This is a summary of lecture notes and cases plus the Constitution of South Africa and prescribed readings, to help understand the topics under the module easier.
The sources of law:
The Authoritative sources:
1. The constitution
2. Legislation
3. Precedent
4. Common Law These are the primary sources of law, they create
precedent
5. Foreign Law
6. Customary Law
The Persuasive sources:
Law journals
Legal textbooks These are the secondary sources of law, they don’t
create precedent
Codified legal system – reduced to writing, single collection of the law
Uncodified legal system – the body of the law that are unwritten
Primary sources of law – these are the main source of the law that are
binding and they have authority
Secondary sources of law – these are secondary to the primary sources and
they are not binding but they are persuasive.
Function of the courts – To administer justice, interpret and apply the law
Hierarchy of the courts [s166]:
1. The Constitutional Court
2. The Supreme Court of Appeal These are the higher/upper courts. They
are binding
3. The High Court of South Africa
1. Magistrates’ Courts
2. Regional Courts These are the lower courts. They do not create
precedent.
3. District
Constitutional court: This is the highest court in South Africa. It is situated in
Johannesburg, and has 11 seated judges. Other courts cannot change its decision
even if they believe that it is wrong. It creates precedent. Deals with
constitutional matters.
Supreme court of Appeal: Situated in Bloemfontein. It is not a court of first
instance. Rather it is a court that deals with appeals. In addition, it sets
precedent for the lower courts and hears appeals from lower courts.
High Court of South Africa: This can be the court of first instance. It has a
judge president, deputy judge president. It is a court that deals with civil and
criminal matters. It has its divisions in all 9 provinces of the country.
Lower courts: They are creatures of statutes. They do not create precedent
rather they follow the one set by the higher courts. Deals with both civil and
criminal matters. They are divided into regional and district courts
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