2 APPLIED LAW FOR POLICE OFFICIALS

6
Kleyn & Viljoen list the following characteristics of the law:
• 'It consists of a body of rules or regulations facilitating and regulating human
interaction.
• It orders society·and gives certainty.
• The rules are applied or interpreted by institutions of state.'

3 SOURCES OF SOUTH AFRICAN LAW

When the words 'sources of the law' are used, it refers to two things: the origin of
the law, and where one can read about it.
The 'origin' of the law refers to where the law of the country comes from; In
South Africa some of our law arises far back in history, but today that law, called
'common law', can be shaped by modern ways of thinking and must uphold the
7
human rights laid down in our Constitution. Statutorylaw derives from Parliament
and is a second source of law. The rules made QYParliament are referred to as
'legislation'. The Constitution is another, very illlportant, source oflaw because all
other law must conform to its principles. Finally the courts that interpret legislation
and. apply the law also have an influence in shaping the law in the light of the
Constitution. Therefore, case law handed down by judges is a fourth source of law.
These four sources are referred to as 'material' sources of law because they are the
official recognised sources from which legal rules that affect everyone arise.
Secondly, 'sources of law' also refer to how one finds out whatthe law says,
ie, where the provisions and information about the law can be found. This second
aspect is referred to as 'knowledge sources', or 'published information', about the
law.

3.1 Material sources

Not all of South Africa's law is codified, which means that it cannot all be found in
one single primary written source or 'code'. Most of South Africa's legal rules stem
from the following four different material sources:
• Common law ·
• Statutory law (legislation)
• The Constitution
• Case law

3.1.1 Common law

Common law is the historical component of South African law. It evolved from a
variety of older legal systems in Europe. Indigenous communities, who had been
living in southern Africa before Europeans arrived here, each had their own set of

6 Kleyn, D & Viljoen, F Beginner's Guide for Law Students 4 ed (Juta 2010) at 2.
7
See ch 2 of the Constitution.
L: -·----·-··--- ·-·-·----·-· ··-----·· - - - - - - - - - - - - - -

INTRODUCTION TO SOUTH AFRICAN LAW 5

(a) Parliamentary sovereignty
When South Africa became a Republic in 1961, the system of government that had
been introduced under British colonial rule, ie the Westminster 11 system, remained
in force. A very important aspect of the Westminster system was the principle
of parliamentary sovereignty. This principle meant that the courts qudiciary) did
2
not have the authority to invalidate legislation passed by Parliament. The courts,
therefore, did not have the power to criticise legislation in order to strike it down.
They could only strike it down on the grounds that it had been promulgated through
a procedure that had been invalid. For example, the judiciary could not strike down
law passed by Parliament on the grounds that the law itself was discriminatory;
the judiciary could only interpret the law in accordance with the intention of the
legislator, that is, Parliament.
Consequently, when Parliament passed racially discriminatory laws during the
apartheid system, its Acts could not be challenged by the courts. This, amongst
other things, led to a great deal of dissatisfaction amongst the majority of the
population who were people of colour and eventually caused the struggle against
apartheid. However, from early in the 1990s all important role-players in South
Africa committed to negotiate a new constitutional dispensation.

(b) Constitutional supremacy

13
On 27 April 1994 South Africa's Interim Constitution came into force. Some
14
of its major characteristics were its supremacy, and the inclusion of a chapter
on fundamental human rights. 15 The Interim Constitution also provided for a
constitution-making body (the National Assembly and the Senate) to draft 16 and
adopt a final Constitution in accordance with the Interim Constitution, and the
provisions of the Constitutional Principles attached to it. 17 The Constitutional
Court had to certify that the provisions of the proposed new constitutional text
complied with the Constitutional Principles before the final Constitution could
become law. On the second attempt, the Constitutional Court certified the new
constitutional text and South Africa's current Constitution came into force on 4
February 1997.
A unique process was therefore followed to put South Africa's Constitution in
place. It is the supreme law of the land, 18 which means that it is more important
than any other law because it prevails over them: law which is inconsistent with
it is invalid and may be declared as such by the high courts, and confirmed by

11 Westminster is the name of a part of London where the British Houses of Parliament and other impor-
tant government offices are located.
12 Carpenter,
G Introduction to South African Constitutional Law (Butterworths 1987) at 77.
13 Constitution of the Republic of South Africa, Act 200 of 1993 - referred to as 'the Interim
Constitution'.
14 See s 4 of the Interim Constitution.
15
Chapter 3 of the Interim Constitution.
16
The people of South Africa were also invited to make submissions regarding the provisions of the new
Constitution to the constitution-making body.
17
See ss 68 and 71 of the Interim Constitution.
18
Section 2 of the Constitution.