Berch 1 - Notes PDF

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Warning: TT: undefined function: 32 Warning: TT: undefined function: 32UNIT 1: HISTORY OF SA LAWHISTORY OF LAW1. Roman Law• Western European legal systems• Rural customs to commercial world-wide systemsa) Period of the kings [735BC – 510BC] Customary Law as the community was primitive and essentiall...

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UNIT 1: HISTORY OF SA LAW HISTORY OF LAW 1. Roman Law Western European legal systems Rural customs to commercial world-wide systems

• • a) b) -

Period of the kings [735BC – 510BC] Customary Law as the community was primitive and essentially rural Republican period [510BC- 27BC] 12 Tables systemised to fulfil the needs of the socially and commercially developing community c) Emperors period [27BC- 284AD] - Development of roman legal system reached its peak d) Post-classical period [284AD-865AD] - Decline of the legal as the empire split into Western and Eastern empires NOTE: Germanic tribes conquered the western empire which lead to a social and economic decline. JUSTINIAN codified the Corpus luris Civilis i. Codex: collection of legislation ii. Digesta: selections from the work of roman jurists iii. Institute: students’ textbook iv. Novellae: collection of legislation promulgated from the codex

2. Roman Dutch Law ▪ ▪

Law of Netherlands + Roman Law = Roman Dutch Law Germanic customary and primitive to rural community, the expansion of trade and commerce required an efficient and sophisticated legal system

3. South-African Law o Roman Dutch law + English law = South-African Law o 4 factors causing the English influence a. English judges and magistrates presided in SA courts b. Local jurists studied in England c. English decisions were applied in SA courts d. SA legislation was modelled on English legislation

LAW

Peremptory [not open to appeal or challenge] Regulatory [serving or intended to regulate something] EG. Constitution •

LEGAL SUBJECT: Entity who in terms of law can be the bearer of rights and duties ▪ Natural: Every human being is recognised as a legal subject ▪

•

Legal right to legal object REAL [effective against world ie. Ownership of property] PERSONAL [wrongful act so claims can be placed] INTELLECTUAL [intellect creations, own thoughts] PERSONALITY [Dignity/Integrity] EG. Right to live

Juristic: Also, a legal subject but in the form of a company

LEGAL OBJECT: Form the object of interest protected by law

SOURCES OF LAW A. CUSTOMS REQUIREMENTS

→ Creates an unwritten legal rule or abolishes an existing one ▪ Reasonable ▪ Existed for a reasonable amount of time ▪ Should be generally recognized in the community ▪ Must be certain and clear B. LEGISLATIONS → Rules laid down by a person or body with authority i. • •

Parliament Highest autonomous legislative authority Constitutional court= Human rights and prohibits unfair discrimination

ii. • •

Provincial Legislation Constitution determines the process to be followed High court = ultra vires [legislation that falls outside of the scope can be declared invalid by them]

iii. •

Subordinate legislative bodies Authority delegated in terms of an act of parliament to a certain body ▪ Fall within authority given to legislators ▪ Be reasonable ▪ Be impartial ▪ Be clear and certain ▪ Be promulgated or published

4 CATEGORIES

Rules to obey Enforced by state

RIGHT

C. COURTS • Primary function is to administer justice and not to create rules of law CRIMINAL CIVIL State prosecutes a legal subject Issue a burden of proof • Prove guilt beyond reasonable doubt Parties • State vs accused E.g. S vs. Kruger Decision • Guilty and sentenced or not guilty

2 Parties litigate to resolve a dispute Issue a burden of proof • Balance of probability Parties • Plaintiff vs defendant • Applicant vs respondent E.g. Stadler vs Hamilton Decision • Grant/Dismiss claim

1. Higher courts i. Constitutional: Highest and deal with constitutional matters, any other matter and make all final decisions on whether a matter is within its jurisdiction ii. Supreme court of appeal: Deal only with appeals, issues concerned with appeals and any other matter that may be referred to it in circumstances defined by an act of parliament iii. High court: Can adjudicate both civil and criminal matters, have jurisdiction over all persons residing, all actions arising and all offences triable within its area of jurisdiction

2. Lower courts i. Magistrates: ▪

District [claims less than R200000/ fine limited to R120000 over 3Y]

▪ Regional [claims less than R400 000/ fine limited to R600000 over 15 years] ii.

Small Claims: ▪ Claims not exceeding R200000, no legal representation and no juristic persons

APPEALS AND PRECEDENTS •

APPEAL: From lower to higher courts are heard in the relevant provincial decision of the High Court. Can have a full bench taken on a judgement made by a single judge. The matter is then heard by three judges in the same high court. From there a party may appeal to the supreme and then the constitutional court will make the final decision

•

PRECEDENT: As soon as a legal principle has been laid down judges of the same court and courts of a lower order who are subordinate to that court must follow this precedent. A decision will only create a precedent if it was laid down as the ratio decidendi opinion, where the court merely gives an opinion it called an obiter dictum and does not create any precedent....