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Summary Sources of Law
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Notes for Introduction to law (LAWS1011A at Wits University). A comprehensive summary of the topic content - including diagrams, definitions and explanations where applicable.
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Sources Of LawCreated @March 30, 2022 7:00 PM
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PRIMARY SOURCES
Formal sources of law that Have binding authority, govern all of South Africa, and courts
are bound to apply them.
The Constitution
Fundamental law that sets out the power of the state in South Africa.
Binding
Source of all authority in the state - the ultimate source of law.
Includes a Bill of Rights, which protects certain fundamental rights and prevents
them from being violated.
Sets out the doctrine of separation of powers:
Legislature: parliament, law-making
Judiciary: court system
Executive: president and cabinet ministers
Citation of Constitution: The constitution of the Republic of South Africa, 1996
Section 2 → “Supremacy Clause”
Sources Of Law 1
, constitution is the supreme law.
Section 172 - Any law or conduct that is inconsistent with the constitution is
invalid. Must be consistency between laws. Courts are directed to promote the
Bill of Rights
Section 39(2) - Court is mandated to promote the spirit, purport and objectives of
the Bill of rights.
Section 39(1) - When the court interprets the Bill of Rights it must consider
international law and may consider foreign law. “Must” → International law is,
therefore, a primary source of law. “May” → Foreign Law is a secondary source of
law, courts are not bound but can be used as persuasive.
Constitution promotes the Doctrine of the rule of law: Law applies equally to everyone
and no one, including the state, is above the law.
How does the Constitution relate to other sources of law?
1. refers to and recognizes various other sources of law, such as the common law.
2. sets out detailed rules about which organs may make legislation and the process
they have to follow in making it
3. Makes it clear that all the other sources have to conform to the Constitution. - the
Constitution is the supreme law, and any law or conduct inconsistent with it is
invalid.
Legislation
Written law is made by the legislative branch of government often called the
legislature.
Binding
Sources Of Law 2
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