Summary
Summary Chapter 1 notes
- Course
- Mercantile Law 193
- Institution
- Stellenbosch University (SUN)
In depth summary of chapter 1 for Merc Law 193, covered in the first term
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By: arnosteynza • 9 months ago
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SOURCES OF THE LAW● Legislation
● Court decisions
● The common law
● Custom
LEGISLATION
THE CONSTITUTION
The constitution = the most important law in the constitutional system of the country
and it regulates the legislative, executive and legal functions of the state.
- It also curbs, governmental power
- Since parliamentary sovereignty was abolished in 1993 → the
constitution = the supreme law of the country.
- Any law or conduct of the president that is in conflict with the
constitution = declared invalid by a court of law .
★ The courts (especially the constitutional court) have the
power to measure parliamentary acts (called statures)
against the general standard of the Constitution and to
declare them invalid if they are in conflict.
- Testing right of court = exercised with reference to the
fundamental human rights recognised and entrenched by
the Constitution.
Chapter 2 of the Constitution = provides for a Bill of Rights
↳ in which these fundamental rights are entrenched
Examples of rights entrenched in the Bill of Rights :
- the right to equality
- Right to assemble & to strike peacefully
- Right to freely choose a trade, occupation and profession
- Right to fair labour practices
- Right to not be deprived of property except in terms of law of general
application
- Right to fair administrative conduct
★ Any act in conflict with constitutional principles of freedom, equality and
human dignity of all people can therefore be declared invalid by the
Constitutional Court.
, EXAMPLE:
The decision in S v Makwanyane 1995 3 SA 391 (CC) → where court held
that the statutorily accepted death sentence unconstitutional because it is in
conflict with the right to life (s11).
The Bill of Rights contains a general prohibition / unfair discrimination
on grounds of :
- Gender
- Religion
- Ethnic origin
- Age
- Language
- Sexual orientation
- Etc …
Any human’s right to privacy, human dignity, religion, freedom of speech,
Equality before the law, cultural rights = protected by the Constitution.
↳Although Constitution = primarily aimed at regulating the relationship
between the State and individual → it is clear that the purpose of the Bill of
Rights = not only to regulate the so-called “vertical relationship” but that it
also applies horizontally between individuals / between companies +
businesses → and can be enforced in those contexts as well.
NOTE: rights entrenched in the Bill of Rights may be limited by a law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society
↳based on human dignity, equality and freedom with consideration of factor
mentioned in s36
↳ (E.g. the nature of the right, the purpose of the limitation, nature + scope
of limitation, relation between limitation and its purpose, and whether
there is a less restrictive means to achieve purpose)
Sometimes different human rights that are both protected by the
Constitution = will come in “conflict”
- E.g. the right to free speech and the right to dignity
- Rights will then have to be weighed against each other
, PARLIAMENTARY LEGISLATION: (national level)
● The Constitution = empowers Parliament to legislate
● Legislation (AKA statutes or acts) → comprises legal rules made by
Parliament
● Under a democratic order → parliament = constituted by representatives of
political parties elected by the community
○ In SA done by proportional representation
*Legislation should reflect the will of people and collective morality of society
↳ However, sometimes laws are made which generate much debate (e.g. abortion
law) question could then be asked if law still reflects the collective morality of the
People.
↳ Remember that collective morality changes over time
↳ Law = slow to react to change
Parliament = most supreme legislator on a national level → but still subject to
scrutiny of the Constitution as highest law of land.
● Parliamentary acts = most powerful source of law on a national level
● Enjoy preperance over the common law, as well as court decisions and
customary law.
Legislation may be used to :
- Fill gaps in the law
- Adapt the law to the needs of society to address issues in existing legislation
that are in conflict with the Constitution
- Stop loopholes + cure defects in existing legislation
(E.g. amends to tax laws)
Legislation = published in Government Gazettes → available electronically.
Statutes = have titles and numbers → (E.G. the Insolvency Act 24 of 1936)
All statutes = divided into sections → and then divided into subsections
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