South African Law & Government
Government & Politics
South Africa is the only nation in the world with three capital cities: Cape Town, the largest of the three, is the legislative capital; Pretoria is the administrative capital; and Bloemfontein is the judicial capital. South Africa has a bicameral parliament: the ninety members of the National Council of Provinces (the upper house); and the four hundred members of the National Assembly (the lower house). Members of the lower house are elected on a population basis by proportional representation: half of the members are elected from national lists and half are elected from provincial lists. Ten members are elected to represent each province in the National Council of Provinces, regardless of the population of the province. Elections for both chambers are held every five years. The government is formed in the upper house, and the leader of the majority party in the National Assembly is the President.
Current South African politics are dominated by the African National Congress (ANC), which received 69.7% of the vote during the last 2004 general election and 66.3% of the vote in the 2006 municipal election. The current (2004-2009 term) President of South Africa is Thabo Mbeki, who succeeded former President Nelson Mandela. The main challenger to the ANC's rule is the Democratic Alliance party, which received 12.4% of the vote in the 2004 election and 14.8% in the 2006 election. The leader of this party is Helen Zille (elected May 6, 2007). The previous leader of the party was Tony Leon. The formerly dominant New National Party, which introduced apartheid through its predecessor, the National Party, suffered increasing humiliation at election polls since 1994, and finally voted to disband. It chose to merge with the ANC on 9 April 2005. Other major political parties represented in Parliament are the Inkatha Freedom Party, which mainly represents Zulu voters, and the Independent Democrats, who took 6.97% and 1.7% of the vote respectively, in the 2004 election.
However since 2004 the country has suffered many thousands of popular protests, some violent, making it, according to one academic, the "most protest rich country in the world.". Many of these protests have been organised from the growing shanty towns that surround South African cities.
Foreign Relations
The foreign relations of South Africa have spanned from the country's time as Dominion and later Realm of the British Empire to its isolationist policies under Apartheid to its position as a responsible international actor taking a key role in Africa.
South Africa is active in the United Nations, the African Union and the Commonwealth of Nations. South Africa is now a respected international citizen. Considered a possible permanent addition to the United Nations Security Council, South Africa has been elected by the UN General Assembly to serve on the Security Council in 2007 for the first time ever.
South Africa has been a non-permanent member of the United Nations Security Council since October 2006. Its tenure lasts until 2008. South African votes in the UNSC have not been without controversy. In particular, a 'no' vote on a resulution criticising the Burmese government attracted widespread criticism.
In 1990, as part of the reformist policies undertaken by president F.W. de Klerk in South Africa, Namibia was granted independence, with the exception of the enclave of Walvis Bay, which was reintegrated into Namibia in March 1994. After South Africa held its first multiracial election in April 1994, most sanctions imposed by the international community in opposition to the system of apartheid were lifted. On June 1, 1994, South Africa rejoined the Commonwealth of Nations, and on June 23, 1994, it was readmitted to the UN General Assembly. South Africa also joined the Organization of African Unity (OAU), now known as the African Union; the change from the OAU to the Union was initiated by South African President Thabo Mbeki in 2002.
Having emerged from the international isolation of the apartheid era, South Africa has become a leading international actor. Its principal foreign policy objective is to develop good relations with all countries, especially its neighbors in the Southern African Development Community and the other members of the African Union. South Africa has played a key role in seeking an end to various conflicts and political crises on the African continent, including in Burundi, the Democratic Republic of Congo, the Comoros, and Zimbabwe. In August 1998, South Africa assumed the chair of the Non-Aligned Movement, which it relinquished in July 2002.
Swaziland has asked South Africa to open negotiations on reincorporating some nearby South African territories that are populated by ethnic Swazis or that were long ago part of the Swazi kingdom.
Law
The Law of South Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from its Dutch colonisers, a common law system from its English colonisers, and indigenous law, often termed African customary law. These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law. As a general rule, South Africa follows English Law in the areas of Procedural Law, the Law of Contracts and the Law of Evidence, while Roman-Dutch Common Law is followed in the South African Law of Delict, Law of Persons, Law of Things, Family Law etc. Today, another strand has been added to this weave: the Constitution, which is supreme law.
South Africa has a number of sources of legislation and law: (1) legislation (including the Constitution), (2) common law (including the Roman Dutch 'old authorities' and judicial precedent), (3) African customary law, (4) custom, (5) foreign and international law, and (6) legal scholarship. Not all of these sources are equally binding.
Sources of law that are binding or authoritative must be taken into account by judges in make decisions, while persuasive sources can be referred to by a judge but are not binding on her decision. The authoritative effect of a source for a particular decision depends on the type of source, the position of the judge in the hierarchy of courts, and the other sources that are relevant to the question at hand.
The laws currently in force in South Africa can be found at various Sources. On the one hand, there is the Constitution of South Africa Act, No. 108 of 1996, which governs and applies to all law and conduct within the territory of South Africa. Any law or conduct which contravenes the provisions of the Constitution is invalid and therefore illegal.
On the other hand, there is the South African Legislation. This is the codified part of the South African Law. These laws are contained in Acts which are currently being passed by the South African Parliament and which have previously been passed and enacted by the South African Parliament's predecessors.
Not all law is contained in Acts so passed by Parliament, and therefore a great reliance exists on the South African Common Law. The development of the Common Law is made possible by the fact that the South African courts follow the system of legal precedent or stare decisis. This enables a higher court to develop the law in such a way that it becomes a precedent for lower courts to follow. As law is not an empirical science, it can not be expected of Parliament or any other legislative body to be able to pre-suppose all possible scenarios of life and enact relevant laws to cater for them. This is why, South African Law places a great emphasis on the Higher courts to develop the law through their decisions, which become precedents and as such become law which is also known as case law.
Therefore, it follows that if one's task is to researh the provisions of a particular law applicable in South Africa, one should consult the codified legislation, case law and failing this, one can follow the originating sources, i.e. English Law or Roman-Dutch Law (also known as "the Old Authorities") as the case may be.
There is a hierarchy of courts, consisting of Magistrates Courts, High Courts, a Supreme Court of Appeal, the highest authority in non-Constitutional matters, and a Constitutional Court, which is the highest authority in constitutional matters. The Constitutional Court has final authority to decide whether an issue is a Constitutional one.
