Describe from which legal systems the South African legal system originates

• The South African Law is based on Roman-Dutch law (common law), but is
not limited thereto.
• Other sources include court decisions, legislation and English Law.
• Roman-Dutch Law (on which our law is based) consists of 2 systems:
 Roman Law
 Dutch Law

Development of the Roman Law during the Roman empire:

The Period of Kings
Rome is relatively undeveloped, and the law consists of customs (753 BC- 510 BC).
Republican Period
Roman Law is systematised for the first time and put into writing in the Twelve
Tables (510 BC- 27BC).
The Period of the Emperors
The law developed into a sophisticated system due to works of the jurists (27BC-284
AD). AD: In the year of our Lord
The Dominate Absolute monarchy
The legal system stagnates and declines .

After the Germanic tribes conquered the Western Roman empire, the Roman Law
started to decline.
In the Eastern Roman empire Justinian ruled.
He instructed a commission to codify (put in writing) the legal system.
This codification was called the Corpus Iuris Civilis and consisted of 4 parts:
• Digest Opinions and writings of Roman jurists.
• Institutes Textbook for students.
• Codex Collection of current legislation.
• Novellae Collection of legislation enacted after the above mentioned
works.
The function of the law is a set of behavioural rules to regulate society in a peaceful
manner.
The State exercises its authority in this regard. Other rules of conduct not under the
authority of the State include ethics, morality, religion, etc.
Thus 2 terms can be distinguished:
 A system of rules applicable to the community (objective law).
 A right which a person has to something (subjective law).
 LAW & RIGHTS
 LAW = rules that the community must adhere to intented to regulate society in
an orderly way.
 LEGAL RULES = coercive OR regulatory (allowing parties to regulate their
relationship
 RIGHT = legally protected interest of a legal subject (person) in a legal object
(thing / car) which can be protected or enforced against other legal subjects.
 LEGAL SUBJECTS = ENTITIES

Constitutional law
Administrative
law
Public Law
Criminal law
Publieke Reg
Law of evidence
Criminal/Civil
procedure
National
Law
Law of persons
Nasionale
Reg Law of
succession
Objective Family law
Law Private Law Corporeal /
Objektiewe Private Reg Incorporeal
Reg property
Personality
International Internation rights
Law al law Obligations
Internasionale Private
Reg Internation
al law
A subjective right is a protectable interest which a legal subject (eg. a person /
company) has to a particular legal object (eg. A thing).
Subjective rights are divided into 4 categories:
1. Real rights Rights to a thing, eg. Land.
2. Immaterial / Intellectual Property rights Right in relation to the products
of his creativity, eg. Copyright.
3. Personality rights Right as objects of a person’s personality, eg. Good
name.
4. Personal rights Rights to claim against another to perform in terms of
an obligation , eg. Contract.

Custom as a Source of Law

• Custom plays a less important role in modern societies. However custom can
be so forceful that an unwritten rule is thereby created.
• To qualify as a legal rule, a custom must meet the following requirements:
• It must be reasonable.
• It must have existed for a reasonable period.
• It must generally have been observed by the community.
• Content must be certain and clear.
• Legal rules can be created by custom or they can be abrogated by disuse or
the development of a custom to the contrary. Legislation however can only be
repealed by a body which passes legislation.

Legislation as Source of Law

Acts of Parliament
• Historically the South African Parliament was sovereign. (Courts could not
declare an Act of Parliament void.)
• Constitution (Act 108/1996) radically changed this situation.
• Parliament passes legislation on national level. Parliament consists of the
National Assembly and the National Council of Provinces. Legislation is
usually passed by an ordinary majority. There are however exceptions eg. Bill
of Rights can only be amended by ⅔ majority.
• Courts now have the power to test legislation against the provisions of the
Constitution and declare it invalid if found in conflict therewith.
Provincial legislation
• 9 provinces each with its own legislature.
• Provincial legislature pass legislation on eg. Local government, roads, traffic,
ect.
Subordinate legislation
• Legislative powers have also been delegated to a number of bodies eg.
University councils, health bodies and Ministers.
• Regulations and proclamations are passed by them, this is known as
subordinate legislation.
• Requirements for valid subordinate legislation:
• It must be reasonable.
• It must be impartial.
• It must be certain and clear.
• It must be promulgated.
• It may not be ultra vires.
• Constitutional Court can declare an Act of Parliament, a provincial Act, or
conduct of the President invalid if found in conflict with the Constitution.
Jurisdiction of the courts
• Lower courts/ Civil jurisdiction limited to Rxxx and certain cases like
sequestration are excluded.
• Criminal jurisdiction limited to Rxxx or xxx years imprisonment (murder, rape
and treason excluded).
• Regional court jurisdiction limited to Rxxx and xxx year imprisonment (treason
excluded).
Xxx = due to te formation of new legal rules by courts the amount and year is set out
in the Government Gazette as applicble/updated.

Rule of Stare Decisis

• In terms of the doctrine a court’s decision creates a precedent and should be
followed by:
• Judges of the same court;
• Courts of a lower order which are subordinate to that court.
• Court is only bound by the ratio decidendi (the legal principle laid down) and
not the obiter dictum (opinion on a legal principle ‘in passing’).
Precedent is a legal principle or rule that is created by a court decision. This
decision becomes an example, or authority, for judges deciding similar issues
later. Stare decisis is the doctrine that obligates courts to look to precedent
when making their decisions. ... This decision becomes precedent.
SUMMARY
The requirements for a valid offer as follows:

a. there must be an intention to be bound by the acceptance;

b. all the material terms of the contract must be set out in the offer;

c. the content of the offer cannot be vague; and

d. the offer must be communicated to the offeree.

The requirements for a valid acceptance are as follows:

a. there must be an intention to enter into a legally binding contract;

b. the acceptance must be made by the offeree;

c. the acceptance of the offer must be unequivocal, otherwise it may amount to

a counter-offer;
d. the acceptance must be communicated to the offeror; and

e. the acceptance must take place before the offer terminates or expires.

…………………………………………………………………………………………………

Legality
In order for a contract to be valid, it may not be contrary to the law. An illegal contract
is one that contravenes a statute, the common law or public policy.

Possibility of performance
The contract must be objectively capable of performance at the time of entering into
it. If the contract is subjectively impossible (e.g., a specific party cannot perform a
specific obligation owing to their personal circumstances) or if it becomes objectively
impossible after it has been entered into, there will still be a valid contract at
inception.

Formalities, if applicable, must be observed

Certain statutes prescribe formalities in respect of particular types of contracts. In
some instances, parties may also include their own formalities.

Oral versus written contracts

There is no general requirement in South Africa that a contract must be in writing.
Oral contracts are enforceable as long as the requirements for the formation of a
valid contract have been met; however, in the case of an oral contract, it is often
difficult to prove that the requirements for formation have been met.
The burden rests on the party alleging the existence of the contract to show, on a
balance of probabilities, that the contract was formed. South African courts will
usually look at the conduct of the parties to establish whether a contract has been
formed and what its terms are.
There are certain statutes that require contracts to be in writing to be enforceable,
such as the Alienation of Land Act 68 of 1961, which requires all contracts for the
sale, donation and exchange of land to be in writing and signed by the parties.
…………………………………………………………………………………………………

Misrepresentation
This occurs when a guilty party induces an innocent party to enter into a contract by
making a false representation of fact by way of a pre-contractual statement or
conduct. The misrepresentation must be a material one in the sense that a
reasonable person would also have been induced to contract by the
misrepresentation. Silence or a failure to disclose information will not usually amount
to a misrepresentation unless there was a legal duty to disclose the information.
Misrepresentation can be fraudulent, negligent or innocent.
Although fault on the part of the misrepresenting party is not a requirement for
misrepresentation to be present, the degree of fault will play a role in what remedies
are available to the other party. The following remedies are available:

a. rescission of the contract: this is available even in the event of an innocent

misrepresentation. Once this election is made, all performances must be
restored;
b. delictual (tortious) damages: this is only available in the event of a fraudulent
or negligent misrepresentation;
c. the buyer may set aside the contract of sale; and

d. the buyer may claim that the purchase price be reduced to the true value of
the goods.

Duress
In this instance, an innocent party is induced to enter into a contract by threats of
harm. The duress must comprise a threat of actual (or a reasonable fear of) violence
directed at the innocent person, his or her property or his or her family. The violence
must also be imminent or inevitable and must have the potential to cause damage.
The remedies for a contract concluded under duress are:

a. rescission of the contract; and

b. delictual damages.
Undue influence
This occurs when a guilty party exploits the influence that it has over an innocent
party to induce the party to enter into the contract. The wrongdoer must have an
influence over the innocent party, which is unconscionably used to reduce the
innocent party's resistance and induces the innocent party to contract, to his or her
detriment.
The remedies for a contract concluded under undue influence are:

a. rescission of the contract; and

b. delictual damages.

NATURE OF A CONTRACT
Characteristic features of contracts:
• conclusion of a contract is neccesarily bilateral or even multilateral;
• a contract entails promises or undertakings on one or both sides.
• most contracts entail reprocity and can somewhat be regarded as a bargain, it can not be
enforced unless it is supported by a consideration (something in value must be promised in
return);
• The principle of contractual freedom simply holds that parties kan agree to any terms that is
possible and lawful;
• Contacts are consensual as it is based on agreement of some sort ; en / and
• contracts are bonae fidei.
CONSENSUS
• Basis of all contracts
• Can only exits:
- Where all parties to the contract has true intention
- Where respective wills through co-operation are identical
- Is to create a legal obligation with certain consequences (rights and duties with
certain economic effect)
- Three categories:
- True consensus – expressly or tacitly
- Assumed consensus – mainly terms implied by the parties
By operation of law – legislation for instance demands it
CONSENSUS – OFFER AND ACCEPTANCE
GENERAL:
- Declaration of intent by a prospective party to a contract containing a proposal with certain
content regarding the content of the contract bringing a legal obligation into being = OFFER
- Not an invitation to do business
- Validity?
1) actual knowledge by offerree;
2) Essentialia and other stipulations must be present
3) Clear certain and un-ambiguous
4) Formalities met – if applicable (ch 3.212)
5) Made with intention to create legal obligation. (not testing of waters)
CONSENSUS – OFFER AND ACCEPTANCE
GENERAL: OFFER
An offer is a statement of intent in which the offeror expresses (to the person to whom the offer is
conveyed) the performance and the terms to which he is prepared to bind himself. Being a unilateral
declaration, an offer does not in itself give rise to a binding obligation. For an offer to be valid, it must
be:
• Definite
• Complete
• Clear and certain
• Compliant with the requirements of the Consumer Protection Act, which, among other
things:
o Prohibits negative option billing and bait marketing

o Provides for a cooling-off period for certain contracts

o Regulates catalogue marketing

CONSENSUS – OFFER AND ACCEPTANCE

GENERAL: TERMINATION OF AN OFFER?
• The offeree rejects the offer. (expressly or tacitly) (counter offer)
• The offeror revokes the offer. (prior to acceptance)
• Either party dies before acceptance. (?)
• The period prescribed by the offeror expires, or—in the absence of a prescribed period—a
reasonable amount of time has elapsed.

GENERAL: ACCEPTANCE
 - unqualified declaration of intent by offerree approving without reservation with a
purpose of reaching consensus
- REQUIREMENTS?
1) ONLY BY OFFERREE – identity is important (also groups)
2) Clear certain and unambiguous
3) Formalities as met
4) Terms of acceptance and offer the same
5) Actual knowledge must be had if to be able to accept
6) Notice to the offeror as a general rule
7) Offerree must have serious intention to be bound.
FACTORS INFLUENCING CONSENSUS
• General = factors affecting consensus may affect either the contract coming into being or that
it came into existence but is voidable.
• Legal obligations does not exits or exists but can be cancelled
• Some forms render contracts null and void while = misrepresentation / duress / undue
influence / commercial bribery renders it only voidable.

Mistake
In contract law, a mistake is an erroneous belief, at contracting, that certain facts are true. It can be
argued as a defense, and if raised successfully can lead to the agreement in question being found void
ab initio or voidable, or alternatively an equitable remedy may be provided by the courts. Common
law has identified three different types of mistake in contract: the 'unilateral mistake', the 'mutual
mistake' and the 'common mistake'. The distinction between the 'common mistake' and the 'mutual
mistake' is important.

• Apparent agreement (it seem as if…), but because of misunderstanding, no agreement is

reached.
• Misunderstanding → either (1) or both (2) parties to the contract.
• Misunderstanding→ error or mistake leads to the wrong impression.

• Common mistake differs fundamentally from unilateral or mutual mistake in that it does not
lead to dissensus but nonetheless results in a contract's being void on the basis of an incorrect
underlying supposition.
• A mistake must have influenced a party's decision to conclude a contract to be relevant. A
crucial distinction in the classification of mistake is between material and non-material
mistakes:
• A material mistake is an error that vitiates or negates actual consensus between the parties
and, to this end, must relate to or exclude an element of consensus.
• A non-material mistake does not exclude actual agreement between the parties because it
does not relate to an element of consensus.

To enter into a contract, the parties must:

1. Have a serious intention to contract (animus contrahendi);
2. Have a concurrence of wills as to the material aspects of the contract (consensus ad idem);
and
3. Be conscious of their agreement.
If the parties are in disagreement about one or more of these elements, there is a material mistake.
Mistakes have historically been categorised according to type. The materiality of a mistake has been
determined on the basis of the type of mistake in question:

∙ An error in corpore is a mistake that concerns the contract's subject matter or object of
performance, and is regarded as material.

∙ An error in negotio is a mistake regarding the nature of the contract and is regarded as
material.

∙ An error in persona is a mistake regarding the identity of the other party to the contract. The
courts only regard this as a material mistake if the identity of a party is of vital importance to
the mistaken party.

∙ An error in substantia is a mistake regarding an attribute or characteristic of the contract's

subject matter, and is generally not regarded as material.
 ∙ Mistake as to the motive for entering into a contract is not regarded as material.

An error iuris is a mistake of law and is not regarded as material if it relates to motive.

A misrepresentation is any statement by words or other conduct that, under the circumstances,
amounts to an assertion that is false or erroneous, i.e., not in accordance with the facts. A
misrepresentation, therefore, may be intentional or negligent (i.e., a "fraudulent misrepresentation" or
a "negligent misrepresentation").
Unlike a fraudulent misrepresentation, which requires that the person making the representation know
it is false or incorrect and intend to deceive or mislead, a negligent misrepresentation merely requires
that one fail to exercise reasonable care or competence to obtain or communicate information that is
true or correct.

Fraudulent
The representation, when made, was either known to be false or made recklessly without knowledge
of its truth. The representation was made with the intention that the other party rely on it. The other
party did, in fact, rely on the representation.

Negligent
Negligent misrepresentation is when a person does not lie directly (saying something knowing it to be
untrue), but has made a statement about a subject with no reason to believe it to be fact.

Innocent
Innocent misrepresentation is a false statement of material fact by the defendant, who was unaware at
the time of contract signing that the statement was untrue.
DURESS

• …person does something he will not usually do…

• … person has no contractual capacity because of his mental state…
• The other party to the contract must have been responsible for the duress
• the duress must have caused the conclusion of the contract
• wrongful threat of damages or harm
• contract is prejudicial to the party under duress
• the threat must be of an imminent or inevitably evil
UNDUE INFLUENCE
• Obtained an influence, in an unconscionable manner, over the other party to the contract
• in the process rendering his will pliable and open to manipulation
• so that consensus is reached (would not have reached this consensus out of own free will)
and a contract is indeed concluded.

• Delictual claim for damages is possible.