INTRODUCTION

TO COMMERCIAL
LAW (CLAW 621)
2018
 TOPIC 1
INTRODUCTION TO LAW AND LEGAL
SYSTEMS
• Fundamental Concepts: Definition of Law, Legal personality, Main
divisions of Law

• Sources of Law, Categories of Law & Court Structure

• Litigation, Legal Professionals & other Officers of the court

• Blended Learning + Revision

 The court system
• The court system in South Africa is hierarchical with the
Constitutional Court and Supreme Court of Appeal at the apex.

• Section 34 of the Bill of Rights in our Constitution says everyone has

the right to have any legal problem or case decided by a court or an
independent body.

• The ability of each court to inquire into and decide upon a matter is
termed it’s jurisdiction, and this is limited by certain factors.
 Jurisdiction:
• A court is restricted by certain factors which limit the ability of the
court to hear a matter.

• The jurisdiction of a court is determined by the following factors:

• Authority to hear constitutional matters: not allowed in magistrate’s
court, usually start in the HC, and follow path upward by use of appeals.
 Jurisdiction:
• The jurisdiction of a court is determined by the following factors:
• Geographical territory: CC and SCA have national Jurisdiction, whereas
other courts are restricted to certain geographical locations.
• Amount of claim in civil proceedings: magistrate’s court is usually limited
to claims of R100 000.00. whereas claims in the High court have no such
limit. The Small claims court has a limit of R15 000.00 (increases regularly).
 Jurisdiction:
• The jurisdiction of a court is determined by the following factors:
• Severity of sentence in criminal proceedings: magistrate’s court cannot
impose a fine exceeding R60 000.00 or a sentence over three years. The
Regional Magistrate’s court cannot impose a fine exceeding R300 000.00 or
a sentence exceeding fifteen years. Matters out of the reach of the MC or
RC are handled by the HC.
 Jurisdiction:
• The jurisdiction of a court is determined by the following factors:
• Nature of the proceedings: A magistrate’s court cannot hear certain
criminal and civil matters. A regional court cannot hear matters which
affect the status of natural persons (however, this has recently been
updated: RC’s can hear divorces).
• Appeal jurisdiction: magistrate’s courts have no appeal jurisdiction. High
courts are courts of appeal for magistrate’s courts.
 The Constitutional Court:
• The Constitutional Court is in Braamfontein, Johannesburg and it is the highest
court in South Africa. It only deals with constitutional issues.

• There are 11 Constitutional Court judges but cases only need to be heard by 8
of them.

• No other court can change a judgment of the Constitutional Court. If the

Constitutional Court makes a decision that says a law must be amended or it
cannot be passed because it is unconstitutional, Parliament can decide to
change the law in order to make it constitutional.
 The SCA:
• The Supreme Court of Appeal is in Bloemfontein in the Free State. Except for the
Constitutional Court, this is the highest court in South Africa. It only hears APPEALS
from the High Court.
• All cases in the Supreme Court are heard by three or five judges.

• Except for the Constitutional Court, no other court can change a judgment of the
Supreme Court of Appeal. Only the Supreme Court of Appeal can change one of its
own decisions. But if parliament does not like the way the Supreme Court of
Appeal  interprets a law, then parliament can change that law (if the majority vote
for this).
 The High Courts:
• The High Courts can hear any type of criminal or civil case. The High Courts
usually hear all the cases that are too serious for a Magistrate's Court. It also
hears appeals and reviews against judgments in the Magistrate's Court.

• Cases in the High Courts cost more money.

• All cases in the High Courts are heard by judges. In civil cases usually only one
judge hears the case. But if the case is on appeal then at least two judges must
hear the case.
• In criminal cases only one judge hears the case.
• Sometimes in very serious criminal cases the judge appoints two assessors to help a
judge. Assessors are usually advocates or retired magistrates. They sit with the judge
during the court case and listen to all the evidence presented to the court. At the end
of the court case they give the judge their opinion.

• The judge does not have to adhere to the assessors' opinions, but it usually
helps the judge to make a decision.
 Magistrate’s Courts:
• These are the lower courts that deal with the less serious criminal and
civil cases.

• The Regional Magistrate’s courts deal with both civil and criminal matters
and have recently been given jurisdiction to deal with divorce cases. The
District Magistrate’s courts deal with criminal and civil cases.

• The magistrate makes the decisions in a Magistrate's Court sometimes on

the advice of assessors.
• Most magistrate’s courts can hear Equality Court cases. These are
cases where you feel you have been discriminated against or
harassed or subject to hate speech.

• Magistrate's Courts can be divided into either criminal courts or

civil courts.
 Small Claims Court:
• https://youtu.be/yvWjvZm1RfI
 Small Claims Court:
• SCCs are situated in the magistrate’s courts. If there is no SCC in
your area, you must bring your case in the Magistrate’s Court.
• A Commissioner presides over the proceedings and decides who is right and who is
wrong.

• The SCC is easier and cheaper for people to use to settle disputes.
The court charges a small fee to cover the cost of the summons and
the fee of the Sheriff of the Court.
• You cannot use legal representation in the SCC (be represented by
one) but you can get advice from a paralegal or an attorney to prepare
for your case in the SCC.
• Further, a juristic person cannot use the SCC.

• You can only use the SCC for claims up to a value of R 15 000. If you
claim is for more than R15 000 you can give up part of the claim so
that it is R15 000 or less. 
 Legal Professionals:

• The legal discipline consists of many vocations:

• Judges and magistrates
• Officers of the court
• State advocates and State attorneys
• Advocates and attorneys
Attorneys:

• Handle the general legal work, that is, meet with clients, draft
contracts, set up companies, advise on legal matters, etc.

• Attorneys are usually tied up to the logistics and overview of a

matter which has gone to court – although it is their responsibility to
advise the client through the use of strategic and tactical thinking.
Advocates:

• Advocates are legal specialists. That is, they are responsible for
having and deploying a much deeper knowledge of the law.

• Further, they are the predominant professional used to represent

a client in court.

• They cannot, however, be directly briefed by a civilian as they

always receive their matters via an attorney.
• Attorneys and advocates both have legal professional privilege which is
necessary to protect the confidentiality of communication between legal
practitioners and their clients.
• Better known as ‘attorney-client privilege’.

• The purpose of this privilege is to allow the client and legal practitioner to
communicate freely about issues that are the subject of legal proceedings, or are
anticipated to be.
• Communication meeting the criteria of legal professional privilege cannot be required
to be produced in court or used as evidence in legal proceedings.
• See table 1.5 for the differences between attorneys and advocates on
page 35 of the text book.
END