Sometimes the issue of fault is discussed, particularly in the context of the law of delict. Briefly, the law of delict deals with the damages suffered because of negligence. Negligence is a form of fault, although when we talk about fault here, we are not necessarily placing moral blame on someone. In the context of negligence, someone is at fault if they deviate from the standard of the “reasonable person”. If the issue of negligence arises in a case, one would ask how the hypothetical “reasonable person” would behave – the person who behaves correctly in every situation. Would the “reasonable person” have gone through a stop street? Would the “reasonable person” expect someone wearing dark clothing to be lying in the middle of an unlit road? If the answer to any of these questions indicates that your behaviour deviated from that of the reasonable person, even if only by 1 per cent, then there is “fault” in the form of negligence on your part.
A good way of illustrating this is by looking at motor accidents. Anyone who gives the matter some thought will agree that most motorists do not drive like the “reasonable” motorist most of the time. We talk on cellphones or send text messages, shave, eat, turn round and shout at the children, admire pretty girls in cars driving by, or are lost in thought about our day at work. Are we “at fault”? Yes we are if you compare us with the superhuman “reasonable” driver. However, your sense of justice tells you that this is the way people are, that we cannot be perfect all the time. On long journeys, it can be difficult to concentrate throughout. And if you have an accident, then along comes the legal system with its fastidious fault-finding enquiry into your behaviour to decide if there was negligence – fault – in the way you drove the vehicle. Why? For the simple reason that someone suffered damages and someone will have to pay for it, and the law seeks to identify that person. Is it, however, an enquiry into what is fair or just? In most cases that legal practitioners encounter, the answer is no, and even in the few instances where there is such an enquiry, the question is one that may range far and wide.
1.2 WHY SO MANY BIG WORDS?
Jurisprudence is like politics and religion, in that you do not require specialist knowledge to have an opinion about it. Notwithstanding this, the law is still fairly inaccessible even for educated people. This inaccessibility stems largely from the difficult language that you encounter the moment you start reading a legal textbook or the findings of a court of law. Is all this Latin and highbrow language really necessary?
Well, yes and no. On the side of yes, the first reason is that the law is centuries old. The roots of our legal system go back as far as the Roman Empire. If you have problems with your neighbour, you often have to read up about legal principles that date back to Roman times but that are still binding today. That’s where the Latin comes from. Besides the Latin, one often encounters Dutch because in South Africa we inherited many of our legal principles from the Dutch, and many of these are still binding today.
One could argue that there is no reason why these phrases cannot be translated. If inaccessibility were the only reason, the translation argument would probably be valid. However, there are other more important reasons why legal language is so complicated.
Probably the most important of these is that we live in a complex society that grows more complex by the day. People’s interactions with each other are complicated and the legal system that regulates them has to be complicated to make provision for this. For example, if people bought and sold things using only coins, the law of contract would be relatively simple, but when there are credit cards, cash, financing, credit agreements and insurance as well, the picture becomes a lot more complicated and each of these variations needs to be regulated by the legal system.
People are also constantly doing new things and the pace of change is increasing. For instance, in 1910 aviation law did not exist. In 1950 nobody wondered about the legal implications of computers. In 1970 nobody was concerned about defamation on the internet. Today we worry about the magnetic information on credit cards being copied using special equipment – something that was unheard of in 1990. And I am convinced that one day we are going to need specialised legislation dealing with the cloning of human tissue.
Speaking of legislation, governments are passing more and more laws and South Africa is no exception. One could argue about whether this is a good thing but it is undoubtedly also the state’s reaction to the increasingly complex society that it has to manage.
All these factors lead to difficult words and long sentences that are difficult to unravel, even for lawyers. There have been a great number of cases centring on the deconstruction of a sentence in a piece of legislation or in a contract, or turning on the meaning or use of a specific word in a sentence, and I must confess that I sometimes have great difficulty in understanding the judgements in these cases.
In short, the law is a difficult science and, like all sciences, it has its own jargon. When people talk “legalspeak”, they will often communicate old and complicated concepts to each other by means of a single word, just as doctors do. In addition, these concepts are often difficult to explain such as replication, Himalaya clause and quantum meruit. The difference between the language used by doctors and that employed by lawyers is that large parts of legal language sound so familiar. We use words such as reasonable, application and guilt, which, although they sound simple, mean something completely different in legal language to what the layperson would understand by them.
That was the “yes” of why legal language needs all those highfalutin words. Before we get to the “no”, firstly an appendix to the yes: just as with medicine, you need to understand relatively few words about a particular subject before you are able to participate meaningfully in a discussion about legal matters. It is a phenomenon I experience frequently at braais. Someone asks a question, I explain the most important ideas, and the rest is common sense, as they say.
Which brings us to the “no”. The law is undoubtedly a science everyone needs to know something about, because it affects everyone, often in ways that can profoundly impact our lives. This is why the state ordered recently, in the Consumer Protection Act, that contracts be worded in simple language so that the economically powerful drafters of a contract cannot simply bamboozle the other party to the contract with terms they don’t understand.
It is for this very reason I wrote this book and why from the outset – in the next section in fact – I have included a list of words you must understand if you wish to speak or understand legal language.
1.3 TROUBLESOME TERMS TAMED
And here it is: a list of terms you will need for most discussions about the law. I know that most people don’t enjoy vocabulary lessons – neither do I. However, I do suggest that you take a deep breath and go through the list, as it will be extremely useful for understanding the rest of this book. And you can refer back to the list when you encounter any tongue-twisters or brain-teasers later (set in italic text).
absolution from the instance – a court order that means that the plaintiff does not succeed in a civil action because of insufficient evidence. If an order of absolution is given, the plaintiff is entitled to attempt to prove his case again if he is able to obtain better evidence, which is not possible if the action is dismissed.
accused – the person who has been charged with committing a crime in a criminal case.
acquittal – if in a criminal case the state has not proved its case beyond reasonable doubt, the accused gets an acquittal. We say that the accused is found not guilty and discharged.
action – one of the two ways of bringing a civil action (the other is an application). An action commences when someone sets out his case in broad terms in a summons and also states what order he is seeking from the court and then has the summons served on the person against whom he is issuing the action. Such a document is not used in an application. After the summons has been served, a number of documents