Detailed descriptions of understanding the idea of a social contract and the difference between a Western and African approach to it, Investigating why we have ‘laws’ and what the law is, understand the South African legitimacy crisis, understand the relationship between law and morality, how l...
Conclusion: a new synthesis
- Our legal system must not be referred to the Roman-Dutch law as a whole
o It only forms part of our legal system
o Pure Roman-Dutch law was further developed and adapted in South Africa
- It is part of Western European common law
o As applied in Netherlands of the 17th and 18th century
- English law
o Also had an influence on our law
o Customary law also applied
- Correct to refer to the legal system as a whole – South African Law
o Law subject to the transformative Constitution
- Because diversity systems could undermine a unified, South African concept of law
o Efforts should increasingly be made to create a synthesis
1. All legal developments have to be in line with the Constitution
▪ E.G.
• All law has to embody constitutional values of equality and human dignity
2. The existence of a legal rule should not depend on whether it conflicts with the views generally
held in the community
▪ Different value systems must be treated with equal respect
▪ Diversity should be tolerated
Precedent
- Court decisions
- Case law
- Presiding officer
o Judge
o Magistrate
- Judicial authority
o Vested in the courts
o Courts are independent and subject only to the Constitution and the law
▪ Must apply impartially and without
• Fear
• Favour
• Prejudice
o No person/ organ of state must interfere with the functioning of the courts
o Organs of the state must assist and protect the courts to ensure
▪ Independence
▪ Impartiality
▪ Dignity
▪ Accessibility
▪ Effectiveness of the courts
o An order or decision issued by a court binds all persons to whom and organs of state to which it
applies
o The Chief Justice is head of judiciary and exercises responsibility over the establishment and
monitoring of norms and standards for the exercise of the judicial functions of all courts.
Common law
- When a specific matter is not governed by legislation, common law usually applies
- Mainly 17th and 18th century Roman-Dutch law that was imposed in the Cape
- Forms basis of modern South African law and has binding authority because it was a primary source of law
- Many general legal principles stem from common law
- E.G.
o Murder
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