General Introduction CH 1 Flashcards
What is THE law?
Consists of all forms of law (common law, statute law, indigenous (customary) law, case law)
What is A law?
Written statute enacted by those legislative bodies which
have the authority to make laws.
Legislation (‘enacted law-texts’ or statute law)
All the different types of enacted legislation, such as ;
1)Acts of Parliament
2)provincial legislation
3)municipal by
laws
4)proclamations
5)regulations
What is an Act?
Refers to a parliamentary statute or the legislation of a
provincial legislature
What is common law?
1) Is composed of the rules of law which were not originally written down, but came to be accepted as
the law of the land.
2) The common law is made up of the
underlying original or basic legal principles
Define an “act”
Refers to
conduct or action such as the act of a
government official or an organ of state.
Indigenous law
1) Refers to the traditional law of the
indigenous black people of South Africa.
2)This may either be
unwritten customary law, or codified
Case law (judicial precedent)
the law as various courts in specific cases before them have decided on it
stare decisis:The precedent
system
Means that judgments of higher courts bind lower courts and courts of equal status
Old-order legislation
!) All legislation enacted before 1994. 2)The term comes from the
schedules of the Interim Constitution (200 of 1993)
3)These laws did not lose their legislative force because they have not have been subjected to constitutional scrutiny.
Subordinate legislation
1)Those legislative texts that have been created by a legislature
delegated with the power (through primary legislation) to create rules and regulations.
2) This would include a minister’s authority to create regulations, the UP Council to create the UP
Statute
New-Order Legislation
Legislation adopted after the promulgation of the Interim Constitution
Primary legislation
Primary legislation refers to those legislative texts enacted by a democratically elected body, during a plenary session according to certain rules and procedures
What are the effects of ultra vires?
A subordinate
legislature overstepping their legislative authority (as prescribed by the primary legislation)
will be acting ultra vires and the legislation will be invalid
ultra vires
outside your scope of authority
The Union of South Africa
1)In 1910 the South Africa Act of 1909 came into force. (Britsh statute)
2) The former 2 Boer Republics (Zuid-Afrikaansche Republiek and Orange Free state) were unified with the
two British colonies (Cape of Good Hope and Natal), to form a single country namely the
Union of South Africa
Constitutionalism
1)The Interim Constitution (Act 200 of 1993) was negotiated by political parties and stakeholders,and adopted by the previous regime’s Parliament. It came into operation on 27
April 1994.
2) The Constitution of the Republic of South Africa, 1996, was promulgated in February 1997.
3) A radical shift from
Parliamentary sovereignty to a sovereign Constitution came with these two Acts. It also
encapsulates a Bill of Rights, and various other important trademarks of modern democracies
Interpretation of Statutes (the judicial understanding of legislation)
1) Deals with those rules and principles which are used to construct the
correct meaning of legislative provisions to be applied in practical
situations.
2) It is about making sense of the total relevant legislative scheme applicable to the situation at hand
Define the term ‘legalese’?
1)refers to the perplexing and specialized language (or social dialect) used by lawyers in legal documents
2)Incomprehensible to the non-lawyer
3) Characterised by wordiness, Latin expressions, passive
verbs, lengthy sentences
The new constitutional order
1) The shift from a sovereign parliament to a sovereign constitution
2) Courts obtained a new authority namely to scrutinise the validity of
legislation against the supreme constitution. Nevertheless, they are still bound by the provisions
therein. In short: the Constitution is supreme
Six provisions of the Constitution
1)section 1 (foundational provision)
2)section 2 (the supremacy clause)
3)section 7 (the obligation clause)
4)section 8 (the application clause)
5)section 36 (the limitation clause)
6)section 39 (the interpretation clause)
The Citation of Constitutional Laws Act
1)Supreme constitution is the lex fundamentalis – the supreme law
of the land.
2)To reflect this position, the citation of the South African Constitution was changed.
3) Where the Constitution originally had an Act number (108 of 1996), this was altered through the Citation of Constitutional Laws Act.
4)Only correct citation of the Constitution is: Constitution of the
Republic of South Africa, 1996
