Legal Structure, Rule Of Law, Court System, Contract Law, Intellectual Property And Employment Law In South Africa And Australia

Discuss about the Legal Structure Of South Africa.

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Legal structure

South Africa

Australia

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Legislative system

In South Africa, a mixed legal system can be observed. The constitution maker of the country has taken different parts of the legislations from different countries. The civil law system of the country has been taken from the Dutch, the customary law system has been inherited from the indigenous Africans and the common law system of the country has been adopted from the British (Crush and Peberdy 2018). Certain legal provinces such as the civil and criminal law, company law, constitutional provisions and evidence law are reflecting the ideology of the English rule (Ginsburg 2016). On the other hand, tort law, personal law and family law of South Africa are governed by the Dutch rule.

Australia’s legal system includes certain codified and uncodified legislation. The main law enforcement body is the Federal Parliament. The role of the constitution is very important in this case. most of the legislative provisions are the combination of the Westminster and USA law. There are four sources of law such as constitutional law, statute law, common law and international law. In the federal structure of Australia, separation of power can be observed.

Rule of Law

There are certain situations where the state has to face certain dilemmas and in those cases, state can exercise their power to restrict all those powers by subordinating them. Further, rule of law helps to protect the interest of the state and other authorities. The concept of rule of law is an English concept and the law of the society is influenced by this. Samuel Rutherford has coined the term in divine right of king. The provisions of rule of law include all the people under the shadow of law and according to this, all the people should have to abide by the principle of law (Singer 2018). In South Africa, certain laxities regarding the term can be observed and it has created negative impacts on the society. The ultimate intention of rule of law is to make a society where the legal system is quite transparent and all the legal provisions are fixed. Therefore, the government has the liability to maintain the rule of law. The provisions of the rule of law are required to be strong to reduce incidents like human right violation, corruption and poverty.

According to the Australian legal rule, every individual is under an obligation to obey the rule of law and government is a part of the same. A western style can be observed in this case. Further, the interest of the public has been protected by this. According to this rule, no arbitrariness could be applied or showed off by the government.  All the rules of law should be specified clearly and the order of the legislative authority should be for the protection of the human rights (Singer 2018).

Court system

A hierarchical court system can be found in South Africa. The apex legal authority of South Africa is the constitution and there are certain courts that are been established within the territorial jurisdiction of South Africa. There are number of regional and district Magistrates’ Court. There is a single High Court established in South Africa that deals with regional and local divisions of the country. Further, there is Supreme Court of Appeal that deals with the appellate section and according to the Sixth Amendment of Constitution; High Court of South Africa is lower compared to the Supreme Court of Appeal. In case of any fundamental matters, the Constitutional Court has all the rights to interfere in the matter (Luiz 2016).

Unlike South Africa, High Court is the apex legal authority in Australia. All the federal powers have been incurred by the Constitution on the High Court. After that, the court’s power of Australia has been imposed on the State or Territory court and on the Commonwealth court. Under the observation of the State court, there are other courts like Supreme Court, Intermediate court and lower court. Under the observation of the Commonwealth Court, there are Federal courts and Family courts. Both this courts have certain Federal Magistrate’s court. 

diagrams of court

Supreme Court of Appeal/ Constitutional Court— High Court— Magistrates’ Court

High Court of Australia— State court (Supreme court + Intermediate court + Lower court)—Commonwealth court (Federal court + Family court)

Contract Law

South Africa

Australia

Formation

The South African Contract Law resembles the facts of the Roman-Dutch law. It provides certain legal obligation before the formation of the contract. According to the contract law (Common law provision), certain things are required so that the contractual agreement could be valid. The requirements are as follows:

  • According to the Contract Law, meeting of mind between the parties are quite necessary and they should have the legal intention to be binding by the legal rules of the Contract Act;
  • The contractual parties should have all the legal capacities to be entered into the agreement;
  • The parties to the contract should be acquainted with the terms and conditions of the contract;
  • All the necessary formalities should be maintained by the parties and the nature of the contract should be legal;
  • All the programs mentioned in the contractual agreement should be of such nature so that it is possible to be performed;
  • The contents of the contract should be certain and there should be no vagueness regarding the subject matter of the contract.

Most of the parts of the Australian Contract Law based on the English Law and following are the essential requirements of court formation such as:

·         An agreement should be made between the parties;

·         There should be certain forms of consideration;

·         The contracting parties should have attained the capacity to enter into the contract;

·         The parties should have the mentality to be bound by the terms and conditions of the contract;

·         The terms of the contract should be clear and certain.

Elements

The first essential is the offer and acceptance (Butler 2017). According to the Contract Law of South Africa, the offer should be definite, certain and complete. When the offer has been accepted, the contract will be formed. There should be certain consideration in that case and acceptance should be unconditional and unequivocal. Both the party should have to give their consent over the contractual issues and no parties are expected to apply certain illegal things like the misrepresentation, duress or coercion. Further, the parties should have to obtain all the capacities in this case.

There are six essentials of contract in Australia:

·         Offer

·         Acceptance

·         Competent parties

·         Legal subject matter

·         Mutual obligation

·         Consideration

Frustration

There are certain grounds by which the contract can be frustrated.

·         Frustration of a contract is based on the attitudes of the parties and it can be observed that the frustrated contracts could not be held as void at the first instance.

·         When any party to the contract has forgot to complete the fulfilled the contractual obligation within the time specified in the contract, the validity of the contract become seized and it becomes voidable (Luiz 2016).

When without the fault of any of the party, a contract has been come to an end due to non-fulfillment of certain contractual obligation. Termination of contract by frustration is an established principle under the contract law in Australia. In Exposito v Bowden [1855] 119 ER 359, it has been observed that in case of amended provision of law, if the completion of law becomes impossible, then the contract will be called as frustrated.

Intellectual property

South Africa

Australia

Development

In the continents of South Africa, there are certain protections available on various intellectual properties and there are four properties where the creator can claim rights. The properties are trademark right, copy right, design right and patent right. According to the rules of South Africa, all these rights are required to be registered and certain formal or strategic methods are to be followed in this case. According to the general principle of law, creators have the right to protect their creation from the others where there is a scope of imitation of their creation (Liu and La Croix 2015).

The legal provisions regarding the protection of the intellectual property is quite strong and considered as the key consideration for the Australian industry. In Australia, certain rights like copyright, design, trademark and patents should be registered and the person who infringes those rights face penalties. The registration process is renewable and the parties are instructed to renew the rights after ten years.  

Protection

There are various forms of the intellectual properties and it can be stated that the ultimate aim of intellectual property right is to secure the rights and interest of the inventors. Certain competitive advantages are provided to the original creators and it is important to manage all the intellectual properties effectively. There are certain incidents happened where it have been observed that the trade mark of a company has been imitated by other companies (Eze 2016). This creates certain complexities and the consumers are affected by this. Therefore, another motto of intellectual property right is to secure the interest of the consumers. An effective application of intellectual property rights is required for gaining competitive advantages and for the development of the commercialisation. The government of South Africa has given much concentration on the application of the intellectual property rights (May 2015). In case of any breach made against a registered property rights, the violence maker should have to face certain legal provisions as mentioned in the Copyright Act 1978.

In case of infringement, imprisonment up to 3 years and $5000 could be imposed on the defendant.

In Australia, the intellectual property can be protected by identify the IP and understand various types of protective inventions and ideas. Further, all the ideas should be confidential so that no one can copy that. Additional cautions are necessary regarding the commercialization. Further, all the potentials of infringing the intellectual property rights are required to be understood.

According to section 126 of Trade Mark Act 1995 (Cth), remedies like injunction on the infringement and compensation can be imposed on the defendant.

Employment Law

South Africa

Australia

Rewards

In case an employer is suffering from the financial distress, the Labour Relation Act 1995 will help them to resolve the problem. Additionally, certain registration process has been mentioned in this Act. According to the Employment Service Act 2014, all the private employment agencies are required to be registered their name and it should be the primary duty of the employers to secure the interest of the employees (Clark and Worger 2016). A convention has been initiated by the International Labour Organisation regarding the adoption of the employment standard has been taken into place in 1997. Further, Labour Relations Act 1995 has been implemented to recover the wages and payment of the employees. In case of any unlawful termination, the affected employees can file case before the appropriate authority (Bhorat, Kanbur and Stanwix 2014).

Provisions of the employment law in Australia are quite strong, as the government of Australia aims to protect the interest of the employers. There are certain legislations implemented in Australia. If an employee terminates from his post unjustifiably, he can claim against the alleged employer under the section of Unlawful Dismissal Right that is a part of Fair Work Act 2009. The terms of the employment contract should be based on the National Employment Standard. Under the Fair Work Act, ten such standards have been mentioned (Fair Work Ombudsman 2018).    

Statutes

In South Africa, certain Acts are implemented to deal with the employment related matters known as The Employment Services Act 2014. The main intention of the Act is to secure the interest of the employees and to establish a good relationship in between the employers and the employees (Sisk 2017). The main purpose of this Act is to promote the employment within the vulnerable persons and secure the employees so that they could not be terminated from their post unethically. All the registration and the regulation process are maintained by this Act.

Unlike South Africa, the interest of labor is quite important to the Australian government and certain protections are given to the employees. Certain statutory provisions are there to protect the interest of the employees such as Fair Work Act 2009, Workplace Health and Safety Act, Unlawful Dismissal Act and Occupational Health and Safety Act.

Tort law

South Africa

Australia

Recognition

The Tort law of south Africa is known as the law of delict. According to this legal provision, every person can ask for certain compensations against any harm caused to him or her by any person. According to Rob Midgley, the term delict means civil wrong which is synonym of tort. Further, it has been stated that the nature of the civil wrong should be actionable in nature and every wrongdoer should have certain liabilities against the affected person. There are certain elements present in this matter such as the plaintiff should have sustained certain losses and there should be certain wrongful conducts on the parts of the defendant (Carstens 2015). The conduct of the defendant should be voluntary in nature. Any conduct that has been occurred in intoxication condition should not be treated as voluntary conduct (Hutchison 2017). Certain legal causations are required to proved the legitimacy of the claim in South African Tort Law and this principle has been established in the case of Four way Haulage SA v SA National Roads Agency (2009) SA 150.  

the Australian Tort Law follows the common rule and compensation can be claimed from the wrongdoer. It is a kind of civil wrong and there are certain grounds to this rule. However, in Australia there are certain differences in between the tort and breach of contract. activities like trespassing, possession over the land, negligence, misrepresentation, defamation or interference with employment are including under the terms. The ultimate aim of tort law is to protect the public interest (Stickley 2016).

 

References:

Bhorat, H., Kanbur, R. and Stanwix, B., 2014. Estimating the impact of minimum wages on employment, wages, and Non-wage benefits: the case of agriculture in South Africa. American Journal of Agricultural Economics, 96(5), pp.1402-1419.

Butler, A., 2017. Contemporary South Africa. Macmillan International Higher Education.

Carstens, P.A., 2015. Contemporary perspectives on factual causation in the South African Law of Delict: a study with reference to medical negligence (Doctoral dissertation, University of Pretoria).

Christie, R.H. and Bradfield, G., 2016. Christie’s Law of Contract in South Africa. LexisNexis.

Clark, N.L. and Worger, W.H., 2016. South Africa: The rise and fall of apartheid. Routledge.

Crush, J. and Peberdy, S., 2018. Criminal tendencies: immigrants and illegality in South Africa.

Eze, M., 2016. Intellectual history in contemporary South Africa. Springer.

Fair Work Ombudsman. (2018). Welcome to the Fair Work Ombudsman website. [online] Available at: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards [Accessed 24 Aug. 2018].

Four way Haulage SA v SA National Roads Agency 2009 SA 150

Ginsburg, T., 2016. Introduction. In Judicial Politics in Mexico (pp. 15-21). Routledge.

Hutchison, A., 2017. Decolonising South African Contract Law: An Argument for Synthesis. In The Constitutional Dimension of Contract Law (pp. 151-184). Springer, Cham.

Liu, M. and La Croix, S., 2015. A cross-country index of intellectual property rights in pharmaceutical inventions. Research Policy, 44(1), pp.206-216.

Luiz, J., 2016. The missing social contract for economic development in South Africa. State of the Nation: South Africa.

May, C., 2015. The global political economy of intellectual property rights: The new enclosures. Routledge.

Singer, L., 2018. Settling disputes: Conflict resolution in business, families, and the legal system. Routledge.

Sisk, T., 2017. Democratization in South Africa: The elusive social contract (Vol. 4838). Princeton University Press.

Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.