Commercial Law - The South African Legal System

Flashcards reviewing the history, sources, courts, legal concepts, and various contracts within the South African legal system, based on lecture notes for CLA1503.

Is South African law codified?

SA law is drawn from various sources such as statutes, decided cases, Roman law, and Roman-Dutch law.

What is the origin of Roman-Dutch law in South Africa?

Brought to South Africa by Van Riebeeck.

What milestone influenced the development of SA law?

1910 - Establishment of Union Parliament and Appellate Division.

What is the principle source of SA law?

Statute law and decided cases.

What was the codification known as Corpus Iuris Civilis?

An attempt to codify Roman law, resulting in the Corpus Iuris Civilis in the sixth century.

What is the most important source of law in SA?

Constitution of the Republic of South Africa 1996.

What are First Generation Rights according to the Bill of Rights?

Equality, human dignity, life, freedoms of person.

What are Second Generation Rights according to the Bill of Rights?

Housing, healthcare, food, water, social security, education.

What requirements must be met before a customary rule recognized as legal rule?

Reasonable, existed for a long time, recognized and observed by community, certain and clear contents.

What are the superior courts in South Africa?

Constitutional Court, Supreme Court of Appeal, and High Court.

What are examples of lower courts in South Africa?

Magistrates court, small claims court, courts of black chiefs, headman.

What is the responsibility of a registrar in each of the superior courts

Issue of process, enrolment of cases, issuing of order.

What is the responsibility of number of sheriffs appointed in each of divisions

Serve process, execute judgments and orders of court.

What constitutes the administrative and quasi-judicial functions of a Master?

Deceased and insolvent estates, liquidation and judicial management of companies, affairs of persons under legal disability.

In which courts are advocates able to represent individuals?

Appear in Constitutional Court, Supreme Court of Appeal, High Court

Is it the judge's function to make new law?

A function of judge is to state, interpret and apply existing law but not make new law.

How do courts adhere to decisions of the superior court within its area of jurisdiction?

Every court is bound by the decisions of the superior court within its area of jurisdiction, unless the decision of the superior court is based on so obvious an error.

What is the ratio decidendi?

The reason for the decision.

What is the obiter dictum?

Any statement falling outside of ratio decidendi – incidental remark.

How is the term 'Law' defined?

System of roles which apply in a community.

What is public law?

Legal rules controlling relationships between state and citizens.

What is private law?

Legal rules controlling relationships between citizens dealing with each other.

What are some examples of juristic persons?

Company, university, municipality, the state.

What are common examples of a Legal object?

Property, intellectual property, aspects of personality, and performances.

What is a real right?

Right which a legal subject has to property.

What is a Mortgage or pledge?

They confer on their holder (creditor) the right of security in respect of the property.

What is the law of personality?

Physical being, their dignity and their reputation.

What is the law of property?

Relationships of persons towards material objects.

What can the real right of ownership allow a person to do?

Use property, enjoy it, destroy it, sell it

Who is the servient tenement?

Owner who permits the servitude.

Who is the dominant tenement?

Makes use of the servitude.

When a person dies and leaves behind a deceased estate, who is responsible for administrating their estate?

The estate is administered by one or more executors under letters of executorship granted by Master.

What is regarded as an obligation when a personal right comes into existence between legal subjects

The relationship between the legal subjects

What is a contract?

An agreement concluded between by or more persons with the serious intention of creating legally enforceable obligations

What is an important statute for freedom to contract?

The Constitution of Republic of SA 1996, The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2002.

What must occur for consensus to be reached?

Serious intention to be contractually bound, common intention, every party declares their intention.

What is an offer?

declaration made by a person (offeror) in which he indicates and intention to be contractually bound by the mere acceptance of the offer, and in which he sets out the rights and duties he wishes to create.

What is an acceptance?

a declaration by the offeree through which it is indicated that he agrees to the terms exactly as put in the offer.

When does an offer fall away?

Offer stipulates the time period, offeror revokes, oferee makes a counter offer, offeror or oferee dies before offer accepted

What is an invitation to make an offer?

A request or invite to make an offer or do business ie an advert or display.

When does the information or ascertainment theory occur?

Comes into being when and where the offeror learns of the acceptance of his offer.

When is an electronic data message deemed to be receieved?

Enters the info system and no need for acknowledgement.

What are the two main divisions of law, even though they sometimes overlap each other?

Most important division is between public and private law, although there is an overlap between the two

What should be proven to render a contact void?

It is accepted that despite the lack of consensus the parties will be held to their declarations of intention unless the circumstances are such that the mistake is reasonable.

What can improperly obtained consesus lead to?

Conclude contract under duress or improper influences.

What is a misrepresentation?

untrue statement or representation concerning an existing fact or state of affairs which is made by one party to the contract with the aim, and result, of inducing the other party into concluding the contract.

What constitutes a negligent misrepresentation?

Made negligently and with the aim of inducing a contract

Does misrepresentation cancel consensus between parties?

Misrepresentation does not exclude consensus between the parties and the contract is therefore not void. It does cause the contract to be voidable since it is regarded as improper to obtain consensus in this manner.

What is duress?

An unlawful threat of harm or injury.

What is undue influence?

Any improper or unfair conduct by one of the contracting parties by means of which the other contracting party is persuaded to conclude a contract with the former, contrary to their independent will.

What is a requirement for the validity of a contract?

That the parties must have capacity to perform juristic acts.

Why might natural persons lack legal capacity?

A person can be incapable of performing juristic acts or his capacity can be limits due to age, marriage, mental deficiency, and other factors

Which act defines the age bands?

The Children’s Act 38 of 2005

What is the capacity to act for Minors under the age of 7 years old?

no capacity to act and cannot conclude a contract.

What is the capacity to act for Minors over the age of 7 years old?

Can perform juristic acts with assistance of guardian or prior authorization or subsequent ratification

Can a minor conclude contracts without assistance?

Cannot conclude contracts without assistance, namely, contracts which right but no duties are acquired.

What occurs when the guardians and the master of the high court, consent to the alienation or mortgaging of immovable property belonging to the minor if the value of the property is less than R100 000?

Guardians and the master of the high court must consent.

What constitutes tacit emancipation?

This is where the guardian allows the minor to lead an economically independent existence but Guardian’s permission is still required for certain transactions.

What occurs if a contract is entered into without the necessary assistance of the guardian?

Not enforceable against the minor, not even after the minor has obtained majority. The minor does not incur liabilities towards the other party but the other party incurs liabilities towards the minor

Contracting party accepts absolute responsibility for proper performance relating to the absence of defects in the warrantor’s product or service

Warranties