CLA1501
NOTES
,1 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.
Sources of South African law
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.
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:
It must be reasonable
It must have existed for a long time
It must be generally recognized and observed by the community
It must be certain and clear
The Courts in the Republic
, Persuasive Power:
High courts in other areas of
jurisdiction
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.
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 court does not depart lightly from the decisions
of an earlier court, this judge-made law becomes established legal rule.
The court or judge does not purposefully set out to create a law.
Application of the Doctrine
Stare Decisis: The decision stands.
Obviously, when a court gives a decision, the parties to the dispute will be
bound by the decision.
The doctrine of Stare Decisis would mean that a later court would be bound
by the earlier decision regardless of whether or not the earlier decision could
be regarded as correct.
South African courts follow a middle course. A court is bound by its own
decisions unless and until they are overruled by a superior court.
, The doctrine of stare Decisis and the hierarchy of courts
o Every court is bound by the decisions of the superior court within its
area of jurisdiction. Thus a High Court regardless of the amount of
judges is bound by the decisions of the Supreme Court of Appeal; a
bench of 2 judges is bound by a decision of the full bench and a single
judge by the decisions either of the two just mentioned.
o Every court is bound by the decision of a court of concurrent status
within its own area of jurisdiction. Thus the Supreme Court of Appeal is
bound by its previous judgments (even a bench of 5 judges by a
bench of 3). A full bench of a High Court is similarly bound by an earlier
full bench decision, a 2 bench by a 2 bench and a single judge by an
earlier decision by a single judge.
o One High Court is not bound to follow the decisions of another High
Court since they belong to different jurisdictions. The High Court from
another jurisdiction will, however, serve as a persuasive authority.
o Magistrate’s courts are bound by the judgments of the Supreme Court
of Appeal and the High Courts. If the judgments of the High Courts are
conflicting, a magistrate should follow the decision of the High Court in
whose jurisdiction it falls.
Ratio Decidendi: The reason for the decision – which is binding and which is
the subject of the doctrine of stare Decisis.
The ratio decidendi is binding on subsequent courts. Any statement, which
falls outside the ratio decidendi, is known as the: Obiter Dictum or incidental
remark
Typical aspects of a judgment
National Sorghum Breweries Ltd v Corpcapital Bank Ltd 2006(6) SA 208 (SCA)
National Sorghum Breweries Ltd = applicant, claimant, appellant
v = versus
Corpcapital Bank Ltd = defendant, respondent
2006(6) = reported in the 6th part of the 2006 law reports
SA = case is reported in the South African Law reports
208 = page number
(SCA) = case heard in the Supreme Court of Appeal
2 The Science of Law
Public Law: legal rules between state and citizens
Private Law
Legal rules between citizens
Legal Subjects:
NOTES
,1 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.
Sources of South African law
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.
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:
It must be reasonable
It must have existed for a long time
It must be generally recognized and observed by the community
It must be certain and clear
The Courts in the Republic
, Persuasive Power:
High courts in other areas of
jurisdiction
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.
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 court does not depart lightly from the decisions
of an earlier court, this judge-made law becomes established legal rule.
The court or judge does not purposefully set out to create a law.
Application of the Doctrine
Stare Decisis: The decision stands.
Obviously, when a court gives a decision, the parties to the dispute will be
bound by the decision.
The doctrine of Stare Decisis would mean that a later court would be bound
by the earlier decision regardless of whether or not the earlier decision could
be regarded as correct.
South African courts follow a middle course. A court is bound by its own
decisions unless and until they are overruled by a superior court.
, The doctrine of stare Decisis and the hierarchy of courts
o Every court is bound by the decisions of the superior court within its
area of jurisdiction. Thus a High Court regardless of the amount of
judges is bound by the decisions of the Supreme Court of Appeal; a
bench of 2 judges is bound by a decision of the full bench and a single
judge by the decisions either of the two just mentioned.
o Every court is bound by the decision of a court of concurrent status
within its own area of jurisdiction. Thus the Supreme Court of Appeal is
bound by its previous judgments (even a bench of 5 judges by a
bench of 3). A full bench of a High Court is similarly bound by an earlier
full bench decision, a 2 bench by a 2 bench and a single judge by an
earlier decision by a single judge.
o One High Court is not bound to follow the decisions of another High
Court since they belong to different jurisdictions. The High Court from
another jurisdiction will, however, serve as a persuasive authority.
o Magistrate’s courts are bound by the judgments of the Supreme Court
of Appeal and the High Courts. If the judgments of the High Courts are
conflicting, a magistrate should follow the decision of the High Court in
whose jurisdiction it falls.
Ratio Decidendi: The reason for the decision – which is binding and which is
the subject of the doctrine of stare Decisis.
The ratio decidendi is binding on subsequent courts. Any statement, which
falls outside the ratio decidendi, is known as the: Obiter Dictum or incidental
remark
Typical aspects of a judgment
National Sorghum Breweries Ltd v Corpcapital Bank Ltd 2006(6) SA 208 (SCA)
National Sorghum Breweries Ltd = applicant, claimant, appellant
v = versus
Corpcapital Bank Ltd = defendant, respondent
2006(6) = reported in the 6th part of the 2006 law reports
SA = case is reported in the South African Law reports
208 = page number
(SCA) = case heard in the Supreme Court of Appeal
2 The Science of Law
Public Law: legal rules between state and citizens
Private Law
Legal rules between citizens
Legal Subjects:
