Binding Sources of Law in South Africa

The Constitution is the supreme law of the land. Any law or action inconsistent with it has no force or effect. This provision means that laws and administrative acts must be in conformity with the Constitution. The Constitution is binding on the executive branch of government in all areas of administration. The importance of the Constitution as a source of administrative law was best expressed in Pharmaceutical Manufacturers, where Chaskalson P noted that judicial review of public authority through judicial review is a constitutional issue. Common law principles that were applied to control powers prior to 1994 have now been consolidated in the Constitution. As a source of administrative law, the Constitution creates a variety of agencies and administrative structures to control the exercise of public authority. In particular, the Court recognized the difficulty of establishing customary law, given the relative unreliability of written sources on customary law and the fact that there may be competing versions of customary law that are presented as evidence when such evidence is challenged. In Minister of Environmental Affairs and Tourism v. Phambili Fisheries, the respondent successfully challenged in court the decision of the Chief Director of Marine Coastal Management to allocate a maximum amount of hake they were allowed to catch that was less than they had requested.

The enabling provision was the Marine Living Resources Act. [8] Both respondents were businesses of historically disadvantaged individuals. They argued that the Senior Director did not sufficiently consider the need for transformation when he allocated them less than they had requested. Administrative officials derive their authority or competence from a legal instrument or rule and are only allowed to do what a law gives them the right to do. This is called the principle of legality, which requires that administrative bodies not only refrain from breaking the law, but that all its content be in conformity with the Constitution, and in particular with the Bill of Rights. The sources of administrative law, in order of importance, are Article 33(1) of the Constitution, a right to procedural administrative action. The question is: how to determine the content of the law? There are three sources of law: most African states follow a pluralistic legal form that includes customary law, religious laws, preserved law (such as common law or civil law) and state law. [2] The South African Constitution recognizes traditional authority and customary law under Article 211.

[3] A decision in Bhe v. Judge Khayelitsha stated that customary law „is protected by the Constitution and subject to itself.“ [3] Before colonialism, customary law had its „sources in the practices, traditions and customs of the people.“ [4] Customary law is fluid and changes over time and between different groups of people. [5] In addition, ethnicity is often associated with customary law. [6] Sally Falk Moore suggests that it is necessary to study law in the context of society in order to have a more realistic idea of how people live according to „the law“ and „social mores,“ rather than trying to separate „law“ from „society.“ [7] The Constitution obliges courts to consider international human rights. Directors must recognize international documents dealing with international human rights whenever they are relevant to the functions of the administrator and act in accordance with those international documents. The courts are not limited to the instruments that bind South Africa. In S v. Makwanyane, the Constitutional Court has ruled that binding and non-binding international law can be used as an instrument of interpretation. Article 33 of the Constitution is of paramount importance. The application of article 33 remained suspended until a law in the form of AAAP was promulgated that made article 33 binding and enforceable. Section 33 has led to profound changes in administrative law.

Article 33 aims to make administrative decision-making open, transparent and rational, to provide protection against whims and autocratic tendencies, and to promote administrative accountability and fairness. Join LegalWise now and access our network of over 200 law firms. South Africa has a population of 56.4 million (2018 figures). It has 11 official languages: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. Zulu, Xhosa, Afrikaans and English are the first most spoken languages. Subsection 3(1) of the BPA provides that administrative measures that materially and adversely affect the rights or legitimate expectations of a person must be procedurally fair. South African customary law refers to a normally uncodified legal system developed and practiced by indigenous communities in South Africa. Customary law was defined as the court ruled that there were no two systems of administrative law, one on the Constitution and the other on the common law. There is now only one system of administrative law, enshrined in the Constitution and expressed in the PAJA.

In Marais v. As a Democratic Alliance, the Court concluded that the general laws of procedural fairness and natural justice apply to a dispute between a mayor and a political party, even if the dispute itself did not fall within the scope of the PAJA. On the other hand, it was also decided that the BIAP should first be used as a source of law to settle a dispute. In Pharmaceutical Manufacturers, supra, the General Court found that the principles which had previously been the basis for judicial review by public authorities were summarised in the Constitution; to the extent that they can continue to be subject to judicial review, they derive their power from the Constitution. Customary law in South Africa is linked to ethnicity, so that „a Zulu who expressly or implicitly wishes to be bound by Sotho customary law could face significant difficulties despite the promise of Article 30 of the Constitution“. [6] Customary law and ethnicity have their roots in the idea of kinship that the colonizers used to impose morality within and between tribes. [31] There were also sporadic government initiatives, but these were limited because there was no incentive for those in power to change administrative law significantly.

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