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LML4806 EXAM PACK
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Exam of 173 pages for the course LML4806 at Unisa (LML4806 EXAM PACK)
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CLA1501EXAM
PACK 2023
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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 15th 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.
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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
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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
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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