Professional Documents
Culture Documents
Pre-birth?
Post-death?
In-between?
Nasciturus Fiction
Registration of Births and Deaths Act 1992
Wills Act 1953
Estate Duty Act 1955
MILLIONS OF LAWS IN-BETWEEN!
EG: Income Tax Act 58 of 1962
2. SA LEGAL SYSTEM
Basic Concepts
1. Branches Government
a) Legislature
= Parliament
= Makes Laws
b) Executive
= President; Ministers;
Administration (civil service); police
= Enforce Laws
c) Judiciary
= Courts
= Interprets & Applies Laws
2. State
= territory and its people over which a
government has control eg: RSA
= State v Accused
3. Jurisdiction
= geographic area
= subject-matter
4.Judicial Terms
5. Appeal v Review
= on the merits
= on the process/procedure
6. Civil v Criminal
7. Action v Application
= dispute of fact
= no dispute of fact
8. Attorney v Advocate
SA COURT STRUCTURE
CONSTITUTIONAL COURT
HIGH COURTS
HC HC HC HC HC HC HC HC HC
MAGISTRATES COURTS
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC MC
.etc
A)CONSTITUTIONAL COURT
= Johannesburg
= Constitutional + Public Interest
(NEW)
= Whole SA
= First instance & appeal
Bloemfontein
Civil & Criminal & Constitutional
Whole SA
Appeal only
C) HIGH COURTS
=
=
=
=
D) MAGISTRATES COURTS
= 100s
=Regional + District
= Civil & Criminal
= Local areas (municipalities)
SPECIALIST
COURTS/TRIBUNALS:
Commission for Conciliation,
Mediation
&
Arbitration;
Labour Appeal Court;
Tax
Courts; Water Courts; Land
Claims Tribunal; Competition
Tribunal & Appeal Court;
Rental Housing Tribunal and
more.
NB = Small claims court
Civil claims up to R15000
Magistrates Court
Jurisdiction
LIMITED!
District: Civil & Criminal
Civil: R200 000
Criminal: R120 000 &/or 3
years
Magistrates Court
Jurisdiction
Limited! May NOT hear:
District:
Civil: Sequestration;
Interpretation Wills;
Determination mental capacity;
Divorce.
1. Constitution
2. Legislation
3. Case Law (Judicial
Precedent)
4. Roman-Dutch Law
5. African Customary
Law/Indigenous Law
6. Custom
7. Customary International
Law
SOURCES OF SA LAW
1. CONSTITUTION
= Supreme law
2. LEGISLATION
= 100 000s
= two types
i. Original
ii. Delegated
EG UNCONSTITUTIONAL
CHILD CARE ACT 74 OF 1983
17
Qualifications for adoption
of children
A child may be adopted
(a)
by a husband and his
wife jointly;
(b)
by a widower or widow
or unmarried or divorced person;
(c)
by a married person
whose spouse is the parent of the
child;
(d)
by the natural father of a
child born out of wedlock.
Du Toit v Min Welfare 2003 (CC)
EG ULTRA VIRES
Bezuidenhout v Road Accident
Fund 2003 (SCA)
17.Liability of Fund and agents.(1)The
Fund or an agent shall
(a)subject to this Act, in the case of a claim
for compensation under this section arising
from the driving of a motor vehicle where
the identity of the owner or the driver
thereof has been established;
(b) subject to any regulation made under
section 26, in the case of a claim for
compensation under this section arising from
the driving of a motor vehicle where the
identity of neither the owner nor the
driver thereof has been established,
be obliged to compensate any person for
any loss or damage suffered as a result of any
bodily injury caused by or arising from the
negligence or other wrongful act of the driver
or of the owner of the other motor vehicle
3. Roman-Dutch Law
15-17th C Dutch writers, commenting on old
Roman Law, which was law as applied in
Holland when SA a Dutch colony.
Emperor Justinian
482-562 AD/CE
Johannes Voet
1647-1713
5. Custom
Certain + reasonable + long-established +
uniformally observed.
Van Breda v Jacobs 1921 AD
7. JUDICIAL PRECEDENT
= earlier decisions create binding
precedent because of doctrine stare
decisis (let the decision stand)
Q: are all courts bound by full judgments
of all other courts?
A: NO! Only by ratio decidendi of
higher courts with jurisdiction over
lower court.
a) RATIO DECIDENDI
c) OBITER DICTUM
= Incidental Statements
Court
Date decided
1884
EXAMPLES
Cape High Court decides may kill in
defence of property. One judge.
Who bound?
a)Full bench Cape High Court?
b)Single judge Eastern Cape High Court?
c)Single judge Gauteng High Court?
d)Cape Town magistrate?
e)Gauteng magistrate?
Full bench Eastern Cape High court decides
may not. Who bound?
a)Full bench Cape High Court?
b)Single judge Eastern Cape High Court?
c)Single judge Gauteng High Court?
d)Cape Town magistrate?
e)Gauteng magistrate?
Citation Of Cases:
Jones v Santam Bpk 2005 (2) SA 502
(SCA)
S v Smith 1999 (1) SACR 600 (C)