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Researching South African Law

 

By Amanda Barratt and Pamela Snyman

 

Published March 2005
Read the Update!

 

Amanda Barratt has been the Law Librarian at the University of Cape Town Law Library since January 2001. She has 12 years experience as a reference librarian, and previously headed the University’s African Studies Library. Amanda holds a B.A. (Hons.) degree in History from the University of Cape Town, and LL.B and LL.M degrees from the University of South Africa. Amanda is currently preparing for a PhD in intellectual property.

Pamela Snyman is a senior reference librarian at the University of Cape Town Law Library. She has 24 years experience as a law librarian. Pamela holds the B.Bibl, LL.B, and LL.M degrees from the University of South Africa.

 

Update to an article previously published on LLRX.com on October 1, 2002

http://www.llrx.com/features/southafrica.htm

 

 

TABLE OF CONTENTS

 

Introduction

Historical Note

Structure of the State

Legislative and Executive Branches

Sources of Legislation

Treaties

Judiciary

Published Decisions of South African Courts in Print Form

Printed Indexes to South African Case Law

On-Line Access to South African Case Law

South African Legal Journals

Reference Works

Dictionaries

Directories and legal diaries

Encyclopaedia and Current Awareness Service

Forms and Precedents

Selected Textbooks

A Selection of Useful Websites for South African Legal Research

Citation

 

 

INTRODUCTION

 

South African law consists of the common law (previous decisions of the superior courts, and rules and principles discussed in the ‘old Roman-Dutch authorities’) and statutory law (acts of the national and provincial legislatures, and governmental regulations). The law is not codified and, like English law, must be sought in court decisions and individual statutes. Since 1994, the Constitution of the Republic of South Africa has been the supreme law.

 

HISTORICAL NOTE

 

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 (in this context, ‘common law’ implies law of non-statutory origin) 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 17th 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 19th 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.

 

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. Of course, most South Africans are not of European extraction. 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 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 Act 108 of 1996 provides for the separation of the legislative, executive and judicial arms of government. 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:

 

·       the National Assembly, elected for a 5 year term according to a system of proportional representation, and comprising between 350 and 400 members, and

·       the National Council of Provinces, with ten representatives from each province, who vote as a block.

 

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.

 

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.

 

Sources of Legislation

 

Print form:

 

Acts of Parliament are initially published in the official Government Gazette. They are also republished commercially in consolidated (‘as amended’) form by the major South African legal publishers, LexisNexis Butterworths and Juta.

 

Government Gazette

The official version of an Act of Parliament is published in the Government Gazette. The Gazette is usually the only printed source of regulations – subordinate legislation issued by government ministers in terms of enabling statutes. Draft bills are occasionally published in the Gazette, but bills are issued as a separate series and obtainable from the Government Printer. The Gazette also includes proclamations, government notices, commencement dates of statutes, price regulation measures and industrial regulations.

 

Butterworths Statutes

This is a loose-leaf publication of consolidated acts, kept by up-to-date by annual supplements. The set is arranged into subject ‘titles’ (e.g. ‘agriculture’, ‘labour’, ‘water’, etc.) Within each ‘title’ the acts are arranged chronologically.

 

The index volume (vol.1) contains both an alphabetical and a chronological table of statutes. The chronological index also lists repealed acts, with details of the repealing legislation. Indexes at the end of each ‘title’ include: a subject-matter index to recent legislation, and a section with references to decided cases which give judicial consideration to the statute concerned.

Although the full text of regulations is not reproduced in this work, there is a section containing references to regulations passed in terms of the acts. These references include the regulation gazette or the government notice number, the Government Gazette number and date of publication.

 

Juta Statutes

Juta publishes an annual edition of its seven-volume set of consolidated statutes. Juta classifies the acts into 18 groups and 105 subgroups according to their subject matter. The full text of principal acts is given, but amending acts appear in abbreviated form, because the amendments will have been incorporated into the relevant principal acts. Substantive provisions in amending acts are reproduced in full.

 

The index volume provides alphabetical and chronological tables of statutes and an alphabetical index to groups and subgroups. Other indexes include ‘Legislation Judicially Considered’, which lists leading cases on particular sections of the statutes; and an index to regulations passed in terms of the various acts, providing the Government Gazette numbers where the regulations may be found.

 

Butterworths Regional Legislation Service

Loose-leaf service containing the acts and regulations of the nine provincial governments.

 

Butterworths Legislation Service

Butterworths publishes selected acts as part of its Butterworths Legislation Service. This service is aimed at legal practitioners, and the acts selected tend to be those which are used in everyday legal practice and which change frequently e.g. the Magistrates Court Act, the Supreme Court Act and the Criminal Procedure Act. This loose-leaf service is updated quarterly, and is thus reasonably up-to-date. Unlike the main Butterworths set of statutes, these works reproduce the full text of the regulations and rules made in terms of the acts.

Other Legislation Services

There are several other loose-leaf services to specific acts, often published under the name of an individual editor. These works include both the principal acts and the regulations made in terms of these acts, and regulations are thus more easily accessible. There is usually editorial commentary discussing the statutory material.

 

Notable examples are:

 

·       Blackman – Commentary on the Companies Act. – Cape Town: Juta, 2002.

·       Budlender – Juta’s New Land Law. – Cape Town: Juta, 1998.

·       Davis – Juta's Income Tax. – Cape Town: Juta 1999.

·       Dean – Handbook of South African Copyright Law. – Cape Town: Juta, 1987.

·       Du Toit – Commentary on the Criminal Procedure Act. – Cape Town: Juta, 1987.

·       Erasmus – Superior Court Practice. – Cape Town: Juta, 1994.

·       Harms – Civil Procedure in the Superior Courts. – Durban: LexisNexis Butterworths, 1990.

·       Henderson – Environmental Laws of South Africa Cape Town: Juta, 1996.

·       Malan and Oelofse – South African Banking Legislation. – Cape Town: Juta, 1991.

·       Meskin – Henochsberg on the Companies Act. – Durban: Butterworths, 1987.

·       Meskin – Insolvency law and its Operation in Winding-up. – Durban: LexisNexis Butterworths, 1990.

·       Reyburn – Competition Law of South Africa. – Durban: LexisNexis Butterworths, 2000.

·       Thompson and Benjamin – South African Labour Law. – Cape Town: Juta Law, 1994.

 

 

On-line:

 

Juta and Butterworths products

The Butterworths and Juta products discussed above are available in electronic form, and may be purchased either as stand-alone or networked CD-ROMs, or may be accessed from the publishers’ on-line services. The electronic versions of the South African Statutes products are substantially similar to the print versions, including all indexes, and may thus be used in the same way. However, the electronic versions also allow a range of keyword searching options. If the library subscribes to additional products such as the on-line law reports, indexes such as ‘legislation judicially considered’ will link directly to the full text of the cases concerned. The statutes collections published in electronic form include the full text of many regulations.

 

Both publishers produce ‘libraries’ on particular topics, for example Constitutional law, Labour law, Company law, etc. These electronic libraries typically include relevant statutes, case law and commentaries, and some include journal articles, full text electronic textbooks, and regulations.

 

Government Gazette on-line

SABINET, a subscription service, has a searchable version of the Government Gazette in full text since 1994.

Free Sites Available on the Internet:

 

Polity: Policy and Law Online News

This is a privately run site, providing a wealth of government information. The site includes the full text of legislation: Bills since 1995, and Acts since 1993, and also provides the full text of: White Papers; Commission reports; Discussion documents; Green papers; Notices and Regulations; Policy documents; Reports; and Speeches.

 

The official website of the Parliament of South Africa provides full text of acts passed from 1993 onwards, and the full text of bills since 1998. The site also provides background information on Members of Parliament and the legislative process; selected Parliamentary papers, Parliamentary Committee reports and Hansard reports. Also see the National Council of Provinces webpage.

 

The official website of the South African Government provides full text of acts passed since 1993, and the full text of bills since 1996. The full text of many regulations is also reproduced here. The site provides the full text of many speeches and policy and information documents, including white papers and green papers. It also provides useful background information on various aspects of the South African governmental structure and process, as well as links to the various Government Departments and the Provincial Governments.

 

The Parliamentary Monitoring Group site tracks the activities of Parliament and the Parliamentary Select Committees, and follows the progress of discussion papers, white papers, and bills (i.e. it provides background information on the legislative process)

 

There are links to the various provincial governments from the South African Government site. Many of the provincial governments publish provincial legislation and official policy documents online. See, for example, Gauteng, the Western Cape, KwaZulu-Natal, the Eastern Cape, and Mpumalanga.

 

Full text of the Constitution of the Republic of South Africa Act 108 of 1996 is available at <http://www.gov.za/constitution/1996/96cons.htm>.

 

The Southern African Legal Information Institute provides the full text of selected acts. The World Legal Information Institute provides links to some of the sites mentioned above, as well links to a few other South African acts. Search under South Africa in the Worldlii catalogue.

Both LexisNexis Butterworths and Juta offer free ‘legislation watch’ services, with weekly updates on new statutes and regulations at both national and provincial level. See the publishers’ websites for more information.

 

Treaties

 

South African treaties are not easy to find in full text form. The Department of Foreign Affairs provides some information about both bilateral and multilateral treaties signed by South Africa on its website. It does not provide the full text of the agreements, but does provide a summary of their main provisions and gives useful background and policy information. The site is not comprehensive. A private site, the South African Cyber Treaty Series lists the multilateral treaties signed by South Africa and provides ratification information. Where possible, the site links to full text versions available on the Internet. The site does not cover bilateral agreements. This treaty series is based primarily on the United Nations Multilateral Treaties Deposited with the Secretary-General, and is arranged according to the categories found in the United Nations Treaty Series. It includes several additional topics for which the United Nations does not act as depository, such as intellectual property and civil aviation. This site has not been updated since November 2001.

 

JUDICIARY

 

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.

 

A new superior court, the Constitutional Court, was established to decide matters based on Constitutional provisions. 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.

 

Other superior courts, created in terms of separate legislation, include the Land Claims Court and the Labour Appeal Court. In addition to these superior courts, district and regional magistrate courts hear minor civil and criminal matters. Decisions of lower courts are not reported. The Commission for Conciliation Mediation and Arbitration tribunals attempt to settle employment disputes. Until 1950, the English Privy Council was the highest court of appeal in the South African judicial system. South Africa no longer has a jury system. Juries were finally abolished for all courts in 1969.

 

Published Decisions of South African Courts in Print Form

 

A number of law reports cover the earliest South African cases, with the Cape cases dating back to 1828. Prior to Union in 1910, law reports were published for each of the High Courts in the Cape Colony, Natal, Orange Free State and Transvaal. From 1910 onwards, decisions of the Appellate Division were reported in addition to the separate reports for the four Provincial Divisions. Juta, South Africa’s oldest legal publisher, has published law reports since the mid-nineteenth century. In 1947, Juta began publishing the (amalgamated) South African Law Reports (SALR), which includes leading judgments from all the South African superior courts as well as selected judgments from Zimbabwe and Namibia. Specialised law reports series from Juta include the Industrial Law Journal (since 1980), and the South African Criminal Law Reports (since 1990). The other major South African legal publisher, Butterworths (now LexisNexis Butterworths), launched several series of law reports in the 1990’s. These include: Butterworths Constitutional Law Reports; Butterworths Labour Law Reports; and the All South African Law Reports (All SA), which are modelled on the All England Law Reports and include leading judgments from South African courts on all areas of law. All SA replaces the Prentice Hall Weekly Law Reports, which were published from 1923 to1995. Appeals from South African courts heard by the English Privy Council were reported in the English Appeal Court (AC) cases, which contain some important South African appeals. These cases have been collected and published in a single volume: J.L. Taitz (ed.) Privy Council Reports. – Cape Town: Juta, 1997, covering the period 1833 – 1950.

 

Recently, Mark Stranex, a South African advocate, has edited several loose-leaf ‘casebooks’ aimed at practitioners, and containing the full text of the most important judgments in particular areas of law. These include Judgements on Copyright (first issued in 1993); Insolvency Judgements: A Review: Superior Court Judgements since 1992 (2nd ed first issued in 2000); Sureties (2nd ed first issued in 2001); The Business of Banking and Law (first issued in 2000); and Shipping Cases of South Africa (first issued in 1995). Other specialised series of law reports include Juta’s South African Tax Cases (since 1926) and the Butterworths series: Pensions Law; Arbitration Awards; and Competition Law Reports.

 

 

Printed indexes to South African case law

 

Butterworths Consolidated Index and Noter-Up to the All South African Law Reports and the South African Law Reports –

In 2002, Butterworths published a joint index to the South African Law Reports (covering the period since 1947) and the All South African Law Reports (covering the period since 1996). This four volume work includes tables of cases; a ‘noter-up’ (which is similar to the American Shepards, and provides information on the subsequent history of points of law set down in a case); indexes to judicial interpretation of legislation and legal ‘words and phrases’; and a two-volume subject index.

 

Juta’s Index and Annotations to the South African Law Reports –

In 2002, Juta published a consolidated work, The Index & Annotations to the South African Law Reports covering the period from 1947 onwards. This four volume work contains tables of all cases reported in the series since 1947; a table of Case Annotations for both local and foreign cases referred to in South African judgments (outlining the nature and extent of the consideration given to the prior judgement); a table of legislation considered by the courts and a two-volume subject index. Juta has also published various indexes to its law reports for each division of the High Court for the period 1828-1946.

 

There are separate indexes for other series of law reports including the Butterworths Index to Constitutional Cases since 1994, which indexes cases on constitutional matters reported in the Butterworths Constitutional Law Reports and the South African Law Reports. This cumulative index is updated annually. Another annually cumulated index, the Butterworths Labour Law Reports Index covers cases reported in this series since 1994.

 

Also note: Uys, J.F. Fontes juris (being the sources of the law which were noted in South African Supreme Court judgements) – Randburg: Fontes Juris, 1994. Vols.1-5 contain South African cases reported and noted 1828-1992;

Vol.6 has foreign cases noted 1828-1994; vols.7-8 has legal literature noted 1828-1996 and v.9-10 are permanent supplements 1993-2000.

 

Translations of the South African Law Reports -

South African judgments are reported in the language in which they were delivered. Historically, this was in either of the two official languages, English and Afrikaans. Juta published English translations of Afrikaans judgments in its South African Law Reports Translations (1969-1980) and revived this series briefly in the mid 1990’s. (1995-1997).

 

On-line access to South African case law

 

Commercial products

 

Both Juta and LexisNexis Butterworths produce electronic versions of the post-1947 law reports outlined above (and the Appellate Division since 1910). These are available either as CD-ROM products, or on-line from the publishers’ websites. Van Schaik Publishers has produced a CD containing judgments from the precursor series to the South African Law Reports for the period 1828-1946. The Butterworths Consolidated Index and Noter-up is also available in electronic form, while Juta’s Index and Annotations is included in its CD or on-line versions of the SALR. The ‘electronic libraries’ produced by each publisher (discussed above) include relevant case law.

 

South African cases are reported very selectively, but both Juta and LexisNexis Butterworths provide access to cases that were considered for publication, but did not subsequently appear in the printed law reports. LexisNexis Butterworths’ Judgements Online and Juta’s Daily Law Reports are subscription databases available through the publishers’ websites.

 

Free case law on-line

 

Several South African courts make their judgments available on the Internet at no charge. These include:

 

 

The Constitutional Court and Supreme Court of Appeal sites have been revamped, and now include a sophisticated search engine. In addition to the judgments themselves, the sites provide supporting documentation for some of the cases including affidavits, submissions by interested parties, counsels’ heads of argument, and unreported judgments from the court a quo where applicable.

 

The South African Legal Information Institute offers an alternative search interface to judgements from the Constitutional Court, the Supreme Court of Appeal and the Land Claims Court. The World Legal Information Institute provides links to the sites listed above, as well links to a few other sites offering free access to reported and unreported South African cases. Search under South Africa in the Worldlii catalogue.

 

LexisNexis Butterworths currently offers a free ‘Hot off the Bench’ service with access to the full text of the very newest judgments. These judgments are removed from the Hot off the Bench site when they are incorporated into one of the subscription databases. A free Case Locater service is also available from the LexisNexis Butterworths web page. The locator provides a sophisticated search engine enabling you to find out where a case has been published in any of the leading South African law reports series. The locator also shows whether judgments have received negative or positive treatment in subsequent cases. It is also possible to search for cases discussing a particular piece of legislation.

 

Some university law schools provide very limited access to judgments from their local high court. These include selected Cape High Court judgments from the University of Stellenbosch; selected Eastern Cape Division reports from Rhodes University; and selected Free State Provincial Division decisions from the University of the Free State.

 

 

SOUTH AFRICAN LEGAL JOURNALS

 

The leading South African legal periodical is the South African Law Journal (SALJ), which is one of the oldest law journals currently published in English (Volume 121 in 2004). Volumes 1 – 17 (1884-1900) were published under the title Cape Law Journal. Other important South African law journals include Acta Juridica, Annual Survey of South African Law; Comparative and International Law Journal of South Africa (CILSA); De Jure; Industrial Law Journal (ILJ); the South African Journal on Human Rights (SAJHR); South African Mercantile Law Journal (SAMLJ); the South African Yearbook of International Law (SAYIL); the Tydskrif vir Suid Afrikaanse Reg (TSAR); the Tydskrif vir Hedendaagse Romeins-Hollandse Reg (THRHR). The professional journals include Advocate (formally Consultus) which is the South African Bar Journal; and De Rebus the South African Attorney’s Journal. A list of Southern African law journals currently in publication can be found at <http://wwwserver.law.wits.ac.za/lawlibrary/sajnls.htm>.

 

All South African legal journals are indexed by the Index to South African Periodicals. A free version of ISAP is available from the National Library of South Africa. This version of ISAP has a user-friendly search engine permitting searches by article title, author, keyword, and journal title. Results are abbreviated, showing article title, authors, keywords, date of publication and name of the journal in which the article appeared, but omitting abstracts and more detailed publication information such as issue and page numbers. The full version of ISAP is commercially available through SABINET or through Bibioline/Nisc’s Southern African Studies database. HW WILSON’s Index to Foreign Legal Periodicals indexes most of the core South African law journals listed above.

 

Very few South African legal journals are available in full text on-line. Exceptions are the attorney’s journal De Rebus, available free from 1998 onwards; the South African Bar Journal, Advocate, which provides free access to the latest issue through Juta; the Industrial Law Journal (1985+), available from Juta as part of its subscription to the Labour Law Library; and the South African Journal on Human Rights (1985+), available from Juta as part of its subscription to the Constitutional Library. The Centre for Applied Legal Studies at the University of the Witwatersrand, which publishes the SAJHR, has made SAJHR content pages since 1995 available online. The Potchefstroom Electronic Law Journal is available in full text online, along with the ESR Review.

 

Hein Online has bought electronic publication rights for all journals published by Juta, and back issues of important journals will become available through the Hein database. The South African Law Journal and Acta Juridica have been added to the Hein Online database, and the South African Journal on Human Rights and the South African Journal of Criminal Justice will follow.

 

The contents of all major South African law journals can be researched using the free ISAP database (discussed above).

 

REFERENCE WORKS

 

Dictionaries

 

Legal Dictionaries

  • Claassen, R.D. Dictionary of legal words and phrases. 2nd ed. –

Durban: LexisNexis Butterworths, 1997 (loose-leaf updates). Full text electronic access to Claassen’s dictionary is available through the LexisNexis Butterworths subscription database.

  • Hiemstra, V.G. and H.L. Gonin Drietalige regswoordeboek…/

Trilingual legal dictionary (English-Afrikaans-Latin) 3rd ed. –

Cape Town: Juta, 1992.

  • Hiemstra, V.G. and H.L. Gonin Engels-Afrikaanse regswoordeboek

2nd ed. – Cape Town: Juta, 1984.

  • Milne, Alexander (et al.) Bell’s South African legal dictionary. 3rd ed. –

Durban, Butterworth, 1951 (& Cumulative supplement 1956).

  • Sisson, J.J.L. The South African judicial dictionary. – Durban: Butterworths, 1960.

Abbreviations and Citations

  • Cardiff index of legal abbreviations includes abbreviations for South African legal sources.
  • Ferreira, Nico M. and Karen E. Breckon, South African legal abbreviations – Buffalo, Hein, 1999.
  • Ferreira, Nico M. and Karen E. Breckon South African section in

Kavass, Igor I. And Mary Miles Prince (eds.) World dictionary of legal abbreviations – Buffalo: Hein, 2002 (loose-leaf updates).

  • Raistrick, Donald, Index to legal citations and abbreviations. 2nd ed. –

London: Bowker-Saur, 1993 (includes abbreviations for South African legal sources).

 

Directories and legal diaries

 

Hortors Legal Diary –

This annual publication contains comprehensive listings and contact details for law firms, practising attorneys, and advocates, as well as judges, court personnel and other legal officials. Includes court calendars, fees, and other tariffs. The publication covers all South African provinces, and has abridged information for neighbouring states such as Botswana, Lesotho, Namibia, Swaziland, and Zimbabwe.

 

Encyclopaedia and current awareness service

 

The Law of South Africa (LAWSA) is a multi-volume legal encyclopaedia. A revised edition has been completed, and a second edition is in progress. This work provides a general overview of South African Law, organised by subject. Each subject entry is written by an authority in the field and provides a concise explanation of the applicable law with multiple references to relevant cases and legislation. Tables of statutes, cases and indexes to each title are also provided. The set is updated through annual cumulative supplements, but should be used together with its companion service Current Law to ensure that the most recent legal developments are taken into account.

 

Current Law, the companion service to LAWSA, consists of 12 review parts per year noting the most recent legal developments. This reference source must be used in conjunction with LAWSA, and this is facilitated by use of the same subject headings that appear in the main work. The new developments may be government notices, Parliamentary bills, regulations, or pertinent decided cases. Relevant periodical articles are also noted. Additional useful features include: commencement dates of statutes, giving the authoritative Government Gazette number; a table of cases; a table of statutes and regulations; lists of commissions of enquiry; a section on South African law books published during the current year; and a cumulative list of research projects arranged by subject.

 

Full text electronic access to both Lawsa and Current Law is available through the LexisNexis Butterworths subscription database, which also provides access to a number of the textbooks and practitioners’ manuals listed below.

 

Forms and Precedents

 

Butterworths Forms and Precedents

This guide to legal drafting is available as a series of loose-leaf volumes. It is also available in electronic form as a CD or though subscription to Butterworths’ on line services.

 

 

SELECTED TEXTBOOKS

 

Introduction to South African law

Du Plessis, Lourens M. An introduction to law. 3rd ed. – Cape Town: Juta, 1999.

 

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.

 

Hosten, W.J. (et al.) Introduction to South African law and legal theory. 2nd ed. – Durban: Butterworths, 1995.

 

Bankruptcy

Smith, Catherine Harriet The law of insolvency. 3rd ed. – Durban: Butterworths, 1988.

 

Hockly, Harold Edward, Hockly's insolvency law. 7th ed.Cape Town: Juta, 2002.

 

Meskin, P.M., Insolvency law and its operation in winding up. – Durban: LexisNexis Butterworths, 1990 (loose-leaf updates).

 

Mars, Walter The law of insolvency in South Africa. 8th ed. – Cape Town: Juta, 1988.

 

Commercial and company law

Havenga, Peter, General principles of commercial law. 4th ed. – Cape Town: Juta, 2000.

 

Blackman, M.S. (et al.) Commentary on the Companies Act. – Cape Town: Juta, 2002 (loose-leaf updates).

 

Henochsberg, E. Henochsberg on the Companies Act. 5th ed. – Durban: LexisNexis Butterworths, 1994 (loose-leaf updates).

 

Beuthin, R.C. and S.M. Luiz, Beuthin's Basic company law. 3rd ed. – Durban: Butterworths, 2000.

 

Cilliers, Hendrik and Marius Benade (ed.) Corporate law. 3rd ed. – Durban: Butterworths, 2000.

 

Pretorius, J.T.R. (ed) Companies Act 61 of 1973 and Close Corporations Act 69 of 1984 with regulations, tables of cases and indexes. 8th ed. – Cape Town: Juta, 2003.

 

Gibson, J.T.R. South African mercantile and company law. 8th ed. – Cape Town: Juta, 2003.

 

Gordon, Gerald Gordon and Getz on the South African law of insurance. 4th ed. – Cape Town: Juta, 1993.

 

Competition Law

Brassey, Martin Competition law. – Cape Town: Juta, 2002.

 

Reyburn, Lawrence Competition law of South Africa. – Durban: Butterworths, 2000 (loose-leaf updates).

 

Conflict of Laws

Forsyth, C.F. Private international law: the modern Roman-Dutch law including the jurisdiction of the Supreme Court. 4th ed. – Cape Town: Juta, 2004.

 

Constitutional law, Administrative Law and Human Rights Law

Amien, Waheeda and Paul Farlam (eds.) Basic human rights documents for South Africans. – Cape Town: Law, Race and Gender Research Unit, University of Cape Town, 1998.

 

Baxter, Lawrence. Administrative law. – Cape Town: Juta, 1984.

 

Bill of Rights compendium. – Durban: Butterworths, 1996 (loose-leaf updates).

 

Burns, Yvonne. Administrative law under the 1996 constitution. 2nd ed. –Durban: LexisNexis Butterworths, 2003.

 

Chaskalson, Matthew (et al.) Constitutional law of South Africa Cape Town: Juta, 1996 (loose-leaf updates).

 

Cheadle, M.H. (et al.) South African constitutional law: the Bill of Rights. – Durban: Butterworths, 2002.

 

Currie Iain and Johan de Waal (eds.) The New constitutional and administrative law – Cape Town: Juta, 2001.

 

Davis, Dennis Fundamental rights in the Constitution: commentary and cases. – Cape Town: Juta, 1997.

 

Devenish, G.E. (et a.) Administrative law and justice in South Africa. – Durban: Butterworths, 2001.

 

Devenish, G.E. A commentary on the South African Bill of Rights. – Durban: Butterworths, 1999.

 

De Ville, J.R. Judicial review of administrative action in South Africa. – Durban: LexisNexis Butterworths, 2003.

 

De Waal, Johan (et. al) The Bill of Rights handbook . 4th ed.– Cape Town: Juta, 2001.

 

Rautenbach, I.M. and E.F.J. Malherbe Constitutional law. 4th ed. – Durban: LexisNexis Butterworths, 2004.

 

Contract and agency

Christie, R.H. The law of contract in South Africa. 4th ed. – Durban: Butterworths, 2001.

 

Kahn, E. (et al) Principles of the law of sale and lease. – Cape Town: Juta, 1998.

 

Kerr, A.J. The law of sale and lease. 3rd ed. – Durban: LexisNexis Butterworths, 2004.

 

Kerr, A.J. The principles of the law of contract. 6th ed. – Durban: Butterworths, 2002.

 

Silke, Jonathan M. The law of agency in South Africa. 3rd ed. – Cape Town: Juta, 1981.

 

Van der Merwe, Schalk (et al.) Contract: general principles. 2nd ed. – Cape

Town: Juta, 2003.

 

Criminal law

Burchell, Jonathan M. and John Milton Principles of criminal law. 3rd ed. –Cape Town: Juta, 2005.

 

Snyman, C. R. Criminal law. 4th ed. – Durban: Butterworths, 2002.

 

Customary Law

Bennett, T.W. Customary law in South Africa. – Cape Town: Juta, 2004.

 

Bennett, T.W. Human rights and African customary law under the South African Constitution. – Cape Town: Juta, 1995. Reprinted with addendum, 1999.

 

Bennett, T. W. A sourcebook of African customary law for Southern Africa. Cape Town: Juta, 1991.

 

Damages

Visser, P.J. and J.M. Potgieter Visser and Potgieter’s law of damages. 2nd ed. – Cape Town: Juta, 2003.

 

Delict

Burchell, Jonathan M. Principles of delict. – Cape Town: Juta, 1993.

 

Neethling, Johann (et al.) Law of delict 4th ed. – Durban: Butterworths, 1999.

 

Boberg, P.Q.R. The law of delict. Volume 1: Aquilian liability. – Cape Town: Juta, 1984.

 

Environmental law

Glazewski, Jan Environmental law in South Africa. – Durban: Butterworths, 2000.

 

Estoppel

Sonnekus, J.C. The law of estoppel in South Africa. 2nd ed. – Durban: Butterworths, 2000.

 

Evidence

Schwikkard, P.J. and S.E. van der Merwe Principles of evidence. 2nd ed – Cape Town: Juta, 2002.

 

Zeffert, D.T. (et al.) The South African law of evidence. – Durban: LexisNexis Butterworths, 2003.

 

Family and Persons

Boberg, P.Q.R. Boberg's law of persons and the family. 2nd ed. – Cape Town: Juta, 1999.

 

Cronje, D.S.P. and Jacqueline Heaton South African family law. – Durban: Butterworths, 1999.

 

Cronje, D.S.P. and Jacqueline Heaton The South African law of persons. 2nd ed. – Durban: LexisNexis Butterworths, 2003.

 

Davel, C.J (ed.) Introduction to child law in South Africa. – Cape Town: Juta, 2000.

 

Sinclair, June The Law of Marriage. – Cape Town: Juta, 1996.

 

Van Zyl, Lesbury Handbook of the South African law of maintenance. – Interdoc Consultants, 2000.

 

Inheritance, Succession and Estates

Corbett, Michael McGregor The law of succession in South Africa (with an appendix on the conflict of laws by Ellison Kahn). – 2nd ed. – Cape Town: Juta, 2002.

 

De Waal, M.J. (et al.) Law of succession: students' handbook. 3rd ed. – Cape Town: Juta, 2003.

 

Davis, Dennis. Estate planning. – Durban: Butterworths, 1998 (loose-leaf updates).

 

Kernick, L.A. Administrationof estates and drafting of wills. 3rd ed. – Cape Town: Juta, 1998.

 

Meyerowitz, D The law and practice of administration of estates and estate duty. 4th ed. – Cape Town: The Taxpayer, 2004.

 

Intellectual Property

Burrell, Timothy D. Burrell's South African patent and design law. 3rd ed. –Durban: Butterworths, 1999.

 

Dean, O.H. Handbook of South African copyright law. – Cape Town: Juta, 1987 (loose-leaf updates).

 

Webster, Geoffrey Charles and N.S. Page South African law of trade marks, unlawful competition, company names and trading styles. 4th ed. – Durban: Butterworths, 1997 (loose-leaf updates).

 

International law

Dugard, John International law: a South African perspective. 2nd ed. – Cape Town: Juta, 2000.

 

Labour law

Basson, Annali (et al.) Essential labour law. 3rd ed. – Groenkloof: Labour Law Publications, 2002.

 

Brassey, Martin Employment and labour law. – Cape Town: Juta, 1998 (loose-leaf updates).

 

Du Toit, Darcy (et al.) Labour relations law: a comprehensive guide. 4th ed. –Durban: Butterworths LexisNexis, 2003.

 

Grogan, John Workplace law. 7th ed. – Cape Town: Juta, 2003.

 

Grogan, John Dismissal. – Cape Town: Juta, 2002.

 

Legal History

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.

 

Thomas, Ph. J. (et al.) The historical foundations of South African private law 2nd ed. – Durban: Butterworths, 2000.

 

Zimmermann, Reinhard and Daniel Visser (eds.) Southern Cross: civil law and common law in South Africa. – Cape Town: Juta, 1996.

 

Maritime and Shipping Law

Hare, John E. Shipping law & admiralty jurisdiction in South Africa. – Cape Town: Juta, 1999.

 

Property Law

Carey Miller, D. L. with Anne Pope Land title in South Africa. – Cape Town: Juta, 2000.

 

Silberberg, Harry Silberberg and Schoeman's The law of property. 4th ed. –Durban: Butterworths, 2003.

 

Van der Merwe, C.G. and M.J. de Waal. The law of things and servitudes. –Durban: Butterworths, 1993.

 

Van der Walt, A.J. and G.J. Pienaar Introduction to the law of property. 4th ed. – Cape Town: Juta, 2002.

 

Social Security

Olivier, M.P (et al.) (eds.) Social security law: general principles. – Durban: Butterworths, 1999.

 

Olivier, M.P. (et al.) Social security: a legal analysis. – Durban: Butterworths, 2003.

 

Strydom, E.M.L (et al.) Essential social security law. – Cape Town: Juta, 2001.

 

Sports Law

Basson, J.A.A. and M.M. Loubser (eds.) Sport and the law in South Africa. – Durban: LexisNexis Butterworths, 2000 (loose-leaf updates)

 

Statutory Interpretation

Du Plessis, Lourens Re-interpretation of statutes. – Durban: Butterworths, 2002.

 

De Ville, J.R. Constitutional and statutory interpretation. – Cape Town: Interdoc Consultants, 2000.

 

Devenish, G.E. Interpretation of Statutes. – Cape Town: Juta, 1992.

 

Suretyship

Forsyth, C.F. Caney’s The law of suretyship in South Africa 5th ed. – Cape Town: Juta, 2002.

 

Taxation

Davis, Dennis (et al.) Juta's income tax. – Cape Town: Juta, 1999 (loose-leaf updates).

 

Meyerowitz on Income Tax [2003-2004]. Cape Town: The Taxpayer, 2004.

 

Silke, A.S. Silke on South African income tax – Cape Town: Juta, 1989 (loose-leaf updates).

 

Williams, R.C. Income tax and capital gains tax in South Africa: law and practice. 3rd ed. – Durban: Butterworths, 2001.

 

Stein, Michael Stein on capital gains tax. – Durban: Butterworths, 2001 (loose-leaf updates).

 

Clegg, David and Rob Stretch Income tax in South Africa. – Durban LexisNexis Butterworths, 1989 (loose-leaf updates).

 

De Koker, Alwayn and Des Kruger Value-added tax in South Africa. – Durban: Butterworths, 2002 (loose-leaf updates).

 

Trusts

Honoré, A.M. Honoré’s South African law of trusts. 5th ed. – Cape Town: Juta, 2002.

 

Du Toit, F. South African trust law and practice. – Durban: Butterworths, 2002.

 

 

A SELECTION OF USEFUL WEBSITES FOR SOUTH AFRICAN LEGAL RESEARCH

 

Government and Legislation

 

Polity: Policy and Law Online News is a privately run site, providing a wealth of government information. The site includes the full text of legislation: Bills since 1995, and Acts since 1993, and also provides the full text of: White Papers; Commission reports; Discussion documents; Green papers; Notices and Regulations; Policy documents; Reports; and Speeches.

 

The official website of the Parliament of South Africa provides full text of acts passed since 1993, and the full text of bills from 1998. The site also provides background information on the legislative process

 

The official website of the South African Government provides full text of acts passed since 1993, and the full text of bills since 1996. The site includes the full text of many speeches and policy and information documents, including white papers and green papers. It also provides useful background information on various aspects of the South African governmental structure and process, as well as links to the various Government Departments and the Provincial Governments.

 

The Parliamentary Monitoring Group site tracks the activities of Parliament and the Parliamentary Select Committees, and follows the progress of discussion papers, white papers, and bills (i.e. it provides background information on the legislative process)

 

There are links to the various provincial governments from the South African Government site. Many of the provincial governments publish provincial legislation and official policy documents online. See, for example, Gauteng, the Western Cape, KwaZulu-Natal, the Eastern Cape, and Mpumalanga.

 

The Southern African Legal Information Institute provides the full text of selected acts. The World Legal Information Institute provides links to some of the sites mentioned above, as well links to a few other South African acts. Search under South Africa in the Worldlii catalogue.

 

SABINET, a subscription service, has a searchable version of the Government Gazette since 1994, which includes the full text of acts, regulations and white papers, as well as other government information

 

Subscription databases providing the full text of South African legalisation are available from Juta (also available at http://www.jutastat.com/) and LexisNexis Butterworths. These sites also provide free ‘legislation updates’.

 

Courts and Judgments

 

Several South African courts make their judgments available on the Internet at no charge. These include:

 

 

The South African Legal Information Institute offers an alternative search interface to judgements from the Constitutional Court, the Supreme Court of Appeal and the Land Claims Court. The World Legal Information Institute provides links to the sites listed above, as well links to a few other sites offering free access to reported and unreported South African cases. Search under South Africa in the Worldlii catalogue.

Subscription databases including the full text of South African case law are available from Juta and LexisNexis Butterworths. LexisNexis Butterworths currently offers a free ‘Hot off the Bench’ service with access to the full text of the very newest judgments. These judgments are removed from the Hot off the Bench site when they are incorporated into one of the subscription databases. A ‘Case Locater’ service is also available free from the LexisNexis Butterworths web page.

 

South African Law Schools and Law Libraries

 

·       University of Natal School of Law

 

Legal Publishers

 

There are two major legal publishers in South Africa, LexisNexis Butterworths and Juta, both of which publish in print and electronic form.

 

 

Miscellaneous

 

The South African Law Reform Commission (previously the South African Law Commission) provides full-text access to its discussion papers and reports.

 

The South African Human Rights Commission was established by the Human Rights Commission Act of 1994 with the objective of building democracy and a human rights culture in South Africa. Various publications are available in full-text online.

 

Law Society of South Africa is the umbrella body of

the attorneys' profession in South Africa.

 

General Council of the Bar of South Africa is the professional body for South African advocates (barristers).

 

Legalbrief is a subscription service offering a daily email with the latest legal news. Its free services include an extensive archive of law-related newspaper articles (in full text), including reports on court cases and new legislation. The archive may be browsed or by topic or searched by keyword.

 

Legalnet is primarily a fee-based information service, aimed at legal professionals. However, a certain amount of current awareness material is available for free. Includes a link to De Rebus, the professional journal of South African attorneys.

 

Organisation of South African Law Libraries (OSALL)

 

CITATION

 

There is no official method of legal citation in South Africa. Editors tend to have their own house-style.

 

In general, however, an act is cited by Name of the Act, Act no. and year, followed by individual sections of the act if necessary:

E.g. Castle Management Act 207 of 1993 s.19.

 

Cases are cited in the form used by the publisher. This will usually be: Names of the Parties; the year of the law report in which the case was published; the volume number of the report; an abbreviation indicating the report series; the page number on which the case begins; and an abbreviation indicating the court which delivered the judgment.

Thus:

Worman v Jones 1968 (4) SA 762 (C) at 768 refers to a case reported in the South African Law Reports volume number 1968 (4), heard in the Cape High Court, and specifically cites page 768.

 

Pillans v Jooste [1999] 1 All SA 367 (A) at 372 refers to a case reported in the All South African Law reports volume number 1999 (1), heard in the Supreme Court of Appeal, and specifically cites page 372. It should be noted that while Butterworths, the publisher of All SA, uses (A) as the symbol for this court, Juta, the publishers of the SALR, now uses SCA (but also used (A) for the pre-1994 Appellate Division of the Supreme Court).

 

There is a growing tendency for courts to number the paragraphs of their judgments.

 

For more information about citation conventions, see the house-style sheet for the South African Journal on Human Rights, which is a typical example of South African law journals’ citation requirements. See also the link to ‘citation formats’ on the University of Cape Town Law Library site, which details requirements for assignments submitted to the University of Cape Town’s Law Faculty, which are based on the South African Law Journal house-style.