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Business law

Business law. Unit 1 – The South African Legal System Advocate Samuels altonsam@gmail.com. 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

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Business law

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  1. Business law Unit 1 – The South African Legal System Advocate Samuels altonsam@gmail.com

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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 Constitutionalmatters

  8. 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

  9. 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

  10. 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 R300 000 Civil cases • If claim exceeds R100 000 • 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

  11. 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 R300 000 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 (R100 000 – R300 000) • Credit Agreements (R100 000 – R300 000) • Road Accident Fund claims (R100 000 – R300 000)

  12. 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 R60 000 Civil cases • Can only hear matters where amount of claim is less than R 100 000 • May hear matter where claim is one for specific performance with damages (less than R 100 000) in the alternative • If amount exceeds R 100 000 then parties may • Consent in writing to increased jurisdiction of court • Consent to the abandonment of the amount exceeding R100 000

  13. Other courts • Small claims court • Jurisdictions in certain civil matters • May not hear matters exceeding R12 000 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 R100 000 • May not hear maters relating to the status of an individual e.g insolvency or divorce • All matters outside this court = High Court

  14. 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

  15. 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

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