UNIT 2

HISTORY OF SOUTH AFRICAN LAW

 IMPORTANCE OF LEGAL HISTORY

*It explains the present character of law.

*It provides understanding of legal history which ease(facilitates) the
necessary change in Law.
*It is the living law.
*It links us to other countries.

5 PHASES OF THE SOUTH AFRICAN HISTORY.

 PHASE 1: AFRICA FIRST

*The CUSTOMARY LAW (INDIGENOUS LAW) is the main source of law in the
1st source of the South African history.
THE CUSTOMARY LAW/ INDIGENOUS LAW DISPLAYS THE FOLLOWING
CHARACTERISTICS:
*It have UNWRITTEN customs that are passed on orally from generation
to generation.
*It disagree on tribal and territorial basis.
*It controls the relationships between individuals not between
individuals and the state.
*It is a group orientated system.

 PHASE 2: DUTCH COLINISATION

*Dutch colonists lived according to the Roman-Dutch Law.

*THE SOURCES OF THE DUTCH LAW WERE:

1.The Roman-Dutch Law of Holland
2.Batavian Placaaten(known as JARKATA)
3.The statues of India
*The settlers' courts were known as the LANDOSTREN and HEEMRADEN.
*The Roman-Dutch law was imposed to South African people.
 UNIT 3: SOURCES OF SA LAW
Thursday, February 17, 2022
9:27 PM
 THE SOUTH AFRICAN LAW CAN BE FOUND IN THE FF SOURCES:
1.The Constitution
2.Legislation(Statutes)
3.Precedent(Court decisions)
4.Common law
5.Custom
6.Customary law
7.Works of modern authors
8.Foreign law
9.International law

*PRIMARY SOURCES: These are sources that have a binding authority and where the law
ORIGINATES.
*SECONDARY SOURCES: These sources have a little persuasive authority which assist people to
understand the law.
*The most vital source of the South African Law is the CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA, 1996.

 3.1. CONSTITUTION

3.1.1. CONSTITUTION AS A SOURCE

*The constitution was a source of law in the same way as any other statute.
*The constitution regulated the organization and structure of the state.
*It influenced the lives of everybody in such a way that it denied the franchise to a majority of the
population.
*It did not provide any general norms with which the whole body of law had to adhere to.
*The constitution is occasionally referred to as the INTERIM CONSTITUTION.

3.1.2.KEY CHARACTCERISTICS OF THE 1996 CONSTITUTION

*It denotes a break from previous constitution in that it declares itself as the SUPREME LAW of SA.
*It is a primary source in such a way that it is binding and authoritative, this makes the judges to
adhere to it.
*Regulates the power of the state and splits the power of the state between 3 branches of
government.

(1). THE EXECUTIVE( ENFORCES THE LAW)

(2). THE LEGISLATURE( CREATES THE LAW)
(3). THE JUDICIARY( APPLY, INTERPRETS AND DEVELOPES THE LAW)

*This is known as the SEPERATION OF POWERS, which ensures that none of the branches of the
government abuses its power.
*The constitution contains Bill of Rights meaning the constitution provides general norm which
has a direct pr indirect influence on all sources of the law.
*It have a direct influence on legislation in the awareness that a legislation that is in conflict with
the constitution can be struck down by courts.
*The constitution has a less direct influence in other sources of the law.
*It incorporates the principles of international human rights law as a source of our law.

3.2. LEGISLATION

3.2.1 LEGISLATION AS A SOURCE

(A). WHAT IS LEGISLATION?

*Legislation is the law laid down by an organ of the state which has the power to do so.
*The laws are called STATUTES(OR ACTS) and embodied in writing.
*The PARLIAMENT is the highest organ in SA that can pass LEGISLATION to next level.
* The parliament gets its power to pass the legislation from the COSTITUTION.

*The parliament consists of 2 houses:

1.The National Assembly
2.The National Council of Provinces which is responsible for giving the provinces a say in the
national legislation that affect them.

(B). POWER OF LEGISLATION

*It is vital source if the law.
*It is a primary source if the law and is also a binding authority.

THE PARLIAMENT PASSES LEGISLATION WHEN:

*There are gaps(lucanae) in the law;
*The law no longer corresponds to needs in modern society;
*There are defects or loopholes in existing law.

C). HOW IS A STATUTE MADE?

*The government may draft a GREEN PAPER which puts forward different policy options on the
specific topic.
*Once published for public comment; a WHITE PAPER is drafted which states the government
policy.
*After the public has commented it might expect a draft known as a BILL concerning the matter.
*The bill is introduced in the National Assembly by the minister responsible for the matter for the
FIRST READING.
*The bill is investigated by the PORTFOLIO COMMITTEES and then make recommendations in a
report which is presented to the National Assembly for the SECOND READING.
*Only the purpose and principles of the bill are debated and publish the debates in HANSARD.
*Amendments concerning issues in details may be made at the end of the debate;
*They then become considered by the portfolio committee which will draft a report again.
*The report is considered by the National Assembly and then votes on the second reading of the
bill.
*After being approved by the National Assembly; the bill is referred to the National Council of
Provinces for approval.
*If the National Council of Provinces approve the bill, it is referred to the president for assent.
*The president signs the bill and it becomes an Act or Statute.
 *A MONEY BILL must always be introduced to the National Assembly.

(D). WHEN DOES LEGISLATION COME INTO FORCE?

*An Act comes into force on the date publication in the GOVERNMENT GAZETTE OR on a later
date when stipulated by the Act itself.

(E). APPLICATION OF LEGISLATION

*The courts apply a legislation that is in force.
*The court ought to judge a matter before it in light of the statute concerned, if it applies.
*Some pieces of the legislation apply uniformly to the entire population:
*Others only apply to certain circumstances and there may be an APPLICATION CLAUSE obtained
in in the Act specifying when the act will apply.
*The court will have to interpret the statute to determine whether there was, in fact, a breach of
the statute.

(F). WHEN DOES LEGISLATION STOP BEING IN FORCE?

*3 MAIN WAYS A FORCE OF LEGISLATION MIGHT COME TO AN END:

1.REPEAL: * If a parliament decides to bring an end an existing piece of legislation:
*It will pass a new statute that either expressly or implicitly repeals an old law.
*The statute might simply say that a particular Act is thus repealed if there is express repeal.
*The parliament may pass a new piece of legislation that is in conflict with an old piece of legislation:
*the court will then aim to reconcile the two pieces of legislation that are in conflict.
*If the conflict is irreconcilable the newer Act will absolutely repeal the older Act.

2.JUDICIAL REVIEW( TESTING RIGHTS OF THE COURTS): *A testing right is provided to court by the
INTERIM CONSTUTITION and FINAL
CONSTUTITION.
*Both constitution contain a bill of rights which have rights that implicit
the acknowledgement of the freedom, equality, and human dignity of all persons.
*The constitution refrain other statutes from violating the rights and seeks to
entrench them.
*The constitution elevates itself and the Bill of Rights to a general standard form against which all
legislation can be tested.
*The Constitution is the SUPREME LAW and any Act that is in conflict with it is invalid.
*The constitution also provides for the start of a Constitutional Court which is the HIGHEST COURT to
adhere to, and which has the final say in such matters.
* CONSTITUTIONALISM means the constitution is SOVEREIGN.
3.SUNSET CLAUSES: *The legislation can come to an end due to sunset clause.
*This happens when the constitution hold a clause specifying that the legislation
will stop
being in effect on a certain date.

3.2.2. FINDING STATUTES

(A).REFERENCE TO A STATUTE
*Every year the parliament passes many laws.
*It is often necessary to make reference to the statutes as follows:

Choice on Termination of Pregnancy Act 92 of 1996

↑ ↑ ↑
short tittle of the Statute number Year
*The tittle of the statute, number and year ought to be required in order to complete it.

(B). ACCESSING STATUTES

*Statutes are published in separate GOVERNMENT GAZETTES one can find them there.

C). IS IT A FORCE?
*A statute often come into force on publication if nothing is mentioned in it, but it often come into force
later.
*The later date is either specified or stated in that it will come into force when the president publicize a
date in the GOVERNMENT GAZETTE.
*The date on which an Act came into force is given on the first page of the existing legislation.

(d). IS IT UPDATED?
*Laws are from time to time amended because of the omissions in existing legislation are identified and
also for the purpose of accounting for the developments in society.
*A majority of statutes are augmented by subsequent notices in which detailed implementations of
aspect of the law is spelled out.

(A). CITING A SECTION OF A STATUTE

*Section 2(1)(b)(i) of Act 92 of 1996.
*Apply the correct section of the statute that relates to the facts of the case.

3.2.4. INTERPRETATION OF STATUTES: 2 THEORICAL APPROACHES

*The are two main theoretical approaches to interpreting statutes which are:

(1). THE LITERAL APPROACH: *This approach believes that the golden rule of interpretation is to
discover the intention of the
legislature.
*This is mostly done if the words in the statute are clear and explicit .
*The literal meaning of words is followed if the ordinary meaning of the
words is used and the result
is not ridiculous.
*A person can turn to SECONDARY AIDS of interpretation only in cases
where the literal meaning is
unclear, ambiguous, or would lead to absurd outcomes.
*This approach to statutory interpretation is eventually informed by the
legal positivist concern that
orders from the legislature, and must be respected and sternly interpreted
by judges.

(2). THE PURPOSIVE APPROACH: *Characterized by a concern with putting the 'TEXT IN CONTENT'
 *The purpose of the legislation is an analytic consideration in this
approach of interpreting.
*It does not suppose that an unambiguous, clear meaning of a text
necessarily reflects the
purpose of that text.
*In this model the purpose is inevitably crucial and relevant; not just in
cases of absurd outcomes
*Judges are not seen as robots that apply the law in a stern, nearly
mathematical manner.
*THE LAW OUGHT TO BE PURPOSIVELY INTERPRETED.

3.2.5. INTERPRETATION OF STATUTES: PRACTICAL STEPS

(A). TECHNIQUES OF INTERPRETATION

*The most famous writer in statutory interpretation is LOURENS DU PLESSIS.

(1). TECHNIQUE 1 - GRAMMATICAL INTERPRETATION

*The grammatical meaning of the words, phrases, and sentences are crucial and must heed to them.

(2).TECHNIQUE 2 - SYSTEMATIC INTERPRETATION

*The legislation should inevitably be read as a whole.
*Heed to the whole text to ensure you understand the text in context even though your case might turn
on a very specific sub-section of a statute.
*Inevitably begin with the definition section when in search for the meaning of a statute.
*Thoroughly read the entire Act in order to contextualize the word's meaning.
*INTERPRETATION ACT 33 OF 1957 is a useful aid to interpretation process.

(3). TECHNIQUE 3 - TELEOLOGICAL INTERPRETATION

*The word TELOS is Greek and it refers to a purpose of objective.
*This technique needs us to dig into deeper meaning behind the statute chiefly in light of constitutional
values.
*The introduction to the act which clear incorporates constitutional references and mentions the socio-
economic importance of
terminations of pregnancy.

(4). TECHNIQUE 4 - HISTORICAL INTERPRETATION

*The historical need of the legislation known the MISCHIEF RULE is asked.
*Older versions of legislation that dealt with a similar matter to ask how the new legislation differs from
the old are considered.
*This assist in understanding the purpose of the legislation.
*In the matter of termination of pregnancy; the legislation must me understood as an unambiguous and
unequivocal statement in favor of choice and bodily autonomy.

(5). TECHNIQUE 5 - COMPARATIVE INTERPRETATION

*Here we ponder how courts in other jurisdictions have interpreted similar words, sentences or similar
statutory schemes.
*The preceding deliberations are currently not taken into account.
*The vital source of are the debates of parliament as published in Hansard.

(B). PRESUMPTIONS
*A presumption is a ruling common sense applied consistently that has gained the status of presumed
truth.

*EXAMPLES OF PRESUMED TRUTH:

(1).Each word and section must be given meaning: the legislation does not hold purposeless provisions.
(2). The legislation does not object at changing laws excessively.
(3).Unjust and unreasonable outcomes are not the aim.(becomes possible when more than one
interpretation is possible).
(4).Statutes only have prospective and not retrospective application.

3.3. PRECEDENT (COURT DECISIONS, CASE LAW)

3.3.1. PRECENDENT AS A SOURCE

(A). FUNCTIONS OF COURTS

*Courts apply the law on daily basis.
*Courts ascertain the law, apply it to the case and give judgement.
*The word 'COURT' means presiding officer.