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, elected for a 5 year term according to a system of

proportional representation, and comprising between 350 and 400 members,[18] and
the National Council of Provinces, with ten representatives from each province, who
vote as a block [19]
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:

Eastern Cape High Court (with its seat in Bisho)

Eastern Cape High Court (with its seat in Grahamstown)
Eastern Cape High Court (with its seat in Mthatha)
Eastern Cape High Court (with its seat in Port Elizabeth)
Free State High Court (with its seat in Bloemfontein)
KwaZulu Natal High Court (with its seat in Durban)
KwaZulu Natal High Court (with its seat in Pietermaritzburg);
North Gauteng High Court (with its seat in Pretoria)
North West High Court (with its seat in Mafikeng)
Northern Cape High Court (with its seat in Kimberley)
South Gauteng High Court (with its seat in Johannesburg)
Western Cape High Court (with its seat in Cape Town).
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:

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.
Online:

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:

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.
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 here.
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 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.
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:

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.

5.6. Selected Textbooks

Introduction to South African Law

Church, J et al. Workbook for Introduction to the Law. 2nd ed. – Durban:
Butterworths, 1996.
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.
Kleyn, D & Viljoen, F. Beginners Guide for Law Students Cape Town: Juta, 2006.
Meintjes-Van der Walt, Singh (et al.) Introduction to South African Law: Fresh
Perspectives 2nd ed.- Cape Town: Heinemann, 2011.
Bankruptcy

Smith, Catherine Harriet The law of insolvency. 3rd ed. - Durban: Butterworths,
1988.
Sharrock, R.D, et al, Hockly’s insolvency law. 8th ed. - Cape Town: Juta, 2006.
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. 6th ed. - Cape Town: Juta,
2007.
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
jurisdictionof 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.
S Woolman et al (eds.), Constitutional Law of South Africa – Cape Town: Juta, 2006.
Cheadle, M.H. (et al.) South African constitutional law: the Bill of Rights. -
Durban: Butterworths, 2002.
CurrieIain 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. 5th Ed. - Cape Town: Juta,
2005.
Hoexter, C. Administrative Law in South Africa, Cape Town: Juta, 2007.
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. 5th ed. - Durban: LexisNexis
Butterworths, 2006.
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.
Himonga, Nhlapo (eds.) African Customary Law in South Africa - Cape Town: Oxford
University Press, 2014.
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

Bellengere, A (et al.) The Law of Evidence in South Africa -Cape Town: Oxford
University Press, 2013
Schwikkard, P.J. and S.E. van der Merwe Principles of evidence. 4th ed. - Cape
Town: Juta, 2016.
Zeffert, D.T. (et al.) The South African law of evidence. 3rd ed. - Durban:
LexisNexis Butterworths, 2017.
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

Bennett, TW and J Strug Introduction to International law - Cape Town: Juta 2013.
Dugard, John International law: A South African perspective. 3rd ed. - Cape Town:
Juta, 2005
Strydom, H (ed.) International law - Cape Town: Oxford University Press, 2015.
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.
Legal Pluralism

Rautenbach, C (ed.) Introduction to Legal Pluralism 4th ed. - Durban: LexisNexis

2014.
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.
6. Websites for South African Legal Research

6.1. 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 and LexisNexis. These sites also provide free 'legislation
updates'.
6.2. Courts and Judgments

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

South African Constitutional Court (cases from 1995 onwards)

Supreme Court of Appeal (cases from 1998 onwards)
Land Claims Court (cases from 1996 onwards)
Labour Appeal Court (1998-2001 only)
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

University of Cape Town Faculty of Law and Law Library

University of the Witwatersrand Law School and Law Library
North-West University Faculty of Law and Law Library
University of Johannesburg Faculty of Law and Law Library
Rhodes University Faculty of Law
University of the Free State Faculty of Law and Law Library
University of KwaZulu- Natal School of Law
University of Pretoria Faculty of Law and Law Library
University of South Africa Faculty of Law and Library
University of Stellenbosch Faculty of Law
University of the Western Cape Faculty of Law and the Dullah Omar Institute
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

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)
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.

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.

[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).