SA Politics Thread Part 12

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ForceFate said:
Simple actually. Orally then through reinforcements afterwards. Do you know how their hierarchy was structured?
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That isn't law though. It is a decision making hierarchy. Whomever is in that hierarchy can make any judgement they want according to any criteria they see fit.

The very definition of law is something fixed that people can use reliably. That is why we use the term in science, like the laws of physics. They are fixed.

You simply don't have that with oral traditions.
 
konfab said:
That isn't law though. It is a decision making hierarchy. Whomever is in that hierarchy can make any judgement they want according to any criteria they see fit.

The very definition of law is something fixed that people can use reliably. That is why we use the term in science, like the laws of physics. They are fixed.

You simply don't have that with oral traditions.
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Laws don't have to be written down to be enforceable. There's a reason I'm asking about hierarchy.
 
ForceFate said:
Laws don't have to be written down to be enforceable. There's a reason I'm asking about hierarchy.
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They need to be at least written down if you want them to be laws.

The word means a very specific thing. Having some customary traditions enforced by a hierarchy of elders/chiefs can get people to behave, but that isn't what a law is.

The constitutional court here even unwittingly demonstrated that it doesn't exist.

The Court essentially stated two broad principles. Firstly, ACL is an independent source of law, not to be interpreted 'through the common-law lens.'<a href="https://en.wikipedia.org/wiki/Customary_law_in_South_Africa#cite_note-28"><span>[</span>26<span>]</span></a> Instead, it is to be seen as parallel to the common law. Secondly, the recognition of ACL is circumscribed by its consistency with the Constitution and any legislation concerning ACL. The CC drew specifically on s 211(3) of the Constitution. Applying these principles, the Court found that the Community did indeed have (indigenous) rights in land in 1913, which were left unaltered by British annexation. It then added an important third principle – that customary law in the Constitution really referred to the living form of that law:

…It is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life…In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.<a href="https://en.wikipedia.org/wiki/Customary_law_in_South_Africa#cite_note-29"><span>[</span>27<span>]</span></a>
The court specifically acknowledged the difficulty of establishing customary law, given the relative unreliability of written sources on customary law, and the fact that there may be competing versions of customary law presented in evidence, when such is appealed to.
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That defeats the very foundational purpose of law, which is to have a single set of rules that everyone needs to follows.

Just look at this:

The Court emphasised the fact that ACL is a living system of law not bound by historical precedent.<a href="https://en.wikipedia.org/wiki/Customary_law_in_South_Africa#cite_note-shilubana44-30"><span>[</span>28<span>]</span></a> Because of this, it set aside a series of prior decisions that had set a test for determining the content of customary law by referencing long-standing and historical practices.
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So the rules basically are that whoever makes the decisions sets the rules with no regard needing for past decisions. That isn't law.
 
konfab said:
So the rules basically are that whoever makes the decisions sets the rules with no regard needing for past decisions. That isn't law.
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Yeah , it can only be termed loosly as tradition open to each individuals interpretation
 
konfab said:
At a societal level, how do you agree what the rules are if they are not written down such that everyone can see the same version?
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Have you ever studied common law? As a starting note, note that there is no piece of legal paper in, SA, Australia or the UK which says "killing people is illegal", but murder is still a crime.
 
cr@zydude said:
Have you ever studied common law? As a starting note, note that there is no piece of legal paper in, SA, Australia or the UK which says "killing people is illegal", but murder is still a crime.
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Wrong....
In the constition there is "right to life" , so that make anything taking away life illegal

1767632114963.png
 
cr@zydude said:
Have you ever studied common law? As a starting note, note that there is no piece of legal paper in, SA, Australia or the UK which says "killing people is illegal", but murder is still a crime.
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Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High

Court shall sentence a person who has been convicted of an offence referred to in—

(a) Part II of Schedule 2, in the case of—

(i) a first offender, to imprisonment for a period not less than 15 years;

(ii) a second offender of any such offence, to imprisonment for a period not less than

20 years; and

(iii) a third or subsequent off
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Schedule 2

Murder, when—

(a) it was planned or premeditated;

(b) the victim was—

(i) a law enforcement officer performing his or her functions as such, whether on duty

or not;

(ii) a person who has given or was likely to give material evidence with reference to any

offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51

of 1977), at criminal proceedings in any court; or

(iii) a person under the age of eighteen years;
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https://www.saflii.org/za/legis/consol_act/claa105o1997224.pdf

Honestly this was the easiest own I have done this year.
 
cr@zydude said:
There are probably many lawyers on this forum. Hopefully one of them can better explain the difference between a constitutional right to life and the common law crime of murder.
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The constitutional court is the highest court in the land. All laws have to be moulded as per the constitution.
You are wrong when you say there is no law about murder. There is. It is called right to life
 
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