South African Law: History and Sources

History & Sources of SA Law

• South African legal history is divided into Roman law, Roman-Dutch law, and South African law.

Roman Law

• Roman legal system is the foundation of most Western European legal systems
• Its development spanned about twelve centuries, closely tied to the Roman Empire's historical progression.
• The Roman Empire is divided into four periods:
  • The Period of the Kings (± 753 BC - 510 BC)
    • The community was primitive and essentially rural.
    • Legal rules mainly consisted of customs.
  • The Republican Period (± 510 BC-27 BC)
    • Roman law was written down for the first time in 449 BC as the Twelve Tables.
    • This led to rapid development and the need for systemization.
  • The Period of the Emperors (± 27 BC- 284 AD)
    • The Roman legal system reached its peak.
  • The Post-classical Period (± 284 AD - 565 AD)
    • The Roman empire divided into Western and Eastern empires.
    • The legal system systematically deteriorated.
• In 476 AD, Germanic tribes conquered the Western empire, causing social and economic decline.
• Emperor Justinian (527 AD to 565 AD) tried to maintain the Roman Empire's glory in the Eastern empire.
• Justinian codified Roman law into the Corpus luris Civilis:
  • The Codex: a collection of legislation
  • The Digesta: selections from Roman jurists' works
  • The Institutes: a textbook for students
  • The Novellae: a collection of legislation after the Codex
• After Justinian's death, the Roman empire deteriorated and disappeared due to invasions and cultural influences.

Roman-Dutch Law

• Roman law influenced medieval Europe's legal systems due to adopted principles and the role of canon (clerical) law.
• Interest in classical Roman Law was revived by legal scholars (Glossators) in the 12th century.
• The Netherlands' law was mainly Germanic customary law.
• Increased trade and commerce required a more efficient legal system.
• In the 16th century, Roman law combined with the law of the Netherlands
• Principles of Roman law were adopted in a process called the reception of Roman law, leading to Roman-Dutch law.

South African Law

• Roman-Dutch law was brought to South Africa in 1652 by Jan van Riebeeck
• The basis of our legal system is known as the common law, despite English law's influence due to British occupations.
• English law influenced South African law:
  • English judges/magistrates presided in South African courts.
  • Local jurists studied in England.
  • English decisions were applied in South African courts
  • South African legislation was modeled on English legislation.
• Mercantile law was more influenced by English law.
• Laws on companies, insolvency, and bills of exchange are largely English-based, while partnerships and specific contracts follow Roman-Dutch law.
• South African law isn't fully codified, but some areas like insolvency law have been codified.

The South African Legal System

• The Law must be distinguished from Rights
• The law consists of rules for orderly society and is enforced by the State.
• When a law is disobeyed, the State can intervene, penalize, or punish the offender
• Distinguishing law from moral, ethical, or religious rules.
• Legal rules can be coercive or regulatory
• Regulatory rules allow parties to regulate relationships and only apply if they choose to comply with the rule.
• Coercive rules compel compliance & parties can't agree to be exempt.
• Right: The legally protected interest of a legal subject (person) in a legal object, protected against other legal subjects
• Legal subject: Entity who can be the bearer of rights and duties, divided into natural persons (human beings from birth to death) and juristic persons (e.g., companies).
• A right is a legal claim a person has to an object/thing, like car ownership, or to an aspect of their personality, like dignity.
• Traditionally, legal rights are categorized:
  • Real right: right to a corporeal thing, effective against all (e.g., property ownership)
  • Personal right: right to claim performance from another (created by contract or wrongful act)
  • Intellectual property right: right to creations of the mind (e.g., copyright, trademark)
  • Personality right: right to aspects of personality (e.g., dignity, honor, good name)
• The source of South African law is Roman-Dutch law
• The originating sources of new legal rules are custom, legislation and court decisions, since new rules of law cannot be created through common law.

Custom as a Source of Law

• Custom can become entrenched enough to create or abolish a legal rule.
• To be recognized as enforceable, a custom must:
  • Be reasonable
  • Have existed for a long time
  • Be generally accepted and complied with
  • Have clear and certain contents
• Green v Fitzgerald 1914 AD 88: it was decided that adultery does not constitute a legal offense

Legislation as a Source of Law

• Legislation is rules laid down by a legislative body, such as Parliament, provincial legislators, and local governments.

Parliament

• The highest autonomous legislative authority consisting of the National Assembly and the National Council of Provinces.
• Legislation is usually accepted by a normal majority vote in both houses of Parliament.
• Sections 73-77 of the Constitution of the Republic of South Africa, 1996 prescribes the legislative process
• The Constitution provides for fundamental human rights like freedom, privacy, dignity, property, speech, and access to information and education
• The Constitution prohibits unfair discrimination (e.g., race, culture, sex)
• Parliamentary legislation may not be contrary to the Constitution
• The Constitutional Court decides if legislation is unconstitutional.
• Parliament can legislate on issues delegated to provincial legislators.

Provincial Legislation

• Each province can issue legislation on local government, health, and tourism.
• A High Court can declare provincial legislation invalid if it is outside the scope conferred or conflicts with the Constitution.

Subordinate Legislative Bodies

• Legislative authority can be delegated to a person or body by an Act of Parliament.
• Subordinate legislation must:
  • Fall within the given authority (otherwise ultra vires)
  • Be reasonable
  • Be impartial or unbiased
  • Be clear and certain
  • Be promulgated / published

Court Decisions as a Source of Law

• Courts administer justice and sometimes create new rules of law
• Courts may create new rules of law if the legislator or common law has not provided for said law

Structure and Jurisdiction of South African Courts

• The judicial system comprises:
  • The Constitutional Court
  • The Supreme Court of Appeal
  • The High Courts
  • The Lower Courts
  • Other courts instituted by legislation
• The Constitutional Court, Supreme Court of Appeal, and High Courts are called "higher courts".
• Magistrate's Courts are called the "lower courts".
• Higher courts consist of the Constitutional Court, the highest court in Johannesburg, which decides constitutional matters.
• The Supreme Court of Appeal is the highest court for all other matters and only decides:
  • Appeals
  • Issues connected with appeals
  • Matters referred to it by an Act of Parliament
• High Court seats are in different locations in South Africa: Bhisho, Bloemfontein, Cape Town, Durban etc
• Higher courts adjudicate on criminal and civil matters.
• Crimes are investigated by police and prosecuted by the National Prosecuting Authority.
• The State must prove guilt beyond reasonable doubt before an accused can be found guilty.
• In a civil case, a person institutes action against another, and the court may grant any claim, application, interdict, or declaratory order.
• The whole of South Africa is divided into magisterial districts and regions that are served by the respective magistrates' courts.
• A district magistrates' court serves a specific district and a regional magistrates' court serves a specific region.
• Civil jurisdiction is limited to R200 000 for a district court and R400 000 for a regional court.
• Regional courts have recently been afforded jurisdiction to adjudicate divorce matters.
• A district court may adjudicate on any crime except murder, high treason, and rape
• Limited to a maximum fine of RI20 000 and/or a maximum term of imprisonment of three years.
• A regional court can try any matter except high treason (which may only be tried by higher courts)
• Its jurisdiction is limited to a maximum fine of R600 000 and/or a term of imprisonment of 15 years.
• Specialized courts created by statute include the Tax Court, regional Divorce Courts, Equality Courts, Labour Courts, Land Claims Court and the Water Tribunal. Some courts have the status of a High Court and some the status of a lower court.

Appeals

• Appeals from lower courts are heard in the relevant provincial division of the High Court.
• Judgments by a single judge may be appealed to a full bench.
• The matter is heard by three judges and may then be appealed to the Supreme Court of Appeal.
• The Constitutional Court is the final court of appeal.

Doctrine of Precedent

• The doctrine of precedent (or stare decisis) is applied in South Africa, where certain courts create precedents that other courts must follow.
• When a legal principle is laid down by a court; Judges of the same court & courts of a lower order follow the precedent
• A decision creates a precedent if it was laid down as the ratio decidendi, or reason, for the specific decision.
• The Supreme Court of Appeal is only bound by its own decisions and those handed down by the Constitutional Court.
• These courts may deviate from a previous decision if they are convinced that it was wrongly decided.
• High courts are bound by decisions of the appellate division (Supreme Court of Appeal) and their own decisions.
• A single judge is bound to a decision of two or more judges of their own division.
• Lower courts are bound by the decisions of the higher courts.
• Some decisions of the higher courts are published monthly in the law reports to facilitate access to the decisions.

General Principles of the Law of Contract

Introduction to the Law of Contract: Brief Historical Overview

• South African contract law developed mainly from Roman-Dutch law, despite English law's influence.
• Roman law saw an obligation as creating a legal connection with recognized rights and duties.
• Roman law limited contracts to certain categories unlike today's law.
• A legal obligation: the creditor's right to claim performance (something done or not done) and the debtor's duty to perform.

The Concept of "Legal Obligation"

• Legal obligation: a legal tie recognized by law that creates personal rights/duties via legal facts (contract/delict).
• When rights/duties are recognized and enforced by law: a civil obligation (e.g., a claim for damages)
• Rights/duties recognized but not enforced by the law: natural obligation (e.g., a wager)
• Legal obligations are the source of all legal claims or personal rights, sometimes recognized/enforced

Sources of Obligations

• Legal obligations arise from juristic facts such as contract, delict, statute/administrative authority.
• Other juristic facts developed ad hoc to satisfy the community's needs created by unjustified enrichment, care-taking or unauthorized agency or family relationships.
• A juristic fact to create a legal obligation if the following elements are present: conduct (an act/ omission), unlawfulness, fault (intent / negligence), and causation and damage (in order to be a delict.

The Concept of "Contract"

• Contract: An agreement with the intention of creating a legal obligation that gives rise to rights and duties.
• The serious intention distinguishes a contract from a social agreement (e.g., meeting for lunch).

Transfer of Rights & Duties

• A contract establishes rights and duties. One party may not want to exercise his rights or perform his duties himself.
• Rights can be transferred via cession, and duties via delegation.

Cession

• Cession: Transfer of personal rights from one party (cedent) to another (cessionary).
• A owes R500 to B, B donates R500 to X: B (cedent) can cede his right to claim R500 from A to X (cessionary). X can claim R500 from A.
• General rules for cession include:
  • The cedent and cessionary must enter into a contract of cession.
  • The debtor's consent/knowledge/cooperation is not required.
  • No formalities are required.
  • No prohibition against cession of personal rights, unless the rights are highly personal, prohibited/limited by law, or restricted by agreement.
  • A right may only be ceded entirely, to avoid actions.
  • According to the principle of nemo plus iuris, the claim is transferred together with all benefits, privileges, disadvantages and limitations.
  • A right may be ceded as security by "cession in securitatem debiti" where only the quasi-possession of the right transfers, while ownership remains with the cedent.

Delegation

• Delegation: Transfer of duties from one party to another.
• A (debtor) owes R500 to B (creditor): can delegate his duty to pay to X. X (new debtor) must pay the R500 to B.
• Creditor's consent is required before delegation.
• Assignment occurs when related rights and duties are transferred at the same time.

Introduction

Agreements on these requirements can only cause a juridical obligation after the stated conditions have been fulfilled: - Consensus is needed - Contractual capacity - The contract must be completely legal - Physical possibility and certainty is a must - Formalities

• Consensus establishes the basis to all contracts formed through negotiation and agreements

Consensus

• Consensus must exist if:
  • The parties have a true and serious intention
  • There wills and intentions must be unanimous
  • There must be creation of legal obligations
• Consensus can be divided into three general categories:
  • True consensus
  • Assumed consensus
  • Consensus by operation of law
• Communication and agreement between parties are legally binding for consensus.
• Negotiations and statements of intentions are required for consensus.

Disclosures

• Disclosures consist of 3 components:
  • Invitations to do business
  • An offer on acceptance
  • An acceptance of legal obligation
• Declarations of intent contain proposals that formulates contracts.
• Acceptance brings forth a legal obligation, but agreements most have the following:
  • Comes to knowledge of the offeree
  • The offeror prepares to make the essential elements to conclude the contract
  • The offer must be unambiguous
  • Formalities as a general rule are not required unless the parties disagree
  • Legal obligation is created when an offer is made
• An offer can be terminated by:
  • Rejection when the offer rejects the offer
  • Prior acceptance of revocation
  • Time-lapses during a specialized time-frame
  • Before acceptance there is death from either sides
  • The contract is expired with incapacity

Agreements

• Agreements made to public create advertisements that are offers to contract.
• Displays of goods are simply invitations to buy and is only legal when in acceptance from shop-keeper that a contract becomes legal
• Advertisements meet valid offer criteria for rewards but must be followed by the known offeree.

Public Auctions

• The auctions have 2 major types: -Auctions with a reserve where auctioneers are not forced into selling goods and can reject any high bids
  • Auctions without reserve forces the auctioneer to sell goods under the highest bidder
• The creation of contract most have valid agreements
• A contract can be made orally or written for acceptance
• Courts may go by the following requirements:
  • All must be followed appropriately
  • Content must appear from the offer and must be unequivocally conducted
  • Agreements must be achieved by the manifestor

Declaration Theory

• Declaration theory: express acceptance comes into effect when the offeree signs the letter
• The expedition theory occurs when the letter receives posting
• The reception theory sees action when the letters makes it to the offerors' address
• The information theory requires the acceptance for the offeror to learn of the acceptance or have an attainable agreement.

Factors that Influence Consensus

Mistake/Error (Absence of Consensus)

• Error is a misunderstanding or one or more misconception of the parties regarding the facts
  • Motivations during error
  • Agreement that one agrees with contract declaration
  • Validity for the need of material factors

Material Mistakes

The influence of mistakes has very little consensus

• Misinterpretations can be expressed on false statements of the facts.
• Misinterpretations by word can be conducted out or implied
• Misinterpretation by opinion on the party that said them

Duress

• An agreement to set sides must be forced on duress or threats when entering a contract
  • Either unlawful or illegal threat
  • Party must be reasonable in their decision
  • Influence for the needed conditions

Wrongful Influence

• Undue influence uses influences to not allow rational judgment on separate parties.
  • The other personal is obtained through one or more influences
  • There powers are weakened and made compliant
  • Use to influence the person against his free will

Commercial Bias

• Agencies used to make contracts are void if principles are used for acts that benefits the agent the contract is created.

Contractual Capacity:

• Parties must contract each other with legal action to take place.

Lack of Persons with Illegal Acquired Capacity:

- Mentally disabled people
- People in their child years
- People under the influence

Persons with illegal limited capacity: - Married persons and minors( children 7 and over, and teens under 18) Minors cannot represent for actions that needs assistance

General Exceptions Include:

 - An adult that is a donor can act in the situation
 - The guardians will decide on which assistance should be provided
 - Actions on guardian on the other hand will not be tolerated
 - Legal status is void if it is with a person with or without consent.

• Legal rights when married are acquired when there is proper marriage of in or out the community.

Certainty

One has to maintain the source of intentions with only 3 variables: - When the agreement is obscured - Agreements between provisions - Granting to an unlimited source against certain agreements

• One source must be capable to perform or terminate on agreements created.

Agreements

• Agreements must be followed even though they can be terminated against the will of the contracting entities on certain accounts.
• Agreements are deemed illegal when an agreement is not meet by certain statutory obligations.

Formalities

- All contracts need little to more conditions that cannot be followed unless in certain means.
- All can be written, signed and adhered towards depending on the given or required situation.

There are a few examples of what needs to be written

 - Land sales
 - Leases
 - Credit agreements
 - Marital and apprenticeships
 - All gifts must be donator's

• It is important to know and have a well written contract so that all parties are liable for their own actions.

Breach of contract and relations

• Breach of contract : when one or the other parties fails to meet or adhere towards the individual agreements.
• Lack of honorable agreements creates issues.
• When the actions are conducted against lawful and agreed pacts a contract can be breached!

Mora Debtoris

• When the failure is due to timed expectations debtors are legally in delay.
• The contract has to be due and be enforceable plus still must have expectations.
• The debtor alone will constitute on what is the breach

Mora Creditoris

• The acceptance of the creditor and performance must still contain creditor's help
• Legal actions that fail will have no compensation.

Misguided Operations

• When operations are negatively damaged, a party must not act poor or in incomplete manor toward the agreement or contract
  • Positive duty: One cannot be defective as the contractor
  • Negativity and problems should be non existent in the ideal relationship

Performance

• Both persons must maintain their individual intentions and objective.
• Both most hold similar agreements that must be upheld

Prevention

• To prevent this prevention action must be upheld by action and accompaniment.
• A clear agreement in what the goal is and should meet the necessary agreements or expectations.

Remedies for action

Specific: specific and legal actions and outcomes - the person to said order must meet or agree to contract agreements - there must be agreements and expectations that must be understood otherwise actions will change the entire system and make it unethical if not done correctly

Damages

• Reimbursements are expected to be met.
• Contracts must also be met when they are seriously met towards cancellation.

Contracts

• Agreement under debt is always paid for with similar intentions

Merger

• Actions for third parties can be enacted if the impossibility of the performances can be deemed responsible under a particular person.
• Generally contracts are able to follow under proper performance
• Some agreements of insolvency are deemed illegal if not signed towards any illegal reason.