South Africa has an uncodified legal system. This means that there are various sources of law, and not merely one primary source (a code), where the law can be found. The various sources of South African law that are of relevance from a biodiversity perspective include:
The principle of “constitutional supremacy” underpins the South African legal system. With the adoption of the Interim Constitution in 1994 and the subsequent adoption of the final Constitutional text in 1996, South Africa moved away from a legal system founded on Parliamentary sovereignty.
Under the new democratic dispensation, the Constitution is recognised as the supreme law of the country. This means that any law or conduct that is inconsistent with the Constitution is invalid and that the obligations that are imposed by the Constitution must be fulfilled.
Legislation may be defined as the rules of law made by or under the authority of the legislature. The national legislative authority is Parliament and it consists of the National Assembly and the National Council of Provinces. Parliament enacts legislation that, in principle, binds the whole of society. Legislation is viewed as a powerful source of law, which can effectively change old laws and create law new ones. An Act of Parliament generally comes into force when it is published in the Government Gazette. However, the Act itself may prescribe that the Act will commence a later date after its publication. Provincial legislation and municipal by-laws are termed as “subordinate legislation” and are passed by the Provincial Legislatures and the Municipal Councils, respectively.
The doctrine of judicial precedent binds courts to uphold the law as expressed in previous court decisions. The courts have a responsibility to stand by their decisions and apply the law similarly in like cases. Courts are bound by the decisions of higher courts. A court generally upholds precedent that was set in that same court or in a court of co-ordinate jurisdiction but may deviate from those decisions if it can show that the previous case was wrongly decided.
The doctrine of judicial precedent implies that courts are ordered in a hierarchical manner. The hierarchy of South African courts is ranked, from highest to lowest, as follows:
Common law refers to a set of legal rules and principles that is not contained in legislation but rather inherited from the colonial powers, and which is continuously being developed and enforced by the courts. An example of a common law principle is the “duty of care” principle. This principle, while originally forming part of the common law, also now features in South African environmental legislation.
In South Africa, customary law refers to the laws developed and applied by indigenous peoples and is contrasted to the common law, which was law imposed by colonial rulers. Generally, it refers to traditional common rules or practices that have become an intrinsic part of the accepted and expected conduct in a community, which is enforced by that community and which is capable of change over time by that community.
South African case law demonstrates that the exercise of a customary right has been successfully used as a defence in criminal proceedings. In South Africa, customary law is subject only to the Constitution and legislation which specifically deals with it. This means that a customary right can only be removed by legislation that amends customary law explicitly.
International law plays an especially useful role in the transboundary management of common resources, such as biodiversity. Since biodiversity often traverses the political boundaries between countries, South Africa needs to work with other countries to ensure that important biodiversity is conserved and sustainably used.
An “international treaty” refers to a written agreement between sovereign states (or between states and international organisations) governed by international law. An international treaty that is ratified and approved by National Parliament becomes locally enforceable by domestic courts once it is transformed or incorporated into domestic law. “Transformation” and “incorporation” refer to legislative measures through which domestic legislation is formally adopted, with a view to giving effect to a specific treaty.
“Customary international law” are rules that develop due to consistent widespread state practice, which practice is regarded as legally binding by those states. Pursuant to section 232 of the Constitution, customary international law automatically forms part of South African domestic law unless it is inconsistent with the Constitution or an Act of Parliament.
When a court interprets legislation it must favour any reasonable interpretation of the legislation that is consistent with international law over any interpretation which is not. Furthermore, South African courts have an obligation under section 39(1)(b) of the Constitution 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.
