Business & Commercial Law 2013

Law  Law is a set of rules governing human conduct, recognised as binding by people and enforced by the State

Division of law Substantive LawAdjective Law The context & meaning of lawsHow the substantive law is enforced The Law Public LawPrivate Law Public International LawLaw of Persons Constitutional LawFamily Law Administrative LawProperty Law Criminal Law & ProcedureLaw of Succession Civil Law & ProcedureImmaterial Property Law Law of EvidenceLaw of Delict

The SA Legal System Origins of our law Our law is based on Roman-Dutch Law and is also influenced by Roman Law & English Law

The Sources of our Law  Legislation (Acts or statutory law)  The Constitution  Common Law  Judicial Precedent ( Stare Decisis)  Customary Law  Old Authorities  Foreign Law & Textbooks etc (persausive)

Example – Consumer Protection Act 68 of 2008

The Divisions of Power Legislature – makes the law Executive – implements & enforces the law Judiciary – interprets the law & determines disputes

Court System Constitutional CourtSupreme Court of Appeal The High Court Provincial & Local Divisions Specialised Courts The Magistrates’ Courts Regional CourtsDistrict Courts Small Claims Court

Civil Procedure  Civil procedure provides the rules for civil matters in the Courts  Litigation commences by way of either an application or an action procedure

Action Procedure  Summons  Appearance to defend  Request for further particulars  Reply  Plea (& counterclaim)  Discovery  Trial  Judgment  Appeal  Execution

Application Procedure  Notice of Motion with Founding Affidavit  Answering Affidavit  Replying Affidavit

Criminal Procedure  Complaint laid at SAPS  Arrest & charged  Bail  Plea  Trial  Verdict  Evidence in mitigation / aggravation  Sentencing  Appeal

The problems with the Court system  Adversarial  Time consuming  Costly

Alternative Dispute Resolution  Negotiation  Mediation  Arbitration

The Law of Contract  A contract “can be described as an agreement concluded by two or more persons with the serious intention of creating legally enforceable obligations”.  Havenga (2010)

Requirements of a valid contract  Consensus  Capacity to Act  Legality  Possibility of Performance  Formalities