lecture/study notes on the constitution, legislation and judicial precedent including the primary and secondary sources of law (with international law, foreign law, and academic writing)
THE CONSTITUTION, LEGISLATION AND JUDICAL PRECEDENT.
Today most authorities seem to agree that South African law comes from six primary sources.
There are also other sources, but these are usually regarded as subsidiary or secondary for
reasons that we will explain further below. The distinction between primary and secondary
sources is not cast in bronze, however, and nor is it entirely uncontroversial.
THE PRIMARY SOURCES
In order of importance, the six primary sources are:
• The Constitution of the Republic of South Africa, 1996 (referred to as the Constitution);
• Other legislation, particularly Acts of Parliament, provincial Acts and municipal by-laws;
• Judicial precedent or case law, which arises from the decisions of judges;
• The common law, ie the writings of old Roman-Dutch authorities, some principles of
English law and even some Roman authorities, as developed by the judges to meet
modern-day needs and changing social circumstances and customary law, which entail
customary rules from ethnic and religious groups.
• Customs and trade practices that are developed by people, often in trades and
professions, to regulate their activities.
These are thought of as ‘primary’ sources because they are formal sources of law that have
binding authority and govern all the citizens of South Africa. The courts are bound to apply
them in certain circumstances and in accordance with the rules of judicial precedent. You will be
studying all of the sources in more detail later on in this course; but here we outline each of
these sources to help you understand from the outset how the legal system works.
THE CONSTITUTION
A Constitution is a fundamental law that sets out the power of the state. It is the source of all
authority in the state and is thus the ultimate source of law. Section 2 of South Africa's
Constitution (Constitution of the Republic of South Africa, 1996) makes this clear by stating
that:
‘This 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.'
- Must know this section of the constitution
- It is known as the supremacy clause since it tells us that the constitution is the supreme
law.
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, - This is the ultimate source of which all other sources are measured.
*we did have previous constitutions, but those constitutions were never the supreme source.
Our Constitution includes a Bill of Rights, which protects certain fundamental rights and
prevents them from being violated (usually by the government).
The constitution also sets out the doctrine of separation of powers
- Separates the power of government into 3 bodies.
- The legislator, the judiciary, and the executive.
o The legislator consists of parliament (law-making body)
o The judiciary is the court system
o The executive consists of the president and his cabin of members.
The constitution also sets out various institutions that are there to protect our democracy and
to keep the state accountable.
- These are sometimes known as “chapter 9 institutions” because it is chapter 9 of the
constitution that establishes them.
- They include offices like:
o the public protector
o the human rights commission
The constitution was initially cited as an act of parliament, but IT IS NOT PARLIAMENT that
drafted the constitution, and so we cannot cite the constitution as an act of parliament.
The correct citation of the constitution is just simply the Constitution of the Republic of South
Africa, 1996 (no act number)
HOW DOES THE CONSTITUTION RELATE TO OTHER SOURCES OF LAW?
First, it refers to and recognizes various other sources of law, such as the common law. They
are recognised as long as they are consistent with the constitution. This relates back to the
supremacy clause.
- Section 172 states that any law or conduct that is inconsistent with the constitution is
invalid.
- It also provides that there must be consistency between the laws and the courts are
specifically directed to promote the Bill of Rights when they make their decisions.
- In section 39(2), the court is mandated to promote the spirit, proport, and objectives of
the bill of rights. This means that every court decision must reflect the values and
principles of the constitution.
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