CLA1503 SUMMARY
2022/2023
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COMMERCIAL LAW CLA1501
THE SOUTH AFRICAN LEGAL SYSTEM
ORIGINS
Roman Law Duch Customary Law Roman-Dutch Law 1652 with Van Riebeeck landing in Cape
Town 1814 Law system influenced by English Law
SOURCES OF THE LAW
Note: Roman law was codified in the Co...
THE SOUTH AFRICAN LEGAL SYSTEM 078 548 0303
ORIGINS
Roman Law Duch Customary Law Roman-Dutch Law 1652 with Van Riebeeck landing in Cape
Town 1814 Law system influenced by English Law
SOURCES OF THE LAW
Constitution
Sources of Law
Authoritative Persuasive
Legislation Foreign Law
Judgements Textbooks &
Customary Law Journals
Old Authorities
Note: Roman law was codified in the Corpus Iuris Civils during reign of the emperor Justinian – was first time
law was codified (recorded in one comprehensive legislation) – SA Law not codified.
AUTHORITATIVE SOURCE OF SA LAW:
2 types of sources: Authoritative – court is bound by & Persuasive – used/interpret in particular way to
convince court ruling.
1) Statute Law or Legislation
1.1 General:
Dutch legislation passed between 1652 -1806 if approved & accepted by SA Law
English statues don ‟t apply to SA unless by official proclamation regarding the union
of SA or colonies
1.2 The Constitution of RSA 1996
Is the supreme law of the Republic
Any law contrary to its provisions may be declared invalid
Regulates government – sets out structure of state & its organs – providing for their
functions & powers
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, Constitution was adopted to (achieved through Bill of Rights):
i. Heal divide of past & establish society based on democratic values, social justice
& basic human rights
ii. Foundation for democratic society in which government is based on will of people
and all are equally protected by Law
iii. Improve quality of life & free potential of each
iv. Build united democratic RSA & enable it to take rightful place as sovereign state
Legislature; branch of
government having the power to
make laws
Note: Bill of Rights: Executive branch: administrative
Applies to all law or supervisory authority in
Binds 3 branches of government: legislative, executive & judiciary government
Judiciary: all judges of the
State must protect, respect, promote & fulfil the rights of BOR government
Divided by 1st & 2nd generation
1st generation: takes power away from the state – imposing duty not to act in
certain way e.g .discriminate
2nd generation: positive socio-economic rights = obligates state to provide society
with certain basic needs e.g. health care
2) Customary Law (Trade usages)
Does not consist of written rules – develops from habits of community & carried throughout
generations.
For customary rule to become legal:
a) Must be reasonable
b) Must exist for long time
c) Must be recognised & observed by community
d) Contents of rule must be clear
3) Judgements of Courts
Must keep record of proceedings
2 types of courts:
1. Superior Courts 2. Lower Courts
(unlimited jurisdiction) (limited jurisdiction)
Constitutional Court Magistrate Court
(Hears matters regarding the interpretation of the Constitution –
Jhb) Small Claims Court
Supreme Court of Appeal Courts of tribal leaders
(Only court of appeal for High Courts; all matter except
constitutional – Bloemfontein)
High Court
(Can hear any matter arising within their jurisdiction & certain
constitutional matters e.g. fundamental rights entrenched- most
major cities)
Divorce
Mental Capacity
Sequestration of estate
Liquidation of Company
Will
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