Legislation and Common Law

Legislation as Source of Law

• 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

• 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 (Customary) Law

• 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

• 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

• 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.