Sources Of Law In The South African Legal System Flashcards
(13 cards)
What are the primary sources of South African Law?
- Legislation/statutes/Acts of parliament
- Court decisions/case law/court cases
- Common law
- Custom
- African indigenous law.
What is the significance of the Constitution in South African Law?
The Constitution is a primary source of law that is binding and authoritative. It is the supreme law of the Republic.
What does Section 2 of the Constitution state?
Section 2 states: ‘The supremacy of the Constitution. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’
What is legislation in the context of South African Law?
Legislation is law laid down by an organ of the state with the power to do so, embodied in writing as ‘statutes’ or ‘Acts’.
Who has the power to pass legislation at the national level in South Africa?
Parliament is the highest organ that can pass legislation on the national level, empowered by the Constitution.
What is the doctrine of judicial precedent?
The doctrine binds courts to uphold the law as expressed in previous decisions of superior courts and its own decisions.
What is the principle of stare decisis?
Stare decisis means ‘to stand by decisions’, indicating that the law applied in specific situations should be applied similarly in similar situations.
What is common law in South Africa?
Common law refers to the law of a country not contained in legislation, including writings of Roman-Dutch jurists and interpretations by courts.
How does customary law develop?
Customary law develops from the habits of a community and is passed down through generations, not consisting of written rules.
What are the requirements for a customary rule to be recognized as a legal rule?
- It must be reasonable.
- It must have existed for a long time.
- It must be generally recognized and observed by the community.
- The contents must be certain and clear.
What case established the validity of a local custom among fishermen?
In Van Breda v Jacobs (1921), a local custom among fishermen was recognized as valid based on specific requirements.
How is customary law recognized in South Africa today?
Customary law is now recognized by the Constitution as a source of law that must be applied if applicable.
What is the definition of customary law according to the Recognition of Customary Marriages Act?
Customary law is defined as the ‘customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people.’
