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Summary general principles of commercial law semester one CLA1501
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- University Of South Africa (Unisa)
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GENERAL PRICIPLES OF COMMERCIAL LAWNINTH EDITION
CLA 1501
SEMESTER 1
1
, Chapter 1
The South African legal system
A short history of the law
Law is a social science that provided the changing needs of a developing
community and consequently bound up with the community it has to serve.
South African law is not codified (not from only one comprehensive piece of
legislations) It is from various authoritative sources:
Roman law
Roman-
Dutch law
english law
From 753 BC to AD 568. Rome as well as
the law system was primitive, but it
changed rapidly and soon stood at the head
of an empire extending over virtually the
whole Western Europe and large portions
of Asia and Africa, a highly sophisticated
legal system evolved. From AD 291
Roman Law attempts were made to codify Roman law
and these attempts culminated in a
codification known as Corpus Iuris Civilis,
which appeared during the reign of
Emperor Justinian in the sixth century.
Today this is still a primary authoritative
source in South Africa.
2
, Roman Empire declined and fell in AD 476
but Roman law did not disappear. During
the middle ages traces of Roman law
remained because of 2reasons: every
person no matter where he/she is was
judged according to the law of his/her own
tribe or country. Secondly the church had
a great influence during this period and
Roman-Dutch law canon law was mainly based on Roman
law, preservation of Roman law. During
15th and 16th century Roman law was
received in the Netherlands and became
mixed with Dutch customary law. Still today
the Roman-Dutch law form a source of
present day South African law.
In 1652 Jan van Riebeeck brought Roman-
Dutch law to the Cape, but the
administration of justice during the 17th
and 18th century left much to be desired.
After 1814 when the Cape was formally
ceded to Great Britain, existing Roman-
Dutch law remained in force, but factors
contributed to the reception of English law.
The Appeal to Privy Council in London was
instituted, Jury system was introduced,
English law
and Orphan Chamber was replaced by
Master of the Supreme Court.
List of new legislations:
Code of criminal procedure
introduced in 1826
Entire English law of evidence in
1830
English system of administration of
estates in 1843
In 1910, a milestone on the development of
South African law, the Union parliament,
uniform system of statute law,
Establishment of Appelate Division.
Sources of the law
The South African law is derived from a number of sources, some authoritative
while other only have persuasive authority
3
, Statute law of legislation
the customary
general foreign law
constitution law
textbook and judgements old
law journals of the courts authorities
General
Legislation is the making of law by competent authority, the most important
source of the law. Found in statutes enacted by parliament and provincial
legislatures, proclamations, regulations and by laws enacted by subsidiary
legislative bodies (president, minister)
Even Dutch statutes which apply in SA namely pre 1652 legislation. Dutch
legislation of period 1652-1806 applies only if ratified and accepted by South
African law. Dutch legislation passed after 1806 does not apply.
English statutes never applied here, unless legislation had been promote by
British Parliament to apply
The Constitution
Previously we had a supreme parliament meaning any law made by them
passed as valid. Now we have a system under which the constitution is the
supreme law of the Republic. This means that if the parliament were to pass a
law that offended the provision of the constitution, it would be invalid. The
preamble to the Constitution states that it was adopted to:
a) Heal divisions of the past and make a society based of democratic
values, social justice, human rights
b) Lay foundation of democratic, open society
c) Improve quality of life of all citizens
d) Build a united and democratic South Africa
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