COMMERCIAL LAW 1A

Introduction to the South African Legal System

WEEK 1
WHAT IS
COMMERCIAL
LAW?

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A SHORT HISTORY OF THE LAW
LAW IS A SOCIAL SCIENCE & HAS A PURPOSE IN DEVELOPING AND SHAPING THE COMMUNITY – ALWAYS
DEVELOPING (ARTIFICIAL INTELLIGENCE

HISTORY OF LAW IS IMPORTANT TO UNDERSTAND LEGAL RULES AND HOW THEY SHOULD BE
DEVELOPED

SOUTH AFRICAN LAW IS NOT ENTIRELY CODIFIED (Codified law is the system of rules that have been
collected in a country and are binding and enforceable, often written down in a statute, book or code) – not
codified, therefore law is drawn from various authoritative sources
STATUTES (legislation) & CASE LAW are usually the main sources.

OTHER RECOGNISED SOURCES = ROMAN LAW & ROMAN DUTCH LAW

ROMAN DUTCH LAW (history) - In the 15th and 16th century there was a fusion between Roman Law and
Dutch Customary Law which created Roman Dutch Law (this was brought to SA by Jan Van Riebeeck)

ENGLISH LAW - 1814 Cape formally ceded to Great Britain which saw the reception of English law with
Roman Dutch Law remaining.
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ROMAN LAW

ROMAN LAW – 753 BC TO 568 AD

IN THE BEGINNING – ROME WAS SMALL & PRIMITIVE. ECONOMY BASED ON AGRICULTURE

THE FAMILY WITH THE OLDEST MALE ASCENDANT WAS HEAD OF THE COMMUNITY

THE HEAD = POWER OVER ALL FAMILY PROPERTY + POWER OF LIFE & DEATH OVER FAMILY MEMBERS AND HIS
SLAVES.

ROME EXPANDED UNTIL IT BECAME A VAST EMPIRE WHICH EXTENDED INTO WESTERN EUROPE, AFRICA & ASIA.

AS ROME EXTENDED, THE LAW DEVELOPED AND BECAME MORE SOPHISTICATED

FROM 291 AD THERE WERE ATTEMPTS TO CODIFY ROMAN LAW WHICH BECAME KNOWN AS THE CORPUS IURIS
CIVILIS

THE CORPUS IURIS CIVILIS APPEARED IN THE REIGN OF THE EMPEROR JUSTINIAN IN THE 6TH CENTURY & IS STILL
REFERRED TO BY S.A COURTS

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ROMAN-DUTCH LAW

TWO REASONS FOR WORKS OF

ITS CONTINUANCE:
15TH-16TH ROMAN-DUTCH
• EVERY PERSON WAS
JUDGED ACCORDING CENTURIES – JURISTS + THE
TO THE LAW OF ROMAN LAW STATUTES OF
HIS/HER COUNTRY & WAS RECEIVED HOLLAND + OLD
ROMAN EMPIRE FELL FORMER ROMAN
CITIZENS WERE IN THE DUTCH
IN 476 AD BUT ROMAN THEREFORE JUDGED NETHERLANDS OPINIONS &
LAW STILL EXISTED. ACCORDING TO
ROMAN LAW. AND MIXED WITH COURT
• THE CHURCH EXISTING DUTCH DECISIONS = A
EXERTED INFLUENCE CUSTOMARY SOURCE OF LAW
& CANON LAW WAS
BASED MAINLY ON LAW. USED BY S.A
ROMAN LAW. TODAY.

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ENGLISH LAW

1652 – JAN VAN RIEBEECK BROUGHT ROMAN-DUTCH LAW TO THE CAPE.

AFTER 1814 THE CAPE WAS FORMALLY CEDED to GREAT BRITAIN & THE EXISTING ROMAN-
DUTCH LAW REMAINED IN FORCE.

ENGLISH LAW WAS ENCOURAGED & APPEAL TO THE PRIVY COUNCIL IN LONDON WAS
INSTITUTED ALONG WITH THE JURY SYSTEM & MASTER OF THE SUPREME COURT.

1910 SAW THE ESTABLISHMENT OF A UNION PARLIAMENT FOR S.A–

A UNIFORM SYSTEM OF STATUTE LAW FOR THE WHOLE COUNTRY AS WELL AS THE
CREATION OF THE APPELLATE DIVISION.

SA COMMON LAW = ROMAN-DUTCH LAW & ENGLISH LAW (MIXED OR HYBRID SYSTEM)

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PARLIAMENT

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 SA LEGAL
SYSTEM IN A
NUTSHELL
• LEGISLATURE – LAW IS MADE BY A
COMPETENT AUTHORITY CALLED
THE LEGISLATURE AND THIS FORMS
AN IMPORTANT SOURCE OF LAW.
• EXECUTIVE – EXECUTIVE IS THE
BODY RESPONSIBLE FOR ENACTING
THE LAWS MADE BY THE
LEGISLATURE.
• JUDICIARY – THIS REFERS TO THE
COURTS. THEIR JOB IS TO ENFORCE
THE LAW BY INTERPRETING AND
APPLYING THE LAW.
Does the judiciary make law when passing judgments?

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SOURCES OF LAW
1. Authoritative/Primary Sources:
A. Statute law or legislation – Eg. Consumer Protection Act
B. Constitution – most NB source of written law. Supreme law. Bill of Rights
C. Customary law – rules of conduct or habits of a community (unwritten rules); Van Breda v Jacobs
case. 4 requirements: a) must be reasonable b) must have existed for a long time c) generally
recognised and observed by the community d) contents of the customary rule must be clear &
certain.
D. Judgments of the Courts/judicial precedent set by superior courts
E. Common law – “unwritten” law (Roman-Dutch + English law)
F. Old Authorities-Ancient Roman law as set out in the Corpus Iuris Civilis

2. Persuasive/Secondary Sources:
➢Foreign law
➢Textbooks and law journals
➢Google is not a source of law!

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SUMMARY OF SOURCES OF LAW

7. DO NOT FORGET THE COMMON LAW = ROMAN DUTCH LAW & ENGLISH LAW

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HIERARCHY
OF COURTS
IN SA

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HIERARCHY OF THE COURTS: MAG COURT DISTRICT VS REGIONAL DIFFERENCES

• Money in civil = amount of damages/compensation one can claim.

• Money in criminal = fine that can be imposed.

District Magistrate’s courts cannot deal with certain matters such as divorce, arguments about a person's will 12
and matters where it is asked if a person is mentally sane or not.
TRADITIONAL COURTS IN SA
Traditional courts exist and they are used
by millions of people to resolve disputes
according to customary law in a manner
which should promote justice. These
courts are more accessible to local
communities.
Also known as the courts of traditional
leaders
These courts provide communities with
dispute resolution mechanisms and
focus on the implementation of restorative
justice.
The Traditional Courts Bill was originally
developed in order to replace S12 and
S20 of the Black Administration Act of
1927, which empowered traditional
leadership to resolve disputes and
certain offences in Traditional Courts.
Although the Act has been repealed,
the provisions which regulated the
traditional courts were kept until new
legislation would be enacted
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LAW IN A TRADITIONAL AFRICAN CONTEXT
Appropriate in traditional African societies to apply customary law in both public and private
spheres.
In circumstances where ubuntu is practiced, strong emphasis is placed on values such as
human dignity, group solidarity, conformity, respect, justice, good faith, fairness etc.

Should a dispute arise, such dispute is normally deferred to a traditional court (Kgoro).

The spirit of ubuntu is invoked in such disputes.

The chief, trial headmen and others place emphasis on fairness, group solidarity and a sense of
community.
Each case is adjudicated according to its own merits and although customary law is unwritten,
stare decisis still applies in traditional courts.
Section 211(3) of the Constitution: the courts must apply customary law when it is applicable,
subject to the Constitution and any legislation that specifically deals with customary law.

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 COURT
STRUCTURES

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OFFICERS OF THE VARIOUS COURTS
CC – Chief Justice, DJC and 9 other Justices

SCA – President, Deputy President and judge of appeal

HC – Judges

MC – Magistrates

Master of the High Court – Department within the HC which deals with the administration of estates
(deceased states, insolvent estates, minors etc.)
Registrars – Duties include issuing processes (summonses, warrants), enrolment of cases, maintaining
records of the court.
Sheriff – executes the orders of the court (warrants and summons)

Legal practitioners: advocate, lawyer, attorney, notary, conveyancer

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 Constitutional
Court
• The court is situated at Constitutional Hill Precinct in
Braamfontein, Johannesburg. There are 11 judges of
the Constitutional Court
• A matter must be heard by at least 8 judges.

• The Constitutional Court is the apex court in

South Africa. Its decisions cannot be changed by any
other court.
• The court decides constitutional and general
matters.
• A constitutional matter includes any issue
involving the interpretation, protection or enforcement
of the Constitution.
• A general matter is one that is of general and public
importance.

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 Supreme Court
of Appeal

• The Supreme Court of Appeal (SCA) is

based in Bloemfontein in the Free State
• Ordinarily, proceedings are presided over
by three or five judges.
• The SCA decides appeals except in
labour and competition matters. Appeals to
the SCA emanate from the High Court of
South Africa or a court of a similar status to
the High Court.
• Except for the Constitutional Court, no
other court can change a decision of the
SCA. The SCA may change its own decision.
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 HIGH
COURTS

• There are different divisions

within each province.
• Can hear appeals from the
magistrate courts.
• Monetary civil claims of +R400
000.

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DOCTRINE OF STARE DECISIS
A judge is tasked with stating, interpreting and applying the existing law – it is not the job of the
court to make new law (legislature makes new law).

However, in interpreting and apply the law, judges may give a new interpretation to legislation
which will extend or adapt a legal principle.

‘STARE DECISIS’- the decision stands (parties to the dispute and the court itself are bound by
the decision unless overruled by a superior court)

Every court is bound by the decisions of the Superior Courts within its area of jurisdiction
(unless decision was seriously flawed by an obvious error)

Every court is bound by the decision of a court of concurrent status within its own area of
jurisdiction (unless decision was incorrect).

One division of the High Court is not bound to follow the decisions of other divisions of High
Courts (since they have different areas of jurisdiction) but generally, they will follow the
decisions of other High Courts.
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INTERPRETATION OF STATUTES
Statute interpretation is used when the meaning in Section 233 provides that when interpreting any
law of an Act of Parliament or another piece of legislation, every court must prefer any
legislation must be determined. Words can be reasonable interpretation that is consistent
ambiguous or imprecise despite careful drafting of with international law over any alternative &
the Acts. inconsistent interpretation
A process is then applied through which the text of
the legislation and contextual factors surrounding
it are objectively researched to determine the
purpose of the legislation.
Section 39(2) of the Constitution reads that when
interpreting any legislation, a court must promote
the spirit, purport and objects of the Bill of Rights

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COURT JUDGMENTS
RATIO DECIDENDI- a key factual point or reasoning in a case that drives the final judgment.
The reason for the decision which forms the binding part of the judgment or which becomes the
basis of judicial precedent/stare decisis (which other courts must follow). BINDING. The ratio decidendi
is the conclusion reached by the judge based on the material facts of the case.

OBITER DICTUM- something said in passing."

Any statement which falls outside the ratio decidendi is known as Obiter Dictum (or incidental remark).
Not binding on other courts. (Hypothetical questions or illustrations made in the case are incidental
remarks).
A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the
case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in
future litigation.

CASES USUALLY USE THE FIRAC METHOD:

1. FACTS
2. ISSUES
3. RULE OF LAW
4. APPLICATION
5. CONCLUSION
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TYPICAL ASPECTS OF A JUDGMENT
• NATIONAL SORGHUM BREWERIES LTD v CORPCAPITAL BANK LTD 2006 (6) SA 208 (SCA)
• The case citation contains vital information.
• The applicant/claimant/appellant is NATIONAL SORGHUM BREWERIES LTD
• The letter ‘v’ stands for versus/against
• The defendant/respondent is the party against whom the case is brought which is CORPCAPITAL
BANK LTD
• 2006 denotes the year.
• (6) indicates the sixth part of the law report in that year.
• “SA” indicates that the case is reported in the South African Law Reports.
• “208” reflects the page number on which the case is reported.
• SCA means the court was heard in the Supreme Court of Appeal.

• CRIMINAL LAW = S v Makwanyane

• S = The State
• Makwanyane = The Accused

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