Study unit 1:
Sources and history of South African constitutional law and
classification of constitutions
1. Classify and explain the sources of constitutional law and where to find
them.
• Sources of law” refers to the places where you can find legal rules governing
a particular branch of law.
Authoritative sources of South Africa’s constitutional law
Authoritative source
• Denote the weight or force a particular source of law has.
• It further denotes “command”.
• When one has recourse to these sources, a court will be bound by such
sources.
(a) The Constitution:
• The Constitution is the supreme law of the Republic.
• “The Constitution” refers to an entire body of written and unwritten rules
governing the exercise and distribution of state authority on the one
hand
• And to governing relationships between organs of state inter se, and
also between organs of state and legal subjects.
• The Constitution only provides a framework.
S v Zuma and Others
• The issue of what judges should do when confronted with a constitutional text that
contains sometimes vague and open-ended phrase
• Cannot make of the constitution what they think it means.
• If they are not constrained by the text of the constitution or by other extra-legal but
objective criteria,
• Their decisions may lack legitimacy.
• Judges resort to factors such as context or the history of a country to give meaning
to the provisions in a constitution.
1
, (b) Legislation:
• Legislation is written law enacted by an elected body authorised to do
so by the Constitution or other legislation.
• Since the Constitution provides the framework, legislation has to be
passed to give effect to the provisions in the Constitution.
• Some of the most important national laws include the South African
Citizenship Act 88 of 1995, the Electoral Act 73 of 1998 as amended,
• To find legislation, you can consult government gazettes published and
printed by the Government Printer.
(c) Common law:
• The common law is the unwritten law of South Africa, in the sense that
the common law is not contained in written legislation.
• In South Africa, “common law” refers to the writings of the Roman-Dutch
jurists and English common law is also recognised in South Africa.
• In terms of section 39(2) of the Constitution, the courts and other
tribunals are required to develop the common law to bring it in line with
constitutional precepts.
(d) Customary law:
• Customary law is that system of law which is generally derived from
custom.
• To be in force custom must be reasonable; the custom must have
existed for a long time; the custom must be generally recognised and
observed by the community; and the contents of the custom, in other
words, what the custom involves, must be definite and clear.
• The fact remains that customary law is a source of law equivalent to the
common law. In terms of section 211(3) of the Constitution, the courts
must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary
law.
• This goes to show that African indigenous law is recognised and placed
on the same footing as common law.
• These include the Recognition of Customary Marriages Act 120 of 1998,
e. Case Law:
• Our courts are subject to a mandate to develop the law.
• In the past, case law was a limited source of constitutional law because
our courts did not have full testing/reviewing powers.
• Currently, courts have full testing/reviewing powers, thereby making
case law an authoritative source of constitutional law. To find cases, you
can access the Constitutional Court website
(www.constitutionalcourt.org.za); consult the South African Law Reports
2
Sources and history of South African constitutional law and
classification of constitutions
1. Classify and explain the sources of constitutional law and where to find
them.
• Sources of law” refers to the places where you can find legal rules governing
a particular branch of law.
Authoritative sources of South Africa’s constitutional law
Authoritative source
• Denote the weight or force a particular source of law has.
• It further denotes “command”.
• When one has recourse to these sources, a court will be bound by such
sources.
(a) The Constitution:
• The Constitution is the supreme law of the Republic.
• “The Constitution” refers to an entire body of written and unwritten rules
governing the exercise and distribution of state authority on the one
hand
• And to governing relationships between organs of state inter se, and
also between organs of state and legal subjects.
• The Constitution only provides a framework.
S v Zuma and Others
• The issue of what judges should do when confronted with a constitutional text that
contains sometimes vague and open-ended phrase
• Cannot make of the constitution what they think it means.
• If they are not constrained by the text of the constitution or by other extra-legal but
objective criteria,
• Their decisions may lack legitimacy.
• Judges resort to factors such as context or the history of a country to give meaning
to the provisions in a constitution.
1
, (b) Legislation:
• Legislation is written law enacted by an elected body authorised to do
so by the Constitution or other legislation.
• Since the Constitution provides the framework, legislation has to be
passed to give effect to the provisions in the Constitution.
• Some of the most important national laws include the South African
Citizenship Act 88 of 1995, the Electoral Act 73 of 1998 as amended,
• To find legislation, you can consult government gazettes published and
printed by the Government Printer.
(c) Common law:
• The common law is the unwritten law of South Africa, in the sense that
the common law is not contained in written legislation.
• In South Africa, “common law” refers to the writings of the Roman-Dutch
jurists and English common law is also recognised in South Africa.
• In terms of section 39(2) of the Constitution, the courts and other
tribunals are required to develop the common law to bring it in line with
constitutional precepts.
(d) Customary law:
• Customary law is that system of law which is generally derived from
custom.
• To be in force custom must be reasonable; the custom must have
existed for a long time; the custom must be generally recognised and
observed by the community; and the contents of the custom, in other
words, what the custom involves, must be definite and clear.
• The fact remains that customary law is a source of law equivalent to the
common law. In terms of section 211(3) of the Constitution, the courts
must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary
law.
• This goes to show that African indigenous law is recognised and placed
on the same footing as common law.
• These include the Recognition of Customary Marriages Act 120 of 1998,
e. Case Law:
• Our courts are subject to a mandate to develop the law.
• In the past, case law was a limited source of constitutional law because
our courts did not have full testing/reviewing powers.
• Currently, courts have full testing/reviewing powers, thereby making
case law an authoritative source of constitutional law. To find cases, you
can access the Constitutional Court website
(www.constitutionalcourt.org.za); consult the South African Law Reports
2
