Chapter 2

Sources
 The Constitution:

1. The Constitution in section 2 declares itself to be the supreme law of the country
• Any law or conduct that is inconsistent with it is invalid
• Therefore the Constitution serves as the guardian of the entire legal system.
2. Injury law concerns itself with the harmful conduct(s) that amount to rights
infringements
• The rights at stake in injury law disputes are constitutional rights
• Therefore the relationship between injury law and the Constitution is inseparable.
3. The Constitution is said to be one of the main tools lawyers can use to transform
the law and society in a more egalitarian direction.
Judicial review : when judges test any other provision against the Constitution.

• Our Constitution enables judges to bring certain changes to the law so that
declarations of unconstitutional invalidity do not leave unnecessary gaps.
• When dealing with legislation, courts are empowered to interpret legislation in
creative ways so the Constitution’s goals can be realised.
• When dealing with customary law or common law, courts are empowered to
develop these laws so that the Constitution can be given effect to.
• This ensures that we can secure a legal system that has a golden thread running
through it.
• Golden thread is the aspirations of the Constitution.
• To ensure that no remnant of the Apartheid era is allowed to continue to exist in our
legal system.
Taking the Constitution Seriously in Injury Law
The Constitution declares itself to be the supreme law of the country.
Any law or conduct inconsistent with it is invalid.
The rights at stake in injury-law disputes are constitutional rights.
The relationship between injury law and the Constitution is inseparable.
The Constitutional Golden Thread
• The Constitution of the Republic of South Africa, 1996 is the supreme law of the country
and any law or conduct inconsistent with it is invalid.
• Judicial review is a process by which judges can test any other provision of law against the
Constitution.
• If courts are only given the power to strike down unconstitutional laws, certain gaps might
be left in our law — gaps that probably need to be filled.
• Striking laws down without filling the gaps left by such striking down would sometimes be
tantamount to judges complaining in a nihilist fashion shouting in the streets that “the law
is hopeless and so are we”.
• Instead, our Constitution entitles judges to bring about certain changes to the law so that
declarations of unconstitutional invalidity do not leave unnecessary gaps.
• When we deal with17 legislation, courts are empowered to interpret that legislation in
creative ways so that the Constitution’s goals can be realised.
• When we deal with the common or customary law, courts are empowered to develop those
laws so that the Constitution can be given effect to.
In this way, we can secure a legal system that has a golden thread running through it. That
golden thread is the aspirations of the Constitution.
 Transformative Injury Law
The relationship between sources of law and the Constitution
• Involves two concepts: (1)law of injuries and (2) transformative constitutionalism
Transformative constitutionalism
• First emerged in an article by Professor Karl Klare entitled Legal Culture and
Transformative Constitutionalism (1998) 14, South African Law Journal
• Klare believes that our Constitution should be a document that lawyers breathe life into
and we do this by taking its aspirations seriously and by working with the Constitution
in various ways to bring about justice through the law in our society.
• The core of transformative injury law involves a commitment to seeing the law of
injuries serve as an area of law through which the Constitution’s ideals and goals can be
promoted.
• A quote from Pharmaceuticals Manufacturers Association of South Africa in re Ex Parte
President of the Republic of South Africa 2000 (2) SA 647 (CC), stands for the single-
system-of –law principle, which means that all loaws needs to speak to the language of
the Constitution.
• THIS DOES NOT MEAN THAT THE CONSTITUTION BY ITSELF CAN
DETERMINE THE CONDITIONS FOR AND CONSEQUENCES OF
LIABILITY!!
• In S v Mhlungu 1995 (3) SA 867 (CC) , Kentridge J stated at para 59, it is “ a general
Transformative Injury Law: A Golden Thread of Justice
Transformative constitutionalism is a long-term project of constitutional enactment,
interpretation, and enforcement committed to transforming a country’s political and
social institutions and power relationships in a democratic, participatory, and egalitarian
direction.
Transformative constitutionalism connotes an enterprise of inducing large-scale social
change through nonviolent political processes grounded in law.
In the background is an idea of a highly egalitarian, caring, multicultural community,
governed through participatory, democratic processes in both the polity and large
portions of what we now call the ‘private sphere.’
Transformative Injury Law: Aligning with the Constitution for a Better Society
Transformative injury law is about using the law to promote the Constitution's ideals and
aspirations.
Transformative injury law is about making sure that the law of injuries is in line with the
Constitution.
If the law of injuries is not in line with the Constitution, transformative injury law must
think about how to bridge that gap.
The Constitution and Injury Law: When to Involve the Constitution in Delictual
Disputes
The Constitution is always speaking in injury-law disputes, whether we like it or not.
The law of injuries is triggered when a right of some kind has been infringed.
All rights found in the Constitution are involved in injury-law disputes.
One day in practice (whatever form that may take for you) you will immediately know
that the dispute at hand relates to the law of injuries when you identify that one or more
of the above constitutional rights have been violated.
The Single-System-of-Law Principle: A Guide to Injury Law
The Constitution protects certain rights and sets out the conditions for and consequences
of liability.
The Constitution cannot determine the conditions for and consequences of liability on
its own.
The Constitution must be interpreted in light of other constitutional rights and
principles.
The Single-System-of-Law Principle and the Law of Injuries
It is a general principle that where it is possible to decide any case, civil or criminal,
without reaching a constitutional issue, that is the course which should be followed.
This principle is based on the idea that the Constitution should be interpreted in a way
that is consistent with the goal of achieving a single system of law.
The principle can be applied to constitutional rights as well as other sources of law.
This principle is controversial, but it can be justified in terms of how the law of injuries
is defined.
Navigating Injury Law Disputes in a Constitutionally Supreme Paradigm
• The Constitution provides for the supremacy of the Constitution over all other sources
of law.
This supremacy is to be exercised in a way that promotes the Constitution's values and
goals.
• Injury disputes are to be resolved through the application of the Constitution's various
sources of law, in a way that promotes the Constitution's values and goals.
• The first principle that we need to consider is the supremacy of the Constitution. The
Constitution is the supreme law of the land. This means that all other sources of law
must be subordinated to the Constitution. This is why the Constitution's various sources
of law must be applied in a way that promotes the Constitution's values and goals. In
injury disputes, this means that the Constitution's various sources of law must be applied
in a way that promotes the injured person's interests.
• The second principle that we need to consider is the promotion of the Constitution's
values and goals. The Constitution's values and goals are to be promoted in a way that is
consistent with the Constitution's text and structure. This means that the Constitution's
values and goals must be applied in a way that is faithful to the text and structure of the
Constitution. In injury disputes, this means that the Constitution's various sources of law
must be applied in a way that is faithful to the text and structure of the Constitution, and
that the interests of the injured person must be promoted.
• The third principle that we need to consider is the promotion of the injured person's
interests. The injured person's interests must be promoted in a way that is faithful to the
text and structure of the Constitution. This means that the interests of the injured person
must be given the highest priority. In injury disputes, this means that the interests of the
Understanding the Role of Legislation in Constitutional Rights
The Constitution protects the right to fair labour practices.
If legislation exists, we cannot simply bypass it and ignore it in favour of a pure application of the
Constitution.
We would further argue that the Constitution is really vague in its formulation of certain rights.
This is the gist of Professor Stu Woolman's argument in "Understanding South Africa's Aspirational
Constitution as Scaffolding".
The first principle that we will look at comes from the case of SANDU v Minister of Defence 2007 (5)
SA 400 (CC). For a bit of context, the dispute in this case related to a labour matter. Section 23 of the
Constitution protects the right to fair labour practices. The Labour Relations Act is a piece of legislation
that aims to give effect to section 23 of the Constitution. One of the parties in this case wanted the Court
to ignore the Act and rely only on the Constitution.
In this regard, the Court said the following (at paras 51-52, footnotes omitted): “[W]here legislation is
enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly
on the Constitution without challenging that legislation as falling short of the constitutional standard...
Accordingly, a litigant who seeks to assert his or her right to engage in collective bargaining under
section 23(5) [of the Constitution] should in the first place base his or her case on any legislation enacted
to regulate the right, not on section 23(5).
If the legislation is wanting in its protection of the section 23(5) right in the litigant’s view, then that
legislation should be challenged constitutionally. To permit the litigant to ignore the legislation and rely
directly on the constitutional provision would be to fail to recognise the important task conferred upon
the legislature by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights.”
The text above explains that if a law is unconstitutional, it can be challenged on constitutional grounds.
This means that if a law is in conflict with the Constitution, it can be struck down or interpreted in a way
that promotes the Constitution's aims.
Interpreting Legislation in Line with the Constitution
The Act must be interpreted in a way that promotes the spirit, purport and objects
of the Constitution. Section 39 (2) of the Constitution.
When interpreting legislation, the court must take into account the aims of the
legislation.
This means that the court must look at the aims of the legislation and try to
achieve them in the best way possible.
Interpreting Legislation to Protect Constitutional Rights
Hypothetical privacy legislation could protect the constitutional right to privacy.
When interpreting hypothetical privacy legislation, it is often easy to see that it
protects the right because the drafters of the legislation explicitly wanted to
promote a constitutional aspiration.
If a section in the hypothetical privacy legislation mentions something like
“when a wrongdoer enters private premises without authorisation or another just
cause the wrongdoer will be liable to the victim of the invasion for a sum of
money equal to or more than R1000” then we can see that applying the section,
on its plain meaning, will serve to protect the constitutional right to privacy and
to provide a mechanism for reparations when the right is violated.
Interpreting Legislation to Protect Home Invasions: A Constitutional
Approach
The right to privacy is protected in section 39(2) of the Bill of Rights.
The R2 cap does not optimally protect the right to privacy and should be “read
out”.
Other variations of constitutional interpretation of legislation can also feature.
The Interplay of Legislation and Common Law in Constitutional Rights
Disputes
Everyone has the right to lawful, reasonable, and procedurally fair administrative
action.
Before the PAJA was passed, the common law regulated administrative-law
disputes.
There was some uncertainty in this case about whether the common law could be
relied on at all, given the existence of PAJA.
The Court found that the common law could be relied on, and that the dispute
should be resolved under that law.
So, if we have both the common law and PAJA giving effect to the right, we
should look to the common law to determine the source of the right.
Using Bato Star to Interpret Constitutional Rights and Legislation
The text states that the grounds for judicial review of administrative action
now ordinarily arise from PAJA, not from the common law.
The text also states that the authority of PAJA to ground such causes of action
rests squarely on the Constitution.
The Role of Legislation in a Modern and Complex Society
The Court says that one principle or policy consideration is that the
Constitution recognizes the need for specificity and specialisation in a modern
and complex society under the rule of law.
Different kinds of relationships between citizens and the state and citizens
amongst each other are dealt with in different provisions.
The legislature is sometimes specifically mandated to create detailed
legislation for a particular area, like equality, just administrative action (PAJA)
and labour relations (LRA).
Once a set of carefully-crafted rules and structures has been created for the
effective and speedy resolution of disputes and protection of rights in a
particular area of law, it is preferable to use that particular system.
Legislation Taking Precedence Over Common Law
The Constitution applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
A provision of the Bill of Rights binds a natural or juristic person if, and to the
extent that, it is applicable, taking into account the nature of the right and the
nature of any duty imposed by the right.
When applying a provision of the Bill of Rights to a natural or juristic person in
terms of subsection (2), a court - if necessary - must apply, or if necessary develop,
the common law to the extent that legislation does not give effect to that right.
A court may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).
Exploring the Role of Customary Law in Constitutional Rights Disputes
African customary law is not mentioned in the Constitution.
Common law and African customary law share the same legal status.
Section 211(3) of the Constitution stipulates that a court “must apply customary
law when that law is applicable” as long as the customary law is constitutionally
compliant and as long as the customary law has not been codified into legislation.
Whether we apply common law or customary law depends on context.
Applying Customary Law: A Practical Guide
One does not have to jump through legal hoops to prove that common law should
apply to a given matter.
It is assumed that legislation or common law would apply unless if one can show that
customary law ought to be used to resolve a particular dispute.
Practically, how do we go about showing that customary law ought to apply?
When dealing with injury matters, the starting point is to ask whether an agreement
exists between the disputing parties as to whether customary law should apply or not.
If such an agreement exists, we ought to give effect to the autonomy of the parties by
honouring their agreement to apply customary law.
An agreement can also be inferred by acquiescence.
However, such agreements do not always exist.
If no agreement about the application of customary law exists, we must distinguish
between two scenarios.
In the first scenario, an agreement exists between the disputing parties about the
application of customary law. In this case, we ought to give effect to the agreement
and honour it.
In the second scenario, no agreement about the application of customary law exists. In
this case, we must distinguish between the parties and apply customary law in a way
that is fair and reasonable to all parties.
Customary Law and Conflict-of-Laws Issues
There is no agreement about the application of customary law
and both parties are living in the same community or they live
according to the same cultural rites, the only conflict-oflaws
issue that would arise is whether we ought to apply common
law or customary law.
In such a case, some customary-law scholars suggest that we
should determine which laws should apply based on the
behaviour of the parties.
Interestingly, the only cases that we have available in this
regard relate to other areas of law and not injuries.
Applying Customary Law in Disputes
In Swawintshi v Magidela 1944 NAH (K&O) 47 the dispute related to a debt that was
owed on account of the sale of mielies.
The court considered two main factors in concluding that customary law ought to apply.
Firstly, the mielies in question were homegrown and were not commercially produced.
Secondly, the parties both lived in the same “homeland” area.
In Sibanda v Sithole 1951 NAH 347 (NO) 350 a question of child maintenance arose.
The court decided that customary law would apply because both parties’ general way of
life conformed with the cultural practices of a certain community. This was informed by
the fact that the relevant parties, for example, concluded customary marriages.
In Maisela v Kgolane 2000 (2) SA 370 (T) the issue related to the sale of a tractor. The
seller delivered the tractor, but the buyer still had a debt of R12 000 outstanding. If the
common law of contract was applied, the period for prescription would have run out and
so the seller would fail in claiming the outstanding money. However, if customary law
applied, the possibility existed for the seller to succeed with the claim because customary
law recognises no prescription (you might hear the expression molato ga o bole).
The magistrate who heard the case decided the matter on the basis of customary law,
basically because the parties were black. On appeal, two main principles were laid down.
Firstly, race is not dispositive. Many black people who live in urban areas do not regard
themselves bound to customary law. Secondly, customary law can only apply to a
transaction that is recognised and provided for at customary law.
Conflict of Laws: Applying Customary Law in Delict Cases
If there is no agreement about the application of customary law, the conflict-of-
laws issues become layered.
On one level, the parties could argue about whether customary law or common
law should apply.
On another level, the parties could dispute what version of customary law should
apply.
If it has been established that a particular version of customary must apply and a
dispute arises as to the precise content of a specific rule, the parties may adduce
evidence to prove the content of that rule.
Common Law and Customary Law: Constitutional Compliance
The Constitution requires that the common law (or customary law, on my
reading) be constitutionally compliant.
The first case on common-law development under the 1996 Constitution happens
to be a common-law delict matter.
The Constitutional Court says about common-law development here that the law
must be applied or developed to give effect to the constitutional right in question.
Para 39 of Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
The Relationship Between the Constitution and Common/Customary Law:
Understanding Constitutional Damages
The Constitution can sometimes be applied as it stands to give effect to it.
However, we must always be awake and attentive to the fact that the common and
customary law may need to change and develop to meet a new constitutional
threshold.
Injury disputes are always about injury, which is why we argue cases based on
constitutional damages.
Understanding the Seeping Down Approach to Injury Law
We start by identifying the constitutional right at stake.
If legislation gives greater content to the right, we apply that legislation through
the lens of the Constitution.
Thus, the Constitution will be active in some way in the dispute.
If there is no legislation, we turn to common or customary law.
We either apply the law to give effect to a constitutional right or we develop it to
promote the spirit, purport and objects of the bill of rights.
From your reading of the above cases on constitutional damages, it seems that only
if we have reached the end of the rope will we grasp at constitutional damages as a
remedy of last resort.
The Transformative Power of Adjudicative Subsidiarity in Delict Law
The Constitution is the supreme law of the land and is the source of
detailed rules of injury law.
When we adjudicate cases in delict, we look to the subsidiary sources
that are subservient to the Constitution as the sources where we find the
detailed rules of injury law.
The doctrine of adjudicative subsidiarity has the potential to transform
the law of delict.
Finding the Balance Between Stagnation and Revolution:
Transformative Constitutionalism
Transformation requires more than stagnation and reform.
Transformation does not amount to a legal revolution.
We need to find the pragmatic middle ground in order to find the space
in which transformation occurs.
A space in which we have a very clear understanding of the extant law
upon which we can reflect to determine constitutional compliance.
Exploring the Substantive Law of Injuries: A Guide to
Adjudicative Subsidiarity
Injuries to dignity are a type of injury that can be regulated
by the PEPUDA.
The main statutory scheme that regulates reparatory liability
for dignitarian injuries is the PEPUDA.
The customary law of dignity injuries is also important to
consider.
Understanding Adjudicative Subsidiarity: A Monopoly Metaphor
The principle of adjudicative subsidiarity states that decisions about how to run a particular area of life should
be made by the smallest, most local level possible.
The principle of judicial review is a safeguard against arbitrary or unconstitutional decisions by government
officials.
The principle of separation of powers is a system of checks and balances that ensures that the three branches of
government (executive, legislative, and judicial) operate independently of each other.
The principle of judicial review is a safeguard against arbitrary or unconstitutional decisions by government
officials.
The principle of separation of powers is a system of checks and balances that ensures that the three branches of
government (executive, legislative, and judicial) operate independently of each other.
The principle of judicial review is a safeguard against arbitrary or unconstitutional decisions by government
officials.
The principle of separation of powers is a system of checks and balances that ensures that the three branches of
government (executive, legislative, and judicial) operate independently of each other.
The principle of judicial review is a safeguard against arbitrary or unconstitutional decisions by government
officials.
The principle of separation of powers is a system of checks and balances that ensures that the three branches of
government (executive, legislative, and judicial) operate independently of each other.
The principle of judicial review is a safeguard against arbitrary or unconstitutional decisions by government
officials.
The principle of separation of powers is a system of checks and balances that ensures that the three branches of
government (executive, legislative, and judicial) operate independently of each other.
The principle of judicial review is a safeguard against arbitrary or unconstitutional decisions by government
officials.
The principle of separation of powers is a system of checks and balances that ensures that the three branches of
government (executive, legislative, and judicial) operate independently of each other.