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Topic 1 - Sources of SA law - Unit 4 - Finding, reading and applying…
Topic 1 - Sources of SA law - Unit 4 - Finding, reading and applying legislation
Sources of law
Primary sources
- Tell us what the law is on a particular matter
- Creates binding authority
- Constitution
- Legislation
- Case law
- Common law
=> 17th and 18th century Roman Dutch law as influenced by English Law
-Definition of murder is a Common Law definition
=> Influenced and developed by the Constitution and legislation
-S 39 (2) - when interpreting legislation and developing the Common law or Customary law, every court, tribunal or forum must promote the spirit, purport and object of the BoR
-E.g. Sexual offences Act - Common law definition of rape was amended
*Common law position was no longer keeping up to date with society or consistent with the Constitution, the court must develop the Common Law to be in lone with the BoR before declaring it to be invalid
- Customary law
=> Laws, customs, practices of black South Africans
=> S 39 (3) also applies to Customary law
=> S 39 (3) important for the continued recognition of customary law
- Customs
=> A rule has been followed for many years
=> Van Breda v Jacobs set out the requirements for a custom to be relevant and legally recognized
-Must be in existence for a long time
-Must have been observed for a very long time
-Must be reasonable
-Content and meaning must be clear and certain
Secondary sources
- Explain, criticize, evaluate and analyse primary sources
- Does not create binding authority - persuasive
- Writing of modern authors
=> Persuasive authority of academics
=> Law journals
- International law
- Foreign law
Parliament
National Assembly's most important function is to choose the president, pass laws and oversee executive
- 350 - 400 members - Proportional representation determined by number of votes received in general election
- National Council of Provinces and local government cannot be Members of Parliament
- Members of Parliament are divided into portfolio committees
- Speaker
- Deputy Speaker
National Council of Provinces - represent the different provinces, having equal representation
- Chairperson
- Two deputies (1 permanent and 1 rotating)
Promulgation, passing and assenting
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Legislature
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Parliament may pass legislation on any matter except on functional areas in Schedule 5, because Schedule 5 is the exclusive provincial competencies
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3 levels of government can make legislation
- National level - legislation and regulations at a national level - binding on all other levels - National Assembly
- Provincial level makes provincial legislation - National Council of Provinces
- Municipal councils can make by-laws
Schedule 4B and 5B - Municipal council legislative power to pass by-laws on certain matters contained in Schedule 4B and 5B
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National legislature may only intervene in 5A:
- To maintain national security
- To maintain economic unity
- To maintain essential national standards
- To prevent prejudice against other provinces which may prejudices the interests of another province or the country as a whole, and
- To establish minimum standards for the rendering of services
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