CLA1501-COMMERCIAL-LAW-Summaries

COMMERCIAL LAW CLA1501 (Chapter 1: 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 a.1 General:  Dutch legislation passed between applies only if approved & accepted by SA Law  English statues don’t apply to SA unless by official proclamation regarding the union of SA or colonies  Most important source of the law a.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 was adopted to (achieved through Bill of Rights): Page 1 of 35 Constitut ion Sources of Law Authoritativ e  Legislation  Judgements  Customary Law  Old Authorities Persuasive  Foreign Law  Textbooks & Journals 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) Magistrate Court Small Claims Court  Matters that cannot be taken to the small court:  Divorces  Matters concerning a will  Malicious prosecution  Wrongful imprisonment  Breach of promise to marry Courts of tribal leaders Page 2 of 35 Note: Bill of Rights:  Applies to all law  Binds 3 branches of government: legislative, executive & judiciary  State must protect, respect, promote & fulfil the rights of BOR  Divided by 1st & 2nd generation 1 st generation: takes power away from the state – imposing duty not to act in certain way e.g .discriminate 2 nd generation: positive socio-economic rights = obligates state to provide society with certain basic needs e.g. health care  Rights can be limited in special circumstances: o The limitation must be of general application o It must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom o It must take the following into account:  The nature of the right  The purpose and importance of the limitation  The nature and extend of the limitation Must keep record of proceedings Legislature; branch of government having the power to make laws Executive branch: administrative or supervisory authority in government Judiciary: all judges of  Divorce  Mental Capacity  Sequestration of estate  Liquidation of Company  Will 4) Old Authorities (Common Law) Body of law by old authorities (Dutch & Roman) = Common Law 5) Foreign Law (Persuasive Authority) Judge may turn to modern countries’ law for guidance – not an authoritative law in SA, only persuasive. Constitution provides for interpreting BOR a court of law must consider international law & consider foreign law. 6) Textbooks & Law Journals (Persuasive Authority) No authority of their own but persuasive influence. OFFICERS OF THE SUPERIO COURTS: Registrar (Superior Court) Appointed in each Superior Court = smooth running of court. Issue process (Summonses/ warrants etc), enrolment of cases, issuing orders of court & maintain records Sherrifs (High Court) Serve processes & execute judgement & orders of court Master (in some High Courts) Various administrative & quasi-judicial function regarding deceased & insolvent estates, liquidation & judicial management of companies, minors, & disabled people. Legal Practitioners Advocates – appear in High Courts  Don’t deal directly with the public, nor do they appear in Magistrate Courts.  Deal with litigations & legal opinions.  Has passed Bar Exam Attorneys – appear in Magistrate Court  Aid in drawing up contracts/ will (can act as notary & conveyancer)  Deal directly with members of public who need legal advice or representation.  May refer clients to advocates  Passed Board Exams & done Page 3 of 35