COMMERCIAL LAW - CLA1503
NOTES.
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COMMERCIAL LAW - CLA1503
CHAPTER 1 THE SOUTH AFRICAN LEGAL SYSTEM
HISTORY OF THE LAW
• SA law is not codified (recorded in one comprehensive piece of legislation)
• Drawn from various other sources
• Principle sources are statutes and decided cases
• Roman law and Roman-Dutch law are also recognized sources of the law
• Roman-Dutch law : brought to SA by Van Riebeeck
• English law exerted influence on Roman-Dutch law
Roman Law
• 753bc – 568ad
• Most of population living on farms
• Rome developed into vast empire and law adapted to highly sophisticated legal system
• From 291ad attempts made to codify Roman law and led to codification known as
Corpus Iuris Civilis in the sixth century. This work is the primary authoritative source on
which SA courts draw when reverting to Roman law to solve a legal problem.
Roman-Dutch Law
• Roman empire fell in 476ad but former Roman citizens still treated according to Roman
law
• Church exerted great influence during this period
English law
• 1910 was a milestone for development of SA law – establishment of union parliament,
establishment of appellate division
• Privy council abolished in 1950
SOURCES OF THE LAW
• Some sources are authoritative and others are persuasive
• Courts are bound by authoritative
• Persuasive authority may lead a court to apply or interpret a legal rule in a particular way
Statute law or legislation
General
• Dutch legislation 1652 – 1806 applies only if it has been ratified and accepted by SA law.
Dutch law after 1806 doesn’t apply here
• Lease of immovable property (1658) still applies here
• English statutes never applied here unless especially promulgated by British parliament
to apply to SA
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The constitution
• Most important south of law in SA – Constitution of the Republic of South Africa 1996
• If parliament were to pass a law that offended against the provisions of constitution it
would be invalid
• New and existing law inconsistent with constitution can be declared invalid by superior
court
• Bill of rights is chapter 2 of constitution
• Bill of rights applies to all law and binds all 3 branches of government and all organs of
state. State is required to respect, protect, promote and fulfil these rights
• First generation rights: equality, human dignity, life, freedoms of person (religion,
expression, movement, trade)
• Second generation rights: housing, healthcare, food, water, social security, education
• Rights can be limited in special circumstances
Customary law
• Does not consist of written laws, but develops from habits of community and carried
down from generation to generation
• Also called trade usages
• Requirements to be met before customary rule recognized as legal rule:
o Must be reasonable
o Must have existed for a long time
o Must be recognized and observed by community
o Contents of rule must be certain and clear
• Also plays an important role in business and commercial world. It is alleged that if a trade
usage exists within certain trade or business then parties are contracted and bound to it
Judgments of the courts
• Judgements of Dutch courts before 1652, judgments of Cape Council of Justice before
1827, judgments of the courts of four provinces before 1910, and judgments of SA courts
after 1910 form part of important authoritative source of law known as case law
• Superior courts are Constitutional court, Supreme court of Appeal and High court
• Lower courts are courts lower in status than high court and are required to keep record
of their proceedings. They can only adjudicate on specific matters and specific persons.
Examples are magistrates court, small claims court, courts of black chiefs and headman
The old authorities
• Known as common law
• Corpus iuris civilis – Ancient Roman law applying in SA courts
Foreign law
• If nothing can be found in one or more of the above sources judges will turn to the law of
other modern countries for guidance. This has a persuasive authority only.
, lOMoARcPSD|13368594
Page |3
• Foreign law as a source of law has been recognised in the Constitution. In interpreting
the Bill of Rights a court of law must consider international law and may consider foreign
law.
Textbooks and law journals
• May be used as persuasive influence
THE COURTS IN THE REPUBLIC
The Constitutional court
• Highest court in all matters
• Consists of the Chief Justice of SA, the Deputy Chief Justice and nine other judges
• In JHB
• Any matter must be heard by at least 8 judges
The Supreme court of Appeal
• Has jurisdiction to hear appeals on matters within the jurisdiction of this court
• President of the Supreme court of Appeal, the Deputy President of the Supreme Court of
Appeal and as many judges as necessary in accordance with prescribed criteria
• In Bloemfontein
The High Court
• There is only one High Court in SA with the following divisions:
o Eastern Cape Division, with its seat in Grahamstown
o Eastern Cape Local Division, with its seat in Bhisho
o Eastern Cape Local Division, with its seat in Mthatha
o Eastern Cape Local Division, with its seat in PE
o Free State Division, with its seat in Bloemfontein
o Gauteng Division, with its seat in Pretoria
o Gauteng Local Division, with its seat in JHB
o Gauteng Division, with its seat in Pretoria – functioning as Limpopo division with
its seat in Polokwane
o Gauteng Division, with its seat in Pretoria – functioning as Limpopo local division
with its seat in Thohoyandou
o Gauteng Division, with its seat in Pretoria – functioning as Mpumalanga divison
with its seat in Nelspruit
o KZN Division, with its seat in PMB
o KZN Local Division, with its seat in Durban
o Northern Cape Division, with its seat in Kimberley
o North West Division, with its seat in Mafikeng
o Western Cape Division, with its seat in Cape Town
• Each division consists of Judge President and one or more Deputy Judge Presidents.
Each division consists of as many judges as necessary in accordance with prescribed
criteria and approved by president
NOTES.
, lOMoARcPSD|13368594
Page |1
COMMERCIAL LAW - CLA1503
CHAPTER 1 THE SOUTH AFRICAN LEGAL SYSTEM
HISTORY OF THE LAW
• SA law is not codified (recorded in one comprehensive piece of legislation)
• Drawn from various other sources
• Principle sources are statutes and decided cases
• Roman law and Roman-Dutch law are also recognized sources of the law
• Roman-Dutch law : brought to SA by Van Riebeeck
• English law exerted influence on Roman-Dutch law
Roman Law
• 753bc – 568ad
• Most of population living on farms
• Rome developed into vast empire and law adapted to highly sophisticated legal system
• From 291ad attempts made to codify Roman law and led to codification known as
Corpus Iuris Civilis in the sixth century. This work is the primary authoritative source on
which SA courts draw when reverting to Roman law to solve a legal problem.
Roman-Dutch Law
• Roman empire fell in 476ad but former Roman citizens still treated according to Roman
law
• Church exerted great influence during this period
English law
• 1910 was a milestone for development of SA law – establishment of union parliament,
establishment of appellate division
• Privy council abolished in 1950
SOURCES OF THE LAW
• Some sources are authoritative and others are persuasive
• Courts are bound by authoritative
• Persuasive authority may lead a court to apply or interpret a legal rule in a particular way
Statute law or legislation
General
• Dutch legislation 1652 – 1806 applies only if it has been ratified and accepted by SA law.
Dutch law after 1806 doesn’t apply here
• Lease of immovable property (1658) still applies here
• English statutes never applied here unless especially promulgated by British parliament
to apply to SA
, lOMoARcPSD|13368594
Page |2
The constitution
• Most important south of law in SA – Constitution of the Republic of South Africa 1996
• If parliament were to pass a law that offended against the provisions of constitution it
would be invalid
• New and existing law inconsistent with constitution can be declared invalid by superior
court
• Bill of rights is chapter 2 of constitution
• Bill of rights applies to all law and binds all 3 branches of government and all organs of
state. State is required to respect, protect, promote and fulfil these rights
• First generation rights: equality, human dignity, life, freedoms of person (religion,
expression, movement, trade)
• Second generation rights: housing, healthcare, food, water, social security, education
• Rights can be limited in special circumstances
Customary law
• Does not consist of written laws, but develops from habits of community and carried
down from generation to generation
• Also called trade usages
• Requirements to be met before customary rule recognized as legal rule:
o Must be reasonable
o Must have existed for a long time
o Must be recognized and observed by community
o Contents of rule must be certain and clear
• Also plays an important role in business and commercial world. It is alleged that if a trade
usage exists within certain trade or business then parties are contracted and bound to it
Judgments of the courts
• Judgements of Dutch courts before 1652, judgments of Cape Council of Justice before
1827, judgments of the courts of four provinces before 1910, and judgments of SA courts
after 1910 form part of important authoritative source of law known as case law
• Superior courts are Constitutional court, Supreme court of Appeal and High court
• Lower courts are courts lower in status than high court and are required to keep record
of their proceedings. They can only adjudicate on specific matters and specific persons.
Examples are magistrates court, small claims court, courts of black chiefs and headman
The old authorities
• Known as common law
• Corpus iuris civilis – Ancient Roman law applying in SA courts
Foreign law
• If nothing can be found in one or more of the above sources judges will turn to the law of
other modern countries for guidance. This has a persuasive authority only.
, lOMoARcPSD|13368594
Page |3
• Foreign law as a source of law has been recognised in the Constitution. In interpreting
the Bill of Rights a court of law must consider international law and may consider foreign
law.
Textbooks and law journals
• May be used as persuasive influence
THE COURTS IN THE REPUBLIC
The Constitutional court
• Highest court in all matters
• Consists of the Chief Justice of SA, the Deputy Chief Justice and nine other judges
• In JHB
• Any matter must be heard by at least 8 judges
The Supreme court of Appeal
• Has jurisdiction to hear appeals on matters within the jurisdiction of this court
• President of the Supreme court of Appeal, the Deputy President of the Supreme Court of
Appeal and as many judges as necessary in accordance with prescribed criteria
• In Bloemfontein
The High Court
• There is only one High Court in SA with the following divisions:
o Eastern Cape Division, with its seat in Grahamstown
o Eastern Cape Local Division, with its seat in Bhisho
o Eastern Cape Local Division, with its seat in Mthatha
o Eastern Cape Local Division, with its seat in PE
o Free State Division, with its seat in Bloemfontein
o Gauteng Division, with its seat in Pretoria
o Gauteng Local Division, with its seat in JHB
o Gauteng Division, with its seat in Pretoria – functioning as Limpopo division with
its seat in Polokwane
o Gauteng Division, with its seat in Pretoria – functioning as Limpopo local division
with its seat in Thohoyandou
o Gauteng Division, with its seat in Pretoria – functioning as Mpumalanga divison
with its seat in Nelspruit
o KZN Division, with its seat in PMB
o KZN Local Division, with its seat in Durban
o Northern Cape Division, with its seat in Kimberley
o North West Division, with its seat in Mafikeng
o Western Cape Division, with its seat in Cape Town
• Each division consists of Judge President and one or more Deputy Judge Presidents.
Each division consists of as many judges as necessary in accordance with prescribed
criteria and approved by president
