CLA1501 - Notes - Summary Commercial Law
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1. The South African Legal System
• Law is a social science.
• South African Law is not codified: recorded in one comprehensive piece of legislation.
• 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.
1.1 A SHORT HISTORY OF THE LAW
⦁ Unlike most European continental legal systems, SA law is not codified:
⚪ It is drawn from various authoritative sources
⚪ Such as statutes (legislation) and decided cases
⚪ Occasionally also Roman and Roman-Dutch law.
Roman Law
⦁ 735BC to AD658
⦁ The Law of the Twelve Tables of 449BC were the cornerstone of the future development of
Roman Law
⦁ Attempts to codify the law led to the Corpius Iuris Civilis (body or civil law)which is still the
primary authoritative source or Roman Law.
Roman-Dutch Law
⦁ Roman Law was revised in the Netherlands during the 15th and 16th centuries and became
mixed with the existing Dutch customary law.
⦁ Some great Roman-Dutch Jurists:
⚪ Hugo de Groot “Father of Roman-Dutch Law”
⚪ Johannes Voet
⚪ Dionysius Godefridus van der Keesel
⚪ Johannes van der Linden
English Law
⦁ After 1814, English Law began to seep into the existing Roman-Dutch system:
⚪ A jury was introduced
⚪ New legislation e.g. criminal often drew on English law
⚪ A number of statutes in existence today are squarely based on English legislation
e.g. Bills of Exchange Act.
⚪
⚪ 1.2 SOURCES OF LAW IN SOUTH AFRICA
⦁ 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.
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.
⚪
Statute law or legislation
⦁ The most important source of law
⦁ Can be explained as the making of law by a competent authority
⦁ To be found in: Statues, Proclamations, Regulations, By Laws.
⦁ The most important piece of legislation:
⚪ The Constitution of the Republic of South Africa, Act 108 or 1996.
⚪
⚪ The order in which SA law is consulted:
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⚪
⚪
⚪ Customary law
⦁ Does not consist of written rules but develops from the habits of the communityand 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 recognizedand observed by the community
⚪ It must be certain and clear
Judgments of the Courts
⦁ An authoritative source of law known as case law
⦁ Traditionally divided into superior and lower courts
⦁ More important judgments are reported
The old authorities
⦁ This body of law comprises the common law, i.e. the works of the old writers referred to
above.
Foreign Law
⦁ A judge will to the law of other modern countries if nothing can be found in any of the
above sources
⦁ No authoritative but a persuasive only
⦁ Recognized as a source of law in the Constitution
Textbooks and law journals
⦁ Works written by lawyers, e.g. legal academics, advocates and attorneys
⦁ No inherent authority of their own but may be persuasive
⦁ 1.3 THE COURTS IN THE REPUBLIC
⦁ The Constitutional Court
⦁ Jurisdiction as the court of final instance over all matters relating to the interpretation,
protection and enforcement of the provisions of the constitution
⦁ Seat of the court is in JHB, 11 judges with chief justice.
The Supreme Court of Appeal
⦁ A Court of Appeal for the Higher Courts
⦁ Unlimited appeal jurisdiction:
⚪ The exception being matters within the exclusive jurisdiction of the Constitutional
Court.
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⦁ The seat of the court is in Bloemfontein
The High Courts
⦁ Consists of a number of divisions with approx. one division per province
⦁ Have original jurisdiction within their area of jurisdiction
⦁ Only courts which can hear:
⚪ Divorce proceedings
⚪ Status of a person in respect of mental capacity
⚪ Applications for sequestration
⚪ Liquidation of a company
⚪ Validity or interpretation of a will.
Officers of the superior courts
⦁ Registrars are appointed in each superior court
⚪ Responsible for the smooth functioning, e.g. issue of process.
⦁ Sherrifs are appointed for each high court
⚪ Duty to serve, process and execute judgments and orders of the court
⦁ Masters are appointed in some high courts:
⚪ Administrative and quasi-judicial functions
⚪ Deceased and insolvent states
⚪ Liquidation and judicial management of companies
⦁ Legal practitioners are the advocates and attorneys
Magistrates Courts
⦁ Limited jurisdiction by comparison with the high courts
Persuasive Power:
High courts in other areas
of jurisdiction
1.4 THE DOCTRINE OF STARE DECISIS
The judgments of the superior courts are one of the most important sources of the law.
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, lOMoARcPSD|10937002
1. The South African Legal System
• Law is a social science.
• South African Law is not codified: recorded in one comprehensive piece of legislation.
• 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.
1.1 A SHORT HISTORY OF THE LAW
⦁ Unlike most European continental legal systems, SA law is not codified:
⚪ It is drawn from various authoritative sources
⚪ Such as statutes (legislation) and decided cases
⚪ Occasionally also Roman and Roman-Dutch law.
Roman Law
⦁ 735BC to AD658
⦁ The Law of the Twelve Tables of 449BC were the cornerstone of the future development of
Roman Law
⦁ Attempts to codify the law led to the Corpius Iuris Civilis (body or civil law)which is still the
primary authoritative source or Roman Law.
Roman-Dutch Law
⦁ Roman Law was revised in the Netherlands during the 15th and 16th centuries and became
mixed with the existing Dutch customary law.
⦁ Some great Roman-Dutch Jurists:
⚪ Hugo de Groot “Father of Roman-Dutch Law”
⚪ Johannes Voet
⚪ Dionysius Godefridus van der Keesel
⚪ Johannes van der Linden
English Law
⦁ After 1814, English Law began to seep into the existing Roman-Dutch system:
⚪ A jury was introduced
⚪ New legislation e.g. criminal often drew on English law
⚪ A number of statutes in existence today are squarely based on English legislation
e.g. Bills of Exchange Act.
⚪
⚪ 1.2 SOURCES OF LAW IN SOUTH AFRICA
⦁ 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.
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.
⚪
Statute law or legislation
⦁ The most important source of law
⦁ Can be explained as the making of law by a competent authority
⦁ To be found in: Statues, Proclamations, Regulations, By Laws.
⦁ The most important piece of legislation:
⚪ The Constitution of the Republic of South Africa, Act 108 or 1996.
⚪
⚪ The order in which SA law is consulted:
, lOMoARcPSD|10937002
⚪
⚪
⚪ Customary law
⦁ Does not consist of written rules but develops from the habits of the communityand 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 recognizedand observed by the community
⚪ It must be certain and clear
Judgments of the Courts
⦁ An authoritative source of law known as case law
⦁ Traditionally divided into superior and lower courts
⦁ More important judgments are reported
The old authorities
⦁ This body of law comprises the common law, i.e. the works of the old writers referred to
above.
Foreign Law
⦁ A judge will to the law of other modern countries if nothing can be found in any of the
above sources
⦁ No authoritative but a persuasive only
⦁ Recognized as a source of law in the Constitution
Textbooks and law journals
⦁ Works written by lawyers, e.g. legal academics, advocates and attorneys
⦁ No inherent authority of their own but may be persuasive
⦁ 1.3 THE COURTS IN THE REPUBLIC
⦁ The Constitutional Court
⦁ Jurisdiction as the court of final instance over all matters relating to the interpretation,
protection and enforcement of the provisions of the constitution
⦁ Seat of the court is in JHB, 11 judges with chief justice.
The Supreme Court of Appeal
⦁ A Court of Appeal for the Higher Courts
⦁ Unlimited appeal jurisdiction:
⚪ The exception being matters within the exclusive jurisdiction of the Constitutional
Court.
2 | Page
, lOMoARcPSD|10937002
⦁ The seat of the court is in Bloemfontein
The High Courts
⦁ Consists of a number of divisions with approx. one division per province
⦁ Have original jurisdiction within their area of jurisdiction
⦁ Only courts which can hear:
⚪ Divorce proceedings
⚪ Status of a person in respect of mental capacity
⚪ Applications for sequestration
⚪ Liquidation of a company
⚪ Validity or interpretation of a will.
Officers of the superior courts
⦁ Registrars are appointed in each superior court
⚪ Responsible for the smooth functioning, e.g. issue of process.
⦁ Sherrifs are appointed for each high court
⚪ Duty to serve, process and execute judgments and orders of the court
⦁ Masters are appointed in some high courts:
⚪ Administrative and quasi-judicial functions
⚪ Deceased and insolvent states
⚪ Liquidation and judicial management of companies
⦁ Legal practitioners are the advocates and attorneys
Magistrates Courts
⦁ Limited jurisdiction by comparison with the high courts
Persuasive Power:
High courts in other areas
of jurisdiction
1.4 THE DOCTRINE OF STARE DECISIS
The judgments of the superior courts are one of the most important sources of the law.
3 | Page
