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CLA1501 SUMMARY NOTES
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- University Of South Africa (Unisa)
COMMERCIAL LAW NOTES
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CLA15011. The South African Legal System
Law is a social science.
South African Law is not codified: recorded in one comprehensive piece of legislation.
Origin:
• Indigenous legal systems applied at the southernmost tip of Africa before 1652.
• Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch
law as a legal system to the Cape.
1.1 A SHORT HISTORY OF THE LAW
• Unlike most European continental legal systems, SA law is not codified:
o It is drawn from various authoritative sources
o Such as statutes (legislation) and decided cases
o Occasionally also Roman and Roman-Dutch law.
Roman Law
• 735BC to AD658
• The Law of the Twelve Tables of 449BC were the cornerstone of the future
development of Roman Law
• Attempts to codify the law led to the Corpius Iuris Civilis (body or civil law) which is
still the primary authoritative source or Roman Law.
Roman-Dutch Law
• Roman Law was revised in the Netherlands during the 15 th and 16th centuries and
became mixed with the existing Dutch customary law.
• Some great Roman-Dutch Jurists:
o Hugo de Groot “Father of Roman-Dutch Law”
o Johannes Voet
o Dionysius Godefridus van der Keesel
o Johannes van der Linden
English Law
• After 1814, English Law began to seep into the existing Roman-Dutch system:
o A jury was introduced
o New legislation e.g. criminal often drew on English law
o A number of statutes in existence today are squarely based on English
legislation e.g. Bills of Exchange Act.
1.2 SOURCES OF LAW IN SOUTH AFRICA
• Some are authoritative: courts are bound by authoritative sources
• Others have merely persuasive authority: serves to convince a court to apply or
interpret a rule in a particular way.
Corpus Iuris Civilis: codification of Roman law that is a primary authoritative source on
which South African courts draw when reverting to Roman Law to solve a legal problem.
,Statute law or legislation
• The most important source of law
• Can be explained as the making of law by a competent authority
• To be found in: Statues, Proclamations, Regulations, By Laws.
• The most important piece of legislation:
o The Constitution of the Republic of South Africa, Act 108 or 1996.
The order in which SA law is consulted:
Customary law
• Does not consist of written rules but develops from the habits of the community
and is carried down from generation to generation
• A customary rule will be recognized as a legal rule when:
o It must be reasonable
o It must have existed for a long time
o It must be generally recognized and observed by the community
o It must be certain and clear
Judgments of the Courts
• An authoritative source of law known as case law
• Traditionally divided into superior and lower courts
• More important judgments are reported
The old authorities
• This body of law comprises the common law, i.e. the works of the old writers
referred to above.
Foreign Law
• A judge will to the law of other modern countries if nothing can be found in any of
the above sources
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, • No authoritative but a persuasive only
• Recognized as a source of law in the Constitution
Textbooks and law journals
• Works written by lawyers, e.g. legal academics, advocates and attorneys
• No inherent authority of their own but may be persuasive
1.3 THE COURTS IN THE REPUBLIC
The Constitutional Court
• Jurisdiction as the court of final instance over all matters relating to the
interpretation, protection and enforcement of the provisions of the constitution
• Seat of the court is in JHB, 11 judges with chief justice.
The Supreme Court of Appeal
• A Court of Appeal for the Higher Courts
• Unlimited appeal jurisdiction:
o The exception being matters within the exclusive jurisdiction of the
Constitutional Court.
• The seat of the court is in Bloemfontein
The High Courts
• Consists of a number of divisions with approx. one division per province
• Have original jurisdiction within their area of jurisdiction
• Only courts which can hear:
o Divorce proceedings
o Status of a person in respect of mental capacity
o Applications for sequestration
o Liquidation of a company
o Validity or interpretation of a will.
Officers of the superior courts
• Registrars are appointed in each superior court
o Responsible for the smooth functioning, e.g. issue of process.
• Sherrifs are appointed for each high court
o Duty to serve, process and execute judgments and orders of the court
• Masters are appointed in some high courts:
o Administrative and quasi-judicial functions
o Deceased and insolvent states
o Liquidation and judicial management of companies
• Legal practitioners are the advocates and attorneys
Magistrates Courts
• Limited jurisdiction by comparison with the high courts
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, Persuasive
Power:
High courts in other
areas of jurisdiction
8
1.4 THE DOCTRINE OF STARE DECISIS
The judgments of the superior courts are one of the most important sources of the law.
• The function of a judge is to state, interpret and apply the existing law but not to
make a new law. Extensions of common made law lead to judge-made law.
Nevertheless, the effect of a judicial decision which gives new interpretation to a
statutory provision or which abstracts, extends or adapts a common law principle, is in
many cases to create law. Law so created is termed ‘judge-made law’. Because a later
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