South Africa- a land that boasts natural beauty and enormous cultural diversity; from vast seas, and a multitude of plant species to great mountains and a deeply-rooted heritage. It is for this reason that South Africa is known as the rainbow nation. With regards to South Africa’s legal system, it is deemed to be profound and hybrid-like. This hybrid encapsulates Roman Dutch law, the English common law, Customary law and religious personal law. The Republic of South Africa is described as a constitutional state, with the Constitution of RSA 108 of 1996 being at the forefront. Within the Constitution lies the Bill of Rights which is equally as important. All laws, both existing and new, must be in accordance with the Constitution. Legislation and laws which are found to be inconsistent with the Constitution will be presumed invalid. With that being said, in this segment we will dive into the legal realm of South Africa, primarily focusing on the requirements to be admitted as an attorney, and well-known cases that have shaped the legal system of RSA.
Becoming a lawyer in South Africa
To become a lawyer in RSA, like every other country, is an exciting but tedious journey. As stipulated in the Attorney’s Act of 1979, one must complete a four-year bachelor’s program in order to obtain the necessary LLB degree. However, many opt to first complete a bachelor’s degree in commerce law, followed by the necessary LLB degree. Doing so has proven to open more employment doors and provides the essential understanding of business operations. The long working hours begin once one obtains their LLB. The South African law requires prospective lawyers to gain hands on working experience, from a law firm or state attorney before getting admitted as an attorney. Volunteering at a legal aid organization is a viable option too. A prospective attorney is expected to gain between 2 to 5 years of this type of legal experience; serving as a regional prosecutor or magistrate is inclusive. Once serving this time, one’s journey to becoming a lawyer is not concluded. The final stage is to pass an attorney’s admission exam. This stage is crucial if one wishes to legally practice law in South Africa. Inherently, the attorney admissions exam tests the knowledge of the prospective attorney, pertaining to rules of conduct, contracts, legal procedures, legal bookkeeping and so forth. Once all these stages have been successfully completed, you are officially deemed a lawyer in South Africa. A few requirements to ponder on when seeking to become a lawyer in RSA include: establishing one’s moral shape to become a lawyer, attending a practical legal training course and being interviewed by a panel of senior members of the Law Society. From this point on, a newly admitted attorney can either venture off and open their own law firm, work for existing law firms or for the state. The choice is theirs.
Criminal cases which have impacted the legal system of South Africa
The present-day state of South Africa has broadened its powers to such a degree, that the necessity to safeguard the freedom of individuals is needed now, more than ever before. As a result, the principle of legality is enormously imperative. The principle of legality is characterized as an apparatus to guarantee that the state, it’s subordinates and officials do not regard themselves as greater than the law. In regards to criminal law, the principle of legality completes the essential exercise of restraining the arbitrary punishment of citizens by the state’s officials. Additionally, this principle ensures that the judgement of criminal liability and the passing of sentences are in accordance with the rules of law and Constitution of RSA 108 of 1996. With that being said, this vital principle is embedded in sec 35(3)(l) and (n) of the Constitution.
Essentially, the principle of legality encompasses what we call ius strictum. The ius strictum concept urges criminal offences to be construed restrictively and tightly, as opposed to broadly. This concept is applicable to both common law crimes and statutory crimes. However, in recent years the ius strictum concept has not been strongly adhered to; this is showcased in the Masiya v Director of Public Prosecutions and Another case. In the Masiya case, the accused was charged with raping a nine-year old girl. It was found that the accused inserted his penis into the girl’s anus rather than vagina; thus, not quantifying as the traditional rape case, as provided by the common law. For this reason, the accused was only found guilty of indecent assault. Eventually, the court held that the common law definition of rape at that time was unconstitutional and invalid. This was justified on the grounds that non-consensual penetration of all sorts, still amounts to rape. As a result, a broader definition of rape was added, including non-consensual penetration in the vagina, anus and penetration with objects. This judgement and rectification strayed away from the conventional ius strictum concept, expanding and interpreting the definition of rape more broadly. Even though this judgement got backlash for straying from the ius strictum concept, the public and most officials agreed that it was necessary to expand the definition, in order for justice to be served for similar cases in the future.
An infamous case that sparked a lot of international attention was the State v Oscar Pristorius case. On the 14th February 2013, the accused fired four shots through his locked bathroom door, of which three fatally wounded his girlfriend Reeva Steenkamp, in the early parts of the morning. Once realising that his girlfriend was missing from his side, he proceeded to break down the bathroom door with a cricket bat. Gazing upon Reeva’s still body, Oscar immediately performed CPR and called the ambulance. Doctor Johan Stipp pronounced her dead at the crime scene. Oscar was immediately arrested, but he claimed that he mistook Reeva for an intruder. This case threw Oscar in the limelight and projected him as a villain, both in South Africa and internationally. The accused expressed sincere remorse and demonstrated the willingness to do community work as a form of punishment. However, the court held that the determination of the degree of punishment does not lie on the accused, but rather on the court, with stringent guidance from the Constitution and common law. The court further stated that punishment is imposed upon a person, and it is usually something that one finds unpleasant. After a 3-year trial, the court delivered its final judgement, finding Oscar guilty of murder dolus eventualis of the deceased, Reeva Steenkamp. He was sentenced to 13 years and 5 months in prison, he is currently serving his sentence.
Conditio sine qua non is the Latin term for a causal link between a certain act and an injury. Essentially, the injury would cease to be if the act was not committed, they are directly proportional to one another. The principle of conditio sine qua non was addressed in the S v Mokgethi 1990 case, where A shot B in the back during a heist. Consequently, B became a paraplegic and had to spend the rest of his life in a wheelchair. Despite this, B made remarkable improvement and resumed work at his prior employment, with certain instructions set in place by his doctor. His doctor advised him to frequently shift his position in the wheelchair, as doing so will avert the development of pressure sores on his buttocks. B failed to adhere to his doctor’s instructions, resulting in the development of severe pressure sores along with septicaemia (blood poisoning). B shortly died, living only less than six months post-shooting accident. Evidently, the court declared that A’s act was not the legal cause of B’s death. Through extensive analysis of predicaments whereby victims accelerated their own death; the court laid down a general test, which can be utilized for cases of this nature. Step one is to determine the degree of relation, whether the act directly induced the injury; thus, being the legal cause. A’s act which is a conditio sine qua non of B’s death is usually too unrelated from the result to amount to criminal liability. This simply means that A’s act is too remote to even qualify as a legal cause of B’s death. Step two is to determine whether the victim’s death was solely due to failure to adhere to instructions or negligence. The sole cause of B’s death was due to his own failure to pursue medical advice, and adhere to instructions. Moreover, the gunshot wound sustained was no longer an eminent threat to B’s life. The final step is to determine whether the victim’s failure to adhere to an instruction was reasonable; whilst acknowledging the victim’s convictions as well as attributes. B’s failure to adhere to his doctor’s instructions was comparably unreasonable, for no obstacle presented itself to prevent adherence.
Succession cases which have impacted the legal system of South Africa
Intestate refers to when a person dies without having a valid will. In previous decades, statutory decision of law rules concluded the law of succession relevant to persons. Furthermore, section 23 of the Black Administration Act 28 of 2005 proscribed black individuals from drafting wills, pertaining to particular property. Whereas, section 1(4)(b) of the Intestate Succession Act 81 of 1987 reinforced that estates which were applicable to section 23, fell outside the parameters of the Intestate Succession Act. Additionally, regulations enunciated under the Black Administration Act provided certain election of law rules, if an individual who lived under the customary law died without a will.
The historical Bhe v Magistrate, Khayelitsha case dealt with the constitutional validity of male primogeniture in connection to the customary law of succession. Essentially, section 23 of the Black Administration Act epitomizes the concept of male primogeniture. This concept prevents African women, particular male heirs and extramarital male heirs from inheriting. Only certain, legitimate male heirs are permitted to inherit. The constitutional court made considerable alterations in relation to the election of law rules to be bestowed upon all intestate estates, regardless of the cultural association of the deceased. Hereafter, the customary law of succession can only be utilized by means of a clause in a will. Furthermore, the constitutional court found section 23, and its provisions in relation to male primogeniture as unconstitutional and invalid. The determining factor of the invalidity was due to the contradiction envisaged in section 9(3) of the Constitution. Section 9(3) provides that the state may not discriminate against any individual on grounds including gender, race, age, disability, religion and so forth. Thus, the court found this section deeply violated, as it discriminated on gender grounds, as well as violated the right of women to human dignity as stipulated in section 10 of the Constitution. This was deemed so, for the concept of male primogeniture undermined the competence and intellectual capacity of women. Ultimately, the court adjusted the Intestate Succession Act to account for polygynous African customary marriages. Evidently, this case has paved the way for gender equality in South Africa. Even though the decision made in the Bhe case has been replaced by the stipulations of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, it still remains a ground-breaking decision in South Africa.
Henry Ward Beecher once said that the law is a country’s most prized possession, not because it is inherently the law, but because there is right within it. In essence, this segment plunged into a few of the criminal law and common law cases in South Africa which has righted some prior law-rule wrongs.