Study Unit 1 — Introduction to South African Law

The first unit of study for Business Law 101 is an introduction to the subject. It focuses on Chapters One and Two of Schulze et. al. 2015. General Principles of Commercial Law. 8th ed. South Africa: Juta and Company (Pty) Ltd.

According to the study guides, after studying this section, I should be able to identify the sources of South African law. I should also understand the court structure and be able to discuss the relationship between the various courts. Finally, I should recognise the distinction between real and personal rights and also identify and understand the various methods to transfer ownership.

If you wish to know the motivation behind this and future posts, please see my earlier post here.

What are the sources of South African law?

Schulze et. al. point out that law is social science and since it has to provide for the changing needs of the community which it serves, one would do well to understand the history of that community and the factors that have impacted the development and even origin of that law.

South African law is not codified, which means it is not recorded into one comprehensive piece of legislation. Our law has been influenced by Roman; Roman-Dutch; and English law given the history of our country. The Roman law comes from the influence of that society in Europe and the attempt to codify the law in AD 291 into the Corpus Iuris Civilis and which remains a primary authoritative source from which South African courts may draw from to solve certain legal issues.

Roman-Dutch law comes into South Africa’s legal system given the fact that the first settlers to the Cape brought this law with them where following the fall of the Roman Empire, their laws were mixed into the Dutch customary law over time.

English law made it’s way into the South African legal system following the Cape being ceded to Great Britain after 1814. Much of this legal system was phased in, like the code of criminal procedure in 1826 and the law of evidence in 1830 as examples.

This history brings us to the main sources of the law today in South Africa.

  1. Legislation — It is defined by Schulze et. al. 2015. General Principles of Commercial Law. 8th ed. South Africa: Juta and Company (Pty) Ltd. as ¨the making of law by competent authority¨ and in the South African context, is the statutes enacted by parliament and the provincial legislators.
  2. The Constitution of the Republic of South Africa, 1996, is the most important source of law and under our system of constitutional supremacy, the Constitution is the supreme law of the country. Thus parliament could not pass legislation that is in contravention of the Constitution. (See the next section on the Constitution)
  3. Judgements of the courts — commonly referred to as case law, the judgements of Dutch courts pre-1652, Cape Council of Justice pre-1827, courts of the four provinces pre-1910 and the judgements of the South African courts after 1910 are all authoritative sources of law. In South Africa today, the courts are divided into superiors and lowers courts, with the superior courts being made up of the Constitutional Court, Supreme Court of Appeal and High Court. The lower courts like the magistrates or small claims court differ from have limited jurisdiction and do not have their judgements report as do the superior courts.
  4. The old authorities — because of the influence that Roman and Roman-Dutch law played in South Africa, the works of the old jurists from Holland are still viewed as authoritative in South African courts. The same for the ancient Roman law in the Corpus Iuris Civilis. The body of law from old authorities is known as common law.
  5. Customary law — these are rules of conduct that develop out of habits in communities over a period of time, namely from generation to generation. Based on the judgement in Van Breda v Jacobs 1921 AD, the following requirements need to be met for a customary rule to be considered legally enforceable (see Schulze et. al. 2015. General Principles of Commercial Law. 8th ed. South Africa: Juta and Company (Pty) Ltd. pg5):
  • It must be reasonable.
  • It must have existed for a long time.
  • It must be generally recognised and observed by the community.

While the courts may look to foreign law or textbooks and law journals for guidance on matters, these sources of law are not authoritative.

The Constitution of the Republic of South Africa, 1996

This document is considered by many to be a pillar of strength to South Africa’s young democracy. The preamble sets out the reason as to why the Constitution was adopted:

  1. To heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights
  2. To lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law
  3. Improve the quality of life of all citizens and free the potential of each person, and
  4. Build a united democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

The Constitution looks to bring these outcomes into effect through the Bill of Rights which is found in it’s second chapter. This is the cornerstone of the country´s democracy and according to Schulze et. al. 2015. General Principles of Commercial Law. 8th ed. South Africa: Juta and Company (Pty) Ltd. pg4, ¨binds all three branches of government (the legislature, the executive and the judiciary) and all organs of state. The state is required to respect, protect, promote and fulfil these rights.¨

The Bill of Rights is said to deal with first-generation and second-generation rights. Many of these first-generation rights are considered negative rights since they take power away from the state by requiring the state not to act in certain ways, like the use of torture or to not discriminate.

The second-generation rights impose certainly obligations on the state, like the right to housing, health-care or food and water.

Schulze et. al. 2015. General Principles of Commercial Law. 8th ed. South Africa: Juta and Company (Pty) Ltd. pg4 points out that the rights are not absolute. ¨Rights can be limited to special circumstances, which are that -

  • The limitation must take place by law of general application.
  • It must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
  • It must take into account all relevant factors, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and whether there are less restrictive ways of achieving the purpose.

All these circumstances must be met for a limitation to be lawful.¨

Briefly Explain the Court Structure in South Africa

As mentioned earlier, the courts in South Africa are divided into two groups, the superior courts being made up of the Constitutional Court, The Supreme Court of Appeal and The High Court. The lower courts are Magistrates courts and the small claims courts.

The Constitutional Court is the highest court in the land as per The Constitution Seventeenth Amendment Act of 2012. Prior to this the court was only able to decide on constitutional matters. While this act meant the Constitutional Court was no longer just a court on constitutional matters, is remains the the only court with jurisdiction on such matters.

The Supreme Court of Appeal (previously known as the Appellate Division until 1997) is the court of appeal for the High Court and its divisions. I has unlimited jurisdiction except in matters of the constitution. This court is made uo of the President of the Supreme Court of Appeal, the Deputy President of the Supreme Court of Appeal and as many judges as may be required in the prescribed criteria which is approved by the President. The seat of this court is in Bloemfontein.

The Superior Courts Act 10 of 2013 which came into effect on 23 August 2013, created a single High Court in South Africa with different divisions constituted in terms of section six of the same act. There are several of these divisions spread across the country. Some of these divisions are the Eastern Cape Division with its seats in Grahamstown, Bhisho, Mthatha and Port Elizabeth. The Free State Division with its seat in Bloemfontein. The Gauteng Division with its seat in Pretoria but then also functioning as Limpopo Division with a seat in Polokwane and so forth. Each division of the High Court has a Judge President and one or more Deputy Judge Presidents and as many judges and may be needed in the prescribed criteria approved by the President. The High Court has original jurisdiction and can hear any matter arising within its area of jurisdiction. It is also the only court that may give judgement on the matters of divorce proceedings, status of a person in respect of mental capacity, applications for sequestration of an estate or the liquidation of a company and the the validity and interpretation of a will. It may also decide is any fundamental right in the constitution is being violated.

Officers of the Superior Courts — In each of the superior courts there is a registrar with assistants that allow for the smooth operations of the court. They issue process (summonses, warrants etc.), enrol cases and issue orders of the court as well as maintain the records.

The sheriff of the court serves the process and executes judgements and court orders.

In some divisions of the High Court there is a Master´s office which is presided over by a Master of the court. The roles of the Master are administrative and quasi-judicial with a primary focus on deceased or insolvent estates or the liquidation of a company. They also tend to matters of persons under legal disability.

In the Republic of South Africa, the legal profession is divided into two main groups or classes, which are advocates and attorneys. Advocates mainly appear in the superior courts. Attorneys, apart from working in non-litigious matters, like drawing up of contracts, will primarily practice in the magistrates courts. Attorneys may also be a notary for the drawing up and attesting of antenuptial contracts as well as act as a conveyancer for the preparing of deeds of transfer of immoveable assets and mortgage bonds etc.

The Magistrates’ courts can be found in most towns in South Africa and may not hear any matters that would fall into the exclusive jurisdiction of the superior courts. The clerk of the court acts in similar function to the registrar in superior courts and the sheriff of the magistrates court shares the same role of the same office in a superior court.

The small claims courts resolve minor civil claims and aim to make proceedings prompt and and affordable by not requiring legal representation for the parties. Anyone except juristic persons like a registered company, may institute a claim. As per Section 15 and 16 of the Small Claims Courts Act, 1984, the court may hear any civil matter to the amount of R15,000 (roughly $1,500 USD at current Rate of Exchange). However matters or divorce, a will, malicious prosecution, wrongful imprisonment and a breach of promise to marry, cannot be heard by these courts, even if the amount being claimed is less than R15,000. The small claims courts do not have a magistrate or judge but the presiding officer is a commissioner that is most often a practising advocate or attorney acting at no cost. Attorneys may be used by parties in preparing their case but no legal counsel is present in the proceedings.

(This is the end of these section of study notes. Due to the limit of time before Friday´s exam, I am not sure that I will be writing more at this time. It is proving to be a little too time consuming. We will see how it goes. Also I have a large work commitment presently too with our Global CEO due to visit soon.)

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