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this project would not have seen the light of the day without his constant direction and guidance.WORLD LEGAL SYSTEM PROJECT ACKNOWLEDGMENT I would like to express my gratitude towards all those whose help and constant support the project would not have reached its current facet. I would take advantage of this situation to thank my parents and my guardians without whose constant support and guidance. Malay Pandey. my teacher for his kind guidance and for quenching my queries on many doubts and technicalities which I came up during the making of this project. However. foremost I would like to thank Mr. I would also like to thank all of my friends and seniors who aided me along the way. I must also extend my gratitude to the library and library personnel who provided me with research material and good books to work upon INTRODUCTION 3 . I really owe it a lot to them.

some dating back to the Roman law of the sixth century AD. Muslim law and customary law (3.17%). though it is universally admitted that ‘the idea of a “legal family” does not correspond to a biological reality. common law and Muslim law (5. civil law and Muslim law (3. Thus.09%). We have a mixed legal system – an unusual blend of sources of law which apply as the accidental result of the history of the country and its constituent parts. common law and Talmudic law (0. We will thus find in this category countries in which two or more legal systems apply concurrently or interactively.70 %). the categories of legal systems are cited as civil law.12% of the world’s legal systems). Nevertheless. and of civil law. common law.47% of the world population). The use of the term ‘mixed law’ is then explained: The term “mixed” was selected arbitrarily over “hybrid” or “composite”. civil law. ‘mixed systems with customary law’ are 54 (15. the justice system after 1994 reflected elements of both the apartheid-era system and nondiscriminatory reforms RESEARCH QUESTIONS 4 . According to this source. In the website produced at the Faculty of Law of the University of Ottawa with the help of the Supreme Court of Canada Library on ‘world’s legal systems’.59 %). mixed law and dependent territories. It should not be understood in the restricted sense employed by some authors. common law. civil law. and to English law to a considerable extent when parts of the country were colonized. Talmudic law.94). The laws in force in 1994. it is no more than a didactic device. ‘mixed systems with common law’ are 53 (15.54%). The number of jurisdictions that fall into the ‘mixed systems with civil law’ category are 65 (19. South Africa's legal system.88%) and ‘mixed systems with Muslim law’ are 33 (9. Common law. common law and customary law (0. common law and customary law (2. Islamic law. like the rest of the political system. many laws unrelated to apartheid continued to be rooted in the old legal system.WORLD LEGAL SYSTEM PROJECT For taxonomic purposes and ease of organisation comparatists have placed legal systems in legal families. ‘mixed systems’ appear in ten categories: mixes of civil law and common law (3.8%). Muslim law and civil law (0.62%). customary law.14%). Muslim law and customary law (19. continue to apply now but subject of course to the constitution.25%).23%). was radically transformed as the apartheid-based constitutional system was restructured during the early 1990s. as well as those in which systems are rather juxtaposed because they apply to more or less clearly distinct fields. civil law and customary law (28.

LITERATURE REVIEW The book “The Making of South African Legal Culture 1902-1936: Fear. including control of the population. The research gives all information regarding the system ranging from its history to its current position. articles. It throws light upon the factors which led to the emergence of this legal system. Study of this project will be done through books. the State's 5 . RESEARCH METHODOLOGY The study of this project shall involve Doctrinal Research methodology. executive and the judiciary? What role do judges and lawyers play in the legal system?  What are the different sections of law under which a person can seek remedy? SCOPE AND OBJECTIVE This research gives a vivid image of South African Legal System. Favour and Prejudice” –by Martin Chanock which gives an insight into The development of the South African legal system in the early twentieth century which was crucial to the establishment and maintenance of the systems which underpinned the racist state.WORLD LEGAL SYSTEM PROJECT       This research tries to answer following questions:How did the South African Legal System turned out to be a Mixed legal system? What is its court structure and how important is its role? What are its sources of law? What changes were brought in it from time to time? What is the relationship between legislative. and the legitimization of the regime. the Roman-Dutch law. Martin Chanock's highly illuminating and definitive perspective on that development examines all areas of the law: criminal law and criminology. journals and internet database. magazines. the running of the economy.

WORLD LEGAL SYSTEM PROJECT African law. Table of Contents TOPICS PAGE NUMBERS 6 . His revisionist analysis of the construction of South African legal culture illustrates the larger processes of legal colonization. labour and 'rule of law' questions. and land. while the consideration of the interaction between imported doctrine and legislative models with local contexts and approaches also provides a basis for understanding the re-fashioning of law under circumstances of post-colonialism and globalization.

WORLD LEGAL SYSTEM PROJECT 1) HISTORICAL BACKGROUND--------------------------------------------------------------7 2) STRUCTURE OF STATE---------------------------------------------------------------------------8 3) LEGISLATIVE AND EXECUTIVE BRANCHES-----------------------------------9 4) THE LEGAL SYSTEM-----------------------------------------------------------------------------9 5) SOURCES OF LAW---------------------------------------------------------------------------------10 6) STRUCTURE OF COURT------------------------------------------------------------------------13 7) INTERNATIONAL LAW-----------------------------------------------------------------------16 8) BIBLIOGRAHY------------------------------------------------------------------------------------17 7 .

Roman law as interpreted by the Dutch writers of the 17 th and 18th centuries. The 'common law' of the country is based on the 'Roman-Dutch' law of the original Dutch settlers. Furthermore. In the mid-seventeenth century. Johannes Voet. English forces defeated the Dutch settlers and took the Cape of Good Hope as a British possession. The advocates and judges of the superior courts were usually trained in England and tended to rely on their English treatises. As a result of such factors. important primary sources of South African law were the treatises of authors such as Grotius. by the Zuid-Afrikaansche Republiek (the Transvaal) and the Oranjevrijstaat (the Orange Free State) . 8 . English procedural law was adopted and this had a tendency to influence substantive provisions. Thus originally. the Roman-Dutch law of the Cape Colony was overlaid with a heavy English law influence. followed by the British colony in Natal. Law was modified or expanded by statute. South African law reflects this history of successive colonial governance. Roman-Dutch Law did not always cater for the requirements of the modern society that developed during the 19 th century. Simon Groenewegen and Johannes van der Linden. in turn. When the British took possession of the Cape in 1806 they did not impose their substantive legal system in a formal way.WORLD LEGAL SYSTEM PROJECT HISTORICAL BACKGROUND The South African legal system is widely known as one that is basically premised on Roman-Dutch law. The reasons are historical. it was decided that the local Roman-Dutch law would remain in force. The Cape legal system was. necessitating legislative innovation. and also.the Boer Republics established by Dutch trekkers in the mid-nineteenth century. Instead. This is civilian law . In 1806. which was often based on English acts and interpreted using relevant English precedent. Dutch settlers began to occupy the part of South Africa now known as the Western Cape. in many respects. However.

the Group Areas Act 41 of 1950 (providing for the segregation of residential and other areas) and a plethora of other acts designed to segregate every aspect of life. 'apartheid' became the official South African government policy following the electoral victory of the National Party in 1948. with a right of appeal to the Native Appeal Court. and Nelson Mandela elected as President. Key legislation creating this policy included the Population Registration Act 30 of 1950 (classifying the South African population into 'racial groups'). detailed case reports (which include dissenting judgments). and in 1910. During the period of English governance. education. According to this policy. the government began to negotiate with its opponents. Act 108 of 1996. court procedure owes much to the common law tradition. Successive states of emergency were proclaimed during the 1980's. with adversarial trial. unless they qualified to do so in terms of Act 67 of 1952 or other statutory exemptions (the 'pass laws'). partly through legislative innovation. came 9 . the 'citizens' of such states lost their South African citizenship. Democratic elections were held in 1994. and partly through the activities of the new Appellate Division of the Supreme Court. However. the final Constitution. including public administration. Today. with customary law remaining a legal system for those who wish to be subject to it. a Union of South Africa was established with four provinces: the Cape. a system of 'Native Administration' was established. the legal systems of the four territories were made more consistent. 'Grand apartheid' divided the territory of South Africa into separate 'states'. conflict with the South African Constitution. Following this amalgamation. Segregationist policies were evident from earliest times. for example rules of marriage and succession. While many legal doctrines and the arrangement of the law in general can be traced to a civilian heritage. Britain took control of all parts of South Africa. some of which (the Transkei. transport and public amenities. many commentators regard the resulting legal system as a truly hybrid system. and adherence to precedent. health services. indigenous people could rule themselves according to indigenous law in certain matters. As resistance to the apartheid regime intensified from the 1950's onwards.WORLD LEGAL SYSTEM PROJECT After the South African Anglo-Boer War (1899 -1902). Natal. and were an aspect of official policy during the pre-1948 era. employment. In 1997. Today. a process that resulted in the Interim Constitution Act 200 of 1993. Matters of customary law were heard by chiefs and headmen. The rules of customary law may not. however. the South African government implemented legislation giving the state wide powers to detain arrest. In 1990. Boputhatswana. a mix of English common law and civilian Roman-Dutch legal principles. as well as those of other 'ethnic homelands' were not permitted to remain in 'white South Africa' without permission. In terms of South African law. South Africa retains a plural legal system. Residents of the TBVC states. The formal legal system is dominated by this European heritage. and the Transvaal. staffed by magistrates. Venda and the Ciskei) were given 'independence' by the South African government. imprison and ban its opponents. the Orange Free State. The colonial state retained exclusive jurisdiction over matters such as serious crime. the highest court country-wide in terms of the 1909 South Africa Act.

with ten representatives from each province.2 The National Assembly's Parliamentary Portfolio Committees and the National Council of Provinces' Select Committees oversee the work of the executive organs within the sphere of their portfolios and discuss proposed Bills in these areas. The documentation from the Constitutional Assembly is available from the University of Cape Town Law Faculty. § 60. the national legislature retains its legislative power in these areas. Free State. The provinces have a role in drafting national legislation through their participation in the National Council of Provinces.1 and 2) The National Council of Provinces. etc. Health. 2 Ind. the second house of Parliament. However. and may override provincial legislation in the event of a conflict. STRUCTURE OF THE STATE The South African Constitution of 1996 provides for the separation of the legislative. Gauteng. Const. KwaZulu-Natal. Although South Africa is a unitary state. elected for a 5 year term according to a system of proportional representation. North West and the Western Cape) may pass laws on certain matters such as education. provinces may establish executive departments for public administration. with a supreme constitution and a Bill of Rights. The President is the Head of State and governs with a Cabinet comprising Ministers and Deputy Ministers who head the various national government departments.WORLD LEGAL SYSTEM PROJECT into effect. South Africa is a constitutional state. Limpopo (previously called the Northern Province). Thus provinces may establish provincial departments of Education. LEGISLATIVE AND EXECUTIVE BRANCHES The National Parliament is bicameral and consists of: 1) The National Assembly. Exclusive provincial legislative competence is reserved for less important matters such as abattoirs and liquor licenses. who vote as a block. Provided they have the capacity to do so. and comprising between 350 and 400 members. § 46(1). the Constitution has elements of federalism. Each province is headed by a Premier and an Executive Council. Northern Cape. executive and judicial arms of government. 10 . Mpumalanga. health and housing. 1 Ind. and the nine provinces (Eastern Cape. Const.

and rules and principles discussed in the 'old Roman-Dutch authorities'). The present legal system is premised on the principle of supremacy of the Constitution. SOURCES OF LAW In this section the sources of law are discussed in brief.3 South African law consists of the Constitution which is the supreme law of the country. also by notice in the Gazette.WORLD LEGAL SYSTEM PROJECT National bills usually emanate from government departments. though others have argued that in practice. meaning that there are multiple sources of law rather than one primary source (a code) where the whole law can be found. This has been the case since the adoption of the Interim Constitution in 1994 and subsequently the 1996 Final Text of the Constitution. undergoing several amendments as a result of discussion in the portfolio committee or select committee before final adoption. When a bill has been passed by both houses of Parliament it goes before the State President for assent and is then published in the Government Gazette as an Act. the system that ran was premised on Parliamentary sovereignty or supremacy. it was supremacy of the Executive. and may result from previous consultation through the publishing of green papers (discussion documents) and white papers (cabinet approved policy documents). (Juta: 2002) 11 . The Constitution 3 D Kleyn & F Viljoen. international law and the writings of authoritative publicists of the law. Previously. and published in the Government Gazette. Draft bills may be published for comment in the Government Gazette. indigenous law. a commencement date is proclaimed separately by the President. Sometimes. custom (or conventions). THE LEGAL SYSTEM INTRODUCTION South Africa has an uncodified legal system. legislation (acts of the national and provincial legislatures. but bills are published as a separate series. judicial precedent. the common law (rules developed by previous decisions of superior courts. and governmental regulations). Specific regulations in terms of the various acts are drawn up by the ministries concerned. Beginners Guide for Law Students.

and not merely as supreme public law. it also binds non-state actors. reading the judgment of the Court. Ackermann J. it is preferable. and the obligations imposed by it must be fulfilled. and binds the legislature.’ This position represents a fundamental paradigm shift from the previous constitutional order that rested on the principle of parliamentary supremacy. the drawing of a clear and permanent line between the domains of private law and public law and the utility of any such efforts. and horizontally. 1997 (3) SA 786 (5 June 1997) 12 . to attempt to do that which has seemingly eluded scholars in the past and given rise to wide differences of opinion among them. such application affirms the status of the Constitution as supreme law. Law and Sacrifice: Towards a Post-apartheid Theory of Law (Wits University Press: 2005).4 In Fose v Minister of Safety and Security5. This leads us to the second fundamental implication which is that through the concept of horizontal application. the Constitution is the supreme law of the country. regulating the affairs of Government in relation to persons (both natural and juristic). for the present. Suffice it to say that it could be dangerous to 4 JWG van der Walt.’ Taken together. how functions traditionally associated with the state are increasingly exercised by institutions with tenuous or no links with the state. the judiciary and all organs of state’. seriously questioned the efficacy of the public law and private law demarcation in South Africa. these provisions show that while the general principle remains that the Bill of rights primarily binds organs of the State. it is applicable. 1997 (7) BCLR 851.e. The horizontal application of the Constitution has a number of fundamental implications on the whole discourse on South African law as we know it. in appropriate cases. how remedies such as judicial review are being applied in an ever widening field and how legal principles previously only associated with private legal relations are being applied to state institutions. regulating affairs between or among persons (both natural and juristic). The Constitution applies both vertically. i.WORLD LEGAL SYSTEM PROJECT As mentioned above.e. the executive. 5 (CCT14/96) [1997] ZACC 6. i. It is both undesirable and unnecessary. for purposes of this case. whilst Section 8(2) states that ‘a provision of the Bill of Rights binds a natural or a juristic person if. This is particularly so with regard to the application of the Bill of Rights under Chapter 2 of the Constitution. the Constitution has substantially blurred the classical distinction that draws clear and permanent demarcations between public law and private law. stating that: While the foreign jurisprudence referred to emphasises that the proper protection of entrenched fundamental rights requires a “public law” remedy. Section 2 of the Constitution provides that the ‘Constitution is the supreme law of the Republic’ and that ‘law or conduct inconsistent with it is invalid. First. to refer to the “appropriate relief” envisaged by section 7(4) merely as a “constitutional remedy”. namely. taking into account the nature of the right and the nature of any duty imposed by the right. and to the extent that. Section 8(l) of the Constitution provides that ‘[the] Bill of Rights applies to all law. 3-4. Much of this interesting debate is concerned with an analysis of power relations in society. the shift which has taken place in the demarcations between “private law” and “public law”.

Malawi. every court. Thus the common law and customary law must be interpreted in a manner that furthers the values of the Constitution. such as Provincial Legislaturs and Municipal Councils are responsible for passing provincial Acts and by-laws 6 See RE Kapindu. and when developing the common law or customary law. particularly matters relating to the implementation of economic. Legislation Legislation may be defined as the rules of law made by or under the authority of the legislature. Section 39(2) of the Constitution provides that when interpreting any legislation. is the highest national legislative authority. 8 Ibid 9 See Section 43 of the Constitution. This can.6 There are various categories of legislation.9 Other state organs. 13 . Globalex 7 Financial legislation as described here is without doubt a form of regulatory legislation. for instance. Thus for instance. 7 and (5)Social legislation that deals with the day to day running of the social system. nabove. (2) Regulatory legislation that regulates the manner in which some public affairs (sometimes even private affairs) or institutions are run. except money Bills. social and cultural rights. These include (1) Penal legislation that regulates the criminal law regime. purport and objects of the Bill of Rights. The reasoning was clear: the Constitution is the supreme law of the land. The result of this blurring of such distinction seems evident from the important change introduced through Section 11 of Act No. The concept of constitutional supremacy also informs the interpretation and development of other forms of law. but it is cited as a separate aspect here because of the huge implications that it has on the ordering of the modern society in economic terms.8 Parliament. See also Kleyn & Viljoen.WORLD LEGAL SYSTEM PROJECT attach consequences to or infer solutions from concepts such as “public law” and “private law” when the validity of such concepts and the distinctions which they imply are being seriously questioned. 34 of 2001 whereby the office of Chief Justice of South Africa shifted from the head of the Supreme Court of Appeal to the head of the Constitutional Court. be gleaned from section 55(1) (b) that states that Parliament may initiate or prepare legislation. and hence the head of the Court that has the final word on Constitutional matters must necessarily be the Chief Justice of the country. tribunal or forum must promote the spirit. whether such law is public or private. 44. (3) Financial legislation that regulates financial matters and institutions in the country. in South Africa comprising the National Assembly and the National Council of Provinces.

courts of co-ordinate jurisdiction and its own decisions. as a general rule." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases. n." Insofar as precedent is concerned. Judicial Precedent The doctrine of judicial precedent binds courts to uphold the law as expressed in previous decisions of superior courts. The doctrine. stare decisis is important only for the decision. the decision.12 Once appropriately passed. for the detailed legal consequence following a detailed set of facts. Osborne (In re Osborne). literally and legally. in principle.15 10 See Kelyn & Viljoen. with its origins in English law. n…above. 60 14 . 47 14 Kleyn & Viljoen.above." not for the "why. but subject to the Constitution. v." Consider the word "decisis. under the doctrine of stare decisis a case is important only for what it decides — for the "what.14 It is firmly rooted in the principle of stare decisis which literally means ‘to stand by decisions’ (previous decisions). the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled. stating that: Stare decisis is the policy of the court to stand by precedent. it is not "to stand by or keep to what was said. Nor is the doctrine stare dictis. legislation enters into force on the date of its publication in the Government Gazette. 10 Legislation has been described as a very powerful source of law that. In the case of United States Internal Revenue Serv. but the piece of legislation in issue may itself prescribe that it shall come into force on a later date13. binds the whole society.WORLD LEGAL SYSTEM PROJECT respectively. The principle of stare decisis is well settled in common law jurisdictions." Rather. 45 11 Ibid 12 Ibid 13 Kleyn & Viljoen. A court may however depart from decisions of courts of co-ordinate jurisdiction or its own decisions if it can demonstrate that they were wrongly decided. is founded on the principle that the law which was applied to a specific situation should be likewise applied in similar situations.11 It is said to be the quickest and most effective way to amend old laws and create new ones as overnight." The word means. a Statute can change existing law in its various forms. and these are termed subordinate legislation. the ninth Circuit Court of Appeals lucidly described stare decisis." and not for the "how.

Since 1995. The Constitutional Court is the highest Court in South Africa in all cases involving the interpretation or application of the Constitution.3d 306. be regarded as the highest Court in South Africa.WORLD LEGAL SYSTEM PROJECT The doctrine of judicial precedent.S. the Court established a very strong precedent on the obligation of Government to respect the right to housing and that. developed a relatively rich pool of constitutional jurisprudence that is sophisticated and in many ways serving as a model for common law-based jurisdictions. Since the Constitution is the supreme law of the country. 1996) 16 S v Makwanyane 1995 (3) SA 391 (CC) 17 2000 (11) BCLR 1169 (CC) [Grootboom case] 18 1998 (1) SA 765 (CC) [Soobramoney case] 15 . in Grootboom. 16 the case of Government of South Africa and Others v Grootboom and Others17 where. Some of its most notable decisions include the case of State vs Makwanyane & another where the Constitutional Court abolished the death penalty in South Africa. was established to decide matters based on Constitutional provisions. the Constitutional Court may. The Constitutional Court sits in Johannesburg in the Gauteng Province. implies that courts are ordered in a hierarchical fashion. The Grootboom case if especially important in the interpretation of socio-economic rights generally under the Constitution. the Court has. 185 (9th Cir. KwaZulu Natal18. as described above. pleadings and documents. Tax Cas. summaries of judgments highlighting the main questions of law decided in each case as well as heads of argument. 96-1 U. Structure of the Courts The Hierarchy of courts in South Africa can broadly be represented as follows. that economic. in this regard. 50. Documents available for viewing. especially in Africa. among other things. through scores of decisions that it has handed down. in that respect. Government should desist from evictions without providing the evictees with alternative accommodation. social and cultural rights are justifiable under the South African Constitution. (CCH) para. in descending order: Constitutional Court A new superior court. Further. The Court for instance. The website of the Court consists of a full text database of all Constitutional Court cases handed down since the first hearing in 1995. the Court re-affirmed its earlier decision in Soobramoney vs Minister of Health. printing or downloading include full judgments. importantly but regrettably in the opinion of a substantial body of scholarly 15 76 F. the Constitutional Court.

a new Supreme Court of South Africa was formed. The Supreme Court of Appeal sits in Bloemfontein in the Free State Province. divisions of the Court were established in the Eastern Cape and in the Northern Cape (then known as Griqualand West). refused to apply the concept of minimum core content obligations in the interpretation of socio-economic rights. Special mention is made here of mostly the Court’s decisions in socioeconomic rights cases as this is an area where there is a dearth of jurisprudence in many parts of the world. a pacesetter in many respects. called upon to determine on the content of the right of access to sufficient water. obliged Government to make available nationwide the drug Nevirapine that helps to prevent mother-to-child transmission of HIV/AIDS. [2009] ZACC 28. Social and Cultural Rights. re-affirmed its rejection of the minimum core content approach in South Africa. the Constitutional Court. 20 [TAC case] 2002 (5) SA 703. Following the Union of South Africa in 1910.19 Another Important decision is that of Minister of Health and Others v Treatment Action Campaign and Others20. Thus the Constitutional Court of South Africa is. The 'independent states' created during the apartheid era established superior courts in their territories. 16 . and its insistence on the application of the reasonableness test. especially in Africa. particularly in determining the obligations of Government. Supreme Court of Appeal The Supreme Court of Appeal is the highest Court in South Africa on all other matters except constitutional ones. while the Orange Free State instituted a High Court in 1854. and particularly to state the minimum quantity of water that would pass the sufficiency test. A new Appellate Division in Bloemfontein heard appeals from the other divisions of the Supreme Court and set precedent which was binding country-wide. with provincial and local divisions in all four provinces. Instead. As a historical note. City of Johannesburg & Others. The Natal Supreme Court was established in 1857. in this regard. The first High Court of Justice was set up in the Zuid-Afrikaansche Republiek in 1877. 19 In October 2009. the Court decided that the standard to be applied in the interpretation of socio-economic rights under the Constitution. is that of reasonableness. In terms of the new Constitution. as developed by the United Nations Committee on Economic. When circuits round the Cape Colony became too arduous. 2002 (10) BCLR 1075.WORLD LEGAL SYSTEM PROJECT thought. enforcing the right of access to healthcare as provided for under Section 27 of the Constitution. the existing provincial and local divisions of the erstwhile 'Supreme Court' (including the courts in the TBVC states) were renamed High Courts. a matter in which the Court was among other things. rejecting the call. This is a case in which the Court. in the case of Mazibuko & Others v. The Court has stuck to this position up to present. the Cape Supreme Court was established in Cape Town in 1828. and the Appellate Division was re-established as the Supreme Court of Appeal.

Magistrate Courts These are lower courts spread across the country. Decisions of lower courts are not reported. there are various specialised courts that operate at the level of the High Court. These are: 17 .  North Gauteng High Court (with its seat in Pretoria).  KwaZulu Natal High Court (with its seat in Durban)  KwaZulu Natal High Court (with its seat in Pietermaritzburg). the following are High Court divisions in South Africa:  Eastern Cape High Court (with its seat in Bisho).  Eastern Cape High Court (with its seat in Grahamstown)  Eastern Cape High Court (with its seat in Mthatha)  Eastern Cape High Court (with its seat in Port Elizabeth)  Free State High Court (with its seat in Bloemfontein).WORLD LEGAL SYSTEM PROJECT High Courts In terms of the Renaming of Court Act.  South Gauteng High Court (with its seat in Johannesburg)  Western Cape High Court (with its seat in Cape Town).  North West High Court (with its seat in Mafikeng)  Northern Cape High Court (with its seat in Kimberley). that came into effect by Presidential Proclamation on 1 March 2009. Other Courts In addition. 2008.

for an international treaty that South Africa has ratified to become locally enforceable by the courts as part of domestic law. Section 232 deals with customary international law.WORLD LEGAL SYSTEM PROJECT a. This basically means that as a general rule. In the event of Incorporation. Both transformation and incorporation are legislative measures. d. There are of course exceptions to the prohibition. generally ensures that due effect is given to the treaty. 35 (per Chaskalson. The Constitutional Court has held that reference to international law in this provision includes both binding as well as nonbinding international law. Special Income Tax Courts Labour Courts and Labour Appeal Courts Family Courts Land Claims Courts International law For purposes of the application of international law. customary international law is part of the domestic law in South Africa unless it is inconsistent with the Constitution or an Act of Parliament. Customary international law refers to rules that are developed as the result of consistent widespread state practice which practice is viewed as legally binding by those states. Section 231 of the Constitution addresses the various circumstances in which international treaty law is applicable in South Africa.21 21 See S v Makwanyane 1995 (3) SA 391 (CC). According to section 232 of the Constitution. para. although differently worded and/or nuanced from the treaty in issue. South Africa falls into the category of states that are commonly. An example of a rule of customary international law is the prohibition of the use of force among states in their relations. the local legislation simply adopts the treaty in toto as being applicable as domestic law. Further to these two provisions. the treaty must either be transformed or incorporated into local law. the domestic legislature passes a law that. In the case of transformation. 18 . such as in the event of self-defence by a state. b. referred to as monist. and the 1969 OAU (AU) Convention Governing Specific Aspects of Refugee Problems in Africa. An example would be the Refugee Act of 1998 giving effect to the 1951 UN Convention Relating to the Status of Refugees together with its 1967 Protocol. c. P). Section 39(1) (b) of the Constitution obliges courts in South Africa to consider international law when interpreting the Bill of Rights of the Constitution. meaning that they involve the adoption of local legislation to give effect to the treaty in question.     Rights and Constitutionalism: The New South African Legal Order by Dawid Van Wyk and John  http://www.WORLD LEGAL SYSTEM PROJECT BIBLIOGRAPHY       http://www.  Official Government Gazette  Butterworths Statutes  Juta Statutes  http://www.parliament.polity.pmg.  Article “A mixed legal system with a constitution on top: South African law in the era of Democracy” by Carole  19

  Encyclopaedia. . 20 . 1968.  Hahlo.  http://www. Lawrence. .ac. . Lourens Re-interpretation of statutes. Workbook for Introduction to the Law. .Cape Town: Juta. J. 1996 (loose-leaf updates).Durban: Butterworths. H. J et al. Administrative law. . 3rd ed.R. .WORLD LEGAL SYSTEM PROJECT  http://www. 1960. and Ellison Kahn The South African legal system and its background.  Baxter.Cape Town: Juta. The Union of South Africa: the development of its laws and constitution.Durban: Butterworths. .R.  Bill of Rights compendium.  https://innopac. 2000. 1999. 2nd ed.  De Ville.  Du Plessis. An introduction to law. Constitutional and statutory interpretation. 2002.Cape Town: Juta.Cape Town: Interdoc Consultants. Lourens M. 1996.  Du Plessis.butterworths.jutastat.Law of South Africa (LAWSA)  Church.R.Cape Town: Juta. – Durban: Butterworths.