LAW162
Business Law & Compliance
Summary
,Topic 1: The South African Legal System
1. Concept of Law:
o Definition: Law is a system of enforceable rules governing society’s conduct,
recognized as binding and enforceable by the state.
o Purpose: Law ensures order, resolves disputes, protects individual rights, and
provides a framework for fair societal interactions.
2. Purpose of Law and Rule of Law:
o Purpose of Law: Provides structure for social order, protects human rights, and
ensures justice.
o Rule of Law: A foundational principle meaning all people and institutions,
including the government, are accountable to the law. It supports democratic
governance by:
▪ Limiting government power.
▪ Ensuring judicial independence.
▪ Upholding human rights, such as equality and freedom, as enshrined in
the Constitution.
3. Main Divisions of Law:
o Public Law: Governs relationships between individuals and the state, covering
Constitutional, Administrative, and Criminal law.
o Private Law: Regulates relationships between private individuals, including
Contract, Property, and Family law.
4. Sources of Law:
o Constitution: The supreme law, which sets the foundation for all other laws.
o Legislation: Acts and statutes passed by Parliament or local councils.
o Common Law: Derived from Roman-Dutch and English law, forming a large part
of South African law.
o Judicial Precedent (Case Law): Courts follow previous judgments in similar
cases, especially from higher courts (doctrine of stare decisis).
o Customary Law: Laws evolving from community customs, respected within
limits, especially in personal law matters.
o International Law: South Africa incorporates international agreements and
principles into domestic law, as long as they don’t conflict with the Constitution.
5. History and Development of South African Law:
o South Africa’s legal system is a blend of Roman-Dutch Law (brought by Dutch
settlers), English Law (introduced during British colonial rule), and Indigenous
Customary Law.
, o The Constitution of 1996 formalized a mixed legal system and emphasizes the
rights of all citizens under a constitutional democracy.
6. Court Structures and Jurisdiction:
o Hierarchy:
▪ Constitutional Court: Highest court on constitutional matters, sets
binding precedents.
▪ Supreme Court of Appeal: Second highest, handles appeals in non-
constitutional matters.
▪ High Courts: Regional courts that address serious criminal and civil
cases, also handle appeals from lower courts.
▪ Magistrates' Courts: Lowest level, handling minor civil and criminal
matters; divided into district and regional courts.
o Jurisdiction: The authority a court has over certain cases, based on location,
subject matter, and amount in dispute.
7. Doctrine of Stare Decisis:
o Higher courts’ decisions are binding on lower courts, ensuring consistency and
predictability in the application of the law.
o The doctrine ensures that similar cases are treated alike, which is fundamental
to the rule of law.
8. Officers of the Court:
o Judges and Magistrates: Preside over cases, interpret laws, and ensure fair
trials.
o Attorneys and Advocates: Legal representatives with specific roles in court
proceedings.
o Legal Practice Council: Governs the conduct and ethical standards of legal
practitioners in South Africa.
9. Litigation, Arbitration, and Mediation:
o Litigation: Traditional method of resolving disputes in court, typically more
formal and time-consuming.
o Alternative Dispute Resolution (ADR):
▪ Arbitration: Disputes are settled outside of court by an arbitrator;
decisions can be binding.
▪ Mediation: A mediator facilitates discussions to help parties reach a
mutual agreement; less formal, often quicker and cheaper than court
proceedings.
