Commercial Law 1A
(CLW101)
Unit 1
Background to law in South
Africa
• Lecture outcomes:
After the lecture students must understand the following:
❖ What is the law?
❖ Why is the law important?
❖ What are the two different types of rules?
❖ What is the role of the state?
❖ How doe the law relate to the business world?
What is the Law?
• Rules made by the state/government
• Why?
• Laws define what has to be done/ what
shouldn’t be done
• Examples?
Why is the law important?
• Is law important
• Why is law important?
• Society without rules?
• Connection between law and
business?
Two different types of rules
• 1. Legal rules/law= rules of the state
• examples
• 2. moral/ethical rules=personal rules of
behavior
• examples
What is the role of the
government?
• Government- divided into different sections (called
organs of states)
• Makes laws/enforces laws
• Example; Parliament (makes laws)
• Cabinet (puts laws into place)
• What is the role of Parliament? Makes laws
• Who enforces the law? Police
• Who makes sure that law is enforced? Courts
The Law and business
• Why is law important for business?
• Why should law regulate business
• Should government make rules about
business?
• Types of rules for business
• Questions??
Section outcomes
• After this section, student must know and
understand the following:
• What is a source of the law
• The different types of sources law
• The power/influence of each source of law
• Where each source of law is found
Sources of South African Law
• Sources of law= where do you find the
law?
• South African law is found in different
places/sources
• Different sources have different power
Main sources of South African Law
1.The Constitution
2.Legislation
3.Common law
4.Customary law
Main Sources of South African Law
continued…
5. Judicial Precedent
6. Foreign law
7.International law
8. Trade Practices and Customs
9. Academic textbooks and journals
1. The South African
Constitution
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Constitution
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The Constitution of South Africa
What is a Constitution?
Highest law/power in South Africa
Where can you find the Constitution?
When is the Constitution used?
Highest influence
2. Legislation
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Legislation
• What is legislation? high influence
• (Acts/Statutes)- made my Parliament
• Provincial/local government can also make
legislation
• By laws- rules made for specific city/town
• Comes after the Constitution in terms of
power
• Examples; Companies Act
3. Common Law
Legal rules from
other countries
Roman-Dutch
law
Court
decisions/cases
Roman Law
Common Law
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Not a single set of laws/rules
Develops over time
Develops from court cases
Influences from other laws (Roman Law
E.g English law rules,Roman-Ducth Law
Examples?
High influence
4. African Customary law
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African Customary law
• What is customary law? Laws and tradition
of African, culture of people
• Remember!! Must be inline with the
Constitution
• Why is it important?
• Examples? Lobola (bride price),
customary law marriage, ukuteka
• High influence
African Customary Law
• Example of a culture against the South
African Constitution
• Bhe v Magistrate Khayelitsha
• What happened in this case? Rule that
didn’t allow women to inherit (received
property from father after death).
• Court ruled= rule is unfair and
discriminated against women.
5. Judicial Precedent
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Judicial Precedent
• Judicial Precedent=Court decisions
• Meaning? Court must decide similar cases
in a similar way
• Why? To provide certainty/know what to
expect/ consistency in the law
• Known as ‘stare decis’- stand by previous
decision
• High influence
6 Foreign Law
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6. Foreign Law
• Meaning=Law from countries outside South
Africa
• Example; laws from Zimbabwe, Lesotho
• Why is foreign law helpful?
• Constitution allows for courts to consider the
laws of other countries
• Limited influence
7. International Law
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International law
• Meaning= Law of nations
• Made up of legal agreements and rules
with other countries
• Constitution states= courts must consider
international law
• High influence
8. Trade practices and Customs
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Trade practices and Customs
• What? Practices and customs/ methods used in
a particular trade (industry)
• Example; fishing industry
Requirements?
1.Certain
2.Uniformly observed for long time
3.Reasonable
• High influence
9. Academic Textbooks &
Journals
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9.Academic textbooks and journals
• Writings of academics and people who are
experts
• Limited influence
• Persuasive power
• Not a primary source of law
Questions??