Summary CLA1501 - Commercial LAw SUMMARISED NOTES.

CLA1501 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. 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 15th 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. 2 | P a g e 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 3 | P a g e • 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 4 | P a g e 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