Module 1
←
The South African Legal System
←
o Law is a social science.
o South African Law is not codified: recorded in one comprehensive piece of legislation.
← Origin:
o Indigenous legal systems applied at the southernmost tip of Africa before 1652.
o Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch law as a legalsystem
to the Cape.
← Sources of South African law
o Some are authoritative: courts are bound by authoritative sources
o 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.
←
← The order in which SA law is consulted:
←
←
← Customary law
o Does not consist of written rules but develops from the habits of the community and is carried down
from generation to generation
o A customary rule will be recognized as a legal rule when:
o It must be reasonable
o It must have existed for a long time
, o It must be generally recognized and observed by the community
o It must be certain and clear
←
← The Courts in the Republic
Persuasive
Power:
High courts in other
areas of jurisdiction
← SA Courts is devided in: Superior Courts – 1. Constitutional Court
2. Supreme Court of Appeal
3. High Court – Full Bench
- Two Judge Bench
- Single Judge
Lower Courts - 4. Magistrate Court
5. Small Claims Court
←
← The Doctrine of Stare Decisis
o The judgments of the superior courts are one of the most important sources of the law.
o The function of a judge is to state, interpret and apply the existing law but not to make a new law.
o Nevertheless, the effect of a judicial decision which gives new interpretation to a statutory provision
or which abstracts, extends or adapts a common law principle, is in many cases to create law.
o Law so created is termed ‘judge-made law’. Because a later court does not depart lightly from the
decisions of an earlier court, this judge-made law becomes established legal rule.
o The court or judge does not purposefully set out to create a law.
,Blurred content of page 3
, Life
Various freedom of persons
Religion
Movement of trade
Second Generation: Right to housing
Health Care
Food & Water
Social Security
Education
The High Court can hear any matter within their area or Jurisdiction.
The only court that can hear : 1. Divorce proceedings
2. State of persons mental capacity
3. Sequestration & Liquidation
4. Validity of a will
Officers of Supreme Court
o A Registrar is appointed in each of the Superior Courts
o The Registrar with his assistance is responsible for the smooth running of the court.
o Duties: 1. Issue of process (Summons & Warrants)
2. Enrolments of Cases
3. Issuing of orders of Court
4. Maintenance of Court
Duties of Sheriff: 1. To serve warrants & Summons
←
The South African Legal System
←
o Law is a social science.
o South African Law is not codified: recorded in one comprehensive piece of legislation.
← Origin:
o Indigenous legal systems applied at the southernmost tip of Africa before 1652.
o Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch law as a legalsystem
to the Cape.
← Sources of South African law
o Some are authoritative: courts are bound by authoritative sources
o 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.
←
← The order in which SA law is consulted:
←
←
← Customary law
o Does not consist of written rules but develops from the habits of the community and is carried down
from generation to generation
o A customary rule will be recognized as a legal rule when:
o It must be reasonable
o It must have existed for a long time
, o It must be generally recognized and observed by the community
o It must be certain and clear
←
← The Courts in the Republic
Persuasive
Power:
High courts in other
areas of jurisdiction
← SA Courts is devided in: Superior Courts – 1. Constitutional Court
2. Supreme Court of Appeal
3. High Court – Full Bench
- Two Judge Bench
- Single Judge
Lower Courts - 4. Magistrate Court
5. Small Claims Court
←
← The Doctrine of Stare Decisis
o The judgments of the superior courts are one of the most important sources of the law.
o The function of a judge is to state, interpret and apply the existing law but not to make a new law.
o Nevertheless, the effect of a judicial decision which gives new interpretation to a statutory provision
or which abstracts, extends or adapts a common law principle, is in many cases to create law.
o Law so created is termed ‘judge-made law’. Because a later court does not depart lightly from the
decisions of an earlier court, this judge-made law becomes established legal rule.
o The court or judge does not purposefully set out to create a law.
,Blurred content of page 3
, Life
Various freedom of persons
Religion
Movement of trade
Second Generation: Right to housing
Health Care
Food & Water
Social Security
Education
The High Court can hear any matter within their area or Jurisdiction.
The only court that can hear : 1. Divorce proceedings
2. State of persons mental capacity
3. Sequestration & Liquidation
4. Validity of a will
Officers of Supreme Court
o A Registrar is appointed in each of the Superior Courts
o The Registrar with his assistance is responsible for the smooth running of the court.
o Duties: 1. Issue of process (Summons & Warrants)
2. Enrolments of Cases
3. Issuing of orders of Court
4. Maintenance of Court
Duties of Sheriff: 1. To serve warrants & Summons
