Sources of Health and Safety law
Sources of law is a legal term that refers to the authorities by which laws are made. It is the
authority from which the laws derive their force. It may also mean the origin from which human
conduct come into existence and derive legal force or binding characters. Examples of sources of
law are the constitution, judicial precedent/judge made law, legislation, etc.
Sources of Health and Safety law are the constitution of the nation; judicial precedent;
common law; legislation/statutes; international law; and customary law.
1. Constitution:
The constitution is commonly referred to as the mother of all laws, within a given nation. This is
so because it is the supreme law of the land and all other laws must conform to it. The
constitution of Botswana has set up a Republican Government made up of three (03) arms of the
state, viz; - the Executive; - the Legislature; - and the Judiciary.
The constitution is strictly followed in application any law. Thus the application of
environmental law must be in compliance with the provisions of the constitution and any
environmental law provision which goes contrary to the provisions of the constitution will be
regarded as invalid. In fact any law which goes contrary to the constitution is declared
unconstitutional and not applicable.
2. Judicial Precedent:
Judicial precedent refers to the legal practice by lower courts of referring to the previous
decisions made by the courts of higher jurisdiction on cases with facts of a similar nature. That
is, the courts of lower jurisdiction are bound by the previous decisions of the courts of the higher
jurisdiction. In Latin, the phrase “stare decisis” is closely associated with the doctrine of judicial
precedent. It means simply “let the decision stand.” “Stare decisis” is the principle that similar
cases should be decided according to consistent principled rules so that they will reach similar
results. The use of judicial precedence helps achieve stability in the law as well as predictability.
There are two types of precedent: binding precedent and persuasive precedent.
Binding precedent is found in the ratio decidendi of the case, or the ‘reason for deciding’. This is
a precedent from an earlier case, which generally must be followed even if the judge in the latter
case does not agree with the legal reasoning behind it. A binding precedent is created when the
facts of a later case are sufficiently similar to an original case and if the decision was made by a
court which is higher than, or in some cases the same level as, the court hearing the latter case.
The decision in Donoghue v Stevenson [1932] AC 562 set the binding precedent that ‘a person
will owe a duty of care not to injure those who could be reasonably seen to be affected by their
acts or omissions’ and therefore had a profound effect on later cases.
Persuasive precedent is not binding on the court, however a judge may consider such a precedent
and decide that it is the correct principal to follow. In other words, he may be compelled to
follow it. They can come from many sources including: obiter dicta (‘things said by the way’),
lower courts, Privy Council decisions, and a dissenting judgement.
The general rule when it comes to the doctrine of precedent is that all courts are bound to follow
decisions made by courts higher than they in the hierarchy and appellate courts are normally
bound by their own previous decisions.
Ways of avoiding precedent
Judges may avoid following a previous precedent by:
• Overruling
• Reversing
• Distinguishing
Overruling
This is where a court in a later case states that the legal rule decided in an earlier case is wrong.
This is where a court of higher jurisdiction in the hierarchy departs from a decision made in a
lower court. The previous decision is no longer binding.
This can also occur in a court of the same level in the circumstances outlined above e.g. the
Court of Appeal of Botswana overruling its own former decision.
Reversing
This is where a court of higher jurisdiction up in the hierarchy overturns the decision of a lower
court on appeal in the same case. The higher court departs from the decision of the lower court
on appeal. E.g.
For example, the Court of Appeal may disagree with the legal ruling of the High Court and come
to a different view of law, in this situation they reverse the decision made by the High Court.
Distinguishing
This is a method used by a judge to avoid following a past decision which he would otherwise
have to follow. The judge can find material facts of a case they find sufficiently different in order
to draw distinction between the present case and the previous precedent.
3. Common law
It is a system of law which is not derived from legislation and emanate from a collection of
principles made by judges in the course of resolving issues brought by parties to court. It has
therefore been described as judge-made law or case-law.
It also includes statutes enacted by legislative bodies, though those statutes typically either
codify judicial decisions (i.e. to reduce law, rules, etc. to a code, i.e. in writing) or fill in areas of
the law not covered by case-law.
While common law to a large extent s the same as judicial precedent there are other occasions
when in the absence of a previous relevant case courts may decide a matter on the basis of what
may be termed fundamental principles of justice and fairness.
The common law of Botswana is said to be Roman-Dutch law, which was inherited from the
Cape
Colony. The Roman-Dutch law origin is found in Roman law as influenced by Dutch customary
law. It was introduced to the then cape colony in 1652. Over the years it has been influenced by
the English common Law after British colonization of the colony. In Botswana, it has been
developed over years by statutes passed by the parliament and Judicial decisions.
4. Legislation/Statutes
Legislation is an enactment made by a legislature and expressed in a formal document. The
document to which such an enactment is expressed is known as a statute. A statute is a formal
written enactment of a legislative authority that governs a state, city, or country.
Typically, statutes command or prohibit something or declare policy. The word is often used to
distinguish law made by legislative bodies from case-law decided by the courts, and regulations
issued by government agencies, (i.e. the executives).
Statutes are sometimes referred to as legislation or “black letter law”. As a source of law statutes
are considered as primary authority (as opposed to secondary authority) e.g. delegated
legislation.
Ideally all statutes must be in harmony with the fundamental law of the land, i.e. the constitution.
Just like statutes legislation are primarily the laws passed by parliament. Laws passed by
parliament are called Acts, orders, proclamations, By-laws, regulations or rules.
Examples of Acts of parliament that are of importance to Principles of Health Safety law
are:
Public Health Act 2013
Waste Management Act of 1998;
Atmospheric Pollution (prevention) Act of 1971;
Control of smoking Act of 1993;
Delegated Legislation
Parliament can delegate the law making powers to a variety of public authority e.g. President,
Minister, or local authorities.
Legislation emanating from these authorities these authorities in the exercise of the powers
granted to them by parliament is called delegated legislation. The constitution of Botswana
allows parliament to delegate its law making powers. It makes it clear that the legislature is
empowered to confer legislative function on any person or authority.
The system of delegated legislation has been criticized for giving too much power to the
executive, something that is contrary to the principle of separation of powers.
However, delegated legislation may be defined on the following grounds, inter-alia:
1. Pressure on parliamentary time table;
2. The need from time to time to deal with emergency situations e.g. declaring state of
emergency, curfew, etc.
3. The technically of the subject matter of a particular subject matter e.g. hazardous drugs.
5. International law (Treaties and Conventions)
International law is the term commonly used for referring to laws that govern the conduct of
independent (sovereign) states/nations in their relationships with one another. International law is
mostly found in international agreements which are referred to as Treaties and Conventions.
Examples of these
International laws on health and safety are:
International Health Regulation 2005
WHO (World Health Organization) 1948
6. Customary law
Customs are rules not necessarily recorded in writing which become binding in the course of
time through their observance by the community in question. In other words the community
becomes accustomed to regulating its relationships in a particular way and many of its members
regard that particular way of doing things as legally binding.
The customary court Act 1969 has defined customary law in its Section 2 as “Customary law”
means, in relation to any particular tribe or tribal community, the customary law of that tribe or
tribal community so far as it is not incompatible with the provisions of any written law or
contrary to morality, humanity or natural justice. The 1891 British Proclamation instructed the
High commission to respect the native laws. Therefore these indigenous peoples’ laws received
recognition by the colonial master and some of these laws made direct positive impact on the
environment and health and safety.
In the case Van Breda vs. Jacobs (1921), the court upheld the custom in the fishing trade
whereby if persons involved in fishing could make/lay a claim to fish in the sea not yet captured
by their nets as long as they were in the line of their nets.
Other Remote Sources of Law:
a. Authoritative Texts: This refers to writings by leading authorities in the field of
environmental law. Books written by Jurists and Professors of environmental law are
authoritative sources of law and may be treated as such by the courts.
The persuasive nature of an opinion of an author depends on the standing of the author in the
field of law in question, the reputation of the author among other authors or judges, the scholarly
level of the piece of work involved and the convincing nature of the presentation.
b. Law Reports: This is an essential component of system based on precedent, and an effective
system where laws of precedent are recorded to ensure that they are available to those wishing to
discover the law.
