Lecturer Details

Contact details
Email: [email protected]
Cell nr: TBC (Landline)
Office: Archive Building, Office 212

Consultation Times - @ Office 212

Mondays = 10:00 -12:00
Tuesdays = 12:00 -13:00
SOURCES OF SOUTH AFRICAN LAW
• Sources of SA law – places where law originates and where it can be
found.
• 2 questions
- Who makes the law? Where does law come from?
- Where can the law be found? In order to be applied

- NB= more than one primary source where law can be found
SOURCES OF SA LAW
• SA law has more than one source
• The Constitution
• Legislation (Statutes)
• Precedent (case law, court decisions)
• Common law
• Custom
• Customary law
• Works of modern authors
• Foreign law
• International law
Sources of SA Law –Primary vs
Secondary Sources
• Primary sources – have binding authority, where law originates
Examples of primary sources of law?

• Secondary sources- persuasive authority, provide help to understand

the primary source
Constitution as a source (of law)
• In the past, the Constitution was a source of law in the same way as
any other statute (piece of legislation)
• Every statute regulates a specific matter, the Constitution regulated
the organization and structure of the state.
• Apartheid constitution regulated everyone in that it denied the
franchise to the majority of the population
• It did not provide any general norms and standards with which the
whole body of law had to comply
• This changed as the 1993 Constitution ushered in a new democratic
era in South Africa
The Interim Constitution
• Constitution of the Republic of South Africa Act 200 of 1993.
• Referred to as the Interim Constitution
• The 1993 Constitution required a constitutional assembly to draft and
pass a so-called final constitution that had to reflect the basic principles
underlying the new constitutional democracy
• This new document was originally passed as the Constitution of the
Republic of South Africa Act 108 of 1996.
• However, Parliament realized that the Constitution was no ordinary
source of South African law comparable to other legislation
• Proper citation of our Constitution?
Constitution of the Republic of South
Africa, 1996.
• Key characteristics of the Constitution – NB
• Symbolises a break from previous constitutions in that it declares itself to be
the supreme law of South Africa (See section 1 and 2)
• It is a primary source in that it is binding and authoritative. As such, judges
cannot say that they disagree with the content of the Constitution and
therefore apply their own opinions to the case. Judicial discretion?
• Embodies the principle of separation of powers – regulates the structure of
state and divides power between the branches of government. Executive
(enforces the law), Legislative (creates laws) and Judicial (interpret, apply and
develop the law)
• Includes a Bill of Rights
Constitution of the Republic of South
Africa, 1996
• Influence of Constitution on other sources of law relates to its ‘transformative’ nature.
• Transformative Constitutionalism involves the use of the Constitution to bring about a
more equal and democratic society.
• The Constitution has an impact on all other sources of law

Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of

the Republic of South Africa 2000 (2) SA 647 (CC) [44] –
‘There are no two systems of law, each dealing with the same subject matter, each
having similar requirements, each operating in its own field with its own highest court.
The is only one system of law. It is shaped by the Constitution which is the supreme law,
and all law, including the common law, derives its force from the Constitution and is
subject to constitutional control’
Constitution of the Republic of South
Africa, 1996
H v Fetal Assessment Centre 2015 (2) SA 193 (CC)
‘ Judges must ensure that the values of the Constitution underlie all
law, not that some part of the law can exist beyond the reach of the
constitutional values’
Constitution of the Republic of South
Africa, 1996
• The Constitution has direct influence on legislation – if legislation is in
conflict with the constitution, it can be struck down. Section 172(1)(a)
of the Constitution states that courts must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the extent
of its inconsistency
• Influence of Constitution on other sources of law is less direct – Section
39(2) – interpretation of any legislation and the development of the
common law – court must promote spirit, purport and objects of BOR
• Section 39(1) – interpretation of BOR must take into account
international law and may consider foreign law
Constitution of the Republic of South
Africa, 1996
Can the Constitution be amended?
• Yes
• The Constitution has been amended 17 times since its enactment
• This is evidence to the primacy of the Constitution as a source of law
• It can only be amended by the National Assembly (upper house of parliament) –
must get a supporting majority of at least two-thirds of its members
• In the case of Constitutional values in section 1, by a majority of at least 75% of its
members as well as the support of at least six provinces represented at the
National Council of Provinces (lower house of parliament)
• The 18th amendment is poised to be the amendment of section 25 of the
Constitution, if the proposals are passed by parliament – What is this amendment?
Constitution of the Republic of South
Africa, 1996
NB case law for consideration on the role of the Constitution in legal
reform in South Africa
1. S v Makwanyane and Another 1995 (3) SA 391 (CC) – on the right
to life in terms of section 11 – issues around the death penalty
2. Soobramoney v Minister of Health (KZN) 1998 (1) SA 765 (CC) – On
the right to health care in terms of section 27
3. Christian Education South Africa v Minister of Education 2000 (4)
SA 757 (CC) – On the right to freedom of religion in terms of section
15 and corporal punishment in schools
Constitution of the Republic of South
Africa, 1996
NB case law for consideration on the role of the Constitution in legal
reform in South Africa

4. Government of RSA and Others v Grootboom and Others 2001 (1) SA

46 (CC) – On the right of access to adequate housing in terms of section 26
5. Carmichele v Minister of Safety and Security and Another (Centre for
Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) – On the right to
dignity in terms of section 10, the right to freedom and security of the
person in terms of section 12 and the duty and power of the courts to
develop common law in terms of section 8(3), 39(2) and 173.
Constitution of the Republic of South
Africa, 1996
NB case law for consideration on the role of the Constitution in legal
reform in South Africa

7. Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC)
– On freedom of religion in terms of section 15, where the use of dagga
for religious purposes was discussed- and the limitations clause in terms
of section 36
8. Ex Parte Minister of Safety and Security and Others: In re S v Walters
and Another 2002 (4) SA 613 (CC) - On the right to bodily integrity in
terms of section 12 - use of force against fleeing suspects ito section 49 of
the Criminal Procedure Act
Constitution of the Republic of South
Africa, 1996
9. Minister of Health and Others v Treatment Action Campaign and
Others (No 2) 2002 (5) SA 721 (CC) – On the right to health care in
terms of section 27 – what does it constitute? Minimum core standard?

10. Khosa and Others v Minister of Social Development and Others;

Mahlaule and Others v Minister of Social Development and Others
2004 (6) SA 505 (CC) – On the right to social security where permanent
residents are concerned
Constitution of the Republic of South
Africa, 1996
11. Minister of Home Affairs v National Institute for Crime Prevention
and the Re-Integration of Offenders (NICRO) and Others 2005 (3) SA 280
(CC) – On the right to equality in terms of section 9 and the right to vote
where prisoners are concerned in terms of section 19(3)(a).

12. Bhe and Others v Magistrate, Khayelitsha, and Others (Commission

for Gender Equality as amicus curiae): Shibi v Sithole and Others: South
African Human Rights Commission and Another v President of the
Republic of South Africa and Another 2005 (1) SA 580 (CC) – On the right
to equality – unfair discrimination on succession matters and the
administration of Black African Estates
Constitution of the Republic of South
Africa, 1996
13. Minister of Home Affairs v Fourie (Doctors for Life International
and Others, Amici Curiae); Lesbian and Gay Equality Project and
Others v Minister of Home Affairs 2006 (1) SA 524 (CC) – On the right
to equality in terms of section 9 – right of same sex couples to marry

14. Masiya v Director of Public Prosections, Pretoria and Another

(Centre for Applied Legal Studies and Another Amici Curiae) 2007 (5)
SA 30 (CC) – On the development of common law in terms of sections
8(3), 39(2) and 173 – and the extension of the definition of rape