Summary CSL2601 constitutional_law_exam_notes MUST READ

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prescribes the consequences that may arise in the event of state authority being improperly exercised.* It cannot be repealed or amended but it must leave room for growth.(That’s why it only sets out the framework, the principles, and lets the changeable legislation spell out the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