TOPIC 2: SOURCES OF LAW
KV ch3 p55-56
The law as rules
o Legal sources: authoritative rules, defining the law
o Distinction – primary & secondary sources
Sources = important, tells you what the law entails + where you can find it. Also
responsible for regulating the relationships between people (legal subjects) + things
Law compromises of legal rules made by society for society
Reasons for recognition
For legal sources to be authoritative + to be legitimate, it must be formulated by people +
instutions that society has designated for this purpose
In SA context, this will be parliament, who consists of
National assembly
National council of provinces
Legal rules – sources legal authority
Whoever makes rules must have necessary authority for it to be regarded as law
Legal rules – expressed in linguistic way
For the benefit of society, legal rules must be collected in some form, stored, updated +
made available for the benefit of the entire society
Legal sources: which institutions may develop prescriptive norms – legitimate
Legal certainty- law + order, just & peaceful society
Content of the law explain + critique the law (primary & secondary sources of law)
For legal rules to have legitimacy, only certain institutions have the power to make +
extend the law, since they are mandated by the majority of the society bound by the law
Legal certainty: we as society must know what the law is + where to find it, and to what
extent it is applicable on our daily lives. Central to the principle of the rule of law
Primary sources of law: refer to law generated by institutions vested w/ law – making
authority, for instance parliament or the provincial legislatures or judges of the courts
The secondary sources provide further info on primary sources + does not have binding
force, merely supplementary or persuasive force
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, o Include sources containing materials created by lawyers/advocates or academics –
provide an overview of + critically comment of the content of constitutions,
statutes, judicial precedent + other primary sources
Sources of SA law
Sa legal system = uncodified legal system
o Our sources of law = in different sources, not just one
Not all sources of law in sa have the same authority
o Consider distinction between secondary + primary
Primary sources: creates binding authority
Secondary sources: not binding authority, but persuasive
Sources:
o Constitution (primary)
o Legislation (primary)
o Court decisions (secondary)
o International law & foreign law (primary)
o Common law
Mainly 17th + 18th century Roman – Dutch law
> E.g. definitiof of murder
Influenced by English law
Developed in legislation
Influence of constitution (act 39 (2))
When interpreting any legislation + when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
+ objects of the Bill of Rights
o Customs (primary)
Unwritten
Van Breda v Jacobs 1921 AD 330
> Has existed for a long time
> Generally observed by community
> Reasonable
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, > Content + making clear + certain
o Indigenous law
Black administration Act 38 of 1927: repealed
Influence of constitution:
> S 39 (2)
> S 39(3)
× The bill of rights does not deny the existence of any other rights or
freedoms that are recognized or conferred by common law, customary
law or legislation, to the extent that they are consistent with the Bill
o Writings of modern authors
Persuasive authority of academics
> Stell LR
> THRHR
> SALJ
> Obiter
Constitution
K&V 56 – 59
Past: const. source of law, same as other sources of law
Constitution: regulate organization + structure of state, denied everyone the franchise
to the majority of the population, also did not provide general norms or standards w/
which the whole body of law had to comply
Const. lf the RSA act 200 of 1993 = interim of const. = ushered in a new democratic
legal order for SA
Const. of RSA act 108 of 1996 = final constitution
o A living document – can be amended
o 17 const. amendments
Parliament realized the const. is not an ordinary source of law in the past: not
comparable to other legislations – promulgated the citation of const. law act 5/2005 =
the constitution of the RSA 1996
o Supreme law = above the rest
o Const. supremacy
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