key to the study guide - Name

Order in which
authoritative
sources must be
consulted
6
often overlap. The fact from which the law arises can also be an
authoritative source of the law. The most obvious example of this is
legislation.
The authoritative sources of law, IN THE ORDER IN WHICH THEY
MUST BE CONSULTED, are the following:
(1) statute law
(2) customary law
(3) case law
(4) the works of the old authorities on Roman-Dutch law
(5) Roman law
Other sources which are not, strictly-speaking, authoritative sources, but
which can be consulted because they are helpful in determining what the
law says are the following:
(6) modern textbooks and other academic writing
(7) foreign law
We will now discuss each of these sources hereunder.
(1) Statute law. Legislation is the most important authoritative source of
our law. The law can be found in the statutes, ordinances,
proclamations and regulations of the different legislative bodies such
as Parliament, municipal councils, and other local governments. Thus,
for example, if one has a problem with a divorce-related issue, the
Divorce Act 70 of 1979 will be the first place to look to find an
answer to the problem.
(2) Customary law. Certain rules of conduct are observed because they have
become customary in the sense that they are respected by a substantial
group of people. For example, common commercial practice is the
embodiment of a customary law. Customary law does not consist of
written rules. It develops from the views of the community and
is carried on down from generation to generation.
In modern communities, where the pace of development is very rapid,
custom has little chance to develop into law. Once the need for a
particular legal rule arises, the legislature usually steps in and lays
down a rule. Nevertheless it is still possible, even today, for a custom
to develop into law.
It appears from court cases that the following requirements must be
met before a customary rule will be recognised as a legal rule:
(a) Itmustbereasonable.
(b) It must have existed for a long time.
(c) It must be generally recognised and observed by the community.
(d) The contents of the customary rule must be certain and clear.
(3) Case law. An important authoritative source of law is known as case