USING SOURCES OF

LAW
 USING SOURCES OF LAW
• As a law student, you will need to be able to use written sources of
law.
• These sources are necessary to support your argument when writing
a law essay.
• When you are in practice you also need to find sources of law in order
to properly prepare.
• In this chapter, we will be looking at these written sources of law.
• You will learn to distinguish between these sources, and how to use
them.
THE WRITTEN SOURCES OF LAW
• The written sources of law can be divided into primary and secondary
sources .
• South Africa has an uncodified legal system- This means that there is
not only one primary source (code) where the law originates or can
be found.
• South Africa has more than one source.
• The six most important sources of law are listed below:
• Primary sources: The Constitution; Case Law; Acts of Parliament
• Secondary sources: Textbooks; journal articles; reference tools
THE WRITTEN SOURCES OF LAW
Difference between primary and secondary sources of law
• In law the difference between two sources is especially important.
• Some institutions, such as Parliament and the higher courts have the
power to make law- to lay down the rules we all have to obey.
• The most important of these law-making institutions are the
Constitutional Assembly, the National Parliament and the various
superior courts.
• When Parliament passes an Act or a court makes a judgment, the
rules set out in the Act or case are binding- in other words they
contain rules that we have to obey
THE WRITTEN SOURCES OF LAW
• When you write an essay or exam you will have to refer to the law itself.
• The law comprises the rules laid down by the Constitutional Assembly,
Parliament and the courts.
• You will find these binding rules in the primary sources of law.
• Secondary sources are not binding on the courts.
• The most important secondary sources of law are text books and
journal articles written by law professors and other experts.
• Law professors or other legal experts do not have the power to make
law.
PRIMARY SOURCES OF LAW- THE
CONSTITUTION
a) THE CONSTITUTION OF SOUTH AFRICA
• The Constitution of South Africa, 1996 is the supreme law of the country.
• Supremacy of the Constitution- section 2 of the Constitution.
• Until 2005, the Constitution was incorrectly referred to as Act 108 of 1996 and
you will still encounter references to this in older publications.
• Act 5 of 2005 explains that since the Constitution is the supreme law and was
passed by the Constitutional Assembly and not by Parliament, it should not be
given an Act number as if it were just another Act.
• The 1996 Constitution regulates the structure of the state.
• The Constitution has a direct influence on legislation in the sense that legislation
which is in conflict with the Constitution can be struck down by the courts.
 PRIMARY SOURCES OF LAW-
CASE LAW
b) Precedents (Court decisions, case law)
• Courts are institutions that apply the law on a daily basis.
• When people cannot solve their disputes themselves, or when people
are suspected of having committed criminal offences, such cases may
end up in court.
• The court must ascertain the law, apply it to the case and give
judgment.
• The term ‘court’ means the presiding officer, for example the judge or
magistrate.
 PRIMARY SOURCES OF LAW-
CASE LAW
Doctrine of judicial precedent
• Courts must take into account their previous judgments in similar cases, because they are bound to the
approach followed in the past.
• Previous judicial decisions are therefore also a source of law, and the way in which the law was applied
there is authoritative.
• The reason for this lies in the system of judicial precedents, also called the doctrine of stare decisis
which applies in South Africa.
• It originates from English law
• Stare decisis literally means to stand by previous decisions.
• According to this doctrine, previous judgments create (binding) precedent which must be followed.
• The system of judicial precedent means that lower courts are bound by the decisions of the higher
courts, furthermore that a court is also bound by its own previous decisions, unless they are wrong.
• This implies the following: (a) there is a hierarchy of courts (b) judgments must be reported (published)
in law reports so that precedents are easily accessible.
 PRIMARY SOURCES OF LAW-
CASE LAW
Hierarchy of Courts
• Constitutional Court
• Supreme Court of Appeal
• High Courts and Specialised High Courts
• Lower Courts: Lower Courts are bound by judgments of the Supreme
Court of Appeal. In the absence of such applicable judgments they are
bound by the judgments of the High Court in their respective
provinces. The judgments of the lower courts do not serve as
precedents which must be followed; therefore they are not reported.
 PRIMARY SOURCES OF LAW-
CASE LAW
Ratio decidendi & Obiter dicta
• Not everything in a high court judgment creates binding precedent for
lower courts.
• Distinguish between the ratio decidendi and obiter dictum
a)Ratio decidendi?
• Reason for the decision.
• Creates precedent and binding on lower courts.
• Consists of legal principles applied to facts.
 PRIMARY SOURCES OF LAW-
CASE LAW
b) Obiter dicta
• Remarks in passing= judges’ casual remarks concerning the law.
• Not binding but may have persuasive force.
 PRIMARY SOURCES OF LAW-
CASE LAW
Citation/ Case Reference
• A citation (case reference) individualises each reported case, making it easier to find.
• It also eliminates confusion when two cases have the same name.
• An example of a citation
S v Makwanyane and Another 1995 (3) SA 391 (CC)
• A citation consists of
(a) Case Name: S v Makwanyane
(b) Year and Volume Case was reported: 1995 (3)
(c) Series of Law Reports: SA
(d) Page where case report starts: 391
(e) Court in which the case was decided: (CC)
 PRIMARY SOURCES OF LAW-
CASE LAW
(a) Case Name: e.g. S v Makwanyane and Another
Reference will always start with a case name.
• Two parties are usually placed against each other
• In a civil case the plaintiff (or applicants) name is given first.
• It is followed by the defendant (or respondent).
• The v represents ‘versus’ (against).
• In criminal cases the first party will always be the state (S).
• The other party is the accused.
• Before South Africa became a Republic (1961) prosecutions were instituted in the
name of the crown.
• King or queen in Latin is rex or regina, so R refers to the crown
 PRIMARY SOURCES OF LAW-
CASE LAW
(b) Year and Volume in which case was reported: 1995 (3)
• The South African law reports have been published monthly since 1947.
• The reference does not indicate when the case was decided, but when
it was published in the law reports.
(c) Series of Law Reports: SA
SA indicates in which series of law reports the reported case was
included.
The twentieth century is characterised by specialisation and is reflected
in specialist law reports.
 PRIMARY SOURCES OF LAW-
CASE LAW
• Examples of specialist law reports include:
• South African Criminal Law Reports (SACR)- only criminal cases reported.
• Butterworths Labour Law Reports (BLLR)- cases on labour law.
• Butterworths Constitutional Law Reports (BCLR)- constitutional cases.
• Butterworths Arbitration Law Reports (BALR)
(d) Page where case report starts: 391
• The number ‘391’ in the case reference indicates that the specific case
report starts on page 391 of that volume.
• The page number remains constant in the case reference.
 PRIMARY SOURCES OF LAW-
CASE LAW
e) Court where case was decided: (CC)
• CC indicates that the case was decided in the Constitutional Court.
• Other examples include of courts include:
• Supreme Court (SCA)
• Land Claims Court (LCC); Labour Appeal Court (LAC);
• Appellate Division (AD); Cape Provincial Division Reports (CPD); Natal
Provincial Division Reports (NPD); Transvaal Provincial Division
Reports (TPD) etc.
 WHERE CASES ARE REPORTED
• Cases are reported in various series of books called law reports.
• Law reports contain the judgements of the various courts, such the
Constitutional Court, Supreme Court of Appeal and the various divisions
of the High Court of South Africa.
• E.g South Criminal Law Reports (only criminal matters)
• Butterworth Constitutional Law Reports (constitutional matters)
• Butterworth Labour Law Reports (labour law reports)
• Butterworths Arbitration Law Reports (arbitration matters)
• Same case can be reported in more than one set of law reports-referred
to as parallel citation.
 PRIMARY SOURCES OF LAW
c) Acts of Parliament
• The Acts of Parliament are laws that Parliament makes.
• They are also known as statutes.
• They are a type of legislation known as original legislation because Parliament has the inherent
(original) power to make laws.
• Parliament is the highest organ that can pass legislation on the national level.
• Parliament consists of two houses: the National Assembly (NA) and the National Council of
Provinces (NCOP).
• The purpose of the NCOP is to give the provinces a say in national legislation that affects them.
• Subordinate legislation or delegated legislation are regulations made by other officials, such as
government ministers.
• The ministers do no have inherent power to make laws, but Parliament may give them this
power for specific purposes.
 PRIMARY SOURCES OF LAW
• The National Parliament passes several Acts every year to change
existing laws, or to create laws to fill gaps in existing laws or where
existing laws no longer cater for the needs of modern society.
• As Acts are passed they are numbered, starting at 1and ending at the
number of the last Act passed that year.
• Acts of Parliament are cited (referred to) listing the short title of the
Act, then the Act number, and finally the year in which the Act was
first passed, e.g. Divorce Act 70 of 1979.
 PRIMARY SOURCES OF LAW
• Reading and Understanding an Act- Students should bring the
prescribed Act to class so as to be able to read and understand
different parts of legislation.
 PRIMARY SOURCES OF LAW
d) COMMON LAW
• It is basis of modern South African law
• Binding primary source of law
• Mainly entails the general legal principles as received from the
traditional Roman law
• Hybrid source of law with English law influence.
• In certain circumstances courts and legal practitioners have to consult
the original sources ‘old sources’ of the common law to find a solution
to a specific problem [e.g., where the matter is not governed by
legislation or where there is no applicable precedent]
 ENGLISH COMMON LAW
• Based on English customs
• Decisions of courts
• Rules that are developed from court decisions were known as judge-
made laws.
• Doctrine of stare decisis requires that courts follow the decisions of
earlier courts.
• English common law, like South African common law is uncodified.
 ROMAN-DUTCH LAW AS
COMMON LAW OF SOUTH
AFRICA
• Predominantly Roman-Dutch law
• South Africa’s common law is uncodified with Roman-Dutch law as its
foundation and English law with a strong influence.
• English law
• Dutch law
• Roman law
 WHEN IS COMMON LAW
APPLICABLE?
• Applicable when legislation does not govern a particular legal question.
• Legislation has the power to change the principles of common law.
• Can the common law fall away?
• Doctrine of abrogation allows common law rules to be discarded if they
are not used.
• See the case of Green v Fitzgerald 1914 AD 88, where the court could
not find a single judgment reported after 1828 showing the prosecution
of offenders of adultery.
• The court decided that the crime of adultery had been abrogated by
disuse
 DEVELOPMENT OF COMMON
LAW
• To give effect to a right in the Bill of Rights, courts must apply, or if
necessary, develop the common law to the extent that legislation
does not give effect to that right (sec 8(3)).
• Common law should be developed in view or taking into account the
spirit, purport and objects of the Bill of Rights (sec 39(2)).
• The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, provided
such other rights and freedom are consistent with the Bill of Rights.
• Only the CC, SCA & High Court of South Africa have the inherent
jurisdiction (power) to develop the common law (sec 173).
 PRIMARY SOURCES OF LAW
e) Customary Law as source
• Customary law is generally unwritten law.
• It is fixed practices in accordance with which people live because they
regard it as the law.
• Defined: ‘customs and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the culture of those
peoples’ (sec 1 of Recognition of Customary Marriages Act 120 of 1998.
• Customary law is based on :
• a) social practices
• b) customs of a particular group of people.
 CUSTOMARY LAW
• For a social practice or way of doing things to become part of
customary law, members of a particular community must regard it as
legally obligatory.
• A social practice becomes necessary or compulsory because it is a
rule of law.
• Customary law emerges from what people do or what people believe
they ought to do.
 CUSTOMARY LAW
1. Official customary law
• This is a version of African customary law that has been put into writing
in textbooks, legislation and case law.
• It does not reflect the true nature of customary as it is practiced in a
community.
• Examples of official customary law include:
• Recognition of Customary Marriages Act 120 of 1998.
• Communal Land Rights Act 11 of 2004
• Reform of Customary Law Succession and Regulation of Related Matters
Act 11 of 2009
 CUSTOMARY LAW
Living customary law
• This is the law of African people that is actually practiced in communities
and that is capable of evolving over time as society changes.
• Living customary law is a more accurate account of how African people
see customary law.
• Examples include:
• a) Mabena v Letsoalo: held that a mother of a bride may be involved in
the negotiation process of lobolo in terms of living customary law, even
though official versions of customary law created an impression that
only the father of the bride could do so
 CUSTOMARY LAW
• b) in Shilubana v Nwamitwa, the CC was faced with a case where the
Valoyi community collectively decide to enthrone a woman as their
leader. Past practice dictated that a man should hold the position of
chief. The court held that a community is entitled to develop their
customary law, especially where this was done in line with the
Constitution. As such, the changing law was endorsed by the CC.
 PRIMARY SOURCES- CUSTOM
• Unwritten law.
• Entails fixed practices in accordance with which people live and these
are practices which the people have accepted as the law.
• There are requirements which a practice/custom must satisfy to be
recognised as law [Van Breda v Jacobs 1921 AD 330]:
• Van Breda v Jacobs 1921 AD 330 is a compulsory case reading!!
 CUSTOM
1. It must have existed for a long time.
2. It must be observed generally by the community in which it applies.
3. It must be reasonable.
4. Its content and meaning must be certain and clear.

• For examples of customs recognised as law see page 122 of

Beginner's Guide on the Van Breda case.(compulsory case)
 SECONDARY SOURCES OF LAW
• Now we have covered the primary sources of law, let us look at the
secondary sources.
a) Textbooks
• You will be expected to rely heavily on law textbooks in preparing for
classes and then after classes in consolidating and supplementing
notes, in writing law essays, and in the study for tests and exams.
• Your textbooks are an important way of identifying the most
important Acts and cases for the course you are studying, as well as
for identifying other books on the subject and relevant journal articles
that you might need when writing essays.
 SECONDARY SOURCES OF LAW
• The views of the author of a textbook are not binding but may have
considerable persuasive value in court.
• Law Textbooks have the following features:
(a) Table of contents: found at the beginning of a book or at the
beginning of each section of a book.
• Find where a particular topic, issue or area of law is covered in the
textbook.
(b) The Table of Cases: This is usually found at the beginning of a law
textbook.
• The table of cases lists all cases cited and/ or discussed in the textbook.
 SECONDARY SOURCES OF LAW
c) Table of Statutes: this is used to identify whether and where Acts
have been referred to in the textbook.
• Not all textbooks have a table of statute.

d) Title, Headings, and Subheadings: Titles, Headings and Subheadings

are signposts that indicate what you are about to read.
• You can scan the headings and subheadings to give you a general idea
what the text is about or to find particular information.
 SECONDARY SOURCES OF LAW
e) Footnotes and Endnotes:
• Footnotes are those numbered notes that appear at the bottom or foot of the
page.
• Law textbooks have more footnotes than textbooks in other subjects because the
authors of law textbooks have to give the authority for what they are saying.
• In other words, they have to back up what they are saying with proof or evidence
that is valid or true.
• Endnotes generally appear at the end of a chapter or even at the back of a book
serve the same function as footnotes but tend to be used less frequently in law.
• The reason that footnotes are preferred is because the authority for what is stated
in the main text is often contained in the footnotes, which are more convenient to
read together with the main text than endnotes.
 SECONDARY SOURCES OF LAW
b) Journal Articles
• Journals are scholarly magazines on a particular subject.
• Most of the articles in law journals are written by law lecturers ,
although you will also find articles written by practising lawyers ,
judges, and even law students.
• Journal articles are an excellent research resource.
• It is easier to publish a journal article than a whole book on a subject.
• There a several important journals published in South Africa.
 SECONDARY SOURCES OF LAW
• Examples of these journals include:
• South African Law Journal (SALJ)
• South African Journal on Human Rights (SAJHR)
• Stellenbosch Law Review
• Acta Juridica
• De Jure
• South African Yearbook of International Law
• South African Mercantile Law Journal
Etc. etc.
 SECONDARY SOURCES
Structure of a Journal Article
• Journal articles have most, or all, of the following features:
• A Title
• An abstract: provides a general overview of the content of the article.
• An introduction
• Body text, and
• footnotes
 SECONDARY SOURCES OF LAW
c) Reference Tools
• Your library will have a variety or range of reference tools, including
books and databases.
• These provide useful introduction or overview of the subject; clarify
or explain words, phrases or abbreviations, and; provide references to
more substantial sources (textbooks, journal articles, cases, and
statutes.
• LAWSA one of the most useful reference sources is the South African
legal encyclopaedia know as The Law of South Africa (LAWSA).
 SECONDARY SOURCES OF LAW
Legal Dictionaries
• The most important South African legal dictionary is the R.D Claassen’s
Dictionary of Legal Words and Phrases.
Abbreviations Dictionary
• Legal citations use many abbreviations.
• You decode legal abbreviations by using a legal abbreviations dictionary,
such as Donald Raistrick’s Index to Legal Citations and Abbreviations
• Nico M Ferreira and Karen E. Breckon’s South African Legal
Abbreviations etc.