Summary PBL 210 - Chapter 7 Notes

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