Understanding What is Law: A Comprehensive Overview

The South African legal system is a hybrid based on the region’s history and various influences. It draws from Dutch civil law, English common law, and customary Indigenous African law. 

South Africa has established an independent judiciary that guarantees all South African nationals equality before the law. The Constitutional Court is the highest court in the country, and its decisions cannot be challenged. Under this are the Supreme Court of Appeal, High Courts, and Magistrate Courts.

In this article, we will cover what is law, the types of laws in South Africa, and the qualifications required to practice law.

What Is Law?

Law is a set of guidelines and rules that help to govern a country efficiently. When one thinks of what is law, it encompasses court orders, ordinances, rules of the South African constitution that are formally recognised and imposed on society.

The purpose of the law is to provide justice, order and equality to all who fall under its influence. South African law applies to all South African nationals and residents of the country. It can apply to criminals, corporations, the environment, and children.

Amending and making provisions to existing laws is essential to keeping up with changing times. The law reflects the needs and values of the communities it helps to protect.

Read more on the Various Types of Law Degrees Available in South Africa

What are the Types of Laws in South Africa?

While most lawyers complete an undergraduate degree in Bachelor of Laws (LLB), it does not offer them the expertise to practice all types of law. This is because each type of law is governed by its act, including provisions and related matters.

A person practising law in South Africa is called a lawyer. However, they can be further differentiated as attorneys and advocates. Before they gain a deep understanding of what is law and are qualified to practise, they attend law schools, gain practical experience and pass an external examination before admission. However, the nature of their apprenticeship, examinations, and the manner in which they operate varies.

Attorneys deal with clients directly and are the first point of contact. Advocates are approached by attorneys to represent their clients in court. Most advocates and attorneys specialise in a particular field of law to gain expertise. 

When discussing what is law, it is not one set of guidelines that defines all sections of society. Let us examine the different types of laws in South Africa.

• Criminal Law: This law is governed by the Criminal Procedure Act, which defines the various crimes that are prohibited and are punishable. These include violent and non-violent crimes such as fraud, assault, counterfeiting, kidnapping, etc. 

• Civil Law: It relates to solving disputes between people, things, and the relationships that influence them. Civil cases that reach the court demand compensation or a solution, not necessarily a sentencing. These laws include property and family disputes, personal injury, and defamation. 

• Constitutional Law: When defining what is law, this could be referred to as the most important law in South Africa. It regards the implementation of the South African constitution. The remaining laws in the country need to abide by what is laid down in the constitution.

• Administrative Law: This area of law deals with the actions of public authorities or government agencies. It allows South African nationals to challenge the decisions of public bodies if they feel that their actions and/or decisions harm the public.

• Commercial and Business Law: It covers the rights of individuals and corporations conducting business. Commercial and business law defines how businesses are set up, how they operate, and the rights of business owners. It also helps to define mergers and acquisitions and how sales are handled. 

• Labour Law: The Labour Relations Act of 1995 protects employers’ rights. It covers contracts, working conditions, minimum wages, and more. Labour law helps to resolve any issues that arise between employers and employees.

Read more on How to Become an Advocate in South Africa

What is the Difference Between Common Law and Statutory Law?

The laws of South Africa are not set by an individual but are defined by court precedents and legislation passed by the Parliament. Common Law and Statute Law are the two main sources of laws in the country. Understanding the source of laws in South Africa is also important to gain a precise understanding of what is law.

Common Law is developed through court proceedings and the rulings passed by presiding judges. It is created when judges use existing laws to pass judgment after trials. The opinions of the court will be followed by all the lower courts within that jurisdiction. 

Statutory Law is formed when a Bill is introduced in the National Assembly or the National Council of Provinces. The Bill is debated and amended before it is finally passed and then signed into an Act by the President of South Africa. Some examples include the Basic Education Laws Amendment Act, the Labour Relations Act, and the Criminal Procedure Act.

The table below lists the differences between common law and statutory law in South Africa. 

What are the Law Qualifications in South Africa?

Before becoming a practising lawyer in South Africa, an individual must complete an undergraduate law degree. Regenesys School of Law offers offline and online LLB programmes. Before the end of the undergraduate degree, students must decide whether to become practising attorneys or advocates.

The practical training and the external exam are different for both these types of lawyers. To display a deep understanding of what is law, students must take a proactive approach during training and for their exams.

Becoming a Criminal Attorney in South Africa

1. Complete LLB
2. 2 years of Articleship at a registered law firm
3. Pass the Attorneys Admission Exams
4. Apply to the High Court for admission into the profession

Becoming a Criminal Advocate in South Africa

1. Complete LLB
2. 1 year of pupillage under an experienced advocate
3. Pass the Bar Exam
4. Apply to the High Court to be admitted into the profession
5. Register with the Legal Practice Council
6. Be admitted to the Bar of the area in which you wish to practice

A lawyer can choose to gain expertise in a field of law through practical experience or to complete a Masters of Laws (LLM).

Careers in Law

The scope and depth of law are vast, and they require the expertise of several different professionals to help the legal system function smoothly. A career in law can see professionals visit the courtroom for trial or they can work in corporations or law firms in providing support to lawyers. 

When we take an overview of what is law, it is easy to understand the symbiosis in which all the various elements contribute to maintaining and upholding the law in South Africa. These are some of the available careers in law: 

• Judge: A judge is the head of a courtroom and passes a judgement based on the evidence presented by advocates. Judges are selected from a pool of Senior Counsel and appointed by the South African President. The judge holds the senior most position in court.

• Attorney: These lawyers complete their LLB, pass their Attorney’s Admission Exams, and have gained approval from the High Court to practise. Attorneys are the first point of contact for clients. They offer legal advice and approach an advocate if a case needs to be tried in court. 

• Advocate: They are highly skilled negotiators and orators who defend their clients before a presiding judge. Advocates must join the Legal Practice Council and be admitted to the Bar before practising. They can practice independently or under the mentorship of a Senior Counsel.

• Paralegal: These are trained professionals who assist advocates during research and with notes during trials. They have extensive knowledge of the law but are not qualified as lawyers. The School of Law at Regenesys offers a Paralegal Studies Qualification.

• Law Clerk: This is an appointed position to assist judges in completing their duties. Each judge is assigned two law clerks, paid by the state. Law clerks are responsible for court records and ensuring that files are available on the case date.

Where to Study Law in South Africa?

Students who wish to become lawyers and help bring justice to those in need must pass their matric exams with a Bachelor’s Pass to qualify for an undergraduate law degree. They can apply for an LLB degree at the Regenesys School of Law, which is registered with the Department of Higher Education and Training (DHET) and accredited by the South African Qualifications Authority (SAQA) and the Council on Higher Education (CHE).

To be accepted into the LLB programme, you must have 50% in English as a Home Language and 60% if English was taken as a First Additional Language. The programme also accepts international students who wish to study and practise in South Africa. 

Read about Bachelor Pass Requirements 

Conclusion

Law is the foundation on which society operates. In South Africa, law is sourced from trial proceedings and the legislative process, which the President signed into an Act. When we define law, we refer to various acts, statutes, ordinances, and regulations. 

The legal framework employs lawyers, judges, paralegals, and clerks to ensure the efficient functioning of the system and uphold the word of the law and ensure that justice is served.

Students interested in an impactful career in law should check out the School of Law at Regenesys.

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