© Juta & Co Ltd.

MODULE 2
Part 2:
Precedents,
cases, and other
sources of law
Table of contents

1. Introduction ................................................................................................................. 3
2. Precedents (court decisions, case law) .......................................................................... 3
2.1 Precedents as source ....................................................................................................... 3
2.1.1 Doctrine of judicial precedents ................................................................................ 4
2.1.2 Hierarchy of courts ................................................................................................... 4
2.1.3 Application of the doctrine of precedent ................................................................. 5
2.1.4 Ratio decidendi and obiter dicta............................................................................... 6
2.1.5 More than one judgment ......................................................................................... 6
2.1.6 Pros and cons of the doctrine of precedent ............................................................. 7
2.1.7 Value of precedents as a source of law .................................................................... 8
2.1.8 Law reports ............................................................................................................... 8
2.2 Citation (case reference) ................................................................................................. 8
2.2.1 Case name ................................................................................................................ 9
2.2.2 Year and volume in which case was reported ........................................................ 10
2.2.3 Series of law reports ............................................................................................... 10
2.2.4 Page where case report starts ................................................................................ 10
2.2.5 Court where case was decided ............................................................................... 11
2.3 Finding a case ................................................................................................................ 11
2.4 Structure and content of a law report .......................................................................... 11
2.5 Reading and summarising a case .................................................................................. 17
3. Common law .............................................................................................................. 18
3.1 Common law as source.................................................................................................. 18
4. Customary law ........................................................................................................... 19
4.1 Customary law as source ............................................................................................... 19
5. Indigenous law ........................................................................................................... 20
5.1 Indigenous law as source .............................................................................................. 20
6. Writings of modern authors........................................................................................ 21
6.1 Modern authors as source ............................................................................................ 21
7. Conclusion ................................................................................................................. 21
8. Bibliography............................................................................................................... 22

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Learning outcomes:

LO5: Describe the doctrine of judicial precedents.

LO6: Identify the five components that comprise a citation or case reference.

LO7: Locate cases through their citations or case references.

LO8: Summarise a case by only providing the essential facts and legal issues.

LO9: Describe other sources of law.

1. Introduction
As mentioned in Part 1, the sources of law and their content provide lawyers and paralegals
with authority for their arguments. This used when law students answer examination
papers, or when attorneys and advocates represent their clients in court, or when academics
write books and articles. In addition to understanding the importance and role of the
Constitution and legislation in the South African legal system, understanding the role of
precedents and various other sources of law is crucial to understanding how legislation
comes into force, how it is applied, and how it is revised. You will also be introduced to case
references and how to read them.

In Part 2, you will:

• Understand how the doctrine of judicial precedents provides for a source of law
(Section 2).

• Learn how to read citations and case references (Section 2).

• Be introduced to other sources of law (Sections 3 to 6).

2. Precedents (court decisions, case law)

2.1 Precedents as source
Kleyn and Viljoen (2010:58) argue that courts are institutions that apply the law on a daily
basis. When people cannot solve their disputes themselves, or when people are suspected
of having committed criminal offences, such cases may end up in court. The court must then
ascertain the law, apply it to the case and give judgment. The term “court” in this case
means the presiding officer, for example the judge or magistrate. Judges and magistrates,
like all lawyers, find the law that they must apply in legal sources. In other words, they look
at legislation, rules of common law and custom that may apply to the particular case before
them.

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2.1.1 Doctrine of judicial precedents
Undoubtedly, courts must also take into account their previous judgments in similar cases,
because they are bound to the approach followed in the past. Previous judicial decisions are
therefore also a source of law, and the way in which the law was applied there is
authoritative. The underlying principle is that the law that was applied to a specific factual
situation should be applied to all similar situations.

The question will often arise whether an existing precedent is applicable to the case before a
court. If the facts of the existing precedent are not materially the same as those in the case
before the court, the two cases can be “distinguished”. The court then does not have to
apply the precedent to the facts before it.

The system of judicial precedent means that lower courts are bound by the decisions of
higher courts, and, furthermore, that a court is also bound by its own previous decisions,
unless they are wrong. This implies the following:

• There is a hierarchy of courts.

• Judgments must be reported (published) in law reports so that precedents are easily
accessible.

2.1.2 Hierarchy of courts

Furthermore, the Constitution of South Africa, 1996, makes provision for some changes with
respect to the names of the courts and their powers. We have to distinguish between the
ordinary courts and the Constitutional Court. (The Constitutional Court will be discussed in a
later module.) The hierarchy of the ordinary South African courts implies that there are two
kinds of courts: higher courts (the Supreme Court of Appeal and the High Court) and lower
courts (magistrates’ courts, consisting of regional and district courts).

This hierarchy is illustrated in Figure 1 (the names of the courts before 1996 are supplied in
brackets).

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 Figure 1: The hierarchy of courts. (Adapted from Kleyn and Viljoen, 2010:59).

2.1.3 Application of the doctrine of precedent

Consequently, the hierarchy of the ordinary courts dictates the manner in which the
doctrine of judicial precedent is applied:

• The Constitutional Court is the highest court with respect to constitutional matters.
Therefore, the judgments of the Constitutional Court bind all other courts, including
the Supreme Court of Appeal, as far as constitutional matters are concerned.

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 • The Supreme Court of Appeal is the highest court. It is bound by its own previous
judgments, unless they are wrong. The judgments of this court bind all subordinate
courts in the country.

• Usually every province has its own high court, or courts. These courts are in the first
instance bound by judgments of the Supreme Court of Appeal. If there are no such
applicable judgments, these courts are bound by their own previous judgments,
unless they are wrong. A single judge is bound by the decisions of a full bench (two
or more judges). The division of the high court of a specific province is not bound by
the judgments given in another province, the latter being of persuasive force only. In
cases where the Supreme Court of Appeal itself has not yet given judgment on a
specific issue, it is not bound by the judgments of the high court. Such judgments
have only persuasive force in the Supreme Court of Appeal.

• Lower courts (magistrates’ courts) are bound by judgments of the Supreme Court of
Appeal. In the absence of such applicable judgments they are bound by the
judgments of the high court in their respective province. The judgments of lower
courts do not serve as precedents that must be followed; therefore, they are not
reported.

2.1.4 Ratio decidendi and obiter dicta

However, everything mentioned by a court in its judgment does not create a precedent. In
other words, the whole judgment in itself is not necessarily a precedent that must be
followed. Usually a court has to decide on two issues:

1. The facts of the case, and

2. The law that is applicable to the facts.

Although the facts of different cases are often similar, they are never one hundred per cent
the same; the facts always differ in some or other respect. The court’s finding of precisely
what the facts of the case before it amounts to is therefore not binding; a finding purely on
facts creates no precedent.

Obiter dicta (the singular is obiter dictum) likewise do not create precedents. Obiter dicta
literally means “remarks in passing”. These are the judge’s casual remarks concerning the
law. They are not directly relevant and applicable to the case before the court. It is not
necessary for the court to take them into account in order to reach its decision. Obiter dicta
are not binding, but they can sometimes have persuasive force.

Only the ratio decidendi creates a precedent. Literally it means “the reason for the decision”.
The ratio decidendi consists of the legal principles that the court applied to the material facts
in order to reach a decision.

2.1.5 More than one judgment

Sometimes a case is heard by more than one judge. If they are in agreement, one judge
hands down the judgment. This judgment represents the joint or collective process of
reasoning and is the opinion of all the judges on the bench. But the judges can disagree with

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one another and therefore more than one judgment can be handed down. The principle in
such cases is that the ratio decidendi is found in the judgment of the majority of judges, who
based their judgment on the same reasons. Judgments are distinguished into majority,
minority, and separate judgements.

• Majority judgment: The majority of judges who heard a particular case give the
same judgment based on the same reasons.

• Minority judgment: The judge disagrees with the majority and reaches a different
conclusion. Such a judgment establishes no precedent. It can, however, have
persuasive force in future, depending, for example, on the standing of the particular
judge.

• Separate judgment: Sometimes a judge does not disagree with the conclusion of the
other judges, but hands down a separate judgment in which a certain aspect is
emphasised or added, or his judgment could be based on totally different reasons.
Such reasons do not establish a precedent. The ratio decidendi is only to be found in
the majority judgment.

(Kleyn & Viljoen, 2010:62)

Chaskalson P wrote the Constitutional Court’s judgment which declared the death penalty
unconstitutional in S v Makwanyane 1995 3 SA 391 (CC). The other judges agreed with him,
but each of the ten gave a separate judgment, emphasising different aspects.

2.1.6 Pros and cons of the doctrine of precedent

The doctrine of precedent has the following advantages:

• Legal uniformity: The fact that all courts are bound by the judgments of the highest
court ensures to a great extent that law is applied uniformly (in the same manner)
throughout the country. In the absence of an applicable judgment by the highest
court on a specific issue, the law could differ from province to province. This is
because the high courts of the different provinces are not bound by each other’s
judgments.

• Legal certainty: The doctrine of precedent ensures that a court will be consistent in
its decisions in similar cases. Corresponding cases are to be treated equally. The law,
therefore, becomes predictable.

(Kleyn & Viljoen, 2010:63)

The doctrine of precedent has the following disadvantages:

• A precedent may have been decided incorrectly and thus does not portray the best
legal position. However, because of the doctrine, it has to be followed.

• Seeing that courts are bound by their previous decisions, it becomes difficult to
depart from them. Therefore, courts cannot strongly influence legal reform.

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 (Kleyn & Viljoen, 2010:64)

2.1.7 Value of precedents as a source of law

It was mentioned above that a lawyer must, at the outset, establish whether or not there is
a statutory provision that applies to a particular case. This is true. But the questions still
remain: what does that provision mean? How is it applied in practice? The courts establish
the precise content and meaning of statutory provisions, as well as that of other legal
norms, such as the different rules of common law and custom.

Kleyn and Viljoen (2010:64) argue that for law students and practitioners, case law is not
merely a collection of examples of how problems are solved in practice. Because of the
doctrine of precedent, case law has binding force and is, therefore, a very important source
of our law. It is there that one finds the meaning and extent of legal rules.

2.1.8 Law reports

Case law is reported in the law reports. Only a small percentage of the cases that come
before the courts are eventually reported in printed (hard copy) format. As was mentioned
earlier, judgments of the lower courts are not reported; only judgments of the
Constitutional Court, the Supreme Court of Appeal and the High Court are.

The editors of the law reports select a few cases for publication. This is influenced by:

• Whether the judgment deals with a new issue;

• Whether it is a conflicting judgment;

• Whether the judgment has important socio-political implications, and

• Whether it has an influential minority judgment.

However, some cases remain unreported. Unreported cases have the same authority as
reported ones (Kleyn & Viljoen, 2010:64).

2.2 Citation (case reference)

A citation (case reference) individualises each reported case, making it easier to find. It also
eliminates confusion when two cases have the same name.

An example of a citation is: “Casey NO v The Master and Others 1992 4 SA 505 (N)”.

According to Kleyn and Viljoen (2010:65), it consists of five components:

1. Case name: Casey NO v The Master and Others

2. Year and volume case was reported: 1992 4

3. Series of law reports: SA

4. Page where case report starts: 505

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 5. Court in which case was decided: (N)

These five components will now be discussed separately.

2.2.1 Case name

A reference will always start with a case “name”. Two parties are usually placed against one
another. In a civil case, the plaintiff’s (or applicant’s) name is given first. It is followed by that
of the defendant (or respondent). The “v” represents versus (against). In criminal cases, the
first party will always be the state (“S”). The other party is the accused.

There may also be more than one plaintiff, respondent or accused. In the case of two
parties, “and another” (“en ’n ander” in Afrikaans) is added to the first name. If there are
more than two, it is indicated by the phrase “and others” (“en andere”).

In an appeal, the appellant’s name will appear first. The other party is the respondent. In the
case of Rikhoto v East Rand Administration Board 1982 1 SA 257 (W), the finding was initially
in favour of the applicant. The respondent in the court of first instance thereafter appealed.
On appeal, the case reference is Oos-Randse Administrasieraad v Rikhoto 1983 3 SA 595 (A).

Only surnames (and not given names) are cited. In exceptional cases, reference is made to
the first letter of a party’s surname in order to protect his identity. This applies particularly
in cases where children are involved, and will always be the case when the trial took place in
camera (not in open court). An example is S v M 1980 1 SA 586 (B), which concerned the
rape of a minor.

Other references found in case names are:

• NO: Nomine officio or “in official capacity” (NNO is the plural). Casey, in the case
cited above, does not appear in his personal capacity, but as executor of the estate.

• in re: “In the case (matter) of”. This indicates that the case does not involve a
dispute between two parties, but rather the interpretation or legal position on a
certain point. This is used especially in the interpretation of statutes and wills. For
example, in the case of In re Rome 1991 3 SA 291 (A), the Court had to give a finding
on the meaning of a statutory section regulating the admission of advocates.

• ex parte: “On the application”. This indicates that only one party brings an
application to the court. If the applicant is successful, a provisional order (order nisi)
is issued by the court. This can be made final if no other party reacts to this order or
if, after the party reacting has been heard, the court decides to maintain the initial
order. An example is Ex parte Davidson 1981 3 SA 575 (D).

• Combinations are also possible: In Ex parte Chairperson of the Constitutional

Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996
1996 4 SA 744 (CC), there was only one party who brought the application (ex parte)
and it concerned a problem of interpretation (in re).

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2.2.2 Year and volume in which case was reported
The South African Law Reports have been published monthly since 1947. Four phases in the
course of reporting can be distinguished:

1. Before 1910: No single system existed. The scope for confusion is even greater if
one takes into account the fact that the Eastern Cape, Natal, the OFS, the ZAR and
the Transvaal (1902–1909) each had their own series of reporters.

2. 1910 to 1946: In 1910, the Union was formed. Reporting was now standardised.
Each division of the Supreme Court still issued its own series.

3. Since 1947: The consolidated South African Law Reports started appearing.

4. 1990: Specialist law reports began to appear.

2.2.3 Series of law reports

“SA” indicates in which series of law reports the reported case was included. This is the
“South African Law Reports” (“Suid-Afrikaanse Hofverslae”), the most general and
comprehensive series. “SA” does not indicate that it is a collection of South African cases.
Namibian and Zimbabwean cases are often relevant for lawyers in South Africa, and are also
contained in these reports. The reason for this is that both these countries have a partially
Roman-Dutch common law and both have already implemented a bill of fundamental
(human) rights.

Judgments are increasingly being published online in electronic format. Some courts provide
access to their judgments on their own websites (see [Link] for an
example).

2.2.4 Page where case report starts

The number “505” in the case reference indicates that the specific case report starts on page
505 of that volume. This page number remains constant in the case reference.

To refer to another page in the same report, the following method is used:

In Jeewa v Dönges NO and Others 1950 3 SA 414 (A) at 422H, acting chief justice
Centlivres refers to the audi alteram partem rule.

This means that reference is made to page 422 of the report, which starts on page 414. Next
to the printed text, letters of the alphabet appear in the margin, beginning with A. The
relevant text of the page can thus be found at a glance with the help of those marginal
letters. In the Jeewa case, the relevant text can be found next to the letter “H” on page 422.

Judgments of the Constitutional Court are delivered and published in numbered paragraphs.
References to parts of these judgments should therefore not be to marginal letters but to
paragraphs. For example, S v Makwanyane 1995 3 SA 391 (CC) at para 17.

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2.2.5 Court where case was decided
“N” indicates in which division of the Supreme Court (now the High Court) the case was
decided. Changes to the court structure introduced by the 1996 Constitution are reflected in
the renaming of the high courts (in terms of the Renaming of High Courts Act 30 of 2008).
“N” refers to the previous Natal Provincial Division. If a decision is reported thereafter it will
be referred to as “KZD”.

2.3 Finding a case

Each of the series of law reports has some form of index. This section outlines the most
frequently used series of law reports, the SA Law Reports.

• If you know the case reference, you can find the case very easily. Simply look in the
relevant volume of the year in question on the page number indicated in the
reference.

• If you only know the name of one of the parties or a subject, you will have to consult
the consolidated index to the law reports.

• If only the name of one of the parties is known, look it up in the section “Cases
Reported” (Butterworths) or the “Table of Cases” (Juta). This is a list of all the
reported cases in the period for which the index was compiled. Both the plaintiff
and the defendant’s names will be indexed. If the defendant’s (or respondent’s)
name appears first, the “v” will still follow the name of the applicant. Therefore, you
will also find the case Green v Fitzgerald under “F”:

Fitzgerald, Green v . . . . . . . . . . . . . . . . . . . . 1914 AD 88

(Kleyn & Viljoen, 2010:71)

2.4 Structure and content of a law report

In the following case, the judge had to decide if a husband, who negligently killed his wife,
could inherit from her estate. It is important to have a look at the structure and layout of a
reported case to ensure that you are comfortable with the abbreviations used and the
structure of the law report.

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 Figure 4: Casey No v The Masters and others. (Sourced from Kleyn and Viljoen, 2010: 63 – 78)

Note:

• The case has been abbreviated slightly.

• McLaren J: “J” indicates that McLaren holds the office of “judge”.

2.5 Reading and summarising a case

Kleyn and Viljoen (2010:79) state that cases are read with a specific purpose in mind.
Reference to previous cases is one of the instruments used in the process of persuasion. A
legal principle must be extracted from the case. Too much emphasis on the facts as such is
unnecessary.

In the law report, the judge usually deals with the facts first. After that he or she will analyse
the law. Lastly, he or she will apply the law to the specific facts and reach a conclusion.

First read the headnote. It acts as a summary of what was decided. This gives a good
indication of the essential impact of a case on the law in general. It will help in your search
for the ratio decidendi. This is the meeting point of the essential facts and the essential legal
issues on which the final finding was based. Cases are often long and elaborate, and it is
unnecessary to remember the detail and the extended facts. A summary must serve only as
a means of refreshing your memory about the relevant facts and legal aspects of the case.
Therefore, it is unnecessary to refer to the names of the parties in full. The judge’s name and
position are also irrelevant. The following is an example of a summary:

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 Figure 5: Casey No v The Master. (Sourced from Kleyn and Viljoen, 2010:80).

3. Common law
3.1 Common law as source
When a specific matter is not governed by legislation, common law usually applies. Our
common law is mainly the 17th and 18th-century Roman-Dutch law that was transplanted to
the Cape. This forms the basis of modern South African law and has binding authority. Many
of the general legal principles that you know and according to which people live stem from
common law. Examples are that murder, robbery and rape are crimes; that compensation
must be paid for damages caused unlawfully; and that the buyer who takes possession of
the thing bought must pay the agreed price. These principles do not have their origin in
modern legislation, but rather in the rich tradition of Roman law and its reception in
Western Europe, especially in the Netherlands.

To say that our common law is mainly Roman-Dutch law is to be mindful of the following:

• It would be unrealistic to believe that we are still, in all respects, living according to
17th and 18th-century law. Our courts have consequently ruled that some of these
old principles have become abrogated by disuse. In Green v Fitzgerald 1914 AD 88,
for example, the Appellate Division abolished the Roman-Dutch rule that adultery is
a criminal offence. With the passing of time, our courts have, on the other hand,
extended and adapted certain Roman-Dutch principles to suit modern-day South
African needs.

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 • Sometimes English law has, by means of precedent, influenced our common law.
Some common-law principles are, for this reason, not pure Roman-Dutch law
anymore.

It has been pointed out that our courts interpret not only legislation, but also common law.
The modern interpretation of common law can, therefore, be found in case law.

It was mentioned that it is the duty of the courts in terms of section 39(2) of the Constitution
to develop the common law in accordance with the spirit and the objectives of the Bill of
Rights.

But sometimes judges and other lawyers have to consult the original “old sources” of our
common law to find a solution to a specific problem. This will, for example, be the case
when either a specific matter is not governed by legislation or an applicable precedent does
not exist. It will also be necessary when it is suspected that an existing precedent on
common law is incorrect, or where there is general uncertainty regarding a common-law
matter.

In some contentious cases, it is necessary to research the whole development of a specific

legal principle. The first step is to look at Roman law, then at the position during the Middle
Ages as portrayed in the works of the glossators, commentators and in canon law, and finally
the Roman-Dutch sources as well as the law in other Western European territories after the
reception of Roman law (Kleyn & Viljoen, 2010:80).

4. Customary law
4.1 Customary law as source
According to Kleyn and Viljoen (2010:87), customary law is generally unwritten law. It is
fixed practices in accordance with which people live because they regard it as the law. In
modern law, custom does not play such an important role as a formative source of law. It is
seldom that a new legal principle, which does not already exist in legislation or common law,
will be established by custom. Any assertion of a custom as law has to be proved. The
requirements in this regard were laid down by the Appellate Division in the well-known case
of Van Breda v Jacobs 1921 AD 330. In this case, the Court had to decide whether a specific
custom among the fishermen operating between Cape Point and Fishhoek amounted to law.
The custom dictated that a fisherman should refrain from throwing his nets in front of
another who had been first in locating a school of fish. The court required that the following
be proved before a custom could qualify as law:

• The custom must have existed for a long time.

• It must be observed generally by the community in which it applies.

• It must be reasonable.

• Its content and meaning must be certain and clear.

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The Court ruled that these requirements were met and that the particular custom was
binding law. After the Court has decided such a matter, it is not necessary to reprove the
particular custom in future. The previous precedent then serves as authority for the
existence of the particular custom as law.

Custom also plays a role in the area of modern trade usage. Particular customs exist in the
world of trade and in the case of certain transactions. For example, interest is payable on an
overdrawn bank account. The client and the bank do not have to reach agreement on this. It
is custom in the banking world and, therefore, also law. For such customs to qualify as law,
the requirements set out in Van Breda v Jacobs have to be met.

The formative character of custom does not only lie in the creation of laws, but also in their
abrogation. Rules of common law and customary law can be abrogated by disuse if they
have not been observed for a long time. For example, in the case of Green v Fitzgerald, the
Court found that the rule that adultery amounts to a criminal offence had been abrogated
by disuse. A statute, however, cannot be abrogated by disuse. The statute must be repealed
by a later statute.

5. Indigenous law
5.1 Indigenous law as source
Many black communities live according to indigenous law, which also takes on the form of
unwritten customary law. Indigenous law is applied in the ordinary courts, when the parties
so choose. The Law of Evidence Amendment Act 45 of 1988 stipulates that a court can take
judicial notice of indigenous law, provided that it is not in conflict with the principles of
public policy or natural justice. Judicial notice means that indigenous law does not have to
be proved according to the requirements in Van Breda v Jacobs. The Court may merely
accept it (take note of it). In some instances, an expert will have to give testimony on the
content of these rules.

As is the case with our common law, section 39(2) of the Constitution also places a duty on
the courts to develop indigenous law in accordance with the spirit of the Bill of Rights.

Furthermore, section 211(2) of the Constitution gives the right to traditional authorities to
develop their own law. In this regard, the case of Shilubana and others v Nwamitwa and
Others 2009 2 SA 66 (CC) is noteworthy. In the past, the succession to the chieftainship of
the Valoyi tribe in Limpopo operated according to the principle of male primogeniture. The
tribal authorities then changed the custom to bring it in line with the constitutional
guarantee of equality and appointed a woman, the first applicant, as chief. This was
contested by the respondent, the deceased chief’s eldest son. The Constitutional Court
granted the application and pointed out that section 211(2) of the Constitution requires that
the courts respect the right of traditional communities to develop their own law.

In the recent decision, Kiewits Kroon Country Estate (Pty) Ltd v Mmoledi (875/12) 2013 189,
the Supreme Court of Appeal had to decide whether a traditional healer’s certificate could
be equated with a medical certificate for purposes of sick leave.

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Mmoledi was fired for taking unpaid leave to complete a course to be trained as a traditional
healer in response to a calling from her ancestors. The court found that her belief that
ailment will befall her if she did not adhere to the call, was sincere. The court accepted the
use of traditional healing as “beyond dispute” and equated a sick-note from a traditional
healer as equivalent to a doctor’s medical certificate.

This judgement illustrates the fact that courts do take notice of cultural practices and beliefs
(Kleyn & Viljoen, 2010:89).

6. Writings of modern authors

6.1 Modern authors as source
The writings of the old authorities on our common law have binding force as a source of law.
Our courts must follow this law, interpret it and give meaning to it. Common law, legislation
and custom are sources where the law originates. However, this is not the case with the
writings of modern authors. It is impossible to say that the law originates in these sources,
and consequently it has no binding authority.

Many academics and other lawyers write books and articles in journals on the law. These are
very useful sources in which to find the law. When you are dealing with a problem in any
area of law, the easiest way to find the law is first to consult a textbook on the particular
subject. The authors will explain the whole legal position with respect to legislation,
common law and case law. Legal practitioners, the courts and students consult these
writings on a regular basis.

Authors do not merely explain the law; they criticise it, speculate on it and suggest other
solutions. An author can, for example, present a convincing argument that a precedent
portrays the common law incorrectly, or that a specific statute is ineffective because of
many loopholes. There may also be heated debates and conflicting opinions among authors
on what the law in fact should be. Although these writings do not have binding authority,
they can sometimes have persuasive authority. A court may decide to follow the opinion of a
particular author, or to depart from one of its previous precedents because it was incorrect,
in light of such an opinion. Such opinions can also lead to the amendment of legislation. In
this way, modern authors can influence legal reform (Kleyn & Viljoen, 2010:90).

7. Conclusion
In this module, you were introduced to the different sources of the law of our uncodified
legal system. A judge, lawyer or legal practitioner will need to know where to find the law in
order to apply it to a real-life situation. Now that you have been introduced to the various
sources of law, you will learn how they are classified into their respective branches of law in
Module 3.

In this module, you:

• Learnt how to find the relevant sources that relate to a specific legal question.

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 • Found how to present your argument on a legal dilemma confidently, by referring to
the relevant legislation, case law, common law and customary law.

• Read a court case and discovered which portions can be used to reinforce or
substantiate your legal argument (ratio decidendi) successfully.

8. Bibliography
Kleyn, D.G. and Viljoen, F. 2010. Beginner's guide for law students. Juta and Company Ltd.

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