LEARNING UNIT 1: INTRODUCTION TO SOUTH AFRICAN LAW AND THE LAW OF CONTRACT

OBJECTIVES: Understand the concept and purpose of law Be able to explain the distinction between real and personal rights Understand how ownership is affected in movables and immovables Understand the distinction between public law and private law Explain the various sources of SA law Describe the SA court structure Explain the difference between litigation, arbitration and mediation

CONCEPT OF LAW •There is no comprehensive definition for “law” but it may be described as a social science which regulates society and which provides for the changing needs of society •“LAW” = a body of rules which govern human conduct and is recognized as binding by people and it is enforced by the State. •How is this different from any other form of social control? It is the authority of the State and the State’s ability to impose the law by force. •“Law” // “right” •“RIGHT” = any right which a legal subject has regarding a legal object which is protected by law • any entitlement a legal subject has regarding a specific legal object or against another legal subject •Entitles one party to claim performance and the other to perform a duty •2 types of “rights” 1. Real rights 2. Personal rights

BUT FIRST… WHERE DOES THE LAW COME FROM?

SOURCES OF SA LAW

1. LEGISLATION = law made by a competent body Important source of law in SA Enacted by parliament, provincial legislatures and local government (President, Ministers and Municipalities): •Acts of Parliament; •Provincial Acts; •Proclamations; •Regulations; •Ordinances; and •By- laws

Types of legislation

Constitution MOST IMPORTANT LEGAL DOCUMENT IN SA! •System of constitutional supremacy. Meaning that? •Bill of Rights (BoR) is the cornerstone of the SA democracy •Binds the 3 branches of government (legislative, executive and judicial) and all organs of state. •The State must respect, protect and promote the values in the BoR •Contains generations or rights. •Rights may only be limited ito section 36 which requires: 1. A law of general application 2. Reasonable and justifiable in an open and democratic society based on human dignity,

equality and freedom. 3. Take into account all relevant factors including less restrictive means to achieve the same goal

2. COMMON LAW •SA law has a hybrid system of law because it consists of both Roman- Dutch Law and English Law (together = common law)

Roman Law •Early on, largely based on religious customs and the father’s will (pater familias) •Law of the twelve tables (449 BC): consolidated customary law at that point •Gaius (famous jurist): Institutiones •Under Emperor Justinian (+/- AD 291) Roman law was CODIFIED in the Corpus Iuris Civilis. (still referred to in SA law today!)

•Empire fell but Roman law stayed in force as 1) everyone was treated according to this law and 2) canon law was based on Roman law and the church was very influential in this time. •Glossators were started in Bologna (Italy) and revived interest in Roman Law •When Roman Law was received in Holland it mixed with the existing Dutch Law (customary law)

Roman- Dutch Law •Hugo de Groot (Grotius): Inleidinge tot de Hollandsche Rechts- Geleertheid and De Jure Belli ad Pacis •Johannes Voet: Commentarius ad Pandectas •These works are still very important is SA law today

•In 1652, Jan van Riebeeck brought Roman- Dutch Law to SA. •There were some problems and in 1814 when the Cape became a British colony, reception of English law was encouraged

English Law •Code of criminal procedure (1826) •Law of evidence (1830) •Administration of estates (1843)

3. CASE LAW/ JUDICIAL PRECEDENT •All judgements form part of the greater body of law in SA and are important •= doctrine of stare decisis (the judgement stands) •Courts are bound to follow the decisions made in pervious cases and lower courts are bound by the decisions of higher courts. Sometimes referred to as “judge made law” •Ratio decidendi is the part of a judgement which become binding (becomes stare decisis)

4. JUDICIAL INTERPRETATION OF STATUTES •Legislation may sometimes be vague/ ambiguous or may impact on a constitutional right •Courts must then “find” the true intention of the legislature (Parliament) •Interpret the Act in accordance with this intention AND in a manner which promotes the spirit, purpose and objects of the BoR •According to rules of interpretation

5. COMMENTARIES •Authoritative sources of law // persuasive sources of law •Persuasive are those to which a court may refer where the authoritative sources have lacuna •Courts are not bound •Include: 1. Modern academic legal writings (the works of Roman- Dutch jurists are however binding) 2. Foreign law (foreign law // international law)

6. CUSTOMARY LAW = customary African law id also binding May not be contrary to public policy Think: ubuntu

Constitution provides that foreign law may be considered in the interpretation of law (section 39) DO NOT confuse with INTERNATIONAL LAW!!! (International law is binding)

7. CUSTOMS •Rules which have become law by usage •Habits are passed from one generation to another and this custom becomes law •Now, where there is a need for a rule, it is simply codified •BUT, customs may still become law •Van Breda v Jacobs: 1. Reasonable 2. Must have existed for a long time 3. Generally recognised and observed by the community 4. Contents are clear and certain

(where a custom is valid it is seen as law but is not given more power or force)

Customary law may play a role in business and commercial dealings… (remember this when we get to contracts!!!)

“Law” has various branches… 2 main categories: 1. Public Law = Governs the relationship

between the State and the individual OR the functioning of the State

Eg. Criminal law, constitutional law, administrative law

2. Private Law = Governs the relationship

between individuals themselves

Eg. Business law, the law of delict, contract law

REAL RIGHT Ius in rem

•Right over an object (“thing”) •Protectable and enforceable against everyone (another individual legal subject/ a group of legal subjects/ State) •Most NB: right to OWENERSHIP •Other real rights: 1. Use (eg. Lease) 2. Possess (eg. Pledge) •Real rights may be transferred from one legal subject to another: 1. Transfer by delivery 2. Transfer by registration (Depends on the type of legal object which is being transferred)

Rights over an object of another person

PERSONAL RIGHT Ius in personam

•Right over a specific person •Enforceable against that person only Created by 1. Contract (an agreement between

parties); 2. Delic (non- criminal wrongdoing by

one person to another); and 3. Unjustified enrichment (one person

is unfairly enriched at the cost of another)

• Personal rights are transferable from one person to another by a process called cession (cession of rights)

Movable property By delivery •Only movable property may be transferred by delivery- physically moved from one place to another •Must also have the intention of transferring property •If intention lacks, transfer has not transpired Immovable property •By registration of the transfer at the Deeds Office •If not registered, transfer has not transpired in spite of full payment •Includes the land and buildings attached to the land

TRANSEFR OF PROPERTY

STRUCTURE OF SA COURTS

Constitutional Court (CC) •Highest court in SA •Jurisdiction as court of FINAL INSTANCE in matters: interpretation and protection and enforcement of the Constitution •Seated in JHB and has 11 judges on the bench (including a Chief Justice and Deputy Chief Justice)

Supreme Court of Appeal (SCA) •Hears appeals from the high courts and has unlimited appeal jurisdiction (EXCEPT matters within exclusive jurisdiction of CC) •Highest jurisdiction in respect of geographical territory and matters •NEVER a trial court •Seated in BFN and the bench also included a President and a Deputy President

higher/ superior courts

lower/ inferior courts

High Courts •Original jurisdiction= may hear matters within their area of jurisdiction (area/ monetary) •Act as trial courts AND appeal courts •Exclusive jurisdiction on: divorce, matters affecting status, financial matters such as sequestration and liquidation, validity of a will •May hear criminal and civil cases •Seated in approximately every province (13 in total in SA) and each case is either heard by 1, 2 or 3 judges

Magistrates’ Court •Governed by the Magistrates’ Court Act •Limited jurisdiction compared to higher courts (in both criminal and civil cases) •Divided into Regional or District magistrate’s courts •Seated in almost all towns within SA •Presiding officer is called a Magistrate •Officers are known as clerks

Small Claims Court •Created ito Small Claims Court Act •Created in order to lessen burden on other courts and to resolve disputes quickly and inexpensively •Jurisdiction is limited to claims to the maximum of R7000

Other Courts •specialist courts: Chief’s court Labour court Tax court Equality court

Litigation (page 40- 48) •= taking legal action by way of judicial processes, normally in a court of law

Arbitration (page 48- 50) •= an agreement between the parties to have a dispute decided by one or more arbitrators rather than being decided in a court

LITIGATION, ARBITRATION AND MEDIATION

Differs from litigation: oMay be faster than litigation oConfidential and private oFormalities may be dictated by the parties oTechnical expertise oMore flexible procedure oArbitration award has no precedent value oArbitrating parties must pay the arbitrators fee oArbitration award is not automatically appealable

Mediation (page 51) •= a process in which a neutral person facilitates communication between people in a dispute to assist them in reaching a mutually accepted agreement •Informal process without any legal proceedings

Differs from arbitration: oMediator does not decide the case and have no power to impose the resolution oNo record is made of mediation process

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Litigation Arbitration Mediation

Decision- making authority •Jurisdiction determined by law and circumstances of case •Courts are limited by their jurisdiction

•Parties decide to submit

•Parties choose location •Usually a neutral place

•Dispute resolutor decides to accept or not

Procedure •Open to public •Confidential

•Adversarial •Co –operative

•Process determined by procedural law

•Flexible process

•Fixed procedures •Parties decide the rules •Parties and mediators decide rules

Third party involvement •Judge is pre- appointed • may lack technical knowledge; and •Is disinterested

•Arbitrator selected by parties; •Has expert knowledge; and •Panel may include partial and non- partial members

•Mediator selected by parties; • Process expert (but perhaps not of substance); and • Outsider-neutral or insider- partial

Institution •Permanent •Ad hoc

End of process •Determined by procedure •Win- lose

•Parties may determine end date (fast track) •Win- lose

•When co- operative agreement is reached/ parties decide not to settle •Win- win

Force •Binding (may appeal/ review)

•Final and binding (appeal is exceptional)

•Not binding and no appeal