The aim of this module is to give students a general understanding of the South African legal system and to help them solve basic problems related to the law of contract in South Africa.
Summary General Principles of Commercial Law, ISBN: 9781485134930 CLA1501 - Commercial Law 1A (CLA1501)
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1. The South African Legal System
Law is a social science.
South African Law is not codified: recorded in one comprehensive piece of legislation.
Origin:
● Indigenous legal systems applied at the southernmost tip of Africa before 1652.
● Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch
law as a legal system to the Cape.
1.1 A SHORT HISTORY OF THE LAW
● Unlike most European continental legal systems, SA law is not codified:
o It is drawn from various authoritative sources
o Such as statutes (legislation) and decided cases
o Occasionally also Roman and Roman-Dutch law.
Roman Law
● 735BC to AD658
● The Law of the Twelve Tables of 449BC were the cornerstone of the future
development of Roman Law
● Attempts to codify the law led to the Corpius Iuris Civilis (body or civil law) which is still
the primary authoritative source or Roman Law.
Roman-Dutch Law
● Roman Law was revised in the Netherlands during the 15 th and 16th centuries and
became mixed with the existing Dutch customary law.
● Some great Roman-Dutch Jurists:
o Hugo de Groot “Father of Roman-Dutch Law”
o Johannes Voet
o Dionysius Godefridus van der Keesel
o Johannes van der Linden
English Law
● After 1814, English Law began to seep into the existing Roman-Dutch system:
o A jury was introduced
o New legislation e.g. criminal often drew on English law
o A number of statutes in existence today are squarely based on English legislation e.g.
Bills of Exchange Act.
1.2 SOURCES OF LAW IN SOUTH AFRICA
● Some are authoritative: courts are bound by authoritative sources
● Others have merely persuasive authority: serves to convince a court to apply or
interpret a rule in a particular way.
Corpus Iuris Civilis: codification of Roman law that is a primary authoritative source on
which South African courts draw when reverting to Roman Law to solve a legal problem.
Statute law or legislation
● The most important source of law
● Can be explained as the making of law by a competent authority
● To be found in: Statues, Proclamations, Regulations, By Laws.
● The most important piece of legislation:
o The Constitution of the Republic of South Africa, Act 108 or 1996.
The order in which SA law is consulted:
,Customary law
● Does not consist of written rules but develops from the habits of the community and is
carried down from generation to generation
● A customary rule will be recognized as a legal rule when:
o It must be reasonable
o It must have existed for a long time
o It must be generally recognized and observed by the community
o It must be certain and clear
Judgments of the Courts
● An authoritative source of law known as case law
● Traditionally divided into superior and lower courts
● More important judgments are reported
The old authorities
● This body of law comprises the common law, i.e. the works of the old writers referred
to above.
Foreign Law
● A judge will to the law of other modern countries if nothing can be found in any of
the above sources
● No authoritative but a persuasive only
● Recognized as a source of law in the Constitution
Textbooks and law journals
● Works written by lawyers, e.g. legal academics, advocates and attorneys
● No inherent authority of their own but may be persuasive
1.3 THE COURTS IN THE REPUBLIC
The Constitutional Court
● Jurisdiction as the court of final instance over all matters relating to the interpretation,
protection and enforcement of the provisions of the constitution
● Seat of the court is in JHB, 11 judges with chief justice.
The Supreme Court of Appeal
● A Court of Appeal for the Higher Courts
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,● Unlimited appeal jurisdiction:
o The exception being matters within the exclusive jurisdiction of the Constitutional
Court.
● The seat of the court is in Bloemfontein
The High Courts
● Consists of a number of divisions with approx. one division per province
● Have original jurisdiction within their area of jurisdiction
● Only courts which can hear:
o Divorce proceedings
o Status of a person in respect of mental capacity
o Applications for sequestration
o Liquidation of a company
o Validity or interpretation of a will.
Officers of the superior courts
● Registrars are appointed in each superior court
o Responsible for the smooth functioning, e.g. issue of process.
● Sherrifs are appointed for each high court
o Duty to serve, process and execute judgments and orders of the court
● Masters are appointed in some high courts:
o Administrative and quasi-judicial functions
o Deceased and insolvent states
o Liquidation and judicial management of companies
● Legal practitioners are the advocates and attorneys
Magistrates Courts
● Limited jurisdiction by comparison with the high courts
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, Persuasive
Power:
High courts in other
areas of jurisdiction
1.4 THE DOCTRINE OF STARE DECISIS
The judgments of the superior courts are one of the most important sources of the law.
● The function of a judge is to state, interpret and apply the existing law but not to
make a new law. Extensions of common made law lead to judge-made law.
Nevertheless, the effect of a judicial decision which gives new interpretation to a
statutory provision or which abstracts, extends or adapts a common law principle, is in
many cases to create law. Law so created is termed ‘judge-made law’. Because a later
court does not depart lightly from the decisions of an earlier court, this judge-made law
becomes established legal rule.
The court or judge does not purposefully set out to create a law.
Application of the Doctrine
Stare Decisis: The decision stands.
● A court is bound by its own decisions unless and until they are overturned by a
superior court:
o Unless exceptional circumstances exist such as the previous decision is clearly
shown to be wrong.
The doctrine of stare Decisis and the hierarchy of courts
● Every court is bound by the decisions of the superior court within its area of
jurisdiction.
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