Sources:
-Main
sources are legislation, common law, customary law, judicial precedent; foreign
law, academic textbooks and journals.
Legislation
Consists
mainly of Acts (also statutes) passed by parliament;
-
Provincial & local government also make provincial statutes, by-laws and
regulations;
-
Legislation most important as it takes precedence over others, in event of
conflict, legislation prevails;
-
Passage of legislation has to follow proper procedure e.g. introduction,
voting, constitutional compliance, publication in GG, assent by president etc.;
- If
proper procedure not followed, then law not binding.
-
Power of legislature is based on areas of legislative competence, otherwise law
is ultra vires.
Constitution of the Republic of South Africa, 1996
Used
to be Act 108 of 1996, now Constitution of South Africa 1996; Supreme law of
the land & conduct inconsistent with it is invalid (sec 2);
- C
has changed shape of SA law e.g. on discrimination laws in marriage (2005
case);
-
Most important part is bill of rights;
-
Rights are limited in terms of law of general application, human dignity,
equality, freedom (36)
-
Legislation may be passed that limits a freedom in bill of rights, sect 36 will
take care of that.
-
Some laws may be scrutinised for constitutional compliance & changed
(reading in, striking out, order of invalidity etc)
Common Law
-Set
of laws developed over time,
from various European cultures & south African decisions;
-Decisions
made by our courts based on same develop the common law;
-Constitution
in imperative in that regard see s39;
-When
problem not covered by the common law or statute, courts look at other
jurisdictions & make some of adapted rules part of our law;
-Statement
of the common is found in old & new legal texts & case law.
Customary Law
-Based
on culture and oral traditions, generally unwritten in nature;
-From
beliefs & people’s way of life, passed form generation to generation;
-Rules
may cover wide spectrum of human regulation and conduct e.g
marriage, succession, criminal law, land rights, law of persons, etc.
Judicial Precedent
Based
on principle that courts should decide similar cases in similar way for the
sake of fairness [consistency in law]
STARE
DECICIS –Stand by the previous decision;
How
did the court deal with a similar problem previously?
When
parties [litigants] disagree on an aspect of law, courts have to interpret the
law (using rules of juridical interp);
When
judgement is given in a particular case, such decision sets
precedent for future;
Precedent
is judge-made law.
Decisions
by judges are reported in the law reports which are accessible;
Judgement
entails the facts and the application of the law to the facts;
Not
all parts of a judgement are binding, the ratio decidendi is
the crux of the judgement.
A decision
by a higher court is binding on a lower one & on higher court itself unless it
was wrong.
When
a lawyer finds case that answers client’s problem, he can use the case to
support the client’s arguments in court.
Foreign Law
Comes
into play when confronted with legal problems that are new in this
country but have been dealt with elsewhere (e.g. Mpshe cases)
Constitution
allows it & our law can borrow from other laws to reflect global nature.
International
law is also source of law
Important
sections of constitution are s39 & 231, 232,233.
Academic Writings
Writings
of textbook authors such as voet, Grotius, Justinian etc. & recent
authorities;
Textbooks
tend to reflect current law as stated in other sources;
Sometimes
the opinion of a respected writer may be the only law available & courts
follow it
Journal
writings have also been referred to in some judgements.
Lawyers
often use the textbook as a primary source of reference.Internet
Database
sources with legislation, case law, whole textbooks, journal articles etc.
Some
are subscriber based while others are free access;
E.g www.polity.org.za , www.jutalaw.com, my lexusnexis,
Sabinet etc.
No comments:
Post a Comment