CHAPTER 2

SOURCES OF LAW AND THE ORIGINS OF

OUR LEGAL SYSTEM
 SOURCES OF LAW

• LEGISLATION
• is defined as the setting down of binding rules of law in a formalised way, by an authority that has the
legal capacity to do so
• Includes the CONSTITUTION - Constitution is the supreme law in the Republic of South Africa and
prevails over all other laws
• How a Bill becomes an Act of Parliament:
• There are 2 houses of the national parliament:
• THE NATIONAL ASSEMBLY – Members are elected for a 5 year term according to a system o
proportional representation. There are between 350 and 400 members
• THE NATIONAL COUNCIL OR PROVINCES – There are ten representatives from each province,
which each vote in a block
• Legislation begins as a bill
• Bills come from government departments and may result from previous consultation through the
publishing of green papers (discussion documents) and white papers (cabinet approved policy documents)
• Draft Bills may be published for comment n a newspapers issued by the State called the Government
Gazette
• Bills may be amended many times as a result of discussion in a portfolio committee or select committee
• When a Bill has been passed by both houses of Parliament (previous slide) it goes to the State President
for agreement and signature
• Then it is published in the Government Gazette as an Act of Parliament
• Each Act is given a date and number
• COMMON LAW
• JUDICIAL PRECEDENT
• Is the body of law resulting from decisions on points of law made by other courts with regard to the same
circumstance
• Judges do not make new law, but interpret and apply existing laws
• Sometimes, however, existing law is unclear or confusing or can lead to two or more possible solutions to
a problem
• In making a decision, the court can extend an existing rule of law or sometimes apply a completely new
principle
• The modification of the law can then become binding due to what is called ‘precedent’
• The authority given to past decisions of courts is called the ‘doctrine of precedent’
• This comes to us from the Latin expression stare decisis et non quieta movere which means to ‘stand by
the decisions and do not disturb the undisturbed
• ADVANTAGES OF THE DOCTRINE OF PRECEDENT
• Once people know what the law is and the consequences of certain conduct, it enables legal subjects to
plan their private and professional lives
• People will not be unaware of the rules of law
• It decreases litigation
• It provides guidance to judges and magistrates and reduces the possibility of partial or prejudicial
decisions
• This promotes public confidence in the judicial system
• It saves time and reduces the costs of litigation
• It promotes certainty in the law, as well as predictability, reliability, equality, uniformity, and
convenience
• PROBLEMS ASSOCIATED WITH A STRICT APPLICATION OF THE DOCTRINE OF
PRECEDENT:
• Incorrect decisions may become precedents and be applied in future cases (Oscar Pistorius case)
• Too strict an application prevents the law from changing in accordance with the changing values of
society
• In seeking to avoid its application, petty distinctions may be made to try to distinguish cases from one
another
• JUDICIAL INTERPRETATION OF STATUTES
• Parliament may pass legislation that is confusing, contradictory, vague , inconsistent with similar
legislation, or that makes inroads on the constitutional rights of certain persons
• Courts are sometimes required to establish the intention of Parliament in originally passing the Act and
interpret the Act in accordance with this intention
• In addition, the Constitution provides that where a court believes that a decision contradicts the
Constitution, it must interpret legislation to promote the spirit purpose and objects of the Constitution
• COURTS WILL ADOPT THE FOLLOWING APPROACH IN INTERPRETING LEGISLATION:
• Ordinary words will be given their ordinary grammatical meaning at the time an Act was written
• Differences between translated versions of the Act will be resolved by referring to the original language version of an Act
as signed by the President
• Usually, an Act is written in English and translated into another language
• Words and expressions used throughout an Act should have the same meaning
• Words and expressions, which have been interpreted by the courts previously, should bear the same meaning as
previously interpreted
• An Act will not bind the State unless the State is specifically mentioned as being bound
• Any provisions that seek to restrict the jurisdiction of the superior courts will be very strictly construed
• An Act should not be given retrospective effect as this would amount to taking away the rights of legal subjects
• It will be assumed that the law was not intended to be unreasonable, create injustice, or apply only to certain legal
subjects
• Laws will be interpreted as promoting the public interest
• The purpose of the Act must be considered in interpreting it
• The law must try to give effect to established principles on international law
• COMMENTARIES
• Since the time of Roman Emperor Justinian, hundreds of commentaries have been written on the Justinian
Code by other authors – these form part of the origin of our law
• The compilation of Roman law greatly influenced the law of the Netherlands (Hugo de Groot – Grotius,
Johannes Voet, Groenewegen, van Leeuwen, Huber, van der Keessel and van der Linden)
• Modern textbooks of academics are not regarded as authoritative sources of law
• They are treated as secondary sources of law, that is, valuable guides where the court is faced with
circumstances where there is no binding source of law to guide them
• CUSTOMS
• Sometimes courts will recognise that a community will do things in a particular way
• The courts may even enforce these practices or customs
• Customs only may have the force of law if they can be shown to be long established, certain, reasonable,
and uniformly observed - Van Breda v Jacobs
• CUSTOMARY LAW
• Tribal African law may be applied by a court if the parties wish it to be
• However, the court may take notice of that law in reaching a decision only if it is possible to
determine what that law is, and as long as it does not conflict with public policy
• FOREIGN LAW
• Only has persuasive influence – the Constitution provides specifically that in interpreting the Bill of
Rights, a court must have regard to the public international law and may consider decisions of
courts in other countries