Chapter 1 - SA Legal System Flashcards
History of South African Law
Hybrid System of
Roman Law
Roman Dutch Law
and English Common Law
Customary law is included.
Common Law Vs Civil Law
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.
Authoritative vs Persuasive Sources
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
Sources of Law - Legislation
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.
The Constitution
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.
Customary Law also called Trade Usages
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.
Sources of Law - Judgements of the Courts
Also known as Case Law or Judicial Precedent
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
Other Sources of Law
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
Summary Sources of Law
Constitution - authoritative
Judgments - authoritative
Customary law - authoritative
Old authorities - authoritative
Foreign law- Persuasive
Textbooks and law Journals - Persuasive
The Constitutional Court
Located in JHB
- 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
Supreme Court of Appeal
Located in Bloemfontein
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
The High Court
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.
Lower Courts
Regional Magistrates Courts
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)
Lower courts
Ordinary Magistrates Court
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
Lower Courts
Small Claims Court
- 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
The Doctrine of Stare Decisis
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.
Statutory Interpretation
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.
Constitutional Guidelines when interpreting legislation
- 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.
Five methods of interpretation of legislation
Grammatical Systematic Teleological Historical Comparative
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
Court Judgements
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
