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Business Law > Chapter 1 - SA Legal System > Flashcards

Chapter 1 - SA Legal System Flashcards

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1
Q

History of South African Law

A

Hybrid System of

Roman Law
Roman Dutch Law
and English Common Law

Customary law is included.

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2
Q

Common Law Vs Civil Law

A

Common Law

  • generally uncodified
  • based on precedent

Civil Law System

  • codified
  • comprehensive and updated legal codes and statutes
  • codes or statutes have the applicable procedure and the appropriate punishment for each case.
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3
Q

Authoritative vs Persuasive Sources

A

Authoritative Sources

  • binding on courts; judges must follow in making decision

Examples are legislation, case law, common law, custom and African Indigenous law.

Persuasive Sources

  • not binding on courts; may lead court to specific conclusion.

Examples are journal articles, textbooks and foreign law

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4
Q

Sources of Law - Legislation

A

Legislation is the making of law by Parliament

It is the MOST IMPORTANT SOURCE of law and writes BINDING rules and regulations enacted by parliament.

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5
Q

The Constitution

A

Supreme Law of SA

Contains the

Bill of rights:

  • Paramount but limited in terms of section 36
  • applies to all law
  • binds all 3 branches of government
  • the cornerstone of democracy in SA That confirms democratic values of human dignity, equality and freedom.
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6
Q

Customary Law also called Trade Usages

A

The rules of conduct in a particular group of people.

  • These are unwritten rules, habits of community, from generation to generation
  • Custom can develop into Law
    But must meet these requirements:
  • must be reasonable
  • must have existed for a long time
  • generally recognized and observed by the community
  • contents must be clear and certain.
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7
Q

Sources of Law - Judgements of the Courts

Also known as Case Law or Judicial Precedent

A

An authoritative source of law

They consist of superior and lower courts

-Superior courts:
Constitutional court,
Supreme Court of Appeal and
High Court

  • Lower Courts
  • lower than the high court
  • Jurisdictions are limited
  • Not reported in Law Reports
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8
Q

Other Sources of Law

A

The old authorities

  • works of old jurists
  • still authoritative in SA courts today
  • Body of law also know as common law

Foreign Law

  • law of other modern countries
  • provide guidelines for a judge
  • Persuasive authority valid

Textbooks and law journals

  • contains articles by law experts
  • Persuasive value
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9
Q

Summary Sources of Law

A

Constitution - authoritative

Judgments - authoritative

Customary law - authoritative

Old authorities - authoritative

Foreign law- Persuasive

Textbooks and law Journals - Persuasive

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10
Q

The Constitutional Court

Located in JHB

A
  • It’s the highest court in ALL matters
  • it’s rulings bind all the courts
  • Exclusive jurisdiction as a court of first and final instance on on matters such as:
  • disputes between organs of states
  • the constitutionality of of any parliamentary bill
  • the constitutionality of any amendments to the constitution
  • parliament or president has failed to fulfill a constitutional obligation
  • certify a provisional constitution
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11
Q

Supreme Court of Appeal

Located in Bloemfontein

A

It’s a Court of appeal for high court.

It has Inherent jurisdiction in respect of geographical territory

It’s appeal jurisdiction is unlimited expect for matters exclusive to constitutional court

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12
Q

The High Court

A

The high court has original jurisdiction and can hear any matter arising within it’s jurisdiction.

It has inherent jurisdiction.

Only HIGH COURT has jurisdiction to give judgement on:

DIVORCE 
MENTAL CAPACITY 
SEQUESTRATION OF ESTATE 
LIQUIDATION OF A COMPANY 
WILLS

Jurisdiction on certain constitutional matter such as
- violation of constitutional rights.

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13
Q

Lower Courts

Regional Magistrates Courts

A

Regional Magistrates Courts

  • has jurisdiction to hear serious CRIMINAL matters
  • except treason cases (high court)
  • has jurisdiction over divorce cases since 2010

Maximum fine of R300 000

  • Sentence to prison up to 20 years (armed robbery/stealing a motor vehicle)
  • Life Sentence (murder/rape)
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14
Q

Lower courts

Ordinary Magistrates Court

A

Ordinary Magistrates Court
- have jurisdiction in civil and criminal cases

CIVIL MATTERS
- claims not exceeding R100 000 unless parties agree

  • may not hear matters relating to status of individual such as insolvency or divorce.

CRIMINAL MATTERS

  • impose fines up to R100 000
  • sentence maximum of 3 years in prison
  • can hear less serious offences such as theft or traffic offenses
  • cannot hear treason, murder or rape matters
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15
Q

Lower Courts

Small Claims Court

A
  • jurisdiction in CIVIL matters only.
  • claims can’t exceed R15 000

Functions

  • to provide simple, expedient and cost effective forum for people for simple matters
  • Anyone may institute a claim
  • Presiding officers: Commissioners
  • no legal representation is allowed, all persons must appeal personally
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16
Q

The Doctrine of Stare Decisis

A

Judges only state, interpret and apply the existing law

The Essence of judicial decision
- abstracts, extends or adapts common law principle

This is called “judge made law” and becomes an established rule or principle

The phrases means “the decision stands”

Parties to the dispute will be bound by decision of the court.

A court is bound by its decision unless or until it is overruled by a superior court.

A Decision of High Court no matter a bull bench of judges is bound by decisions of constitutional court and Supreme Court.

A decision of 2 judges is bound by a decision of a full bench - 3 judges.

  • EVERY COURT IS BOUND BY A DECISION OF A CONCURRENT STATUS WITHIN ITS OWN AREA OF JURISDICTION.
  • SCA is bound by its previous judgements ( SCA bench of 5 judges is bound by the decision of 3 earlier judges)

ONE DECISION OF THE HIGHT COURT IS NOT BOUND TO FOLLOW THE DECISIONS OF OTHER DIVISIONS OF THE HIGH COURT

Magistrates Court is bound by the decisions of
CC, SCA and HC.

One magistrate does not follow the decisions of another as judgements are not recorded.

17
Q

Statutory Interpretation

A

Used when MEANING in law legislation must be determined.

Words and legislation may be ambiguous, imprecise or may affect a right in constitution.

A lower court must apply a higher courts interpretation of the wording of an Act and not apply working of the Act by itself

Any statute that conflicts with Constitutional law is invalid, whether enacted before of after constitution.

18
Q

Constitutional Guidelines when interpreting legislation

A
  • the Court must promote constitutional values
  • the Court must promote the spirit, purpose and object of BILL OF RIGHTS
  • court must prefer any reasonable interpretations that is consistent with international law.
19
Q

Five methods of interpretation of legislation

Grammatical
Systematic
Teleological 
Historical
Comparative
A

Grammatical interpretation

  • Ordinary meaning of legislation must be attached to it
  • Words as a whole of the legislation is important with no additions or subtractions

Systematic (or contextual) interpretation

Interpretation of the text of the law in the context of related laws
E.g. the meaning of a provision or statute in terms of
its relationship to other provisions of the statute, and
Statute as a whole

Teleological interpretation
-when required, interpretation of a statute should be done in light of the constitutional values

Historical interpretation
-Statutes are interpreted against the historical situation from which it emerged as law
The essence of the history in more important than the historical fact

Comparative interpretation
Interpretation of similar legislation by foreign courts and international law
International law = law in international organisations (UN and laws (treaties) between nations
Foreign law of any international jurisdiction

20
Q

Court Judgements

A

Ratio Decidendi
Literally: “the reason for the judgement / decision”
Essential to a court’s decision
Binding on other courts

Obiter Dictum
Literally: “statement in passing”
not part of the reasoning of the court
does not bind any courts
does have persuasive value

Distinguishing
Judge’s decision that ratio decidendi of a previous decision is not binding on the case before him/her
Technique used to avoid the binding force of an earlier ratio decidendi

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