[Virtual Presenter] Welcome everyone! Today we will be discussing Commercial Law in South Africa. We will look at the principles rules and role of the state as well as the legal subjects objects and rights related to it. Shall we begin?. 

Scene 1

COMMERCIAL LAW Week 1 Background to Law in South Africa

[Audio] Law is an essential element of all societies functioning as a regulator of conduct in those societies. Commercial law is particularly concerned with the regulations that dictate business interactions determining the rights and responsibilities of those involved. Knowledge and comprehension of the legal fundamentals of commercial law is crucial in order to effectively manage these relationships and guarantee a legally binding agreement.. 

Scene 2

Law = set of rules made by state to order way people in society must behave. Rules that are made by the “state” and enforced by the state Law makes it possible for a society to function smoothly. Defines your rights and duties (obligations) Commercial law = laws that control a business relationship Key definitions related to the study of law: Legal: related to the law / allowed by the law Legal principles: accepted standard of conduct/behaviour that has support of the law to make it legally binding Legally binding: have to obey or can be held responsible in court

[Audio] The South African legal system is based on the rule of law meaning that all people are subject to the same laws regardless of their social standing. Breaking a law can result in criminal or civil sanctions such as imprisonment or damages. Morals are based on personal beliefs and standards of behaviour and though immoral conduct can have consequences these consequences may vary. It is important to note that laws and morals form two distinct categories that shape our society.. 

Scene 3

Legal rules:  Rules that everyone in a society has to obey Breaking a law – criminal or civil sanction e.g., imprisonment or damages
 Moral rules:  Personal standards of behaviour based on people’s beliefs Immoral conduct – consequences? If any, what could they be?

[Audio] The South African Constitution is the primary source of law in the country outlining a division of powers between the three branches of government known as the separation of powers. This arrangement helps to ensure that each branch of government is independent and has its own roles and responsibilities. Moreover the Constitution sets out the Bill of Rights ensuring fundamental rights both social and economic to all citizens. It also tasks the government with the responsibility to respect protect promote and fulfill these rights thus being held accountable for its actions and being responsible for upholding the rights of each citizen.. 

Scene 4

The Constitution sets outs and regulates the powers and functions of the State (government) With regards to our Constitutional rights, section 7(2) of the Constitution states that the State must respect, protect, promote, and fulfil the human rights in the Bill of Rights (BoR) in chapter 2 of the Constitution. Section 8 (1) states that the BoR applies to all law, and binds the legislature, executive, judiciary and all organs of state. State power is divided between three organs or arms: Legislature makes legislation Executive and administration (including organs of state) enforce the law Judiciary = courts and judges – apply the law to disputes which can be resolved by law Significance of the concept of separation of powers [trias politica]?

[Audio] This presentation focuses on the legal aspects of business in South Africa. We will look at legal subjects objects and rights connected with business activities. In the law there are two types of persons natural persons and juristic persons. Legal objects are objects of economic value and include personality property immaterial property corporeal things and performances. From a commercial law standpoint two types of rights exist: personal rights which can be exercised only against certain people and real rights which are enforceable against everyone. We hope you have found this presentation useful.. 

Scene 5

Legal subject: any person to whom the law applies. In law, there are two types of persons: Natural persons: human beings Juristic persons: entities Legal object: an object that has economic value and in which a legal subject can have legal rights, duties and obligations. E.g.: personality property, immaterial property, corporeal things and performances. Legal rights: from a commercial law perspective, we will often refer to two types of rights:  Personal rights: rights that one person can exercise only against specific people. Real rights: can be enforced against the whole world.

Legal subjects, legal objects and the nature of rights in commerce

[Audio] South Africa has established a hybrid legal system that combines Roman-Dutch law and English Common Law. This system reflects the history and shared values of the country such as those set forth by its indigenous people before colonization. The Dutch settlers began implementing Roman-Dutch law in 1652 during their arrival to the Cape and the British settlers followed with parts of English law being introduced in the 19th century. This combination of the two systems creates the hybrid legal system currently in place. This system enables South African courts to make decisions based on a combination of the two systems that is adapted to the local conditions.. 

Scene 6

History of law is important to understand legal rules and how it has developed over the years South Africa’s legal system reflects parts and values of our history. For example – the indigenous people of the country had developed their own law to govern relationships in their society – known as customary law From 1652 onwards, Jan van Riebeeck/Dutch settlers took over the Cape and Roman-Dutch Law was received as the official law in the Cape Parts of English law which was introduced in the 1800s when the British settlers came to the Cape  Roman-Dutch and English law is known as our common law and forms the basis of modern South African law and has binding authority whereby courts have adapted them to suit SA conditions

[Audio] Under South African law the primary sources are legally binding and include the Constitution legislation common law customary law custom and judicial precedent while the secondary sources are subordinate and generally persuasive such as international law foreign law and modern writings including academic textbooks and journals. Knowing the sources of law is essential to comprehending the South African legal system.. 

Scene 7

South Africa has an uncodified legal system, in other words the law is not entirely written down in a single source/code. South Africa has different sources of law divided into primary and secondary sources. Primary sources (can be described as original sources of law which are legally binding) The Constitution Legislation Common law Customary law Custom (Trade practices) Judicial precedent International law Secondary sources (subsidiary or subordinate to primary sources and generally persuasive) International law can also be interpreted as persuasive Foreign law Modern writings (Academic textbooks and journals)

Scene 8

[Audio] South Africa's Constitution is the fundamental law that serves as the highest form of authority in the Republic. It overrides any law or conduct that is contrary to its provisions. This Constitution was established after the country's transition from a parliamentary sovereignty to a constitutional democracy and is signified by the incorporation of the Bill of Rights in Chapter 2 Section 8 (2). This Bill of Rights applies to all laws and binds all governmental entities. Furthermore the Constitution has a significant connection with other legal sources.. 

Scene 9

Fundamental law that sets out the power of the State. Chapter 1 (2): “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled” Previous legal system was based on parliamentary sovereignty vs current legal system based on constitutional democracy. What is the difference between the two? Includes Bill of Rights under chapter 2 Section 8 (2) BoR applies to all law and binds all organs of state How does the Constitution relate to other sources of law?

[Audio] South Africa has a diverse and comprehensive legislative process. The Constitution of the Republic of South Africa is the supreme law and is binding on all other laws. It stands as a separate source of law on its own. The law-making body in charge of creating passing and enforcing laws is Parliament which consists of the National Assembly and the National Council of Provinces. Provincial and local levels of parliament also have the power to create legislation. This legislation is called statutes or laws and must be interpreted according to the spirit and intention of the law-making body. Understanding the interpretation of statutes is a topic that will be covered in Chapter 3.. 

Scene 10

Laws embodied in writing are called statutes/legislations Most important source of law and is binding The Constitution of the Republic of South Africa, 1996 is a supreme legislation – stands as a separate source of law on its own Parliament is responsible for making and passing laws. Parliament consists of two Houses called the National Assembly and National Council of Provinces. Provincial and local levels of parliament also have the power to create legislation A law-making body may delegate legislative power Legislature must not act ultra vires Interpretation of statutes to be dealt with in chapter 3

[Audio] South African law is defined by the common law. This is a set of laws that have been derived from other legal systems and that have developed over time. Common law is the primary source of law in South Africa meaning that it is legally binding. It is not entirely written and can be difficult to ascertain though it is outlined in academic textbooks and court decisions.. 

Scene 11

South African common law is a set of laws derived from other legal systems and that developed over time (not only restricted to Roman-Dutch law) Primary source of law and is binding Not entirely written and may be difficult to ascertain Academic textbooks Court decisions

[Audio] South Africa's legal system is a unique combination of customary common and statutory laws. Customary law has been followed by many communities for generations transmitted through oral tradition from parent to child. Courts have recently begun to recognise customary law granting many customs the status of primary law. In order for a custom to become law it must be reasonable long established recognised by the community and clear and certain; it must also not be in conflict with the South African Constitution. Understanding the background and complexity of South Africa's legal system is essential to comprehending the parameters of Commercial Law.. 

Scene 12

Many groups of people follow particular rules that are customary or traditional in their culture. Based upon oral tradition. Develops from the belief systems of a community and is carried down from generation to generation E.g. lobola Customary law is recognised in terms of section 211(3) of the Constitution as a primary source of law and is binding Living customary law vs official customary law Customary Law vs the Constitution E.g., principle of male primogeniture rule Customs/trade practices other than “customary law” (fishing case) When does it become a law? Must be reasonable (not causing harm to anyone) Must be long established Must be recognised and observed by the community Clear and certain

[Audio] Stare decisis which means ‘to stand by previous decisions’ is a key principle of Commercial Law applied in South Africa. This principle ensures fairness and consistency in court decisions as similar cases should be tried in the same court or lower courts. When one of the higher courts has adopted an interpretation or application of the law it sets a judicial precedent and other courts must follow it. Law Reports such as South African Law Reports exist to keep legal precedents accessible. Knowing the court hierarchy is essential to understanding which court decisions are binding and understanding the structure of a court's judgment is important to comprehend individual legal precedents.. 

Scene 13

Judicial precedent relates to the principle of stare decisis = ‘to stand by previous decisions. It means that courts should decide similar cases in a similar way for fairness and consistency When one of the higher courts interprets and applies the law in a particular way, that judgment sets a judicial precedent meaning that the same court or lower courts dealing with similar cases must decide them in the same way. Judgements of higher courts must be reported to be accessible. Law reports provide efficient system of case reporting that makes precedents easily accessible e.g., SALR Judicial precedent implies that  You must understand the court structure/hierarchy of courts (lower vs higher courts) to understand which courts’ decisions are binding on other courts, as not all courts create judicial precedent You must understand the structure of individual judgments helps us understand which part of the judgement is binding. Obiter dictum: any statement that falls outside the ration decidendi or an incidental remark/remarks made in passing. Ratio decidendi: The reason for the decision. Ratio decidendi creates a precedent

[Audio] When citing case law it is important to provide the names of the litigants year of the case volume number Law Report series and page number. An example of this is in the civil case law Smith v Jones 2005 (1) SA 412 (S-C-A--). This provides that Smith and Jones are the litigants 2005 is the year (1) denotes the first part of the law report that year SA is the South African Law Report (publication series) 412 is the page number on which the case is reported and S-C-A is the Supreme Court of Appeal in which the case was heard. More information can be found on pages 15-16 of the corresponding tutorial.. 

Scene 14

Citations contain vital information to help us find the case Civil case law (starts with names of litigants) vs Criminal case law (starts with “S v”) Consider the following civil case law citation: Smith v Jones 2005 (1) SA 412 (SCA)  Smith and jones are names of the litigants 2005 denotes the year of the case (1) indicates the first part of the law report in that year (volume number) “SA” indicates that the case is reported in the South African Law Report (publication series) 412 reflects the page number on which the case is reported SCA means the case was heard in the Supreme Court of Appeal *N.B read further on page 15 - 16 for purposes of your tutorial

[Audio] When discussing commercial law in South Africa one must pay attention to the various secondary sources of law that can affect how legal statutes are interpreted and understood. The Constitution of South Africa in Section 39 (1) (b) mandates the taking into account of international law and the Universal Declaration of Human Rights being the primary source of legal obligation. Section 39 (1) (c) of the Constitution permits the use of foreign law but it does not have binding authority. Nevertheless foreign law has persuasive power influencing how laws are written and understood. Moreover academic textbooks and journals offer beneficial perspectives on existing law given how they provide insight from additional legal sources.. 

Scene 15

1. International law Section 39 (1) (b)  Must consider international law E.g. Universal Declaration of Human Rights Primary source of law and is binding 2. Foreign law Section 39 (1) (c) of the Constitution May use foreign law  Courts have discretion to apply foreign law Not binding but persuasive Impacts on drafting and interpretation of statutory law 3. Academic textbooks and journals Academic writing and publication Reflects the current law as received from other sources of law

[Audio] South Africa's Constitution establishes a hierarchical structure for its judicial system. In this hierarchy superior court decisions are legally binding on those below while lower courts have no effect on higher courts. Jurisdiction a dual concept referring to a court's power to make rulings according to subject area or geographical region as well as the extent of rulings they can make is essential to South Africa's judicial system.. 

Scene 16

Section 165 (2) of the Constitution: “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.” Section 166 of the Constitution establishes the courts in the hierarchy. hierarchy implies that not every court's decision will be legally binding on other courts Only the decisions of the superior courts legally bind courts lower down in the hierarchy Earlier decisions of courts of equal standing legally bind later courts Decisions of courts lower down in the hierarchy do not legally bind courts that are higher up. Jurisdiction is a dual concept: Refers to the courts authority to adjudicate or rule on cases based on subject area or geographical region Refers to the limits of the orders, or decisions, that the court can make such as max fines or prison terms.

The SA Court System*. Superior courts bound by own decisions or until overruled by a higher superior court (unless previous decision manifestly wrong). 

Scene 17

Superior courts bound by own decisions or until overruled by a higher superior court (unless previous decision manifestly wrong)

Lower courts bound by decisions of Superior Courts in their area/jurisdiction

*N.B. read further on page 22 – 26 and create your own summary of notes for the different courts using the template provided on Moodle

[Audio] At the end of this presentation I'd like to thank you for taking the time to learn about the different roles and functions of legal professionals in South Africa. We've looked at attorneys and advocates prosecutors registrars and clerks of the court sheriffs messengers of the court magistrates and judges. This is fundamental to understanding commercial law in South Africa. Thank you again for your time and attention.. 

Scene 18

Attorneys and advocates Prosecutors (National Director of Public Prosecutions) – decisions to prosecute or not Registrars and clerks of the court Sheriffs/Messenger of the court Magistrates Judges

Slide 1

Scene 0

Law is an essential element of all societies
 functioning as a regulator of conduct in those societies. Commercial law is particularly concerned with the regulations that dictate business interactions
 determining the rights and responsibilities of those involved. Knowledge and comprehension of the legal fundamentals of commercial law is crucial in order to effectively manage these relationships and guarantee a legally binding agreement.

avatar

The South African legal system is based on the rule of law
 meaning that all people are subject to the same laws regardless of their social standing. Breaking a law can result in criminal or civil sanctions
 such as imprisonment or damages. Morals are based on personal beliefs and standards of behaviour
 and though immoral conduct can have consequences
 these consequences may vary. It is important to note that laws and morals form two distinct categories that shape our society.

The South African Constitution is the primary source of law in the country
 outlining a division of powers between the three branches of government
 known as the separation of powers. This arrangement helps to ensure that each branch of government is independent and has its own roles and responsibilities. Moreover
 the Constitution sets out the Bill of Rights
 ensuring fundamental rights
 both social and economic
 to all citizens. It also tasks the government with the responsibility to respect
 protect
 promote and fulfill these rights
 thus being held accountable for its actions and being responsible for upholding the rights of each citizen.

This presentation focuses on the legal aspects of business in South Africa. We will look at legal subjects
 objects and rights connected with business activities. In the law
 there are two types of persons  natural persons and juristic persons. Legal objects are objects of economic value and include personality property
 immaterial property
 corporeal things
 and performances. From a commercial law standpoint
 two types of rights exist: personal rights
 which can be exercised only against certain people
 and real rights
 which are enforceable against everyone. We hope you have found this presentation useful.

South Africa has established a hybrid legal system that combines Roman-Dutch law and English Common Law. This system reflects the history and shared values of the country
 such as those set forth by its indigenous people before colonization. The Dutch settlers began implementing Roman-Dutch law in 1652 during their arrival to the Cape
 and the British settlers followed with parts of English law being introduced in the 19th century. This combination of the two systems creates the hybrid legal system currently in place. This system enables South African courts to make decisions based on a combination of the two systems that is adapted to the local conditions.

Under South African law
 the primary sources are legally binding and include the Constitution
 legislation
 common law
 customary law
 custom and judicial precedent while the secondary sources are subordinate and generally persuasive
 such as international law
 foreign law and modern writings
 including academic textbooks and journals. Knowing the sources of law is essential to comprehending the South African legal system.

South Africa's Constitution is the fundamental law that serves as the highest form of authority in the Republic. It overrides any law or conduct that is contrary to its provisions. This Constitution was established after the country's transition from a parliamentary sovereignty to a constitutional democracy
 and is signified by the incorporation of the Bill of Rights in Chapter 2
 Section 8 (2). This Bill of Rights applies to all laws and binds all governmental entities. Furthermore
 the Constitution has a significant connection with other legal sources.

South Africa has a diverse and comprehensive legislative process. The Constitution of the Republic of South Africa is the supreme law
 and is binding on all other laws. It stands as a separate source of law on its own. The law-making body in charge of creating
 passing
 and enforcing laws is Parliament
 which consists of the National Assembly and the National Council of Provinces. Provincial and local levels of parliament also have the power to create legislation. This legislation is called statutes or laws and must be interpreted according to the spirit and intention of the law-making body. Understanding the interpretation of statutes is a topic that will be covered in Chapter 3.

South African law is defined by the common law. This is a set of laws that have been derived from other legal systems and that have developed over time. Common law is the primary source of law in South Africa
 meaning that it is legally binding. It is not entirely written and can be difficult to ascertain
 though it is outlined in academic textbooks and court decisions.

South Africa's legal system is a unique combination of customary
 common
 and statutory laws. Customary law has been followed by many communities for generations
 transmitted through oral tradition from parent to child. Courts have recently begun to recognise customary law
 granting many customs the status of primary law. In order for a custom to become law
 it must be reasonable
 long established
 recognised by the community
 and clear and certain; it must also not be in conflict with the South African Constitution. Understanding the background and complexity of South Africa's legal system is essential to comprehending the parameters of Commercial Law.

Stare decisis
 which means ‘to stand by previous decisions’
 is a key principle of Commercial Law applied in South Africa. This principle ensures fairness and consistency in court decisions
 as similar cases should be tried in the same court or lower courts. When one of the higher courts has adopted an interpretation or application of the law
 it sets a judicial precedent
 and other courts must follow it. Law Reports such as South African Law Reports exist to keep legal precedents accessible. Knowing the court hierarchy is essential to understanding which court decisions are binding
 and understanding the structure of a court's judgment is important to comprehend individual legal precedents.

When citing case law
 it is important to provide the names of the litigants
 year of the case
 volume number
 Law Report series
 and page number. An example of this is in the civil case law
 Smith v Jones 2005 (1) SA 412 (S-C-A--). This provides that Smith and Jones are the litigants
 2005 is the year
 (1) denotes the first part of the law report that year
 SA is the South African Law Report (publication series)
 412 is the page number on which the case is reported
 and S-C-A is the Supreme Court of Appeal in which the case was heard. More information can be found on pages 15-16 of the corresponding tutorial.

When discussing commercial law in South Africa
 one must pay attention to the various secondary sources of law that can affect how legal statutes are interpreted and understood. The Constitution of South Africa in Section 39 (1) (b) mandates the taking into account of international law
 and the Universal Declaration of Human Rights being the primary source of legal obligation. Section 39 (1) (c) of the Constitution permits the use of foreign law
 but it does not have binding authority. Nevertheless
 foreign law has persuasive power
 influencing how laws are written and understood. Moreover
 academic textbooks and journals offer beneficial perspectives on existing law
 given how they provide insight from additional legal sources.

South Africa's Constitution establishes a hierarchical structure for its judicial system. In this hierarchy
 superior court decisions are legally binding on those below
 while lower courts have no effect on higher courts. Jurisdiction  a dual concept referring to a court's power to make rulings according to subject area or geographical region
 as well as the extent of rulings they can make  is essential to South Africa's judicial system.

At the end of this presentation
 I'd like to thank you for taking the time to learn about the different roles and functions of legal professionals in South Africa. We've looked at attorneys and advocates
 prosecutors
 registrars and clerks of the court
 sheriffs
 messengers of the court
 magistrates and judges. This is fundamental to understanding commercial law in South Africa. Thank you again for your time and attention.