Summary
Summary South African Legal System
- Course
- Commercial Law
- Institution
- University Of South Africa (Unisa)
Summary of 7 pages for the course Commercial Law at Unisa
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The South African Legal SystemHistory of law
Law = social science
Provide for changing needs of developing community & consequently is inseparably bound with the community
it has to serve
SA law is not codified = drawn from various authoritative sources Comment [L & O1]: ORGANISED INTO A
CODE/SYSTEM
SA law origins – 1. Roman law 2. Roman-Dutch Law 3. English Law influenced Roman-Dutch law
Comment [L & O2]: 15th & 16th CENTURY
Roman law
Traditionally spans period 753 BC to AD 568.
Small, primitive state, population staying on farms – economy based on agriculture, no trade
Family with oldest male ascendant = sole owner of all family property, holder of all power
Rapid development – extended over Western Europe & large portions of Africa & Asia
Sophisticated legal system capable of dealing with exigencies of increasing wealth, expanding trade & influx of
foreigners, evolved
AD 291 RL culminated codification known as Corpus Iuris Civilis – reign of Emperor Justinian (6th c.)
Still primary authoritative source on which SA courts draw when reverting to RL to solve legal problems
Roman-Dutch law
Roman Empire declined & fell in AD 476
RL remained for 2 reasons:
o Every person was judged according to law of their own tribe/country
o Church exerted great influence – canon law was based mainly on RL
15th & 16th c. RL was received in the Netherlands & became mixed with existing Dutch customary law
English law
1652 – JvR brought R-DL to the Cape
1814 – R-DL remained in force (when the Cape was formally ceded to GB), direct & indirect influence of EL was
encouraged, appeal to Privy Council in London was instituted, jury system introduced, orphan Chamber
replaced by Master of Supreme Court
1826 – Code of criminal procedure introduced
1830 – EL of evidence introduced
1843 – English system of administration of estates introduced
1910 – Establishment of Union Parliament, uniform system of statute law & establishment of Appellate Division
1950 – Privy Council abolished as highest court of appeal by Act 16 of 1950
Sources of law
Some sources are authoritative while others are persuasive
Courts are bound by authoritative
1
, Sources of Law
Authorative Persuasive
Textbooks & law
Legislation Judgments Foreign Law
journals
Customary Law Old Authorities
Statute law/legislation Comment [L & O3]: LAW ENACTED BY A
LEGISLATIVE BODY
General
Legislation – making of law by a component of authority (most important source of law)
Law to be found in statutes enacted by
o Parliament/provincial legislatures
o Proclamations
o Regulations
o By-laws enacted by subsidiary legislative bodies such as
President
Ministers
Municipalities
Dutch statutes that still apply in SA: pre-1652 legislation
Dutch legislation of period 1652-1806 only applies if it has been ratified & accepted by SA law – any law after
1806 does not apply
The Constitution
Most important law in SA – Constitution of the Republic of SA, 1996
Previously: supreme Parliament
o Any law passed by parliament was valid, irrespective of contents
Now: Constitutional Supremacy
o Constitution is supreme law of republic
o If parliament were to pass a law that offended against provisions of constitution it would be invalid
Preamble to Constitution states that it was adopted so as to – Comment [L & O4]: PRELIMINARY
INTRODUCTION
o Heal divisions of past & establish society based on democratic values, social justice & fundamental
human rights
o Lay foundations for democratic & open society in which government is based on will of people & every
citizen equally protected by law
o Improve quality of life of all citizens & free potential of each person
o Build united & democratic SA able to take its rightful place as a sovereign state in family of nations
Primary method: Bill of Rights – Chapter 2 of Constitution
o Cornerstone of democracy in SA
o Confirms democratic values of human dignity, equality & freedom
o Applies to all law & binds all 3 branches of government
2
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