Sources of South African Law

Sources of South African Law

• Sources are the places where the law can be found
• Sources also provide insight into the content of the law
• South African law is not contained in single piece of legislation
• There is no single authoritative source of law in South Africa
• Attorneys need to know which legal sources are authoritative

Codified vs Uncodified Legal Sources

• A codified legal source is written down in a law, act, or statute
• An unwritten or uncodified legal source is not written down
• Most customary laws are uncodified
• South Africa has multiple legal sources, including uncodified ones

Primary vs Secondary Sources

• Primary sources have binding authority, such as case law
• Courts must apply primary sources
• Secondary sources do not have binding authority, and courts do not have to apply them
• Secondary sources have persuasive value

Binding vs Non-Binding Sources

• Courts must apply binding sources
• Non-binding sources have persuasive value, but courts don't have to apply them

Primary Sources (binding)

• The Constitution of the Republic of South Africa, 1996
• Legislation
• Precedent (case law)
• Common Law
• Custom
• Customary Law
• International Law
• treaties and conventions between South Africa and other nations/institutions

Secondary Sources (non-binding)

• Works of modern authors
• International law for instances where South Africa is not a party
• Foreign Law

The Constitution of the Republic of South Africa, 1996

• Highest law of the land; no other law can conflict with it
• Sets out structure and functions of government
• Sets out standards to protect individuals from abuse of power by the state
• Blueprint for running the country on a sound democratic basis
• Covers governing at national, provincial, and local levels
• Addresses legislative powers and justice administration
• Contains rules for regular elections
• Includes functions for police, army, and security services
• Addresses management of country's finances
• Deals with powers of traditional leaders
• Establishes institutions for constitutional democracy support
• Sets out the nine provinces and eleven official languages
• Includes the Bill of Rights in Chapter 2

Drafting of the Constitution

• Negotiations began in 1990 after Nelson Mandela's release
• Aimed to establish full democracy under an interim Constitution
• Negotiations started at the Convention for a Democratic South Africa (CODESA)
• CODESA was replaced by the Multi-Party Negotiating Process (MPNP)
• MPNP drafted the interim Constitution, adopted in 1993
• Interim Constitution took effect on April 27, 1994, the day of the first democratic elections
• Called the "interim" Constitution because it wasn't written by a democratically elected government and its existence was limited to two years
• A democratically elected constitution-making body called the Constitutional Assembly was created to write the final Constitution (1996)
• The Constitutional Assembly consisted of the National Assembly and the Senate with 490 members, chaired by Cyril Ramaphosa
• The 1996 Constitution was finalized on May 7, 1996
• The Constitutional Court had to approve the contents of the Constitution
• The Court recommended changes, and the Constitution was approved on October 11, 1996

Supremacy of the Constitution

• The Constitution is the supreme law of South Africa
• Everyone, including government officials and Parliament, must conform to it
• The Constitution introduced constitutionalism
• South Africa is run according to the Constitution
• All legislation can be challenged in court if inconsistent with the Constitution

Separation of Powers

• State powers divided into legislative, executive and judicial branches
• Legislative authority makes laws
• Executive authority enforces laws
• Judicial authority decides legal disputes and interprets laws
• Separation essential in a democratic state to prevent abuse of power

Bill of Rights

• Found in Chapter 2 of the Constitution
• Protects fundamental rights
• Fundamental rights are inherent and cannot be taken away by the State
• Rights may be limited if in agreement with the provisions of the Bill of Rights
• Section 7 of the Constitution emphasizes the cornerstone of democracy which affirms democratic values such as dignity, equality and freedom

First Generation Rights

• Sometimes called blue rights
• Civil, procedural, and political rights
• Protect individuals from abuse of state power
• Examples include right to equality, human dignity, and life

Second Generation Rights

• Sometimes called red rights
• Relate to socio-economic issues
• Examples include rights to education, healthcare, housing, food, and water

Third Generation Rights

• Sometimes called green rights
• Related more to the group than the individual
• The right to clean or unpolluted air

Amending the Constitution

• The Constitution can be amended
• Section 74(1): Section 1 and subsection 74(1) can be amended by a bill passed by the National Assembly with a 75% supporting vote and the National Council of Provinces
• Requires a supporting vote by at least six of the nine provinces
• Section 74(2): Chapter 2 can be amended by a bill passed by the National Assembly with at least a two-thirds supporting vote

Transformative Constitutionalism

• S172(1)(a) empowers courts to invalidate legislation conflicting with the Constitution

Powers of Courts in Constitutional Matters

• Courts must declare laws inconsistent with the Constitution as invalid
• The Supreme Court of Appeal or a High Court may rule on the constitutional validity of an Act of Parliament
• Order of constitutional invalidity has no force unless confirmed by the Constitutional Court

Interpreting the Bill of Rights and Transformative Constitutionalism

• Section 39 requires courts to promote values of human dignity, equality, and freedom, and consider international law when interpreting the Bill of Rights
• Courts must promote the spirit, purport and objects of the Bill of Rights when interpreting legislation and developing common or customary law

Transformation

• Transformation involves a marked change in nature, form, and substance
• Constitution is meant to have an impact equivalent to a caterpillar changing into a butterfly
• The legal landscape is meant to be infused with the values of human dignity, equality, and freedom
• Transformative Constitutionalism refers to a legal culture based on rights and respect for human dignity, equality, and freedom

Aims of the Constitution

• To replace sexist and race-based policies of the Apartheid regime
• Reflected in political and social rights
• Seeks to be transformative regarding socio-economic rights
• The right to freedom of trade, occupation, profession, housing, healthcare, food, water and social security.

Legislation

• Attorneys or lawyers check for laws/statutes when answering legal problems
• Laws are passed by an organ of the state (parliament)
• Laws are written and known as statutes
• Parliament is the highest organ for passing legislation at a national level
• Legislation is also called statutory law
• Legislation are rules laid down by the national parliament, provincial legislatures and local authorities
• The National Credit Act 34 of 2005 and the Labour Relations Act 66 of 1995 are examples of statutes
• They have been written down and passed by parliament

Types of Laws and Responsible Organs

• Acts of Parliament are created by Parliament
• Provincial Acts are created by Provincial Councils
• By-laws are created by Municipalities

Process of Creating Laws

• Government drafts a "green paper" on a topic for public comment when new legislation is needed
• Then a "white paper" is published, and public comment is opened again
• Experts then draft a Bill on the matter which is a proposal published in the Government Gazette and open to public comment
• The Minister introduces the Bill for the first reading in the National Assembly
• The Bill goes to a portfolio committee for analysis and recommendations
• The "new" Bill is presented at the National Assembly for the second reading
• Then it is presented to the National Council of Provinces
• If all in favor, the Bill is referred to the President
• The President signs the Bill and it becomes an Act

Parliament Passes Legislation When There Are

• Lacunae – gaps in the law
• Changing needs of society
• Problems with existing legislation

When Legislation Stops Being In Force

• Repeal – Parliament ends legislation
• Judicial review – Rights are tested by the courts, and if they are in conflict with the Constitution, the law is invalid
• Sunset clause – the legislation itself includes a clause saying when it stops begin in effect

Case Law and Judicial Precedent

• If there is no legislation on a specific matter, attorneys will refer to previous decisions of South African courts
• Lawyers will still refer to decided cases even if there is legislation on a topic
• To improve their client's case
• Attorneys will decide which court decision is authoritative, or which decision (case) the current court will follow

Judicial Precedent/ Stare Decisis

• Stare decisis is the principle of standing by previous decisions
• Courts must follow earlier judgements by courts in cases with similar facts
• Lower courts are bound by the decisions of higher courts

Ratio Decidendi

• Judgements include:
• Facts of the case
• Arguments from lawyers
• Reasons for the the decision
• When giving its reasons, the court sets out the relevant legal rules relating to the dispute

Meaning of "Ratio Decidendi"

• Legal rules create a precedent binding disputes of the same kind
• Referred to as ratio decidendi
• A literal translation of ratio decidendi means "the reason(s) for the decision"
• Case decisions will never directly point out the ratio decidendi
• The reader is expected to identify it themselves

Obiter Dicta

• When a court's decision can bind other courts, obiter dicta can be found
• A literal translation of obiter dicta is "remarks in passing"
• They are casual remarks made by the judge
• Not directly relevant/applicable to the resolving of the dispute before the court
• Not necessary for the court to take them into account in order to reach its decision
• Obiter dicta do not create a precedent and are not binding:
• They can sometimes have persuasive force

Examples of Obiter Dicta

• Principle of a case is elaborated or passed on by the judge
• Made a remark in passing
• Asking a question and answering a set of hypothetical facts
• Judge quotes a similar case or gives an illustration

Common Law

• Consists mainly of Roman-Dutch law and English Law
• When referring to common law in general:
• The law of a country that is not contained in legislation is being spoken about
• It is not written down in acts of parliament
• In South Africa, common law refers to the writings on law by 17th and 18th century Roman-Dutch jurists:
• How this law has been interpreted by courts and English Common Law
• The definitions of criminal acts and delicts comes from common law e.g. murder and theft

Developing Common Law

• Courts develop common law in terms of s39(2) of the Constitution
• The Constitution (1996) section 39 interprets the Bill of Rights
• (1) When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom
• (b) must consider international law; and
• (c) may consider foreign law
• (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights
• (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

Carmichele Case

• The Constitutional Court was faced with the question of whether they should develop common law.
• The case concerns the constitutional duty of courts to develop the common law and objects of the Bill of Rights.
• The matter was if the High Court and the Supreme Court of Appeal should have broadened the "wrongfulness" concept in law in the light of the State's constitution to safeguard women rights.
• Sued two ministers for damages resulting from assault on her by someone awaiting trial for rape attempt.
• In the High Court, alleged as omission by police and prosecutor; relied on State duties to safeguard dignity. The court threw out the case; police failed to establish wrongdoing.
• The applicant appealed to the Supreme Court of Appeal which held that police and prosecution had no legal duty of care and could not be liable for damages to her.
• Constitutional Court granted the application for leave to appeal.
• Constitutional Court set aside the orders of the lower courts, referring the case to the High Court for trial stating that The State had to protect the dignity and security of women and police had to act accordingly.
• the Court also held that prosecutors, who are duty bound, must put forward the grant of bail, may be held liable where they neglected to fulfil duty.
• The Court held that courts are under a duty to develop the common law, however it should deviate from the Bill of Rights

Custom

• Fixed practices that must be regarded as law
• Customs is not made up of written rules but develops with the community
• Custom is carried down from generation to generation
• Examples include indigenous or

Requirements for a Custom to Qualify as Law

• Discussed in Van Breda
• The custom:
  • Must have existed for a long time
  • Must be generally recognized and observed by the community
  • Must be reasonable
  • Contents and meaning must be certain and clear
• When requirements are met, Custom is regarded as binding law

Customary Law

• The written and unwritten rules that have developed from the customs and traditions of communities
• For customs and traditions to become law, they must be:
• Known to the community
• Followed by the community
• Enforceable

Constitutional Recognition

• Customary law is recognized in the Constitution in Section 211
• The institution, status and role of traditional leadership, according to customary law, are recognized, subject to the Constitution
• A traditional authority that observes a system of customary law can function subject to law and customs, which include amendments/repeals of that legislation or customs
• All courts must apply customary law when that law is applicable:
• Subject to law and legislation which deals with customary law

Official and Living

• 'Official' customary law
• Law of African people made writing or put into writing in textbooks, legislation and case law
• May or may not reflect true customary law nature of the community or may not be particularly flexible
• Living customary law
• Unwritten
• Law in practice and how African people see it May change as society changes

Customary Law and the Constitution

• Law must be developed by courts per the Constitution
• the most famous constitutional law is often in dispute with customary rules related to women:
• Found in Bhe v Magistrate, Khayelitsha & Others 2005 (1) BCLR 1 (CC)
• The case concerned inheritance rights under customary law
• The claim was by two minor female out-of-marriage children

Bhe Case

• The principle of male primogeniture, contained in section 23 of the Black Administration Act and its accompanying regulations was what had to be addressed
• • The deceased's father claimed right to assets in the estate, intended selling them to defray funeral costs, leaving Ms Bhe and daughters with no inheritance/home
• The Constitutional Court majority invalidated section on violating equality and dignity. Male primogeniture was contrary to gender equality
• Justice Ngcobo agreed with the remedy in principle but can be developed -Removed reference to ‘male’ for daughters to succeed deceased estate, referencing Ngcobo J iterated changes in which applies today

Key Points of International Law

• Regulated by sections 231-233 of the Constitution
• Consists of treaties, conventions, customary international law
• Courts must consider international law when interpreting the Bill of Rights
• Some international agreements which SA has signed are binding in SA
• SA is a State Party to the Rome Statute of the International Court
• Courts follow that statute since SA has domesticated it

Secondary Sources

• Secondary sources are not binding
• They provide persuasive value
• Helping legal practitioners to understand/interpret the law

Works of Modern Authors

• Include books and journal articles on the law by academics, lawyers and civil societies
• The views of modern legal writers do not have authority as sources of law
• Consultants can be judges and academics and the materials provide persuasive value and insight that helps perspective on a legal rule
• When cases are read, textbook or journal articles writer is sometimes referenced

International Law (Non-Binding)

• Some rules and guidelines are regarded as 'soft law' and are not binding
• States do not have to follow these rules/guidelines
• The Beijing Rules on Juvenile Administration is useful international advice but SA doesn't have to implement or follow it

Foreign Law

• The laws of other countries
• S39(1) says when interpreting the Bill of Rights, a court or forum may consider foreign law
• Examples include the Canadian Criminal Code
• Helpful for lawyers regarding legal comparison and reference