SU1: History of South African Law Flashcards
What 3 periods are SA legal history divided into?
- Roman Law
- Roman Dutch Law
- SA Law
What 4 categories are Roman Law divided into?
- Period of the Kings
- Republican Period
- Period of the Emperors
- Post-Classical Period
1.When was the Period of the Kings and
2. what was significant about it?
- 753BC- 510BC
- Primitive community: legal rules consisted mainly of customs.
- When was the Republican Period and
- what was significant about it?
- 510BC- 27BC
- Roman Law written in the form of Twelve Tables: developed rapidly and had to be systemised to fulfil socially and commercially developing community.
- When was the Period of the Emperors and
- why was it significant?
- 27BC - 284AD
- Development of Roman Law reached its peak.
- When was the Post-Classical Period and
- what was significant about it?
- 284AD - 565AD
- Decline of legal system: Roman empire was divided into Western and Eastern empires.
What is the codification of Roman Law
Corpus luris Civilis
What did Corpus luris Civilis consisted out of?
a)the Codex:a collection of legislation
b) the Digesta:selections from the works of Roman jurists
c) the Institutes: a textbook for students
d) the Novellae: collection of the legislation promulgated after the completion of Codex
What does Roman-Dutch Law consist out of?
Law of Netherlands and Roman Law
Roman-Dutch = SA common law: what 4 factors caused the English Law to have an influence on SA law?
- English judges and magistrates presided in the South African courts
- Local jurists studied in England
- English decisions were applied by the South African courts
- South African legislation was modelled on English legislation
What is the main differences between Laws vs Rights?
- Laws are: rules to obey, enforced by the State, Peremptory or regulatory
- Rights are: legally protected interest enforceable against everyone
A right can be described as the legally protected interest of:
The two types:
- legal subject
- legal object
Define legal subject.
An entity who, in terms of law, can be the bearer of rights and duties.
Name the two categories that a legal subject can be divided into
- Natural persons: every human being
- Juristic persons: companies
Define legal object
That which forms part of an interest (right) protected by law
Name the 4 categories legal rights are divided into
- Real rights: ownership
- Personal Rights: claim performance (created by contract)
- Intellectual Property Rights: right of person to creation of his/her mind/intellect (copyright, trademarks)
- Personality Rights: right of a person to aspects of his/her personality (dignity, honour)
Name the 3 sources of Law:
- Customs
- Legislation
- Court Decisions
What four requirements does a custom have to meet before it can be recognised as an enforceable legal rule?
- Reasonable
- Existed for a reasonably long time
- Be generally recognised in the community
- It must be certain and clear
Name the 3 bodies with legislative authority in South Africa
- Parliament
- Provincial legislation
- Subordinate Legislative Bodies
Briefly explain what the Parliament in SA Law entails
-Consists out of National Assembly and National Council of Provinces.
-No court of law could declare any Act invalid: Constitution changed that dramatically.
-Constitution provides for so-called fundamental/human rights + prohibits unfair discrimination.
-Constitutional Court may declare legislation
-Parliament is empowered to legislate on issues that are delegated to provincial legislators.
Briefly explain what the Provincial Legislation in SA Law entails
-Each one of the nine provinces has power to legislation on: local government, health matters, tourism.
-Provincial legislation that falls outside scope conferred on provincial legislators (ultra vires): can be declared invalid by High Court.
Briefly explain what the Subordinate Legislative Bodies in SA Law entails
Delegated in terms of an Act of Parliament to certain person/body of persons
What five requirements should subordinate legislation meet to be valid and binding in community?
a) fall within authority given to specific subordinate legislator (otherwise ultra vires)
b) reasonable
c) unbiased
d) clear and certain
e) published
Describe the Civil Court (High Court)
- 2 parties litigate to resolve dispute
- Burden of proof: balance of probabilities
- Parties- Plaintiff v Defendant
- Applicant v Respondent - Decision: Grant/dismiss claim, application, interdict
Describe the Criminal Court (High Court)
- State prosecutes a legal subject for crime
- Burden of Proof: State must prove guilt beyond reasonable doubt
- Parties: state v accused
- Decision: guilty+ sentenced/ not guilty
Name and briefly explain the three Higher Courts
- Constitutional Court: highest authority on all matters+ makes final decision of whether matter is within its jurisdiction.
- Supreme Court of Appeal: highest court for all other matters; may only decide appeals, issues connected with appeals, other matters that may be referred to in circumstances defined by Act of Parliament.
- High Court: 14 seats
Name and explain the two Lower Courts
- Magistrates Courts:
- District Courts <R200 000/ <R120 000/3years
- Regional Court >R400 000/ <R600 000/15years - Small Claims Court:
- R20 000
- No legal rep allowed
- Only natural persons
In what court are Appeals heard?
From lower court - relevant provincial division of the High Court (full bench of same HC) - 3 judges in same HC - party may appeal to SC of Appeal; The Constitutional Court is final court of appeal in all matters.
Who is effected by doctrine of precedent (stare decisis) applied in SA?
- judges of the same court,
- courts of lower order who are subordinate to that court
have to follow this precedent
When will a decision create a precedent?
If it was laid down as ratio decidendi (reason specific)
What is it called when the court merely gives its opinion or makes a passing remark?
Obiter dictum- it does not create a precedent
What is the effect of the doctrine of precedent? What courts follow what decisions?
- Constitutional Court
- Supreme Court of Appeal: own decisions and those handed down by CC
- High Court - Full bench decision
- Single judge - Magistrates’ Court- not bound by own decisions
Describe the Barkhuizen v Napier 2007 5 SA 323 (CC)
Barkhuizen: plaintiff/appellant
Napier: defendant/respondent
2007: reported in 2007 law reports
Volume 5
SA: reported in SA Law reports
Page 323
Constitutional Court
