SOURCES OF LAW
TOPIC 3: THE SOURCES OF SOUTH AFRICAN LAW
Today most authorities seem to agree that South African law comes from six primary
sources. There are also other sources, but these are usually regarded as subsidiary
or secondary for reasons that we will explain further below.
1. THE PRIMARY SOURCES
In order of importance, the six primary sources are:
The Constitution of the Republic of South Africa, 1996 (referred to as the
Constitution);
Other legislation, particularly Acts of Parliament, provincial Acts and municipal by-
laws;
Judicial precedent or case law, which arises from the decisions of judges;
The common law, ie the writings of old Roman-Dutch authorities, some principles
of English law and even some Roman authorities, as developed by the judges to
meet modern-day needs and changing social circumstances and customary law,
which entail customary rules from ethnic and religious groups.
Customs and trade practices that are developed by people, often in trades and
professions, to regulate their activities.
These are thought of as ‘primary’ sources because they are formal sources of law
that have binding authority and govern all the citizens of South Africa. The courts
are bound to apply them in certain circumstances and in accordance with the rules
of judicial precedent.
1.1 The Constitution
A Constitution is a fundamental law that sets out the power of the state. It is the
source of all authority in the state, and is thus the ultimate source of law. Section
2 of South Africa's Constitution (Constitution of the Republic of South Africa, 1996)
makes this clear by stating that:
, ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent
with it is invalid, and the obligations imposed by it must be fulfilled.'
Our Constitution includes a Bill of Rights, which protects certain fundamental rights
and prevents them from being violated (usually by the government).
How does the Constitution relate to other sources of law?
1. First, it refers to and recognizes various other sources of law, such as the
common law. For example, s 39(3) says that
‘[t]he Bill of Rights does not deny the existence of any other rights or freedoms
that are recognized or conferred by the common law, customary law or legislation,
to the extent that they are consistent with the Bill.’
2. The Constitution sets out detailed rules about which organs may make
legislation and the process they have to follow in making it (see under the next
heading).
3. The Constitution makes it clear that all the other sources have to conform to
the Constitution. Section 2 indicates this by saying that the Constitution is the
supreme law, and that any law or conduct inconsistent with it is invalid.
As you have just seen, s 39(3) insists on consistency between other sources
and the Bill of Rights. Section 39(2) goes even further by imposing a positive
duty on the courts to promote the Bill of Rights:
‘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.’
1.2 Legislation
Legislation is written law made by the legislative branch of government, often called
the legislature. The other two arms of government are called the executive and the
judiciary. They are responsible respectively for making policy and implementing the
law; and interpreting or applying the law.
,Legislation tends to be the most important and the most prolific source of law in
modern Western societies. This is because it is the quickest and most convenient
way of changing and reforming the law. While other sources of law, such as
precedent and custom, tend to develop slowly, incrementally and unpredictably,
legislation allows the government to make significant and systematic changes to the
law in a very short time.
The most important legislative (lawmaking) organ in South Africa is our national
Parliament, which makes and enacts Acts of Parliament or statutes. It consists of two
houses, the National Assembly and the National Council of Provinces. But
Parliament does not have time to deal with every single detail in its statutes, so it often
delegates some of its lawmaking authority to other state organs associated with the
executive arm of government. These organs, including the President, Cabinet
Ministers and other officials, then make ‘delegated’ legislation to flesh out the Act of
Parliament.
Acts of Parliament are published in the Government Gazette. The statutes of South
Africa are collected in the Butterworths Statutes of South Africa (and certain other
collections), and are available in the law library.
Our nine provinces, too, have legislatures which make provincial laws; and the many
local authorities (municipalities) in the country also make laws, such as municipal by-
laws and budgetary resolutions. Like Parliament, provincial and municipal legislatures
may also delegate some of their lawmaking power to other organs.
How does legislation relate to the other sources?
First, legislation is enabled by the Constitution, since the Constitution officially
appoints Parliament, the provincial legislatures and municipal councils as the main
lawmaking bodies.
Secondly, and like all the other sources, legislation is subordinate to the
Constitution (s 2 of the Constitution, quoted above, makes this clear). If legislation
violates the Bill of Rights or is contrary to any other provision of the Constitution, it
will be invalid – though no one can be sure that it is invalid unless and until a court
of law says so.
Thirdly, legislation trumps (overrides) all the other sources of law – except
the Constitution, obviously – in the sense that it can at any time change what
those sources say about the law. For example, it can overturn a precedent set by
a judge in a court case, and it can do away with an ancient principle of the common
law.
In turn, however, the courts have the power to interpret legislation and say
whether it is constitutionally valid or invalid. They can find that legislation is
invalid on formal or technical grounds (such as failure to comply with the lawmaking
, process laid down in the Constitution) or on substantive grounds, such as conflict
with a right in the Bill of Rights.
1.3 Judicial precedent
A court decision is essentially made in one of three ways:
(a) The court looks at the law to see if there is a rule that covers the facts of the
case. If there is an existing rule, the court applies it to the case. The court does
not set a precedent; it simply applies the existing law (which may itself be a
precedent).
(b) Sometimes there is no rule that covers the facts of the case. Then the court must
make a decision based on its own view. It does this by considering the facts of
the case, the existing law and social policy. The court’s decision then effectively
creates a new rule of law, and we say that the court has set a precedent.
(c) Sometimes there is a rule, but it has always been applied to specific factual
situations and so it does not quite cover the facts of the case before the court.
The court may decide to extend the rule to cover the facts in its case, meaning
that the law is developed. Here, too, the court sets a precedent.
The Superior courts of South Africa set precedents while the lower courts can never
set precedent. The Constitutional Court (CC) is bound by its own judgments. The
Supreme Court of Appeal is bound by itself and the CC. The High Court divisions
are bound by themselves and the SCA and the CC. Precedents can be absolutely
binding, persuasive or not binding at all.
How does precedent relate to the other sources?
As we have seen, the Constitution recognizes the existence of case law and
places a duty on the courts to promote the Bill of Rights when they are deciding
cases. Section 39(2) provides:
'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.'
TOPIC 3: THE SOURCES OF SOUTH AFRICAN LAW
Today most authorities seem to agree that South African law comes from six primary
sources. There are also other sources, but these are usually regarded as subsidiary
or secondary for reasons that we will explain further below.
1. THE PRIMARY SOURCES
In order of importance, the six primary sources are:
The Constitution of the Republic of South Africa, 1996 (referred to as the
Constitution);
Other legislation, particularly Acts of Parliament, provincial Acts and municipal by-
laws;
Judicial precedent or case law, which arises from the decisions of judges;
The common law, ie the writings of old Roman-Dutch authorities, some principles
of English law and even some Roman authorities, as developed by the judges to
meet modern-day needs and changing social circumstances and customary law,
which entail customary rules from ethnic and religious groups.
Customs and trade practices that are developed by people, often in trades and
professions, to regulate their activities.
These are thought of as ‘primary’ sources because they are formal sources of law
that have binding authority and govern all the citizens of South Africa. The courts
are bound to apply them in certain circumstances and in accordance with the rules
of judicial precedent.
1.1 The Constitution
A Constitution is a fundamental law that sets out the power of the state. It is the
source of all authority in the state, and is thus the ultimate source of law. Section
2 of South Africa's Constitution (Constitution of the Republic of South Africa, 1996)
makes this clear by stating that:
, ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent
with it is invalid, and the obligations imposed by it must be fulfilled.'
Our Constitution includes a Bill of Rights, which protects certain fundamental rights
and prevents them from being violated (usually by the government).
How does the Constitution relate to other sources of law?
1. First, it refers to and recognizes various other sources of law, such as the
common law. For example, s 39(3) says that
‘[t]he Bill of Rights does not deny the existence of any other rights or freedoms
that are recognized or conferred by the common law, customary law or legislation,
to the extent that they are consistent with the Bill.’
2. The Constitution sets out detailed rules about which organs may make
legislation and the process they have to follow in making it (see under the next
heading).
3. The Constitution makes it clear that all the other sources have to conform to
the Constitution. Section 2 indicates this by saying that the Constitution is the
supreme law, and that any law or conduct inconsistent with it is invalid.
As you have just seen, s 39(3) insists on consistency between other sources
and the Bill of Rights. Section 39(2) goes even further by imposing a positive
duty on the courts to promote the Bill of Rights:
‘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.’
1.2 Legislation
Legislation is written law made by the legislative branch of government, often called
the legislature. The other two arms of government are called the executive and the
judiciary. They are responsible respectively for making policy and implementing the
law; and interpreting or applying the law.
,Legislation tends to be the most important and the most prolific source of law in
modern Western societies. This is because it is the quickest and most convenient
way of changing and reforming the law. While other sources of law, such as
precedent and custom, tend to develop slowly, incrementally and unpredictably,
legislation allows the government to make significant and systematic changes to the
law in a very short time.
The most important legislative (lawmaking) organ in South Africa is our national
Parliament, which makes and enacts Acts of Parliament or statutes. It consists of two
houses, the National Assembly and the National Council of Provinces. But
Parliament does not have time to deal with every single detail in its statutes, so it often
delegates some of its lawmaking authority to other state organs associated with the
executive arm of government. These organs, including the President, Cabinet
Ministers and other officials, then make ‘delegated’ legislation to flesh out the Act of
Parliament.
Acts of Parliament are published in the Government Gazette. The statutes of South
Africa are collected in the Butterworths Statutes of South Africa (and certain other
collections), and are available in the law library.
Our nine provinces, too, have legislatures which make provincial laws; and the many
local authorities (municipalities) in the country also make laws, such as municipal by-
laws and budgetary resolutions. Like Parliament, provincial and municipal legislatures
may also delegate some of their lawmaking power to other organs.
How does legislation relate to the other sources?
First, legislation is enabled by the Constitution, since the Constitution officially
appoints Parliament, the provincial legislatures and municipal councils as the main
lawmaking bodies.
Secondly, and like all the other sources, legislation is subordinate to the
Constitution (s 2 of the Constitution, quoted above, makes this clear). If legislation
violates the Bill of Rights or is contrary to any other provision of the Constitution, it
will be invalid – though no one can be sure that it is invalid unless and until a court
of law says so.
Thirdly, legislation trumps (overrides) all the other sources of law – except
the Constitution, obviously – in the sense that it can at any time change what
those sources say about the law. For example, it can overturn a precedent set by
a judge in a court case, and it can do away with an ancient principle of the common
law.
In turn, however, the courts have the power to interpret legislation and say
whether it is constitutionally valid or invalid. They can find that legislation is
invalid on formal or technical grounds (such as failure to comply with the lawmaking
, process laid down in the Constitution) or on substantive grounds, such as conflict
with a right in the Bill of Rights.
1.3 Judicial precedent
A court decision is essentially made in one of three ways:
(a) The court looks at the law to see if there is a rule that covers the facts of the
case. If there is an existing rule, the court applies it to the case. The court does
not set a precedent; it simply applies the existing law (which may itself be a
precedent).
(b) Sometimes there is no rule that covers the facts of the case. Then the court must
make a decision based on its own view. It does this by considering the facts of
the case, the existing law and social policy. The court’s decision then effectively
creates a new rule of law, and we say that the court has set a precedent.
(c) Sometimes there is a rule, but it has always been applied to specific factual
situations and so it does not quite cover the facts of the case before the court.
The court may decide to extend the rule to cover the facts in its case, meaning
that the law is developed. Here, too, the court sets a precedent.
The Superior courts of South Africa set precedents while the lower courts can never
set precedent. The Constitutional Court (CC) is bound by its own judgments. The
Supreme Court of Appeal is bound by itself and the CC. The High Court divisions
are bound by themselves and the SCA and the CC. Precedents can be absolutely
binding, persuasive or not binding at all.
How does precedent relate to the other sources?
As we have seen, the Constitution recognizes the existence of case law and
places a duty on the courts to promote the Bill of Rights when they are deciding
cases. Section 39(2) provides:
'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.'
