Unit 12 ( Common Law )

What system of Common Law does South Africa follow?

seventeenth- and eighteenth-century Roman Dutch law.

When is common law applicable.

If a certain matter is not governed by legislation, If applicable case law precedent does not exist, If existing precedent is incorrect, There is general uncertainty regarding common law matter

Why is it important to develop common law.

Masiya anally penetrated a 9 year old, common law definition of rape did not count Anal penetration. As such CC broadened the definition.

What are the vital sections of the constitution when discussing the Common Law of South Africa. 2 → 39(2)

Section 2: Constitutional supremacy. Section 8(3) the court must develop the common law in order to uphold the Bill of Rights, Section 39(2): When developing the common law the court must uphold, promote and protect the objects of the Bill of Rights.

What other vital sections must be promoted with regards to the Constitution and developing the Common Law

Section 39(3): The bill or rights does not deny the rights and freedoms imposed by common law. Section 173: The CC, SCA, HC have the power to develop the common law.