Sources of Law in South Africa

Sources of Law in South Africa

• Primary sources are binding rules and principles from the governing body that courts must enforce.
• Types of primary sources include the Constitution, legislation, common law, customary law, case law, and public international law.
• Secondary sources, like foreign legal principles and scholarly writings, are persuasive but not binding.

Statute Law

• Statute law comprises statutes, also known as "laws" or "enactments," with individual components called provisions, aka "an enactment".
• The Interpretation Act defines "law" as any law, proclamation, ordinance, Act of Parliament, or any other enactment having the force of law.
• "Enactment having the force of law" excludes common law.

Significance of Statute Law

• Statute law is essential for regulating the modern state and is a sine qua non.
• South Africa's legal system is a hybrid, historically related to the Romano-Germanic family through Roman Dutch Law.
• Enacted law enjoys supremacy in the Romano-Germanic family, codifying vast areas of law.
• South Africa has close historical ties with the English common law family where case law enjoys priority.
• Judicial interpretation significantly affects the realization of statutes, with case law augmenting statute law and directing its application.

Traditionalist Trait

• Traditionalist trait of South Africa enhanced by adherence to unwritten indigenous customary law.
• Historically, English law had contradictions in SA law, likely changing due to the supreme Constitution and constitutionalism.
• Courts defer to Parliament's intention as sovereign lawmakers, giving meticulous effect to statute law, even for non-parliamentary legislation.
• Statute law was treated as an exception to Common Law, leading to restrictive interpretations of statutory provisions.

Advantages of Statute Law

• Statute law is formal, written, accessible, and knowable.
• Statute law is flexible and can be altered.
• Statutes remain in force until amended or repealed, contributing to legal certainty.

Disadvantages of Statute Law

• Even though statute appears certain in a CL system, judicial intervention is needed to assign an "official meaning."
• Long-windedness and propensity to detail can create esotericism.
• Over-legislation can stifle organic legal growth and may neglect basic principles of justice and fairness.

Classification of Legislation

• SA statute law is classified by: history, level of government, hierarchy, and status.

Historical Categories

• Pre-1806 legislation includes statues that still exist.
• Placaaten are NOT statute law, but are received as CL, and can be abolished by disuse.
• Pre-Union Legislation (1806-1910) is statute law that cannot be abrogated by disuse.
• Formally valid legislative act from competent legislature is needed for express or implied revocation or amendment.
• Parliament has enacted statutes expressly repealing pre-Union laws.
• The Pre-Union Statute Laws Revision Act repealed all laws before May 31, 1910, except those specified.
• The Interpretation Act specifies how certain words in pre-union legislation are understood, varying by the province to province basis.

Enactments after Union

• Enactments between Union (1910) and April 27, 1994, likely make up most of today's statute law.
• Enactments since April 27, 1994 enacted subject to the supreme Constitution.
• The distinction could matter where the constitutionality of legislation is reviewed.
• Post-1994 laws are read assuming the legislature consciously deferred to the Supreme Constitution.
• Pre-1994 laws may be scrutinized less strictly than post-1994 laws for constitutional validity.
• Introduction of Constitution also impacts the style where ordinary legislation is written, and has an effect on the legislative style.

Level of Government

• Legislation classified by the vertical division of state power, aka the sphere of government at which it's enacted.
• The spheres are: national, provincial, and local.
• Determined based on the hierarchy of legislation and the distinction between original and delegated legislation.

Hierarchy and Status

• The Constitution is the supreme law, including superordinate (non-constitutional) and subordinate legislation.
• Classification yields a distinction between original and delegated legislation.
• Modes of classification have tangible impact operation and validity of legislation.

The Supreme Constitution

• The Constitution is the supreme law of the Republic; any inconsistent law or conduct is invalid.
• The Bill of Rights applies to all law.
• CL preference is there to make it easier for evolution of law in the legal system.

Analysis Of Constitution

• There is unfamiliarity with the broad style of a supreme constitution with a bill of rights.
• There is the historic minority Parliament enjoying sovereignty for almost 85 years.
• The judiciary has the power to legally oppose the legislature
• s165(5) states that a court order binds all organs of the state.
• s165(2) and (3) vouch for the independence of the judiciary.
• s172 details powers of the courts in constitutional matters.

Constitutional Review

• Significant maintenance of constitutional supremacy comes from courts that can declare inconsistent law or conduct is invalid.
• Courts are vested with constitutional review, but is restricted.
• Courts by conferring power on various courts to varying degrees.
• Courts allow judicial discretion to exercise this power subject to restrictions mitigating or postponing effects of declarations of invalidity.
• The Constitutional Review is exercised with restraint, especially for statute law.
• The court is not a law-making organ but Parliament decides whether to change things based on the court's judgment.
• Judiciary is imposed on us, however is a choice.
• Judicial review raises the countermajoritarian difficulty where unelected judges can strike down laws.
• Modern democracy includes constitutionalism that bridles majority rule.
• Constitutionalism is where government derives powers from written constitution and powers should be limited to those set out in the constitution.

Constitution as Law

• The 1996 Constitution is the supreme law of the Republic and is a normative law-text.
• Ratio decidendi of binding precedents are normative law-texts.
• Normative law-texts establish norms as general standards.
• The Constitution has supremacy without overpowering other texts.

S v Mhlungu

• Where it is possible to decide any case (civil or criminal) without reaching a constitutional issue, that course should be taken.

Amod v Multilateral Motor Venicle Accident Fund

• Court should develop Common law as in s35(3) Interim Constitution and s39(2) of the 1996 Constitution.

Jurisdictional and Adjudicative Subsidiarity

• Jurisdictional assigns responsibility to the appropriate forum, revealing broader principle of subsidiarity.
• Adjudicative prefers non-constitutional to constitutional adjudication when issue allows.
• It also applies where litigant alleges infringement of constitutional right(s) which subsidiary constitution gives more concrete effect.
• Litigant cannot circumvent statue by relying directly on Constitution.
• Adjudicative subsidiarity allows law to incrementally develop in view of the implications affecting constitutional decisions.
• The court will constitutionalize issue when necessary to dispose of a matter of appeal showing where adjudicative cannot stand in the way of justice.
• The court may refrain until judges have had the chance to assess outcomes of either provision striking down that is being opposed.

Hierarchy of Legislation Under the Constitution

• The hierarchy presupposes the distribution of power in governments like national, provincial, to local/municipal.

Federal State?

• New SA more federal than predecessor compared to prior legislation.
• The national legislature (Parliament) has highest legislative power over the Republic and state affairs with exception to others.
• Acts of Parliament were superior to provincial legislation.
• Supreme national legislature abolished provincial councils to elevate provincial administrators to legislatures.
• Administrator empowered to enact delegated legislation.

Constitution Complexities

• The Constitution has been supreme since interim the Constitution commenced, thereby taking precedence over all other law.
• Parliamentary legislation is national legislation when dealing with matters which the Constitution does not allocate.
• Legislatures cannot make laws for which this has not been expressly permitted.
• Authority to legislature in the Constitution other than Parliament, authority can not always be exercised without further ado.
• Schedule 5 of the Constitution gives exclusive authority to provincial legislature in certain matters.
• Schedule 4 contains national and provincial legislature have concurrent authority.
• The parliament can legislate on the matters of schedule 4 but parliament precedence arises where legislation conflicts.

List of Circumstances

• National legislation: deals with matters that can't be regulated by provinces, requires national uniformity, and is needed for unity.
• Local governments can make by-laws on matters listed in Schedules 4 & 5 or have been allocated to them - but this is always subordinate.
• Superordinate always takes precedence over subordinate, where legislation in conflict is of no effect.

Original and Delegated Legislation

• Primary aim: detailed regulation of matters provided for by original legislation.
• Original legislation authorizes delegating.
• Delegates the existence of authority to the empowering.
• Constitution has made it possible for delegated to trump original legislation.

Categories of Delegated Legislation

• The President is often vested with authority to enact delegated legislation.
• President is also vested with authority to issue certain regulations.
• Other ministers are often vested to issue some regulations.
• The people are often authorized to issue delegated legislation.
• All aforementions rules are subject to the approval of a higher authority.
• Mag courts of HC are substantially determined in the empowering statues.
• Provincial ordinances before June 30, 1986 were original; provincial proclamation from 1986 to Apr 27, 1994 delegated, etc.
• The by-laws of local authorities have some authorities delegated through ordinances.
• The executives of the department determine what regulations and enactments are.

The Authorization of Delegated Legislation

• s10 of the Interpretation Act is consistent with delegated legislation.
• It has not been amended substantially since constitutional democracy and qualifications is a directive for legislation since Apr 27, 1994.
• s10 as general source for delegated legislation read in conjunction with provisions in original enactments to empowered organs.
• s10(1) exercise the power even from time to time.
• s10(2) duty imposed on holder, may exercise right or power to do the duty.
• Delegated administration includes power to revoke, or rescind in ways related to promulgation.

Judicial Review of Delegated Legislation

• SA has 3 constitutions (1910, 1961 and 1986) that restricted supreme testing in courts.
• Original legislature could not be struck down based on the substance of deficiencies.
• More reasons and ground which legislation should be delegated for invalid and must follow the traditional CL.
• A Body that legislates to the power to delegate, had to have competent that do to so

After Aprol 27, 1994

• Constitution is original legislation along parliamentary, provincial and municipal.
• Legislative power given to legislation other than Supreme legislation is delegated.
• Act of Parliament cant create original legislature as per what constitiuon states Act parliament inconsistend is an invalid.

Powers of National Assmebly

• Exception s44(1)iii the NA have power to assign legislative to any legislative body
• Meaning if power assinged by delegate its delated
• Legislative power as per s10(3)
• Proclamations access to public that authorization been recevied
• Interm the law cant be i conflict

Section P

• Chaskalson P interim Constitution held restraint to competent was not in conflict
• Constitutional is includes incident authoritys if anything excluded constitution must make direction

Chaskalson's statement

• Chaskalson after Jurisdictions conclude extent to depend constrture

In the past:

• Before, the courts uphold legislate investing power legislative has law
• Now no more deligation of branches of govn
• Power of delagtion interfere funtion.
• That it must be determend inpuned law be its fat.

Council of State

• Mention to national legilstaion vice Versa by Conitiitution definitation
• Rauten said provincial can be in legislature action take precedence.

Therefore, election action organ

• Legislature that original legislation to the provincial section take its power to concern
• The above it requires has to approved by Council

Validity

• To not give reason for why you want to approve it to council they have 30 days after authority give to council
• Validity of test legislation cant by explict
• Section that has power that can delegate legilatte.
• Does state alldition of to vertical sphere of govon
• But all this does not cover many laws
• That its for the common is is to limit constitutional right
• intra vies common silent on power delete

Pharmacutical

• Checkesosn contends law cant separate with constitution.

Differnece bteewn Delealted and Original legislation has

• As be come as it is now
• But legislation cant change with consistenuy
• Must 3 of change:Equilibrium in power, and debertation descion making, Legal certaintry dealining maters contistion on the other

Review without undertiming

• Self constraint or policy makers, but responsaible to needs.

Unit 3 Genesis

• Problmtgaut that process to woridn finalzed s3

s11

S13 OF ACT

• S13 inter perory with act of state, promulagiation
• Include: procolams, ordinance it is a delegated

Reffrimign common

• S13 provide commeration of gazette s81 and 123 of constituiton.
• Provisions means what stated, constitutions contalains similar to b7,5
• 162.1 A municlal gazellte

Isatnces s13

2. Get published by gazellte

• If in morning law does not exit due no promlatiion Enactmet act publish in the date that the day start of law constiatutio says that there can be
• Act publish an act
• Then must have municipal bylaws

Methods day of gazzeltee

1. Delating act Act state commence at date by president

• Limit of powers Gazelle
• By incooperation its NOT promgtaioni
• 13.1 its the staet act be gazeteer a date to others but the rules should to others 2 Qualicaations rule Gazeller public if requieement can waviel

Once gas zelle and publish that it not effect

• What it need done to it
• Act be president
• That by blll be signed and en force as deteriment Act and notify act
• Act it s state that unlress speific
• the provsion may not informent that leglisatin be deffect power

The consitution in addition deliberat, faclitaiton

• to get power than promulaged
• Act be in terms state, expresss
• S14 power act state

S v Magsana

• 14 to to serve that will be libterated

Power that must operats

• Power and is not action unless there of
• Action for powers that that have it Not of liberties, that it is not of force