Introduction to law Business & Commercial Law 2014 Law for Tourism 2014 Media Law 2014 Corporate Law 2014 Introduction to law

Outcomes Understand the origins & sources of our law Understand the doctrine of Stare Decisis Understand the hierarchy & functioning of our courts Be able to discuss alternative dispute resolution

What is law? A set of rules Different types of rules Social, moral, religious etc The law is a set of legal rules Is however influenced by the social, moral and religious rules of that particular society

Law (a simple definition) Law is a set of rules governing human conduct, recognised as binding by people and enforced by the State

Division of law Substantive Law Adjective Law The context & meaning of laws How the substantive law is enforced The Law Public Law Private Law Public International Law Law of Persons Constitutional Law Family Law Administrative Law Property Law Criminal Law & Procedure Law of Succession Civil Law & Procedure Immaterial Property Law Law of Evidence Law of Delict

The SA Legal System Origins of our law Our law is based on Roman-Dutch Law and is also influenced by Roman Law & English Law

The Sources of our Law Legislation (Acts or statutory law) Common Law The Constitution Common Law Judicial Precedent ( Stare Decisis) Customary Law Old Authorities Foreign Law & Textbooks etc (persuasive)

Example – Consumer Protection Act 68 of 2008

The concept of Stare Decisis Courts are bound by their previous decisions & by the previous decisions of higher courts All courts bound by SCA High Courts bound by previous decisions in that division (unless convinced decision was wrong) Mag Courts bound by all High Court decisions in division

Ratio vs Obiter Ratio decidendi Obiter dictum The reason for the Courts decision Is binding Obiter dictum By the way – incidental & therefore not binding

The Divisions of Power Legislature – makes the law Executive – implements & enforces the law Judiciary – interprets the law & determines disputes

The Magistrates’ Courts Court System Constitutional Court Supreme Court of Appeal The High Court Provincial & Local Divisions Specialised Courts The Magistrates’ Courts Regional Courts District Courts Small Claims Court

Civil Procedure Civil procedure provides the rules for civil matters in the Courts Litigation commences by way of either an application or an action procedure

Action Procedure Summons Appearance to defend Request for further particulars Reply Plea (& counterclaim) Discovery Trial Judgment Appeal Execution

Application Procedure Notice of Motion with Founding Affidavit Answering Affidavit Replying Affidavit

Criminal Procedure Complaint laid at SAPS Arrest & charged Bail Plea Trial Verdict Evidence in mitigation / aggravation Sentencing Appeal

The problems with the Court system Adversarial Time consuming Costly

Alternative Dispute Resolution Negotiation Mediation Arbitration

The Law of Contract A contract “can be described as an agreement concluded by two or more persons with the serious intention of creating legally enforceable obligations”. Havenga (2010)

Requirements of a valid contract Consensus Capacity to Act Legality Possibility of Performance Formalities