BER 210
SUT 1 - History of the South African Law, the Legal
System and the Creation of Rules of Law
1.1- History of the South African Law
South African legal history can be divided into three broad periods, namely that of the:
Roman law
the Roman-Dutch law
South African law.
Roman Law can be divided into 4 periods:
1 - The Period of the Kings (± 753 BC – 510 BC). As the community was primitive and
essentially rural, legal rules consisted mainly of customs.
2 - The Republican Period (± 510 BC – 27 BC). In 449 BC, Roman law was written down for
the very first time in the form of the Twelve Tables. It then developed rapidly and had to
be systemised in order to fulfil the needs of the socially and commercially developing
community.
3 - The Period of the Emperors (± 27 BC – 284 AD), in which the development of the Roman
legal system reached its peak.
4 - The Post-classical Period (± 284 AD – 565 AD). During this period the Roman empire was
divided into the Western and Eastern empires. The legal system deteriorated systematically
during this period.
Emperor Justinian (who was in power from 527 AD to 565 AD) tried to maintain the former
glory of the Roman Empire. He was responsible for the codification of the entire Roman law.
This codification was called the Corpus Iuris Civilis and consisted of:
The Codex: a collection of legislation
The Digesta: selections from the works of Roman jurists
The Institutes: a textbook for students
The Novellae: a collection of the legislation promulgated after the completion of the
Codex.
Roman-Dutch Law:
1
,BER 210
Interest in Roman law was revived in the 12th century by the Glossators, who critically
analysed and studied it. The law of the Netherlands, primarily based on Germanic customary
law, evolved with the expansion of trade and commerce, necessitating a more efficient legal
system. In the 16th century, Roman law was increasingly combined with Dutch law, a
process known as the reception of Roman law. This led to the development of what is now
known as Roman-Dutch law.
South African Law:
In 1652, Jan van Riebeeck brought the Roman-Dutch law to South Africa. It still remains the
basis of our legal system (Common law).
The influence of English law on our own law was caused by the following factors:
English judges and magistrates presided in the South African courts.
Local jurists studied in England.
English decisions were applied by the South African courts.
South African legislation was modelled on English legislation.
South African Law = Roman-Dutch Law + English Law
Law VS Rights:
Rights
Legally protected interest enforceable against everyone.
Legal subjects (Natural persons OR Juristic persons)
Legal objects (Form part of a right protected by law)
A real right is the right to a corporeal thing, the right being effective against all the
world (for example, ownership in property).
A personal right is a right that entitles one person to claim performance of some act
or delivery of something from another, which right is created by a contract or by a
wrongful act.
An intellectual property right is the right of a person to the creations of his/her mind
or intellect (for example, copyright or trade mark).
A personality right is the right of a person to aspects of his/her personality (such as
dignity, bodily integrity, honour, good name, and so forth).
Law
Rules to obey
Enforced by the State
Can be Peremptory/Coercive (forces the parties to comply with, or adhere to,
certain prescriptions contained in the rule. Parties cannot agree to be exempted
from the rule, or agree not to adhere to these coercive rules)
Can be Regulatory (allows parties the freedom to regulate their own relationships
and will only apply if the parties choose to comply with the rule)
Sources of Law:
2
,BER 210
1 – Customs
Creates an unwritten legal rule, or abolishes an existing legal rule.
It must be reasonable.
It must have existed for a reasonably long time.
It must have been generally accepted and complied with by the community within
which it applies.
The contents of the rule must be clear and certain.
2 – Legislation
Rules laid down by a person or a body of persons with legislative authority
Parliament: the highest autonomous legislative authority in South Africa and
consists of the National Assembly and the National Council of Provinces.
Provincial legislation: Legislative powers are also conferred on the various provincial
legislators. The Constitution determines the legislative processes to be followed in
the provinces.
Subordinate Legislative bodies: Legislative authority can also be delegated in terms
of an Act of Parliament to a certain person or body of persons.
3 – Court Decisions
The primary function of the courts is to administer justice and not to create rules of
law.
However, from time to time the courts are confronted with an issue that is not
provided for by either the legislator or the common law.
In such a case the courts may, through the judge’s decision, create new rules of law.
Structure and Jurisdiction of South African courts:
Types of courts:
Civil
2 parties litigate to resolve a dispute.
Burden of proof: Balance of Probabilities.
Parties include: Plaintiff v Defendant and Applicant v Respondent.
Decisions include: Grant or dismiss claim/application/ interdict/declaratory order.
Criminal
State prosecutes a legal subject for a crime
Burden of Proof: State must prove guilt beyond reasonable doubt
Parties include: State v Accused
Decisions include: Guilty + Sentenced / not guilty
Types of courts:
1. Higher Courts (by rank of authority):
3
, BER 210
Constitutional Court - highest court of the Republic. The court may decide
constitutional matters, makes the final decision of whether a matter is within its
jurisdiction.
Supreme Court of Appeal - highest court for all other matters. The Supreme Court of
Appeal may decide only appeals, issues connected with appeals, and any other
matter that may be referred to it in circumstances defined by an Act of Parliament.
High Courts (14 seats) - The higher courts can adjudicate on both criminal and civil
matters.
2. Lower Courts:
Magistrates Courts:
District Courts = <R200 000/ <R120 000/3yrs for fines and monetary matters
Regional Court = <R400 000/ <R600 000/15yrs for fines and monetary matters
Small Claims Court:
- R20 000 max for fines and monetary matters
- No legal rep
- Only natural persons
Appeals and Precedent:
Appeals Process:
Appeals from lower and other courts are heard in the relevant provincial division of
the High Court.
A judgment by a single judge in a High Court matter may be appealed to a full
bench of the same High Court, consisting of three judges.
From the High Court, a party can further appeal to the Supreme Court of Appeal.
The Constitutional Court serves as the final court of appeal for all matters
Doctrine of Precedent:
In South Africa, the doctrine of precedent (or stare decisis) is applied. Courts create a
precedent through their decisions, which must be followed by other courts. As soon as a
legal principle is established by a court, judges of the same court and Courts of a lower
order subordinate to that court must adhere to this precedent.
Creating a Precedent**
A decision will only create a precedent if it is laid down as the ratio decidendi (the legal
reasoning) for the specific decision. When the court merely expresses an opinion or makes a
passing remark, it is called an obiter dictum, which does not create a precedent
SUT 2 – General Principles of the Law of Contract
4
