CONSTRUCTION LAW 2B

CHAPTER 1: THE SOUTH AFRICAN LEGAL SYSTEM

 CHAPTER 1: THE SOUTH AFRICAN LEGAL SYSTEM
• Outcome: Identify and explain the sources of South African Law.
• Assessment criteria: After completion of this chapter the student must be able to:
1. Briefly explain the history of the South African legal system.
2. List and define the various sources of South African law.
3. Explain the hierarchy of the South African court system.
4. Define and explain the doctrine of “stare decisis”.
5. Distinguish between ratio decidendi and obiter dictum.
6. Understand how statutes are interpreted using various principles.
• Resources for this chapter:
• General Principles of Commercial Law: Chapter 1
• Slides uploaded onto Moodle
• Learning activities:
• Refer to Moodle for the tutorial exercise

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1.1 A SHORT HISTORY OF THE LAW
• SA common law has its earliest roots in Roman Law
• 15th & 16th centuries: Roman law became fused with Dutch customary law and
became known as Roman-Dutch Law.
• Brought to the Cape by Jan van Riebeeck in 1652.
• English Law was introduced into our common law when the English colonised
the Cape.
• After 1814, the year in which the Cape was formally ceded to Great Britain, the
existing Roman-Dutch law remained in force, but various factors contributed to
the reception of English law into the existing Roman-Dutch Law.

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 1.2 SOURCES OF THE LAW

JUDICIAL
LEGISLATION CONSTITUTION COMMON LAW CUSTOMS
PRECEDENT

CUSTOMARY TEXTBOOKS & OLD

FOREIGN LAW
LAW LAW JOURNALS AUTHORITIES

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PERSUASIVE VS
AUTHORITATIVE
SOURCES?

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 1.2 SOURCES OF THE LAW
LEGISLATION
• Synonyms: Statutes/ An Act
• Rules laid down by a person or a body of persons with legislative
authority.
• Legislative bodies:
• Parliament  Acts of Parliament
• Provincial legislators  Provincial Acts
• Subordinate legislative bodies  Municipal by-laws

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1.2 SOURCES OF THE LAW
CONSTITUTION
• Most important source of law
• Constitutional supremacy vs parliamentary sovereignty
• Consists of a preamble, 14 chapters, 243 sections and eight schedules
• Sets out structure, powers and functions of the State
• Bill of Rights (Chapter 2):
• first generation (eg right to equality, human dignity, life etc)
second generation rights (right to housing, health-care, food etc)
• Applies to all law and binds all branches of government and all organs of state

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 BRANCHES OF THE LAW
LEGISLATURE EXECUTIVE JUDICIARY
Make laws Implement laws Adjudicate disputes by
interpreting and applying the
law
Parliament President, Constitutional Court
Deputy President and Ministers Supreme Court of Appeal
Provincial premier and executive High Courts
Provincial Legislatures council. Magistrates Court
Municipal Councils Small Claims Court
Municipal Councils
Acts of Parliament; Proclamations; Judgments
Provincial Acts; and Regulations; and
Municipal By-Laws. Directives. 8
ARE RIGHTS ABSOLUTE?
CAN THEY BE LIMITED?

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 1.2 SOURCES OF THE LAW
CONSTITUTION
• Limitation of rights: S36
• Conflict of rights
• Strict requirements to limit a right
• Applied ito law of general application
• Reasonable and justifiable…
• Factors:
1. the nature of the right;
2. the importance of the purpose of the limitation;
3. the nature and extent of the limitation;
4. the relation between the limitation and its purpose; and
5. less restrictive means to achieve the purpose.

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 1.2 SOURCES OF THE LAW
CONSTITUTION
• Interpretation clause: S39
• Applies when interpreting any law.
• The values that underlie an open and democratic society based on dignity, equality
and freedom must be promoted.
• Must take international law into account.
• May consider foreign law.
• When interpreting of any legislation and the development of the common law and
customary law, a court must promote the spirit, purport and objects of the bill of rights.

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 1.2 SOURCES OF THE LAW
COMMON LAW
• Developed under the influence of other legal systems.
• Our common law is made up of Roman law; Roman-Dutch law; and English
law.
• New rules of law cannot be created through the common law.

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1.2 SOURCES OF THE LAW
JUDICIAL PRECEDENT
• Also known as court decisions OR
judgments of the courts.
• Primary function of the courts is to administer justice and NOT to create rules
of law.
• There are instances where the legislation and/or the common law does not
provide an answer the courts need to decide  creating new rules of law.
• Judicial Precedent refers to the law created when a judge decides a case and
his or her decision either creates new law or extends existing law.
• Lower courts are bound by the decisions of higher courts.

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 1.2 SOURCES OF THE LAW
CUSTOMS
• Habits of a community that becomes so entrenched that it creates an unwritten
legal rule or abolishes an existing legal rule.
• Green v Fitzgerald: abolished an existing legal rule.
• Van Breda v Jacobs: created a new unwritten legal rule.
• Requirements for a custom to be recognised as a legal rule
(as set out in the Van Breda v Jacobs case):
1. Reasonable;
2. Exists for a reasonably long time;
3. Generally accepted and observed by the community;
4. Contents of the rule must clear and certain.

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 1.2 SOURCES OF THE LAW
CUSTOMARY/INDIGENOUS LAW
• Laws applicable to specific ethnic
groups in SA.
• Can be enforced in court.
• The Law of Evidence Amendment
Act 45 of 1988: customary law may
be applied as long as it does not
conflict with public policy or natural justice.

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1.2 SOURCES OF THE LAW
FOREIGN LAW
• Other countries’ laws may be turned to for guidance.
• Not an authoritative source for South African law — has persuasive authority
only.
INTERNATIONAL LAW
• Set of rules generally regarded as and accepted as binding in relations
between states. It serves as a framework for the practice of stable and
organized international relations.
• In terms of the Constitution, a court must consider international law when
interpreting the bill of rights.

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 1.2 SOURCES OF THE LAW
TEXTBOOKS AND JOURNALS
• Contain articles, case discussions and analyses on a variety of topics.
• Written by legal academics, advocates, attorneys and judges.
• It has no inherent authority of their own but may have a persuasive influence on our
courts.

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1.3 STRUCTURE OF SAn COURTS

Constitutional Court
Superior
Supreme Court of Appeal
Courts
High Courts
(Provincial Division) (Local Division)

Magistrates’ Courts
(District Court) (Regional Court) Lower
Courts
Small Claims Court

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 1.3 STRUCTURE OF SAn COURTS
JURISDICTION
• The courts capacity and authority to hear certain matters.
• Factors determining jurisdiction:
• Authority to hear constitutional matters
• Geographical territory
• Amount of the claim in civil proceedings
• Severity of sentence in criminal proceedings
• Nature of the proceedings
• Appeal jurisdiction

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20

APPEAL VS REVIEW

APPEAL REVIEW
• Based on merits of the case • Based on procedural
• Example: points of law and fact irregularities, unreasonableness
• like considering important evidence or irrationality
• Example: presiding officer fell off
to sleep during proceedings

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 1.3.1 CONSTITUTIONAL COURT

 Seat: Braamfontein, Johannesburg (Constitution Hill).

 Jurisdiction over the entire country.
 11 Judges presiding.
 Highest court in South Africa in respect of all matters.
• Previously: highest court in respect of constitutional matters only (interpretation, protection and
enforcement of the Constitution).

 Decisions made by the Constitutional Court can not be changed by

any other court.

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 1.3.2 SUPREME COURT OF APPEAL

Seat: Bloemfontein.
Court of appeal.
Not a court of first instance.
Jurisdiction over the entire country.

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 1.3.3 HIGH COURTS
• 14 High Courts throughout SA.
• High courts has jurisdiction over all persons who resides in and all actions or
offences that arose within the area of jurisdiction of that court.
• One judge
• Appeal: 3 judges (full bench).
• It can adjudicate on both criminal and civil matters.

• Circuit courts are created when the court moves to more remote parts of country to
hear matters.

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 1.3.6 MAGISTRATES’ COURTS

District magistrates’ Regional

court magistrates’ court

Specific region
Specific district
(wider jurisdiction than a district)

Civil matters: limited to R300 000.

Civil matters: limited to R100 000
Can hear divorces.

Criminal matters: any crime except Criminal matters: any crime except
murder, high treason & rape. Max fine high treason. Max fine of R300 000 &/or
of R60 000 &/or 3 years imprisonment. 15years imprisonment.

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 1.3.7 SMALL CLAIMS COURT
• Special lower court.
• Civil claims only (no criminal cases).
• Limited to R20 000.
• Claims can only be brought by natural persons.
• Legal representation is not allowed in the SCC.
• Presiding officer is called a commissioner.
• There is no appeal process – reviewable in the High court.

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 OTHER COURTS
• Specialised courts created by statute.
• Examples:
1. Labour Courts
2. Land Claims Court
3. Special Court for the Adjudication of Tax Appeal Superior Courts
4. Equality Courts
5. Regional Divorce Court
6. Water Tribunal
7. Family Court Magistrates’ courts
8. Maintenance Court
9. Juvenile and Children’s Court

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 1.3.5 OFFICERS OF THE COURTS

• Registrar of the HC/ Clerk of the MC: issue processes, enrol cases, issue
orders and maintain records.
• Sheriff: serve processes and execute judgments & court orders.
• Master of the HC: admin functions in respect of deceased & insolvent estates,
liquidation of companies and affairs of persons under legal disability.
• Legal practitioners: Advocates
Attorneys (Notary, Conveyancer)

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 IMPORTANT DEFINITIONS
• stare decisis (aka the doctrine of precedent): a judge must follow certain
previous decisions of other courts on similar issues as the one before him.
• ratio decidendi: the reasons for the court’s decision.
• obiter dictum: incidental remarks or a mere opinion or a passing remark
made by a judge.

(1.4 & 1.6 DOCTRINE OF PRECEDENT)

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 1.4 DOCTRINE OF PRECEDENT
• AKA stare decisis
• Certain courts create a precedent through their decisions which must be followed by other courts in the
same jurisdiction on the same level or lower.
• This means that when a legal principle is laid down by a court, all presiding officers of the same court and
those of a lower court within the area of jurisdiction are bound by this principle and must follow it.
• Ratio decidendi creates a precedent and is binding on certain other courts, whereas an obiter dictum is
not binding on other courts but has persuasive value only.
• Courts may only deviate from a previous decision if they believe that it was wrongly decided.

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 INTERPRETATION OF STATUTES

• Act/Statute/Legislation (Name, number, year: Consumer Protection Act 68 of 2008)

• Preamble/Purpose (The purpose of the CPA is to promote and advance the social and economic welfare of
South African consumers.)
• Table of contents (7 Chapters and 122 Sections)
• Definitions
• Chapters (Chapter 2: fundamental consumer rights)
• Section (S16: The consumers right to cooling –off period after direct marketing)
• Subsection (S16 (3): A consumer may rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the
supplier in writing, or another recorded manner and form, within five business days after the later of the date on which-
(a) the transaction or agreement was concluded; or
(b) the goods that were the subject of the transaction were delivered to the consumer.)
• Schedules/ Directives/Regulations (details of how the provision will apply in practice/amendments)
• Index

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1.5 INTERPRETATION OF
STATUTES
• Used when the meaning of legislation must be determined.
• Ambiguous or imprecise words: various theoretical rules
and methods are used to interpret what the statute seeks
to achieve.
• It is a dynamic and functional process through which the
text of the legislation and the contextual factors
surrounding it are objectively researched to determine the
purpose of the legislation and give effect to it in the light of
the principles prescribed by the Constitution.

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1.5 INTERPRETATION OF
STATUTES
RELATIONSHIP BETWEEN STARE
DECISIS AND INTERPRETING STATUTES
• Legislature makes laws & judiciary applies laws
• An interpretation of a statute by a superior court
will bind lower courts to that interpretation of the
statute.

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1.5 INTERPRETATION OF
STATUTES
INFLUENCE OF THE CONSTITUTION ON THE INTERPRETATION
OF STATUTES
• Any Act/provision in conflict with the Constitution can be declared invalid.
• The values and norms on which the Constitution is based must be taken into
account
• Section 39 of the Constitution
• when interpreting the Bill of Rights, a court must promote the values that underlie an
open and democratic society based on human dignity, equality and freedom;
• must consider international law; and may consider foreign law.
• when interpreting any legislation, a court must promote the spirit, purport and
objects of the Bill of Rights.

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 1.5 INTERPRETATION OF STATUTES

GENERAL PRINCIPLES
1. The meaning of a provision must be determined by its
language and its context in the legislation read as a
whole.
2. Any reasonable interpretation of a provision that is
consistent with the purpose and scope of that legislation
must be preferred over any alternative interpretation that
is inconsistent with its purpose and scope.

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 1.5 INTERPRETATION OF STATUTES

INTERPRETATION ACT 33 OF 1957

• The Act applies to the interpretation of every law.

• It contains:
• general definitions of terms frequently used in legislation,
• rules about gender (the masculine includes the feminine),
• numbering,
• calculation of time,
• measurements of distance, and
• the commencement and repeal of legislation.

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 1.6 COURT JUDGMENTS
• Ratio decidendi and obiter dictum has been covered in par 1.4. It is
important.
• Some reported decisions are published in law reports eg. The South
African Law Reports.
• Reported case citation:
National Sorghum Breweries Ltd v Corpcapital Bank Ltd 2006 (6) SA
208 (SCA)
• Leave out paragraph 1.6.4

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COMMERCIAL LAW IN A TRADITIONAL AFRICAN CONTEXT

HUMAN
DIGNITY
GROUP
FAIRNESS SOLIDARITY

UBUNTU
GOOD CONFORMITY
FAITH

JUSTICE RESPECT
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COMMERCIAL LAW IN A TRADITIONAL AFRICAN CONTEXT

DISPUTE BETWEEN TRADITIONAL COMMUNITY

MEMBERS

REFERRED TO KGORO (TRADITIONAL COURT)

TO RESOLVE THE MATTER

CHIEF, TRIBAL HEADMEN AND ALL ROLE

PLAYERS INVOKES THE SPIRIT OF UBUNTU (see
Everfresh Market Virginia v Shoprite Checkers
case)WHEN ADJUDICATING THE MATTER.

THE DISPUTE IS ADJUDICATED, THE MERITS,

CUSTOMARY LAWS (Section 211(3) of the
Constitution) AND THE PRINCIPLE OF STARE
DECISIS IS APPLICABLE

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