Sources of Law in South Africa: Legislation, Case Law, Common Law, and Customary Law Explained

Where does law come from? What makes a rule legally binding in South Africa?

The answer lies in understanding the sources of law — the places from which legal rules originate and derive their authority.

Understanding sources of law is essential for:

• Introduction to law and legal skills modules
• Legal research and writing
• Understanding how law develops and changes
• Exam questions on the South African legal system

This guide covers:

• What sources of law are
• The hierarchy of sources (which source trumps which?)
• The five main sources in South Africa
• Examples of legislation and case law
• How sources interact

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What Are Sources of Law?

Definition:
Sources of law are the origins from which legal rules derive their authority and binding force.

Why it matters:
Not all rules are legally binding. To know whether a rule is "law," you must identify its source.

Example:

• A statute (Act of Parliament) is law — it's binding.
• A company policy is not law — it's just an internal rule.

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The Hierarchy of Sources in South Africa

Not all sources are equal. South Africa has a hierarchy of sources:

1. The Constitution (Supreme Law)

Authority: Section 2 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 this means:
The Constitution is the highest source. All other sources must comply with it.

If any law (legislation, common law, customary law) conflicts with the Constitution, it's invalid.

Example:
In S v Makwanyane (1995), the Constitutional Court declared the death penalty unconstitutional — even though it was authorized by legislation. The Constitution trumped the statute.

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2. Legislation (Statutes)

Authority: Acts of Parliament, provincial legislation, municipal by-laws.

Hierarchy within legislation:

• National legislation (Acts of Parliament) > Provincial legislation > Municipal by-laws
• Later legislation repeals earlier legislation if there's a conflict

Legislation trumps common law (except where the Constitution protects common law rights).

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3. Case Law (Judicial Precedent)

Authority: Court judgments (especially from higher courts).

Binding vs. persuasive:

• Higher court decisions bind lower courts (vertical stare decisis)
• Same-level court decisions are persuasive (horizontal stare decisis)

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4. Common Law

Authority: Unwritten law developed through centuries of court decisions (inherited from Roman-Dutch law).

Examples: Contract law, delict (tort), property law.

Common law can be changed by:

• Legislation (statute overrides common law)
• Court decisions (courts develop common law incrementally)

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5. Customary Law

Authority: Indigenous African law recognized by the Constitution (Section 211).

Status:
Customary law has equal status with common law, but it must comply with the Constitution and legislation.

Example:
Customary marriages are recognized under the Recognition of Customary Marriages Act 120 of 1998.

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6. Academic Writing (Persuasive, Not Binding)

Authority: Legal textbooks, journal articles, commentaries.

Role: Courts may refer to academic works for guidance, but they're not binding.

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The Five Main Sources of Law in South Africa

1. The Constitution

What it is:
The supreme law of South Africa, adopted in 1996.

Key features:

• Establishes the structure of government (legislature, executive, judiciary)
• Protects fundamental rights (Bill of Rights, Chapter 2)
• Sets out constitutional principles (democracy, rule of law, separation of powers)

Authority:
Section 2: The Constitution is the supreme law. Any law inconsistent with it is invalid.

Examples:

(a) Bill of Rights (Chapter 2):

• Section 9: Equality (no unfair discrimination)
• Section 10: Human dignity
• Section 11: Right to life
• Section 12: Freedom and security of the person
• Section 16: Freedom of expression
• Section 25: Property rights

(b) Constitutional Court judgments interpreting the Constitution:

• S v Makwanyane (1995): Abolished death penalty
• Minister of Home Affairs v Fourie (2006): Legalized same-sex marriage
• Bhe v Magistrate, Khayelitsha (2005): Struck down discriminatory customary law rules

How to cite:
"Section 9 of the Constitution" or "The Constitution, s 9"

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2. Legislation (Statutes)

What it is:
Written law enacted by a legislative body (Parliament, provincial legislature, municipality).

Types of legislation:

(a) Acts of Parliament (National Legislation)

Laws passed by the National Assembly and National Council of Provinces.

Examples:

How legislation works:

• Parliament debates and passes a Bill.
• The President signs it into law.
• It's published in the Government Gazette.
• It comes into force on a specified date (commencement date).

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(b) Provincial Legislation

Laws passed by provincial legislatures on matters within provincial competence (e.g., health, education, housing).

Example:
Western Cape Liquor Act 4 of 2008 (regulates liquor licensing in the Western Cape).

Authority:
Provincial legislation must comply with:

• The Constitution
• National legislation (where national legislation takes precedence)

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(c) Municipal By-Laws

Local laws passed by municipalities (cities, towns).

Examples:

• By-laws regulating parking, noise, waste disposal, street trading

Authority:
By-laws must comply with:

• The Constitution
• National legislation
• Provincial legislation

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(d) Subordinate Legislation (Regulations)

Rules made by the Executive (ministers, government departments) under authority granted by an Act of Parliament.

Example:
The National Health Act 61 of 2003 authorizes the Minister of Health to make regulations on health standards.

Authority:
Regulations must:

• Be authorized by the parent Act
• Not exceed the scope of the authorization
• Comply with the Constitution

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3. Case Law (Judicial Precedent)

What it is:
Law developed through court judgments. Courts interpret the Constitution, legislation, and common law.

How it works: Doctrine of Precedent (Stare Decisis)

Vertical stare decisis:
Higher courts bind lower courts.

Hierarchy of courts:

1. Constitutional Court (highest on constitutional matters)
2. Supreme Court of Appeal (highest on non-constitutional matters)
3. High Courts (provincial divisions)
4. Magistrates' Courts (lower courts)

Rule:
A judgment from a higher court is binding on all lower courts.

Example:
If the Constitutional Court rules that a statute is unconstitutional, all courts must follow that ruling.

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Horizontal stare decisis:
Courts at the same level are not bound by each other, but they should follow each other's decisions for consistency (persuasive value).

Example:
The Gauteng High Court is not bound by a Western Cape High Court judgment, but it should consider it.

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Ratio decidendi vs. Obiter dicta:

(a) Ratio decidendi (binding):
The legal principle or rule on which the court's decision is based.

This is the part that binds lower courts.

(b) Obiter dicta (persuasive):
Comments or observations made in passing that are not essential to the decision.

This does NOT bind lower courts (but it may be persuasive).

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Examples of Leading Case Law:

How to cite case law:
S v Makwanyane 1995 (3) SA 391 (CC)

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4. Common Law

What it is:
Unwritten law inherited from Roman-Dutch law and developed over centuries through court decisions.

Key areas governed by common law:

• Contract law (offer, acceptance, breach, remedies)
• Delict (tort) (negligence, defamation, vicarious liability)
• Property law (ownership, possession, servitudes)
• Family law (marriage, divorce — now largely codified)

How common law develops:

• Courts apply and adapt old Roman-Dutch principles to modern South African conditions.
• Courts develop common law incrementally through judgments.

Can legislation override common law?
Yes. Legislation (statutes) can replace or modify common law.

Example:
The Marriage Act 25 of 1961 codifies (writes into statute) parts of the common law on marriage.

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Examples of Common Law Principles:

(a) Contract law:

• Pacta sunt servanda: Agreements must be kept (binding contracts must be performed).
• Caveat subscriptor: Let the signer beware (you're bound by what you sign, even if you didn't read it).

(b) Delict (tort):

• Aquilian action: Claim for damages for wrongful, negligent harm to property or person.
• Actio iniuriarum: Claim for damages for infringement of personality rights (dignity, privacy, reputation).

(c) Property law:

• Rei vindicatio: Action by owner to recover possession of property.

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Leading Cases Developing Common Law:

(a) Delict:

• Kruger v Coetzee (1966): Established the test for wrongfulness in delict.
• Minister of Safety and Security v Van Duivenboden (2002): Police liable for negligent conduct causing harm.

(b) Contract:

• Sasfin v Beukes (1989): Public policy can render a contract unenforceable.
• Botha v Rich (2014): Development of common law on suretyship.

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5. Customary Law (Indigenous Law)

What it is:
The indigenous law of African communities in South Africa.

Constitutional recognition:
Section 211(3): Courts must apply customary law when applicable, subject to the Constitution and legislation.

Key features:

• Oral tradition (historically unwritten, now increasingly codified)
• Governs family law, succession, traditional leadership
• Must comply with the Bill of Rights (e.g., no unfair gender discrimination)

Legislation recognizing customary law:

• Recognition of Customary Marriages Act 120 of 1998: Recognizes customary marriages as valid.
• Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009: Reformed discriminatory succession rules.

Leading cases:

(a) Bhe v Magistrate, Khayelitsha (2005):
Issue: Customary law rule that only male heirs could inherit violated equality.
Holding: Rule was unconstitutional (unfair gender discrimination). Reformed by legislation (Customary Succession Act).

(b) Gumede v President of the RSA (2009):
Issue: Can women married under customary law be treated as minors?
Holding: No. Gender discrimination in customary marriages is unconstitutional.

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How Sources Interact: Examples

Example 1: Legislation Overrides Common Law

Scenario:
At common law, only opposite-sex couples could marry.

What changed:
The Civil Union Act 17 of 2006 (legislation) amended the common law to allow same-sex marriages.

Result:
Legislation (Civil Union Act) overrode common law.

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Example 2: Constitution Overrides Legislation

Scenario:
The Criminal Procedure Act authorized the death penalty as a sentence for murder.

Constitutional challenge:
In S v Makwanyane (1995), the Constitutional Court held that the death penalty violates:

• Section 11 (right to life)
• Section 12(1)(e) (cruel, inhuman, degrading punishment)

Result:
The Constitution overrode the Criminal Procedure Act. The death penalty was abolished.

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Example 3: Court Develops Common Law

Scenario:
At common law, a wrongful act (delict) required fault (intention or negligence).

Development:
In Telematrix v Advertising Standards Authority (2006), the Constitutional Court held that strict liability (liability without fault) can apply in certain cases, especially where constitutional rights are at stake.

Result:
The court developed the common law to align with constitutional values.

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Example 4: Customary Law Must Comply with Constitution

Scenario:
Customary law rule: Women cannot inherit from their deceased fathers (only male heirs inherit).

Constitutional challenge:
In Bhe v Magistrate, Khayelitsha (2005), the Constitutional Court held the rule violated Section 9 (equality) — unfair gender discrimination.

Result:
The Constitution invalidated the customary law rule. Legislation (Customary Succession Act) reformed the rule.

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Summary: The Hierarchy

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Study Tips: Mastering Sources of Law

1. Memorize the Hierarchy

Top to bottom:

1. Constitution (supreme)
2. Legislation
3. Case law
4. Common law
5. Customary law

Rule: Higher sources override lower sources.

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2. Know the Difference: Binding vs. Persuasive

Binding:

• Constitution (on all courts and organs of state)
• Legislation (on everyone)
• Higher court judgments (on lower courts)

Persuasive (not binding):

• Same-level court judgments
• Obiter dicta
• Academic writing

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3. Understand How Courts Develop Law

Courts develop law by:

• Interpreting legislation
• Developing common law (incremental changes)
• Declaring laws unconstitutional (judicial review)

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4. Cite Sources Correctly

Constitution:
Section 9 of the Constitution

Legislation:
Criminal Procedure Act 51 of 1977, s 35

Case law:
S v Makwanyane 1995 (3) SA 391 (CC)

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5. Use Examples

Always illustrate sources with real examples:

• Constitution: Section 9 (equality)
• Legislation: Companies Act 71 of 2008
• Case law: S v Makwanyane (1995)
• Common law: Contract law principles (pacta sunt servanda)
• Customary law: Recognition of Customary Marriages Act 120 of 1998

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Common Mistakes Students Make

❌ Mistake 1: Thinking Legislation Is the Highest Source

Wrong. The Constitution is the highest source. Legislation must comply with the Constitution.

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❌ Mistake 2: Confusing Common Law with Customary Law

Common law: Roman-Dutch law (European origin).
Customary law: Indigenous African law.

They're different sources.

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❌ Mistake 3: Assuming All Court Judgments Are Binding

Only higher court judgments bind lower courts.

Same-level courts are not bound by each other (but should follow for consistency).

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❌ Mistake 4: Ignoring the Constitution's Supremacy

The Constitution is supreme. If any law (legislation, common law, customary law) conflicts with it, the Constitution wins.

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Exam Example: Applying Sources of Law

Problem Question:

A statute (Act of Parliament) provides that all children born out of wedlock cannot inherit from their deceased fathers. The child of an unmarried couple challenges this law. Is the statute valid?

Answer:

Step 1: Identify the Sources

Legislation: The statute (Act of Parliament).

Constitution: Section 9 (equality).

Step 2: Apply the Hierarchy

The Constitution is the supreme law (Section 2). All legislation must comply with it.

Step 3: Does the Statute Comply with the Constitution?

Section 9 analysis (equality):

• Does the statute differentiate based on a listed ground?
  Yes. It treats children born out of wedlock differently from children born in wedlock (birth = analogous to listed grounds like social origin).

• Is the differentiation unfair?
  Yes. Children born out of wedlock have no control over their parents' marital status. Denying them inheritance rights impairs their dignity and perpetuates stigma.

Conclusion: The statute violates Section 9 (equality).

Step 4: Can It Be Justified Under Section 36?

The state must show the limitation is reasonable and justifiable.

Likely argument: Protecting "traditional family values."

Court's response: This purpose is not sufficiently important to justify unfair discrimination against children. Less restrictive means exist (e.g., require proof of paternity, but don't exclude all children born out of wedlock).

Conclusion: The limitation is not justified.

Final Conclusion:

The statute is unconstitutional and invalid. The Constitution (supreme law) overrides the statute.

Remedy: The court will declare the statute invalid. Parliament must amend it.

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Conclusion

Sources of law are the foundation of the South African legal system. They tell us:

• Where law comes from
• Which law takes precedence
• How law develops and changes

Master the hierarchy:

1. Constitution (supreme)
2. Legislation
3. Case law
4. Common law
5. Customary law

Remember:
The Constitution is the highest source. All other sources must comply with it.

If you understand sources of law, you'll understand how the entire legal system works.

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Related Reading

• The Constitution Explained: South Africa's Supreme Law
• How to Read a Case: Understanding Ratio Decidendi and Obiter Dicta
• Common Law vs. Customary Law: Key Differences
• Separation of Powers Explained

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