these notes contain all the necessary information needed to do extremely well for the business law 1 course , and contains examples as well that are from tests and exams. got a 83 in the course using these notes only . really good
,PART A: INTRODUCTION SECTION
1. The meaning of “law”
Law is a body of rules governing human behaviour that is recognised and enforced by the
state/government.
If a law is broken or disobeyed, then the state will punish the offender or provide the
victim with a remedy not only compensation - That distinguishes law from other
rules.
Does law = Morality ?
-No, law does not = morality. Why ?
-Because whose morality do we judge by.
Everybody is bound to follow the law, even if it doesn’t agree with their morality.
2. Legal terminology
A) State = government and it is divided into three areas/branches:
- The legislature: makes law, that is parliament
- The executive: enforces the law, that is the president, ministers and civil services
eg. The police
- The judiciary: applies and interprets the law, that is the courts eg. Magistrates or
judges
B) Separation of powers
- The legislature, the executive and the judiciary are completely separate and
independent of each other.
- They cannot interfere with each others decision making That is the
cornerstone of democracy.
C) Jurisdiction
This can have two meanings:
- The powers that a court has eg. A court with criminal jurisdiction has the power to
hear criminal matters.
- The geographical area over which the court has power eg. The Western Cape
High Court has jurisdiction over the Western Cape.
D) Appeal
- Taking a case from an inferior court to a higher court in the hope of getting a
different judgement.
- Used as a mechanism for getting a second opinion on the judgement of the
inferior court.
- The higher court will re-assess the facts and see if the law was applied correctly.
- So the merits of the case are challenged.
E) Review
- If a case is taken on review it means that someone is claiming that there was an
issue with the process or procedure eg. That the judge was biased or drunk.
- So the process/procedure is challenged here, not the merits.
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, 3. The court structure
Sec 166 Constitution sets out the court structure
Constitutional Court
Supreme Court of Appeal (pre-1994 Appellate Division)
High Courts
Magistrate’s Courts
(divided into 2 equal parts)
Regional Magistrates’ Courts District Magistrates’ Courts
In addition:
- Small claims courts
- National consumer Tribunal
- Consumer courts
- Rental housing tribunal
- Specialist courts eg. Labour courts, tax courts
3.1. The Constitutional Court (CC)
SA has a written constitution
Constitution is an act of parliament. Very long and divided into chapters.
It protects human rights (aka constitutional rights), e.g. right to equality, life, housing,
religion, dignity, freedom of expression. These rights can apply to companies as well.
Human rights are contained in Chapter 2 of our constitution = BILL OF RIGHTS.
Other chapters set out how the country must be governed, e.g. president, number of
members in parliament, elections every 4 years.
NB – Any matters which relate to the protection of human rights or how the country must
be governed are known as constitutional matters.
The CC can only decide constitutional matters and matters which relate to a “point of law
of general public importance”. there is no definition, it is left open deliberately because
once you define something you close it.
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, Example: Steenkamp v Edcon Ltd 2016 (CC)
Edcon released 3000 employees. The employees sued them in the labour court. The
employees argued that Edcon had not followed the proper procedure for
retrentchment and therefore the retrentchments were invalid. The labour court said
that the proper procedure was not followed but the dissmissals were valid. The case
went on appeal to the CC as a matter of general public importance. The CC held that
the correct procedure was not followed but the dissmissals were valid.
Example: Tshwane City Council v Mitchell 2017 (CC)
The SCA found that an owner of property could be liable for historic municipal debt
going back 30 years (municipal debts = water, rates, electricity). This means that you
could be liable for the previos owners outstanding accounts going back 30 years. It
was taken on appeal to the CC on a matter of general public importance, and the CC
held that the owner is not liable to historic debts.
CC does not hear ordinary matters/cases such as murder cases, theft or a case where
landlords wants to sue his tenant for outstanding rentals.
CC only hears cases and appeals of a constitutional nature or cases of general public
importance.
NOTE: Other courts can also hear constitutional matters so the CC does not have
exclusive jurisdiction other these matters. Therefore many cases are brought on appeal
to the CC.
In fact in most situations, cases are brought on appeal to the CC, but it can also be a
court of first instance (or a trial court the case starts in this court).
CC has exclusive jurisdiction over certain matters i.e. no other court can hear these
matters.
Example: Disputes between organs of state: SARS v Home Affairs
Home Affairs wants to take charge of all revenue collection at all 11 boarders.
Example: Only the CC can decide on the constitutionality of an amendment to the
constitution.
Court sits in Johannesburg and has jurisdiction over the whole country.
It has 11 judges, at least 8 must be “on the bench” to hear a matter at minimum.
11 judges would be a “full bench”.
3.2. The Supreme Court of Appeal (SCA)
Pre-1994 was called the Appellate Division (AD or A)
This court is only an ‘appeal’ court – can never be a court of first instance or a trial court.
It can hear all kinds of matters/cases i.e. criminal, civil and constitutional
Final court of appeal in all matters except constitutional matters and matters of general
public importance. But it can hear constitutional appeals – just not final appeal court for
constitutional matters or matters of general public importance.
Cases are heard by a bench of 3 to 5 judges.
A full bench is 5 judges.
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