CHAPTER 7 - SOURCES OF CONSTITUTIONAL LAW
Friday, 30 April 2021 10:00
INTRODUCTION
- Sources are important
- 3 main sources
○ Legislation
○ Custom + Common law
○ Judicial Precedent/Case law
- Pre-1994: case law was limited
○ Today it is extensive
- The Constitution is supreme and courts have testing power
○ Many cases have been decided
- Academic research is not a primary source of law, rather a source of reference
- Important to distinguish between primary and secondary sources of Constitutional Law
○ Primary:
Legislation
Common law
Customary law
Case law/Precedent
○ Secondary/Delegated:
Proclamations
Regulations
LEGISLATION
- Most important source of CL
- Made up of many pieces of legislation
- Legislation is a wide concept
○ Includes:
National
Provincial
Local
- Section 239: Definitions
- Legislation does not include directives or policies
○ Seen in the case of Choice Decisions ... 2003 (6) SA 308 (W)
Court held that such directives are not forms of delegated legislation and also do
not have the force of law
Constitution as Source of CL
- Law that contains the most important rules of law relating to the constitutional system of that
country
- It defines government authority; where such authority vests; how and by whom such
authority is to be exercised and how it can be limited
- It accounts for the political, social and historical background
- Lex fundamentalis
- Contents of constitutions may differ
- May be classified/distinguished as:
○ Written/unwritten
○ Flexible/inflexible
○ Single/multi-document
Friday, 30 April 2021 10:00
INTRODUCTION
- Sources are important
- 3 main sources
○ Legislation
○ Custom + Common law
○ Judicial Precedent/Case law
- Pre-1994: case law was limited
○ Today it is extensive
- The Constitution is supreme and courts have testing power
○ Many cases have been decided
- Academic research is not a primary source of law, rather a source of reference
- Important to distinguish between primary and secondary sources of Constitutional Law
○ Primary:
Legislation
Common law
Customary law
Case law/Precedent
○ Secondary/Delegated:
Proclamations
Regulations
LEGISLATION
- Most important source of CL
- Made up of many pieces of legislation
- Legislation is a wide concept
○ Includes:
National
Provincial
Local
- Section 239: Definitions
- Legislation does not include directives or policies
○ Seen in the case of Choice Decisions ... 2003 (6) SA 308 (W)
Court held that such directives are not forms of delegated legislation and also do
not have the force of law
Constitution as Source of CL
- Law that contains the most important rules of law relating to the constitutional system of that
country
- It defines government authority; where such authority vests; how and by whom such
authority is to be exercised and how it can be limited
- It accounts for the political, social and historical background
- Lex fundamentalis
- Contents of constitutions may differ
- May be classified/distinguished as:
○ Written/unwritten
○ Flexible/inflexible
○ Single/multi-document
