Summary CLA1501 - NOTES -Best

COMMERCIAL LAW - CLA1503 CHAPTER 1 THE SOUTH AFRICAN LEGAL SYSTEM HISTORY OF THE LAW • SA law is not codified (recorded in one comprehensive piece of legislation) • Drawn from various other sources • Principle sources are statutes and decided cases • Roman law and Roman-Dutch law are also recognized sources of the law • Roman-Dutch law : brought to SA by Van Riebeeck • English law exerted influence on Roman-Dutch law Roman Law • 753bc – 568ad • Most of population living on farms • Rome developed into vast empire and law adapted to highly sophisticated legal system • From 291ad attempts made to codify Roman law and led to codification known as Corpus Iuris Civilis in the sixth century. This work is the primary authoritative source on which SA courts draw when reverting to Roman law to solve a legal problem. Roman-Dutch Law • Roman empire fell in 476ad but former Roman citizens still treated according to Roman law • Church exerted great influence during this period English law • 1910 was a milestone for development of SA law – establishment of union parliament, establishment of appellate division • Privy council abolished in 1950 SOURCES OF THE LAW • Some sources are authoritative and others are persuasive • Courts are bound by authoritative • Persuasive authority may lead a court to apply or interpret a legal rule in a particular way Statute law or legislation General • Dutch legislation 1652 – 1806 applies only if it has been ratified and accepted by SA law. Dutch law after 1806 doesn’t apply here • Lease of immovable property (1658) still applies here • English statutes never applied here unless especially promulgated by British parliament to apply to SA P a g e | 2 The constitution • Most important south of law in SA – Constitution of the Republic of South Africa 1996 • If parliament were to pass a law that offended against the provisions of constitution it would be invalid • New and existing law inconsistent with constitution can be declared invalid by superior court • Bill of rights is chapter 2 of constitution • Bill of rights applies to all law and binds all 3 branches of government and all organs of state. State is required to respect, protect, promote and fulfil these rights • First generation rights: equality, human dignity, life, freedoms of person (religion, expression, movement, trade) • Second generation rights: housing, healthcare, food, water, social security, education • Rights can be limited in special circumstances Customary law • Does not consist of written laws, but develops from habits of community and carried down from generation to generation • Also called trade usages • Requirements to be met before customary rule recognized as legal rule: o Must be reasonable o Must have existed for a long time o Must be recognized and observed by community o Contents of rule must be certain and clear • Also plays an important role in business and commercial world. It is alleged that if a trade usage exists within certain trade or business then parties are contracted and bound to it Judgments of the courts •