Law-Making in South Africa (4.

2)

• Legislative Structure:
o South Africa’s government is divided into three branches: Legislature, Executive,
and Judiciary.
o Law-making powers are divided across three levels: National, Provincial, and
Local.

National Legislation:

• Scope: Applies to the entire country and is passed by Parliament annually.

• Constitutional Compliance: Must align with the values and principles of the
Constitution.
• Supremacy: In case of a conflict with provincial or local laws, national legislation prevails
(Section 146 of the Constitution).

Provincial Legislation:

• Scope: Applies only within the specific province, not nationally or in other provinces
(e.g., Mpumalanga's laws don’t apply in Gauteng).
• Constitutional Compliance: Must also align with the Constitution.
• Concurrent Powers: National and provincial legislatures share certain powers in areas
like disaster management, pollution control, and soil conservation (Schedule 4 of the
Constitution).
• Section 146(3): National legislation prevails over provincial laws if the provincial law
threatens the economic, health, or security interests of another province or the country
as a whole.

Local Legislation:

• Scope: Local municipalities have the power to create by-laws within their geographic
areas (e.g., Nelson Mandela Bay's electricity supply by-law).
• Responsibilities: Municipalities focus on local development, zoning (residential areas,
churches), and law enforcement within their jurisdictions.

The Legislative Process (4.3)

Initiation of a Bill

• A proposed bill is prepared by a government department.

• Government conducts research to determine the need for the law and its public impact.
• A report is compiled:
o Explains the government's standpoint on the issue.
 o Suggests solutions through new legislation or amendments.
• The report is published in the Government Gazette.
• The public is invited to comment during the Green Paper and White Paper stages.

Introduction of the Bill to Parliament

• The bill is submitted to the Speaker of the National Assembly.

First Reading of the Bill

• Members of Parliament (MPs) read the bill.

• The bill is debated for the first time in Parliament.

First Scrutiny by the Portfolio Committee

• Parliament checks if the bill complies with the Constitution’s values.

• The bill is sent to the relevant portfolio committee.
• The committee may propose changes to the bill.

Second Reading of the Bill

• The amended bill is returned to MPs for a second reading and further consideration.

Second Scrutiny by the Portfolio Committee

• The portfolio committee reviews the bill again.

• The bill is sent back to Parliament after scrutiny.

Voting on the Bill

• Parliament votes to approve or reject the bill.

Presidential Assent

• If approved, the President signs the bill, giving formal assent.

Publication and Enforcement

• The signed bill becomes an Act of Parliament.

• It is published in the Government Gazette.
• The Act becomes legally binding from the date of commencement specified in the
Gazette.
Legislative Process Summary (Sections 4.3.2 – 4.3.6)

4.3.2 Public Participation

• Proposed legislation often brings societal changes; public input is important.

• Green Paper: Early draft of proposed legislation published in the Government Gazette
for public comment.
• White Paper: Revised version of Green Paper that includes public input and reflects the
government’s official standpoint.
• Promotes transparency, participatory democracy, and aligns with the Bill of Rights.
• Public participation methods:
o Written submissions
o Oral comments at community public meetings
• Example: Controversial laws (e.g., civil unions) require inclusive consultation to reconcile
differing views in line with the Constitution.
• Court ruling (Matatiele Municipality case): Public participation in law-making is a
constitutional requirement.
• Provincial legislatures must ensure:
o Accountability and transparency
o Public hearings and petition processes
o Open sittings unless exclusion is justified

4.3.3 Introduction of the Bill into Parliament

• Cabinet must approve the final document containing the proposed legislation.
• The bill is submitted to Parliament via:
o Speaker of the House (National Assembly) or
o Chairperson of the National Council of Provinces
• Normally introduced by the responsible government department, but can also be
introduced by a Member of Parliament as a Private Member’s Bill.

4.3.4 Examination by Parliament and Portfolio Committee

• After first debate and reading, the bill is referred to the relevant portfolio committee.
• Portfolio committee:
o Examines the bill in detail
o Considers debates and public input
o Makes amendments
• The amended bill returns to Parliament for a second reading and debate.
• If more changes are needed, it goes back to the portfolio committee again.

4.3.5 Voting on the Bill

• Debate and reading do not guarantee approval.

 • Voting is essential: Both Houses of Parliament must vote in favour of the bill.
• Only if approved by both Houses, the bill proceeds to the President.

4.3.6 Presidential Assent

• As per Section 79 of the Constitution, the President gives final assent to the bill.
• Once signed, the bill becomes law and is legally binding.
• Commencement: The Act may apply retrospectively (to past events) or retroactively (to
all related events, regardless of timing).

Uncodified legal system 2.1.2

: South African law is not contained in a single legal code; legal rules come from various
sources.

Plural legal system: Both common law (European-based) and customary law (indigenous)
are equally valid.

Primary sources of South African law:

• Statutory law: Laws made by Parliament and provincial legislatures, found in the
Government Gazette, statute books, and websites.
• Common law: Non-statutory law rooted in Roman-Dutch law, writings of 17th–18th
century Dutch scholars, and English legal principles.
• Judicial precedent: Court decisions that guide future similar cases; inherited from
English law.
• Customary law: Indigenous laws practiced by local communities; officially recognized in
the legal system.

Legal sources: Different documents and systems (e.g. Government Gazette, statute books)
used to look up applicable laws.

Legal code: South Africa lacks a single legal code compiling all laws in one place.

The law is compared to a tree:

• Roots = history and foundations (e.g., English common law, Roman-Dutch law,
customary law)
• Trunk = sources of law, courts, and legal profession that support and give life to the law

Sources of law are divided into:

• Primary sources (binding, most authoritative):

o The Constitution (supreme law)
 o Legislation (Acts and regulations)
o Case law (judicial precedents)
o Common law (Roman-Dutch foundations)
o Customary law (indigenous practices)
• Secondary sources (non-binding but persuasive):
o Textbooks, journal articles, legal commentaries
o Useful for interpretation and reform suggestions

Courts and the legal profession form part of the law’s trunk:

• Courts interpret and enforce laws

• Legal professionals (judges, lawyers, arbitrators) apply and support the legal system
• Everyone, including citizens, contributes to upholding the law

The Constitutional Court is the highest court in South Africa.

The legal system is collaborative, involving all legal actors in applying and developing the
law.

The Constitution of the Republic of South Africa:

• The Constitution is the highest law in South Africa.

• It is the starting point for interpreting all legislation.
• Section 39 of the Constitution states:
o Courts must promote the Bill of Rights when interpreting any law.
o Rights must be respected, protected, and promoted in all legal interpretations.
o International law must be considered, and foreign law may be considered to
aid interpretation.
• International law plays a key role in guiding courts when interpreting legislation.

What is Legislation? (Main Points)

• Definition: Legislation refers to laws that are formally written, documented in statute
books, and published online.
• Codification: Laws are often grouped by topic (e.g., labour laws in the Labour Relations
Act).
• Authority:
o National Legislation: Passed by Parliament and is binding across South Africa.
o Provincial Legislation: Passed by provincial legislatures and applies only within
that province.
• Binding Nature: Once legislation is passed by Parliament or a decision is made by a
court, it is legally binding.
Practical Importance of Legislation:

• Legislation must align with the Constitution to be valid and enforceable.

• Courts must test legislation against constitutional values and principles.
• The Constitution is the supreme law, and no legislation may violate it.
• Judges interpret statutes based on the facts, evidence, and arguments of a case.
• Statutory interpretation ensures the law is applied in line with its purpose and
constitutional values.
• Once interpreted, the court’s decision is binding, though it may be reviewed or
appealed (except Constitutional Court rulings).

4.1.2 Reading a Statute – Key Points with Detail

1. Importance of Statutes in Legal Argument

• A lawyer cannot make a legal argument without citing or quoting relevant legislation.
• This skill starts during law studies, especially in assignments and assessments—not just
in practice.
• Statute = legislation, and citing it gives your argument legal authority.
• First reference to legislation must include the full citation:
o Example: Arbitration Act 42 of 1965.
• After the first citation, you can refer to it by short title:
o Example: Arbitration Act.

2. Importance of Legal Authority in Argument

• Legal arguments must always be justified by:

o Legislation
o Case law
o Common law
o Customary law
o Other relevant sources
• Citing legislation helps the reader (e.g., lecturer or judge) understand the basis of your
legal reasoning.

3. How to Identify a Statute

• Statutes have citations (e.g., name and year) which help locate and confirm their legal
status.
• Important to identify if it is the original (main) Act or an amended version.

4. Example in Practice: Contract Dispute

• Company A agrees to buy 100 vehicles from Company B.

• 50 vehicles must be delivered by January in exchange for 25% deposit.
• Company A fails to pay, despite receiving the vehicles.
• Company B considers legal action for specific performance.
• If an arbitration clause exists, Company A can invoke section 6(1) of the Arbitration Act
to stay court proceedings and enforce arbitration.
• Arbitration offers a faster, cheaper, and relationship-preserving alternative to court.

5. Key Parts of a Statute

• Every statute may include:

A. Short Title

o The formal name of the Act.

o Used for convenience and citation.
o Example: Arbitration Act, 1965.

B. Long Title

o Appears at the top of the statute.

o Describes what the legislation aims to do and who it applies to.
o Example (from Arbitration Act):
"To provide for the settlement of disputes by arbitration tribunals in terms of
written arbitration agreements and for the enforcement of the awards of such
arbitration tribunals."

C. Preamble

o An introductory statement explaining the purpose and historical background of

the statute.
o Not the same as the long title.
o Not all statutes have a preamble (e.g., the Arbitration Act does not).
o A good example: Preamble to the Constitution—it outlines the document’s
philosophy and values.
 6. Legislation as a Tool for Social Regulation and Protection

• Government uses legislation to organise society and protect rights.

• Statutes define:
o What laws apply
o To whom they apply
o Duties and rights of individuals
• Legislation without enforcement mechanisms is ineffective.

7. Example: Labour Relations Act 66 of 1995

• Governs employer–employee relationships.

• Promotes peace and harmony in the workplace.
• Regulates how disputes should be resolved.
• Section 198B(3) states:
o When an employer may use fixed-term contracts longer than three months.
o Also specifies consequences for unjustified non-compliance.
• Ensures employers don’t exploit fixed-term employment.

Key Points of 6.2.5 Judgment:

1. Definition of Judgment:
o A judgment is the decision delivered by the presiding officer after considering all
evidence and legal arguments presented in court.
2. Two Main Aspects of a Judgment:
o Facts: The judge provides an interpretation of the circumstances that led to the
dispute.
o Legal Position: The judge outlines the applicable legal rules and principles,
offering conclusions on how they relate to the case.
3. Conclusion and Order:
o After analyzing the facts and law, the judge applies the legal principles to the
case.

Key Points of 6.5.2 Structure of a Reported Court Case:

1. Components of a Reported Case:

o Alphabetical Markers
o Name of the Case
o Relevant Court
 o Presiding Officers
o Dates: Includes the date of hearing and judgment.
o Catchword Paragraph
o Headnote: A brief summary of the case.
o Legal Relief/Remedy: The outcome or remedy being sought.
2. Additional Components:
o Legal Representatives: Lawyers involved in the case.
o Heads of Argument: Written arguments presented by both sides.
o Latin Terms: Any relevant Latin terms used in the case.
o Judgment: The decision and reasoning by the judge.
o Order: The final decision or ruling of the court.
o Firms of Attorneys: The legal firms representing the parties.
o English Translation: If applicable, translation of legal terms or foreign language
used.
3. Purpose of Structure:
o This structure helps in analyzing and understanding the case components
systematically.

o with legal costs.

Ratio Decidendi Vs Obiter Dictum

4. Ratio Decidendi:
o Refers to the reasoning behind the court's decision.
o Creates binding precedent for lower courts.
o It is the part of the judgment that must be followed in future cases.
5. Obiter Dictum:
o Refers to remarks made in passing by the judge.
o Does not create binding precedent.
o These are statements not necessary for the decision but might be made in
explaining the law.

6.1 Case Law – Main Points

• Primary Source of Law:

Case law is a primary source of South African law, alongside legislation.
• Key Tool for Legal Practitioners:
Case law is one of the most important tools lawyers use when presenting arguments in
court.
 • Legal Arguments Must Be Supported by Authority:
Courts require legal principles and authority, not personal opinions.
• Use of Precedents:
Lawyers must refer to reported cases (precedents) that support their client’s case.
• Address Opposing Cases:
You must also acknowledge and deal with cases that may weaken your client’s
position.
• Goal:
Show the court how existing legal rules, as established in previous cases, apply to the
facts of the current case.

Summary of Section 6.3.3: Case Law as a Source of South African Law (Main
Points)

• Definition: Case law refers to past judicial decisions that are used as precedents in
future cases.
• Binding Nature:
o Case law is a primary and binding source of South African law.
o Lower courts must follow decisions made by higher courts in similar cases.
• Law Creation: It not only interprets existing laws but also contributes to the creation
and development of new legal principles.
• Application: Courts interpret and apply case law, legislation (especially the
Constitution), and common law in their rulings.
• Foreign Law:
o Decisions from foreign courts are not binding in South Africa.
o Courts may consider foreign law and must consider international law when
interpreting the Bill of Rights.
• Section 39 of the Constitution:
o Requires promotion of values like dignity, equality, and freedom.
o Guides courts to uphold the spirit and purpose of the Bill of Rights when
interpreting or developing any law.

Key Points: Creating a South African Common Law

South African Common Law

7.1.1 Law Used by the Whole Country

• Common law applies nationally to all South Africans.

• Customary law applies in specific communities, mainly in areas like family law,
succession, and land tenure.
• In most contexts, traditional communities are also subject to the common law.
7.1.2 Law That Does Not Come from Legislation

• Common law is also defined as non-enacted law, i.e., law not made through statutes.
• It originates from Roman-Dutch law, developed through:
o Institutional writers of the 17th–18th centuries.
o Judicial precedent (case law) since 1828.

Development and Influence

• English law influenced common law after British colonisation in 1806.

• South Africa’s legal system is hybrid (mixed), combining:
o Roman-Dutch law (ownership, property, contract).
o English law (e.g., trust law).
• Roman-Dutch law was part of the European ius commune, rooted in Roman law and the
Corpus Iuris Civile.

Structure and Nature

• Unlike civil law systems (which are codified), South African common law remains
uncodified.
• Common law evolves through adversarial court proceedings and published judgments
(similar to English practice).
• In contrast, European civil law systems use inquisitorial processes, brief judgments, and
do not follow precedent.

Constitutional Supremacy

• All law, including common law, is subject to the Constitution.

• Confirmed in Pharmaceutical Manufacturers Association of SA (2000):
There is only one legal system in South Africa – shaped and governed by the
Constitution, which is the supreme law.

English Common Law (Section 7.2)

• "Common law" in the UK refers to laws applicable across the entire kingdom, as
opposed to regional laws (e.g., in Scotland).
• English common law is the foundation of Anglo-American legal systems and influences
countries like the USA, Canada, Australia, New Zealand, and India.
• It is not based on Roman law, unlike European ius commune.
• Developed from English customs and court decisions—also known as judge-made law.
• Follows the doctrine of stare decisis: courts must follow legal precedents set by earlier
court decisions.
• English common law is uncodified, like South African common law.
7.3: Roman-Dutch law as the common law of South Africa:

• South African common law refers mainly to Roman-Dutch law, forming the foundation
of the country’s legal system.
• It is an uncodified legal system, meaning the laws are not all written in a single legal
code.
• English law has had a strong influence, especially in procedural and commercial areas.
• The South African legal system is often described as a hybrid or mixed system,
combining:
o Roman law (the base)
o Dutch law (the middle layer)
o English law (the top layer)
• Legislation and judicial precedent (interpreting and applying the law in court cases) act
as the “icing,” addressing gaps and evolving the system.
• This combination ensures the law is dynamic and able to meet modern societal needs.

Top of Form

7.4 When is Common Law Applicable?

• Roman-Dutch law is used only when no legislation exists to govern a legal issue.
• Legislation overrides common law where the two conflict.
• Example: Contingency Fees Act 66 of 1997 changed the common law to allow legal
practitioners to charge fees only if the client wins the case (previously illegal under
common law).
• English legal principles are still relevant in certain fields (e.g., company law) where
legislation is silent.

7.5 What Happens if Institutional Writers Clash?

• Courts consult institutional writers (like Voet and Grotius) to interpret Roman-Dutch
law.
• If sources contradict, courts choose the position aligned with reason, equity, modern
justice, and utility.
• Priority is given to Dutch writers over others.
 • Case example: Butters v Mncora – the court favored a newer source (Felicius-Boxelius)
to achieve a fair result, allowing for a universal partnership between unmarried
partners.

7.6 Can a Roman-Dutch Rule Fall Away?

• Doctrine of abrogation by disuse: A Roman-Dutch rule may fall away if not used over
time.
• Example: In Green v Fitzgerald (1914), the court ruled adultery was no longer a crime
due to disuse (no prosecutions after 1828).

7.7 English Law as a Source of South African Common Law

• While Roman-Dutch law remains the foundation, English law has a strong secondary
influence.
• English influence entered South African law during the British occupation of the Cape.
• English legal doctrines still inform:
o Company law
o Patents and copyright
o Evidence
o Civil and criminal procedure
o Criminal law
• Some South African legislation is based on English statutes.

tion 7.8 – Development of Common Law by the Courts based on key points:

Traditional Role of Courts:

• Judges of higher courts could make minor changes to the common law.
• This was done to:
o Fill legal gaps.
o Fix inconsistencies.
o Adapt to modern societal changes.
• Courts had to respect that law-making is primarily Parliament’s role.

Section 39(2) of the Constitution (Post-1996):

 • Courts must now also develop common law in line with the Bill of Rights.
• This duty applies to all courts, tribunals, and forums.
• They must promote the spirit, purport, and objects of the Bill of Rights when:
o Interpreting legislation.
o Developing common law or customary law.

Case Law – K v Minister of Safety and Security (2005):

• The Constitutional Court emphasized:

o Section 39(2) applies even in small, incremental changes.
o Common law must always be aligned with constitutional values.
o Courts must actively consider the Constitution in every development of the law.

8.1 What is Customary Law

1. Definition of Customary Law:

o Customary law is based on the social practices and customs of a specific group of
people.
2. Two Key Elements:
o Social Practices: Actions or behaviors commonly followed within a community.
o Legal Obligation: People engage in these practices because they believe it is a
legal obligation to do so.
3. Formation of Customary Law:
o Customary law arises when social practices become legally binding for the
community because they are seen as rules of law.
4. Test for Customary Law:
o The ultimate test is whether the participants in the community regard the
practice as binding and obligatory.

Official vs. Living Customary Law

1. Official Customary Law:

o Sources: Includes customary law codes, legislation, precedents, and textbooks.
o Examples: Natal Code (1932, updated in 1967 and 1987) codified Zulu customary
law.
o Characteristics:
▪ Rigid and outdated.
▪ Difficult to change or update.
▪ Often misrepresented or distorted by outsiders.
▪ Considered unreliable by many, including the Constitutional Court.
2. Living Customary Law:
o Sources: Based on current social practices regarded as legally obligatory.
 o Characteristics:
▪ Flexible and dynamic.
▪ Adapts to societal changes (e.g., urbanization, wage labour).
▪ Reflects true customs of communities (e.g., adaptation of lobolo to cash
payments).
3. Key Difference:
o Official customary law is static and codified.
o Living customary law is fluid and reflects real-life practices of communities.

When Customary Law is Applicable

• Court's Role: Courts must apply customary law when it is relevant to a dispute, based on
the parties' intentions, lifestyle, and the nature of the transaction.
• Living vs. Official Customary Law: While Section 211(3) of the Constitution doesn't
specify whether official or living customary law should be applied, the connection to
cultural rights suggests that living customary law, which reflects actual practices, should
be applied.

Is Customary Law a Source of South African Law?

• Quick Answer: Yes, customary law is part of South African law, as confirmed by Section
211(3) of the Constitution.
• Constitutional Recognition: Section 211(3) explicitly states that courts must apply
customary law when applicable, recognizing it as a source of legal rules within the South
African legal system.

Introduction to the Court Structure in South Africa

• Well-Organized Legal System: South Africa has a sophisticated court structure designed
to handle both civil and criminal cases.
• Court Hierarchy: Understanding the hierarchy of courts is essential to navigating the
legal system and choosing the appropriate forum for a case.
• Role of Legal Practitioners: Legal practitioners play a crucial role in initiating and
facilitating court procedures.

Court Hierarchy Overview:

1. Constitutional Court: The highest court in all matters, not limited to constitutional
issues.
2. Supreme Court of Appeal: Primarily an appeal court.
3. High Court: Divided into various divisions and includes other specialized superior courts.
4. Magistrates' Courts: Handle less complex cases, along with other specialized courts.
5. Regional Courts: Intermediate level of courts within the system.
Constitutional Framework:

• The courts operate within a framework defined by the Constitution, ensuring the proper
functioning of the legal system and ensuring access to justice for all.

Constitutional Framework of the South African Court Structure

• Constitution as the Foundation: The Constitution of the Republic of South Africa, 1996,
is the primary reference for the country's court structure. It defines the judiciary's role
and independence.
• Separation of Powers: The Constitution enforces a separation of powers between the
legislature, executive, and judiciary. This ensures checks and balances within
government functions.
o The judiciary is independent of the legislature and executive, ensuring
impartiality in applying the law.
o The South African model of separation reflects the country’s historical
development.
• Judicial Independence: Courts must operate independently, free from influence, and
apply the law impartially.
o Section 165 of the Constitution emphasizes the judicial authority vested in the
courts and ensures no interference with their functioning.
o Courts must be accessible, effective, and protected by the state.
• Chief Justice's Role: The Chief Justice is the head of the judiciary and is responsible for
establishing and monitoring judicial norms and standards.
• Judicial Legitimacy: To be effective, the courts must be legitimate, meaning they must
reflect the diversity of the population and meet the community's needs. Presiding
officers should be impartial and free from bias.
• Court Structure (Section 166): The Constitution outlines the court hierarchy:
1. Constitutional Court: The highest court in all matters.
2. Supreme Court of Appeal: An appeal court.
3. High Court: Includes various divisions and the High Court of Appeal for specific
matters.
4. Magistrates' Courts: Handle less complex matters.
5. Other Courts: Courts established by Acts of Parliament, such as the Competition
Appeal Court or the Labour Appeal Court.

Doctrine of Judicial Precedent

• Court Hierarchy and Binding Authority:

o Higher courts create binding precedents that lower courts must follow, ensuring
fairness and consistency in legal rulings.
 o Stare Decisis: The doctrine of judicial precedent, also known as stare decisis,
means that decisions made by higher courts should stand and not be disturbed
unless necessary.
• Origin and Application:
o The doctrine originates from English law and was introduced to South Africa in
1827. It was not part of Roman-Dutch law.
o Legal precedents play a significant role in common law systems like South Africa,
while civil law systems focus more on codified laws.
• Purpose:
o Provides legal certainty, stability, equality, and efficient justice administration. It
ensures that like cases are treated alike.
• Advantages and Disadvantages:
o Advantages:
▪ Certainty, stability, equality, and efficient legal administration.
o Disadvantages:
▪ Can lead to prejudice, inflexibility, and stifled legal development.
• Judicial Precedent in Practice:
o Legal practitioners use previous judgments as authority to argue their case.
o Ratio Decidendi: The part of a judgment that creates a binding precedent for
lower courts.
o Obiter Dicta: Remarks made in passing, not binding for future cases.
• When a Court May Deviate from Precedent:
o If a previous decision was manifestly wrong.
o If the facts of the current case differ materially from the previous case.
o Decisions on fact do not create binding precedents, only legal outcomes from
those facts do.
• Binding Precedents and Court Hierarchy:
o Constitutional Court: All courts must follow its decisions. It is also bound by its
own previous judgments unless they are clearly wrong.
o Supreme Court of Appeal: Lower courts must follow its decisions, but it can
overrule its own previous judgments.
o High Court: Bound by its own previous decisions unless clearly wrong. Divisions
of the High Court in different provinces are not bound by one another.
o Magistrates’ Courts: Bound by High Court decisions in the same province.

Key Points: The Constitution of the Republic of South Africa

• Supreme Law:
The Constitution is the highest law in South Africa and the foundation for interpreting all
legislation.
• Section 39 – Interpretation of Legislation:
o Courts must promote the Bill of Rights when interpreting any law.
 o Interpretation must respect, promote, and protect the rights in the Bill of Rights.
• Use of International and Foreign Law:
o International law must be considered in interpretation.
o Foreign law may be considered at the court's discretion.
o International law assists courts in interpreting legislation in line with global
human rights standards.