Primary Sources
The Primary Archive
The primary sources of SA law are legislation, common law, customary law, and precedent.
The Four Primary Sources
- LEGISLATION — Acts of Parliament, provincial Acts, subordinate legislation (regulations, by-laws). The most frequently used source. Prevails over common law.
- COMMON LAW — the Roman-Dutch private law tradition as developed by SA courts. Applies unless displaced by statute.
- CUSTOMARY LAW — applies in matters governed by customary law, subject to the Constitution.
- PRECEDENT — binding ratio decidendi of higher courts within the same hierarchy.
The Constitution is the supreme primary source — it overrides all others. Legislation is next (but must be constitutional). Common law and customary law apply where legislation is silent, subject always to the Constitution.
Precedent
The Case Law Hall
Stare decisis: courts must follow binding precedents from higher courts in the same hierarchy.
The Two Parts of a Judgment
- RATIO DECIDENDI — the "reason for the decision"; the legal principle on which the case was decided. This is BINDING on lower courts.
- OBITER DICTUM — "said in passing"; remarks that are not essential to the decision. PERSUASIVE but not binding.
Binding vs Persuasive Precedent
- BINDING: ratio decidendi of higher courts in the same hierarchy
- PERSUASIVE: obiter dicta; decisions of courts in other provinces; foreign court decisions; academic writing
Distinguishing and Overruling
A court can avoid a precedent by distinguishing the facts. A court can overrule its own precedent (the Constitutional Court can depart from its prior decisions; the SCA can depart from prior SCA decisions).
Since the Constitution Seventeenth Amendment Act (in force 23 August 2013) the Constitutional Court is the highest court in ALL matters, not only constitutional ones. Its decisions bind all other courts. The SCA is the highest court of appeal except for the Constitutional Court. High Courts are bound by the SCA and the Constitutional Court.
Secondary Sources
The Reference Room
Secondary sources — textbooks, journals, encyclopaedias — are persuasive, not binding.
Types of Secondary Sources
- TEXTBOOKS — systematic treatments of areas of law (e.g. Kerr on Contract, Van der Merwe on Property)
- LAW JOURNALS — academic articles (SALJ, SAJHR, Stell LR)
- ENCYCLOPAEDIAS — Lawsa (Laws of South Africa)
- FOREIGN LAW — international and comparative authorities (persuasive under s 39(1))
Secondary sources guide courts in the absence of clear primary sources. In SA, the major Roman-Dutch authorities (Grotius, Voet) have special status as primary sources of the common law — not merely secondary.
Exam trap: the Roman-Dutch writers (Grotius, Voet) are technically primary sources of common law, not secondary sources. Do not categorise them as secondary sources simply because they are books.
Hierarchy
The Pyramid of Sources
Sources of law are ranked: the Constitution at the apex, then legislation, then common law/customary law.
The Pyramid (top to bottom)
- (1) CONSTITUTION — supreme law; all other sources subordinate
- (2) LEGISLATION — Acts of Parliament, provincial Acts, subordinate legislation
- (3) COMMON LAW AND CUSTOMARY LAW — apply where not displaced by statute
- (4) PRECEDENT — courts bound by higher courts' ratio decidendi
- (5) SECONDARY SOURCES — persuasive only
When sources conflict, the higher source prevails. A statute inconsistent with the Constitution is invalid. A common law rule inconsistent with the Constitution or legislation is overridden. Courts apply the hierarchy automatically.
Parliament
The Two Chambers of Parliament
Parliament consists of the National Assembly and the National Council of Provinces.
The National Assembly (NA)
The 400-member lower house. Directly elected by citizens every five years through proportional representation. The NA is the primary law-making chamber — all Bills affecting national matters originate here (or in the NCOP for certain Bills).
The National Council of Provinces (NCOP)
The upper house — 90 members representing the nine provinces (10 per province). The NCOP ensures provincial interests are considered in national legislation. All Bills affecting provinces must pass through the NCOP.
Section 44 of the Constitution: Parliament has the power to pass legislation on any matter — subject to the Constitution. Parliament cannot pass legislation that is inconsistent with the Constitution.
Legislative Process
The Bill's Journey
A Bill must pass through several stages before becoming an Act of Parliament.
The Stages
- (1) INTRODUCTION — Bill introduced in the NA (or NCOP for certain Bills)
- (2) COMMITTEE STAGE — referred to a portfolio committee for scrutiny and public participation
- (3) PLENARY DEBATE — debated and voted on by the full house
- (4) NCOP STAGE — if it affects provinces, referred to the NCOP
- (5) PRESIDENTIAL ASSENT — signed by the President (or referred back / to the Constitutional Court)
- (6) PROMULGATION — published in the Government Gazette; comes into operation on date specified
There are four types of Bills: Ordinary Bills (s 75, not affecting provinces), Ordinary Bills affecting provinces (s 76), Money Bills (s 77), and Bills amending the Constitution (s 74). The procedure differs for each type.
Exam trap: an Act only comes into operation (becomes enforceable law) on the date specified in the Act or proclaimed by the President. Signing alone does not bring the Act into force.
Types of Legislation
The Hierarchy Ladder
Legislation exists at multiple levels: Acts, provincial legislation, and subordinate legislation.
The Ladder
- ACTS OF PARLIAMENT — primary national legislation; highest form after the Constitution
- PROVINCIAL ACTS — legislation of provincial legislatures within their competence
- SUBORDINATE LEGISLATION — regulations, proclamations, by-laws made under powers delegated by an Act
Subordinate Legislation
Parliament cannot legislate on every detail. Acts delegate power to ministers, provincial governments, or municipalities to make regulations (the detail). Regulations are subordinate to the enabling Act and to the Constitution.
Subordinate legislation is valid only to the extent that it falls within the powers delegated by the parent (enabling) Act. Ultra vires regulations — those exceeding the delegated power — are invalid.