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Lecture notes Business Law 1 (CML1001F)
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- Business Law 1 (CML1001F)
- Institution
- University Of Cape Town (UCT)
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Business Law I (CML 1001F)Part A: Introduction
1. What is law?
Law is a body of rules governing human behavior that is recognized and enforced by the
state/government.
- When a law is disobeyed the state will punish the offender OR provide the person
who has been wronged with an enforceable remedy.
- Law is therefore distinguished from other rules of sport and religion, where if you
break a rule no sanction is imposed by the state.
- Everyone is bound by law, there is no choice.
law and the state are interlinked.
Definition of a state = government and it is divided into three areas:
1. the legislature: makes the law, that is parliament.
2. the executive: enforces the law, that is the President, ministers and civil service (e.g. the
police)
3. the judiciary: applies and interprets the law that is the courts, e.g. magistrates and
judges.
Example:
Parliament and legislature passes drug trafficking act: illegal to deal drugs. The police
(executive) enforce the act (that is their job). They arrest a man who has 60kg of heroine in
his boot/trunk. Judiciary, judge apply and interpret the law, (the man has a trial). Judge
must decide if he is innocent or guilty.
2. The Judicial System
Constitutional Court
Supreme Court of Appeal
(before 1994 known as
the Appellate Division)
High Court
Regional Magistrates District Magistrates
Court Magistrates Court Court
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,In addition:
*National Consumer Tribunal
*Consumer Courts
*Rental Housing Tribunal
*Specialist Courts (tax court)
Definition of appeal:
Taking a case from an inferior court to a higher court in the hope of getting a different
judgment.
In other words, it is used as a mechanism for getting a second opinion of the judgment of
the inferior court.
Definition of jurisdiction:
This can have two meanings:
1. the powers that a court has, for example, a court with criminal jurisdiction has the power
to hear criminal matters.
2. the geographical area over which the court has power, for example the Western Cape,
High Court jurisdiction over the Cape.
2.1. The Constitutional Court (CC)
- SA has a written constitution
- The constitution is an act of parliament, it is very long and divided into chapters.
- It protects human rights, also known as constitutional rights. For example, the right
to life, the right to dignity, equality, freedom of expression, religion, education,
health care and housing.
- These rights are contained in one chapter of the constitution called the Bill of Rights.
- in its other chapters the constitution deals with how the country must be governed.
- Matters which relate to the protection of human/constitutional rights and how the
country must be governed are known as constitutional matters.
- The constitutional court decides only constitutional matters which relate to a “point
law of general public importance.”
For example: the CC just heard the Edcon case where it retrenched 3000 employees without
proper procedure.
e.g. 2: Oscar appealing to CC open ended
- The CC does not hear ordinary matters/cases such as murder cases, theft or where a
landlord wants to sue his tenant for outstanding rentals.
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, - In most cases/situations, cases are brought on appeal to the CC, but it can also be a
court of first instance. (court of first instance/trial court – the court starts in this
court)
- NB* constitutional court only hears cases and appeals of constitutional nature or
cases of general public importance.
- The court sits in Johannesburg and has jurisdiction over the whole country
- Has 11 judges. At least 8 judges must be “on the bench” to hear any matter.
- 11 judges would be a “full bench".
2.2. Supreme Court of Appeal (SCA)
prior to 1994 – Appellate Division
- purely an appeal court – can never be a court of first instance or a trial court. i.e. a
court case cannot start here.
- It can hear all kinds of matters/cases, i.e. criminal, civil and constitutional.
- It is the final court of appeal in all matters except constitutional matters (and matters
of general public interest).
Example 1: a thief is found guilty in the magistrates’ court. He appeals to the High Court, the
HC finds him guilty. He now appeals to the SCA and they find him guilty. He CANNOT appeal
to the CC, because it is not a human rights issue and it does not deal with how the country
must be governed and not a matter of general public importance.
Same facts but this time the SCA finds him guilty and imposes the death penalty. He CAN
now appeal to the CC, only on the death penalty and not on that he is guilty or not. (because
it is a human rights issue)
Example 2: Mrs X is dying of cancer and she has a case in the HC asking permission for her
doctor to give her a lethal injection so that she can die with dignity and without pain and
suffering. HC refuses, she loses the case so she appeals to the SCA and they find against her
(she loses). She can appeal further to the CC as it is a human rights issue. (right to dignity)
- Unlimited sentencing power in criminal matters for example life in prison.
- Except where a law provides a maximum or minimum penalty e.g. Companies Act or
Insolvency Act.
- There are 23 judges. Cases are heard by a bench of 3-5 judges.
- Full bench = 5
- Court sits in Bloemfontein.
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, 2.3. High Court
- There is a High Court for each of the nine provinces.
- Some provinces have more than one High Court.
- Each High Court only has jurisdiction over its geographical area:
High Courts – main seats of each province (known as provincial divisions)
* 1. Western Cape Division (WCC)
Court is in Cape Town and hears cases that arise in the Western Cape.
2. Eastern Cape Division (ECG)
Sits in Grahamstown and hears matters arising in the Eastern Cape, i.e. it has jurisdiction in
the Eastern Cape.
3. Northern Cape Division (NCK)
sits in Kimberly. Jurisdiction over the Northern Cape.
*4. Gauteng Division (GP)
Sits in Pretoria. Hears cases arising in Gauteng.
5. Free State Division
sits in Bloemfontein and has jurisdiction over the Free State.
*6. Kwa-Zulu Natal (KZP)
sits in Pietermaritzburg and has jurisdiction over KZN.
7. Limpopo Division (LP)
sits at Polokwane and has jurisdiction over the Limpopo province.
8. Mpumalanga Division (open yet? – was set to open Nov 2015)
sits in Nelspruit and has jurisdiction over Mpumalanga.
9. North West Division (NWM)
sits in Mahikeng and has jurisdiction over North West.
Some provinces have more than one HC. This means that they have a main seat (provincial
division) as mentioned above and then also what we call a “local division” (are 6 local
divisions/seats)
For example:
1. Gauteng Local Division (GJ)
sits in Johannesburg.
2. Kwa-Zulu Natal Local Division (KZD)
sits in Durban.
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