South African Law & the Constitution

• Legal question types include application, discussion, explanation, and analysis.
• Five sources of law include the Constitution, legislation (statutes), case law (judicial precedents), customary law, and international law.

Studying Process & Key Concepts

• Know the law and important aspects of the content.
• Understand the components of the South African legal system.
• African customary law and common law are key components.
• Transformative constitutionalism and Section 39 of the Constitution are important concepts.
• Key concepts: Positivism vs. non-positivism, Parliamentary sovereignty vs. constitutional supremacy, colour rights, and separation of powers.
• Section 39 of the South African Constitution*
• Interpretation of the Bill of Rights is a focuses.
• The section outlines how courts, tribunals, and forums should approach the Bill of Rights.
• Courts must promote democratic values like human dignity, equality, and freedom.
• Courts must consider international law when interpreting the Bill of Rights.
• Courts have the discretion to consider foreign law as part of their interpretation.
• Section 39 ensures the Bill of Rights is interpreted in line with global standards and democratic principles.
• Parliamentary Sovereignty versus Constitutional Supremacy*
• Parliamentary Sovereignty reflects Parliament's ultimate power to make, change, or repeal any law, which exists where there's no written constitution (e.g., the UK).
• Constitutional Supremacy means that the Constitution is the highest authority, which all laws and government actions must follow, as utilized in South Africa since 1996.
• Transformative Constitutionalism*
• It uses the Constitution to create big changes in society, promoting equality and fixing past injustices.
• The South African Constitution is focused on building a fair, democratic country.

Creating Laws in South Africa

• Law creation is a detailed process ensuring thorough consideration and fairness.
• It begins with the proposal of a Bill that can originate from members of parliament, government departments, or the public through petitions.
• The Bill is formally introduced in Parliament's National Assembly or National Council of Provinces (NCOP).
• Member of Assemblies debate the Bill's general principles.
• The Bill is referred to a parliamentary committee for detailed examination, amendments, public input, and expert consultation.
• The amended Bill is then debated again where members discuss changes and decide whether to approve or reject it.
• If the Bill passes the second reading, it moves to voting in both the National Assembly and NCOP (if involved).
• Once approved by Parliament, the Bill is sent to the President, who can sign it into law or refer it back to Parliament.
• After presidential signature, it is published in the Government Gazette and becomes law.
• Legislation typically comes into force on the date specified in the law itself (commencement date).
• If no commencement date is specified, it comes into force on the date it is published in the Government Gazette.

Circumstances for Legislation to Stop Being in Force:

• Repeal: A new law or amendment revokes the law.
• Expiration: Laws have built-in expiration dates ("sunset clauses").
• Declaration of Unconstitutionality: A court declares the law invalid if it conflicts with the Constitution.
• Replacement: A new law replaces an old one.
• Obsolescence: Laws become unenforceable if they are no longer relevant or applicable.

Common Law, Customary Law, and Customs

• Common law is developed through court decisions and evolves as judges decide cases and set legal precedents.
• It is used in countries like England and the United States.
• Customary law is based on the traditions, customs, and practices of a community.
• Customary law plays an important role in South Africa, especially in marriage, inheritance, and land rights.
• A custom is a general term for long-established practices widely accepted within a community.
• Customs can influence the development of customary and, in some cases, common law.

Legal Concepts

• Obiter Dictum: A remark or observation made by a judge that is not essential to the decision and not legally binding.
• Ratio Decidendi: The legal principle or rule that forms the basis of a court's decision and serves as a precedent.
• Stare Decisis: A Latin term meaning "to stand by things decided," ensuring consistency by requiring courts to follow established precedents.
• Lower courts must follow the decisions of higher courts within the same jurisdiction.
• Courts generally adhere to their own prior decisions unless there is a reason to overturn them.

South African Constitution

• It came into effect as a result of the country's transition from apartheid to democracy.
• After the first democratic elections in 1994, an interim Constitution was adopted.
• The final Constitution was signed into law on December 18, 1996, and took effect on February 4, 1997.
• Key Characteristics*
• Supremacy of the Constitution: Is the highest law, and all other laws must conform to it.
• Bill of Rights: Guarantees fundamental human rights such as equality and dignity.
• Transformative Constitutionalism: Aims to address past injustices and promote social justice.
• Separation of Powers: Divides powers among the legislative, executive, and judicial branches.
• Non-Racialism and Non-Sexism: Founded on the principles of non-racialism and non-sexism.
• Democratic Governance: Ensures universal adult suffrage, regular elections, and a multiparty system.
• Recognition of Customary Law: Acknowledges African customary law, provided it aligns with constitutional principles.
• Judicial Independence: Allows the judiciary to operate independently, free from political interference.
• Consideration of International Law: Requires courts to consider international law.
• Focus on Social Justice: Emphasizes improving the quality of life for all citizens.

Additional Definitions

• Remedy refers to a legal solution or action provided by the courts to address a specific problem.
• Duty of Care is an element of duty.
• Official Customary Law is the version of customary law recorded in statutes or court decisions.
• Living Customary Law consists of the evolving practices and customs followed by communities.
• Audi Alteram Partem: Is the right to be heard before a decision.
• Rules of Delict: Holding a person liable for harm that they unlawfully cause.
• De nautis cauponibus: The principle that service providers are responsible for safeguarding customers' belongings.
• Key elements of delict:*
  • Conduct: An act or omission by the wrongdoer.
  • Wrongfulness: Conduct violates someone's legal rights.
  • Fault: The wrongdoer acted intentionally or negligently.
  • Causation: A direct link between the act and the harm.
  • Harm: Actual loss or damage experienced by the victim.
• Praetor's Edict was a list of rules and guidelines to ensure justice and fairness in legal disputes.
• Aedilitian remedies are legal protections for buyers when goods they purchase have hidden defects.