This document contains lecture content for the CML1001F course. All units are covered and examples are provided to make the understanding of the content more understandable. These were made during covid and were a really big help in my understanding of the course. All the information you would need...
Law: body of rules governing human behavior recognized and enforced by state.
Morality: rules of conduct or standards of behavior that are subjective or derived from
religion or norms from community. Not enforced by state.
State: institution who enforce rules of conduct.
Separation of powers: organs of the state
- Legislature (located in parliament, making of the laws)
- Executive (the president and their cabinet, enforces the law)
- Judiciary (applies the law, comprises of the courts)
All independent from each other
Jurisdiction: power of court to hear a matter and decide on it
Defendant: case lodged against this person
How to determine jurisdiction
1. Nature of the claim/ monetary value of claim
2. Where did matter occur/ where does defendant reside
3. Appeal: taking matter from inferior court to a higher court (merits of case are
challenged). Appeal on point of law.
- Review (believe there was an issue with process or procedure) process
challenged not the merits. Usually done in same court.
Criminal case leads to fine or being put in jail
Civil case deals with contracts or wrongful acts that result in damage or injury
Constitutional court-
- located in Braamfontein.
- People who work their called justices.
- 11 judges’ full bench. Minimum bench is 8.
- Final court of appeal.
- Matters which relate to protection of human rights.
e.g., minister of Justice vs Prince. President vs Public protector
Acceptance to general law: constitutional court not court of first insistence. May
grant a litigant direct access to court.
Supreme court of Appeal (Appellate Division prior to 1994)
- Last court of appeal with old matters with exception of constitutional court.
- Can hear all kinds of matters (civil/criminal)
- Full bench is 5 judges and minim are 3.
High Courts
- Located in each of the nine provinces
- Each high court only has jurisdiction over its province
, - Court of first instance or court of appeal
- Hears all matters (civil/criminal) (Capital Crimes)
- 1 judge if matter of first instance
- If appeal you will have at least two judges
- If claim more than R400 000, go straight to high court.
- Can give a sentence from 15 years – life
Magistrate’s Court
Regional and District
- Have magistrates not justices.
- Deals with all matters except treason
- Deals with lots of divorces
- Downside: has a lot of people using it
- Deals with cases values at R200 000-R400 000
District
- Deals with petty offenses
- Monetary value is less than R200 000
- Doesn’t deal with serious crimes or offenses
- Possibility of sentence can send it to a higher court.
e.g., data must fall.
Small claims court
- Civil claims that do not exceed R20 0000
- No legal representation allowed and no fees
National Consumer Tribunal and Consumer courts
Tribunal- sits in centurion. Has jurisdiction over the whole country
Consumer Court- not normal courts
Ombuds
- Insurance Ombud
- Banking Ombud
Traditional Court
- Traditional Courts Bill has been put before parliament.
- Therefore, just a draft, not a law.
- Customary law and traditional leadership strong in south Africa.
Legislation aims to provide structure to these systems
,Ultra Vires: performing an act without legal authority (beyond the authority of the
person who made it- exceeded authority).
Sources of South African Law
Whether legal source exists governing a particular issue.
1. Constitution
Supreme law
2. Legislation
Statutes and acts of parliament
- In cases of conflict, legislation takes precedence over all other types of law
made from other sources, except the constitution.
- E.g., Matrimonial Property Act 1984
The constitution
- When interpreting legislation and developing common law or customary law.
Courts must promote spirit, purport and objects of the bill of right.
Original Legislation
- Acts of parliament (known as statutes) laws made by parliament.
(e.g., companies act 2008, Insolvency 1936, Matrimonial property act 1984)
- Provincial legislatures
- Laws passed by municipal councils
Delegated Legislation
- Legislation passed by government department is known as regulations
- Government do not get power to make law directly from constitution. Its
delegated to them by another body.
Courts only have to apply laws if:
- Don’t conflict with constitution
- Fall within the scope of the powers delegated to them
- If they don’t fall in scope. Regulations will be struck down as ultra vires =
beyond power
3. Roman Dutch Law
- 15-17th Century
- Law applied in Holland when SA was a Dutch colony
- Can be abolished through disuse or if it conflicts with legislation or the
constitution.
- Can be developed with new principles. E.g., constitutional values such as
ubuntu: humanity, humility, compassion
4. Customary law
- law of indigenous people of south Africa. (living law, flexible)
Bhe v Magistrate of Khayelitsha
Shilubana v Nwamitwa
, Primogeniture: inheritance whereby land descends to the oldest son.
5. Custom
Certain + reasonable + long-established + uniformally observed.
- Develops with time
- Long standing practice/ observance makes it acceptable
- Must be reasonable (cannot offend morals of society)
- Comes from community
e.g., fisherman who is fishing getting intervened by another fisherman and losing
catch of the day. (Van Breda v Jacobs)
6. Customary international law
Laws that states abide by
- Law unless it is inconsistent with the constitution.
- Treaties between countries (equivalent to legislation)
- Rules that have emerged with passage of time, that states regard them as
binding rules
- Can sue someone with these laws
-
e.g., non-refoulment (if someone seeks asylum in your country, avoiding persecution
for sexuality or race, you will not return them to country they have come from, protect
them from harm). Slavery, torture.
7. Case law
- Courts don’t have law making powers
- Interpret law: developing and applying others laws
- Decisions of superior courts are binding.
- Doctrine of stare decisis – let the decision stand.
-
e.g., Paulsen vs slipknot
Road accident fund.
Motor vehicle – any vehicle designed or adapted for propulsion or haulage on a road
by means of fuel, gas or electricity.
Any vehicle used on road
- If someone injured or killed by another person in motor vehicle. Person needs
to be compensated by RAF.
e.g., Chauke v Sanlam LTD – Forklift (not a vehicle) Should sue employer
RAF vs Vogel – electricity carrier (not a vehicle)
RAF vs Van Den Berg- roadworks (is a vehicle)
Bell v Road accident fund- baggage carrier (is a vehicle)
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