key to the study guide - Name

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without qualification. Where a particular case concerns one of the
fundamental human rights, it is also part of the judge's function to create
law to the extent to which the existing law does not recognise a
fundamental human right.
The precedent system is particularly necessary in countries such as South
Africa and England where the law has not been codified (ie the law is not
written down in an Act Ð known as a Code Ð which reflects the state of
the law at that point). On the European Continent, where the law is
almost completely codified, the precedent system is expressly banned in
some of the Codes, but it is none the less applied in practice.
There are two requirements for the operation of a precedent system, both
of which the South African system fulfils
(1) a hierarchy of courts (in other words, the courts are divided into ranks,
each rank being bound by the decisions of the rank above it)
(2) an effective system of law reporting (to enable the lower-ranking
courts to see what the higher-ranking courts have held)
The precedent system as applied in South Africa may be briefly explained
as follows:
2.1 The constitutional court
The constitutional court is the highest court in all constitutional matters
and therefore has jurisdiction in all matters relating to the interpretation,
protection and enforcement of the Constitution of the Republic of South
Africa Act 108 of 1996. This includes jurisdiction over any matter relating
to any violation or threatened violation of a fundamental right entrenched
in the Bill of Rights, which is contained in chapter 2 of the Constitution.
Further, section 167(4) of the Constitution lists a number of matters which
may be decided only by the constitutional court to the exclusion of all
other courts. This list includes, for example, decisions on the constitutionality
of any amendment to the Constitution. No other court has any
jurisdiction to pass judgment on such matters. However, other constitutional
matters can be heard by the supreme court of appeal, the different
divisions of the high court and other courts with the status of superior
courts. The lastmentioned courts are, however, all bound by the decisions
of the constitutional court. Furthermore, section 167(5) of the Constitution
determines that when the supreme court of appeal, any division of the
high court, or any other court with the status of a superior court makes an
order on the constitutionality of an Act, such order will first have to be
approved by the constitutional court before it can have any force.
A decision of the constitutional court therefore binds all persons and all
legislative, executive and judicial organs of state. Thus every person, every