SU1: History of South African Law

Question 1

What 3 periods are SA legal history divided into?

Answer 1

1. Roman Law
2. Roman Dutch Law
3. SA Law

Question 2

What 4 categories are Roman Law divided into?

Answer 2

1. Period of the Kings
2. Republican Period
3. Period of the Emperors
4. Post-Classical Period

Question 3

1.When was the Period of the Kings and
2. what was significant about it?

Answer 3

1. 753BC- 510BC
2. Primitive community: legal rules consisted mainly of customs.

Question 4

1. When was the Republican Period and
2. what was significant about it?

Answer 4

1. 510BC- 27BC
2. Roman Law written in the form of Twelve Tables: developed rapidly and had to be systemised to fulfil socially and commercially developing community.

Question 5

1. When was the Period of the Emperors and
2. why was it significant?

Answer 5

1. 27BC - 284AD
2. Development of Roman Law reached its peak.

Question 6

1. When was the Post-Classical Period and
2. what was significant about it?

Answer 6

1. 284AD - 565AD
2. Decline of legal system: Roman empire was divided into Western and Eastern empires.

Question 7

What is the codification of Roman Law

Answer 7

Corpus luris Civilis

Question 8

What did Corpus luris Civilis consisted out of?

Answer 8

a)the Codex:a collection of legislation
b) the Digesta:selections from the works of Roman jurists
c) the Institutes: a textbook for students
d) the Novellae: collection of the legislation promulgated after the completion of Codex

Question 9

What does Roman-Dutch Law consist out of?

Answer 9

Law of Netherlands and Roman Law

Question 10

Roman-Dutch = SA common law: what 4 factors caused the English Law to have an influence on SA law?

Answer 10

1. English judges and magistrates presided in the South African courts
2. Local jurists studied in England
3. English decisions were applied by the South African courts
4. South African legislation was modelled on English legislation

Question 11

What is the main differences between Laws vs Rights?

Answer 11

• Laws are: rules to obey, enforced by the State, Peremptory or regulatory
• Rights are: legally protected interest enforceable against everyone

Question 12

A right can be described as the legally protected interest of:

The two types:

Answer 12

1. legal subject
2. legal object

Question 13

Define legal subject.

Answer 13

An entity who, in terms of law, can be the bearer of rights and duties.

Question 14

Name the two categories that a legal subject can be divided into

Answer 14

1. Natural persons: every human being
2. Juristic persons: companies

Question 15

Define legal object

Answer 15

That which forms part of an interest (right) protected by law

Question 16

Name the 4 categories legal rights are divided into

Answer 16

1. Real rights: ownership
2. Personal Rights: claim performance (created by contract)
3. Intellectual Property Rights: right of person to creation of his/her mind/intellect (copyright, trademarks)
4. Personality Rights: right of a person to aspects of his/her personality (dignity, honour)

Question 17

Name the 3 sources of Law:

Answer 17

1. Customs
2. Legislation
3. Court Decisions

Question 18

What four requirements does a custom have to meet before it can be recognised as an enforceable legal rule?

Answer 18

1. Reasonable
2. Existed for a reasonably long time
3. Be generally recognised in the community
4. It must be certain and clear

Question 19

Name the 3 bodies with legislative authority in South Africa

Answer 19

1. Parliament
2. Provincial legislation
3. Subordinate Legislative Bodies

Question 20

Briefly explain what the Parliament in SA Law entails

Answer 20

-Consists out of National Assembly and National Council of Provinces.
-No court of law could declare any Act invalid: Constitution changed that dramatically.
-Constitution provides for so-called fundamental/human rights + prohibits unfair discrimination.
-Constitutional Court may declare legislation
-Parliament is empowered to legislate on issues that are delegated to provincial legislators.

Question 21

Briefly explain what the Provincial Legislation in SA Law entails

Answer 21

-Each one of the nine provinces has power to legislation on: local government, health matters, tourism.
-Provincial legislation that falls outside scope conferred on provincial legislators (ultra vires): can be declared invalid by High Court.

Question 22

Briefly explain what the Subordinate Legislative Bodies in SA Law entails

Answer 22

Delegated in terms of an Act of Parliament to certain person/body of persons

Question 23

What five requirements should subordinate legislation meet to be valid and binding in community?

Answer 23

a) fall within authority given to specific subordinate legislator (otherwise ultra vires)
b) reasonable
c) unbiased
d) clear and certain
e) published

Question 24

Describe the Civil Court (High Court)

Answer 24

1. 2 parties litigate to resolve dispute
2. Burden of proof: balance of probabilities
3. Parties- Plaintiff v Defendant
   - Applicant v Respondent
4. Decision: Grant/dismiss claim, application, interdict

Question 25

Describe the Criminal Court (High Court)

Answer 25

1. State prosecutes a legal subject for crime 2. Burden of Proof: State must prove guilt beyond reasonable doubt 3. Parties: state v accused 4. Decision: guilty+ sentenced/ not guilty

Question 26

Name and briefly explain the three Higher Courts

Answer 26

1. Constitutional Court: highest authority on all matters+ makes final decision of whether matter is within its jurisdiction. 2. Supreme Court of Appeal: highest court for all other matters; may only decide appeals, issues connected with appeals, other matters that may be referred to in circumstances defined by Act of Parliament. 3. High Court: 14 seats

Question 27

Name and explain the two Lower Courts

Answer 27

1. Magistrates Courts: - District Courts R400 000/

Question 28

In what court are Appeals heard?

Answer 28

From lower court - relevant provincial division of the High Court (full bench of same HC) - 3 judges in same HC - party may appeal to SC of Appeal; The Constitutional Court is final court of appeal in all matters.

Question 29

Who is effected by doctrine of precedent (stare decisis) applied in SA?

Answer 29

1. judges of the same court, 2. courts of lower order who are subordinate to that court have to follow this precedent

Question 30

When will a decision create a precedent?

Answer 30

If it was laid down as ratio decidendi (reason specific)

Question 31

What is it called when the court merely gives its opinion or makes a passing remark?

Answer 31

Obiter dictum- it does not create a precedent

Question 32

What is the effect of the doctrine of precedent? What courts follow what decisions?

Answer 32

1. Constitutional Court 2. Supreme Court of Appeal: own decisions and those handed down by CC 3. High Court - Full bench decision - Single judge 4. Magistrates' Court- not bound by own decisions

Question 33

Describe the Barkhuizen v Napier 2007 5 SA 323 (CC)

Answer 33

Barkhuizen: plaintiff/appellant Napier: defendant/respondent 2007: reported in 2007 law reports Volume 5 SA: reported in SA Law reports Page 323 Constitutional Court