Appendix A: ASSIGNMENT COVER SHEET

Programme Bachelor of commerce in law

Module Name Fundamentals of the south African legal system
Surname Naidoo
First Name/S Calista Danisa
Student Number 12134061
Date Submitted 09 May 2021
Postal Address 51 coriander close crossmoor Chatsworth
4092

E-MAIL naidoo.calista@gmail.com
myregent email address …………………………................................................@myregent.ac.za

E-Mail
(alternate email
address)
Contact Numbers Cell :0768790694
Home :0663058712
Work :
Alternate contact :
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 CONTENTS

1. Question 1………………………………………………………………………Page 2,3

2. Question 2 ……………………………………………………………………..Page 4,5,6,7
3.Question 3 …………………………………………………………………….. Page 8,9
4.Question 4………………………………………………………………………Page 10
5.Refrences ……………………………………………………………………....Page 11

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 TOTAL-88

Calista Danisa Naidoo ID number 0304120206087 herby state that the following assignment is my
own work.

ASSIGNMENT 1
Fundamentals of the south African legal system
5
Question one
1 Discuss how and why the constitution of the republic of South Africa is the Supreme law of the land
The constitution was cited as a particular act of parliament (Act 108 of 1996).The preamble tells us that
The constitution is the Supreme law of the country as reiterated in sections 1 and 2 in the constitution.
The
Constitution is manifested in it serving as the yardstick against which all other laws, as well as conduct
arising
From such laws, are evaluated. The constitution sets the universal standard for all other sources of law
in south Africa. The constitution is a law of constitutional values, fundamental rights, organisation and
operation and powers of government. It provides for the constitution elements of the state and the
manner in which the state should function. It provides the three spheres of the government namely,
national provincial, local and different forms of state power-legislative, judicial and executive. It
provides for a range of state institutions supporting a constitutional democracy. It allocates allocation of
powers among the national, provincial and local spheres of government in the republic of South Africa

1.2 Explain the concept ‘judicial precedement

Judicial precedement is made by the judicial authority of South Africa, also referred to as the courts or
12
the judiciary. Whereas the legislative authority is responsible for making legal rules in the forms of
statues. The judiciary is responsible for resolving legal disputes arising from statues and other sources
of law. The rule of judicial precedement, is also known as stare decisis rule, which literally means to
stand by previous decisions. When a court hears a matter, it must consider previous judgments in
similar cases that other courts have already decided in the past. Judicial precedement refers to new
rules of law that emerge from the judgments of the courts. This die not happen in every single case of
the many hundreds of cases that the court hear each year first, the lower courts of record and their
decisions can therefore never constitute judicial precedement. The precedement system depends on
the fact that judgements are reported to have them published for this purpose. The south African law
reports and all south African law reports are used most frequently. Each of these use different

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conventions. A citation is primarily an indication to readers where in the particular law reports they will
find the judgment.

Even in the higher courts, such as the different High Courts, judges are also required to adjudicate
on matters where there is no legal dispute about the meaning of the law but only a dispute on the
facts. In most cases, judges simply apply the law without having to develop a new legal rule. In other
words, the application of the law to the facts is uncontroversial. These cases are not reported.
This, however, does not mean that the case, simply by virtue of it being unreported, cannot set a
judicial precedent. It is indeed possible that certain cases, even though they are unreported, could
be brought to a court’s attention by the parties and relied on as a judicial precedent.

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Question two 6
2.1 illustrate the classification of the south African legal system

Inlcudes international law and law of regions

South African law

National law

Substantive law Adjectival Law

Criminal law
Civil procedure
Law of evidence
criminal law falls under
Legal interpretation
public law

Public law
• Constitutional law and human rights law Private law
• Criminal law Law of patrimony
• Administrative Law of persons
Family law
Law of personality
Indigenous law including
adjectival processes

Hybrid sub-disciplines
Environmental law Property law
Commercial law Law of succession
Educational law Law of obligation
Information technology Intellectual property law

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2.2 Tabulate the characteristics of the following areas of law. Family law, commercial law. And law of
delicit
Area of law Characteristics
Family law • South African family law covers the legal
rules applicable to family relationships
such as the relationships between
parents, children and spouses
• Family law regulates the origin, content
and dissolution of the legal relationships
• There are sub branches of family law,
namely: the law of engagement,
matrimonial law (including the law of civil
unions), matrimonial property, the law of
divorce and the law of parenting
• Family law covers legal nature and types
of marriages in south Africa including civil
customary marriages

Also includs the domestic violence Act

Commercial law • Referred to as a business law or

mercantile law in as far as it deals with a
hybrid of branches of the law important
for commerce or trade and industry in
south Africa
• Banking law regulates the powers and
functions of banks by means of many
different statues including the bank act
and the national credit act
• The new companies act which forms the
backbone of South African company law
dealing typically with issues such as the
registrations, incorporations and
management of companies

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 • The law of insolvency is concerned with
insolvent estates, bankruptcy, the
winding up and the liquidation of
companies and debt counselling based
on, among other sources,
• Labour law is one of the sub laws which
is based in part on the content of the
basic conditions of employment act and
the Labour relations act
• Taxation law deals with all the matters
related to the payment and collection of
taxes and the relationship between tax
payers and the South African revenue
services
• Insurance law has to deal with, among
others the regulations is the south African
insurance industry as well as the
requirements for the rights and duties
arising from insurance contracts

Law of delict • Is a significant branch of South African

law dealing with the circumstances in
which a person can claim compensation
from another for harm that has been
sustained
• A distinction must be made between the
law of contract, criminal law and the law
of delict
• The law of delicit is used to deal with the
wrongful and blame worthy conduct of a
person which caused harm to another

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 • An act must have occurred which
includes either a positive act or a
omission or failure to act
• Wrongful
• Fault
• Harm
• A casual link between the act and the
damages that have been caused

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Question three
3.1 Evaluate the distinguishing features of each of the following
Constitutional court 19

• Highest court in constitutional matters

• Highest court in determining whether a matter raises a constitutional issue
• Must confirm orders of Constitutional invalidity from high Court and Supreme court of Appeal
• Consists of the chief justice of South Africa, the deputy chief justice and nine other judges

Supreme Court of appeal

• Highest court in matters that do not raise a constitutional issue
• The SCA consists of president, a deputy president and the number of judges of appeal as
determined by an act of parliament
• There are 22 judges position in the court
• Highest court of appeal in non-constitutional matters
• It does not conduct trails
• It decides appeals only on the written record of the proceeding’s before the lower court
called the court as quo, such as high Court
• No witnesses testify before the SCA
• In both civil and criminal matters, the SCA is properly constituted when five judges are
presiding over the matter

The high Court

• Include high Courts of appeal established by statue, for example competition appeal
court and Labour appeal court
• Include high courts established by statue, for example the Labour court and divorce
court
• Are the courts of first instance in matters beyond the jurisdiction of regional magistrates
court
• A high court consists of judges president and usually one or more deputy judges
president as well as a number judges as determined by the president
• A high court as a court of first instance is property constituted in both civil and criminal
matters before a single judge

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 • Where a high court is constituted for the hearing of an appeal from a lower court, the
court must consist of at least two judges when the appeal is against the order of a single
judge in the high court the court must consist of at least three judges

The magistrates court

• May not rule on the constitutionality of legislation or conduct of the president
• Regional courts
• All criminal matter except treason
• Sentence limit:15 years and R300 000 fine
• Civil matter R100 000 and R300 000

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Question four
List the preliminary issues that need to be dealt with in the pre-litigation stage
• What is the cause of action? Aspect of substantive law which the case is based
• A case of action may lie, for instinct, in delicit if a party has been physically injured, it might
Lie in contract if someone has beached a contract or it may be for a divorce
• Whether the litigation has the necessary locus stand to bring litigation
• Does the litigation have the necessary capacity to institute action?
• Whether the litigation is sound of mind, whether they are minor and other similar issues
• Does the litigation have a direct and substantial interest in the case?
• Does the case concern the litigation closely enough for him or her to be allowed to institute
action?
• Which court has jurisdiction to hear the matter?
• What type of case is it since some cases have to be heard in certain courts
• How much is the claim worth as some courts have financial limits set on what cases they can
hear
• Where did the incident on which the case is based take place since parties will have to use the
correct court for the relevant geographical area?

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References
• Klein D., vijoen., zitzke E and Madi P. 2018, beginners guide for law students 5th edition
• The erosion of Constitutional democracy, the rule of law, public accountability and governance
in
In south Africa, A is Mahomed karodia, Dhiru Soni,saheeb bayat
• Readers digest family guide to the law in south Africa 2 nd edition revised and enlarged
• Humby T., kotzel., Du Plessis, w Barnard-Naude j., Freedman (2017).introduction to law and
legal skills in south Africa by 8th impression, Oxford University press

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