SOUTH AFRICAN LEGAL SYSTEM NOTES

Outline the origin of South African law
Explain the \"stare decisis doctrine\".
Discuss the hierarchy of the court system in South Africa
Understand the sources of South African commercial law, including legislation, common law, and precedent.

South African law is embedded and entrenched in the country's history.
A historical understanding is key to grasping the development of a democratic South Africa in 1994.
Important key terms:
- Legal Pluralism
- Mixed or Hybrid System

South Africa is a diverse society that includes various communities such as:
- Indigenous Africans
- Muslims
- Europeans
- Hindus
This diversity means multiple systems of law are applied, with not all being officially recognized.
Official Law Basis:
- Roman Dutch Law
- English Law
- Customary/Indigenous Law

South African legal system is defined as a mixed or hybrid legal system.
It derives origins from:
- Civil law systems of Europe (Roman-Dutch Law)
- English Common Law
- Indigenous Law
South Africa maintains a singular legal system that includes:
- Indigenous aspect
- Western aspect
- Universal aspect
- Indigenous African Law
- English Law
- Roman-Dutch Law
- Human Rights Law

The history of modern civilization traces back to the Roman Empire.
Early Roman Law:
- Rigid and formal, applicable only to Roman citizens.
Expansion of Roman Empire led to:
- Refinement of legal system, characterized by fairness, flexibility, and less formality.
Classical Period:
- Further legal refinement made Roman law superior to other legal systems.
Post-Classical Period:
- Legal simplification and increased stature for Roman law.
Law Schools in the Roman Empire played a significant role in these developments.

The fall of the Roman Empire in AD 476 did not lead to the disappearance of Roman law.
The Netherlands integrated Roman law, leading to the development of Roman-Dutch Law.
1652: Jan van Riebeeck established a Dutch trading post at the Cape.
Indigenous communities already present were utilizing indigenous legal systems.
Roman-Dutch law was imposed on these communities at the Cape.
Discussion Prompt:
- Choose between:
- A. Roman-Dutch law was imposed at the Cape
- B. Roman-Dutch law was transplanted to the Cape in the seventeenth century.

In 1814, Cape was ceded to Great Britain.
British colonial administration encouraged English law influence; it replaced indigenous legal practices.
English common law was supplemented by Roman-Dutch law, establishing a dual foundation in South African law.
English law was also adopted by the Cape settler community where Roman-Dutch law failed to meet needs.

Customary Law: Defined as customs or usages uniformly observed, reasonable, and established long-term in a community, that a court will uphold.
The Constitution refers to indigenous African law as both customary law and indigenous law.

Must be:
- Reasonable
- Long-established
- Generally recognized and observed
- Certain and clear in content
Also known as trade usage.
Recognition by a court does not elevate the status of a custom beyond its intrinsic authority.

Meaning:
- "Stare decisis" means the decision stands.
A court's decision binds the parties involved unless overturned by a superior court.
The rule itself illustrates how courts create law.

Refers to the reason for the decision or the legal principle applied to the facts of a case.
Provides legal reasoning or rule, forming the basis of the case's decision.

Defined as comments made by a Judge that do not directly affect the outcome of the case, thus lacking binding authority.

The practice of differentiating cases based on significant differences in fact or legal principle.
Example:
- In a car accident case, a previous settlement may not apply due to notable differences in circumstance for a new plaintiff.

Works from old jurists of Holland remain authoritative in today's courts.
This body of law is referred to as common law.
Important works provide insight into the reception of Western European legal principles into the Netherlands.

Regarded as having persuasive authority only in South African law.
Section 39 of the Constitution recognizes foreign law during the interpretation of the Bill of Rights.
Definitions:
- Foreign Law: Legal systems specific to a country.
- International Law: A set of rules governing relations between states.

The South African legal system is influenced by the country's history, primarily through the foundations set by Roman-Dutch Law, English Law, and Customary/Indigenous Law.
The Constitutional Court stands as the highest court for constitutional issues.
Sources of law are categorized into authoritative and persuasive sources.