chapter 2

• Sources of law


  The origins of South African law
• Sources of law


  • Codified (written)
  • Uncodified (unwritten)
• Codified sources


  Recorded in a comprehensive code
• Uncodified sources


  Not recorded and scattered across many different sources
• Sources of law


  • Legislation
  • Common law
• Common law


  All law considered by South African courts as being persuasive or binding, except for legislation
• Common law


  • Judicial precedent
  • Judicial interpretation of statutes
  • Commentaries
  • Customs
  • Customary law
  • Foreign law
• Legislation


  The setting down of binding rules of law in a formalised way, by an authority that has the legal capacity to do so
• The Constitution is the supreme law in the Republic of South Africa and prevails over all other laws
• How a Bill becomes an Act of Parliament


  1. There are 2 houses of the national parliament: The National Assembly and The National Council of Provinces

  2. Bills come from government departments and may result from previous consultation through the publishing of green papers and white papers

  3. Draft Bills may be published for comment in the Government Gazette

  4. Bills may be amended many times as a result of discussion in a portfolio committee or select committee

  5. When a Bill has been passed by both houses of Parliament it goes to the State President for agreement and signature

  6. Then it is published in the Government Gazette as an Act of Parliament
• Judicial precedent


  The body of law resulting from decisions on points of law made by other courts with regard to the same circumstance
• Doctrine of precedent


  The authority given to past decisions of courts
• The doctrine of precedent comes to us from the Latin expression 'stare decisis et non quieta movere' which means to 'stand by the decisions and do not disturb the undisturbed'
• Advantages of the doctrine of precedent


  • Enables legal subjects to plan their private and professional lives
  • Decreases litigation
  • Provides guidance to judges and magistrates and reduces the possibility of partial or prejudicial decisions
  • Promotes public confidence in the judicial system
  • Saves time and reduces the costs of litigation
  • Promotes certainty in the law, as well as predictability, reliability, equality, uniformity, and convenience
• Problems associated with a strict application of the doctrine of precedent


  • Incorrect decisions may become precedents and be applied in future cases
  • Too strict an application prevents the law from changing in accordance with the changing values of society
  • In seeking to avoid its application, petty distinctions may be made to try to distinguish cases from one another
• Judicial interpretation of statutes

  Courts are sometimes required to establish the intention of Parliament in originally passing the Act and interpret the Act in accordance with this intention
• Approach courts will adopt in interpreting legislation

  • Ordinary words will be given their ordinary grammatical meaning at the time an Act was written
  • Differences between translated versions of the Act will be resolved by referring to the original language version of an Act as signed by the President
  • Words and expressions used throughout an Act should have the same meaning
  • Words and expressions, which have been interpreted by the courts previously, should bear the same meaning as previously interpreted
  • An Act will not bind the State unless the State is specifically mentioned as being bound
  • Any provisions that seek to restrict the jurisdiction of the superior courts will be very strictly construed
  • An Act should not be given retrospective effect as this would amount to taking away the rights of legal subjects
  • It will be assumed that the law was not intended to be unreasonable, create injustice, or apply only to certain legal subjects
  • Laws will be interpreted as promoting the public interest
  • The purpose of the Act must be considered in interpreting it
  • The law must try to give effect to established principles on international law
• Commentaries


  Valuable guides where the court is faced with circumstances where there is no binding source of law to guide them
• Customs


  Practices or customs that may have the force of law if they can be shown to be long established, certain, reasonable, and uniformly observed
• Customary law


  Tribal African law that may be applied by a court if the parties wish it to be, as long as it does not conflict with public policy
• Foreign law


  Only has persuasive influence, the Constitution provides that in interpreting the Bill of Rights, a court must have regard to public international law and may consider decisions of courts in other countries
• Important cases are reported in various publications, the best known being the South African Law Reports
• An online website of the South African Legal Information Institute (SAFLII) publishes judgments from the Constitutional Court, Supreme Court of Appeal and the divisions of the High Court, as well as the Labour Court and Tax Court
• Citation of court cases

  The way the name of the case is written or printed, or how the case is referred to
• Citation of court cases

  • Client v Corporation 2004 (3) SA 497 (SCA)
  • S v Zuma 2022 (2) SA 1 (CC)
  • Ex Parte Roos 1995 (1) SA (O)