Unit 1 – The South African Legal System Advocate Samuels BUSINESS LAW

Sources of law Constitution Section 2 – Constitution od the supreme law of South Africa, any law, custom or common law inconsistent with the Constitution is invalid Considered to be an authoritative source Legislation Binding rules passed by a competent authority, such as Parliament, provincial governments and municipalities Considered to be an authoritative source Customary law Social practices and customs which had been developed over the ages and are observed by society and passed down from generation to generation Considered to be an authoritative source Judgments of Courts Known as judicial precedent Decisions of superior courts bind lower courts (Stare decisis) Considered to be an authoritative source

Old authorities A variety of sources form our common law These sources are: Roman law; Roman-Dutch law and English law Considered to be an authoritative source Foreign law The law of other countries which may be considered by our courts for guidance and is only of persuasive value Textbooks and Law journals By a variety of legal experts (advocates, attorneys, academics) are considered to be persuasive

COURT STRUCTURE Provided for in S166 of the Constitution: SUPERIOR / UPPER COURTS Constitutional Court Supreme Court of Appeal High Courts (including any high court of appeals established by an Act of Parliament) INFERIOR / LOWER COURTS Magistrates’ Courts and Any other court established by an Act of Parliament with a status similar to the High Courts or the Magistrates’ Courts 4

GEOGRAPHICAL AREA Each court has jurisdiction within a particular geographical area in the country The Constitutional Court Has jurisdiction over entire geographical area of South Africa Seat in Johannesburg Supreme Court of Appeal Has jurisdiction within entire geographical area of South Africa Seat in Bloemfontein High Courts Provincial and Local divisions Concurrent jurisdiction within that area Circuit courts? Lower Courts (Magistrates’ Courts) Regional and District 5

HOW DO YOU DETERMINE THE CORRECT COURT IN WHICH A SPECIFIC CASE WILL BE HEARD? General principle: distinguish between 2 areas of competency: Hear appeals and review cases Function as a court of first instance JURISDICTION The competence of a particular court to hear a specific matter / case Jurisdiction - influenced by three factors Geographical area Type of matter being heard Amount of compensation / punishment 6

TYPE OF CASE AND AMOUNT OF COMPENSATION OR PUNISHMENT Distinction between criminal, civil and constitutional matters Criminal - court’s jurisdiction determined by : kind of offence and possible sentence Civil - jurisdiction determined by: amount claimed the nature of the relief sought Constitutional matters 7

Constitutional Court S167 of the Constitution The highest court in all constitutional matters Hears appeals from HC and SCA Presiding officers: Chief Justice, Deputy Chief Justice, + 9 Judges Section 2 Section 39(2) Bill of Rights Rights may be limited

Supreme Court of Appeal S168 of the Constitution Presiding officers: President, Deputy President and judges of appeal Has jurisdiction over the whole geographical area of South Africa Hears all matters, except those in exclusive jurisdiction of CC Functions only as a court of appeal Hears appeals from the High Courts

High Court HC’s jurisdiction as a court of first instance: Criminal matters Can try any criminal offence but in practice only serious offences Can impose sentence of more than 15 years and a fine of R Civil cases If claim exceeds R If claim is specific performance without damages as alternative If matters involves issues of status Constitutional matters May decide any constitutional matter except that which falls within exclusive jurisdiction of the CC Confirmation by the CC of decisions regarding constitutional matters 10

Magistrate’s court - Regional Criminal jurisdiction of MC Can try any criminal offence, but not treason S92 of the MCA – punishment limited to 15 years fine not exceeding R Civil jurisdiction of MC Jurisdiction of Regional Courts Amendment Act 31 of 2008 (effect on 9 August 2010) Civil jurisdiction granted due to access, costs, backlogs of cases Family disputes Disputes over movable and immovable property (R – R ) Credit Agreements (R – R ) Road Accident Fund claims (R – R ) 11

Magistrate’s Court - District Has jurisdiction within a particular magisterial district S170 of the Constitution Does not hear appeals or review cases Criminal matters Has jurisdiction in all criminal matters except treason, murder and rape S92 of MCA – punishment Limited to a sentence of 3 years fine of R Civil cases Can only hear matters where amount of claim is less than R May hear matter where claim is one for specific performance with damages (less than R ) in the alternative If amount exceeds R then parties may Consent in writing to increased jurisdiction of court Consent to the abandonment of the amount exceeding R

Other courts Small claims court Jurisdictions in certain civil matters May not hear matters exceeding R in value Aim: To provide simple, expedient, cost effective legal remedies for uncomplicated, simple matters which can be resolved easily No legal representation Civil Magistrates Courts Jurisdiction in terms of civil claims and civil matters – cannot hear criminal matters Claims not exceeding R May not hear maters relating to the status of an individual e.g insolvency or divorce All matters outside this court = High Court

Doctrine of Stare Decisis Known as ‘judge made law’ Doctrine of precedent – stare decisis Previous court decisions provide reliable guidelines to determine what the law in a similar case would be This means that all decisions binds lower courts and court will be bound by its own decisions in prior matters Decisions are reports in SA Law Reports (Juta and Butterworths) Helps create legal certainty and helps attorneys and clients to predict what a possible outcome of their case may be

Revision exercise List the courts in South Africa and give examples of the types of matters each court may hear. List sources and indicate whether they are authoritative or persuasive Explain the principle of stare decisis Name the most important piece of legislation in South Africa