UPDATE: Researching South African Law

By Amanda Barratt and Pamela Snyman

Update by Salona Lutchman

Salona Lutchman is a Senior Lecturer in the Department of Public Law at the University of Cape Town. She is an admitted Attorney and Notary of the High Court of South Africa. Currently, Salona is a PhD candidate at the Faculty of Law at the University of Cape Town. She holds an LL.B. from the University of KwaZulu Natal and an LL.M. in International Legal Studies from New York University.

Published March 2018

(Previously updated by Redson E. Kapindu in March 2010)

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1. 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 colonise and occupy the part of South Africa now known as the Western Cape.[1] In 1806, English forces defeated the Dutch settlers and took the Cape of Good Hope as a British possession.[2] 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.[3] 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.[4] 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.[5]

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.[6] 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.[7] 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.

Operating in parallel to this European based system is customary law. In terms of the South African Constitution (sections 30 and 31), customary law is an equal partner to the hybrid legal system. Customary law has been defined by the Constitutional Court of South Africa in Bhe v Magistrate Khayelitsha (CCT 9/03)[2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) as having three different forms: law that is practised in the community; law that is found in statutes, case law or textbooks on official customary law; and academic law that is used for teaching purposes. During the period of English colonial rule, a system of 'Native Administration' was established typified by indirect rule.[8] 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.[9] Matters of customary law were heard by chiefs and headmen, with a right of appeal to the Native Appeal Court, staffed by magistrates. This system of official customary law, where matters of custom and tradition were ascertained and frozen in statute, is now criticised for not taking into account the fluid and dynamic nature of custom.[10] Currently, there is a distinction drawn between living customary law (i.e. the unwritten custom and practices of a particular indigenous community) and official customary law (the customary law applied by courts and state institutions which is typically drawn from legislation, court precedents and textbooks).[11] The Constitutional Court has held that the version of customary law recognised by the Constitution is living customary law.[12] However, due to its fluid nature, living customary law can be difficult to ascertain and may require evidence of current customs and practises of the community to be led in court.

Adding to this plural legal system is the practise of religious personal laws. The most predominant types being Islamic, Jewish and Hindu law. Currently South African law only recognises certain aspects of religious marriages and does not officially recognise the large plethora of religious laws.[13] Despite this, communities observe religious customs and practises with the assistance of unofficial religious institutions.[14] Such institutions may make findings in disputes related to religious laws. These findings are binding only between the parties.[15] A dissatisfied party may approach the civil courts to enforce or appeal a finding. Due to the constitutional provisions related to dignity, equality, language, culture and religion, there has been greater impetus to reform the current non-recognition of religious law. The South African Law Reform Commission (a government institution tasked with making recommendations to government regarding the development, improvement and reform of certain areas of law) has been engaged in the issue of recognising Muslim marriages.[16] Unfortunately, the draft legislation has not yet been enacted.[17]

Today, South Africa retains a plural legal system, with customary law remaining a legal system for those who wish to be subject to it. All law may not conflict with the South African Constitution.

Prior to the advent of democracy in 1994 and the constitutional order, segregationist policies were essential aspect of government policy. Such policies were practised as far back as the pre-1948 colonial era. However, 'apartheid' became the official South African government segregation policy following the electoral victory of the National Party in 1948. The word “apartheid” means “segregation” or “separateness” in Afrikaans. The underlying philosophy was to separate the races in order to promote the superiority and dominance of the minority white population whilst subjugating the majority black population. 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 1950s 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 1980s. 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.

2. 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.

3. Legislative and Executive Branches

The National Parliament is bicameral and consists of:

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.

4. The Legal System

4.1. 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.[20] 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), customary 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.

4.2. Sources of Law

4.2.1 The Constitution

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 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 ‘aprovision 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. [21] In Fose v Minister of Safety and Security[22], 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 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.

4.2.2 Legislation

Legislation may be defined as the rules of law made by or under the authority of the legislature. [23] 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; [24] 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.[25]

Parliament, in South Africa comprising the National Assembly and the National Council of Provinces, is the highest national legislative authority. [26] Other state organs, such as Provincial Legislatures and Municipal Councils are responsible for passing provincial Acts and by-laws respectively; and these are termed subordinate legislation. [27] Legislation has been described as a very powerful source of law that, in principle, binds the whole society. [28] 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. [29]

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 date. [30]

4.2.3 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. [31] 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. [32] 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. [33]

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

4.3. Structure of the Courts

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

4.3.1. 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 serves 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; [34] the case of Government of South Africa and Others v Grootboom and Others [35] where, among other things, the Court re-affirmed its earlier decision in Soobramoney vs Minister of Health, KwaZulu Natal, [36] 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 is 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 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. [37] It is noteworthy that South Africa has since ratified the International Covenant on Economic, Social and Cultural Rights in 2015.[38] It will be interesting to see whether this ratification leads the Constitutional Court to reconsider its reluctance to adopt the minimum core approach to socio-economic rights. Another important human rights decision is that of Minister of Health and Others v Treatment Action Campaign and Others [39]. 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 nation-wide the drug Nevirapine that helps to prevent mother-to-child transmission of HIV/AIDS. Special mention is made here of mostly the Court’s decisions in socio-economic 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. More Landmark decisions handed down by the Constitutional Court can be accessed here.

4.3.2. 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 (travelling courts) around 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. More information on the Supreme Court of Appeal, including judgments handed down by the Court, can be accessed here.

4.3.3. 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:

The High Court has jurisdiction to hear all matters, civil and criminal, within a particular geographical region. These courts are bound by decisions made by the Supreme Court of Appeal and Constitutional Court. The High Court acts as an appeal court for the lower courts and for decisions taken by a single judge in the High Court.

It must be noted that the High Courts are located in urban areas. In order to mete out justice in rural areas, circuit courts are established to deal with criminal matters. These travelling courts are presided over by a judge from the provincial High Court.[40]

4.3.4. Magistrates’ Courts

These are lower courts spread across the country. Decisions of lower courts are not reported. Magistrates’ courts are established in terms of the Magistrates’ Courts Act 32 of 1944. These courts are bound by decisions made by the High Court, Supreme Court of Appeal and Constitutional Court. These courts have limited jurisdiction and their functions are determined and limited by legislation. In terms of section 170 of the Constitution, magistrates’ courts may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.

Magistrate courts are divided into regional and district courts. Regional courts have jurisdiction within a particular geographical region to hear criminal matters (except treason) and certain civil matters (per the Jurisdiction of Regional Courts Amendment Act 31 of 2008). These courts have limited penal jurisdiction in that it cannot impose a sentence of imprisonment of more than fifteen years and it may not impose a fine of more than R300 000 (South African Rand).

District courts are the most commonly found lower court, existing in most towns of South Africa. These courts have jurisdiction to hear both civil and criminal matters within that particular district. With regards to civil matters, the court is limited to hearing matters where the quantum does not exceed R100 000 (unless the parties agree to the jurisdiction of the district court). With respect to criminal matters, the court cannot decide on crimes of treason, murder and rape. Importantly, district courts also function as a children’s court (dealing with adoption, neglect, ill-treatment, exploitation and any other issue/s affecting children) and maintenance court (dealing with and investigating the provision of financial support to children and older persons by those legally obliged to support them).

4.3.5. Other Courts

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

4.4 International Law

The Constitution adopts a dualist application of International law with certain monist traits. Section 231 of the Constitution addresses the various circumstances in which international agreements (or treaties) are applicable in South Africa. This provision provides that as a general rule, a n international treaty that has been ratified and approved by the National Parliament, becomes locally enforceable by the courts as part of domestic law when it is 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. Interestingly, section 231(4) specifies that a self-executing provision of an international agreement is applicable without transformation or incorporation, if it is approved by parliament and consistent with the Constitution. Some scholars have argued that the vagueness of what is meant by a self-executing provision may provoke debate.[41] However, human rights scholars have argued that this provision may actually mean that certain fundamental provisions of human rights treaties are directly applicable in the state.[42] Thus far, the meaning and application of section 231(4) has not been decided by any court. ion 232 of the Constitution 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. g 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. In addition, section 233 of the Constitution obliges every court when interpreting legislation to prefer any reasonable interpretation of the legislation which is consistent with international law over any interpretation which is not. Importantly, 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 non-binding international law. [43]

5. Research Resources

5.1. 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:


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

Free Sites Available on the Internet:

5.2. Case Law Sources

5.2.1. 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.

5.2.2. 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 were historically reported in the language in which they were delivered. In the past, this was in either of the two official languages, English and Afrikaans. The Chief Justice of the Constitutional Court has said that English is now the official language of record in South African courts. Juta published the 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).

5.2.3. Online 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 online 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 online 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 provide access to cases that were considered for publication, but did not subsequently appear in the printed law reports. LexisNexis ' Judgements Online and Juta’s Legalbrief are subscription databases available through the publishers' websites.

Free Case Law Online: The Constitutional Court and Supreme Court of Appeal sites provide easy access to judgments as 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. Links to judgments from other Courts can also be accessed from the Constitutional Court website.

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 currently offers a free 'Hot off the Bench' service with access to the full text of the very latest 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 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.

5.3. Treaties

South African treaties are not easy to find in full text form. The Department of International Relations and Co-operation 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.

In addition, the United Nations Treaty Collection website provides information on the status of all UN treaties.

5.4. 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. 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); the African Human Rights Law Journal; the Constitutional Court Review; the South African Journal of Public Law; the 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 here.

All South African legal journals are indexed by the Index to South African Periodicals. This SABINET subscription database 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. It can also be accessed 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. iSalpi is a useful index of South African law journals and can be accessed for free on the Constitutional Court website.

Very few South African legal journals are available in full text online. 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 SABINET ; 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 SABINET . The Centre for Applied Legal Studies at the University of the Witwatersrand, publishes the SAJHR and has made SAJHR content pages since 1995 available online. The African Human Rights Law Journal, published by the Centre for Human Rights at the University of Pretoria, is available online for all issues that are more than three years old. The Potchefstroom Electronic Law Journal is available in full text online, along with the ESR Review and the University of the Western Cape Faculty of Law journal Law, Democracy and Development.

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.

5.5. Reference Works

Legal Dictionaries:

Abbreviations and Citations:

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.

5.6. Selected Textbooks

Introduction to South African Law


Commercial and Company Law

Competition Law

Conflict of Laws

Constitutional Law, Administrative Law and Human Rights Law

Contract and Agency

Criminal Law



Environmental Law



Family and Persons

Inheritance, Succession and Estates

Intellectual Property

International Law

Labour Law

Legal History

Legal Pluralism

Maritime and Shipping Law

Property Law

Social Security

Sports Law

Statutory Interpretation




6. Websites for South African Legal Research

6.1. Government and Legislation

6.2. 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. LexisNexis 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.

6.3. South African Law Schools and Law Libraries

6.4. Legal Publishers

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

6.5. Miscellaneous

7. 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.


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.

[1] Meintjes-Van der Walt, Singh (et al.) Introduction to South African Law: Fresh Perspectives 2nd ed.- Cape Town: Heinemann, 2011, 31.

[2] Ibid, 32.

[3] Ibid, 35.

[4] Ibid.

[5] Ibid, 33.

[6] For more on the Union of South Africa, see http://www.sahistory.org.za/topic/union-south-africa-1910 (accessed 2 February 2018).

[7] Meintjes-Van der Walt, Singh (et al.) Introduction to South African Law: Fresh Perspectives 2nd ed.- Cape Town: Heinemann, 2011, 36.

[8] The policy of “indirect rule” was applied by the colonial British government in South Africa whereby “native administrations”, courts and treasuries were established with the cooperation of traditional leaders and communities to relieve the financial burden on colonial governments – see Himonga, Nhlapo (eds.) African Customary Law in South Africa - Cape Town: Oxford University Press, 2014, 8.

[9] Meintjes-Van der Walt, Singh (et al.) Introduction to South African Law: Fresh Perspectives 2nd ed.- Cape Town: Heinemann, 2011, 113.

[10] Ibid, 115.

[11] Himonga, Nhlapo (eds.) African Customary Law in South Africa - Cape Town: Oxford University Press, 2014, 25 – 27.

[12] Ibid, 31.

[13] Rautenbach, C (ed.) Introduction to Legal Pluralism 4th ed. - Durban: LexisNexis 2014, 5.

[14] Ibid.

[15] Ibid.

[16] Ibid, 15.

[17] For more information, see https://www.dailymaverick.co.za/article/2017-08-31-when-enough-is-enough-why-are-muslim-marriages-still-fighting-for-recognition/#.WnQbt65saUk (accessed 2 February 2018)

[18] See Sec.46 (1) of the Constitution.

[19] See Sec. 60(1) of the Constitution.

[20] D Kleyn & F Viljoen, Beginners Guide for Law Students, (Juta: 2002)

[21] JWG van der Walt, Law and Sacrifice: Towards a Post-apartheid Theory of Law (Wits University Press: 2005), 3-4.

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

[23] See RE Kapindu, Malawi, Globalex

[24] 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.

[25] Ibid.

[26] See Section 43 of the Constitution. See also Kleyn & Viljoen, nabove, 44.

[27] See Kelyn & Viljoen, n…above, 45

[28] Ibid.

[29] Ibid.

[30] Kleyn & Viljoen, n.above, 47.

[31] Ibid, 61.

[32] Kleyn & Viljoen, 60.

[33] 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) para. 50, 185 (9th Cir. 1996).

[34] S v Makwanyane 1995 (3) SA 391 (CC)

[35] 2000 (11) BCLR 1169 (CC) [Grootboom case]

[36] 1998 (1) SA 765 (CC) [Soobramoney case].

[37] 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.

[38] See http://indicators.ohchr.org/ (accessed 2 February 2018) for a list of state ratifications.

[39] [TAC case] 2002 (5) SA 703; 2002 (10) BCLR 1075.

[40] Meintjes-Van der Walt, Singh (et al.) Introduction to South African Law: Fresh Perspectives 2nd ed.- Cape Town: Heinemann, 2011,142.

[41] M E Olivier, “International human rights agreements in South African law: procedure, policy and practice (part 2)” Journal of South African Law (2003) 490, 495.

[42] Ibid.

[43] See S v Makwanyane 1995 (3) SA 391 (CC), para. 35 (per Chaskalson, P).