2023
CLA1501 COMMERCIAL LAW 1A
STUDY PACK 2023
BMSA LAW TUTORS
PRECIOUS MAGOCHA
,Study UNIT 1
THE SOUTH AFRICAN LEGAL SYSTEM
When you have completed this study unit, you should be able to:
❖ understand the different origins and sources of South African law
❖ understand the South African court structure
❖ know which officers work in the different courts
❖ explain how the doctrine of stare decisis works
❖ describe how statutes are interpreted
❖ understand the most important aspects of typical judgments.
THE SOUTH AFRICAN LEGAL SYSTEM
❖ A short historical overview is important in order to establish where South
African law comes from.
❖ Law is a social science. South African Law is not codified: recorded in one
comprehensive piece of legislation.
❖ Current South African law is a unique mixture of legal systems, firmly rooted in
Roman law, Roman-Dutch law and English law.
Origin:
❖ Indigenous legal systems applied at the southernmost tip of Africa before 1652.
❖ Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch
law as a legal system to the Cape.
Sources of South African law
❖ South african law is a product of different sources ie it has its roots in Roman
law
❖ Roman law was later fused wit the dutch law hence the term Roman –Dutch law
❖ English law hs had an influence on South african law
❖ It is important to distinguish between the origins of our law (where our law
comes from) and the sources of our law (where the law can be found).
❖ Some are authoritative: courts are bound by authoritative sources
❖ Others have merely persuasive authority: serves to convince a court to apply or
interpret a rule in a particular way.
Roman law
❖ Law was primitive.rules of conduct werwe in the nature of religious customs
and morals
❖ Then there was a period of classical law
❖ Efforts to codify roman law culminated in a codification known as the CORPUS
LURIS CIVILIS
1|Page
,Corpus Iuris Civilis: codification of Roman law that is a primary authoritative source
on which South African courts draw when reverting to Roman Law to solve a legal
problem.
The order in which SA law is consulted:
Sources of
the Law
Authoritative Persuasive
Textbooks
Constitution Foreign Law and Law
Journals
Other Customary Old
Judgements
Legislation Law Authorities
Statute law or legislation
❖ Legislation is the making of law by a competetent authority
❖ It is the most important source of law
❖ The law is found in statutes enacted by parliament and provincial legislatures
and proclamations,regulations and by laws
The constitution(1996)
❖ This is the most important source of law in South africa
❖ Previously there was a supreme parliament
❖ This meant that any law passed by parliament was valid irrespective of its
contents
❖ Now there is a system of of constitutional supremacy where the Constitution is
the supreme law of the republic
❖ This means that if parliament passes a law that offends the provisions of the
constitution it will be invalid.
2|Page
, Customary law
❖ Does not consist of written rules but develops from the habits of the community
and is carried down from generation to generation
❖ A customary rule will be recognized as a legal rule when:
▪ It must be reasonable
▪ It must have existed for a long time
▪ It must be generally recognized and observed by the community
▪ It must be certain and clear
❖ Customary law also called trade usages plays a role in business and commercial
world.
❖ It exists within a certain trade and parties to the contact are bound to it
The Courts in the Republic
❖ South African courts are divided into superior and lower courts
❖ Superior courts are the constitutional court, the supreme court of appeal and
any division of the high courts
❖ The lower courts are those courts which are lower in status than the high
courts and which are required to keep a record of its proceedings eg magistrate
‘s court,the small claims court and the different courts of black chiefs and
headmen
❖ Jurisdiction of lower courts is limited ie they can adjudicate only on specific
matters and only in respect of specific persons
❖ Jurisdiction means the capacity to hear a case and pass a valid judgment.
❖ The jurisdiction of a High Court is unlimited in the sense that such a court can
hear any type of criminal or civil case
❖ It is, however, limited in the sense that a High Court exercises its jurisdiction
within a specified area.
❖ A High Court can hear constitutional matters, except those matters which in
terms of the Constitution may be heard only by the Constitutional Court.
❖ the High Courts are no longer the only courts with jurisdiction to hear divorce
matters.
❖ magistrates exercise their jurisdiction within certain magisterial districts.
❖ Regional Courts have jurisdiction over the geographical area of several
magisterial districts.
❖ In terms of the Jurisdiction of Regional Courts Amendment Act 31 of 2008
certain of these regional courts now have jurisdiction to hear divorce matters
3|Page
CLA1501 COMMERCIAL LAW 1A
STUDY PACK 2023
BMSA LAW TUTORS
PRECIOUS MAGOCHA
,Study UNIT 1
THE SOUTH AFRICAN LEGAL SYSTEM
When you have completed this study unit, you should be able to:
❖ understand the different origins and sources of South African law
❖ understand the South African court structure
❖ know which officers work in the different courts
❖ explain how the doctrine of stare decisis works
❖ describe how statutes are interpreted
❖ understand the most important aspects of typical judgments.
THE SOUTH AFRICAN LEGAL SYSTEM
❖ A short historical overview is important in order to establish where South
African law comes from.
❖ Law is a social science. South African Law is not codified: recorded in one
comprehensive piece of legislation.
❖ Current South African law is a unique mixture of legal systems, firmly rooted in
Roman law, Roman-Dutch law and English law.
Origin:
❖ Indigenous legal systems applied at the southernmost tip of Africa before 1652.
❖ Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch
law as a legal system to the Cape.
Sources of South African law
❖ South african law is a product of different sources ie it has its roots in Roman
law
❖ Roman law was later fused wit the dutch law hence the term Roman –Dutch law
❖ English law hs had an influence on South african law
❖ It is important to distinguish between the origins of our law (where our law
comes from) and the sources of our law (where the law can be found).
❖ Some are authoritative: courts are bound by authoritative sources
❖ Others have merely persuasive authority: serves to convince a court to apply or
interpret a rule in a particular way.
Roman law
❖ Law was primitive.rules of conduct werwe in the nature of religious customs
and morals
❖ Then there was a period of classical law
❖ Efforts to codify roman law culminated in a codification known as the CORPUS
LURIS CIVILIS
1|Page
,Corpus Iuris Civilis: codification of Roman law that is a primary authoritative source
on which South African courts draw when reverting to Roman Law to solve a legal
problem.
The order in which SA law is consulted:
Sources of
the Law
Authoritative Persuasive
Textbooks
Constitution Foreign Law and Law
Journals
Other Customary Old
Judgements
Legislation Law Authorities
Statute law or legislation
❖ Legislation is the making of law by a competetent authority
❖ It is the most important source of law
❖ The law is found in statutes enacted by parliament and provincial legislatures
and proclamations,regulations and by laws
The constitution(1996)
❖ This is the most important source of law in South africa
❖ Previously there was a supreme parliament
❖ This meant that any law passed by parliament was valid irrespective of its
contents
❖ Now there is a system of of constitutional supremacy where the Constitution is
the supreme law of the republic
❖ This means that if parliament passes a law that offends the provisions of the
constitution it will be invalid.
2|Page
, Customary law
❖ Does not consist of written rules but develops from the habits of the community
and is carried down from generation to generation
❖ A customary rule will be recognized as a legal rule when:
▪ It must be reasonable
▪ It must have existed for a long time
▪ It must be generally recognized and observed by the community
▪ It must be certain and clear
❖ Customary law also called trade usages plays a role in business and commercial
world.
❖ It exists within a certain trade and parties to the contact are bound to it
The Courts in the Republic
❖ South African courts are divided into superior and lower courts
❖ Superior courts are the constitutional court, the supreme court of appeal and
any division of the high courts
❖ The lower courts are those courts which are lower in status than the high
courts and which are required to keep a record of its proceedings eg magistrate
‘s court,the small claims court and the different courts of black chiefs and
headmen
❖ Jurisdiction of lower courts is limited ie they can adjudicate only on specific
matters and only in respect of specific persons
❖ Jurisdiction means the capacity to hear a case and pass a valid judgment.
❖ The jurisdiction of a High Court is unlimited in the sense that such a court can
hear any type of criminal or civil case
❖ It is, however, limited in the sense that a High Court exercises its jurisdiction
within a specified area.
❖ A High Court can hear constitutional matters, except those matters which in
terms of the Constitution may be heard only by the Constitutional Court.
❖ the High Courts are no longer the only courts with jurisdiction to hear divorce
matters.
❖ magistrates exercise their jurisdiction within certain magisterial districts.
❖ Regional Courts have jurisdiction over the geographical area of several
magisterial districts.
❖ In terms of the Jurisdiction of Regional Courts Amendment Act 31 of 2008
certain of these regional courts now have jurisdiction to hear divorce matters
3|Page
