CHAPTER 7 – SOURCES OF SOUTH AFRICAN CONSTITUTIONAL LAW (CL)

• *3 main sources of law within the domain of CL:

o Legislation (most important source is the consti of a country in legislative
format)
o Common law / customary law o Case law

Legislation as a source of law (especially CL):

• *The SA consti (in legislative format) is the most important source of CL bc

determines the legal framework of SA CL and is a key component of the SA legal
system. It is regarded as special law with higher status than other laws
• *Legislation = broad term that includes national, provincial, and local legislative Acts
and proclamations and regulations made by the president or ministers (S239 of
consti)
• Choice Decisions v MEC: legislation does not include policy documents or directives
• *Distinguish between a consti as an Act and the consti of a state in general:
o Constitution as an Act = The specific document embodying the basic
constitutional provisions
o Constitution of a country in general = All the constitutional matters in that
country, including all legi, common law, and the formal consti (wider in
scope)
• *There are various ways whereby higher status can be conferred on a consti of a
state:
o Entrenchment = making it more difficult to amend the consti than it is to
amend ordinary laws
o Enforcement = vesting the courts with the power to invalidate laws that
conflict with constitutional provisions
o Special adoption procedures = arranging special procedures for the
enactment and acceptance of a consti to ensure the support of the people
• *The SA consti is supreme and has higher status than other laws. It is strongly
entrenched. All actions and laws are tested against the consti and all branches of
authority are subject to the consti
• *Distinguish between a referendum and plebiscite:
o Referendum = a constitutionally binding poll by the people (mostly citizens)
of the state. The gov is bound by the results of the referendum
o Plebiscite = a process of consultation conducted by a gov with the voters of
the state. the gov is not constitutionally bound by the results. The objective is
to obtain the publics opinion on certain matters.
• The content of constitutions differs from state to state. this is because of political,
social, historical factors of a specific country

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 *Constitutions can be distinguished and classified in various ways: (x6)

Written Unwritten
• E.g. south Africa • E.g. Britain
Flexible Inflexible
• The flexibility of a consti relates to the • Inflexible o difficult to
ease with which it can or cannot be amend o affords the consti a
amended higher status and supremacy
• Flexible = easy to amend o protects against hasty and politically
motivated amendment
o e.g. south Africa

Single document Multi-document

• consti is contained in a single doc • consti comprises of multi docs
• e.g. south Africa o although it is
contained in a single doc, the consti
should be studied in conjunction with
other laws that supplement its
foundational framework

Autochthonous Allochthonous
• consti is a home-grown doc • consti is of foreign origin
• e.g. south Africa
o all the local, historical, political,
social, and economic
circumstances were fully
recognized and incorporated
into the SA consti
o however, comparative
constitutionalism did take place
as contents from other consti’s
were adapted to SA’s local
circumstances
Technical Ideological
• consti consists of only the technical info • consti contains specific programmes
pertaining to the powers and functions aimed at achieving their ideological
of the gov, which are formulated as objectives
neutrally as possible

The SA consti can be classified as a combo of a technical and ideological consti. Most of the text is
technical info, but other aspects are included in pursuit of specific political and ideological
objectives

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 Supreme Non-supreme
• The consti is elevated above all other • Consti is not entrenched as the supreme
law in the state and any law law of the state
inconsistent with it should be regarded • Parliament mostly becomes the
as invalid supreme authority and can adopt any
• Courts have the power to test other laws law, even if it's unfair or discriminatory
for constitutional compliance
• E.g. south Africa
Principles and aspects of constitutional interpretation:

• The SA consti has many broad and uncertain terms that must be defined,
interpreted, and developed to give full meaning to the constitutional requirements
• Government of the republic of Namibia v Cultura: although the consti is enacted in
the form of a statute, it is sui generis (an organic instrument?). the consti must be
broadly, liberally, and purposefully interpreted in order to avoid the austerity of
tabulated legalism
• *S v Makwanyane: when resolving an issue, the CC should use the following
techniques/methods to interpret the consti: o Grammatical language interpretation
▪ CC must examine the meaning and significance of the language used in
the relevant provision
o Systematic/contextual (text in context) interpretation
▪ When examining the relevant provision, the CC must examine the text
as a whole and the provision’s context
o Teleological/value-orientated interpretation
▪ CC must look at fundamental rights and values of the consti and
examine the content of the ethos expressed in the structure of the
consti
o Historical interpretation
▪ CC must examine the factual and historical considerations bearing on
the problem
o Comparative interpretation
▪ CC must compare the different provisions, the legal precedent
relevant to the resolution of the problem in SA and abroad, and the
domestic common law and public international law impacting the
possible solution

Common and customary law as sources of law

• Before british occupation, Roman-Dutch law as the law of the Cape Colony
• British development influenced public law and British customs and traditions
(common law) were incorporated into SA consti law
• Private law retained its Roman-Dutch inclination
• Post 1994: SA consti law based on 1996 consti. Only a few elements of British consti
law remain significant (e.g. SoP)

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*Basic features of British constitutional law introduced into SA from the Westminster
system of government (more detail in chap 5)
• Principle of parliamentary sovereignty where parliament is the supreme authority
• State based on unitary system of gov
• Parli consists of 2 houses (house of commons (lower house -NA)) and house of lords
(upper house - NCoP))
• During elections the winner takes all. The majority party (most votes) forms gov of
state. the cabinet (executive branch) consists of ministers. The gov is accountable to
parliament.
• President/gov can be removed through motions of no confidence in parliament
• Since there is an overlap between membership of parliament and the gov, there is
only a relative SoP between the legislative and executive branch
• Head of state occupies a ceremonial office and acts in accordance with the advice of
the cabinet
• The relationship between HoS and HoG and between the gov and parli is regulated
by unwritten constitutional practices/conventions, which are enforced by political
sanctions

*Westminster prerogatives and conventions

• Before the democratic consti dispensation in 1994, british constitutional

prerogatives and conventions played an important part in SA consti law
• Prerogatives:
o Certain common law powers that the British monarchs could exercise at their
discretion
o Certain practices, that were repeated over long periods of time, developed
into constitutional practices (i.e. conventions) that were aimed at and
resulted in the prerogatives/powers of the monarch being reduced and
restricted over time
• Conventions:
o Rules of political conduct that are binding on the head of state and other
members of the executive
o Conventions affect the exercise of political powers

*The characteristics of conventions:

• Conventions are not legal rules. They are just constitutional practices without the
power of the courts to enforce them.
• Since the commencement of the interim and final consti, most of the Westminster
prerogatives and conventions have been incorporated into legislation (either in the
consti or other Acts). They then become statutory rules of law and will be
enforceable by the courts.
o If powers/prerogatives are included in statute/law, it is regarded as statutory
power not common law power

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 • Political sanctions (measures taken to express disapproval) for the enforcement of
conventions: o Motions of no confidence o Rejection of parliament budget o
Election of new gov
• Conventions develop in in all systems (not just Westminster) bc no system can ever
be comprehensible enough to address all the ways in which a gov should act in
conceivable circumstances
• In modern legal systems, the tendency to develop new practices when a particular
issue needs to be addressed and no other legal rules are available, have decreased.
Now, it is preferred that issues in a system should be addressed in terms of formal
legi over which the courts have power to adjudicate if need be

*Examples of prerogatives (powers) and conventions (consti practices) of the Westminster

system:
• Head of state has the prerogative to approve Bills, but this power is reduced by the
convention that he must assent to a Bill adopted by parliament
• HoS has the prerogative to appoint diplomatic representatives, enter into treaties,
dissolve parliament, pardon offenders, and issue passports. But this power is
reduced by the convention that all these acts need to be performed in accordance
with the advice of the gov
• HoS has the prerogative to appoint ministers, subject to the convention that the
leader of the majority party in the lower house shall be appointed as prime minister
• HoS has the prerogative to convene parliament (bring together for a meeting),
subject to the convention that parli must be convened at least once a year

*The importance of Westminster prerogatives and conventions in SA after 1994;

• Most of the previous british constitutional prerogatives and conventions have been
included in the SA consti text
• Item 2 of schedule 6 of the consti: all law that was in force when the new consti took
effect continues in force, subject to any amendment or repeal and consistency with
the new consti o ‘all law’ includes both the common and customary law provisions of
the previous consti system
• President of RSA v Hugo: court held that there are no powers derived from the royal
prerogatives other than those enumerated in the consti o Some scholars argue that
this is not entirely correct bc the prerogative of acts of state (actions relating to
foreign relations) has remained
o Therefore, one or more of the previous prerogatives or conventions may still
have survived and have legal force in SA consti law, albeit very remotely

*Judicial precedent in the new constitutional dispensation

• Judicial precedent (case law) is a very important source of consti law and all
branches of law
• In the past, many English and SA cases have made a significant contribution to the
development of SA consti law. Many precedents and decisions have been laid down
in the fields of human rights law, administrative law, and formal consti law
• Principles and aspects of judicial precedent:

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 o In SA, the doctrine of stare decisis is followed. This means that the lower
courts are bound by the decisions of the higher courts
o Only the superior courts (CC, SCA, HC) are precedent setting courts. NOT
Magistrates courts o The SA consti system is also provides for a special
CC, which is the highest court in all consti matters, but which can only
adjudicate consti disputes
o Principle advantages that are gained by a legal system based on stare decisis:
certainty, reliability, predictability, equality, uniformity, and convenience
o Courts of final jurisdiction are bound to their own decisions, unless they are
satisfied that the previous decision is wrong
o The principle of stare decisis is a manifestation of the rule of law, which is a
founding value of the consti
o Binding authority of legal precedent is limited to the ratio decidendi
(rationale/basis for the decision) of a particular case (and the majority
judgement). Such binding authority does not extend to orbiter dicta
(opinions/observations made along the way) (and minority judgements)

• *The interpretation section in the BoR is S39. In terms of this section, when
interpreting the BoR, court/tribunal/or forum must consider international law and
may consider foreign law. This means that foreign and international law are an
important source of SA consti law.
o International law is not the legi of other countries, but rather the rules of law
that govern inter-state relations. (e.g. treaties such as International
declaration on Human Rights) international laws are binding
o Foreign law (incl foreign case law) is the jurisprudence of other jurisdictions.
Foreign is not binding. Foreign case law can be a helpful interpretative aid
(e.g. when deciding Human Rights disputes) it enhances the positive
development of our CL

*
Primary sources of law Secondary sources of law
Law generated by institutions vested with Sources that provide further info on
law making authority primary sources of law. They are not
binding but serve as supplementary
authority only. They provide commentary
on the law and have persuasive force
e.g. judicial precedent, consti law, common e.g. commentary on law, academic
and customary law, legi publications, policy docs, reports

however, although court decisions are

usually regarded as primary sources,
dissenting judgements are secondary
sources bc they are not precedent setting

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and have no direct legal force. Only
persuasive force.

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