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ROMAN
LAW
(AUTHORITATIVE)
SOUTH
AFRICAN
LAW
ENGLISH
LAW
(PERSUASIVE)
ROMANDUTCH LAW
(AUTHORITATIVE)
753 BC - AD
568
ROMAN
LAW
CORPUS IURIS
CIVILIS: PRIMARY
AUTHORITATIVE
SOURCE WHEN
REVERTING TO
ROMAN LAW
CODIFICATION:
CORPUS IURIS
CIVLIS (16TH
CENTURY)
15TH &
16TH
CENTURIES
ROMANDUTCH
LAW
1652 JAN
VAN
RIEBEECK CAPE
SOURCE OF
PRESENTDAY SA
LAW
1814:
RECEPTION
OF ENGLISH
LAW
1843:
ENGLISH
SYSTEM OF
ADMIN OF
ESTATES
ENLISH
LAW
1830: ENLISH
LAW OF
EVIDENCE
INTRODUCED
1826: CODE OF
CRIMINAL
PROCEDURE
INTRODUCED
ESTABLISHMENT OF
UNION
PARLIAMENT
PRIVY
COUNCIL:
ABOLISHED
AS HIGHEST
COURT OF
APPEAL (ACT
16 OF 1950)
1910
ESTABLISHMENT OF
APPELLATE
DIVISION
UNIFORM
SYSTEM OF
STATUTE LAW
STATUTE
LAW /
LEGISLATION
TEXTBOOKS
& JOURNALS
CUSTOMARY
LAW
SOURCES OF
LAW (ORDER
CONSULTED)
JUDGMENTS
OF THE
COURTS
FOREIGN
LAW
OLD
AUTHORITIES
LEGISLATION =
MAKING OF
LAW BY
COMPETENT
AUTHORITY
MOST
IMPORTANT
SOURCE OF
LAW TODAY
CONSTITUTION
1658 DUTCH
LAW
IMMOVABLE
PROPERTY
STILL APPLIES
STATUTE LAW
/
LEGISLATION
DUTCH LAW
AFTER 1806:
DOES NOT
APPLY
DUTCH
LEGISLATION
(1652-1806)
ONLY APPLIES
IF NOT
RATIFIED &
ACCEPTED BY
SA LAW
PRE-1652
LEGISLATION =
DUTCH
STATUTE STILL
APPLY
MOST
IMPORTANT
SOURCE OF LAW
IN SA
PREVIOUSLY:
SUPREME
PARLIAMENT
BILL OF RIGHTS
CONSTITUTION
OF RSA 1996
UNITED &
DEMOCRATIC SA
- SOVEREIGN
STATE FAMILY OF
NATIONS
HEAL DIVISIONS OF
PAST: DEMOCRATC
VALUES, SOCIAL
JUSTICE, HUMAN
RIGHTS
IMPROVE
QUALITY OF LIFE
& FREE
POTENTIAL OF
ALL
CORNERSTONE
OF DEMOCRACY
HUMAN DIGNITY,
EQUILITY,
FREEDOM
REGULATES
GOVERNMENT
BILL OF RIGHTS
(CHAPTER 2 OF
CONSTITUTION)
CAN BE LIMITED
IN SPECIAL
CIRCUMSTANCES
2ND-GENERATION
RIGHTS - POSITIVE BASIC NECESSITIES
(HOUSING, HEALTCARE, FOOD,
WATER, SOCIAL
SECURITY,
EDUCATION)
1ST-GENERATION
RIGHTS - NEGATIVE DO NOT TORTURE /
DISCRIMINATE
(EQUALITY, HUMAN
DIGNITY, LIFE,
RELIGION,
EXPRESSION,
MOVEMENT, TRADE)
BINDS 3 BRANCHES
OF GOVERNMENT:
LEGISLATURE,
EXECUTIVE,
JUDICIARY & ALL
ORGANS OF STATE
LAWOF GENERAL
APPLICATION
SPECIAL
CIRCUMSTANCES
LIMITING RIGHTS
TAKE ALL FACTORS INTO
ACCOUNT (NATURE OF
RIGHT, IMPORTANCE OF
RIGHT, IMPORTANCE OF
PURPOSE OF LIMITATION,
RELATION BETWEEN
LIMITATION & PURPOSE,
LESS RESTRICTIVE WAYS?)
REASONABLE &
JUSTIFIABLE IN
DEMOCRATIC
SOCIETY BASED ON
HUMAN DIGNITY,
EQUALITY &
FREEDOM
NATIONAL,
PROVINCIAL,
LOCAL
GOVERNMENT
FINANCIAL
MATTERS OF
STATE
HOW
CONSTITUTION
REGULATES
GOVERNMENT
TRADITIONAL
LEADERS
PUBLIC ADMIN
SECURITY
SERVICES
DOES NOT
CONSIST OF
WRITTEN RULES
REQUIREMENT 4:
CONTENTS MUST
BE CERTAIN &
CLEAR
DEVELOPS FROM
HABITS OF
COMMUNITY
CUSTOMARY
LAW (TRADE
USAGES)
REQUIREMENT 3:
GENERALLY
RECOGNISED &
OBSERVED BY
COMMUNITY
REQUIREMENT 1:
MUST BE
REASONABLE
REQUIREMENT 2:
EXISTED FOR A
LONG TIME
JUDGMENTS OF
DUTCH COURTS
BEFORE 1652
JUDGMENTS OF
CAPE COUNCIL OF
JUSTICE BEFORE
1827
REGULATES
GOVERNMENT
JUDGMENTS
OF THE
COURTS
(CASE LAW)
LOWER COURTS
SUPERIOR
COURTS
JUDGMENTS OF
SA COURTS AFTER
1910
JUDGMENTS OF
COURTS OF 4
PROVINCES
BEFORE 1910
JUDGMENTS OF
DUTCH COURTS
BEFORE 1652
JUDGMENTS OF
CAPE COUNCIL OF
JUSTICE BEFORE
1827
LOWER COURTS
JUDGMENTS
OF THE
COURTS
(CASE LAW)
JUDGMENTS OF
COURTS OF 4
PROVINCES
BEFORE 1910
SUPERIOR COURTS
JUDGMENTS OF SA
COURTS AFTER
1910
CONSTITUTIO-NAL
COURT
SOME JUDGMENTS
OF COURTS OF
NAMIBIA &
ZIMBABWE
SUPERIOR
COURTS
HIGH COURTS
SUPREME COURT
OF APPEAL
REQUIRED TO KEEP
RECORD OF
PROCEEDINGS
LIMITED
JURISDICTION
MAGISTRATES'
COURTS
LOWER
COURTS
DIFFERENT COURTS
OF BLACK CHIEFS &
HEADMEN
SMALL CLAIMS
COURTS
ROMAN LAW
JUDGMENTS OF SA
COURTS AFTER
1910
OLD
AUTHORITIES
(COMMON
LAW)
CORPUS IURIC
CIVILIS DIRECT
SOURCE OF SA LAW
ROMAN-DUTCH
LAW
WRITTED BY
LAWYERS, LEGAL
ACADEMICS,
ADVOCATES,
ATTORNEYS &
JUDGES
TEXTBOOKS
&
JOURNALS
PERSUASIVE
INFLUENCE ON
COURTS
NO AUTHORITY OF
THEIR OWN
CONSTITUTIO-NAL
COURT
MAGISTRATES'
COURTS
SUPREME COURT
OF APPEAL
COURTS
IN TE
REPUBLIC
OFFICERS OF
SUPERIOR COURTS
HIGH COURTS
OTHER COURTS OF
IMPORTANCE IN SA
CONTEXT
CONSITUTIONAL
COURT
SEATED IN
JOHANNESBURG
EXAMPLE: RIGHT TO
DECIDE IF
FUNDAMENTAL
RIGHT HAS BEEN
VIOLATED
COURT OF APPEAL
FOR HIGH COURTS
MAY SIT
ELSEWHERE IF
EXPEDIENT BY
REASON OF
EXCEPTIONAL
CIRCUMSTANCES
SUPREME
COURT OF
APPEAL
SEATED IN
BLOEMFONTEIN
UNLIMITED
JURISDICTION
EXCEPT MATTERS
WITHIN
JURISDICTION OF
CONSTITUTIONAL
COURT
ANY MATTERS
WITHIN AREA OF
JURISDICTION
HIGH
COURTS
CERTAIN
CONSITUTIONAL
MATTERS:
FUNDAMENTAL RIGHT
ENTRANCHED IN
CONSTITUTION WAS
VIOLATED
ONLY JURISDICTION:
DIVORCE, MENTAL
CAPACITY,
SEQUESTRATION,
LIQUIDATION, WILLS
BISHO
BLOEMFONTEIN
(MANGAUNG)
MMTATA
CAPE
TOWN
THOHOYANDOU
PRETORIA
(TSHWANE)
SEATS OF
HIGH
COURTS
DURBAN
GRAHAMSTOWN
PORT ELIZABETH
(NELSON MANDELA
BAY)
JOHANNESBURG
PIETERMARITZBURG
MAFIKENG
KIMBERLEY
SUPREME COURT
(APPEAL) ZIMBAMBE
SEATED IN
WINDHOEK
OTHER
COURTS OF
IMPORANCE
HIGH COURT NAMIBIA
SEATED IN HARARE
SUPREME COURT
(APPEAL) NAMIBIA
REGISTRAR - SUPERIOR
COURTS - ISSUE OF
PROCESS (SUMMONS,
WARRANTS),
ENROLMENT OF
CASES, ISSUING OF
ORDERS,
MAINTENANCE OF
RECORDS
ATTORNEY - MAINLY
MAGISTRATES' COURTS DRAW UP CONTRACTS &
WILLS, NOTARY
(ANTENUPTIAL CONTRACTS,
NOTARIAL DEEDS),
CONVEYANCER (PREPARE
DEEDS OF TRANSFER OF
IMMOVABLE PROPERTY,
CERTIFICATES OF TITLE,
MORTGAGE BONDS, ETC
REGISTRATION AT DEEDS
OFFICE)
ADVOCATED MAINLY
SUPERIOR
COURTS
OFFICERS
OF
SUPERIOR
COURTS
SHERIFFS - HIGH
COURTS - PROCESS
& EXECUTE
JUDGMENTS &
ORDERS
FOUND IN MOST
TOWNS
SHERIFF (PREVIOUSLY
MESSENGER) =
SHERIFF
CLERK = REGISTRAR
LIMITED
JURISDICTION
MAGISTRATES'
COURTS (MOST
IMPORTANT OF
LOWER
COURTS)
JUDGE-MADE LAW:
EFFECT OF JUDICIAL
DECISION WHICH GIVES
NEW INTREPRETATION TO
STATUTORY PROVISION /
ABSTRACTS, EXTENDS /
ADAPTS COMMON-LAW
PRINCIBLE
COURT IS BOUND
BY OWN DECISIONS
UNLESS & UNTIL
OVERRULED BY
SUPERIOR COURT
DOCTRINE
OF STARE
DECISES
LATER COURT
BOUND BY EARLIER
COURT'S DECISION
STARE DECISES =
DECISION STANDS
1 X MAGISTRATE
DOES NOT
FOLLOW
JUDGMENTS OF
OTHER JUDGMENTS OF
MAGISTRATES'
NOT REPORTED
IF JUDGMENTS
OF HIGH
COURTS ARE
CONFLICTING,
FOLLOW HIGH
COURT IN
JURISDICTION
(D)
MAGISTRATES'
COURTS ARE
BOUND BY
DECISIONS OF
SUPERIOR
COURTS
(A) EVERY
COURT IS
BOUND BY
DECISIONS OF
SUPERIOR
COURT WITHIN
AREA OF
JURISDICTION
STARE
DECISIS &
HIERARCHY
OF COURTS
SUPREME
COURT OF
APPEAL BOUND
BY PREVIOUS
JUDGMENTS
(EVEN BENCH OF
5 JUDGES BY
BENCH OF 3)
PARLIAMENT
MAKES LAW WHILE
JUDICIARY APPLIES
THEM
SECTION 233 OF
CONSTITUTION: WHEN
INTERPREING ANY
LEGISLATION, EVERY COURT
MUST PRFER ANY
REASONABLE
INTERPRETATION THAT IS
CONSISTEND WITH
INTERNATIONAL LAW OVER
ANY ALTERNATIVE &
INCONSISTENT
INTERPRETATION
SECTION 39(2) OF
CONSTITUTION: WHEN
INTERPRETING ANY
LEGISLTATION, COURT
MUST PROMOTE SPIRIT,
PURPORT & OBJETS OF
BILL OF RIGHTS
BEFORE
CONSTITUTION:
INTERPRETATION
ACT 33 OF 1957 &
RULES & PRINCIPLES
FROM COMMON
LAW
INTERPRETATION
OF STATUTES
MEANING OF
PROVISION MUST BE
DETERMINED BY ITS
LANGUAGE & ITS
CONTEXT IN
LEGISLATION READ
AS A WHOLE
2 MOST
IMPORTANT
OTHER PRINCIPLES
WHEN
INTERPRETING
LEGISLATION
ANY REASONABLE
INTERPRETATION OF A
PROVISION THAT IS
CONSISTENT WITH PURPOSE
& SCOPE OF THAT
LEGISLATION MUST BE
PREFERRED OVER ANY
ALTERNATIVE
INTERPRETATION THAT IS
INCONSISTENT WITH
PURPOSE & SCOPE
APPLIES TO
INTERPRETATION
OF EVERY LAW
GENERAL
DEFINITIONS OF
FREQUENTLY
USED TERMS IN
LEGISLATION
COMMENCEMENT
& REPEAL OF
LEGISLTATION
INTERPRETATION
ACT 33 OF 1957
RULES ABOUT
GENDER
(MASCULINE
INCLUDES
FEMININE)
MEASUREMETNS
OF DISTANCE
CALCULATION OF
TIME
NUMBERING
RATIO DECIDENDI
TYPICAL ASPECTS
OF A JUDGMENT
COURT
JUDGMENTS
DISTINGUISHING
OBITER DICTUM
MOST
IMPORTANT
PART OF
JUDGMENT
BINDING ON
SUBSEQUENT
COURTS
RATIO
DECIDENDI =
CONCLUSION
REACHED BY
JUDGE BASED
ON MATERIAL
FACTS
1ST STEP IS TO
DETERMINE
MATERIAL FACTS
ON WHICH
JUDGE BASED
DECISION
"REASON FOR
THE DECISION"
RATIO
DECIDENDI
BINDING
SUBJECT OF
DOCTRINE OF
STARE DECISIS
SIMILAR FACTS
- WILL FOLLOW
PREVIOUS
DECISION &
RATIO
DECIDENDI
ANY STATEMENT
WHICH FALL
OUTSIDE RATIO
DECIDENDI
OBITER DICTUM =
INCIDENTAL
REMARK
OBITER
DICTUM
ENCOUNTERED WHEN:
PRINCIPLE OF CASE
FORMULATED MORE
BROADLY BY JUDGE; JUDGE
MAKES INCIDENTAL REMARK,
POSTULATES & ANSWERS
HYPOTHETICAL QUESTION,
RAISES ANALOGOUS CASE /
GIVES ILLUSTRATION
NOT BINDING
ANY REMARK
IRRELEVENT TO
IMMEDIATE
SETTLING OF
DISPUTE = OBITER
(BY THE WAY)
TECHNIQUE USED
BY JUDGE TO AVOID
BINDING FORCE OF
EARLIER RATIO
DECIDENDI
MAY ENCOURNTER A
MATERIAL FACT, NOT
PRESENT IN EARLIER
CASE
EARLIER COURT
FORMULATED
PRINCIPLE TO
BROADLY
DISTINGUISHING
CONSEQUENCES ARE
UNACCEPTABLE
POSTEA =
AFTERWARDS
APPLICANT,
CLAIMANT /
APPELLANT 1ST MENTION
V=
VERSUS =
AGAINST
DEFENDENT /
RESPONDENT
AFTER V
TYPICAL
ASPECTS
OF
JUDGMENT
ALITER =
OTHERWISE
2006 (6) =
6TH PART
OF 2006
LAW
REPORTS
SEMBLE =
APPEART TO
BE
ACCORDING
TO JUDMENT
SA = SA
LAW
REPORTS
SC = SENIOR
CONSULTUS
= SENIOR
COUNSEL
SCA =
SUPREME
COURT OF
APPEAL
208 = PAGE
NUMBER
ON WHICH
CASE
REPORTED