Common Law Flashcards
1
Q
- Different Meanings of Law
A
2
Q
1.1 Law used by whole country
A
- this is the law that is common to the country as a whole and applies to everyone in SA.
- there are various systems used.
3
Q
1.2 English Common Law
A
- based on English law together with the decisions of the courts in specific cases.
- the English Doctrine ‘stare decis’ requires courts to follow the decisions made by earlier courts.
4
Q
1.3 Law that doesn’t come from Legislation
A
- it predominantly refers to Roman Dutch law combined with the developments thereof by the court in specific cases.
- it refers to law that is set out by institutional writers.
- the development of common law has been through judicial precedent which can change throughout cases.
- it is still subject to the constitution.
5
Q
When is common law applicable?
A
- Roman Dutch law and English sources are consulted when legislation does not govern/answer a particular legal question.
- when institutional writers clash, the courts have indicated that they will follow the position in line with the modern notion of justice and utility.
- Dutch authors are given preference then other authors of the European ias Commune.
6
Q
Can a roman Dutch rule fall away?
A
- the doctrine of abrogation allows for common law rules to be discarded if they are not used.
- courts have the power to abrogate common law rules if they are irrational or not in pace with modern notions.
7
Q
Development by the courts
A
s39(2) places a duty on the courts to develop common law in accordance with the spirit and values of the BOR.
- despite constitutional guidelines, there are no clear guidelines as to when to act on it/ wait for the legislator to develop the law which is one of their primary functions.
- In ‘Carmichele v Minister’ the court said that you should develop common law whenever.’
- In ‘Masiya v Director’ the court said you must develop the common law in exceptional circumstances to ensure justice is served.
