Separation Of Powers In Former Colonies: Division Of The South African Law

Emerson’s theory of Fulfilment

Emerson is a noted American writer who has a theory based on a value system that falls in line with the American doctrine of human rights, where individuals’ values are recognised and protected. His theory includes the following; the theory of self-fulfilment; sound and rational judgement or the marketplace of ideas theory; the theory of open discussion as part of the democratic process; and the balance between stability and change. However, the theory of self – fulfilment will only be discussed (Burns, 2015).

The freedom of self-expression, according to Emerson, is defined as the right of an individual and his/her capacity as an individual. It is your right as a person of society to express your own belief and your own opinions. This theory is based on two factors, one being the fundamental distinction between opinion, belief and communication of ideas, and the second being the different forms of conduct. For someone to achieve self – fulfilment one must recognise his/her character and potentialities as a human being (what can he/she contribute to society) (Emerson, 1963).

The Quality of our mind is what distinguishes us from the animals; our ability to use different languages, to reason, to build different cultures, to communicate through emotions and thoughts, to use our imagination and to think in abstract terms. Based on these qualities do we finally understand our meaning and place in the world? The development of the mind commences the achievement of self-realization, and conscious thought has no limits. In order for someone to develop their own intellectual capacity (which helps one to form their own opinion), one must be placed in different situations and face different challenges. The freedom of expression then allows you to express these opinions which then leads to self-fulfilment (Emerson, 1963).

The doctrine of Separation of Power

The doctrine of Separation of Powers is defined as the separation of responsibilities and duties, to institutions with a defined means of jurisdiction and competence. This doctrine separates the three main powers of government, namely, Legislation power (the power to repeal rules of laws, amend and make laws.); Judicial power ( deals with disputes, the power determine what the law is and how it should be applied to the situation); Executive power ( the power to enforce and execute all the rules of law). The whole objective of the Separation of Powers is to decrease the wrong use of power within the government and to ensure that each power acts within its own boundaries. In relation to the Separation of Power the court is bound to ensure that the different branches within the government that practice separation of power, must act within the constitutional context (Mojapelo, 2013).

In the past, the doctrine of Separation of Power did not flourish in the Pre – constitutional dispensation in South Africa due to Colonial Flavour. The South African Constitution does not specifically refer to the Doctrine however the interpretation if it can be found in one of the constitutional principles. The following is stated in Schedule 4 of the Interim Constitution:

“There shall be a separation of powers between the Legislature, Executive and Judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness” (Schedule 4: Interim Constitution)

Although our constitution does not explicitly refer to the doctrine of Separation of Powers, it still forms part of the constitutional system and traces of it can be found in throughout the government (Mojapelo, 2013).

Custom regards indigenous law

Indigenous law is also known as customary law, and it is a group-orientated system. It deals with the unwritten customs that pass down from generation to generation. This law does not only apply to one African Tribe but various from tribe to tribe and from territory to territory. According to the Bill of rights, the African indigenous law is considered to be a source law (law where one can find principles, values, legal rules which apply to any given situation.) If Indigenous law conflicts with the Constitution, it is declared invalid by the South African courts (Burns, 2015).

Example: Case of Van Breda v Jacobs 1991 AD 330 – this case was based on professional fishing. It’s based on the custom that states: if there are no boats permanently stationed between Cape Point and Fish Hoek, once a fisherman has cast his net to catch a school of fish that is swimming parallel to the shore, then other fisherman are not allowed to cast their net in front or close to the first fishermen (Gibson and COMRIE, 1975).

This custom is called “First come, first pull”, and it was considered a custom because it met the following requirements:

• It must be immemorial
• It must be reasonable
• It must have continued without exception due to its immemorial origin.
• It content and meaning must be certain and clear (African charter on human and people’s rights, 2019)

Division of the South African Law

South African Law is divided into two main categories, namely Private Law and Public Law. Public Law deals with society (relationship between individuals and the state) and Private Law deals with Businesses, Individuals and small groups. (Baumeyer, 2019)

Public Law

Any issues with regards to the general public or state fall under public law. There are three main areas of Public law namely:

Administrative Law

This law deals with the regulation of telecommunications, advertising, broadcasting. It also includes the desire for literature and film.

Example: The 1999 Broadcasting Act -The objective of the broadcasting act is to develop and establish a broadcasting policy in the public’s interest (Burns, 2015).

Criminal Law

This refers to the variety of laws that apply to the criminal act of an individual. The person must violate a criminal statute, which then leads to them breaking the law (Schubert, 2019).

Example: The Criminal Procedure of 1977 – This act states that criminal procedures must take place in an open court unless stated otherwise (Burns,2015)

Constitutional Law

This law lay down the rights and duties of the citizens of the countries and it also lays down the duties and responsibilities of the government or state.

Example: Section 16 of the Bill of Rights – This expresses the importance of the freedom of expression for every South African citizen (Burns, 2015)

Private Law

Private law is the counterpart of public law and it deals with the relationship between individuals (Businesses and small groups). The following laws fall under South Africa’s Private Law

Property Law

This lay lays down the rights and duties of any landowners, lessors (Owner of the property/assets that is being leased) and lessees (The receiver of the property/asset through a lease contract). The law also includes Property rights, Leases and Sectional Titles (Soodyall, 2019).

Example: Subdivision of Agricultural Land Act 70 of 1970 – This act controls the subdivision and usage of agricultural land (Mnguni, 2013).

Family Law

This law focuses on family relations, such as child custody, divorce, marriage, domestic relationships, child abuse, domestic violence. Etc. (Niekerk, 2019).

Example: Civil Union Act of 2006 – This act deal with the formalization of civil unions, either by marriage or civil partnership. Also incorporates the consequences of civil unions and matters thereof (Gazette, 2006).

Contract Law

This deals with the agreement between two parties, whether it be written or oral, with relation to employment, resources, money, services or real estate deals.

Example: Electronic Communications and Transactions Act of 2002 – This act deals with the facilitation of electronic communication and transactions in the public interest, by promoting legal confidence and certainty in respect to the transaction and communication of electronics (Gazette, 2002).

Gary can sue Kyle in a private court, based on the fact that it is a personal issue and an issue between individuals. Gary and Kyle case will take place in the High Court Since Kyle owes more than R25 000.

Bibliography

1. African charter on human and people’s rights (2019). ACHPR – Chapter 2. [online] Justice.gov.za. Available at: http://www.justice.gov.za/policy/african%20charter/afr-charter02.html [Accessed 16 Aug. 2019].
2. Baumeyer, K. (2019). Public Law vs. Private Law: Definitions and Differences. [online] study.com. Available at: https://study.com/academy/lesson/public-law-vs-private-law-definitions-and-differences.html [Accessed 10 Aug. 2019].
3. Burns, Y., De Beer, T. and Sadleir, E. (2015). Communications law. 3rd ed. Johannesburg: LexisNexis
4. Gazette (2002). ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 2002. [online] Golegal.co.za. Available at: https://www.golegal.co.za/wp-content/uploads/2017/12/Electronic-Communications-and-Transactions-Act.pdf [Accessed 15 Aug. 2019].
5. Gazette (2006). No. 17 of 2006: Civil Union Act, 2006. [online] Golegal.co.za. Available at: https://www.golegal.co.za/wp-content/uploads/2018/12/Civil-Union-Act-17-of-2006.pdf [Accessed 15 Aug. 2019].
6. Gibson, J. and COMRIE, R. (1975). South African mercantile and company law. By J.T.R. Gibson, assisted by R.G. Comrie. Third edition. 11th ed. Cape Town, etc.: Juta & Co.
7. Mojapelo, P. (2013). The doctrine of separation of powers (a South African perspective) *. [eBook] Johannesburg: Advocate, pp.37-39. Available at: https://www.sabar.co.za/law-journals/2013/april/2013-april-vol026-no1-pp37-46.pdf [Accessed 2 Aug. 2019].
8. Mnguni, S. (2013). SUBDIVISION OF AGRICULTURAL LAND ACT; ACT 70 OF 1970 (SALA) 30 APRIL 2013 B Y: S AMBULO M NGUNI ppt download. [online] Slideplayer.com. Available at: https://slideplayer.com/slide/4045539/ [Accessed 15 Aug. 2019].
9. Niekerk, P. (2019). Family Law – Matrimonial Law, maintenance, divorce, domestic violence. [online] Insights into The Law in South Africa | Welcome to Go Legal. Available at: https://www.golegal.co.za/topics/family-law/ [Accessed 15 Aug. 2019].
10. Schubert, J. (2019). What is Criminal Law? – Definition, Purpose, Types & Cases. [online] Study.com. Available at: https://study.com/academy/lesson/what-is-criminal-law-definition-purpose-types-cases.html [Accessed 10 Aug. 2019].
11. Soodyall, K. (2019). Property Law – Land administration, ownership, sectional titles, lease. [online] Insights into The Law in South Africa | Welcome to Go Legal. Available at: https://www.golegal.co.za/topics/property-law/ [Accessed 15 Aug. 2019].
12. Towards a General Theory of the First Amendment. (1963). 1st ed. [eBook] New York: Yale Law School, pp.879 – 880. Available at: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3769&context=fss_papers [Accessed 1 Aug. 2019].