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South Africa

South Africa is a democratic republic consisting of nine provinces. A new constitution, adopted on 8 May 1996, radically transformed the legal system. This constitution embodies the supreme law of the land, binding all organs of state at all levels of government. It establishes a competent, independent and impartial judiciary and incorporates a constitutional court with the power to review and abolish legislation inconsistent with the Constitution. Legislation that is irreconcilable with the Constitution will be held to be invalid to the extent of the conflict, whether such legislation existed prior to commencement of the Constitution or was adopted subsequently. The Constitution includes a Bill of Rights whereby recognition is given to the rights of all to enjoy universally accepted fundamental rights, freedoms and civil liberties. The Constitution outlaws most forms of discrimination and emphasises a legal system that ensures equality before the law, as well as an equitable legal process.

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1. Introduction

a. History and background

South Africa is a democratic republic consisting of nine provinces. A new constitution, adopted on 8 May 1996, radically transformed the legal system. This constitution embodies the supreme law of the land, binding all organs of state at all levels of government. It establishes a competent, independent and impartial judiciary and incorporates a constitutional court with the power to review and abolish legislation inconsistent with the Constitution. Legislation that is irreconcilable with the Constitution will be held to be invalid to the extent of the conflict, whether such legislation existed prior to commencement of the Constitution or was adopted subsequently. The Constitution includes a Bill of Rights whereby recognition is given to the rights of all to enjoy universally accepted fundamental rights, freedoms and civil liberties. The Constitution outlaws most forms of discrimination and emphasises a legal system that ensures equality before the law, as well as an equitable legal process.

The legislative authority of South Africa vests in Parliament, composed of a national assembly and a senate. The National Assembly has 400 members, elected in accordance with a system of proportional representation. Half of the members are elected from regional lists and the other half from a national list submitted by the respective political parties. The Senate is composed of ten senators nominated by the political parties represented in the provincial legislature for each province.

Provincial legislatures have between 30 and 100 members, who are elected by a system of proportional representation at the same time as the election of the members of the National Assembly. Generally, provinces have jurisdiction over abattoirs, airports (other than national and international airports), animal control and diseases, consumer protection, indigenous and customary law, markets and pounds, and provincial sport, recreation and conservation. However, a law passed by Parliament prevails over a law passed by a provincial legislature if the subject matter is such that uniformity throughout the country is essential. Also, Parliament sets minimum standards across the nation for the rendering of public services.

The office of the independent and impartial ombudsman (commonly known as the Public Protector) was established in 1991. The Public Protector has important powers relating to investigation into the abuse of government power and maladministration. The Human Rights Commission, however, is the body tasked with promoting the observance of, respect for and protection of fundamental human rights.

The currency of South Africa is the rand (ZAR).

b. Legal system

The principles embodied in the legal system were adapted from both Roman-Dutch and English law. The judiciary, enshrined in the Constitution, consists of the Constitutional Court (highest court of appeal in constitutional matters), the Supreme Court of Appeal (highest court of appeal in non-constitutional matters, having only appeal jurisdiction), the High Court (having inherent jurisdiction over all legal matters, including tax matters) and the inferior courts (i.e. magistrates’ and regional courts, having limited jurisdiction).

Apart from legislation, common law has developed through cases brought before the courts, the principles behind these decisions, the writings of the old Roman-Dutch writers, and certain aspects of English law. The judicial system is one whereby decisions of higher courts bind those of lower courts, and parties have a right of appeal from lower courts to higher ones.

The South African legal system is split into the two branches of civil and criminal law. Civil law includes the laws of persons, families, obligations (including contract), torts, succession, mercantile matters, property and trusts. A system of specialised tribunals has been established to settle disputes, such as those involving employment issues. Tax matters are referred to the Tax Court, a court constituted by the provisions of the Income Tax Act.

Editorial board
Mervin Messias TEP
Mervin Messias Attorneys, Johannesburg, South Africa
Julian Ware TEP
Trust & Tax Management, Johannesburg, South Africa

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