Legislation and Common Law

Study Notes

Legislation includes all enacted laws, such as Acts of Parliament, provincial legislation, municipal laws, proclamations, and by-laws.
An Act refers to a parliamentary statute or the legislation of a provincial legislature, whereas an act refers to conduct or action.
Legislation is a vital source of law, and understanding its technical aspects is crucial in modern societies.

Common law is composed of rules of law that were not originally written down but are accepted as the law of the land.
South African common law is also known as Roman-Dutch Law.
Common law needs to be distinguished from codifications, which are statutory compilations of legal principles relating to a particular branch of law.
The common law may be changed by original legislation, but if there isn't statutory law on the concept, the common law applies.

Indigenous law refers to the traditional law of the indigenous black people of South Africa.
This law may be either unwritten customary law or codified.

Case law is the law as decided by courts in specific cases.
The precedent system means that judgments of higher courts bind lower courts and courts of equal status.

Interpretation of statutes deals with the rules and principles used to construct the correct meaning of legislative provisions to be applied in practical situations.
It involves making sense of the total relevant legislative scheme applicable to the situation at hand.
To interpret legislation correctly, one needs to consider the following:
- The provision must be read, understood, and applied within the framework of the Constitution and the Bill of Rights.
- The impact of other legislation on the provision.
- Whether the legislation is still in force and if it has been amended.
- The entire Act must be taken in context, including its definition section and schedules.
- Regulations issued in terms of the particular provision must be read with the enabling legislation.
- The context of the legislative text.
- Other external aids may be used to establish the meaning of the legislation.
The interpreter may face challenges such as poor drafting, conflicting provisions, or a lack of resources to research the current law.

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