Sources of law (Part 2)

Dr Jenny Hall
March 2021
 Legislation
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Legislation
You will learn more
about legislation in the
• Legislation refers to written rules which are made by a unit which teaches you
body which has the power (is allowed) to make law how to read and interpret
legislation.
• Legislation can have different names e.g. Acts,
legislation, statutes, Ordinances, By-laws

• Powers to make law include the power to –

 make rules law (enact)
 change existing laws (amend)
 remove (repeal) laws

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Legislation

• Laws are passed to –

 address a gap (‘cure a mischief’);

 to change laws which no longer reflect the
needs of society
 to fix defects in existing laws
 … and sometimes to force people to change
the way they live or what they think is right.

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Legislation

• Who can pass/ enact legislation?

Self test

 Parliament can pass legislation which applies to the

Have a look at Schedules 4
whole country (national legislation)
and 5 of the Constitution.
 Provincial Legislatures can pass legislation which
Which sphere do you think
applies to the whole province (provincial legislation)
has the authority to pass
 Municipal Councils can pass legislation which applies
environmental legislation?
to the whole area of the municipality (local by-laws)

• Constitutional schedules 4 and 5 say what issues each

sphere of government can make law about

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Legislation

• We concentrate on national legislation in this module …

• Section 43 of the Constitution says that legislative
authority of the national sphere of government is vested
in Parliament
• Parliament consists of –

 (a) the national assembly

 (b) the National Council of the Provinces

• In theory, laws made by Parliament give effect to the will

of the people – why?

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Legislation – the process of making a law
.

Published in Important note

Green paper White paper Bill GG for
comment

Hansard is an
almost word-for-
Second word (verbatim)
First reading Portfolio Portfolio
reading in report of
in NA committee committee
the NA parliamentary
proceedings -
with repetitions
and
President Published in redundancies
Vote in NA NCOP omitted and
assents GG
obvious
mistakes
corrected.
PUBLIC COMMENT
.

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Legislation

• Sometimes an Act does not give

enough information and the Act
empowers the Minister or MEC to Act
make additional rule, which are also
law.
• These laws are classified as (known Regulations Standards Notices
as) subordinate legislation or
delegated legislation.
• They must be drafted ‘within the four
corners’ of the Act.
• If there is any conflict between the Act
and the subordinate legislation, the
Act will prevail.
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Legislation

Act Subordinate legislation

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Legislation

• Important first questions that should always ask when reading legislation –

 When did the Act come into force?

 date of publication or a date published in the Government Gazette?
 When did the Act stop being in force? (Repeal and sunset clauses)
 has it been repealed?
 is there a ‘sunset’ clause?
 Are you looking at the correct version of the Act – are there any changes or amendments, and
why does it matter?
 laws are sometimes amended
 the rules may have been altered
 law does not apply retrospectively.
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Legislation

• In your library orientation and database training

you will learn how to find legislation (and case
law).

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 Case law
(precedent)
3
Case law – what is it?
You will learn much
• The courts in our country make decisions (adjudicate) on more about case law in
disputes (disagreements) e.g. claims, criminal offences, the unit which teaches
oversight of government’s exercise of power you how to read a
judgment.

• Decisions by the courts are called different things e.g.

‘precedents’, ‘court decisions’, ‘judgments’ or ‘case law’

• Two main categories are civil and criminal cases:

 Civil cases: involve claims between private citizens or
citizens and government and seek remedies such as
damages or interdicts
 Criminal cases: involve the state prosecuting someone for a
crime and the prosecutor seeks punishment for the crime

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Case law – who makes it?

Constitutional
• South Africa has many different types of Court
courts. Supreme
Superior
Court of
courts
• The decisions of some courts carry more Appeal
authority (weight) than others. Specialised
High Courts courts

Regional
Courts
Lower courts
District
Courts

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Case law and the doctrine of judicial precedent (stare decisis) -

• The appointment of judges and how judging case must be done is governed by the Constitution
Section 165 of the Constitution says that judges must be independent and must apply the law –
‘impartially and without fear, favour or prejudice’
• The orders that a court makes are binding (must be followed) unless they are overturned on
appeal.

• There is a hierarchy in the court structure.

• Some courts must follow approach (legal reasoning/ ratio decidendi) of other courts which is
called the doctrine of judicial precedent.

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Case law and the doctrine of judicial precedent
(stare decisis) -
• Why is the doctrine there?

 it creates certainty and predictability – people know how courts will decide a dispute
 it creates equality of treatment – how the law is applied to one specific factual situation should be the
same in other similar situations
 It provides for efficient administration in the enforcement of justice.

• Are there any disadvantages?

 it limits the flexibility of other courts to decide how they want to
 it can stifle legal development/ difficult to influence law reform
 The court could be wrong!

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Case law

• Explaining a bit more about the ‘in’s’ and ‘out’s’ …

 The doctrine applies to the law involved in the reasoning, not the facts - findings on facts of the
case do not create precedent
 ‘remarks in passing’ (obiter dicta) do not create precedent, but can be persuasive
 ‘reasons for the decision’ (ratio decidendi) do create precedent
 Where there is more than one judge, and there is a majority and minority (dissenting)
judgment – the ratio decidendi in majority judgment creates the precedent.

• An exception of the duty to follow the reasoning of other cases

is where the
• 1) The facts differ materially (in an important way), or
• 2) The existing judgment is clearly wrong.

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Case law

Constitutional Court: Bound by own decisions unless the decision was

wrong;
binds all other courts

Supreme Court of Appeal : Bound by Constitutional Court decisions;

Bound by its own decisions, unless wrong or overruled;
Binds other lower courts.

High Courts: Bound by the Constitutional Court and SCA;

Bound by its own decisions, unless they are wrong;
Single judge is bound by a full bench (two or more judges).

Lower Courts: Must follow precedents of Constitutional Court and SCA;

Bound by decisions of High Court in own province?
Do not create precedent (and so are not reported)

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Case law - important note

• The High Court names have changed over the years – make sure that you learn these names and the
abbreviations

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