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cla1501 outcome of all study units noted Summary notes
- Course
- CLA1501 - Commercial LAw 1A
- Institution
- University Of South Africa (Unisa)
cla1501 outcome of all study units noted Summary notes
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lOMoARcPSD|4339232CLA1501 - Outcome OF Study Units
Commercial Law (University of South Africa)
)
, lOMoARcPSD|4339232
Study Units:
Unit 1:
1. History and sources of South African law:
History:
Law is a social science, it has to provide for the changing need of a developing community and
consequently is inseparably bound up with community it has to serve. South African law, unlike, for
example, most European continental legal systems, is not codified (that is, recorded in one
comprehensive piece of legislation). The law applying in the Republic is drawn from various
authoritative sources. South African law today is the product of different sources. First: It has its
origins in Roman law. Second: During the 15 th and 16th centuries, Roman law became fused with
Dutch customary law – hence the term Roman-Dutch law – and it was this law that Van Riebeeck
brought to SA. Third: As can naturally be expected in view of the country’s history, English law
exerted a considerable influence on Roman-Dutch law.
Sources:
2. Different courts found in RSA:
The Constitutional Court: Highest court in all matters.
The Supreme Court of Appeal: It is a court for appeal for the High Court and its
various divisions.
The High Court: There is only one High Court in SA.
Other courts of importance on the southern African context: Officers of superior courts
Magistrates’’ courts: Are to be found in most towns in the Republic, it has a very limited
jurisdiction in comparison with that of the superior courts.
, lOMoARcPSD|4339232
Small claims courts: Intended to resolve minor civil claims in a prompt, affordable and simple
manner without legal representation for the parties.
Examples: Divorces, Matters concerning will, malicious prosecution, Wrongful imprisonment.
3. Doctrine of stare decisis, interpretation of statutes and courts judgments:
Doctrine of stare decisis:
The judgement of superior courts are, as is evident from the above, one of the most important
sources of law. Consequently, their operation and effect on SA law must be examined. Precedent is a
legal principle or rule that is created by a court decision. This decision becomes an example, or
authority, for judges deciding similar issues later. Stare decisis is the doctrine that obligates courts to
look to precedent when making their decisions. Application: The phrase decisis means “the decision
stands”. When a court gives a decision, the parties to the dispute will be bound by the decision.
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, unless the decision of the superior court is based on so
obvious an error, such as failure to take into account statutory provision, that there can hardly be any
difference of opinion on the matter. Every court is bound by the decision of a court of concurrent
status within its own are of jurisdiction, unless it is convinced that the earlier decision was incorrect,
even though the matter may permit a difference of opinion.
4. Interpretation of statuses:
Statutory interpretation is used when the meaning of law of an Act of Parliament or another piece of
legislation must be determined. Words can be ambiguous or imprecise, despite careful drafting of the
Acts, and then to achieve.
5. Court judgements:
Ratio decidendi: The most important part of judgement is what is called the ratio decidendi. It literally
means “the reason for the decision” and it is the ratio decidendi of a case which is binding and which
is the subject of the doctrine of stare decisis.
Obiter dictum: The ratio decidendi is binding subsequent courts. Any statement which falls outside the
ratio decidendi is known as obiter dictum (or incidental remark). It may be encountered when the
principle of the case is formulated by the judge more broadly than the necessary to cover facts, when
the judge makes an incidental remark, postulates and answer a hypothetical question, raises an
analogous case, or gives an illustration.
Distinguishing: A judge distinguishes one case from another by deciding that the ratio decidendi of a
previous decision is not binding on the case before him or her and, therefore, that the ratio decidendi
of the first case does not apply.
Typical aspects of a judgement: In order to illustrate the most important aspects of a judgement we
refer to a case published in The South African Law Reports – National Sorghum Breweries Ltd v
Corpcapital Bank Ltd 2006 (6) SA 208 (CSA). The name of the case contains certain information.
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