South African law – Origin of South African law

Understanding the Conveyancing Process
July 7, 2020

South African law has a ‘mixture of legal systems’, or in other words, an amalgam of different legal systems.  The origins of our legal system are derived from the civil law systems of Europe (the Roman-Dutch law), common law of England and our own Indigenous Law.  This means that South Africa does not have a codified legal system.  Codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

Roman Dutch law

Roman Law is related to the history of the Roman Empire – +/- 753BC to 476 AD. Development of the Roman Law during the Roman empire:

  • The Period of Kings – Rome is relatively undeveloped and the law consists of customs.
  • Republican Period – Roman Law is systematised for the first time and put into writing in the Twelve Tables.
  • The Period of the Emperors – The law developed into a sophisticated system due to works of the jurists.
  • The Dominate – Absolute monarchy. The legal system stagnates and declines.

Germanic tribes conquered the Western Empire around 476 AD and the application of the Roman Law declined. Although the Roman Empire declined, the legal system stagnated. By the end of the Middle Ages, an increasing need had developed in Europe for a legal system as the tribes and provinces could not solve all the legal problems. As the Roman law was the indigenous legal system, this was developed by Holland as law.

English law

English law developed in South Africa because:

  • Judges and magistrates were imported from England;
  • local Jurists studied in England;
  • jurists in South Africa referred to English court decisions;
  • many South African acts were based on English acts;
  • the final court of appeal was the Privy Court in England.

Indigenous law

The South African Constitution recognises traditional authority and customary law under Section 211 of the Constitution. Customary law, prior to colonialism, had its sources in the practices, traditions and customs of the people. Customary law is fluid, and changes over time and among different groups of people.

This part of law is derived from custom and judicial precedent rather than statutes.Before the European settlers arrived at the Cape, the people of South Africa had their own law and rules. Today these laws are called ‘indigenous law’ or ‘customary law’. Customary law comes from indigenous cultures in South Africa and is also often referred to as indigenous law.

When the settlers arrived in the Cape in 1652, there was already an established legal system being practiced by the people who lived here.

This indigenous legal system was:

  • Unwritten
  • Passed on orally from generation to generation
  • Strongly tied to culture, tradition and the tribe.

But customary/indigenous law was not recognised as part of the South African legal system by the colonial powers. Roman-Dutch law was seen as the common law of the land after settlement of the Dutch East India Company in 1652.  At that stage all the customary laws were passed on by word of mouth and were unwritten.

When Britain took over the Cape in 1814, the colonial policy was to keep on the local laws of the new colonies as long as they were “civilised”. Roman-Dutch law was seen as civilised and all other systems of law were ignored. The customary laws were codified but the sources were with a Western perspective and interpretation.

It was only when South Africa became a democracy in 1994 and adopted its Constitution that indigenous law was recognised as having the same standing as Roman-Dutch law.

Under the Constitution, Roman-Dutch and customary/indigenous law are now treated as equal. However, if the customary law is in conflict with the Constitution, then the court has to apply the Constitution and the Bill of Rights.

Customary law is used in chiefs’ or headmen’s courts, but these can only deal with certain cases between people who are part of the culture.

De Louw Le Roux

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