JUR UNIT 9 Flashcards | Knowt (2024)

History of common law in SA (1)

SA has a mixed legal system and a system of of legal pluralism

Common law (1)

a primary source of law that is the basis of modern SA law, 17th and 18th century RD law imposed on the Cape with English Law influences (through precedent mainly) and general legal principles mostly stem from this

Common law (2)

modern interpretations of common law can be found in case law and legislationwith common law principles mostly being in cases that applied them

Examples of legal principles that stem from law

murder, theft, robbery, compensation for damages caused wrongfully

Common law (3)

can be consulted when a specific matter is not governed by legislation and can become abrogated by disuse

1910

SA had 4 British colonies with RD law as the common law

Old sources of RD law

legislation like the Bataavian Placaaten and Indian Statutes some of which still apply in SA,judgements of old courts like the landdrosten and heemstroden, writings of old authorities/learned authors e.g., De Groot, Voet

History of common law in SA (2)

RD is roman law received and developed by the Dutch and some legislation came from English law e.g., Insolvency Act and constitutions and courts were also influenced by English law and doctrines when making decisions (for courts

When do we consult old sources of common law

when a certain matter is not governed by legislation, applicable case law precedent does not exist, existing precedent on common law is incorrect, general uncertainty on a common law matter

S2

the consitution is the supreme law of SA and any law or conduct inconsistent with it is invalid thus common law is subordinate to it. “Any” law can include common law

S8(3)

a court in giving effect to a right in the BOR, has to apply, or if necessary, develop common law to the extent that legislation does not give effect to that right

S39(2)

in developing common law, every court, tribunal or forum must promote the spirit, purport and objects of the BOR

S39(3)

the BOR does not deny the existence of other rights and freedoms recognised and conferred by common law to the extent that they align with the BOR

S173

the CC, SCA and HH have the inherent power to develop common law, taking into account interests of justice

The constitution on common law (1)

The constitution declares clearly that common law remains in force in democratic SA but is nevertheless subject to constitutional control

The constitution on common law (2)

Courts are empowered to develop the common law and if they do so, this must be done in a way that promotes the spirit, purport and objects of the BOR

The constitution on common law (3)

Common law can be used as a tool to give effect to the BOR and these two sources do not always have to be seen as opposites

Carmichele Case Facts (1)

The applicant was sexually assaulted by a man awaiting trial for attempting to rape another woman

Carmichele Case Facts (2)

Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial and the Magistrate then granted bail

Carmichele Case Facts (3)

The applicant sued the Minister for damages arguing that police and prosecutors had negligently failed to comply with the legal duty they owed her to take steps to prevent the man from causing her harm

Carmichele Case Legal Question (1)

raised the question of the constitutional obligation resting on the courts to develop common law to promote the spirit, purport and objects of the fundamental rights provision

Carmichele Case Legal Question (2)

whether the HH and SCA ought to have broadened the concept of wrongfulness as understood in the law of delict in light of the State’s constitutional duty to safeguard the rights of women

Carmichele Ratio Decidendi (1)

The court held that even though the major engine to reform law is legislature, courts are under a general duty to develop the common law where it deviates from the spirit, purport and objects of the fundamental rights provisions

Carmichele Ratio Decidendi (2)

Constitutional aspects had not been addressed by either the HH or SCA but this does not detract from the obligations on these courts to develop the common law if appropriate to do in any specific case

Carmichele Ratio Decidendi (3) 1

a 2 stage enquiry was set out by the court regarding developing common law: first consider whether the existing common law, having regard to S39(2) objectives requires developing according to these objects

Carmichele Ratio Decidendi (3) 2

if the enquiry leads to a positive answer, the second stage is concerned with how such development must take place in order to meet S39(2) objectives

Carmichele Ratio Decidendi (4)

The court considered the potential liability of both police and prosecutors and for the police, the state was obliged by the Constitution and international law to prevent gender-based discrimination protecting the dignity, freedom and security of women. It is important for women to be free from the threat of sexual violence

Carmichele Ratio Decidendi (5)

in the specific circ*mstances of this case, the police recommendation for Coetzee’s release could thus amount to wrongful conduct giving rise to liability for consequences

Carmichele Ratio Decidendi (6)

Prosecutors who were under a general duty to place before the court any information relevant to the refusal/grant of bail might reasonably be held liable for negligently failing to fulfill the duty

Question on the decision in Carmichele (1)

In this case, the CC explained how to deal with a common law principle not in line with the constitution and the court held that the influence of the constitution is mandated by S39(2) which states that when developing common law, the court must promote the spirit,purport and object of the BOR

Question on the decision in Carmichele (2)

Where the common law deviates from this, the SCA and HH have the obligation not discretion under S173 to develop common law to remove the deviation and bring common law in line with S39(2) obligations

Question on the decision in Carmichele (3)

In cases where the validity of the common law is questioned, a two tiered enquiry was made by the court: does existing common law require developing in regards to S39(2) and if yes, how must such development take place in order to meet S39(2) objectives

National Coaltion Case

dealt with criminalisation of sodomy. At common law, intimacy between two consenting males (sodomy) was a crime. CC found that this infringed on the constitutional rights of gay men to equality and privacy. The offence was declared invalid.

Fourie Case

the common law definition of marriage as a union between a man and woman did not accommodate same-sex couples. The CC held that this definition discriminated against same-sex couples and directed parliament to draft legislation giving effect to the right of equality and remedy common law which led to the enactment of the Civil Union Act

Khumalo Case

common law definition of defamation (wrong intentional publishing of defamatory statements) provides for an appropriate balancing of freedom of expression and right to dignity
CC confirmed that common law complied with the constitution