The South African law system strives for surety and unity that will eliminate uncertainties and reduce grey areas within the law. This surety and unity is influenced by a number of factors; factors including discretion by the courts and jurisdiction, as well as different provincial legislation.
According to schedule 4 in the Constitution of the Republic of South Africa 1994, different provinces have the right to make their own legislation, so long as it is on the list given by schedule 4, and as long as these provincial legislations do not clash with the Constitution and the bill of rights.
If there is a collision between national legislation and provincial legislation, national legislation takes preference. In South Africa, the way that courts interpret national legislation differs from court to court and from province to province. For example, in Gauteng, one can get a judgement to do community service but in the Eastern Cape one cannot; which begs the question: how united is our law system really?
Discretion among the courts plays a fundamental role in a just, fair and reasonable trial; but discretion can also create new grey areas in the law and because of the presidential system, magistrate courts are bound by certain judgements made by the higher courts. The president system does form unity, but it can still be interpreted differently from court to court and province to province.
In South Africa our main form of surety and unity is placed in the Constitution, which is the highest authority in our country. If any legislation or any judgment is made that opposes the Constitution, it is considered unconstitutional and cannot be used, unless the Constitution has been amended. According to the Constitution, courts must approach each varying case in the spirit of equality, freedom and dignity in an open and democratic South Africa.
The fact of the matter is that law is not always black on white, but should rather be viewed as the art of juggling the grey areas from case to case and province to province. These grey areas paint new challenges for our law system; challenges like the right to a fair trial, equality in judgements and freedom under the law. Surety and unity in our law system should be strived for, for a more just and fair Rainbow Nation.
