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Chapter 3; Sources of South African law; Summary
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Word document; Sources of South African Law; certain cases & diagrams that are referenced in the beginners guide for law students 5th edition.
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Reference: Beginners Guide for Law Students Fifth EditionEditors: Duard Kleyn, Emile Zitzke, Frans Viljoen, Palesa Madi
Abbreviations/ key:
1. Con: Constitution.
2. Def: Definition.
3. Btw: between.
4. RD: Roman-Dutch.
5. Dvp: develop.
6. Solid black bullet point: Main point
7. Line bullet point: Sub-point.
8. Empty bullet point: Sub-point
Sources of South African law:
SA has an uncodified legal system – there is not only one primary source where the
law originates & can be found.
Lawyers need to be aware of diff sources of law as they provide key content of the
law and it provides lawyers with authority for their argument as they must be able to
justify their assertion.
Not all sources of law have the same authority- primary sources have binding
authority & are seen as where the law originates. Secondary sources have
persuasive authority & help to understand the primary sources.
The constitution of the Republic of South Africa, 1996 is the most important source of
all South African law. It has transformative potential (transformative constitutionalism)
on other sources of law.
The Constitution:
The constitution of the past:
The constitution regulated the organisation & structure of the state. It influenced
everyone’s lives in that it denied the franchise to the majority of the population.
It did not provide any general norms/ standards with which the whole body of law had
to comply.
The Interim Constitution/ The constitution of the Republic of South Africa Act 200 of
1993 – it required a constitutional assembly to draft & pass a final constitution that
had to reflect basic principles. The document was originally passed as the
Constitution of the Republic of South Africa Act 108 of 1996.
The constitution of the present:
It was then realized the Constitution was not an ordinary source of South African law
then parliament decided to drop the Act 108. Making the citation of the most
important source of law is Constitution of the Republic of South Africa, 1996.
The idea of the final constitution creates the impression that the constitution cannot
be changed & that’s untrue because at the time of the writing there were 17
amendments to the constitution.
- At the time of the writing of the book, parliament was having discussions
about amending the constitutions property clause to allow expropriation of
property without compensation.
Key characteristics of the constitution:
, The 1996 constitution declares itself to be the supreme law of SA.
- Section 2 of the constitution: Supremacy of the constitution: Law or conduct
inconsistent with it is invalid and the obligations imposed by it must be
fulfilled.
The constitution is a primary source & is binding and authoritative.
The principle of separation of powers: It regulates the structure of the state and
divides the power of the state btw three branches of government: The executive
(enforces the law); the legislature (creates the law); & the judiciary (applies, interprets
& develops the law).
- This principle assures that no single branch of government can abuse power.
The constitution incl. the Bill of Rights - this means that the constitution provides a
general norm which has a direct or indirect influence on all the sources of law.
- The influence that the constitution has on other sources of law relates to its
transformative nature. Transformative constitutionalism involves the use of
the constitution to bring about a more equal & democratic society.
- E.g. of when the constitution attempted to bring about transformation by
having an impact on all other sources of law is the Pharmaceutical
Manufacturers Association of South Africa: In re Ex Parte President of the
Republic of South Africa 2000 (2) SA 647 (CC) at para 44.
- E.g. that more recent is the case of H v Fetal Assessment Centre 2015 (2) SA
193 (CC) at para 23.
o Questions about life where the constitution should have no impact
were asked but not to do so says that there are areas of life & law
where the values of the constitution may be ignored. No part of the
law can exist beyond the reach of constitutional values.
o Single-system-of-law principle relates to the notion of the
constitutional supremacy.
The constitution has a direct influence on legislation – legislation that is in conflict
with the constitution can be struck down by the courts.
- Section 172 (1) (a): courts must declare that any law or conduct that is
inconsistent with the constitution is invalid to the extent of its inconsistency.
The influence of the constitution on other laws is less direct.
- Section 39 (2): The interpretation of any legislation & the development of the
common law & customary law, a court must promote the spirit, purport and
objective of the Bill of Rights.
Section 39 (1): when interpreting the Bill of rights, one must take into account
international law & may consider foreign law. With this requirement the constitution
incorporates the principles of international human rights law as a source of law.
New constitutional dispensation:
SA lawyers need to have knowledge of the constitution in order to determine in what
way any legal rule corresponds with the principles & values in the constitution.
Legislation (statutes):
Sometimes a whole area of law may be governed solely by legislation. Meaning a
specific area of law can be codified i.e. criminal procedure.
Def: It is law laid down by an organ of the state which has the power to do so.
- Parliament is the highest organ that can pass legislation on the national level.
The constitution empowers parliament to do so.
, o Parliament must consist of representatives of the community which
are elected in a democratic manner. The community through its
representation passes legislation to which the entire community lives.
o Before 1994 African parliament was a product of the apartheid system
& not of democratic process.
o Parliament consists of two bodies: The National Assembly & the
National Council of Provinces (The council of provinces gives
provinces a say in national legislation that affects them).
- There are lower bodies that can pass subordinate legislation i.e.
municipalities that enact by laws.
Power of legislation:
It is a primary source of law & is binding authority. It is the quickest ways to amend
old laws and create new ones.
Parliament passes legislation when:
- There are gaps (lacunae) in the law.
- The law no longer corresponds to the needs in modern society.
- There are loopholes in existing legislation.
How statues are made:
1. Government may draft a green paper: which puts forward different policy options on
the certain topic. This is then published for public comment.
2. A white paper is drafted: it states government policy & the public may comment
again.
3. Experts draft a Bill (proposal): it concerns the matter & sometimes the bill is not
preceded by green & white papers. It is usually published in the Government Gazette
to allow public comment.
4. The minister responsible for the matter introduces the Bill in the National Assembly
for the first reading.
5. After introduction the Bill is referred to a portfolio committee. The members
investigate the details of the Bill, study public commentary and if necessary,
recommend changes & make new proposals.
6. The second reading is where the committee recommendations in a report are
presented to the National Assembly. During this the purpose& principles & not the
details are debated. The debates are published in Hansard.
7. At the end of the debate amendments may be made & such amendments are
considered by the portfolio committee which draft a report.
8. The National Assembly takes the report into consideration & votes on the second
reading.
9. Once the National assembly approves it is referred to the National Council of
Provinces for approval.
10. If the National Council of Provinces rejects the Bill the constitution prescribes how it
should be resolved but if it is approved the bill is referred to the president for assent.
11. The president signs the Bill and not it is an Act/ Statue.
Exceptions: not all Bills are treated the same as some Bills can be first introduced in
the National Council of Provinces i.e. a Bill concerning an issue on which parliament
and the province have concurrent competence.
- A money Bill must always be introduced in the National Assembly
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