Friday, November 26

The Law

Absolutely fascinating, that’s what it is. I haven’t been able to put my books down since I’ve started studying business law, which is a good thing as its slower going than the road to Colesburg. Since my wife has forbade me from the bedroom if I start talking about it, I'll post a few comments. If you have no interest in South African law or your knowledge is more advanced than someone whose been stuck in one or another lab for the last ten years, skip this post.

South African Law is based on Roman-Dutch Law, also referred to as Common Law. This is the law system that was developed in the Roman marketplace from around 1500 BC to 500 AD, and was applicable in the Netherlands until around 1806.

To confuse matters, many English law traditions have been incorporated during the period when South Africa was a British colony. South Africa has both a bar as well as a sidebar. Advocates (England’s barristers) who represent people indirectly before the higher courts, and Attorneys (England’s solicitors) who represent people directly before the lower courts and can hire an advocate for actions before the higher courts.

Judges can also consider English law persuasive to any arguments that have no precedent in South African courts, as well as the writing of the legal scholars of the Netherlands from around 1600 to 1800. (Technically Roman law can also be used).

South Africa uses a system of Judges, although jury systems have been used in the past. I’m too clueless as to comment on whether this is a good or a bad thing, but the consensus seems to be that sometimes its better, sometimes its worse.

Four Sources of Law govern Southern Africa. The highest source is the constitution, which is defended and interpreted by the constitutional court in Johannesburg. Legislation passed by parliament or the national council of provinces is the next level of law. Much of the work of the last ten years has been passing or amending the laws passed by the apartheid parliament, or that are not allowed by our new constitution. Any higher court can declare a law unconstitutional however, but that declaration needs to be ratified by the constitutional court.

The next level is precedent, without which the court couldn’t properly function. Precedent says that a court is bound by a previous decision of a lower or equal court, even if they believe the decision to be wrong. A lower court cannot set precedent, and must follow any higher courts decision. The Higher courts are free to decide issues for themselves however even if a higher court in another province has already decided an issue. This leads to the law being in conflict in various provinces and has lead to some serious problems. Quite why high courts are allowed to disagree with other high courts I haven’t been able to figure out.

The Supreme courts of appeals (in Bloemfontein) is the highest court in the land, although they are bound by the constitutional court in matters related to the constitution. As Ive already said, Roman-Dutch law forms the basis or our law and the fourth source.

Technically there are two more sources. These are custom and customary law. Custom is relatively unused principle that has only been employed once. Customary law is another matter, and the complete dissonance between the constitution and customary law make its application in actions where both parties do not agree to its implementation almost impossible. Headmen or village councils can hear cases, but the plaintiffs or accused have an automatic right of appeal to the local Magistrate. Much of the wrangling in the Eastern Cape and Kwazulu-Natal has been about traditional leaders wanting to see customary law, and consequently their influence, be given more power in our system of law.


Blogger mal said...

Hey Richard - interesting and useful summary. Please can you clarify whether precedent is binding? I am a little surprised that precedent might be as binding and irrevocable as you suggest. I had thought that precedent was a foundational structure for the decisions of a court, but that it might very well be overturned or revised in a judgement. This because courts, in the common law, are law-making bodies, as well as law-interpreting bodies.

29 November 2004 at 10:25  
Blogger Richard said...

Sorry, I made a mistake in precedent. Courts of equal standing are allowed to overrule each other. However:

Courts are bound by their previous decision. This is the principle of, to be fancy and use the Latin, stare decisis or 'to stand by previous decisions'. It states that a court must follow the decisions of a higher court where applicable. A court should follow the decision of a equal or lower court where the legal issues are the same, unless the court is satisfied that the other court was clearly wrong.

Precedent can only be set by the higher courts (i.e Constitutional, Supreme court of Appeals and High Courts), and High courts in different provinces are not bound the each other decisions.

A full bench (3 judges) of a High court can therefore overturn the decision of the same High court where only a single judge precided. A Single Bench of that court would be highly unlikely however to overturn another judges decision of the high court, and cannot overturn the decision of a full bench of his own court.

If a full bench of the high court in Johannesburg makes a ruling only a full bench of the same high court, the supreme court of appeals or the constitutional court can overrule that decision. Other high courts in the land would still be free to rule otherwise in the matter, but would be highly unlikely to do so.

Magistrate courts in other parts of the country would not be allowed to overrule the Johannesburg High courts decision, unless the high court in their own province or a court of equal standing elsewhere in the land have delivered a conflicting vedict.

For example, the full bench in Johannesburg makes a decicion, therefore binding all magistrates by its ruling. A Single bench in Natal then overrules that decision, meaning all Magistrates in Natal are then allowed to consider arguments to the case as there is a conflict, but Magistrates in the rest of the country are still bound by the Johannesburg high courts decision as it was a full bench ruling as opposed to the single bench ruling in Natal.

29 November 2004 at 14:57  
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I think. ;-)

29 November 2004 at 19:35  
Blogger mal said...

How simple it all is once the principle is explained! Sarcasm aside, it does make sense, thanks man.

Have a look at this for an illustration of the principle in action.

30 November 2004 at 15:58  
Blogger mal said...

The SAPA article I mentioned in my previous post just now says reports Evart Knoetsen as saying 'in principle, same-sex marriages could now be recognised but various statutory stumbling blocks, which regulated marriage, still had to be sorted out.'

In other words, Edwin Cameron's amendment of the common law of marriage might mean that his decision contradicts some statutory law regulating marriage. What happens in the case of a conflict, assuming Parliament doesn't amend the statute before it happens? Does common law override contradictory statute, or vice versa? I mean, people can't be half-married: either they are or they aren't...

30 November 2004 at 16:04  
Blogger Richard said...

The Supreme Court of appeals has ruled that same sex marriage is allowed under the constitution.

Legislation trumps precedent however, so if there were legislation prohibiting or stopping same sex marriage then that legislation would have to be overturned.

The high courts, the supreme court of appeals and the constitutional court has the right to declare legislation invalid if it goes against the constitution.

This ruling would presumably force the High court to now declare such legislation invalid according to precedent. The high courts ruling would then have to be ratified by the Supreme court of appeals and the constitutional court before the high court ruling would come into effect. The constitutional court can also choose to hear this case directly.

I assume this would have to be done for each and every piece of legislation prohibiting same sex marriage. That is why I presume the court wanted to give parliament time to change legislation. It would be a lot easier and a lot less messy to do so at the legislative level then at a judicial level.

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Austrailia, aboriginals:::No domesticable animals.

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