judgment was issued. But when the sheriff got to the premise. to attach there was nothing there is that is that does that lead to now one piercing the corporate veil is this where you now go after the director personally and his personal assets yes so yes definitely so if the business doesn't have anything to their name and of course you can trace that the business doesn't have anything to their name bank accounts you can get a court order um for the banks to actually find out if um I mean, to disclose any accounts in the business name, but you need a court order for that. If there's no assets in their name or anything like that, then you have to go back to court and ask to pierce a corporate veil. Courts are very unwilling to permit you to pierce a corporate veil. So it's not something that you easily just get and it's not something that you can even apply on an urgent basis. I mean, if you have to prove an urgency, it needs to be a matter of life and death. And that's very difficult. court to prove when it comes to piercing the corporate veil but you can apply for it and then the court will grant you permission to go after the director so that would then mean that any asset that is in the in any of the directors names so it could be and it has to be paid off so it's not something that is owed to the bank so it has to be something that is paid off and it's in the directors name then you can go after that and claim it So that's how it really works. Okay. Last question. There was a default order granted in 2014 against this company and this director. Is it still valid? How long does it last? 2014, that's 11 years already. So did you... did enforce it, right? And you found that there was nothing. Yes, there was nothing to attack. Yes. So proceed. Go back to court. You have to go back to court. I know that after this, if you try to effect the default judgment, I stand to be corrected, but there should be some form of prescription applicable after you've tried to effect and there was nothing. So you guys should have just gone back to court, but go back to court. Ask for, apply for an order to pierce the corporate veil. And that should be fine. So you also then submit proof that indeed you tried to attach and there was nothing to attach to settle the debts that was owed to you. And yeah, you should be able to. Okay. All right. Thank you, ma'am. Cool. Rex? Thanks. Okay. I just want to check something in your scenario of a contract involving a juristic passage. You are saying if one cite the functionaries in their papers, that might not hold water because you need to state that it is this entity and perhaps you can cite then the functionaries as. respondent, fail at which that might have technical problem which may lead to a matter being struck out of court. And having said that, you are saying also the functionaries of these juristic persons, they are not necessarily or they cannot necessarily abdicate their fiduciary responsibilities. They will be still to a certain degree be held liable. Yes. functionaries because they must come and defend the entity. Am I interpreting it correctly? The first one is correct. The second part you are saying that, what, repeat it please. Yeah, I'm saying the second part is that, as far as TSE, corporate VAT, because remember, these are functionalities of the entity. Sorry, Rex, are you using... Sorry, I'm using two devices because I can hear echo. No, it's one device. Is it? Okay. Just let me finish it. I'll try to sort it out, log out, and come back. I was saying, in piercing the corporate vein, it is in the sense that much that you have dealt with the company, the functionaries of the company cannot just necessarily opticate their fiduciary responsibilities and run away. They can still be liable. And that is what we mean by piercing the corporate veil to this juristic person, because these people are functionaries, they've got responsibilities, fiduciary responsibilities to this entity. Correct. So they do have fiduciary responsibilities to the company. But what we are seeing is when you enter into the agreement, let me just meet you. Where's all that echo coming from? I've muted. I don't know where that comes from. Is this still coming to me, Doc? No, no, it's fine now. Okay, so yes, they do have a fiduciary responsibility, but you can't just go straight to them. You have to start with the company before you go to them. That's what, yes, and you're correct. That's what we mean by piercing the corporate veil. So they're still bound, but you need court's permission to be able to then go after them. Okay. All right, let's proceed. So we're now moving to capacities, different types of capacity, the differentiation between types of capacity, what is legal capacity, capacity to act. A lot of this you've done in your law of persons class. Explain what it means to have the capacity to take part in legal proceedings and define accountability. Okay, so let's test your knowledge a bit. Name the two kinds of legal subjects. It should be easy. Sorry, Doc. I don't know whether it's on my side. Your slide is not on a presentation mode. It is still projecting the law of private law, or is it on my side? Can you guys see where I am now? On my side, you asked, let's test our knowledge. Okay, great. Let's test our knowledge. The two kinds of legal subjects are? Yes, Mfobo? Juristic persons and natural persons. Great. What are the different types of legal capacity? This is from law of persons. Different types of capacity. Let's have MJ. MJ Lucas you're on mute okay no kubonga um at the capacity to act capacity to litigate and capacity to be held liable and accountable accountable reliable yeah well done okay yes Lucas your hand is up Okay, your hand is down again. All right. This is a slide that's not supposed to be there. Let's move. Okay, so when we look at capacity, basically, we're looking at ability for one to act, ability for one to present themselves, ability for one to be accountable, okay, ability for one to appear in court. And basically, legal capacity is the capacity or ability to be the bearer of rights and duties. So where your rights, like we said, no rights is absolute. Where your rights ends, another person's right begins. So once you have a right, and this right has been, these rights are provided in various legislations. With every right, there's also a duty. So an obligation on you to ensure that you do one thing to be able to continue to enjoy those rights. So different types of capacity. One capacity to act. So capacity to perform juristic acts as a lawful act to which the law attaches some consequences. With every capacity, there's always a consequence that's attached to it. Capacity to appear in court, local standing in judicio. All right, capacity to be held accountable for unlawful acts. So this is linked to your ability to understand wrong and right. Do children have legal capacity? Do they have the ability to have legal capacity? It depends on the age. It depends on the age, correct. It depends. And what about emancipation? Does emancipation play a role where children are concerned in determining their capacity, their legal capacity? Yes, correct. Okay, so legal capacity, it's the rights to have duties and to have rights and duties, capacity to act, so to perform juristic acts, and first we say no capacity under the age of seven years or psychological disabilities, and then you have limited capacity from 7 to 18 years. You have full capacity when you're 18 years and older. Capacity to take part in legal proceedings, infants, psychological disabilities have no capacity at all. 7 to 18 years assisted by guardian and then 18 plus have full capacity. And then accountability. to be held accountable for unlawful act under the age of seven years no accountability, seven to 14 years presumed to lack accountability, and then 14 to 18 years presumed to possess accountability. Okay, then when it comes to capacity to act, and I know a lot of us hear this word age is just a number, but we know when it comes to capacity to act, Age is just not a number. Age is only a number when you're dating somebody. That's it. But in law, age means something. So zero to seven years. No capacity to act, cannot perform juristic act, and then guardian or parent must do the juristic act on their behalf. Seven to 18 years, you have limited capacity to act. You can perform juristic act, but you need the permission of a parent or a guardian. 18 and older, you have full capacity to act. You can perform juristic act on your own. if they don't have psychological disabilities, of course, then you're considered to be fully capable. Then when it comes to capacity to take part in legal proceedings, this is just what we've already said, 18 years and older, you have full capacity. Seven to 18 years, you have limited capacity, and you cannot appear in court with assistance of a parent or a guardian. and then zero to seven years infants, no capacity, parents or guardian have to be represented. But we know that there are girls that get married at 15 years, 16 years, or even older, and marriage can also emancipate one's capacity to appear in legal proceedings. And there are children that also approach the High Court, as the High Court is the guardian. guardian of minors so they can approach can a married minor vote good question so they can approach court for whatever they desire the high court okay I don't know if a married minor can vote that's that's a good question but I know the voting there's a voting age and I don't know if our government considers that you've been emancipated Yes, Portia, you want to answer that? No, I wanted to ask something. Just for me not to get confused, is it 7 to 18 or is it between 7 and 18? Oh, between 7 and 18. Oh, okay. Yeah. Okay, so I don't know. I don't know if they can vote. That's a very good question. 0 to 7 years, no capacity to act when it comes to performing juristic act, cannot perform any juristic act. 7 to 18, limited capacity and must be assisted by parents or guardians. And then 18 years and older, full capacity, can perform all juristic acts. Okay, so what are some of the effects of psychological disabilities on various capacities? If you are not psychologically okay, so it could be either mental issues or whatever you're going through, then you will not be considered to have capacity to act, and you cannot be held liable for any of your unlawful actions. Okay, and doli et culpi inca pax is the Latin term for that. So if you enter into... an agreement with someone who is not mentally stable. And I've been asked that question many times. How do you determine that somebody, at the time you're contracting with the person, I mean, you meet this person, right, maybe at a conference, and the person is talking to you about how, you know, they're going to do some technical, create some technical stuff, a program. let's say software program and they're looking for investors and there you are you enter into an agreement with this person because you think the idea is brilliant and then you invest a million dollars or a million rand into their development and the next thing you know after two years three years you're waiting for reports on how far the person is when they are launching and nothing is coming forth and you only discover that this person has gone through psychological disabilities when you go to court you would actually find that you had an obligation to ensure that this person that you were contracting with was psychologically able. Because first of all, they can't even appear in court. They can't represent themselves. They can't defend their case. They're not in the right mental state. The soldier, an idea which you bought and you gave them the money. How are you going to really hold somebody who's going through some psychological issues liable? So. In that particular case, they can't be held liable for their unlawful actions because they don't have the mental state to even have contracted with you in the first place. So it's your obligation to ensure that whoever you contract with or whoever you get into business with actually is mentally okay to. um enter into such business with you rex your hand is up yes i just want to check something isn't it that once a miner with got married and he automatically assumed the right and the duties that of a majority yes And if that is the case, I think maybe, you know, as far as voting is concerned, that still needs to be tested. Because this person, even upon dissolution of the marriage, he does not go back to be a minor. He remains being the majority, that adult, what is it, status. Am I correct? Yes, that's correct. But you see, right? when you're going to vote, nobody is saying, oh, have you been married before or not married? A lot of those people even that are there don't even know the legalese of all this stuff, right? They're just looking at your ID book. Oh, how old are you? So imagine that 15-year-old or that 13-year-old who's married produces their ID. The question is, are they actually of the age to vote? Because that person doesn't know that, oh. you're married so you're emancipated by virtue of your marriage. Yeah, they don't. So I don't know. It has to be tested, too. Yes, correct. Yeah, it really does have to be tested. Correct, yes. Yeah. Okay. Thanks, Doc. Thank you so much. So we're going to end here for today. Any questions so far? On a lighter note, Doc, I think in the... of marriage. We are now seeing that many when they entered these marriages, people never declared that they are mentally not sound. Some they are having some mental disabilities and they're not distressed. I think going forward, something needs to be done to that effect because we are seeing that people are not mentally fit, but when you negotiate dweller with the so-called law-born. their fame editors not disclose that this person that we are getting married to is not mentally stable he's sick mentally and then later we discover for ourselves that this person is not sound and we are deep on it now thank you so thank you there's a man who made a statement and said all women are not mentally stable to get married And every woman needs to be tested because you marry a version of this woman. In a month, you've already seen seven to ten versions of one woman that you married. Let's just leave it at that. I think both parties need to be tested because also the men are at fault. Yeah. Okay. Jessica, your hand is up. The office is listening. Greetings, Dr. Adai, and greetings, the classmate. Will, to the best of my ability. Yes. Will, to the best of my ability. Wait, somebody's my attendee. What are you listening to during class? Yes, Jessica? Yes, greetings to everyone and my compliments to everyone. I'm so sorry, I just arrived home now. I've missed the whole session. Just want to know if we will be able to receive the slides tonight. Yes. I'll send it through. I'll just upload it. All right. Okay. Thank you so much, Dr. Ada. Thank you. And yes, Sabelo, who has ever rejected a Lobola offer? Which of our uncles have ever said no to Lobola, even though they know their daughters are not okay? All right. Thank you so much, everyone. Have yourselves a good night. And we'll see you tomorrow, same time, same place. Please use the same link to log in, okay? Good night. Thanks, Doc. Thanks, colleagues. Good night, Doc. Much appreciated. Happy New Year. Good night. Happy New Year, everyone. Yes. Happy New Year. Even if we see you for the first time in November, we'll say Happy New Year. Cheers, guys.

You've already done Pillars 1. So this is part two of pillars, which is also known as your introduction to law. So introducing you to various aspects of law. And with pillars two, we're going to go into more details on the different areas of law. The first part is going to be quite a refresher for you.

In fact, a lot of the sections will be you would have learned something in other areas, in other courses. So as we're going through it, you feel like, oh, okay, I know this or I know that, and that's great. So as we proceed with this clause, please, we expect full participation from everyone. No question is ever stupid.

Ask as many questions as you want. The ones I can't answer, I will. I will refer you to somewhere to get the answers or I can come back with the answers for you. I'm not in the best position to answer your administrative questions, so please, please, if you have administrative questions, take it to Student Support.

They will provide answers for you. You can email them and they'll give you feedback on it. All right, we are going to have a different segment.

So the first session will, the first segment we just teach and then we'll take questions. And then after I finish a certain section, then I will take questions again so that I'm not interrupted in the process or just lost in thought during the teaching. So I know you guys all prefer different methods of teaching, but just bear with me. It just helps me to finish. every section well before I take questions.

Okay. All right. So your study materials is the same study materials that you had for pillars of law one, which is your textbook. Please go through that textbook. There's also new versions of the textbooks.

For those of you that have bought it, that's great. That's fine. I stand to be corrected, but I think there was an email that was sent out saying.

Just be careful how you get updated versions of the textbooks. Wait for communications first as well. So I just wanted to point it out there for those who haven't received that communication. Then with case law, we're going to have a few case law that we'll look at.

But you can find the prescribed case law in your source reference in each under each study units of theme. within the study guide. You can also find it in various law reports, your prescribed textbooks, and we have a copy of the textbook in the library that you can have a look at or ask if you can even borrow it. All right, so basically in this module the primary outcome or rather this course, we no longer call it modules, we call it courses. So in this course, the idea really is for you to be able to explain and compare South Africa's legal system with those of some other countries.

So at the end of this course, you should be able to do that, bearing in mind also that you've already done pillars of law one. In pillars of law one, we had looked at the historical underpinnings, the development of the South African law. hybrid system how it works and what it comprises of but here in this particular section we'll look at more than just the historical development we'll look at different areas of lawyer civil procedure your criminal procedure and other areas of law would look at the processes the the procedures and various practical elements of law as well will be discussed in pillars of law too So the first section will be your private law. So we'll look at private law.

What is private law? We'll also look at... Under private law, what are the components of private law?

Things like your legal subjectivity, your capacity. This is the capacity of individuals, capacity of legal objects, legal subjects versus legal objects. We'll look at all that.

Then, like I say, different areas of law, your law and civil procedure. We'll look at criminal law. We'll look at law and criminal procedure. And then we'll also look at evidence, which is your law of evidence. So let's start with private law.

Here are the sources that have been used. You will get a copy of the slides. So here are the sources that have been used. Please do make an effort to source them out.

Some of the articles as well, source them out and read them in your own time. Okay. So let's start with outcomes for private law. The first thing is be able to...

private law. Of course, for those of you that have already, in fact, all of you that have done Pillars of Law 1, you would have noted that there are ways to get like really easy marks, and some of it is definitions. So be able to define private law.

It could come out as a question, short question, and you could easily get like three marks, four marks from it. And then also be able to distinguish or discuss the distinction between positive law and and natural law, discuss law in a subjective sense, and explain the positivist legal theory. A lot of this we've also done in Pillars of Law 1, so it would be a major refresher for you, so I'm expecting maximum engagement here.

Okay, so we're just going to do a brief activity because we've done, we know what private law is. Let's even start from there. What is private law?

Does anybody want to volunteer to give us the definition before we go to the activity? What is private law? If nobody raises their hands, I'll randomly pick anyone. You can just put up your hand and I will pick you out.

What is private law? what is private law yes rex um private law um is the law that regulate a legal subject to legal subject in other words person to person another way it is um thank you let me pause there no continue well i was saying it involves what we call horizontal relationship because it's about person to persons person to person that's correct thank you so much and um what's the distinction between positive law and natural law um anybody want to volunteer apart from rex rex you've already taken the first one bongiwe distinction between positive law and natural law This one should be so easy. Yes, Taliwe.

Okay. With the public law, it determines the extent of estate authorities and the private, it regulates relationships between persons to persons. Okay. Thank you so much for that.

We've moved from the first point to the second one, which is the distinction between positive law and... natural law. Confidence, you want to give it a shot? Yes, Nklobo? Yes, positive law is that law is when the people that decide the law look at the law as it is and not what it's out to be, and then natural law is more flexible in that it can be transformative.

And it is what law can be and not what it is, but what it ought to be. Correct. That's the most simple definition you can have with respect to the difference or the most simple distinction between positive law and natural law. Positive law, the law is what it is and not what it ought to be. Natural law is the law is what it ought to be and not what it is.

With natural law, we're looking at ethics. We're looking at morality and all. With positive law, we're just saying.

we're looking at the statute as it is we're not concerned about any other extrinsic factors, we stick to what the statutes say and that's it. Then when we talk about law in a subjective sense, what do we mean? Law in a subjective sense.

Anyone want to try? Yes, Taliwe. Oh, in a subjective sense, it's where the traditional is divided into public and private.

Okay. Divided into public and private. Private law. Okay. Anybody else want to give it a shot?

Di como? Dion, Elanio, anyone? Remember when we talk about your subjective rights, basically, we're talking about, okay, Dikale?

Well, just to try it, I would say the law in this particular sense. should at least include transformation or transformative. In other words, the law should not necessarily be what it is, but it also takes the aspect of what it ought to be.

In other words, it must be subjected to particular theories. Thank you. Okay, thank you. So when we look at legal subjectivity, the... Basically, what we're talking about is the subject, the legal subject itself and their rights and duties.

And the legal subject itself is basically the quality of the legal subject in terms of the law, right, in the eyes of the law, in simple sense. So every legal subject, right, for you to be a legal subject, you have. rights and duties, you have capacity to act, you have all that bestowed upon you once you become a legal subject.

So we're looking at the law in a subjective sense, which is the law that has endorsed all these rights and duties on this legal subject. But we're going to go into more detail into it as well. The positivist legal theory, same thing when it comes to positive law, the law is what it is. not what it ought to be, but then we have various legal philosophers that speak to the positivist legal theory, which is strictly that it is the law as it is and not what it ought to be. So briefly, we are going to just to ensure that you all understand the difference between positive and natural law.

We are going to split up into two groups briefly. It's just going to be a five to ten minute exercise maximum. OK, and it is your responsibility in your group to come up to create a brief case study where the legal positivism or natural law approach was applied to resolve legal issues.

So you need to show us how the legal positivism and natural. Law approaches used in a case in the case and discuss the outcomes. So if you remember, if you remember one of the cases that we did in the past, right, during the apartheid era in I don't quite remember the name of head, but I'll give you the fact. So what happened was what is it?

the different areas, the areas were divided, white people were not, there was so much segregation, white people were not supposed to pass through those areas, black people were not supposed to pass through those areas, however, a group of black people did pass through the areas and when it went to court and even went to reside in those areas and when it went to court, their primary issue was you were not supposed to go there, the law says you're not supposed to go there, irregardless of the fact that it wasn't morally right, that law in itself wasn't morally right, but they still proceeded to penalize them for passing through that area. So in this particular case, what we're expecting you to do is come up with a case scenario, right, where legal positivism or natural law approach could possibly be applied. Okay.

Come up with a case study. Okay. This is just your activity.

It doesn't have to be anything complex. This is a simple activity. It doesn't have to be anything complex where either the legal positivism or natural law approach is applied.

And then also discuss those approaches in that case and possible outcomes as well. Okay. Timber, your hand is up. Good evening, everyone.

Good evening, Doc. Good evening. I'm just wanting to ask if there are any slides posted. I seem to be in the dark here. You can't see my slides?

No, ma'am. On Teams? Yeah, I can't.

Oh, sorry. Okay, try and log out and then log back in again. okay okay cool so um i'm just going to split everyone into two rooms and then we'll do that quickly and um come back all right which room is which one um so there's room one and there's room two Room one, you guys can take.

OK, I'll come into each room. OK, just to make sure that the person assigned to facilitate the discussion actually is in that room and not out. So I'll come into each room after I speak to you guys. Yes, it looks like others have been removed. Okay, I'm not sure what group is this and whether we should tackle a natural law or a positive law because we were told that our lecturer will come and give further directions.

or maybe in the interest of time we can do both colleagues are you here yes we are in that direction in the interest of time we can do both we can just talk about positive law define it and give some scenario in a form of a case law and do the same on natural law and give some scenario in the form of case law and that is it where it was applied okay um is it okay okay let me just um if i can share what i have here is the case that she spoke about um which speaks to legal positivism and it is the s versus adams this is winner case so whereby there was a colored and an indian family that moved from a colored an Indian area to a white people area. But then because the group areas at that time did not permit that kind of migration, then it didn't matter that it was not moral that they were living under unlivable conditions. What mattered was that the law did not permit them to move into a white area. So I think that we can use that case for legal positivism.

and to and to add on that to say in that legal positivism the law is interpreted as is the law is law regardless of whatever circumstances or conditions that's what is all about this legal positivity positivity so i agree with you now um thank you my brother can we then quickly go to natural law how it was Sorry, Mshaba, you said the case is of Adams versus who? Mshaba? Yes, S versus Adams.

Oh, it's S versus Adams. Okay. Yes, the state. The state, yes.

Oh, a state versus Adams. The S stands for state. thank you for clarifying yes my sister then are we happy with the definition how a legal positivity was applied and then it clearly shows that in that case the law was interpreted as is regardless of the circumstances or the conditions of the people and in the process people were prejudiced so we agree so how let's go to brother red's here too fast okay you said the law is has or is interpreted as is correct uh-huh then you after that you wrote yeah i said in legal positivism the law is applied is interpreted as is regardless of the circumstances or conditions or prevailing conditions of um the person or the legal subject at the time are you okay now I see the thumbs up. Now let's go to natural law.

We need to come up with a case law and demonstrate how natural law was applied. And then that will be it and define what is it like we did with the very same first question. any volunteer want to um take a lead on this i can try i can try brax thank you on the on the natural law approach it um it states that law is what it ought to be not what it is correct and it it believes it says that uh people are in and inherently born with the moral code. To say a person is naturally born with good moral codes and the moral values, they exist irrespective of the positive law and it believes that the positive law is derived from the natural law concept. That is what I can say.

And then when we're discussing this concept they... referred us to the Mandela treason trial and the Brown Fisher case where there was a suppression of human rights and they said that those apartheid laws were very unjust and were acting in the suppression of the black people. That's what I can submit.

Yeah, correct. And another case law that demonstrate how natural law was applied as we have correctly defined what is natural law because we are moving from the premise that the law is not what it is but it is what it is it ought to be it evolves and then it must take care of certain conditions of human beings and then we are saying even legal positivism derived from the very same natural law itself. One of the cases that we can cite here is S. versus Magwenyana and others. That is the case of 1995, which was a landmark case which led to the abolition of the debt penalty in South Africa.

And then the court cited that natural principles such as right to life and human dignity are of paramount importance. So those are the two cases that we are sponsoring to demonstrate how the natural law is being applied. And we have also explained and defined what is natural law. Sorry to interrupt, Rex. Thank you.

Sorry to interrupt, Rex. So the question says you create a brief case study, not necessarily that you should refer to the cases that we have, right? brief case study and from that case study that you create then you can tell us how the natural law approach or legal positivism is applied to resolve the legal issue. So you are the one creating it, you're not relying on precedence.

Okay, fair enough. Colleagues, let's come up with scenarios. Yes, thank you. they may not necessarily based on the existing authorities but to demonstrate that we understand what we're talking about given the perfect definitions that we have provided into in legal positivism and the natural law thank you colleagues okay yeah it's tricky now i'm thinking look our definition was spot on. Let's build from that definition and build a scenario to demonstrate the application of such.

Sorry, colleague. Can I quickly ask a question? Are we... Are we, is one group doing natural law and the other is doing legal positivism? No, in our case we have taken both because there were no further instruction what should, which one should we do.

So we said in the interest of time we will do both and we have done both. We have provided both definitions, one for legal positivism and how it can be applied and then now we have also defined what is natural law. Now what we need to do now is just to create based on our definition in a scenario to demonstrate how it was applied.

Ah okay I understand thank you in the direct. Just to recap remember we said in legal positivism the law is interpreted as is regardless of any circumstances and there was a perfect definition that was provided so we need to create a scenario to demonstrate that certain things that has to do with morality certain things that has to do with societal values and so forth were not taken into consideration we can come up with the scenario whereas on natural law we said the law is not what it is but it is what it ought to be it evolves and it takes into issues of moral, societal moral fiber, justice and all those things, humane or humanistic, all those things are taken into consideration as far as natural law is concerned. And we are saying even the very same positive law is inherently originating or deriving from the natural law.

Thank you. Can I give it a try to say in the legal positivism, we can give, I just want to try to say the way I understand it, we can give an example for a democratic state and an authoritarian state to say, I will take you for example, in Zimbabwe, there is no democracy. It's an authoritative kind of a government where they actually portray an image of legal positivism to say what is law is what is written down. Even though they know that what they have written down as the law is totally against the will of the people. So they just go and write whatever they want to write and say, if you kill, I come and shoot you.

They write it down. And then they are doing that to protect their power. And then when you go there, they come to you and say, what is law to us is what is written in the statute books.

It is the set of rules, what is said in court. And they go to the courts. The court system is very biased to say it's politically connected.

If they see that whatever you want to do will go against their will, they put their judges there. So that whatever is said in court is the law. That's an authoritative kind of leadership that I just wanted to throw as an example.

Thank you. Much appreciated, my brother. It's a perfect example, a perfect scenario. So an authoritarian state versus a democratic state.

The law is being applied, and what is being applied is legal positivism, and they interpret the law based on the statitude. regardless whether it does in crunch on people's right it does it violates human dignity and so forth they don't give a term they just interpret the law as is so that's a perfect example a totalitarian versus democratic state that is perfect as far as legal positivism is concerned now let's go to natural law let's craft a scenario thank you very very much my brother natural scenario deafening silence i don't know how should i interpret it does it mean we hear you just struggling to think of the situation. Hello, can I?

Yes, madam. Yes. Okay.

I think the way I understand the doctor said we need to find a case study. So, and then on that case study, we find the approach of legal positivism. And we also find the approach of natural. So I was thinking, how about we use something that we went through, all as South African, during the time of the vaccination policy in our workplace. I remember there were some people lost their jobs because they didn't want to take the vaccine.

And. citing their constitutional rights. So I was thinking that how about we use this method of maybe if it's okay with the group, of course, use that example and find the legal positivism with that one.

And when we're done, then we go to the next one. No, no, fair enough. In other words, we'll be now having two scenarios for what is it, legal positivism, because the initial scenario was perfect. That was a democratic state versus authoritarian state. The examples that we provided are powerful.

But even on the COVID context, we can also do that where regulations. I think we will be Thank you very much We are told that we will be back in 10 seconds Thank you so much everyone Are we back? We are all back now I'm bringing back everyone Yes, thank you Okay, now leave with the first that we have crafted Thank you Okay Thank you so much. Let's start with the room that had Yolandi, that's room two, that had Yolandi as a spokesperson and then, or facilitator rather, and then Dion after that and then we can have Rex.

Okay, Yolandi. Okay, thank you, Doctor. In our group we have Isabella will present for us But we have four points that we've made in our case study. We will be speaking on societal norms, protection by legislation.

Oh, okay, okay, I'm mixing things now. We're talking about same-sex marriages, though. That's where our case study, we're building it on same-sex marriages.

And then we have points that we will allude to, which are societal norms, the legislation protection, and human rights and morality. So Sabelo will speak on the first one of societal norms and morality. Sabelo over to you.

Good evening, class. I was nominated here forcefully. So in our group we We said that there are two legal philosophies and jurisprudence approaches, which is legal positivism and natural law.

And our group is focusing more on natural law approach. And saying natural law approach promotes the notion that law is what it ought to be and not what it is. And also it believes in the moral code. And given the case study that we have picked of safe sex and marriage, we say that the couple, be it safe sex, marriage or couple, is their choice and their way of living.

And they are protected by the Constitution and the Bill of Rights. That gives them rights as citizens to live their lifestyle. as they wishes and they need not to be segregated, discriminated against or isolated in any way because of our belief systems or our religious beliefs. Our community does not often, you know, open up to this kind of relationships, even families at times.

They tend to sort of segregate people who have chosen to to live in this manner thank you so much i'll pause there for now okay thank you sabella were you speaking sorry i was kicked out i was kicked out of the class um were you speaking for dion god no i'm i'm in your land is group in your land is group okay do you mind just um repeating what you said apologies for that all of it Okay, summarize it please. All right, no problem. I'm in room two. In our group, we have been assigned to come up with a case study and focusing more on natural law.

So we're saying that there are two legal philosophies and jurisprudence approaches, and natural law is one of them. and saying that natural law promotes the notion that law is what it ought to be and not what it is. And also, natural law believes in the moral code. And we have picked a case study that focuses on same-sex marriages.

And we say that there are societal norms of tending to segregate, discriminate against, people who fall in this ambit of marriage. And we're saying that these people are protected by law. They have rights and they are protected by the Constitution and the Bill of Rights.

And they should be treated with dignity and not be discriminated against because of their sexuality and choices in life. So those are the sort of points we wanted to bring across. Okay, thank you for that. So in essence, a natural law approach is applicable to them because it goes even beyond just application of the law as it is, but you look at moral code, you look at ethics, or when it comes to same-sex marriages, correct? Correct.

Okay. Dion, who's speaking for Dion? I just saw on the chat box that Dion said he was driving.

Deon's book. Chairperson, I was a take-take. I was, Bradion was on his way.

May I address you, Chair? Okay. All right, you may proceed. Thank you, Chairperson.

From our group, we are a group that strongly, in fact, before I get there, since Raisiba is going to introduce our case that we've chosen, we are... A group that strongly believes in legal positivism, law is what it is. It is not what it ought to be.

Judges are not there to make the law. The law is handed to them. They must implement the law and they must apply the law to the case that is before them.

And Mrs. Raisiwa is going to just introduce our case to you. Thank you. Okay, thank you. Okay, we're waiting for the case study. We can't hear you.

Unmute yourself. I think she has unmuted. It's probably the same thing that was happening to me.

No, we can't hear you. Okay, try again. Try again. No, unmute and then try speaking.

Okay. Does anybody, can anybody help her from the group as well? Just give us the case study quickly, please. Which group is that, Doc?

It's Dion's group. Can somebody give us your case study or should we move to the next group? Yes, Dikale?

I was saying that we can also ask Thabo to present in brief the other case that he proposed during the discussion. Okay, Tabo, can you please? In the absence of a racist case, yes.

Okay. Yeah, okay. So this case was the second case that we discussed, state vices arms, in terms of the court seeing that when the legislature drafted the act, the group areas act.

Oh, sorry, Tabo. Sorry to interrupt, please. You guys were not supposed to look at case law.

You were supposed to come up with your own case study. So it's like craft your own example. So make up a case. Yes.

It doesn't even have to be a case, a legal case, but come up with your own example and how legal positivism. Also, we discuss in terms of crime. Okay.

Yeah. We also discuss in terms of crime that... As crime happens in every society, there's what we call relativism, where criminals are given light sentences also because there's human rights. For example, here in South Africa, in terms of a person being sentenced to a life in prison, after so many years, that person can...

then also be given parole. But also, there's been so many cases where people revert back to crime and create more serious crimes. So we are saying that in terms of legal positivism, like if a person is sentenced to life in prison, that's it, life in prison, no talk of parole and any other things, because if you have a wrong society and then the law says you need to, the case that you... The crime that you committed was so serious that you should spend your life in prison.

It ends there. There shouldn't be any human rights to say the person maybe spent 20 years, maybe they have repented because we have other cases in terms of where people have went back to crime and created more serious crimes. So the law needs to just end there.

If you are sentenced to 15 years in jail. you need to spend 15 years. So that's one of the things that we discussed.

Thank you. Okay, thank you. I mean, crime, I don't know if crime would be the best example for, you know, sentencing, life imprisonment, because there are other extrinsic factors that are applicable, and people actually don't spend their whole life. Some people don't spend their whole life in prison. You know, there's always room for parole and all that to be granted, depending on the terminology for it in criminal law, depending on how well you behave and all that in prison, whether you've been well rehabilitated, good conduct, all that stuff.

So I don't know if that would be applicable with risk would be a good example with respect to legal positivism, because with legal positivism, we're saying that we don't care. what the law is. We just apply the law as it is. Yeah.

So that one wouldn't be the best example. Let's move to Rex group. But thank you so much for that, Thabo. Thanks, Doc. Our presentation will be done by Ntatem, Shorwa and my team.

We have defined both natural law and legal positivism. created our own scenario based on um democratic state and totalitarian state and then also there's another example of a covet epidemic where directions were issues and how uh legal positivism were applied over to you that day and followed by my beloved sister thank you hi everyone um but it just threw me under the bus now um yeah but it's more or less what he said we were discussing uh we first discussed both natural law and um legal positivism and then we defined what they were and then um we looked to uh we took zimbabwe as an example to say that zimbabwe might be a legal positivism state whereby they apply law the way it is without any regard for the morals or the situation that other people may suffer at that particular moment. Okay, thank you for that.

Who's the person? And COVID is a good example because in COVID, there was no regard of what you felt, how you felt. whether it was morally right or ethically right they were just concerned about you know we have to do what we have to do at this time and that was it you know um and failure to abide by the rules then you're persecuted um who else is giving the next example rex uh porsche um i thought my example was declined No, it was not declined.

Okay. Okay. Okay.

We came with the the example of a study case. We said during the COVID-19 vaccination, there was a policy which was saying that all employees must take the vaccine. And with that, some of the people, if you refuse to take the vaccine, some people lost their job during that time. And so we wanted to look at it in natural law and say natural law emphasizes the justice, fairness and universal moral principle. So natural law approach is considered.

So the impact of the policy on the fundamental human right was such that some people just felt that they would be violated their freedom of choice. So some people didn't want to do it, cited that their constitutional right, but the law was actually... saying that everybody, as long as you're working in a certain kind of environment, especially hospitals and whatever, must take the vaccination.

Yeah, just before you come in, Doc, just to correct one aspect. Okay. on natural law it was based on legal that visit where um directions to issue issues i'm still whatever am i saying yes you're audible you were breaking up right but you're wonderful yes you are yeah we yeah we're seeing um uh regardless of ethics morals how those things directions are impacting on human dignity human rights because like the the the directions and the police were interpreted as is, we're told that that is law, that is how we ought to do it.

So that is one of the examples of legal positivism and how it has been applied during a COVID-19 pandemic in South Africa. Thank you. Thank you. So with the COVID vaccinations, right, it could also be, the natural law approach could also be applicable, and that's simply because a lot of employers were taken to court. The government was sued several times.

They had to prove that indeed this vaccine existed. It's not a violation of their religious beliefs. A lot of doctors refused to take it, even though it was compulsory, because, I mean, somebody, a few people argued that it was against their religion to take such vaccines.

And, you know, they couldn't fire them, especially the specialists. So I think both would be applicable in terms of. freedom of movement.

We didn't have a say in that. We had to stick to what was prescribed or what was legislated in terms of law. So that would be legal positivism. But in terms of the vaccine, I think it would be both legal positivism and natural law approach, but more of the natural law approach because there was a fight against it and some people actually really succeeded. I know in some organizations where they threatened to fire employees, employees actually, especially senior employees, you know, sued the company and walked away with lump sums.

Of course, a lot of them were settled out of court. But, yeah, it could be both, but more of the natural law approach. Okay, so it's good that you guys all have an understanding, a good understanding of. legal positivism and natural law approach.

That was the essence of this exercise. So let's move on to legal subjects. So under private law, we have legal subjects and legal objects.

And we also have what we call the horizontal relationships and the vertical relationships. So when we look at the horizontal relationships among legal subjects, we're looking at person to person and then legal objects. When we look at the vertical relationship, we're looking at public and private law, which is state and person. OK, so in this particular study unit, we're going to look at the term legal subjects. We're going to define the meaning within the context of positive law, the difference between natural persons and juristic persons.

We're going to define the terms natural persons and juristic persons with reference to the Constitution. and then discuss the idea of subjectivity. Okay, so let's start with legal subjects. It's anyone or anything that can be a bearer of rights and duties.

So if you can't be a bearer of rights and duties, then of course you will not be identified as a legal subject. But of course we know that juristic persons also. can be considered to be bearers of legal rights and duties.

So there are two kinds of legal subjects. You have human beings, that's you and I, which are known as natural persons. And then we also have juristic persons.

Those are companies, entities. So any entity you can think of can be a bearer of rights and duties. All right. So positive law. When we look at the meaning of legal subjects within the concept of positive law, right, we're basically saying that positive law enables legal subjects to have subjective rights and duties, which is rights that they can attribute as their own.

I'm entitled to this thing. It is mine. It's for me. And these rights are also enshrined in various legislations, okay, with respect to each other and with respect to certain objects. So an example of...

a legal subject having a subjective right over a property. An example would be over a property. You have your title deed.

It's your property. You do as you wish. Nobody should encroach your property.

Another example would be your subjective right as a legal subject over your phone. So that would be an example of legal subjects having a subjective right over a legal object. Okay. And when we talk about legal objects, we're basically talking about things that you can hold on to. Now, juristic persons also, which are entities like we had already said, also have our bearers of rights and duties.

And. These rights for juristic persons are often enshrined in various legislations. For example, our primary legislation when it comes to companies is our Companies Act. So if you want to know what a company is entitled to, what a company should do, the different types of companies, how they should run their companies, your starting point would be that. So they have all these rights that they're entitled to and the duty, which is an obligation.

that is placed on them by law. If you also look at our constitution, you'll also find several provisions that speak to juristic persons as well. Okay, so these duties and responsibilities, duties and rights that they have as an entity, as a juristic person, also have to be carried out by...

their members throughout. So an example of a case where juristic persons are considered to have the same responsibility as human beings would be the Blacker case, which is an illustration of a juristic person participating in private law relations, which is the same as a natural person. So let me give you an example, right?

A trust. We know a trust as a juristic person, right? Not even only a trust. companies can generally enter into agreements. So I can, as a person, enter into an agreement with a company.

I would enter into that company with the company in its name and with its registration number. And that's how I would fight it. So if anything happens, so if there's a breach of agreement with respect to that company, the person I contracted with is the company, not not necessarily the members of that company.

And that's why you find that the company has an obligation to abide by the agreements that they entered into with me. They have an obligation to perform the duties in terms of that agreement. And if there is a breach by the company, so the company fails to enter to perform in terms of the agreement, what I then, I can't just go straight to the director of that company. I can't pursue. um, my, um, rights or my, my entitlements or any remedy that I seek against the company, I can't proceed against the members of that company or the directors of that company.

For me to be able to do that, I need to go to court, um, and pierce the corporate veil. So I literally need to get an order from court to say that, um, you are entitled to pierce the corporate veil to go beyond just the company and actually, um, claim your remedies from the directors of the company. So the mere fact that the company has rights and duties, its rights and duties are also very much separate from its members.

However, with the individual, once you enter into an agreement with the individual, that individual is bound by it. But who carries out the rights and duties? and whatever obligation that this company has to perform.

It's the members. It's the directors. However, when there's an issue, you can't go straight to the directors and the members of that company because your agreement is with the juristic person and the company itself.

Okay. So when we look at the definition of natural persons and juristic persons in terms of our constitution, the first provision, which I know you guys are all conversant with, is Section 8 of Section 2 of the Constitution, which basically states that a provision of the rule of rights binds natural and juristic persons, if and to the extent that it is applicable, taking into account the nature of the right and the nature of the duty imposed by that right. Okay, so that's just as far as it pertains to. legal subjects within the concept of positive law, defining legal subjects as well as within the context of the constitution. Examples of various juristic persons that we have, Regenesis, Escom, Cecil, there's so many companies that you can think of.

These are just examples of some of those companies that would fall under juristic persons. Yes, you can sue juristic persons. Yes, juristic persons have rights and duties and obligations.

They're considered as legal subjects. However, if there is a breach with respect to juristic persons, you can't pursue your rights against the members of that company because they're considered to be separate from the juristic entity. But with a natural person, if there's a breach in terms of the agreement or there's an issue between the parties, you can proceed straight to the national natural person and claim all the benefits all Claim all the remedies that you deem fit or you are entitled to in terms of the law.

So let's look at the Constitution and private law. We had already said it's Section 8. So if you look at Section 8, Subsection 1, basically talks about the Bill of Rights applying to legislature, executive, judiciary, and all organs of state. Section 8.8.2 deals with... the Bill of Rights binding natural and juristic persons, and then A3 deals with application of the Bill of Rights with respect to natural persons and juristic persons and how it must be applied to each party. Okay, so whether it's a natural person or it's a juristic person.

So please bear this in mind if you have any questions with, if you get any questions with respect to the application. and this would be the primary provision section to rely on which is your section 8 of the constitution any questions so far yes can you um i'm just asking a question out of clarity right so i have i i have a problem in a company um i'm buying a contract i'm an employee i am employing this company and then there's a maybe there's a sexual harassment case and it's considered a civil case is then the civil case against the person who harassed me if the person maybe is part of the executive i'm not sure like just an example is then the harassment case against the person who erased me or is it against the company because they failed to protect me in that company okay and it's just an example everyone okay so um you would you would cite the company the case is against the person who harassed you but you would cite the company as well because they harassed you in while in the premises of the company am i correct yes so You'd also side the company, but the case is against the individual. When I was talking about not going against the company, it was with respect to maybe there's a contract that has been signed and was signed in the company name and all that. When it comes to things like sexual harassment or anything that has to deal with an individual, right, maybe defamation within the office and all, you can go straight at the person who did it.

But of course, in your court papers, you're going to sign the company as well. So the company will be a possibility. Okay.

Temba? Temba? Yes, ma'am. I heard you mention something about piercing the corporate veil, and I just wanted to just get more clarity on what it entails. And how does one go about it?

I've had an issue with someone that we sued a couple of years ago that owed the business that I work for. He owed them money. So they sued and a default judgment was issued.

But when the sheriff got to the premise. to attach there was nothing there is that is that does that lead to now one piercing the corporate veil is this where you now go after the director personally and his personal assets yes so yes definitely so if the business doesn't have anything to their name and of course you can trace that the business doesn't have anything to their name bank accounts you can get a court order um for the banks to actually find out if um I mean, to disclose any accounts in the business name, but you need a court order for that. If there's no assets in their name or anything like that, then you have to go back to court and ask to pierce a corporate veil.

Courts are very unwilling to permit you to pierce a corporate veil. So it's not something that you easily just get and it's not something that you can even apply on an urgent basis. I mean, if you have to prove an urgency, it needs to be a matter of life and death.

And that's very difficult. court to prove when it comes to piercing the corporate veil but you can apply for it and then the court will grant you permission to go after the director so that would then mean that any asset that is in the in any of the directors names so it could be and it has to be paid off so it's not something that is owed to the bank so it has to be something that is paid off and it's in the directors name then you can go after that and claim it So that's how it really works. Okay. Last question. There was a default order granted in 2014 against this company and this director.

Is it still valid? How long does it last? 2014, that's 11 years already.

So did you... did enforce it, right? And you found that there was nothing. Yes, there was nothing to attack.

Yes. So proceed. Go back to court. You have to go back to court. I know that after this, if you try to effect the default judgment, I stand to be corrected, but there should be some form of prescription applicable after you've tried to effect and there was nothing.

So you guys should have just gone back to court, but go back to court. Ask for, apply for an order to pierce the corporate veil. And that should be fine.

So you also then submit proof that indeed you tried to attach and there was nothing to attach to settle the debts that was owed to you. And yeah, you should be able to. Okay.

All right. Thank you, ma'am. Cool.

Rex? Thanks. Okay. I just want to check something in your scenario of a contract involving a juristic passage. You are saying if one cite the functionaries in their papers, that might not hold water because you need to state that it is this entity and perhaps you can cite then the functionaries as.

respondent, fail at which that might have technical problem which may lead to a matter being struck out of court. And having said that, you are saying also the functionaries of these juristic persons, they are not necessarily or they cannot necessarily abdicate their fiduciary responsibilities. They will be still to a certain degree be held liable. Yes. functionaries because they must come and defend the entity.

Am I interpreting it correctly? The first one is correct. The second part you are saying that, what, repeat it please. Yeah, I'm saying the second part is that, as far as TSE, corporate VAT, because remember, these are functionalities of the entity. Sorry, Rex, are you using...

Sorry, I'm using two devices because I can hear echo. No, it's one device. Is it? Okay.

Just let me finish it. I'll try to sort it out, log out, and come back. I was saying, in piercing the corporate vein, it is in the sense that much that you have dealt with the company, the functionaries of the company cannot just necessarily opticate their fiduciary responsibilities and run away.

They can still be liable. And that is what we mean by piercing the corporate veil to this juristic person, because these people are functionaries, they've got responsibilities, fiduciary responsibilities to this entity. Correct.

So they do have fiduciary responsibilities to the company. But what we are seeing is when you enter into the agreement, let me just meet you. Where's all that echo coming from? I've muted. I don't know where that comes from.

Is this still coming to me, Doc? No, no, it's fine now. Okay, so yes, they do have a fiduciary responsibility, but you can't just go straight to them.

You have to start with the company before you go to them. That's what, yes, and you're correct. That's what we mean by piercing the corporate veil. So they're still bound, but you need court's permission to be able to then go after them.

Okay. All right, let's proceed. So we're now moving to capacities, different types of capacity, the differentiation between types of capacity, what is legal capacity, capacity to act.

A lot of this you've done in your law of persons class. Explain what it means to have the capacity to take part in legal proceedings and define accountability. Okay, so let's test your knowledge a bit.

Name the two kinds of legal subjects. It should be easy. Sorry, Doc.

I don't know whether it's on my side. Your slide is not on a presentation mode. It is still projecting the law of private law, or is it on my side?

Can you guys see where I am now? On my side, you asked, let's test our knowledge. Okay, great. Let's test our knowledge. The two kinds of legal subjects are?

Yes, Mfobo? Juristic persons and natural persons. Great.

What are the different types of legal capacity? This is from law of persons. Different types of capacity.

Let's have MJ. MJ Lucas you're on mute okay no kubonga um at the capacity to act capacity to litigate and capacity to be held liable and accountable accountable reliable yeah well done okay yes Lucas your hand is up Okay, your hand is down again. All right.

This is a slide that's not supposed to be there. Let's move. Okay, so when we look at capacity, basically, we're looking at ability for one to act, ability for one to present themselves, ability for one to be accountable, okay, ability for one to appear in court. And basically, legal capacity is the capacity or ability to be the bearer of rights and duties.

So where your rights, like we said, no rights is absolute. Where your rights ends, another person's right begins. So once you have a right, and this right has been, these rights are provided in various legislations.

With every right, there's also a duty. So an obligation on you to ensure that you do one thing to be able to continue to enjoy those rights. So different types of capacity. One capacity to act. So capacity to perform juristic acts as a lawful act to which the law attaches some consequences.

With every capacity, there's always a consequence that's attached to it. Capacity to appear in court, local standing in judicio. All right, capacity to be held accountable for unlawful acts. So this is linked to your ability to understand wrong and right.

Do children have legal capacity? Do they have the ability to have legal capacity? It depends on the age.

It depends on the age, correct. It depends. And what about emancipation?

Does emancipation play a role where children are concerned in determining their capacity, their legal capacity? Yes, correct. Okay, so legal capacity, it's the rights to have duties and to have rights and duties, capacity to act, so to perform juristic acts, and first we say no capacity under the age of seven years or psychological disabilities, and then you have limited capacity from 7 to 18 years.

You have full capacity when you're 18 years and older. Capacity to take part in legal proceedings, infants, psychological disabilities have no capacity at all. 7 to 18 years assisted by guardian and then 18 plus have full capacity. And then accountability.

to be held accountable for unlawful act under the age of seven years no accountability, seven to 14 years presumed to lack accountability, and then 14 to 18 years presumed to possess accountability. Okay, then when it comes to capacity to act, and I know a lot of us hear this word age is just a number, but we know when it comes to capacity to act, Age is just not a number. Age is only a number when you're dating somebody. That's it. But in law, age means something.

So zero to seven years. No capacity to act, cannot perform juristic act, and then guardian or parent must do the juristic act on their behalf. Seven to 18 years, you have limited capacity to act. You can perform juristic act, but you need the permission of a parent or a guardian.

18 and older, you have full capacity to act. You can perform juristic act on your own. if they don't have psychological disabilities, of course, then you're considered to be fully capable. Then when it comes to capacity to take part in legal proceedings, this is just what we've already said, 18 years and older, you have full capacity.

Seven to 18 years, you have limited capacity, and you cannot appear in court with assistance of a parent or a guardian. and then zero to seven years infants, no capacity, parents or guardian have to be represented. But we know that there are girls that get married at 15 years, 16 years, or even older, and marriage can also emancipate one's capacity to appear in legal proceedings. And there are children that also approach the High Court, as the High Court is the guardian. guardian of minors so they can approach can a married minor vote good question so they can approach court for whatever they desire the high court okay I don't know if a married minor can vote that's that's a good question but I know the voting there's a voting age and I don't know if our government considers that you've been emancipated Yes, Portia, you want to answer that?

No, I wanted to ask something. Just for me not to get confused, is it 7 to 18 or is it between 7 and 18? Oh, between 7 and 18. Oh, okay.

Yeah. Okay, so I don't know. I don't know if they can vote. That's a very good question.

0 to 7 years, no capacity to act when it comes to performing juristic act, cannot perform any juristic act. 7 to 18, limited capacity and must be assisted by parents or guardians. And then 18 years and older, full capacity, can perform all juristic acts.

Okay, so what are some of the effects of psychological disabilities on various capacities? If you are not psychologically okay, so it could be either mental issues or whatever you're going through, then you will not be considered to have capacity to act, and you cannot be held liable for any of your unlawful actions. Okay, and doli et culpi inca pax is the Latin term for that. So if you enter into... an agreement with someone who is not mentally stable.

And I've been asked that question many times. How do you determine that somebody, at the time you're contracting with the person, I mean, you meet this person, right, maybe at a conference, and the person is talking to you about how, you know, they're going to do some technical, create some technical stuff, a program. let's say software program and they're looking for investors and there you are you enter into an agreement with this person because you think the idea is brilliant and then you invest a million dollars or a million rand into their development and the next thing you know after two years three years you're waiting for reports on how far the person is when they are launching and nothing is coming forth and you only discover that this person has gone through psychological disabilities when you go to court you would actually find that you had an obligation to ensure that this person that you were contracting with was psychologically able.

Because first of all, they can't even appear in court. They can't represent themselves. They can't defend their case.

They're not in the right mental state. The soldier, an idea which you bought and you gave them the money. How are you going to really hold somebody who's going through some psychological issues liable?

So. In that particular case, they can't be held liable for their unlawful actions because they don't have the mental state to even have contracted with you in the first place. So it's your obligation to ensure that whoever you contract with or whoever you get into business with actually is mentally okay to. um enter into such business with you rex your hand is up yes i just want to check something isn't it that once a miner with got married and he automatically assumed the right and the duties that of a majority yes And if that is the case, I think maybe, you know, as far as voting is concerned, that still needs to be tested. Because this person, even upon dissolution of the marriage, he does not go back to be a minor.

He remains being the majority, that adult, what is it, status. Am I correct? Yes, that's correct. But you see, right? when you're going to vote, nobody is saying, oh, have you been married before or not married?

A lot of those people even that are there don't even know the legalese of all this stuff, right? They're just looking at your ID book. Oh, how old are you? So imagine that 15-year-old or that 13-year-old who's married produces their ID.

The question is, are they actually of the age to vote? Because that person doesn't know that, oh. you're married so you're emancipated by virtue of your marriage. Yeah, they don't.

So I don't know. It has to be tested, too. Yes, correct.

Yeah, it really does have to be tested. Correct, yes. Yeah.

Okay. Thanks, Doc. Thank you so much.

So we're going to end here for today. Any questions so far? On a lighter note, Doc, I think in the... of marriage. We are now seeing that many when they entered these marriages, people never declared that they are mentally not sound.

Some they are having some mental disabilities and they're not distressed. I think going forward, something needs to be done to that effect because we are seeing that people are not mentally fit, but when you negotiate dweller with the so-called law-born. their fame editors not disclose that this person that we are getting married to is not mentally stable he's sick mentally and then later we discover for ourselves that this person is not sound and we are deep on it now thank you so thank you there's a man who made a statement and said all women are not mentally stable to get married And every woman needs to be tested because you marry a version of this woman.

In a month, you've already seen seven to ten versions of one woman that you married. Let's just leave it at that. I think both parties need to be tested because also the men are at fault. Yeah.

Okay. Jessica, your hand is up. The office is listening. Greetings, Dr. Adai, and greetings, the classmate.

Will, to the best of my ability. Yes. Will, to the best of my ability.

Wait, somebody's my attendee. What are you listening to during class? Yes, Jessica? Yes, greetings to everyone and my compliments to everyone. I'm so sorry, I just arrived home now.

I've missed the whole session. Just want to know if we will be able to receive the slides tonight. Yes.

I'll send it through. I'll just upload it. All right.

Okay. Thank you so much, Dr. Ada. Thank you.

And yes, Sabelo, who has ever rejected a Lobola offer? Which of our uncles have ever said no to Lobola, even though they know their daughters are not okay? All right.

Thank you so much, everyone. Have yourselves a good night. And we'll see you tomorrow, same time, same place.

Please use the same link to log in, okay? Good night. Thanks, Doc. Thanks, colleagues. Good night, Doc.

Much appreciated. Happy New Year. Good night. Happy New Year, everyone.

Yes. Happy New Year. Even if we see you for the first time in November, we'll say Happy New Year. Cheers, guys.

Transcript for:Understanding Pillars of Law II

Transcript for:
Understanding Pillars of Law II