Unit 6- Where To Find The Law Flashcards
1
Q
Authoritative sources of South African law
A
- legislation/statutes/acts of parliament
- court decisions/case law/court cases
- common law
- custom
- African indigenous law
2
Q
Legislation
A
- most important authoritative source of law
- also called statutory law
- made up of rules laid down by national parliament, provincial legislatures and local authorities
- all law is subject to the constitution (the supreme law of the land)
3
Q
Court decisions
A
- if there is no legislation in a specific subject a lawyer will look at previous decisions of SA courts on the subject
- different courts may have interpreted the act differently
- Principle of judicial precedent: lower courts are bound by the decisions of the decisions of higher courts
- requirements: effective system of law reporting & hierarchy of courts
- constitutional court bunds all other courts
- constitutional, Supreme Court of appeal, high,
- ratio decidendi: reason for decision
- obiter dicta: remarks in passing by judge
4
Q
Common law
A
- law of a country which is not contained in legislation
- writings on law by 17th and 18th century Roman Dutch jurists and how it’s been interpreted by our courts
- also influenced by English law
5
Q
Custom
A
- not written rules but develops from customs within the community
- carried down through generations
- has to fulfill certain requirements to be recognized as legal rule
- must be: reasonable, existed for a long time, generally recognized by community, contents must be clear
6
Q
African indigenous law
A
- largely unwritten
- was only applied to blacks
- now recognized as a source of law by constitution
- courts must apply it where applicable
7
Q
Other sources “persuasive influences”
A
- if after using all authoritative sources and no info on matter, may turn to other modern legal systems to look for similar legal principle
- look at other legal systems historically related to ours (France, Germany, Netherlands, England)
