STUDY UNIT 1: GENERAL INFORMATION

Legislation as source of law

 Legislation is made up of all the enacted legislation e.g. Acts of parliament,

provincial legislation, municipal by-laws, proclamations and regulations.
 The law and a law
- The law consists of all forms of law e.g. common law, statute law,
customary law, case law.
- A law is a written statute enacted by those legislative bodies which have
the authority to make laws.
 An Act and an act
- Act, refers to statute.
- act, refers to conduct.
 Common Law is made up of laws which originally weren’t written down. The
common law may be changed by original legislation, but if there is no
statutory law on the subject, the common law applies. Statute law is
important since common law cannot deal with the regulation of new
technological developments, legislative intervention is needed. As a result,
legislation is the most important source of new law in most modern societies.

Interpretation of statutes

 Interpretation of statutes is the judicial understanding of legislation, dealing

with rules which are used to make up the correct meaning of the legislative
provisions to be applied in practical situations.
 S11 of the Bill of Rights “Everyone has the right to life”.
- In S v Makwanyane 1995 (3) SA 391 (cc) the Constitutional Court held
that the right to life means that the state may not penalize a person to
death in retribution and the death penalty was declared unconstitutional
- In Makwanyane and Ex parte Minister of Safety and Security: In re S v
Walters 2002 (4) SA 613 (CC) the Constitutional Court held that the
existing right to kill a person in self-defence was not abolished by the
Constitution.
 - In Soobramoney v Minister of health, KZN 1998 (1) SA 765 (cc), it was
held that the constitutional right to life does not mean the state has to the
duty to keep all terminal patients alive in all circumstances.
- In Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) the
Constitutional Court linked the constitutional rights to life and the freedom
and security of the person to the constitutional duty imposed on the state
and all of its organs not to perform any act that infringes these rights.
 The provision must be read, understood and applied within the framework of
the supreme Constitution and the Bill of Rights.
 Legalese (Bad drafting) the specialised language used in legal documents.
 Intention of the legislature
- Is the intent of the collective majority of the legislative body present at the
time of voting, expressing their will within the constraints of the voting
guidelines which are formulated by legal drafters on the advice of
bureaucrats from a government department.

Constitutional order

 A supreme constitution is the highest law (lex fundamentalis) in the land.

 Principles of the interim Constitution which transformed statutory
interpretation were retained in the Constitution of 1996. Apart from the
constitutional values, the interpretation of statutes was transformed by six
provisions of the Constitution in particular:
- S 1 (foundational provision)
- S 2 (the supremacy clause)
- S 7 (the obligation clause)
- S 8 (the application clause)
- S 36 (the limitation clause)
- S 39 (the interpretation clause)