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Thread: Case law: How it works in practice

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    Diamond Member Vanash Naick's Avatar
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    Wink Case law: How it works in practice

    There are 5 authoritative sources of South African Law: Legislation, Case law, Common Law, African Indigenous law and Custom Law.
    The 3 separate branches of government are: 1: Legislature- creates, amends and repeal law(those 400 people in parliament; 2: Executive-execute and enforce law(police); 3: Judicial Authority, court system: which interprets and applies law.
    Legislation is simply written law eg. The marriage Act 25 of 1961(as amended). Section 29(2) of this Act states that a marriage must be solemnised in a church or other building used for religious services or in a public office or private dwelling house with open doors and in the presence of the parties themselves and at least 2 competent witnesses.
    Should there be any dispute of this law, only the courts have the power to interpret it, that is, they conclude/decide what the law makers in parliament intended for this law to mean. This then manifests itself in the form of case law.
    Example: Ex Parte Dow.In this case a husband wanted an annulment of his marriage on the basis that it had been solemnised in the garden of a private dwelling house and not in the house as is required by section 29(2)
    The court concluded that marriage is such a serious relationship and the consequences of an annulment so far reaching that the legislator could not have intended the marriage to be void if the 2 letter word “in” was not complied with.

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    Dave A (07-Dec-11)

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