WORLD LEGAL SYSTEM PROJECT

Dr. RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY

Final Draft on: - South African Legal

System

SUBMITTED BY:

UNDER THE GUIDANCE OF:

SPARSH YADAV

Mr. MALAY PANDEY

ROLL NO: 146

LEGAL TEACHERS

SECTION B

DR. RAM MANOHAR LOHIYA

B.A. LLB (Hons.), SEMESTER I

NATIONAL LAW UNIVERSITY

WORLD LEGAL SYSTEM PROJECT

WORLD LEGAL SYSTEM PROJECT

ACKNOWLEDGMENT
I would like to express my gratitude towards all those whose help and
constant support the project would not have reached its current facet. I would
take advantage of this situation to thank my parents and my guardians without
whose constant support and guidance, I really owe it a lot to them.
However, foremost I would like to thank Mr. Malay Pandey, my teacher for his
kind guidance and for quenching my queries on many doubts and technicalities
which I came up during the making of this project; this project would not have
seen the light of the day without his constant direction and guidance.
I would also like to thank all of my friends and seniors who aided me along the
way. I must also extend my gratitude to the library and library personnel who
provided me with research material and good books to work upon

INTRODUCTION

WORLD LEGAL SYSTEM PROJECT

For taxonomic purposes and ease of organisation comparatists have placed legal
systems in legal families, though it is universally admitted that the idea of a
legal family does not correspond to a biological reality; it is no more than a
didactic device. We have a mixed legal system an unusual blend of sources of
law which apply as the accidental result of the history of the country and its
constituent parts. The laws in force in 1994, some dating back to the Roman law
of the sixth century AD, and to English law to a considerable extent when parts
of the country were colonized, continue to apply now but subject of course to
the constitution. In the website produced at the Faculty of Law of the University
of Ottawa with the help of the Supreme Court of Canada Library on worlds
legal systems, the categories of legal systems are cited as civil law, common
law, customary law, Islamic law, Talmudic law, mixed law and dependent
territories. The use of the term mixed law is then explained: The term mixed
was selected arbitrarily over hybrid or composite. It should not be
understood in the restricted sense employed by some authors. We will thus find
in this category countries in which two or more legal systems apply
concurrently or interactively, as well as those in which systems are rather
juxtaposed because they apply to more or less clearly distinct fields. According
to this source, mixed systems appear in ten categories: mixes of civil law and
common law (3.47% of the world population); civil law and customary law
(28.54%); civil law and Muslim law (3.14%); common law and customary law
(2.94); common law and Muslim law (5.25%), civil law, Muslim law and
customary law (3.62%); common law, Muslim law and customary law
(19.17%); civil law, common law and customary law (0.8%); Common law,
Muslim law and civil law (0.23%); and of civil law, common law and Talmudic
law (0.09%). The number of jurisdictions that fall into the mixed systems with
civil law category are 65 (19.12% of the worlds legal systems), mixed
systems with common law are 53 (15.59 %), mixed systems with customary
law are 54 (15.88%) and mixed systems with Muslim law are 33 (9.70 %).
South Africa's legal system, like the rest of the political system, was radically
transformed as the apartheid-based constitutional system was restructured
during the early 1990s. Nevertheless, many laws unrelated to apartheid
continued to be rooted in the old legal system. Thus, the justice system after
1994 reflected elements of both the apartheid-era system and nondiscriminatory
reforms

RESEARCH QUESTIONS
4

WORLD LEGAL SYSTEM PROJECT

This research tries to answer following questions:How did the South African Legal System turned out to be a Mixed legal
system?
What is its court structure and how important is its role?
What are its sources of law?
What changes were brought in it from time to time?
What is the relationship between legislative, executive and the judiciary?
What role do judges and lawyers play in the legal system?

What are the different sections of law under which a person can seek
remedy?

SCOPE AND OBJECTIVE

This research gives a vivid image of South African Legal System. The
research gives all information regarding the system ranging from its history
to its current position. It throws light upon the factors which led to the
emergence of this legal system.

RESEARCH METHODOLOGY
The study of this project shall involve Doctrinal Research methodology. Study
of this project will be done through books, articles, magazines, journals and
internet database.

LITERATURE REVIEW
The book The Making of South African Legal Culture 1902-1936: Fear,
Favour and Prejudice by Martin Chanock which gives an insight into The
development of the South African legal system in the early twentieth century
which was crucial to the establishment and maintenance of the systems which
underpinned the racist state, including control of the population, the running of
the economy, and the legitimization of the regime. Martin Chanock's highly
illuminating and definitive perspective on that development examines all areas
of the law: criminal law and criminology; the Roman-Dutch law; the State's
5

WORLD LEGAL SYSTEM PROJECT

African law; and land, labour and 'rule of law' questions. His revisionist analysis
of the construction of South African legal culture illustrates the larger processes
of legal colonization, while the consideration of the interaction between
imported doctrine and legislative models with local contexts and approaches
also provides a basis for understanding the re-fashioning of law under
circumstances of post-colonialism and globalization.

Table of Contents
TOPICS

PAGE NUMBERS
6

WORLD LEGAL SYSTEM PROJECT

1) HISTORICAL
BACKGROUND--------------------------------------------------------------7
2) STRUCTURE OF
STATE---------------------------------------------------------------------------8
3) LEGISLATIVE AND EXECUTIVE
BRANCHES-----------------------------------9
4) THE LEGAL
SYSTEM-----------------------------------------------------------------------------9
5) SOURCES OF
LAW---------------------------------------------------------------------------------10
6) STRUCTURE OF
COURT------------------------------------------------------------------------13
7) INTERNATIONAL
LAW-----------------------------------------------------------------------16
8) BIBLIOGRAHY------------------------------------------------------------------------------------17

WORLD LEGAL SYSTEM PROJECT

HISTORICAL BACKGROUND
The South African legal system is widely known as one that is basically premised on
Roman-Dutch law. The reasons are historical. In the mid-seventeenth century, Dutch settlers
began to occupy the part of South Africa now known as the Western Cape. In 1806, English
forces defeated the Dutch settlers and took the Cape of Good Hope as a British possession.
South African law reflects this history of successive colonial governance. The 'common law'
of the country is based on the 'Roman-Dutch' law of the original Dutch settlers. This is
civilian law - Roman law as interpreted by the Dutch writers of the 17 th and 18th centuries.
Thus originally, important primary sources of South African law were the treatises of authors
such as Grotius, Johannes Voet, Simon Groenewegen and Johannes van der Linden. Law was
modified or expanded by statute.
When the British took possession of the Cape in 1806 they did not impose their
substantive legal system in a formal way. Instead, it was decided that the local Roman-Dutch
law would remain in force. However, English procedural law was adopted and this had a
tendency to influence substantive provisions. Furthermore, Roman-Dutch Law did not always
cater for the requirements of the modern society that developed during the 19 th century,
necessitating legislative innovation, which was often based on English acts and interpreted
using relevant English precedent. The advocates and judges of the superior courts were
usually trained in England and tended to rely on their English treatises. As a result of such
factors, the Roman-Dutch law of the Cape Colony was overlaid with a heavy English law
influence. The Cape legal system was, in turn, followed by the British colony in Natal, and
also, in many respects, by the Zuid-Afrikaansche Republiek (the Transvaal) and the
Oranjevrijstaat (the Orange Free State) - the Boer Republics established by Dutch trekkers in
the mid-nineteenth century.

WORLD LEGAL SYSTEM PROJECT

After the South African Anglo-Boer War (1899 -1902), Britain took control of all
parts of South Africa, and in 1910, a Union of South Africa was established with four
provinces: the Cape, Natal, the Orange Free State, and the Transvaal. Following this
amalgamation, the legal systems of the four territories were made more consistent, partly
through legislative innovation, and partly through the activities of the new Appellate Division
of the Supreme Court, the highest court country-wide in terms of the 1909 South Africa Act.
Today, many commentators regard the resulting legal system as a truly hybrid system,
a mix of English common law and civilian Roman-Dutch legal principles. While many legal
doctrines and the arrangement of the law in general can be traced to a civilian heritage, court
procedure owes much to the common law tradition, with adversarial trial, detailed case
reports (which include dissenting judgments), and adherence to precedent.
The formal legal system is dominated by this European heritage. During the period of
English governance, a system of 'Native Administration' was established. According to this
policy, indigenous people could rule themselves according to indigenous law in certain
matters, for example rules of marriage and succession. The colonial state retained exclusive
jurisdiction over matters such as serious crime. Matters of customary law were heard by
chiefs and headmen, with a right of appeal to the Native Appeal Court, staffed by magistrates.
Today, South Africa retains a plural legal system, with customary law remaining a legal
system for those who wish to be subject to it. The rules of customary law may not, however,
conflict with the South African Constitution.
Segregationist policies were evident from earliest times, and were an aspect of official
policy during the pre-1948 era. However, 'apartheid' became the official South African
government policy following the electoral victory of the National Party in 1948. Key
legislation creating this policy included the Population Registration Act 30 of 1950
(classifying the South African population into 'racial groups'); the Group Areas Act 41 of
1950 (providing for the segregation of residential and other areas) and a plethora of other acts
designed to segregate every aspect of life, including public administration, education, health
services, employment, transport and public amenities. 'Grand apartheid' divided the territory
of South Africa into separate 'states', some of which (the Transkei, Boputhatswana, Venda and
the Ciskei) were given 'independence' by the South African government. In terms of South
African law, the 'citizens' of such states lost their South African citizenship. Residents of the
TBVC states, as well as those of other 'ethnic homelands' were not permitted to remain in
'white South Africa' without permission, unless they qualified to do so in terms of Act 67 of
1952 or other statutory exemptions (the 'pass laws').
As resistance to the apartheid regime intensified from the 1950's onwards, the South
African government implemented legislation giving the state wide powers to detain arrest,
imprison and ban its opponents. Successive states of emergency were proclaimed during the
1980's. In 1990, the government began to negotiate with its opponents, a process that resulted
in the Interim Constitution Act 200 of 1993. Democratic elections were held in 1994, and
Nelson Mandela elected as President. In 1997, the final Constitution, Act 108 of 1996, came
9

WORLD LEGAL SYSTEM PROJECT

into effect. South Africa is a constitutional state, with a supreme constitution and a Bill of
Rights. The documentation from the Constitutional Assembly is available from the University
of Cape Town Law Faculty.

STRUCTURE OF THE STATE

The South African Constitution of 1996 provides for the separation of the legislative,
executive and judicial arms of government. Although South Africa is a unitary state, the
Constitution has elements of federalism, and the nine provinces (Eastern Cape; Free State,
Gauteng, KwaZulu-Natal, Limpopo (previously called the Northern Province), Mpumalanga,
Northern Cape, North West and the Western Cape) may pass laws on certain matters such as
education, health and housing. However, the national legislature retains its legislative power
in these areas, and may override provincial legislation in the event of a conflict. Exclusive
provincial legislative competence is reserved for less important matters such as abattoirs and
liquor licenses. The provinces have a role in drafting national legislation through their
participation in the National Council of Provinces, the second house of Parliament.

LEGISLATIVE AND EXECUTIVE BRANCHES

The National Parliament is bicameral and consists of:
1) The National Assembly, elected for a 5 year term according to a system of
proportional representation, and comprising between 350 and 400 members,1 and
2) The National Council of Provinces, with ten representatives from each province, who
vote as a block.2
The National Assembly's Parliamentary Portfolio Committees and the National Council of
Provinces' Select Committees oversee the work of the executive organs within the sphere of
their portfolios and discuss proposed Bills in these areas.
The President is the Head of State and governs with a Cabinet comprising Ministers and
Deputy Ministers who head the various national government departments. Each province is
headed by a Premier and an Executive Council. Provided they have the capacity to do so,
provinces may establish executive departments for public administration. Thus provinces may
establish provincial departments of Education, Health, etc.
1 Ind. Const. 46(1).
2 Ind. Const. 60.
10

WORLD LEGAL SYSTEM PROJECT

National bills usually emanate from government departments, and may result from previous
consultation through the publishing of green papers (discussion documents) and white papers
(cabinet approved policy documents). Draft bills may be published for comment in the
Government Gazette, but bills are published as a separate series, undergoing several
amendments as a result of discussion in the portfolio committee or select committee before
final adoption.
When a bill has been passed by both houses of Parliament it goes before the State President
for assent and is then published in the Government Gazette as an Act. Sometimes, a
commencement date is proclaimed separately by the President, also by notice in the Gazette.
Specific regulations in terms of the various acts are drawn up by the ministries concerned,
and published in the Government Gazette.

THE LEGAL SYSTEM

INTRODUCTION
South Africa has an uncodified legal system; meaning that there are multiple sources of law
rather than one primary source (a code) where the whole law can be found.3 South African
law consists of the Constitution which is the supreme law of the country, legislation (acts of
the national and provincial legislatures, and governmental regulations), judicial precedent, the
common law (rules developed by previous decisions of superior courts, and rules and
principles discussed in the 'old Roman-Dutch authorities'), custom (or conventions),
indigenous law, international law and the writings of authoritative publicists of the law. The
present legal system is premised on the principle of supremacy of the Constitution. This has
been the case since the adoption of the Interim Constitution in 1994 and subsequently the
1996 Final Text of the Constitution. Previously, the system that ran was premised on
Parliamentary sovereignty or supremacy, though others have argued that in practice, it was
supremacy of the Executive.

SOURCES OF LAW
In this section the sources of law are discussed in brief.

The Constitution

3 D Kleyn & F Viljoen, Beginners Guide for Law Students, (Juta: 2002)
11

WORLD LEGAL SYSTEM PROJECT

As mentioned above, the Constitution is the supreme law of the country. Section 2 of the
Constitution provides that the Constitution is the supreme law of the Republic and that law
or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
This position represents a fundamental paradigm shift from the previous constitutional order
that rested on the principle of parliamentary supremacy.
The Constitution applies both vertically, i.e. regulating the affairs of Government in relation
to persons (both natural and juristic); and horizontally, i.e. regulating affairs between or
among persons (both natural and juristic). This is particularly so with regard to the
application of the Bill of Rights under Chapter 2 of the Constitution. Section 8(l) of the
Constitution provides that [the] Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state; whilst Section 8(2) states that a provision of
the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable,
taking into account the nature of the right and the nature of any duty imposed by the right.
Taken together, these provisions show that while the general principle remains that the Bill of
rights primarily binds organs of the State; in appropriate cases, it also binds non-state actors.
The horizontal application of the Constitution has a number of fundamental implications on
the whole discourse on South African law as we know it. First, such application affirms the
status of the Constitution as supreme law; and not merely as supreme public law. This leads
us to the second fundamental implication which is that through the concept of horizontal
application, the Constitution has substantially blurred the classical distinction that draws clear
and permanent demarcations between public law and private law.4 In Fose v Minister of
Safety and Security5, Ackermann J, reading the judgment of the Court, seriously questioned
the efficacy of the public law and private law demarcation in South Africa, stating that:
While the foreign jurisprudence referred to emphasises that the proper protection of
entrenched fundamental rights requires a public law remedy, it is preferable, for the
present, to refer to the appropriate relief envisaged by section 7(4) merely as a
constitutional remedy. It is both undesirable and unnecessary, for purposes of this case, to
attempt to do that which has seemingly eluded scholars in the past and given rise to wide
differences of opinion among them, namely, the drawing of a clear and permanent line
between the domains of private law and public law and the utility of any such efforts. Much
of this interesting debate is concerned with an analysis of power relations in society; the shift
which has taken place in the demarcations between private law and public law; how
functions traditionally associated with the state are increasingly exercised by institutions with
tenuous or no links with the state; how remedies such as judicial review are being applied in
an ever widening field and how legal principles previously only associated with private legal
relations are being applied to state institutions. Suffice it to say that it could be dangerous to
4 JWG van der Walt, Law and Sacrifice: Towards a Post-apartheid Theory of Law (Wits University Press:
2005), 3-4.

5 (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June 1997)
12

WORLD LEGAL SYSTEM PROJECT

attach consequences to or infer solutions from concepts such as public law and private
law when the validity of such concepts and the distinctions which they imply are being
seriously questioned.
The result of this blurring of such distinction seems evident from the important change
introduced through Section 11 of Act No. 34 of 2001 whereby the office of Chief Justice of
South Africa shifted from the head of the Supreme Court of Appeal to the head of the
Constitutional Court. The reasoning was clear: the Constitution is the supreme law of the
land, whether such law is public or private, and hence the head of the Court that has the final
word on Constitutional matters must necessarily be the Chief Justice of the country.
The concept of constitutional supremacy also informs the interpretation and development of
other forms of law. Thus for instance, Section 39(2) of the Constitution provides that when
interpreting any legislation, and when developing the common law or customary law, every
court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
Thus the common law and customary law must be interpreted in a manner that furthers the
values of the Constitution.

Legislation
Legislation may be defined as the rules of law made by or under the authority of the
legislature.6 There are various categories of legislation. These include (1) Penal legislation
that regulates the criminal law regime; (2) Regulatory legislation that regulates the manner in
which some public affairs (sometimes even private affairs) or institutions are run; (3)
Financial legislation that regulates financial matters and institutions in the country; 7 and
(5)Social legislation that deals with the day to day running of the social system, particularly
matters relating to the implementation of economic, social and cultural rights.8
Parliament, in South Africa comprising the National Assembly and the National Council of
Provinces, is the highest national legislative authority.9 Other state organs, such as Provincial
Legislaturs and Municipal Councils are responsible for passing provincial Acts and by-laws

6 See RE Kapindu, Malawi, Globalex

7 Financial legislation as described here is without doubt a form of regulatory legislation; but it is
cited as a separate aspect here because of the huge implications that it has on the ordering of the
modern society in economic terms. This can, for instance, be gleaned from section 55(1) (b) that states
that Parliament may initiate or prepare legislation, except money Bills.
8 Ibid
9 See Section 43 of the Constitution. See also Kleyn & Viljoen, nabove, 44.
13

WORLD LEGAL SYSTEM PROJECT

respectively; and these are termed subordinate legislation. 10 Legislation has been described
as a very powerful source of law that, in principle, binds the whole society.11 It is said to be
the quickest and most effective way to amend old laws and create new ones as overnight, a
Statute can change existing law in its various forms, but subject to the Constitution.12
Once appropriately passed, as a general rule, legislation enters into force on the date of its
publication in the Government Gazette; but the piece of legislation in issue may itself
prescribe that it shall come into force on a later date13.

Judicial Precedent
The doctrine of judicial precedent binds courts to uphold the law as expressed in previous
decisions of superior courts, courts of co-ordinate jurisdiction and its own decisions. A court
may however depart from decisions of courts of co-ordinate jurisdiction or its own decisions
if it can demonstrate that they were wrongly decided. The doctrine, with its origins in English
law, is founded on the principle that the law which was applied to a specific situation should
be likewise applied in similar situations.14 It is firmly rooted in the principle of stare decisis
which literally means to stand by decisions (previous decisions). The principle of stare
decisis is well settled in common law jurisdictions. In the case of United States Internal
Revenue Serv. v. Osborne (In re Osborne), the ninth Circuit Court of Appeals lucidly
described stare decisis, stating that:
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of
stare decisis et quieta non movere "to stand by and adhere to decisions and not disturb
what is settled." Consider the word "decisis." The word means, literally and legally, the
decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor
is the doctrine stare rationibus decidendi "to keep to the rationes decidendi of past cases."
Rather, under the doctrine of stare decisis a case is important only for what it decides for
the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare
decisis is important only for the decision, for the detailed legal consequence following a
detailed set of facts.15

10 See Kelyn & Viljoen, nabove, 45

11 Ibid
12 Ibid
13 Kleyn & Viljoen, n.above, 47
14 Kleyn & Viljoen, 60
14

WORLD LEGAL SYSTEM PROJECT

The doctrine of judicial precedent, as described above, implies that courts are ordered in a
hierarchical fashion.

Structure of the Courts

The Hierarchy of courts in South Africa can broadly be represented as follows, in
descending order:

Constitutional Court
A new superior court, the Constitutional Court, was established to decide matters based
on Constitutional provisions. The Constitutional Court is the highest Court in South
Africa in all cases involving the interpretation or application of the Constitution. Since
the Constitution is the supreme law of the country; the Constitutional Court may, in that
respect, be regarded as the highest Court in South Africa. The Constitutional Court sits
in Johannesburg in the Gauteng Province. The website of the Court consists of a full
text database of all Constitutional Court cases handed down since the first hearing in
1995. Documents available for viewing, printing or downloading include full
judgments, summaries of judgments highlighting the main questions of law decided in
each case as well as heads of argument, pleadings and documents. Since 1995, the
Court has, through scores of decisions that it has handed down, developed a relatively
rich pool of constitutional jurisprudence that is sophisticated and in many ways serving
as a model for common law-based jurisdictions, especially in Africa. Some of its most
notable decisions include the case of State vs Makwanyane & another where the
Constitutional Court abolished the death penalty in South Africa; 16 the case of
Government of South Africa and Others v Grootboom and Others17 where, among other
things, the Court re-affirmed its earlier decision in Soobramoney vs Minister of Health,
KwaZulu Natal18, that economic, social and cultural rights are justifiable under the
South African Constitution. Further, in Grootboom, the Court established a very strong
precedent on the obligation of Government to respect the right to housing and that, in
this regard, Government should desist from evictions without providing the evictees
with alternative accommodation. The Grootboom case if especially important in the
interpretation of socio-economic rights generally under the Constitution. The Court for
instance, importantly but regrettably in the opinion of a substantial body of scholarly
15 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) para. 50, 185 (9th Cir. 1996)
16 S v Makwanyane 1995 (3) SA 391 (CC)
17 2000 (11) BCLR 1169 (CC) [Grootboom case]
18 1998 (1) SA 765 (CC) [Soobramoney case]
15

WORLD LEGAL SYSTEM PROJECT

thought, refused to apply the concept of minimum core content obligations in the
interpretation of socio-economic rights, as developed by the United Nations Committee
on Economic, Social and Cultural Rights. Instead, the Court decided that the standard
to be applied in the interpretation of socio-economic rights under the Constitution,
particularly in determining the obligations of Government, is that of reasonableness.
The Court has stuck to this position up to present.19 Another Important decision is that
of Minister of Health and Others v Treatment Action Campaign and Others20. This is a
case in which the Court, enforcing the right of access to healthcare as provided for
under Section 27 of the Constitution, obliged Government to make available nationwide the drug Nevirapine that helps to prevent mother-to-child transmission of
HIV/AIDS. Special mention is made here of mostly the Courts decisions in socioeconomic rights cases as this is an area where there is a dearth of jurisprudence in many
parts of the world, especially in Africa. Thus the Constitutional Court of South Africa
is, in this regard, a pacesetter in many respects.

Supreme Court of Appeal

The Supreme Court of Appeal is the highest Court in South Africa on all other matters
except constitutional ones. The Supreme Court of Appeal sits in Bloemfontein in the
Free State Province. As a historical note, the Cape Supreme Court was established in
Cape Town in 1828. When circuits round the Cape Colony became too arduous,
divisions of the Court were established in the Eastern Cape and in the Northern Cape
(then known as Griqualand West). The Natal Supreme Court was established in 1857.
The first High Court of Justice was set up in the Zuid-Afrikaansche Republiek in 1877,
while the Orange Free State instituted a High Court in 1854. Following the Union of
South Africa in 1910, a new Supreme Court of South Africa was formed, with
provincial and local divisions in all four provinces. A new Appellate Division in
Bloemfontein heard appeals from the other divisions of the Supreme Court and set
precedent which was binding country-wide. The 'independent states' created during the
apartheid era established superior courts in their territories. In terms of the new
Constitution, the existing provincial and local divisions of the erstwhile 'Supreme
Court' (including the courts in the TBVC states) were renamed High Courts, and the
Appellate Division was re-established as the Supreme Court of Appeal.
19 In October 2009, in the case of Mazibuko & Others v. City of Johannesburg & Others, [2009]
ZACC 28, a matter in which the Court was among other things, called upon to determine on the
content of the right of access to sufficient water, and particularly to state the minimum quantity of
water that would pass the sufficiency test; the Constitutional Court, rejecting the call, re-affirmed its
rejection of the minimum core content approach in South Africa; and its insistence on the application
of the reasonableness test.
20 [TAC case] 2002 (5) SA 703; 2002 (10) BCLR 1075.
16

WORLD LEGAL SYSTEM PROJECT

High Courts
In terms of the Renaming of Court Act, 2008, that came into effect by Presidential
Proclamation on 1 March 2009, the following are High Court divisions in South Africa:

Eastern Cape High Court (with its seat in Bisho);

Eastern Cape High Court (with its seat in Grahamstown)

Eastern Cape High Court (with its seat in Mthatha)

Eastern Cape High Court (with its seat in Port Elizabeth)

Free State High Court (with its seat in Bloemfontein);

KwaZulu Natal High Court (with its seat in Durban)

KwaZulu Natal High Court (with its seat in Pietermaritzburg);

North Gauteng High Court (with its seat in Pretoria);

North West High Court (with its seat in Mafikeng)

Northern Cape High Court (with its seat in Kimberley);

South Gauteng High Court (with its seat in Johannesburg)

Western Cape High Court (with its seat in Cape Town);

Magistrate Courts
These are lower courts spread across the country. Decisions of lower courts are not reported.

Other Courts
In addition, there are various specialised courts that operate at the level of the High Court.
These are:
17

WORLD LEGAL SYSTEM PROJECT

a.
b.
c.
d.

Special Income Tax Courts

Labour Courts and Labour Appeal Courts
Family Courts
Land Claims Courts

International law
For purposes of the application of international law, South Africa falls into the category of
states that are commonly, referred to as monist. This basically means that as a general rule,
for an international treaty that South Africa has ratified to become locally enforceable by the
courts as part of domestic law, the treaty must either be transformed or incorporated into local
law. Both transformation and incorporation are legislative measures, meaning that they
involve the adoption of local legislation to give effect to the treaty in question. In the case of
transformation, the domestic legislature passes a law that, although differently worded and/or
nuanced from the treaty in issue, generally ensures that due effect is given to the treaty. An
example would be the Refugee Act of 1998 giving effect to the 1951 UN Convention
Relating to the Status of Refugees together with its 1967 Protocol; and the 1969 OAU (AU)
Convention Governing Specific Aspects of Refugee Problems in Africa. In the event of
Incorporation, the local legislation simply adopts the treaty in toto as being applicable as
domestic law. Section 231 of the Constitution addresses the various circumstances in which
international treaty law is applicable in South Africa. Section 232 deals with customary
international law. Customary international law refers to rules that are developed as the result
of consistent widespread state practice which practice is viewed as legally binding by those
states. An example of a rule of customary international law is the prohibition of the use of
force among states in their relations. There are of course exceptions to the prohibition, such
as in the event of self-defence by a state. According to section 232 of the Constitution,
customary international law is part of the domestic law in South Africa unless it is
inconsistent with the Constitution or an Act of Parliament. Further to these two provisions,
Section 39(1) (b) of the Constitution obliges courts in South Africa to consider international
law when interpreting the Bill of Rights of the Constitution. The Constitutional Court has
held that reference to international law in this provision includes both binding as well as nonbinding international law.21

21 See S v Makwanyane 1995 (3) SA 391 (CC), para. 35 (per Chaskalson, P).
18

WORLD LEGAL SYSTEM PROJECT

BIBLIOGRAPHY

http://chartsbin.com
http://journals.sas.ac.uk/amicus/article/view/1082
http://ox.libguides.com/content.php?pid=167351&sid=1410025
http://reference.sabinet.co.za/sa_epublication/ju_sajcj
Rights and Constitutionalism: The New South African Legal Order
by Dawid Van Wyk and John Dugard.

Article A mixed legal system with a constitution on top: South African

law in the era of Democracy by Carole Lewis.
Official Government Gazette
Butterworths Statutes
Juta Statutes
http://www.polity.org.za/
http://www.sabinet.co.za/
http://www.parliament.gov.za/
http://www.gov.za/
http://www.pmg.org.za/
http://www.info.gov.za/aboutgovt/provgovt.htm
http://www.info.gov.za/documents/constitution/1996/index.htm
http://www.saflii.org/
19

WORLD LEGAL SYSTEM PROJECT

http://www.butterworths.co.za/
http://www.jutastat.com/
https://innopac.wits.ac.za/
Encyclopaedia- Law of South Africa (LAWSA)
Church, J et al. Workbook for Introduction to the Law. 2nd ed. Durban:
Butterworths, 1996.
Du Plessis, Lourens M. An introduction to law. 3rd ed. - Cape Town: Juta,
1999.
Baxter, Lawrence. Administrative law. - Cape Town: Juta, 1984.
Bill of Rights compendium. - Durban: Butterworths, 1996 (loose-leaf
updates).
Hahlo, H.R. and Ellison Kahn The South African legal system and its
background. - Cape Town: Juta, 1968.
Hahlo, H.R. The Union of South Africa: the development of its laws and
constitution. - Cape Town: Juta, 1960.
Du Plessis, Lourens Re-interpretation of statutes. - Durban: Butterworths,
2002.
De Ville, J.R. Constitutional and statutory interpretation. - Cape Town:
Interdoc Consultants, 2000.

20