Introduction to Law 171
Textbook: Beginner’s Guide for Law Students, D Kleyn
Topic 1: Sources of SA Law:
● SA has an uncodified legal system: there is not only one primary source from which the law
originates and can be found. SA law is found in: the Constitution; legislation (statutes); precedent
(court decisions); common law; customs; customary law; works of modern authors; foreign law;
international law.
○ Legislation is made by parliament (National Council of Provinces & National Assembly) and
is applicable to the whole country; sometimes a whole area of law may be governed by
legislation, e.g. the law of criminal procedure is codified.
● Legal sources are important for lawyers; they have to be able to take a valid source of information
that denotes legal authority and justify why they are taking a particular point of view to further an
argument.
● Primary and secondary: not all sources have the same authority; primary sources create binding
authority as it states where the law originates from and what it is, and secondary sources are
supplementary: they have persuasive authority and merely provide an understanding of those
primary sources; they explain, define and criticise primary sources. The constitution, however, is
the supreme law with transformative potential.
○ Secondary materials are created by lawyers, academics or advocates and provide an
overview of and critically comment on content of constitution, statutes etc.
● Legal rules are expressed in a linguistic way for the benefit of society; they are collected, stored,
updated and made available for the benefit of society people can familiarise themselves with it
and abide by it.
● Reasons for recognising law:
○ Legal sources: we need to know which institutions are allowed to make and amend law.
○ Legal certainty: society must know what the law is, where to find it and how it applies to our
lives (central to the Rule of Law).
○ Content of law: must be certain; explains and critiques the law (notion of primary and
secondary sources; judges may look at secondary sources to aid in making decisions);
courts have the legitimacy to create judicial precedent / case law.
● Common law: influenced by 17th & 18th Roman Dutch law (e.g. definition of murder); English law;
the Constitution (common law from Roman Dutch/English influence may no longer be in line with
the values of the Constitution, therefore we have to consider how to align them).
● Customary law:
, ○ Customary law is the law of black South Africans (a system of law recognised by
constitution and runs parallel to national law); the Black Administration Act 38 of 1927 tried
to consolidate all laws applicable to black South Africans but was mostly repealed.
○ Requirements for a custom to become a legal rule: had to have existed for a long time, be
generally observed by the community, be reasonable and the content and meaning must
be clear and certain (Van Breda v Jacobs 1921).
○ Customary law was always given inferior status to other law: it was easy for apartheid
government & colonial administrators to deny existence of laws according to the common
law values and due to the repugnancy clause, but the existence of rights or freedoms is
now not denied as long as these are consistent with the Bill of Rights; it is now difficult to
invalidate law under the Constitution (e.g. equal before law and right to culture).
● Sources of SA rules and principles of law:
○ The Constitution: document written and given the force of law by the democratically elected
Constitutional Assembly; tells us what the state’s powers are and contains the bill of human
rights; supreme law and anything inconsistent with it is invalid (supremacy clause).
○ Legislation: laws written by democratically elected bodies like Parliament.
○ Court decisions/judicial president: case law
○ Customary/African law: laws of the First Nation peoples of Africa.
○ Common law: inherited from colonialism; mixture of Roman-Dutch and English law.
○ Custom: practices that develop as law dye to continued usage over a long period of time.
○ International & Foreign law
○ Writings of modern authors: academics and advocates writing journals, articles that dissect
law and can persuade judges.
The Constitution as the Supreme Source of Law:
The Constitution of the Republic of South Africa, 1996:
Context and History:
● Government functions: make laws (legislative authority); apply law and execute them (executive
authority); resolve legal disputes (judicial authority).
○ Trias politica: a constitutional concept where the governmental branches remain separate
and independent while subject to the supreme law; checks and balances that prevent
abuse of power.
● A constitution is a body of principles according to which a state or organisation is governed.
Previously in SA, the Constitution was a source of law in the same way as any other statute
which regulated the organisation and structure of the state; it denied franchise to the majority and
didn’t provide general norms or standards with which the whole body of law had to comply. In
, essence, the constitution wasn’t founded on constitutional values; this changed with the 1993
Interim Constitution started with CODESA.
● The 1910 Union Constitution and 1961 and 1983 Constitutions were not based on constitutional
values as they were all in favour of parliamentary sovereignty/supremacy in line with apartheid
policies, and weren’t held accountable by the constitutional court; there was no separation of
power and so parliament used its legislative authority as a tool of oppression (the rule of law &
constitutional supremacy now protects us from that).
○ “Parliament may make any encroachment upon the life, liberty or property subject to its
sway … and … it is the function of the courts of law to enforce its will”; courts were held
by legal positivism and could not dispute discriminatory laws
■ Some judges attempted to apply the law justly, e.g. during the Rivonia trial,
lawyers tried to at least ensure they weren’t punished with death penalty but with
life imprisonment and banishment although the charge was high treason.
○ PS resulted in gross basic human rights violations: they were only held accountable if
they didn’t follow the right process, but would then simply change the process so that
they weren’t held accountable; parliamentary sovereignty was a remnant of colonial rule.
● Interim Constitution of 1993: (chapter 16) “the constitution provides a historic bridge between the
past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and
a future founded on the recognition of human rights, democracy and peaceful co-existance and
development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”;
(s 4) “this constitution shall be the supreme law of the Republic and any law or act inconsistent
with its provisions shall … be of no force and effect to the extent of inconsistency.”
● According to the Constitution s 1(c), SA is one, sovereign, democratic state founded on the
values of supremacy of the Constitution and the rule of law. The Constitution gives courts the
power to declare conduct or law inconsistent with the Constitution is invalid.
● The current constitution is ‘final’ but can still be changed: there have been 17 amendments to the
constitution; it’s called the ‘final constitution’ because it was the document that decided to break
from the past, and it’s an entrenchment of the 34 constitutional principles agreed upon in the early
negotiation process.
● Implications of constitutional supremacy on law: there is a need to develop and align common law
with constitutional law; all other sources derive their force from the Constitution and are subject to
constitutional control - i.e. there is only one system of law shaped by the constitution (s 172).
Characteristics:
● Supreme source of law (ss 1 &2); now it can hold the government accountable to ensure that we
live safely and freely; the Constitutional Amendment Act elevated the Constitutional Court to be
the apex court (i.e. final court in all matters - criminal, civil and constitutional, not just
constitutional).
, ● Primary source of law; binding and authoritative.
● Has a Bill of Rights coupled with the supremacy clause.
● Regulates the structure of state, and divides power into three branches, i.e. trias politica
(inherited from Roman history, transplanted to Roman Dutch).
○ Ensures no abuse of power (esp executive), especially considering apartheid parliamentary
authority, where the majority of citizens were discriminated against by legislation, and
especially important for a young constitutional democracy.
○ Citizens can take legislation to court if it is in violation of the Constitution; the court has to
scrutinise legislation and decide whether it violates human rights, follows correct
procedures and is in line with the Constitution; the judiciary thus has to remain independent
to ensure no abuse of power.
■ The court won’t, however, overstep; they merely interpret the law but aren’t
prescriptive, as this would violate the separation.
○ Legislative authority:
■ National level = parliament (chap 5; e.g. housing, health), consisting of the National
Assembly (chair: Thandi Modise) & National Council of Provinces.
■ Provincial level = provincial legislation (chap 6); schedule 5 of the constitution
ensures exclusive legislative competency.
■ Local Level (chap 7) = municipal councils.
○ Executive authority:
■ National level (chap 5): the president, who appoints deputy and ministers.
■ Provincial level (chap 6): the premier as head, who appoints 5-10 Members of the
Executive Council.
○ Judicial authority: (chap 8) s 165 vests this in the courts, who are independent and subject
only to the Constitution and the law, which they must apply impartially and without fear,
favour or prejudice.
● Constitution as an indirect source of law:
○ S 39(2) (interpretation clause) provides for the fact that when interpreting legislation and
when developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights.
○ Used as a standard against which all law and conduct is measured; e.g: principle of male
primogeniture in Black Administration Act (infringe right to dignity, equality, children’s right).
● Constitution as a direct source:
○ S 172 (1)(a) states that anything in conflict will be declared inconsistent and invalid.
○ It holds the values upon which society is based: human dignity, the achievement of quality
and the advancement of human rights and freedoms; non-racialism, non-sexism;
supremacy of the Constitution and the rule of law; universal adult suffrage, a national
