Chapter 1: The South African Legal System
Law: Is a body of rules governing human conduct that is recognized as binding (must be obeyed, because it is accepted in Law) by the State and the courts, and if necessary, is enforced. The historical sources of South African law are:
* Roman law
* Roman-Dutch law
* English law
Roman law: Rome was a small state with most of its population living on farms. Its economy was based mainly on agriculture. The oldest male ascendant in a family was the head, in other words, he was the sole owner of all family property and holder of all power. The law was primitive. Rome developed rapidly and the law had to adapt for these changed circumstances (sophisticated legal system was created). Roman-Dutch law: The Roman Empire declined and fell but it did not disappeared. During the Middle Ages, traces of Roman law remained for 2 reasons: 1) Every person, was judged according to the law of his/her own country, therefore Roman citizens were judged according to Roman law. 2) The church exerted great influence during this period and canon law was based on Roman law. This 2 reasons, contributed to the preservation of Roman law. After that, Roman law was received in the Netherlands and became mixed with the existing Dutch law. English law: When the Cape was formally ceded to Great Britain, the existing Roman-Dutch law remained in force but various factors contributed to a reception of English law. The direct and indirect influence of English law was encouraged. English law was often directly drawn on for new legislation: a code of criminal procedure was introduced, as well as, the entire English law of evidence and the English system of the administration of estates. Simultaneously, a gradual infiltration of the English legal terminology and manner of thinking took place resulting in a strong and adaptable system of law. In 1910, a Union Parliament was established in S.A (a uniform system of statute law for the whole country) as well as the Appellate Division, to ensure uniform decisions for the Union. The Privy Council was abolished as the highest court of appeal for South Africa. The sources of S.A law are:
* Statute law or legislation: General: Legislation is the making of law by a competent authority. Legislation is the most important source of law. The law is found in statutes created by Parliament, provincial legislatures, proclamations, regulations and subsidiary legislative bodies such as the President, ministers, municipalities… There are only a few Dutch statutes which are still in effect in S.A; the legislature has replaced many of statutes with new legislation. English statutes never applied here, in the legislation. The Constitution: The most important source of law in S.A is the Constitution of the Republic of S.A. Previous, we had a supreme Parliament (any law passed by Parliament was valid, irrespective of its contents) but now we have a system of constitutional supremacy under which the Constitution is the supreme law of the Republic. This means that if Parliament were to pass a law that offended the Constitution, it would be invalid. Even existing law and new legislation, if they are inconsistent with the Constitution can be declared invalid by a superior court.
The preamble (introduction) to the Constitution states the following: * Heals the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. * Lay the foundations for a democratic and open society in which government is based on the will of people and every citizen is equally protected by law. * Improve the quality of life of all citizens and free the potential of each person * Build a united and democratic S.A able to take its rightful place as an independent state. The primary method of giving effect to these ideals is through the Bill of Rights. The Bill of Rights means democracy in S.A and confirms the democratic values of human...
Please join StudyMode to read the full document