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Exam (elaborations) CLA1503 - Commercial Law IC
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Module 1The South African Legal System
o Law is a social science.
o South African Law is not codified: recorded in one comprehensive piece
of legislation.
Origin:
o Indigenous legal systems applied at the southernmost tip of Africa
before 1652.
o Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of
Roman-Dutch law as a legalsystem to the Cape.
Sources of South African law
o Some are authoritative: courts are bound by authoritative sources
o 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.
The order in which SA law is consulted:
Customary law
o Does not consist of written rules but develops from the habits of the
community and is carried down from generation to generation
o 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
The Courts in the Republic
Persuasive
Power:
High courts in other
areas of jurisdiction
SA Courts is devided in: Superior Courts – 1. Constitutional
Court
2. Supreme Court of Appeal
3. High Court – Full Bench
- Two Judge Bench
- Single Judge
Lower Courts - 4. Magistrate Court
5. Small Claims Court
The Doctrine of Stare Decisis
o The judgments of the superior courts are one of the most important
sources of the law.
o The function of a judge is to state, interpret and apply the existing law
but not to make a new law.
o 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.
, o 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.
o The court or judge does not purposefully set out to create a law.
Application of the Doctrine
Stare Decisis: The decision stands.
o Obviously, when a court gives a decision, the parties to the dispute will
be bound by the decision.
o The doctrine of Stare Decisis would mean that a later court would be
bound by the earlier decision regardless of whether or not the earlier
decision could be regarded as correct.
o South African courts follow a middle course. A court is bound by its own
decisions unless and until they are overruled by a superior court.
The doctrine of stare Decisis and the hierarchy of courts
o Every court is bound by the decisions of the superior court within its
area of jurisdiction. Thus a High Court regardless of the amount of
judges is bound by the decisions of the Supreme Court of Appeal; a
bench of 2 judges is bound by a decision of the full bench and a single
judge by the decisions either of the two just mentioned.
o Every court is bound by the decision of a court of concurrent status
within its own area of jurisdiction. Thus the Supreme Court of Appeal is
bound by its previous judgments (even a bench of 5 judges by a bench of
3). A full bench of a High Court is similarly bound by an earlier full bench
decision, a 2 bench by a 2 bench and a single judge by an earlier decision
by a single judge.
o One High Court is not bound to follow the decisions of another High
Court since they belong to different jurisdictions. The High Court from
another jurisdiction will, however, serve as a persuasive authority.
o Magistrate’s courts are bound by the judgments of the Supreme Court of
Appeal and the High Courts. If the judgments of the High Courts are
conflicting, a magistrate should follow the decision of the High Court in
whose jurisdiction it falls.
Ratio Decidendi: The reason for the decision – which is binding and which is
the subject of the doctrine of stare Decisis.
, The ratio decidendi is binding on subsequent courts. Any statement, which falls
outside the ratio decidendi, is known as the: Obiter Dictum or incidental
remark.
Legislation: 1. The making of the law by a competent authority.
2. It’s the most important source of the law.
The Constitution: 1. Most important source of law in SA
2. The Bill of rights is the cornerstone of democracy in SA
o Bill of rights deal with first generation rights & second generation rights
First Generation: Human dignity
Life
Various freedom of persons
Religion
Movement of trade
Second Generation: Right to housing
Health Care
Food & Water
Social Security
Education
The High Court can hear any matter within their area or Jurisdiction.
The only court that can hear : 1. Divorce proceedings
2. State of persons mental capacity
3. Sequestration & Liquidation
4. Validity of a will
Officers of Supreme Court
o A Registrar is appointed in each of the Superior Courts
o The Registrar with his assistance is responsible for the smooth running
of the court.
o Duties: 1. Issue of process (Summons & Warrants)
2. Enrolments of Cases
3. Issuing of orders of Court
4. Maintenance of Court
Duties of Sheriff: 1. To serve warrants & Summons
2. Execute judgments and orders of the court.
Magistrate Court: 1. Has limited jurisdiction
2. Clerk of court has same functions as registrar.
3. May now hear divorce proceedings.
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