CLA1501 COMMERCIAL-LAW-CLA1501 best NOTES.summary

COMMERCIAL LAW CLA1501 THE SOUTH AFRICAN LEGAL SYSTEM ORIGINS Roman Law Duch Customary Law Roman-Dutch Law 1652 with Van Riebeeck landing in Cape Town 1814 Law system influenced by English Law SOURCES OF THE LAW Note: Roman law was codified in the Corpus Iuris Civils during reign of the emperor Justinian – was first time law was codified (recorded in one comprehensive legislation) – SA Law not codified. AUTHORITATIVE SOURCE OF SA LAW: 2 types of sources: Authoritative – court is bound by & Persuasive – used/interpret in particular way to convince court ruling. 1) Statute Law or Legislation 1.1 General:  Dutch legislation passed between if approved & accepted by SA Law  English statues don‟t apply to SA unless by official proclamation regarding the union of SA or colonies 1.2 The Constitution of RSA 1996  Is the supreme law of the Republic  Any law contrary to its provisions may be declared invalid  Regulates government – sets out structure of state & its organs – providing for their functions & powers Constitution Sources of Law Authoritative  Legislation  Judgements  Customary Law  Old Authorities Persuasive  Foreign Law  Textbooks & Journals Page 2 of 23  Constitution was adopted to (achieved through Bill of Rights): i. Heal divide of past & establish society based on democratic values, social justice & basic human rights ii. Foundation for democratic society in which government is based on will of people and all are equally protected by Law iii. Improve quality of life & free potential of each iv. Build united democratic RSA & enable it to take rightful place as sovereign state 2) Customary Law (Trade usages)  Does not consist of written rules – develops from habits of community & carried throughout generations.  For customary rule to become legal: a) Must be reasonable b) Must exist for long time c) Must be recognised & observed by community d) Contents of rule must be clear 3) Judgements of Courts 2 types of courts: 1. Superior Courts (unlimited jurisdiction) 2. Lower Courts (limited jurisdiction) Constitutional Court (Hears matters regarding the interpretation of the Constitution – Jhb) Supreme Court of Appeal (Only court of appeal for High Courts; all matter except constitutional – Bloemfontein) High Court (Can hear any matter arising within their jurisdiction & certain constitutional matters e.g. fundamental rights entrenched- most major cities)  Divorce  Mental Capacity  Sequestration of estate  Liquidation of Company  Will