CSL 2601 Constitutional Law Exam Notes/Study Guide 2021
Constitutional Law Exam Notes
Study Unit 1
Overview of Unit
1.1 Sources of Constitutional
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CONCEPT KEYPOINTS
Definition Sources of law refer to the places where you can find legal principles,
and values and govern a particular branch of law.
Meaning, limits,
consequences.
On one hand it could refer to an entire body of rules, both written and
unwritten which govern the exercise of state authority. On the other
hand it may refer to a written document which contains some or most
of the constitutional rules. It also prescribes the limits that are imposed
on the exercise of state authority. In some instances, the constitution
also prescribes the consequences that may arise in the event of state
authority being improperly exercised.* It cannot be repealed or
amended but it must leave room for growth.(That’s why it only sets out
the framework, the principles, and lets the changeable legislation spell
out the rest.
Legislation/statute It constitutes the second source in the hierarchy of binding sources. The
constitution does not contain all the rules that are needed to deal with
the interaction of state authority. It only sets out the broad language
and sets for the provision of the legislation to then fill in.
Common law It is the unwritten law of South Africa, it is not contained in any
statutes. Since the inception of the constitution, common law has
ceased to be an important source of SA law, it still existed and is
applicable though. English common law somewhat enforced
parliamentary sovereignty, when constitutional supremacy came up, it
became substituted. Refer to section 39(2) of constitution.
Customary law It is a system of law generally derived from custom, long established
practices that have acquired the force of law by common adoption
acquiescence. It is empowered in section 39(2) and 211(2) of the
constitution. Note Pharmaceutical Manufacturers Association of SA
case. By recognizing customary law, the constitution has put it at par
with common law. Indigenous African law, previously seen under
common law lens, now has its own formal standing and should be seen
through the constitution now. However because of the multi-cultural
diversity of SA, it is difficult to determine pure indigenous law. It is
accepted that custom law comes in three forms (a) that practiced by a
community, (b) that which is stipulated by legislation and case law (c)
academic indigenous law used for teaching purposes.
Case law It illustrates the practical application of the constitutional principles,
rules and principles. In the past its application was limited but this has [Show Less]