CHAPTER 2: History of SA Law

 History Facts:

Indigenous law
Roman-Dutch law
English law
Human rights
INTRODUCTION

WHY IS IT IMPORTANT TO KNOW WHERE THE

SOUTH AFRICAN LAW COMES FROM AMD
HOW IT IS DEVELOPED?
INTRODUCTION
LEGAL HISTORY EXPLAINS THE PRESENT
CHARACTER OF THE LAW.
A KNOWLEDGE OF LEGAL HISTORY LEADS TO A
BETTER UNDERSTANDING OF MODERN LAW.
• A KNOWLEDGE OF LEGAL HISTORY
FACILITATES NECESSARY CHANGE IN LAW.
THIS TENDS TO FOSTER A CRITICAL VIEW OF
LAW WHICH IS ESSENTIAL IN ASSESSING THE
NEED FOR CHANGE.
INTRODUCTION
OUR LEGAL HISTORY IS LIVING LAW
OUR LEGAL SYSTEM IS NOT WRITTEN DOWN IN
A SINGLE CODE.
WHAT IS CODIFICATION OF THE LAW?
ANSWERS TO LEGAL PROBLEMS CAN ALSO BE
FOUND IN OUR LEGAL HISTORY.
• OUR LEGAL HISTORY LINKS US TO OTHER
COUNTRIES.
THIS FACT IS IMPORTANT IN LIGHT OF A
GROWING TENDENCY TOWARDS
GLOBALISATION. MAKES LEGAL RESEARCH
EASIER AND ENHANCES THE FINDING OF A
POSSIBLE SOLUTION.
 African Law
(Customary law of
the First Nations
peoples Recept
Mixture ion of
of Roma
Roman n Law Roma
Roman-Dutch Law and in n Law
Dutch Wester
Law n
Europ
English Law e

Apartheid Law Human Rights

SOUTH
AFRICAN LAW
ROMAN LAW
 IS A LEGAL SYSTEM THAT WAS DEVELOPED
BY ROMAN CIVILISATION OVER A PERIOD OF
APPROXIMATELY 1300 YEARS.
FROM 753BC TO AD 565.
IN SOUTH AFRICA IT IS THE BASIS OF OUR
COMMON LAW.
 5 FASES
1. AFRICA FIRST
2. DUCH COLONISATION
• 3. ENGLISH COLONISATION AND
BEYOND
4. APARTHEID LAW
5. TRASFORMATIVE
CONSTITUTIONAL DEMOCRACY
Phase 1: Africa first
First people – Sub-Saharan black African people
Own African legal system = customary law

General characteristics :

Unwritten passes on orally from generation to generation.

Differs on tribal and territorial basis
Mainly regulates relationships between individuals
Communal or group-orientated system
Phase 2: Dutch colonisation
17th century = Republic of the United Netherlands
experienced its ‘Golden Age”. Extensive commercial
trade between Netherlands and the East via sea route
around Cape of Good Hope.
1652 – Jan van Riebeeck established refreshment station
in the Cape and in accordance with international laws
took control of the Cape with the intention to colonise it.
Dutch colonists lived according to Roman-Dutch law.
For 150 years, settlers at the Cape expanded, developed
and applied Roman-Dutch law and ignored African
customary law.
.

The ‘Roman’ component of

‘Roman-Dutch’ law
Roman law is the legal system that was
developed by the Roman civilization
over a period of 1 300 years. From 753
BCE to 565 CE.
The basis of South African law if Roman
law.
Next: Roman law periods: -
PERIOD OF THE KINGS
According to tradition the romans founded the city of
rome in Italy in 753BCE.
During this period seven kings reigned over the
romans.
Who were primitive farmers living under unwritten
customs.
Passed down from generation to generation.
REPUBLIC
The last king was driven from Rome in 510 BCE.
A new constitutional order, the Republic was installed.
It consisted of three components.

TWO EXECUTIVE KNOWN AS CONSULS

OFFICIALS WHO REPLACED THE
(MAGISTRATES) KING.
THE POPULAR ASSEMBLY WHICH PASSED
(THE ASSEMBLY OF THE LEGISLATION.
PEOPLE)
THE SENATE (AN THE RESOLUTIONS OF
ADVISORY BODY) THE SENATE WERE IN
THEORY ONLY ADVISORY
BUT WERE FOLLOWED AS
IF THEY HAD THE FORCE
OF LAW.
.

In 450 BCE, Roman law was codified for the first time
in the law of the Twelve Tables.
The first written account of law was passed by the
Popular Assembly as legislation and contained
primitive rules for a primitive society.
Roman society experienced enormous growth.
Roman empire included whole of Western Europe,
parts of Asia manor, North Africa and also parts of
Britain.
REPUBLIC

Flourishing trade rules for contract of sale were

created during this time.
Special officials were appointed called the praetors
who had the responsibility of developing the law.
They laid down legal rules in edicts which were
promulgated.
This development of the law give rise to a class of
people known as the jurists, who undertook the study
of law in a scientific manner.
PERIOD OF THE EMPERORS
In 27 BCE the Republic made way for a new
constitutional order during which the Romans were
governed by Emperors.
The Emperors assumed the function of the Popular
Assembly and personally began to promulgate
legislation.
Roman law of this period is usually referred to as
classical roman law.
At the end of the fourth century CE roman empire split
into two. – the Western Roman Empire & Eastern
Roman Empire
PERIOD OF THE EMPERORS

WESTERN ROMAN EASTERN ROMAN

EMPIRE WITH ROME AS EMPIRE WITH
CAPITAL CONSTANTINOPLE AS
CAPITAL
Today = Istanbul in Turkey

Christian religion was accepted as state religion.

Institution of marriage was founded on Christian principles.
Western Roman Empire was overrun by Germanic tribes
and in ad 476 a Germanic ruler ascended the throne in
Rome.
 - The fall of the Roman Empire -
 PERIOD OF THE EMPEROR

The Romans were now subject to Germanic law.

Classical Roman law was simplified and infiltrated by
Germanic law.

Roman law survived more successfully in the Eastern

Roman Empire.
The law was found in the following sources:
 Customary law
 Legislation of the popular assembly
PE RIODOF T HE EM PE ROR

 Enactments of the senate

 Edicts of the republican magistrates such as the
praetors.
 Writings of the jurists
 Imperial legislation.
Justinian’s Codification:
 Justinian ruled the Eastern Empire;
 Ambition to restore the Roman Empire;
 He initiated the codification of the law to create a
uniform and complete legal system for the whole
empire;
 The code consists of 4 parts:
 PERIOD OF THE EMPEROR

 The Institutiones: Introductory textbook for

students
 The Digesta: writings of the jurists.
 The Codex: collection of emperial legislation;
The Novellae: the new laws made by justinian;
These four parts came to be known as the

Corpus Iuris Civilis.

RECEPTION
‘Reception’ means the process through which Roman
law, as embodies in the Corpus Iuris Civilis, was
voluntarily received in and merged with Germanic law
in Western Europe from the twelfth century.
Western Europe was conquered by Germanic tribes a
process which led to the fall of western roman empire
in ad 476.

Dark middleages
RECEPTION

• Restless period – hostile attacks – Fragmentation into small

societies known as feudalism.
• Feadalism: System of land tenure which has a military basis.
Landowners gave their land in tenure to vassals. The vassals
lived on the land and worked it. For purposes of protection
against attacks, the vassals sided with a specific landlord. They
had certain duties towards the landlord including military support
System of feudalism
Western Europe lived according to Germanic law.
Unwritten customs and traditions.
RECEPTION: GLOSSATORS
Beginning of the twelfth century led to the school of
the glossators in Bologna in Northern Italy.
• Glossators applied the medieval glossing
method.
• This meant the writing of notes between
the lines or in the margins of the text of
the Corpus Iuris Civilis.
• International university.
• Professors of Bologna started teaching in
England.
GL OS SAT ORS

 University of Bologna
 In this way the knowledge of Roman law started
spreading through the rest of Western Europe.
CANON LAW

The roman catholic church had its own legal system,

Canon law.
CANON LAW

 Codified in a comprehensive source, the Corpus Iuris

Canonici.
 The church followed Roman law and therefore Canon
law was largely based on Roman law.
 Marriages, wills, illegitimate children.
 Canonists developed Roman law.
 Legal concepts which originated in Canon law are:
o Doctrine of subjective rights.
CANONLAW

 The notion of a juristic person;

 Principles of the law of civil procedure.

Therefore reception means not only the

reception of Roman law into the Germanic
legal systems of Western Europe but rather
the reception of what is called “learned
law, which includes Canon law.
 COMMENTATORS
 Also called post glossators (successors of the Glossators)
Applied themselves to the development of a modern legal
system that was in accordance with the needs of everyday
legal practice.
Paid attention to other sources of law.
Such as Canon law, Germanic, Customary law, local laws.
Their writings took the form of long commentaries.
This new approach started at the end of the fourteenth
century. in Bologna.
ROMAN DUTCH LAW
 The territory of the Netherlands lies in Western Europe and
first formed part of the Western Roman Empire.
 The Netherlands also experienced the reception of Roman
law.
 This led to the creation of Roman-Dutch law
 Important Roman –Dutch jurists:
Hugo de Groot
Johannes Voet
Johannes van der Linden.
Phase 3: English colonisation
In 1806 the Dutch rule in the Cape came to an end due
to British occupation.
Britain allowed the continued application of Roman-
Dutch law and did not abolish it.
English law never the less influenced the law
The ‘Great Trek’ started in 1836 – Voortrekkers to the
Roman-Dutch law with to the interior of the country.
Voortrekker territories got annexed by British
1910 – Union of South Africa – 4 British colonies
were united in the Union of South Africa
Customary law ?
The Dutch colonial authorities ignored customary law.
Only in 2nd half of 19th century it was recognized.
After 1910 – Union - a uniform policy was laid down
regarding the acknowledgement and application of
customary law in SA = BLACK ADMINISTRATION
ACT 1927.
 Provided for special court for black people and application of
customary law.
 Courts abolished in the 1980’s
 Customary law currently applied by ordinary courts.
Phase 4: Apartheid law
Origin – Colonial past
1948 National Party: political policy of racial
segregation and discrimination enshrined.
Legislation was used as an instrument to realise a
specific political ideology.
Population Registration Act 1950
Group Areas Act 1950
Separate Representation of Voters Act 1951
Prohibition of Mixed Marriages Act 1949
Bantu Education Act 1953
 Characteristics of apartheids law
Metz – Four Main types of Oppression:

Political autocracy
Land dispossession
Civil liberty deprivation
Opportunity destruction
 Apartheid and the common law
Modernists v Purism
Interaction between English law and Roman-Dutch
law provoked a debate among SA jurists. This spit
them into two groups:

THE MODERNISTS
&
THE PURISTS
 DEVELOPMENT OF SA LAW
• INTERACTION BETWEEN ROMAN-DUTCH AND
ENGLISH LAW:
• STATUTES PLAYED A ROLE: COMPANY LAW,
LAW OF INSOLVENCY, AND BANKING LAW.
MODERNISTS: PURISTS:

RESPECTED ROMAN DUTCH LAW THEY CONSIDERED THE MODERNISTS AS

REGARDED IT AS THE BASIS OF THE SA Contaminators OF ROMAN DUTCH LAW.
COMMON LAW.

BUT REALISED THAT THE LAW HAD TO THEY APPLIED THEMSELVES TO THE
DEVELOP AND ADAPT TO SUIT MODERN CONSERVATION OF PURE ROMAN DUTCH
SA DEMANDS. USED ENGLISH LAW TO LAW. Applied themselves to the
MODERNISE ROMAN DUTCH LAW. conservation of pure Roman-Dutch law
and tried to get rid of English influences.
 Positivists v non positivists
• Positivists
– Regard law as something detached from politics
and economics
– Apply the law irrespective if it is fair and just

Non-positivists
 Regard law as part and parcel of the social-political
environment.
Important = is the law just and fair?
 Phase 5: Transformative
constitutional democracy
• Various liberation movements were fighting to bring
apartheid to an end such as the ANC and PAC.
• ANC & PAC banned in 1960
• Important changes in 1990’s – Mandela released
• Apartheid legislation abolished
• Multi-party negotiations
• 1993 Interim Constitution & Bill of Rights
• 1996 Constitution