An Introduction to South African Business Enterprise Law PDF

## An Introduction to South African Business Enterprise Law ### 1.1 The legal framework - Law regulates society by defining acceptable and unacceptable conduct. - It governs relationships between: - The state and legal subjects (natural and juristic persons). - Legal subjects among themse...

## An Introduction to South African Business Enterprise Law ### 1.1 The legal framework - Law regulates society by defining acceptable and unacceptable conduct. - It governs relationships between: - The state and legal subjects (natural and juristic persons). - Legal subjects among themselves. - Learning objectives: - Understand common legal concepts - Categorize the authority and functions of South African courts - Describe the sources of South African law. - Appraise alternative dispute resolution processes. ### 1.1.1 Legal systems - **Common law** originates from social customs. - It is developed through judicial precedent, which is discussed later in the chapter. - Prevalent in many former British colonies, including South Africa. - **Civil law** stems from Roman origins. - It is codified in written rules and codes. - Primarily found on the European continent. ### 1.1.2 Classification of the law - **International law** regulates relationships between sovereign states. - **Private international law** determines applicable legal systems for international contracts. - **National law** applies to a specific country: - **Substantive law** defines rights and obligations. - **Adjective law** regulates the enforcement of substantive laws. - **Private law** governs rights and duties of legal subjects and their relationships, including: - Family law - Law of property - Law of succession - Law of contract - Law of delict - **Public law** governs relationships between legal subjects and the state: - Administrative law - Constitutional law - Human rights law - Criminal law ### 1.2 Sources of South African law - **Constitution** is the supreme law of the land. - Contains a Bill of Rights that guarantees fundamental rights for everyone. - **Legislation** is a set of laws (Acts) enacted by the legislature, such as the **Competition Act 89 of 1998.** - Parliament consists of: - National Assembly - National Council of Provinces - Bills are passed by both houses and then signed by the President to become Acts. - Provincial legislatures enact ordinances. - Municipal councils enact bylaws. - **Judicial precedent** follows the doctrine of stare decisis: - Courts are bound by previous decisions with the same material facts. - This principle is applied going forward in all cases. - The **ratio decidendi** (essential principle) must be distinguished from **obiter dicta** (judge's opinion) which are only persuasive. - **Common law** is mainly derived from 17th and 18th century Roman-Dutch law. - Introduced by Dutch settlers in 1652. - English influences were added during British occupation. - A hybrid system containing elements of both Roman-Dutch and English law. - **Customary law** reflects indigenous traditions and practices. - Recognized by the Constitution. - Implemented by traditional leaders and applied by courts. - Subject to the provisions of the Constitution. - **International law** is considered by South African courts when interpreting the Bill of Rights. - Not binding, but persuasive in interpreting the Constitution. - **S v Makwanyane and Another 1995** case is an example of reliance on international law. ### 1.3 The South African legal framework - **Constitution** is the cornerstone of the legal system. - Supreme law that governs state powers and individual rights. - Binding on all government branches and limiting their powers. - **Court system** is independent and subject to the Constitution. - **Jurisdiction** is the authority of a particular court to hear a specific matter. - Two-stage assessment: - Determine whether a lower court or a High Court is competent to hear the case. - Identify the relevant provincial or local division of the High Court or Magistrates' Court. - **Courts of South Africa:** - **Constitutional Court:** - Highest court in the land. - Final say on all Constitutional matters. - **Supreme Court of Appeal** - **High Courts** - **Magistrates' Courts** - **Other courts**