The South African Legal System
The law was primitive. Rome developed rapidly and the law had to adapt for these changed circumstances (sophisticated legal system was created). Roman-Dutch law: The Roman Empire declined and fell but it did not disappeared. During the Middle Ages, traces of Roman law remained for 2 reasons: 1) Every person, was judged according to the law of his/her own country, therefore Roman citizens were judged according to Roman law. 2) The church exerted great influence during this period and canon law was based on Roman law. This 2 reasons, contributed to the preservation of Roman law.
After that, Roman law was received in the Netherlands and became mixed with the existing Dutch law. English law: When the Cape was formally ceded to Great Britain, the existing Roman-Dutch law remained in force but various factors contributed to a reception of English law. The direct and indirect influence of English law was encouraged. English law was often directly drawn on for new legislation: a code of criminal procedure was introduced, as well as, the entire English law of evidence and the English system of the administration of estates.
Simultaneously, a gradual infiltration of the English legal terminology and manner of thinking took place resulting in a strong and adaptable system of law. In 1910, a Union Parliament was established in S. A (a uniform system of statute law for the whole country) as well as the Appellate Division, to ensure uniform decisions for the Union. The Privy Council was abolished as the highest court of appeal for South Africa. The sources of S. A law are: * Statute law or legislation: General: Legislation is the making of law by a competent authority.
Legislation is the most important source of law. The law is found in statutes created by Parliament, provincial legislatures, proclamations, regulations and subsidiary legislative bodies such as the President, ministers, municipalities… There are only a few Dutch statutes which are still in effect in S. A; the legislature has replaced many of statutes with new legislation. English statutes never applied here, in the legislation. The Constitution: The most important source of law in S.
A is the Constitution of the Republic of S. A. Previous, we had a supreme Parliament (any law passed by Parliament was valid, irrespective of its contents) but now we have a system of constitutional supremacy under which the Constitution is the supreme law of the Republic. This means that if Parliament were to pass a law that offended the Constitution, it would be invalid. Even existing law and new legislation, if they are inconsistent with the Constitution can be declared invalid by a superior court.
The preamble (introduction) to the Constitution states the following: * Heals the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. * Lay the foundations for a democratic and open society in which government is based on the will of people and every citizen is equally protected by law. * Improve the quality of life of all citizens and free the potential of each person * Build a united and democratic S. A able to take its rightful place as an independent state.
The primary method of giving effect to these ideals is through the Bill of Rights. The Bill of Rights means democracy in S. A and confirms the democratic values of human dignity, equality and freedom. The Bill of Rights applies to all laws and binds all three parts of Gov. (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 deals with both first-generation rights (negative rights that take power away from the state by imposing a duty not to act in a certain way, eg: not to discriminate.
It includes the rights of equality, human dignity, life, and various freedoms of the person, of religion, expression… ) and second-generation rights (positive socio-economic rights that impose an obligation on the state to provide all members of society with certain basic needs. It includes the right to housing, health-care, food and water, social security and education. None of these rights is absolute and can be limited in special circumstances: * The limitation must take place by law of general application. * It must be reasonable and justifiable. The limitation must take into account all relevant factors (nature of the right, importance of the purpose of limitation, nature and extent of limitation…
The Constitution also regulates gov. by setting out the structure of the state and its organs, and providing for their functions and powers. * Customary law: It is not written but develops from habits of the community from generation to generation. (Customs, trade usages). See eg page 7. Before a customary rule is recognized as legal rule: * It must be reasonable. * It must have existed for a long time. It must be generally recognized and observed by the community. * The contents of the customary rule must be certain and clear. * Judgments of the courts: Case laws.
The S. A courts are divided into superior and lower courts. The superior ones are the Constitutional Court, the Supreme Court of Appeal and the High Courts. The lower courts are those courts which are lower in status than the High Courts and which are required to keep a record of their proceedings. Eg: Magistrates courts, small claims courts and different courts of black chiefs and headman.
The lower courts only decide on specific matters and specific persons. * The old authorities: Roman and Roman-Dutch law (Common law). * Foreign law: For guidance, a judge can turn to the law of other modern countries. Foreign law is not considered as an authoritative source of S. A law, it has persuasive authority only. The decisions of English courts come to mind, as well as American courts and European. Foreign law has also been recognized in the Constitution. The Constitution considers it when interpreting the Bill of Rights.
Textbooks and law journals: Articles, discussions and analyses on a variety of topics, present in textbooks and law journals which are convincing may have a persuasive influence on the courts. Court structure in S. A: * The Constitutional Court: Is the court of final instance over all matters relating to interpretation, protection and enforcement of the provisions of the Constitution, in other words, deals with matters of the Constitution. Eg: decide if a fundamental right has been violated. It is situated in Johannesburg. (2 judges) * The Supreme Court of Appeal: 5 judges. Cases cannot be taken directly to the Supreme Court.
Only a court for appeal. * The High Courts: Have jurisdiction and can hear any matter which arises whitin their area of jurisdiction. They are the only courts that have jurisdiction to give judgment in divorce proceedings, status of a person in terms of mental capacity, applications for the sequestration of a person’s estate, the liquidation of a company, and the validity or interpretation of a person’s will. They may also decide whether any fundamental right was violated. It is a 1st instance court. (1-3 judges) * Other important courts: The Supreme Court and High Court of Zimbabwe and Namibia. Officers of the superior courts: A registrar is necessary in each of the superior courts.
The Registrar’s duties include the issue of process, the enrolment of cases, the issuing of orders of court and the maintenance of records. Sheriffs are appointed for each of the High Courts. Their duties are process and execute judgments and orders of court. The Master had various administrative and quasi-judicial functions concerning deceased (dead) and insolvent estates, the liquidation and judicial management of companies, and the affairs of persons under legal disability (eg: minors and mentally disordered persons).
The legal practitioners in Republic can be divided in advocates (mainly appear in the Constitutional Court, the Supreme Court of Appeal and the High Courts) and attorneys (give assistance in all sorts of non-litigious matters, like drawing up contracts and wills, and practice in the magistrates courts). * Magistrates courts: a magistrate has a very limited jurisdiction in comparison with superior courts. A magistrate may not hear any of the matters which fall exclusively within the jurisdiction of the superior courts.
The clerk in the magistrates courts is +/- the same as the Registrar in the superior courts, and the same happens to the sheriff (previously messenger). The doctrine of Stare Decisis: Judges make decisions in the same way their ancient predecessors did, according to the principle of stare decisis. This principle (let the decision stand) allows a court to rely on the rules of law applied in previous decisions when deciding a similar case. It serves as an instrument of stability in the legal system.
It helps ensure consistency by its reliance on long-accepted legal principles and well-established rules. Interpretation of Statutes: Statutory interpretation is used when the meaning in law of an Act of Parliament or another piece of legislation must be determined. Various 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 surround it are objectively researched to determine the purpose of the legislation.
The relationship between the stare decisis rule and the interpretation of statutes: A study of the stare decisis rule shows that one of the sources of law is the decisions of the judiciary on what the law is. So, an interpretation by a court determining the meaning of piece of legislation, in conjunction with the precedent system, means that other courts are bound (likely to happen) by that legislation as interpreted by the court, until a superior court places a different interpretation on the legislation piece.
This does not mean that the courts determine statute law, because their function is to interpret and apply a statute without altering its provisions. However, means that a lower court applies a higher court’s interpretation of the wording of an Act. The influence of the Constitution on the interpretation of statutes: The Constitution is the fundamental and supreme law of the country, and any statute that conflicts with it can be declared invalid. The Const. also sets out guidelines for interpreting statutes, in other words, to see if they conflict or not with the Const.
Section 39 (1) states that, when interpreting the Bill of Rights, a court must promote the values that causes an open and democratic society based on human dignity, equality and freedom and must consider international law and foreign law. Courts must look outside the words of a specific statute when trying to determine its purpose and meaning and the values and norms by which the Constitution is based must be taken into account. Section 39 (2) says that, when interpreting any legislation, a court must promote the spirit, purpose and objects of the Bill of Rights.
When interpreting any legislation, courts must prefer any reasonable interpretation that is consistent with international law over any other inconsistent. General principles: 2 other important principles when interpreting legislation are: a) The meaning of a provision must be determined by its language and context; b) Any reasonable interpretation of a provision, consistent with the purpose and scope of that legislation must be preferred over any other that is inconsistent. Court Judgments: * Ratio decidendi: is the most important part of a judgment.
It means ‘the reason for the decision’ and it is the ratio decidendi of a case in which is binding and which is the subject of the doctrine of stare decisis. As indicated the actual parties to the case are bound by the decision. But if entirely different parties involved in a similar set of facts come before the courts, the courts will follow the previous decision and its ratio decidendi. In other words, when it is said that a decision is binding, it does not mean that every sentence said by the judge in deciding the case must be considered as imposing a rule of law.
The 1st step is to determine the material facts on which the judge based the decision. After that, the ratio decidendi, the conclusion reached by the judge on these material facts is done. * Obiter dictum: The ratio decidendi is binding on subsequent courts. Any statement which falls outside the ratio decidendi is known as an obiter dictum or incidental remark. It may be encountered when the principle of the case is formulated by the judge more broadly than is necessary to cover the facts, when the judge makes an incidental remark, postulates and answers a hypothetical question, raises a similar case or gives an llustration.
Any remark which is irrelevant to the conclusion of the dispute is obiter, does not form part of the ratio decidendi and is not binding on subsequent courts because it cannot be ascertained whether this particular point was properly argued and whether its fully implications were properly considered. The reasons given by a judge in a minority judgment are obiter, since they are not an essential link in the process which leads to the ultimate conclusion.
Any obiter dictum may have strong persuasive authority. When an obiter dictum is applied by a later court, it becomes the ratio decidendi of the later decision and becomes binding. * Distinguishing: A judge distinguishes one case from another by deciding that the ratio decidendi of a previous decision is not binding on the case before him/her and therefore that the ratio decidendi of the 1st case does not apply. It is a technique used by a judge to avoid the binding force of an earlier ratio decidendi.
This may be done in various ways: a) the later court can think that the earlier court formulated a principle too broadly, the consequences are unacceptable and the facts of the later case are not covered by the principle; b) the later court may find that the earlier court did not take enough account of a fact which would have led to a different ratio decidendi, and for this reason may not follow the earlier decision; c) the later court may accept the earlier case or find a fact on that case that is missing from the later case, therefore, the 2 cases would not be identical.
It is only when 2 cases are identical regarding the material facts that is impossible to distinguish one from another. Glossary of terms: * Fly-note: a resume of the case. What the case is about? * Head-note: summary of the idea of the judgment, material facts, principle applied, and what was decided. * Type of case: ‘Semble’ means that appears to be the case, although the point has not been settled, because it is obiter or because there is strong authority against it. Aliter’ means otherwise and says that the decision would be different if the facts mentioned were either added or fell away. * Followed or applied: with a reference to the name of a decision, means that that discussion was followed with or without a discussion. * Confirmed: the case mentioned was accepted as good authority by a court which could have remove it.
Approved: the court accepted the other judgment as good authority. Dissented from: indicates that a court without the power to reject the earlier decision, regarded it as incorrect. * Not followed: a court decided not to follow a decision. * Reversed: an appeal has succeeded. * Distinguished: a court which would otherwise have been bound by a previous decision has in some way or other distinguished it, and therefore has not followed it. * Compared and discussed/referred to: the court brought in another decision by way of analogy, without necessarily expressing an opinion on its correctness.
The purpose of legal science: Is the study and evaluation of the family relationships, and relationships between consumer and trader, employer and employee, citizen and state… This is done by the delimitation and classification of rules relating to a particular aspect. The meaning of right: Is any right which a legal subject has regarding a specific legal object and which is protected by law.