Sources of law
Dr Jenny Hall
March 2021
Required Reading
• Notes on Blackboard –
 Names of the courts (and abbreviations)
 Constitutional of the Republic of South Africa, 1996: Chapter 2 (The Bill of Rights)
 Articles on constitutional transformation
• Kleyn et al Beginner’s Guide for Law Students 5ed (2018): Chapter 3 pp 39 – 44; 58 –
60; 80 - 92
(Note – this is your Introduction to Legal Studies textbook)
• Notes from library orientation (which you will make next week)
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From last week …
What is law?
.
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Rules …
•
Say what is, or is not, allowed
•
Often try and ‘fix problems’ and change behavior
•
Balance the need for freedom and order
•
Develop society’s interests
•
Law is made by the people and for the people –
 Everyone must obey it
 Everyone must be treated equally
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About the sources of law
What is a source of law?
A way of grouping similar
types of law together
Sources
• The places where
you find these rules
• How rules are made
Which tells us where they
originate (come) from
And where we will find those
types of laws
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Why is understanding the sources of law important?
• Lawyers need to –
 be able to find the law and know what the law is to do their work
 be able to say what the law is (‘cite the law’) when making a claim, argument or
writing an opinion
 justify their argument or opinion by interpreting the law rather than their own personal
opinions.
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The sources – categorising the sources
Constitution
Legislation
Precedent (court
decisions)
Common law
Customary/ Indigenous
law
Works of modern authors
etc.
Foreign law
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Categorising the sources
•
The sources do not all have the same
status –
 Binding (primary) sources – create
law and are have to be followed
Primary
sources
 Persuasive (secondary) sources –
do not create law, but are used to
help to interpret primary sources
Secondary
sources
• Constitution; legislation;
judgments; customary/ indigenous
law
• Modern writings; textbooks; legal
journals; foreign law; internet
sources
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The Constitution
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Constitution
•
Before 1993 the Constitution was ‘just’ a law – Parliament was supreme, now we are a
constitutional democracy and the Constitution is supreme.
•
The Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution) lead us into
democratic government.
•
It was replaced by the Constitution of the Republic of South Africa Act 108 of 1996.
•
Since the Citation of Constitutional Laws Act 5 of 2005 it must now be referred to as the
Constitution of the Republic of South Africa, 1996.
Section 2
This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
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Constitution
• The Constitution provides the
basis of changing the way we have
lived into realising democracy on a
continuous basis.
• This is clear from the beginning of
the Constitution in the Preamble
and is reflected throughout the Act.
• This is known as ‘transformative
constitutionalism’.
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Constitution
•
What does the Constitution do to promote democracy?
 it gives people rights
 it gives effect to the rule of law by stating the roles and powers of –
 Lawmakers
 The executive e.g. Ministers
 The courts (judiciary)
 It creates other so-called ‘Chapter 9’ institutions which oversee the three arms of government/
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Constitution
•
The basis for transformation starts with the Bill of rights (Chapter 2).
•
The rights can be divided into five categories –

Personal liberty, freedom and equality (sections 9, 10, 11, 12, 13, 14, 15, 18 and 21): equality; human
dignity life; freedom and security of the person; slavery and forced labour; privacy; freedom of religion
and belief; freedom of association; freedom of movement and residence

Economic and social progress (sections 22, 24, 25, 26, 27, 28 and 29): freedom of trade; environmental
right; property; housing; health care, food and water security; children; education

Administration of justice (ss12, 32, 33, 34 and 35): freedom and security of the person; access to
information; just administrative action; arrested, detained and accused persons
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Constitution
 Freedom of expression (sections 15, 16, 17 , 30, 31 and 32): freedom of religion and belief; freedom of
expression; assembly and demonstration; language and culture; cultural, linguistic and religious
communities; access to information
 Political freedom (ss 15, 19 and 20): freedom of expression, political rights, citizenship
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Constitution
•
Most rights can be limited, but subject to rules e.g. law of general application.
•
The rules for limiting rights are found in section 36.
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Constitution
•
All rights apply to –
 natural persons
 legal persons where the right permits (section 8(4)) i.e. not the right to life etc.
•
The state and courts are bound by the rights and must apply them; give effect to them and not
infringe them.
•
Natural and juristic people are bound by the rights ‘to the extent applicable’ (section 8(2)).
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Constitution
• Sets out rules about the structure of the state
• Divides power between –
 Legislature (creates the law)
 Executive (administers and enforces the law)
 Judiciary (applies and interprets the law) (separation of powers)
• Legislature and executive at the three spheres of government i.e. national,
provincial and local –
• Co-operative governance
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Constitution
Section 181 says this
about the institutions
•
Chapter 9: state institutions
supporting constitutional democracy –
 Public Protector;
 Human Rights Commission;
 Commission for the Promotion and
Protection of the Rights of Cultural,
Religious and Linguistic Communities;
 Commission for Gender Equality;
 Auditor-General & Electoral
Commission
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Constitution
•
The rule of law and the need for democratic transformation are threaded throughout the
Constitution in other area. Take it’s approach to transforming the judiciary, for example, in section
165 –
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Constitution
•
The Constitution tells us how we must approach other sources of law and ‘how they fit in’ –
 legislation must not conflict with the Constitution
 common law and customary law can be developed – through the rights-based lens
 foreign law can be taken into account
 International law needs to be ‘domesticated’ unless ‘self-executing’.
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