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Summary introduction to law semester 1
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Chapter 3-6 includes the notes that I had to study for my finals exam. The notes does not include the entire semesters work but most of it.
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Chapter 3 Sources of South AfricanLaw
Sources of SA Law
SA uncodified legal system - not one primary source
● SA Constitution
● Legislation
● Court decisions (precedent)
● Common Law
● Custom Law
● Customary Law
● Work of authors
● Foreign Law
● International Law
sources of law
Not all sources carry the same weight:
★ Primary Sources: where law originates; binding authority
★ Secondary Sources: persuasive; helps us to understand primary sources
★ Legislation: Codification of Law nb. Not all law are codified. •NB = SA
Constitution is the most important source of South African Law
The South African Constitution
● Ushered in democracy
● Interim Constitution 1993 = working document that preceded the final
Constitution adopted in 1996.
● Final Constitution 1996 = don't be confused by the term final; not cast in
stone; can be amended and has (17 times already).
Key characteristics
● Supremacy of the Constitution: Sec 2 of the C reads 'The Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is invalid , and
the obligations imposed by it must be fulfilled.'
● Constitution is a primary source of law binding and authoritative.
● Regulates the structure of the state and allows for separation of powers:
legislative (creates laws), executive (enforces law), judiciary applies. Curtails
abuse of power
● Direct influence on legislation: Law in conflict with Constitution invalid = sec
172(1)(a)
, ● Other sources of law more of an indirect influence: Sec 39(2) common law and
customary development must promote spirit, purport and objectives of the
BOR.
● Sec 39(1) when interpreting the BOR must take int law into account and may
consider foreign law.
Legislation
● Legislation is passed by the SA parliament.
● Power vested in Parliament through the C
● Parliament two house National Assembly (NA) and the National Council
of Provinces (NCOP) (provinces a say in national legislation that affects
them)
● Lower bodies can also pass subordinate legislation such as
municipalities.
● Legislation is a primary source of law with binding authority (binding on
everyone)
Legislation passed=
➔ Gaps (lacuna) in the law
➔ Needs of modern society
➔ Loopholes in existing legislation
How is a statute made: Process
1. When the need for new legislation arises, the government may draft a
green paper that puts forward various policy options on the particular
matter. Published for the public to comment.
2. White paper is drafted which states government policy. Public may
comment.
3. Experts draft a Bill on the concerning matter(not final statute). Published
in the GG to allow the public to comment on the Bill
4. Minister responsible for the matter introduces the Bill to the NA for the
first reading.
5. After introduction, the Bill is referred to a portfolio committee. The
members investigates the details, study public comments and where
necessary recommend changes and makes a new proposal.
6. Recommendations contained in a report is presented to the NA for the
second reading.
7. NA takes the report into consideration and then votes.
8. Once approved by the NA, it is referred to the NCOP for approval
9. Once approved it is sent to the President to assent and sign=The Bill is
then a statute
Force and Application?
● An act comes into force on the day of its publication in the Government
, ● Gazette; Act itself may provide that it is earlier.
● Courts have to apply legislation that is in force. Courts therefore are in charge
off interpreting legislation.
Stop being in force when:
● Repeal - pass a new statute that that expressly or implicitly repeals an old law.
● Judicial review (testing rights in courts) - when legislation in conflict with
Constitutional declared invalid (sec 172)
Interpretation of Statutes:
Two main approaches: a) Literal approach; b) Purposive
approach.
• Literal = (apartheid). Intention of legislature primary
consideration, legislation strictly interpreted (positivists
approach to law)
• Purposive = text in context. Clear, plain meaning of text does not
necessary reflect its purpose.
• Sec 39 of Constitution now key: when interpreting legislation
must promote spirit, purport and objects of the BOR. Value driven.
Different methods assist with interpretation:
(a) Grammatical interpretation - start with text.
(b) Systematic interpretation - legislation should be read as whole. Entire text
is important not only a specific section.
(c) Teleleologial interpretation - purpose and objective of act;Preamble
(d) Historical interpretation - history nb.
(e) Comparative interpretation - how has other jurisdictions interpreted
words/phrases.
Precedent (Case Law)
Courts apply the law on a daily basis.
Court ascertains law - apply to case - judgment
Sec 165 of the Constitution vests Judicial authority in the courts
Section 165: Judicial authority
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the
law, which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the
courts.
(4) Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
(6) The Chief Justice is the head of the judiciary and exercises responsibility
over the establishment and monitoring of norms and standards for the
exercise of the judicial functions of all courts.
● Primary Source of Law = Authoritative
● Doctrine of Precedent = Courts must take account of previous judgments
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