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LU1: The South African legal system – Sources of SA law and court structure
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LU1: The South African legal system – Sources of SA law and court structure
History of SA law:
The South African legal system is a combination of Roman law, Dutch customary law, African
customary law as well as the influence of the English when foreign settlers arrived in Cape Town in
1652 to establish a refreshment station for travelers from Europe. The South African legal system is
a Hybrid (mixed) system, and the influences brought the following:
The Roman and Dutch law brought writings of Roman and Dutch jurists, their own legislation
as well as the decisions their court followed. Under the law of the Romans, they brought a
codification known as the corpus iuris civilis which was the foundation of it all
The two combined to form Roman Dutch law. Roman-Dutch law comes from a legal family
that is civil law in nature.
English law originates from a legal family that is common law in nature
Civil law: Law is codified (in one place), legislation or statuses is most important source of
law
Common law: Law is not codified, most important source of law is precedents i.e. decisions
of courts.
Sources of SA Law: Where it can be found
Authoritative: Bound to follow (must follow) Persuasive: Don’t have to follow. These are the
opinions/views of people involved in law
(lawyers, judges etc.
Hierarchy of laws is as follows: Takes the form of:
1. Legislation 1. Law journals
2. Case law 2. Law textbooks
3. Old Authorities Foreign law – Decisions of foreign court/law of
4. Customary law another country. The law does not apply in the
country you are being judged if the law is a
foreign one.
Legislation: Written and Case law Old Authorities: Customary law:
is statutory law. Unwritten (written but Unwritten and is custom
known as common developing into law
knowledge e.g. murder.
The making of law by a Decisions of a South Known as common law, Customs, values, habits of
competent body, and is African court and is based on the work community carried
the most important source and writings of old jurists. through tradition. Van
of law. Law made by It comprises of all Dutch Breda v Jacobs sets out
parliament (statues/acts) legislation, court decisions requirements for custom
provincial legislatures and prior to 1652. Linked to to become law. The
proclamations, regulations Roman-Dutch law as a custom must be:
and by laws enacted by standard or benchmark. 1. Reasonable
subsidiary legislative 2. Have a long
bodies. Most important existence
legislation is the 3. Generally
Constitution as it is a recognized and
standard/benchmark. observed in
community
4. Clear and certain
1
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