key to the study guide - Name

law. Where there is nothing to be found on a particular point in the
sources of our law, the judge can turn to the law of other countries to
try to find a suitable legal principle.
To summarise
The authoritative sources of our law must be consulted in the
following order:
(1) statute law
(2) customary law
(3) case law
(4) old authorities on Roman-Dutch law
(5) Roman law
Other sources which can be consulted are
. modern textbooks and other academic works
. foreign law
Now you know what the sources of our law are and their order of
precedence. In the case of case law, you also have to understand what the
precedent system is and how it works.
2 THE PRECEDENT SYSTEM
The precedent system or doctrine of stare decisis (which means ``to stand by
previous judgments'') implies that if a court has given a particular
decision, it and those courts which are subordinate to it are bound by the
decision and must in future give the same decision on the same point. The
reason for this doctrine is mainly to achieve uniformity in the application
of legal rules and to ensure a measure of legal certainty.
Therefore, when a judge has decided what the applicable rule is in a
particular case and has interpreted it or, where necessary, has developed it,
that application and interpretation or development must be followed in
future in all similar cases, for the sake of legal certainty and uniformity.
Prior to the coming into operation of the final Constitution on 4 February
1997, a court could not make any new legal rules and the judge's function
was purely to state the law and not to create it. A judge could only
determine the existing legal rules and then interpret them. Section 8(3) of
the Constitution (Act 108 of 1996) now expressly determines that when
applying a provision of the Bill of Rights (contained in ch 2 of the
Constitution) to a natural or juristic person, the court in order to give
effect to a right in the Bill, must give effect to the common law or, if
necessary, develop the common law to the extent that legislation does not
give effect to that right. The old rule that it is merely the function of a
judge to state the law and not to create it, therefore no longer applies
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