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Sources of Law in South Africa: A Complete Guide

Complete guide to the six sources of South African law: Constitution, legislation, common law, customary law, case law, and international law. Master the hierarchy and how they interact.

Sources of Law in South Africa: A Complete Guide

Area of Law: Jurisprudence & Sources of Law
Reading Time: 12 minutes

🎯 What Are Sources of Law?

Sources of law = where law comes from — the origins of legal rules.

In South Africa, law comes from multiple sources:

Constitution (supreme source)
Legislation (Acts of Parliament, provincial laws, by-laws)
Common law (judge-made law, inherited from Roman-Dutch law)
Customary law (African customary law)
Case law (judicial precedent)
International law (treaties, customary international law)

Hierarchy matters: Some sources override others.

📖 The Hierarchy of Sources

Constitutional Supremacy

Section 2 of the Constitution:

"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid..."

What this means:

┌─────────────────────────┐
│    CONSTITUTION         │ ← SUPREME
├─────────────────────────┤
│    LEGISLATION          │
├─────────────────────────┤
│    COMMON LAW           │
├─────────────────────────┤
│    CUSTOMARY LAW        │
├─────────────────────────┤
│    CASE LAW             │
└─────────────────────────┘

All other sources must comply with the Constitution.

📖 Source 1: The Constitution

Supreme Law

The Constitution (Act 108 of 1996) is the highest law in South Africa.

What it contains:

Founding values (Section 1)
Bill of Rights (Chapter 2)
Structure of government (legislature, executive, judiciary)
Powers and limitations
Amendment procedures

Constitutional Supremacy vs Parliamentary Sovereignty

Old system (pre-1994):

Parliament was supreme
Parliament could pass any law
Courts could not strike down legislation

New system (1994 onwards):

Constitution is supreme
Parliament powerful but subject to Constitution
Courts can strike down unconstitutional laws

Key case: Pharmaceutical Manufacturers v President (2000)

"The Constitution is supreme and all law... must be consistent with it"

How Constitution Creates Law

Direct application:

Bill of Rights creates enforceable rights
Example: Section 9 (equality) directly prohibits unfair discrimination

Framework for legislation:

Constitution requires Parliament to pass certain laws
Example: Section 33 led to PAJA (administrative justice)

📖 Source 2: Legislation

Three Levels

(1) National Legislation

Parliament passes Acts (statutes).

Examples:

Criminal Procedure Act 51 of 1977
Promotion of Administrative Justice Act 3 of 2000
Companies Act 71 of 2008

Process:

Bill introduced in National Assembly or NCOP
Debated, amended
Passed by both houses
President signs (assent)
Published in Government Gazette
Comes into force (on date specified or on publication)

(2) Provincial Legislation

Provincial legislatures pass provincial Acts.

Subjects: Matters in Schedule 4 and 5 (concurrent and provincial competencies).

Examples:

Provincial health services
Education (provincial level)
Housing (provincial)

Limits: Must comply with Constitution and cannot contradict national legislation on concurrent matters.

(3) Municipal By-laws

Municipalities make by-laws (local regulations).

Subjects: Local government matters (water, sanitation, building regulations, etc.)

Example: Johannesburg by-laws on noise pollution

Limits: Must comply with Constitution, national legislation, and provincial legislation.

Subordinate Legislation

Regulations made under authority of an Act.

Who makes them?

Ministers
Directors-General
Municipal councils

Example:

Immigration Act (parent Act)
Immigration Regulations (subordinate legislation)

Limits:

Cannot exceed authority given by parent Act
Must comply with Constitution
Subject to judicial review

📖 Source 3: Common Law

What Is Common Law?

Common law = unwritten law developed by courts over centuries.

In South Africa:

Inherited Roman-Dutch law (not English common law)
Developed by Cape courts in colonial era
Adapted by South African courts post-Union (1910)

Characteristics:

Judge-made (not written in statutes)
Flexible (evolves with society)
Persuasive precedent (courts follow previous decisions but can change)

Examples of Common Law

Contract law:

Requirements for valid contract (offer, acceptance, consensus)
Not in any statute — developed by courts

Delict (tort):

Aquilian action for wrongful harm
Elements: wrongfulness, fault, causation, harm
Roman-Dutch origin, refined by SA courts

Property law:

Ownership
Possession
Registration requirements

Development of Common Law

Section 39(2) of the Constitution:

"When interpreting any legislation, and when developing the common law... every court... must promote the spirit, purport and objects of the Bill of Rights."

What this means:

Courts must develop common law to align with Constitution
Common law not static — evolves

Key Case: Carmichele v Minister of Safety (2001)

Facts:

Woman attacked by man previously arrested but released
Sued police for failure to protect

Issue: Does common law recognize duty to protect?

Held:

Common law duty of care expanded to include state duty to protect citizens
Courts obliged to develop common law in line with constitutional values (dignity, equality, freedom)

Principle: Common law is a living source — courts actively develop it.

📖 Source 4: Customary Law

Recognition

Section 211(3) of the Constitution:

"The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law."

Customary law = Indigenous African law practiced in communities.

Status:

Recognized source of law (equal status with common law)
Must comply with Constitution
Must comply with Bill of Rights

Examples of Customary Law

Family law:

Customary marriages (recognized under Recognition of Customary Marriages Act)
Lobolo
Succession

Land tenure:

Communal land ownership
Traditional leadership

Criminal law:

Community dispute resolution
Restorative justice principles

Development of Customary Law

Living customary law (law as practiced) vs official customary law (codified version).

Courts apply:

Living customary law where possible
Must be proven by evidence (expert testimony, community practice)

Key case: Bhe v Magistrate, Khayelitsha (2005)

Struck down customary law rule excluding women from inheritance
Rule violated equality (Section 9)
Shows customary law subject to Constitution

Conflicts Between Customary and Common Law

How resolved?

Section 211(3): Customary law applies where applicable.

Test:

Is customary law relevant to the parties and issue?
Does it comply with Constitution?
Is there legislation that overrides it?

If yes to all: Customary law applies alongside common law.

📖 Source 5: Case Law (Judicial Precedent)

Doctrine of Precedent

Stare decisis = "stand by decided matters"

Principle: Courts follow previous decisions of higher courts.

Why?

Legal certainty
Consistency
Fairness (like cases treated alike)

Binding vs Persuasive Precedent

Binding Precedent

Lower courts MUST follow higher court decisions.

Hierarchy:

Constitutional Court
      ↓
Supreme Court of Appeal
      ↓
High Courts
      ↓
Magistrates' Courts

Example:

Constitutional Court decides issue
All lower courts must follow that decision

Persuasive Precedent

Courts MAY follow (but not obliged):

Decisions from same level (e.g., one High Court following another High Court)
Foreign court decisions (especially from jurisdictions with similar law)
Academic writing (textbooks, journal articles)

Example:

Western Cape High Court decision is persuasive (not binding) on Gauteng High Court

Ratio Decidendi vs Obiter Dicta

Ratio decidendi = binding part — the legal principle necessary for decision

Obiter dicta = persuasive part — comments not necessary for decision

Only ratio is binding.

Example:

In S v Makwanyane (1995):

Ratio: Death penalty violates right to life and dignity (Sections 11, 10) — BINDING
Obiter: Discussion of ubuntu philosophy — PERSUASIVE

📖 Source 6: International Law

Constitutional Recognition

Section 231: Treaties

Section 232: Customary international law

Section 233: Interpretation consistent with international law

Section 39(1)(b): Courts must consider international law when interpreting Bill of Rights

How International Law Becomes Domestic Law

(1) Customary International Law

Automatically part of South African law (Section 232) unless inconsistent with Constitution or Act of Parliament.

Example: Diplomatic immunity

(2) Treaties

Process (Section 231):

Executive negotiates and signs treaty
Parliament approves (resolution)
Treaty becomes law if:
- Self-executing (directly applicable), OR
- Parliament passes implementing legislation

Example:

Rome Statute (International Criminal Court)
Approved by Parliament
Implemented via Implementation of Rome Statute Act

Interpretation Aid

Section 39(1)(b):

"When interpreting the Bill of Rights, a court... must consider international law."

Section 233:

"When interpreting legislation, every court must prefer any reasonable interpretation consistent with international law..."

Effect: International law influences domestic law interpretation.

Key case: S v Makwanyane (1995)

Court considered international treaties on death penalty
Helped interpret Section 11 (right to life)

📖 How Sources Interact

Example: Defamation Case

Question: Is defamation actionable?

Step 1: Check Constitution

Section 10 (dignity) protects reputation
Section 16 (freedom of expression) protects speech
Courts must balance

Step 2: Check legislation

No comprehensive defamation statute
Some statutory defenses (e.g., qualified privilege)

Step 3: Apply common law

Common law of defamation applies
Elements: publication, unlawfulness, wrongfulness, harm

Step 4: Develop common law if needed

Section 39(2) requires development to align with Constitution
Khumalo v Holomisa (2002): Common law defamation developed to balance dignity vs free speech

Result: All sources work together.

📖 Resolving Conflicts Between Sources

Hierarchy

If conflict:

Constitution wins (Section 2)
If both legislation, national beats provincial (on concurrent matters)
If both common law and legislation, legislation beats common law (Parliament can override)
If both customary and common law, depends on applicability

Example: Customary vs Statute

Scenario: Customary law rule on inheritance vs Intestate Succession Act

Resolution:

Statute overrides customary law if statute specifically addresses customary succession
If statute silent, customary law applies to those subject to it

But: Both subject to Constitution (equality, dignity).

💡 Exam Strategy

How to Identify Applicable Source

Question: "What law governs X?"

Step 1: Check Constitution

Does Bill of Rights apply?
Does Constitution give specific guidance?

Step 2: Check legislation

Is there a statute on point?
National, provincial, or by-law?

Step 3: Check common law

If no statute, common law applies
Has common law been developed to align with Constitution?

Step 4: Check customary law

Are parties subject to customary law?
Does it apply in this context?

Step 5: Check case law

What precedents exist?
Binding or persuasive?

Step 6: Check international law

Any relevant treaties?
Customary international law applicable?

Sample Exam Answer

Question: "A municipality passes a by-law prohibiting all public gatherings. Is this valid?"

Answer:

"Step 1: Constitution Section 17 guarantees right to peaceful assembly. By-law must comply.

Step 2: Legislation Gatherings Act 205 of 1993 regulates assemblies — allows reasonable regulation, not total bans.

Step 3: By-law (subordinate legislation) By-law is subordinate to both Constitution and national legislation.

Analysis:

Total ban violates Section 17 (assembly)
Conflicts with Gatherings Act (allows regulation, not prohibition)
By-law invalid under Section 2 (constitutional supremacy)

Conclusion: By-law unconstitutional and invalid. Municipality may regulate assemblies (time, place, manner) but cannot ban them entirely."

🎓 Summary

Six sources of law in South Africa:

Constitution — Supreme law, all others must comply
Legislation — National, provincial, municipal (by-laws)
Common law — Roman-Dutch law, judge-made, developed by courts
Customary law — African indigenous law, recognized by Constitution
Case law — Judicial precedent (stare decisis)
International law — Treaties and customary international law

Hierarchy:

Constitution supreme
Legislation overrides common law (within constitutional limits)
All sources must comply with Constitution
Courts develop common law and apply customary law in line with Bill of Rights

Key principles:

Constitutional supremacy (Section 2)
Courts must develop common law (Section 39(2))
Courts must apply customary law (Section 211)
International law informs interpretation (Sections 39, 233)

📚 Further Reading

Du Bois et al., Wille's Principles of South African Law (9th ed, Chapter 2)
Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution (1996)
Du Plessis v De Klerk (1996) — horizontal application debate
S v Thebus (2003) — development of common law criminal defenses
Rautenbach, "Sources of Law" in Introduction to Legal Pluralism (2010)

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