Unit 12 Common Law (jurisprudence)

When does common law apply?

• When a specific matter is not governed by legislation, the common law usually applies

• If an applicable case law precedent does not exist

• the existing precedent is incorrect

• there is general uncertainty regarding common law matter

• Common law is 17th and 18th century Roman Dutch law imposed on the cape

• Primary source of law and basis of modern south African law

• Many of the legal principles that we know today stem from the common law (murder, robbery, crime, theft, compensation for damages etc)

• These principles do not have their origin in modern legislation but rather common law.

Why is it necessary to develop the common law?

Case study → the Masiya case 2007

• Mr Masiya charged with raping 9 year old

• Pled not guilty - anally penetrated her, convicted of indecent assault in the Regional Court

• Common law definition of rape did not include anal penetration

• constitutional court broadened the definition of rape to include anal penetration of females

Common Law and the Constitution

S2 - constitution is supreme law of SA and any law inconsistent is invalid

S 8(3) - a court, in order to give effect to a right in the BOR must apply or if necessary develop the common law to give effect to that right.

S39(2) - when developing the common law, a court must promote the spirit, purport and objects of the BOR.

S39(3) - The bill of rights does not deny the existence of other rights and freedoms that are recognised or conferred by the common law… to the extent that they are inconsistent with the bill.

s173 - The CC,SCA and HC has the inherent power to develop the common law taking into account the interests of justice.

National Coalition Case

criminalisation of sodomy - two consenting males in private was a crime according to the common law - CC found that this rule infringed the constitutional rights of gay men to equality and privacy, court declared that the offence was invalid (common law was invalidated by the constitution)

Fourie case

common law definition of marriage - union between a man and woman - did not accommodate same sex couples. CC held that the common law definition of marriage discriminated against same sex couples, directed parliament to draft legislation to give effect to the right to equality/remedy the common law.

Khumalo case

common law definition of defamation ( the wrongful and intentional publication of defamatory statements) provides for appropriate weighing of freedom of expression and right to dignity, CC confirmed that the common law complied with the constitution.