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Summary CML1001F Business Law Notes
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BUSINESS LAW 1 (CML1001F)PART A: INTRODUCTION
1) What is law?
Law is a body of rules governing human behavior which is recognised and enforced by the state.
When a law is disobeyed, the state can punish the offender or the state can provide the person who has been
wronged with a remedy.
The state is equal to the government. It is divided into three areas.
i) The legislature – makes law = parliament
ii) The executive – enforces law = president, ministers, civil service (e.g. police)
iii) The judiciary – applies and interprets law = courts (e.g. judges and magistrates)
2) The South African Legal System
Court Structure
Constitutional Court
Supreme Court of Appeal
Before 1994 known as
Appellate Division
Local Divisions of High Court High Court Provincial Divisions of High Court
Regional Magistrates Court Magistrates Court District Magistrates Court
Definition of an Appeal
An appeal involves taking a case from an inferior court to a superior court in the hope of getting a different
judgment.
It is used as a mechanism for getting a second opinion on the judgment of the inferior court.
Definition of Jurisdiction
Can have two meanings:
i. The powers which a court has. e.g. A court with criminal jurisdiction has the power to hear criminal matters.
ii. The geographical area over which the court has power. e.g. The Cape Provincial Division of High Court has
jurisdiction over the Western Cape. This means it has the power to hear matters in the Western Cape.
Page 1 of 80
,2.1) Constitutional Court (CC)
- There is a written constitution, which is an act of parliament
- It protects human rights
- Human rights are contained in the Bill of Rights
- The other chapters deal with how the country is governed.
- Matters which relate to the protection of human rights and how country must be governed are known
as constitutional matters or cases.
- In terms of the constitution, there must be a constitutional court.
- In most situations, cases are only brought on appeal to the constitutional court.
- The CC can however sit as a court of first instance (trial court).
- The CC only hears cases and appeals of a constitutional nature.
- The court sits in Johannesburg.
- It has jurisdiction over the whole country.
- It has eleven judges. At least eight judges must be on the bench to hear a case.
2.2) Supreme Court of Appeal (SCA) – previously known as Appellate Division
- This is strictly an appeal court.
- Final court of appeal in all matters except constitutional matters.
- It can hear constitutional appeals but it is not the final court of appeal for these matters.
- Can hear civil, criminal and constitutional matters.
Example 1:
A man is found guilty of theft in the magistrates court and then appeals in the High Court. He is found guilty
again and appeals to the SCA. If he is found guilty once again he cannot apply for a further appeal unless it is
based on a constitutional infringement. For instance, if he were given the death penalty at the SCA, he could
appeal to the constitutional court (based on his right to life) to challenge the death penalty verdict, but not for
the charge of theft.
Example 2:
A student starts a publication at UCT which is subsequently banned by the UCT senate. The case goes to the
Cape High Court, who find in favour of the UCT senate. The student appeals to the SCA who also find in favour of
the senate. The student can still appeal at the CC since it is a constitutional matter (freedom of expression).
- The SCA sits in Bloemfontein and has jurisdiction over the whole country.
- There are 20 judges, with 3 to 5 judges required to sit per case.
2.3) High Court
2.3.1) Provincial Division
- Each provincial division only has jurisdiction over their geographical area.
i) Cape Provincial Division (C)
Western Cape
ii) Eastern Cape Provincial Division (E)
Sits in Grahamstown
iii) Northern Cape Provincial Division (NC)
Sits in Kimberley
iv) Transvaal Provincial Division (T)
Gauteng mainly, most cases; court sits in Pretoria and covers Johannesburg, Pretoria, Limpopo,
Mpumalanga
Page 2 of 80
,v) Natal Provincial Division (N)
Court sits in Pietermartizburg
vi) Orange Free State Provincial Division (O)
Court sits in Bloemfontein
vii) Bophuthatswana High Court (B)
Court sits in Mmabatho
viii) Ciskei High Court (Ck)
Court sits in Bisho
ix) Transkei High Courts
Sits in Umtata
x) Venda High Court (V)
Sits in Thohogandou
2.3.2) Local Divisions
- Same status as Provincial Divisions, but with smaller geographical area. Made for convenience.
i) Witwaterstrand Local Division (W)
Example:
You are involved in a car accident in Johannesburg. Both you and the other car victim live in the surrounding
areas. You are seriously injured and want to sue the other driver for damages. You can go to the Witwaterstrand
Local Division or Transvaal Provincial Division.
ii) Durban and Coast Local Division (D)
iii) South Eastern Cape Local Division (SE)
2.3.3) Powers of Provincial and Local Divisions
- Each court only has jurisdiction over its geographical area.
- Can hear all cases (civil, criminal, constitutional)
- Provincial and local divisions can sit as court of first instance.
- One judge sits with two assessors in a criminal case.
- Assessors are not judges (usually advocates or lawyers) who sit with the judge to assist.
- Provincial Divisions can be appeal courts.
- Local Divisions cannot be appeal courts, except for the W.
- When they hear appeals from the magistrates court at least two judges must sit.
- Provincial Divisions (not W) can also hear appeals from a single judge of the same division, or a local
division in its area. In these cases, at least three (3) judges must sit (=full bench).
Example:
You are tried in the Cape Provincial Division (C) by one judge. You want to appeal. You can appeal again in the
Cape Provincial Division with three judges on the bench. After that, you can appeal to the SCA.
Example:
Case heard by Durban and Coast Local Division (D). You can appeal to Natal Provincial Division (N) with three
judges. Then you can appeal to the SCA.
2.4) Magistrates Court
2.4.1) Types of Magistrates Courts
- South Africa is divided into various magisterial districts (every four to six suburbs).
- Each magisterial district has a district magistrates court.
Page 3 of 80
, - Wynberg has a district magistrates court which encompasses Rondebosch, Newlands, Claremont and
Harfield.
- Some areas also have a regional magistrates court. (i.e. Wynberg)
- Each magistrates court has jurisdiction over its geographical area.
- Magistrates courts have magistrates not judges.
2.4.2) Powers of Districts Magistrates Court
- In criminal cases they cannot hear murder, rape or treason (big 3).
- They cannot hear a non-criminal case where the value of the claim is more than R100000.
- No constitutional or appeal jurisdiction.
2.4.3) Powers of Regional Magistrates Court
- Only hear criminal cases except treason.
- No appeal jurisdiction, no constitutional or civil jurisdiction.
Example:
X, who lives in Cape Town, is charged with murder.
a) Where will his case be heard?
b) What are his avenues for appeal?
Option 1
a) Cape Town Regional Magistrates Court
b) Cape Provincial Division of High Court (2 judges), Supreme Court of Appeal, Constitutional Court (only if
given death penalty at SCA and cannot appeal guilty verdict)
Option 2
a) Cape Provincial Division of High Court (1 judge + 2 assessors)
b) Cape Provincial Division of High Court (3 judges), Supreme Court of Appeal, Constitutional Court (only if
given death penalty at SCA and cannot appeal guilty verdict)
Example:
X enters into contract with Y to buy Y’s car got R1 000 000. They both live and work in Cape Town. X does not
pay on the due date and Y wants to sue him for the money. This is not a crime.
a) What court will Y sue in and b) what are his avenues of appeal?
Cape Provincial Division (one judge)
Finds in favour of X
Cape Provincial Division (three judges)
Finds against Y
Supreme Court of Appeal
Y wins the case.
3) Sources of South African Law
1. Legislation
2. Roman-Dutch Law (common law)
3. Judicial Precedent (case law)
4. African Customary Law
5. Custom
6. Customary International Law
Page 4 of 80
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