SA Common Law Development

Development of SA Common Law

• South African common law originated from European colonialism
• In 1652, Van Riebeeck of the VOC established a trading post governed by Roman-Dutch law
• Colonization by Britain in 1806 introduced English law, creating a hybrid system
• This hybrid blends Roman-Dutch (civil law) and English law (influenced by custom and precedent).
• Customary law also exists alongside this hybrid system
• The South African legal system is uncodified, comprising legislation, common law, precedent, and customary law

Roman Law

• The first codification of Roman law occurred in 450 BC with the Code of the Twelve Tables
• Emperor Justinian codified Roman law in 528 AD, known as the Corpus Iuris Civilis

The Western European ius commune

• The CIC survived through the Middle Ages and the Renaissance, developing into the Western European ius commune
• During the Middle Ages the churches used Roman law, making canon law
• They adapted it where necessary to conform to the principles of the Bible
• The lex mercatoria, based on merchant customs, facilitated commercial dealings
• It strongly influenced the ius commune
• The Renaissance saw increased Roman law study due to its codified nature
• Rules in the CIC combined with Germanic rules formed the Western European ius commune
• Local customary laws were steadily replaced
• Roman law was accepted as common law in European countries through reception

Roman-Dutch Law

• The Roman-Dutch law is an uncodified legal system based on the Western European ius commune
• It combines Roman law and Dutch customary law, with many sources
• Institutional writers of the 17th and 18th centuries are important sources
• Hugo de Groot's Inleidinge tot de Hollandse Rechtsgeleerdheid (1631) was a key text
• This law took root as South African common law during Dutch colonization
• English law supplemented it after British colonization in 1806

Law in the Cape from 1652

• Important changes to the Cape’s legal system occurred during the second British occupation in 1806
• The introduction of English procedural law in 1819 changed the court system from inquisitorial to adversarial
• English law was imported through South African legislation modeled on English equivalents
• Dutch settlers, the trekkers, applied Roman-Dutch law in independent states
• These states eventually became British colonies, retaining Roman-Dutch law
• The Union of South Africa (1910) unified legal systems, adopting Roman-Dutch law as the common law
• The Appellate Division of the Supreme Court of South Africa resolved legal contradictions

Creating a SA common law into the future

• In the 20th century, there were debates on whether to use English rules or revert to Roman-Dutch law
• English rules were abolished in some cases, while others, like trusts, became part of South African common law
• Apartheid-era legislation changed the common law, later repealed by the Constitution
• Today, the common law must be developed to promote the spirit of the Bill of Rights

The hierarchy of sources of our law

• The Constitution is the supreme law, invalidating inconsistent laws
• Primary sources are legislation, common law, precedent, customary law, and international agreements
• These sources are binding, except when precedent is distinguished
• Secondary sources include law books, journals, and electronic sources
• They are not binding but have persuasive value

Legislation

• National legislation is made by Parliament: National Assembly + National Council of Provinces (NCOP)
• Bills can be introduced by Ministers, Deputy Ministers, committees, or individual MPs
• About 90% of Bills are initiated by the Executive
• Provincial legislation is made by provincial legislatures, applying only in the province
• National law usually prevails in conflicts, detailed in Constitutional Law
• Schedule 4 lists functional areas for joint national and provincial lawmaking
• These include agriculture, health, housing, environment, and education (excluding tertiary)
• Schedule 5 lists areas for provincial lawmaking: roads, traffic, liquor licensing, planning, sport
• Parliament can legislate in Schedule 5 areas for national security, economic unity, minimum standards, or to prevent inter-provincial issues
• Municipal Councils make bylaws, applicable only in the municipality

The Legislative Process

• Lawmaking starts with a Green Paper for discussion, incorporating public comment
• The South African Law Reform Commission (SALRC) recommends law development, improvement, or repeal
• A White Paper follows, stating government policy and is subject to public input
• Both papers are published in the Government Gazette for public representations
• Public hearings allow oral participation
• Doctors for Life International v Speaker of the National Assembly and Others highlighted that public participation provides vitality to the functioning of representative democracy.
• It encourages active involvement, civic dignity, and legitimacy of legislation
• After revisions, a Bill is introduced, drafted by government and approved by Cabinet
• State Law Advisors ensure constitutionality and proper drafting
• The Bill is debated and published for comment, then reviewed by a portfolio committee
• Amended Bills undergo a second reading and vote in the National Assembly and NCOP
• If passed, it goes to the President for assent, becoming an Act of Parliament upon signature
• Promulgation occurs upon publication in the Government Gazette
• The Act includes a number, year, and commencement date, if specified

Amending Legislature

• Amendments address gaps or updates in existing legislation
• Amendment Acts follow the same process but tend to be quicker
• They insert, delete, or substitute provisions
• Juta or LexisNexis are better for up-to-date legislation than Google

The common law

• The common law refers to law applicable to the whole country, non-statutory, and part of English common law
• It does not come from legislation and is predominantly Roman-Dutch law, developed through judicial precedent and also contains English elements
• Judicial precedent is published in law reports
• The entire common law must be consistent with the Constitution
• The doctrine of stare decisis (abide by decided cases) comes from English common law
• Courts must follow precedents in similar fact cases
• Common law applies when legislation does not govern the issue
• Common law can be changed by the legislature, exemplified by the Civil Union Act 17 of 2006
• Institutional writers like Grotius and Voet are sources of common law
• In source conflicts, courts prioritize consistency with the Constitution and fairness
• Courts declare and incrementally develop the common law
• The Legislature primarily abolishes it, unless inconsistent with the Bill of Rights
• The courts have power to abolish the common law position where it is inconsistent with the Bill of Rights.
• E.g. RH v DE in 2014, the Supreme Court of Appeal abolished the claim for damages for adultery

Customary law/Indigenous law

• Customary law developed alongside common law
• Indigenous populations had unwritten rules based on social practices
• Colonial authorities initially allowed local leaders to enforce customary law
• The Native Administration Act of 1927 (later the Black Administration Act) required customary law to align with colonizers' morality and justice
• This was known as the 'repugnancy clause.'
• Customary law was subordinated to colonial common law during colonial and apartheid rule
• 'Official' customary law was written down by colonizers, outdated and tainted
• The consensus today is to look to living customary law practiced in communities
• The Constitution protects customary law if it aligns with the Constitution

Customary/Indigenous Law

• 'Indigenous law' is preferred over 'customary law,' which emerged from European writings
• The Constitution uses 'customary law,' but decolonization was in its infancy then
• It should not be confused with custom / trade practices.

What is Indigenous Law

• The oldest source of law in SA predates colonialism
• The Constitution has recognized its status as a primary source of law
• It is not uniform
• Laws and practices differ from one community to another
• E.g. lobolo is a common practice, but is observed differently by different communities, and changes with the times
• Indigenous laws refer to legally binding cultural norms, beliefs, and rules
• It adheres to the following characteristics:
• Flexible – practice based
• Uncodified – not written
• Transmitted orally across generations
• Varied – community specific
• Tradition centered – preserving families and communities

Precolonial history

• Informed the way people lived and how communities were structured
• Observed and enforced without limitations
• Established by communities and leaders, in consultation with community bodies such as imbizo

Colonial history

• Dutch settlers imposed RDL which they perceived of as more ‘civilized’.
• The British recognized indigenous law and allowed its application amongst Africans
• Indirect rule – recognition of traditional leaders and establishment of courts for dispute resolution as a means of retaining ultimate control
• But indigenous law was only allowed to be applied to a limited extent, subject to the common law
• European settlers sought to codify indigenous law and bring it in line with RDL and English law
• Disparate treatment of indigenous law in the four different colonies prior to the Union of SA in 1910
• Native Administration Act 38 of 1927 – aim of streamlining and creating a uniform approach to indigenous law:
  • Native commissioner had authority to determine circumstances in which indigenous law might apply
  • Traditional courts recognized Subject to the “repugnancy doctrine” “indigenous law would not be enforceable should it be against public policy or contrary to natural justice, equity, and good conscience.” (colonial standard)
• Governor General appointed as ‘supreme chief’, but not subject to the same traditional checks and balances

National Party era

• The National Party came to power in 1948 and established the formal system of racial segregation known as apartheid
• Bantu Authorities Act 68 of 1951 – sought to establish ‘an administrative hierarchy of tribal, regional, and territorial authorities in traditional communities’
  • “A tribal authority shall, subject to the provisions of this Act - generally, exercise such powers, and perform such functions and duties, as in the opinion of the Governor-General fall within the sphere of tribal administration as he may assign to that tribal authority” (section 4(1)(d))
• The regime imposed traditional authorities who supported the State in exerting control over communities while deposing and replacing those who resisted
• Ex Parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) –no presumption in favor of applying indigenous law or common law, courts should apply the law most applicable to the parties and circumstances
• Apartheid courts inevitably relied more on the common law
• Law of Evidence Amendment Act 45 of 1988 – provision made for courts to take judicial notice of indigenous law principles that are easily identifiable and ascertainable and apply them in appropriate disputes -“Taking judicial notice means the court declares a fact presented as evidence as true without a formal presentation of evidence”
• The parties merely asserting and requesting to be bound by indigenous law would be sufficient for the court
• But this was once again subject to a repugnancy clause…judicial officer could choose not to apply indigenous law

Constitutional era

• All law, including indigenous law, would be tested and measured against the Constitution
• Validity thus no longer subject to the common law
• Indigenous law now recognized as a primary source of law
• Important constitutional provisions include:
  • Sections 30 and 31: rights regarding language, culture, and communal rights
  • Sections 39(2) and 39(3): customary law must be interpreted to promote the Bill of Rights' spirit and must be consistent with the Constitution
  • Sections 211(1), 211(2), and 211(3): recognition of institutions and practices of indigenous law, subject to constitutional and statutory limits
  • Section 212: recognition of the critical role of traditional leadership
• See Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC): male primogeniture declared unconstitutional
• Note the Constitution does envisage the possibility for legislation that amends indigenous law, for example, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 which regulates intestate succession

Classifications of indigenous law

• Official indigenous law: statutes, case law, and official records Includes colonial, apartheid, and post-constitutional legislation, e.g. Recognition of Indigenous Marriages Act 120 of 1998
• Attempts to codify indigenous law by colonial authorities did not accurately reflect the principles of indigenous law Outdated and fails to keep pace with societal developments that these principles apply to
• Living customary law: what communities practice Adaptable to changing circumstances Undergoes evolution, does not stagnate Due to its unwritten nature, proving living customary law in court can be a challenge, particularly a European court systems which are the foundation of our own
• This version is indigenous law is better aligned with the relevant constitutional provisions### Custom/Trade Usage

Custom/Trade Usage

• A custom can be legally binding Van Breda v Jacobs 1921 AD 330, if It has existed for a long time Reasonable uniformly observed Define and certain
• E.g. custom not to position boat in front of another so as to catch fish (Van Breda)
• Trade usage involves reliance on custom in trade Same rules apply as custom

International agreements and international customary law

• Regulated by section 231 and 232 of the Constitution
• International agreements are binding ‘only after it has been approved by resolution in both the National Assembly and the National Council of Provinces’.
• However, international agreements of ‘a technical, administrative, or executive nature’ which had been entered into by the Executive, binds the Republic without approval of the National Assembly and National Council of Provinces.
• An international agreement becomes law in the Republic only if it has been enacted into law by national legislation
• Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament

Diagrams of classification

National law vs international law

• National Law applies across entire territorial jurisdiction of South Africa
• International Law is either Public or Private

Public International Law / Law of Nations

• Applies between South Africa and sovereign nations (e.g. Botswana)
• Applies between South Africa and international organizations (e.g. the United Nations)

Private International Law

• Relevant to private law disputesinvolving the private law of more than one state (e.g. Sweden family law vs. South Africa family law)
• Public International Law is regulated by treaties/conventions (e.g. UN Charter) and customary international law (accepted acts/practices) In public international law there is no single legislative body, executive authority or judiciary

Substantive law vs procedural law

National law is divided here

Substantive Law

• Contains the rules of the law (the contents of the law)
• e.g. contract law rule

Procedural Law or Adjectival Law

• Regulates the procedures that must be followed to enforce the rules of the Substantive Law
• The two main laws of procedure is Criminal Procedure and Civil Procedure
• The Law of Evidence is included in Procedural Law Interpretation of Statutes is included in Procedural Law

Public law vs private law

Public Law

• Regulates relationships between the State and its subjects
• A vertical relationship due to the State’s greater power
• Mainly: Constitutional Law; Criminal Law;& Administrative Law (governs government administration)

Private Law

• Regulates juridical relationships between persons
• A horizontal relationship due to relative power between persons
• Mainly: Law of persons and family; Property Law; Law of Succession; Contract Law; Law of Delict; and Commercial Law
• Also they can be simultaneously present in the same case

Legal subjects vs legal objects

• Important to distinguish in both Public Law and Private Law Legal subjects: persons with rights and duties conferred on them (bearers of rights and duties)

Rights

• the legally enforceable claims of one person against another person or against the State
• A juristic person has legal personality
• Their legal capacity is its ability to act legally
• Legal objects, on the other hand, are the objects that legal subjects act upon (eg your cell phone, if you own it, is a legal object). These can be corporeal/ physical) or incorporeal or lack a physical existence (eg your personality).
• Incorporeal things don't have physical existence, but are evidenced by physical things Example: book = copyright, song = recording of the song.

Legal rights and legal duties

• A right implies a legal relationship between legal subject and legal object; and/ or a relationship between legal subject and other legal subjects
• A legal relationship varies by right type

3 types of rights:

Real RIght Personality Right Personal Right

• All three have corresponding duties: property right = duty not to violate

Real right

• A right in a corporeal thing enforceable against everyone
• Property right in your cell phone

Personality right

• Enforceable against everyone, but is a right in an incorporeal thing
• Right to reputation, privacy, dignity, physical integrity

Personal right

• Enforceable against specific persons due to a specific legal relationship between you and them Law of contract and the law of delict areas of law that generate personal rights and personal duties. Example: Right to claim Vodacom cell phone you bought - personal duty to deliver them to me.

Precedent and the courts

• Precedents are cases previously decided by courts
• A primary legal source created by the courts
• Cases are disputes or uncertainties on matters of law brought before courts
• There are four levels of courts in South Africa:
• The Constitutional Court (highest court in all matters)
• The Supreme Court of Appeal
• High Courts
• Magistrate’s Courts (Regional Courts and District Courts)
• This a hierarchy of courts, where lower courts are bound by higher courts' judgments

Court hierarchy

• High Courts are divided into main seats/provincial divisions and local seats/local divisions.
• Magistrates’ Courts are divided between Regional Courts and District Courts.
• Every court has a presiding officer: magistrate in Magistrates’ Courts, judge in High Court, SCA, and CC
• Presiding officers hear and decide cases, issuing judgments
• A judgment concludes with the order of the court

What is a case/ types of cases

• Two kinds: civil (claims and enforcement) and criminal cases Both can be appealed Civil cases either action or application proceedings
• Action proceedings = damages claim,
• Application proceedings = court enforcement of right

Action proceedings

• Parties the plaintiff and defendant.
• Parties exchange pleadings setting out position on matter.
• Action proceedings begin when plaintiff issues pleading called the summons
• A claim for damages stemming from the commission of a delict.
• After exchange of pleadings = trial to present evidence. Note that divorce matters are action proceedings.
• Burden of proof rests to prove case on a balance of probabilities.

Application proceedings

• Parties the applicant and respondent. These can also be brought by only one party when enforcement dont need other party to do.
• Parties exchange sworn statements signed in presence of a commissioner of oaths - called affidavits. then there is a motion court in which the legal representatives argue the case before the presiding officer. the most important form of application proceedings is the interdict to enforce rights

Criminal cases

• Perpetrator is person
• Aim to punish with fine or imprisonment
• Process by way of which a perpetrator is held responsible criminally is called prosecution
• Initiated by State (NPA declines = private prosecutions are exceptionally rare)
• Burden of proof is on the State and the State must prove case beyond reasonable doubt’.
• Case citation a criminal case is indicated by the letter S Before 31 May 1961, criminal cases were cited with the letter R
• Possible for same facts= civil case and a criminal case

Appeals

• Court hierarchy implies appeal right to a higher court is in judgment of lower court for application of law
• Appellant and the respondent.
• Depends of hierarchy, determines to which an appeal must be directed to. (See diagram on page 125) a Magistrates’ Court court = High Court.
• Single judge in a High Court, then the appeal court is the full bench of the High Court (three judges).
• A full bench of the High Court, then the appeal court is the Supreme Court of Appeal (SCA).
• Court which has dealt with a constitutional matter, there is a right of appeal directly to the Constitutional Court (CC).
• To appeal the SCA’s judgments (all matters) to the CC.

Judgements and Reported cases

• The decision w reasoned explanation
• Reasoned explanation: facts & legal positions
• Same judgment= questions of fact & questions of law. Especially on appeal level (SCA, CC), can be more than one judgment, Minority judgment to legal and/ or fact
• Separate agrees with majority in order but on matters law (or fact)
• Certain judgments reported in law reports e.g. South African Law Reports Reported judgments = case law or precedent
• Only those judgments that contribute or add to the development of the law are reported.
• Reports where the judgment reported in a law report series, the judgment, location, and court are indicated
• SAFLII is an electronic database on which you can find many cases. BUT you should cite the reported version of the judgment from Juta or LexisNexis, if reported. PLEASE FAMILIARISE WITH THE ABBREVIATIONS FOR THE DIFFERENT COURTS
• Unreported cases have the same authority as reported cases, still judgments of court Cases are reported to facilitate the working of the precedent system and the doctrine of stare decisis.

The doctrine of stare decisis

In S.A hierarchy judges must follow and treat facts similarly

• Core of ‘let the decisions stand’ doctrine Stare decisis in S.A introduced 1827 by influence of English common law
• Advantages of stare decisis are certainty, predictability, reliability, equality, uniformity, convenience and efficient administration of justice.
• Not everything in a judgment creates binding precedent

2 kinds: ratio decidendi & obiter dicta.

Ratio decidendi = reasons for the decision or binding on lower courts

• Pretoria City Council v Levinson 1949 (3) SA 305 (AD) 317: “…the reasons given in the judgment, properly interpreted, do constitute the ratio decidendi, originating or following a legal rule" Obiter dicta = remarks made in passing by presiding officer
• NO precedent, only persuasion

Court MAY deviate if case is

• Per incuriam = judgment is incorrect due to ignorance
• Facts of case are different

Test for per incuriam: very strict, very unlikely

• A court may only depart from horizontally-binding precedent where it considers it ‘clearly wrong’,
• Must manifest oversight or misunderstanding
• Test stringent, not disagreement, must palpable mistake, or fundamental departure from principle (see Boonzaier reading 7 on Amathuba)
• A court’s finding on facts are not binding / does not create precedent

Specific rules on the operation of the doctrine of stare decisis

General rules:

1. A lower court is generally bound 2.A (equal level) court is bound by the previous decisions SCA is bound by previous SCA judgments

• All courts in South Africa are bound by the judgments of the Constitutional Court (CC) and the CC is bound by its own previous judgments (unlikely to change).
• The High Court and the lower (Magistrates’ Regional and District courts) are bound by the decisions of the Supreme Court of Appeal (SCA). SCA is bound if those decisions haven been overturned
• A High Court in a specific division bound if CLEARLY WRONG
• A full bench division the magistrate must weigh these decisions up against each other, considering the following How did they decide and did the boni mores changed Are these affected by Const. provisions How many judges were (1 2 3) The magistrate IS expected to weigh up such considerations rationally and choose to follow one or other of the decisions.

The effect of the constitution on the doctrine of precedent

• Judgments that have been rendered after the enactment of the Constitution However, since the Constitution represents a juridical revolution, its enactment does affect the principle of stare decisis in relation to judgments that were rendered in South Africa before its enactment (see S39) possible is the judicial obligation in terms of this provision come into conflict with obligation to follows past decisions
• Afrox three distinctions

1. High Court believes that a common law rule established by the former Appellate Division is contrary to a provision of the Constitution. Then the High Court is forced to change.
2. Decision of Appe DIV based on boni mores or public policy. This no longer correct, then High court can deviate from the decision
3. Common law not in conflict WITH provisions and is not public policy. THEN HIGH COURT IS NOT EMPOWERED.

• There is a tension = ius dicere non facere AND obligation.

What are some of the drawbacks of the precedent system?

• Incorrect decisions can continue to exist and be followed. Due to the fact judges just follow previous cases. This system is rigid How to approach a precedent question Steps on approach that you will need = you will need to know how to approach question Read all extract from pre- cases
• Who involved
• Which court Time line

The Constitutional Framework

You know separate powers

• Section 165: Independence & impartiality
• No person must interfere. To operate effectively, courts should legitimacy Hierarchy as follows: CC ScA High Court of S.A Magistrates Other Courts

The correct court

The determine jurisdiction over certain matter Lack of jurisdiction = defense

• The party who instituted proceedings in the wrong court may also have a costs order made against them in terms of which they have to pay the other party’s legal costs. The Constitutional Court [CC] its function is that of rights Jurisdiction: it is the highest court in all matters

Jurisdiction

• The CC’s jurisdiction stretches over the entire geographical area of South Africa. May act as coat appeal Must be const. matter that involves interpretation

Supreme court

• disputes between national or provincial organs of state concerning the constitutional status, powers or functions of any of those organs of state The Supreme Court of Appeal [SCA] It is an appeal. Binding Session held when it deems to be necessary. The SCA decides appeals in arising from the High Court or a court of similar status,

SCA Cont

Has jurisdiction over geographical are S.a record of the proceedings in the court However, the parties’ legal representatives / advocates will argue each party’s case before the SCA in written and oral form. A court There are nine divisions of the High Court of South Africa, corresponding to the nine provinces. ONLY ONE HIGH COURT WITH MAIN AND LOCAL SEATS Used to be old historical provinces. Changed after

Cont High court

Circuits criminal matters in rural areas Jurisdriction is civil or criminal matters as well as const matiers Civil = 400 and beyond formal lower limit Limited jurisdiction = geographical

High Court Cont

Judges hear the mattrers A magistrates cont Statutue May not order more than 15 years for treason Civil and criminal matters

Disctrict COurt

All claims not more than 200000 Written document that dispute can come her