27/06/2023
Decoding the Distinction: Unlawful vs. Illegal in South African Law
In the realm of South African law, the terms "unlawful" and "illegal" are often used interchangeably, but in fact they hold distinct meanings.
While both concepts imply a violation of legal norms, understanding the nuances between the two is crucial.
Through an exploration of relevant case law, legal literature, and the interpretation of statutes, we aim to shed light on the subtle yet significant disparities between these terms.
Defining Unlawful and Illegal
Unlawful acts refer to those actions or omissions that contravene established legal principles, statutes, or common law rules. Such acts are not necessarily criminal offenses but may still attract civil liability or other legal consequences. In contrast, illegal acts specifically denote conduct that violates criminal statutes, resulting in potential criminal liability.
Case Law and Legal Interpretations
To grasp the distinction between unlawful and illegal in South African law, it is essential to examine relevant case law.
In the landmark case of Ntuli v Donaldson T/A Modderklip Boerdery (2018), the Constitutional Court of South Africa emphasized the difference between these terms.
in the case, applicant, Mr Ntuli, was a farmworker who was dismissed by his employer, Mr Donaldson, an act he claimed unlawful because it was based on his race. Donaldson on the other hand argued that his dismissal was legal because it was in accordance with the provisions of the Labour Relations Act.
The matter needed the Court to differentiate between the two concepts.
The court pointed out that Donaldson's dismissal was lawful in the sense that it was not prohibited by the Labour Relations Act it was also illegal because it violated Mr Ntuli's right to equality.
An act can be lawful in the sense that it is not prohibited by law, but it can still be illegal if it violates a fundamental right.
The court held that the use of "unlawful" in a particular statute signified conduct that fell short of a criminal offense, while "illegal" referred to acts constituting a crime.
Furthermore, legal literature provides valuable insights into the nuanced interpretation of unlawful and illegal acts.
Professor James Grant, a leading authority in South African criminal law, argues that unlawful acts primarily encompass civil wrongs and regulatory offenses, which do not meet the threshold of criminality. Conversely, illegal acts involve criminal offenses recognized under statutory law, attracting punitive measures.
Statutory Definitions and Legislative Intent
South African legislation plays a pivotal role in clarifying the distinction between unlawful and illegal. The Criminal Procedure Act of 1977, for instance, defines illegal acts as offenses committed under the criminal law, warranting investigation, prosecution, and potential imprisonment.
On the other hand, statutes addressing civil or administrative matters often employ the term "unlawful" to denote conduct that violates the respective legal framework but does not necessarily amount to a criminal offense.
To illustrate the importance of understanding the difference between unlawful and illegal, the English saying "Ignorance of the law is no excuse" holds true.
Regardless of whether an act is classified as unlawful or illegal, individuals are expected to acquaint themselves with the prevailing legal standards. The saying emphasizes the principle that lack of knowledge or awareness of the law cannot serve as a valid defense against legal repercussions.
In South African law, the distinction between unlawful and illegal acts lies in the nature of the violation and the corresponding legal consequences.
While unlawful acts primarily pertain to civil wrongs and regulatory offenses, illegal acts specifically refer to criminal offenses punishable by law.
Understanding these nuances is essential for both legal professionals and the general public, ensuring compliance with the law and promoting a just and equitable society.
