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1.2 UNIT 1: LECTURE 2

Identify and explain the various sources of law that could possibly find
application in the following factual scenario. You must in each case explain
what kind of authority the source of law has.

EXAMPLE 1:

After spending more than a year attempting to dodge the commission, Judge Zondo has put
former president Jacob Zuma on notice, says Ferial Haffajee in the Daily Maverick
(journal/persuasive/non-binding) of 25 February 2021. The Zondo Commission will lay a
criminal complaint with the police against former President Jacob Zuma after he walked out
of the state capture inquiry without permission last week. Zuma's actions were in
contravention of the Commissions Act of 1947 (legislation/authoritative/binding/written law)
which deems it a criminal offence for someone who is summoned to appear and give
evidence to leave before being excused. In President of the Republic of South Africa and
Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC), (case
law/authoritative/binding/decision of judge must be followed) two important questions were
raised concerning the basis on which the courts may review the exercise of presidential
powers. South Africa is party to the African Charter on Human and Peoples’ Rights
(international/authoritative/binding/agreed by different states) which protects the rights of the
accused to remain silent in criminal cases.

EXAMPLE 2:

On 22 February 2021 the Gauteng Division of the High Court in Johannesburg is set to start
hearing a matter relating to euthanasia and the right to die in South Africa in the form of
physician assisted suicide and physician administered suicide. According to Snyman in
Criminal Law (2014) (journal/persuasive/non-binding) euthanasia is still considered a crime
and in Minister of Justice and Correctional Services and Others v Estate Late Stransham-
Ford 2017 (3) BCLR 364 (SCA) (case law/authoritative/binding/decision by judge must be
followed) the stance that euthanasia constitutes murder was confirmed. Murder, a common
law crime, is defined as the unlawful and intentional killing of another human being. In ‘Still
Waiting for an Answer: Physician Assisted Suicide in South Africa’ of the 2020 edition of the
De Rebus, Roberston (journal/persuasive/non-binding) suggested that there is a growing
movement towards support for an elected dignified death in South African law. She referred
to the recently promulgated End of Life Choice Act 2019
(legislation/authoritative/binding/written down laws made my organ of state with power to do
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so) that legalised euthanasia in New Zealand after a majority referendum vote in favour of
the statue was held.

How to use a QR Code

Step 1: download any free QR Code scanner app to your phone

Step 2: Use your camera to scan the code

Step 3: Click on the little picture in the top right hand corner above the QR Code. You
will be redirected to an explanation video.

Feedback: Scan this QR Code for a video that provides feedback on examples 1 and 2.

EXAMPLE 3: prepare for tutorials

Protesters gathered at Muizenberg Beach to call for an end to the seismic survey
programme currently under way off the West Coast. Pedro Garcia, the chairperson of
SAUFF, told the Daily Maverick (journal/persuasive/non-binding) it was important to consider
how the surveying is affecting fishing communities. He explained that fishing communities
had been marginalised and abused over the years and that the Disaster Management Act 57
of 2021(legislation/ written down laws made by the organ of state with the power to do
so/authoritative/binding) had a devastating effect on these people. The Marine Living
Resources Act 18 of 1998 (legislation/ written down laws made by the organ of state with the
power to do so/authoritative/binding) attempts to protect these communities by limiting
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species catch and in Gongqose and Others v Minister of Agriculture, Forestry and Others
2018 (5) SA 104 (SCA)(case law/authoritative/binding/decision issued by judge in the court
cases before them); the Supreme Court of Appeal held that a local community governed by a
system of customary law, can fish in a marine protected area without a permit. The SCA
referred to legislation from other jurisdictions(international?) like Canada and Australia and
acknowledged the clear evidence that customary fishing practices regulated marine
resources sustainably.

EXAMPLE 4: prepare for tutorial

The impact of climate change on our South African sea life can longer be denied. Species
extinction is largely caused by the loss of habitats and although the sea is vast, there are
many species who depend on specific conditions that are now being disrupted, to survive.
The recent documentary on Netflix, Seaspiracy, warned that warming ocean temperatures
are causing the ocean to lose its ability to absorb carbon, which will have devastating
impacts on the climate. There have been many efforts to conserve the oceans including the
international Paris treaty on climate change that was adopted by 196 Party states in 2015.
(international law/authoritative/binding/ agreed upon by different states once treaty has been
signed) In a recent case, a Makhanda high court interdicted further seismic exploration by
Shell on the Wild Coast as it agreed with experts that such actions presented a real threat of
irreparable harm to marine life. Shell furthermore, did not secure authorisation under the
National Environmental Management Act (legislative/authoritative/binding/written down laws
made by the organ of state with the power to do so) to do these kinds of explorations and the
court ordered Mineral Resources Minister Gwede Mantashe and BG International, a part of
Shell, to pay the costs of the applicants, a coalition of Wild Coast communities. The Legal
Resource Centre’s Wilmien Wicomb, the lead attorney on the case, hailed the ruling as an
extraordinary victory for communities that have been fighting for their customary land rights
and fishing rights for decades and said that ‘the validity of common law servitudes protecting
private beaches will also have to be reconsidered in future’.