- Distinguish and understand he different sources of law and the relative importance of each, define the sources of law according to your text book and identify them in a scenario, understand and distinguish between primary and secondary sources of law, understand the difference between codified an...
JURISPRUDENCE 110
Chapter 3
Sources of South African Law
Unit 3 summary
Outcomes
- Distinguish and understand he different sources of law and the relative importance of each
- Define the sources of law according to your text book and identify them in a scenario
- Understand and distinguish between primary and secondary sources of law
- Understand the difference between codified and uncodified law
- Understand and critically discuss the Constitution as single system of law
- Understand and be able to apply s.39 (2) to a legal problem
Introduction
The places where law originates are generally also the places where it can be found
Sometimes a whole area of law may be governed solely by legislation Uncodified legal
- Specific area of law is codified system
- E.G. - Not only one
o Law of criminal procedure primary
Legal practice is primarily concerned with what the law itself stipulates source where
- Therefore lawyers have to support their legal arguments with some form of authority the law
o justify their assertion of a particular viewpoint originates and
Not all sources of law have the same authority can be found
- Binding authority
o Primary sources
- Persuasive authority
o Secondary sources
Sources
- The Constitution
- Legislation (statutes)
- Precedent (court decisions)
- Common law
- Custom
- Customary law
- Works of modern authors
- Foreign law
- International law
Sometimes a whole area of law may be governed solely by legislation
- Specific area of law is codified
- E.G. The law of criminal procedure is codified
Lawyers to be able to justify their assertation of a particular viewpoint must rely on provision of
- Constitution
- A statute
- Court decision
Most important source of all South
- Opinion of one of the old authorities/ modern author
African law
- Constitution, 1996
- Because it has transformative
potential
,Sources of Law
- Primary
o Law-making authorities
o Binding
▪ Compulsory
o First place of reference
o E.G.
▪ Common law
▪ Customary law
▪ International law
▪ Legislation/ act/ statue
▪ Precedent
- Secondary
o Not binding but persuasive
▪ Don’t have to follow but can persuade judgement argument
o Article/ textbook
o Writings by modern-day authors
▪ Critical of status quo
Constitution
- Before Changing the law: amend
o Was a source of law In the same way as every statute Stop law : repeal
o Regulated the organisation and structure of the state
o Influenced the lives of everyone in that it denied the franchise to the majority of the population
o Did not provide any general norms/ standards with which the whole body of law had to comply with
- Constitution of the Republic of South Africa Act 200 of 1993
o Ushered in a new, democratic legal order
o Interim Constitution
▪ Required a constitutional assembly to drat and pass a final Constitution
• Had to reflect certain basic principles
- Constitution of the Republic of South Africa Act 108 of 1996
o Parliament realised that the Constitution was not an ordinary source
o Therefore this act was dropped
- Proper citation of our Constitution
o According to Citation of Constitutional Laws Act 5 of 2005
▪ Constitution of the Republic of South Africa, 1996
- Constitution is not set in stone and is forever changing
o 17 amendments so far
- South African lawyers need to have sound knowledge of the Constitution in order to determine in what way
any legal rule corresponds with the principles and values contained in the Constitution
- Before 1996, Parliament was the supreme
- Now constitutional sovereignty
- Supreme law
- Section 1
o Public of south Africa is one sovereign
Key characteristics
- Symbolises a break from the previous constitutions in that it declares itself to be the supreme law of South
Africa
o Section 2
- Primary source in that it is binding and authorities
o Judges cannot say they disagree with the content of the Constitution and therefore apply their own
opinions to the case
- Regulates the structure of state, and divides the power of the state between 3 branches
o Called separation of powers
o Ensure no single branch can abuse power
, o Executive
▪ Enforces the law
▪ Courts
o Legislature
▪ Creates the law
▪ Parliament
o Judiciary
▪ Applies, interprets and develops the law
▪ President
▪ Deputy president
▪ Judges
- Includes Bill of Rights (Section 2)
o Bill of Rights coupled with supremacy clause means Constitution provides general norm which has
direct/ indirect influence on all sources of law
o Takes character of supreme law
o Interpretation of the Bill of Rights
▪ Literal approach
• Should not be followed
▪ The underlying values and objectives of the Constitution must be given effect
• Section 39 deals with the interpretation of the Bill of Rights
o Guidelines given
▪ In the interpretation of a specific right the values of our new society
must be promoted
• Openness
• Democracy
• Freedom
• Equality
• Human dignity
▪ The spirit of the Constitution is characterised by these values ^
• The Constitution has been described as a bridge between a
previous dispensation of authoritarian government and a
culture of openness and justification
o Also bridge between a culture of discrimination and
a culture of tolerance
▪ Most important difference in emphasis was that between liberation (based on underlying
value of equality) and liberty
- Has direct influence on legislation
o Legislation that is in conflict with Constitution can be struck down by the courts
o Section 172 (1)(a)
▪ Courts must declare that any law or conduct that is inconsistent with the Constitution is
invalid to extent of its inconsistency
- Influence on other sources of law is less direct
o Section 39 (2)
▪ In the interpretation of any legislation and the development of the common law and
customary law a court must promote the spirit, purport and objectives of the Bill of Rights
- Section 39 (1)
o Further stipulates that a court, when interpreting the Bill of Rights, must take international law into
account and may consider foreign law
o With this obligation, the Constitution incorporates principles of international human rights as source
Primary sources: Legislation/ act/ statues
Legislation
- Law laid down by an organ of the state which has the power to do so
- Number of rules that are written down
- Legislator makes this
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