Detailed descriptions include investigating and defining the meaning of common law, determining when the common law is applicable and where to find it, understanding the relationship between the common law and legislation, discussing the relationship between the Constitution and the common law and ...
Introduction
Common law
- The 17th and 18th century Roman Dutch law that was imposed on the Cape.
- Can be considered a primary source of law that has binding authority.
Questions
- Is this 17th and 18th century Roman-Dutch law not a little outdated to still be used in South Africa today?
- Is the common law not really the law of white people and colonisers and should therefore be abolished in its
entirety?
- When should the common law be used and where do we find the common law?
Learning outcomes
- Investigate and define the meaning of common law
- Determine when the common law is applicable and where to find it
- Understand the relationship between the common law and legislation
- Discuss the relationship between the Constitution and the common law and look at some examples from case
law of how the courts transform the common law
Common law
- Roman-Dutch and English influence
- Generally usurped in case law or abrogated by disuse (not by Parliament)
o Not the same as legislation
- Actual source sometimes is unclear
- Can be seen to be old white law
o Audi aiteram partem
▪ Both sides need to be heard
- Adultery
o Used to be criminal offence
o Linked to Christianity
o Common law principle
▪ If wife had a relationship with another man – husband could claim damages from the man
• Not applied the other way around
Where can common law be found?
- Unclear
- Very old sources
- Generally for most examination purposes in applying this law
o Will get particular practice or principle that comes from common law
- Found in cases – can apply from there
Define the meaning of common law
Change
- Common law mainly consists of 17th and 18th century Roman-Dutch law
o Changed and developed
▪ Courts
▪ Common Law
o Forms the basis of modern South Africa law
o Has binding authority because it is a primary source of law
o Many of the general legal principles stem from common law
▪ Murder
▪ Theft
▪ Robbery
▪ Crimes that compensation must be paid for damages caused wrongfully
, ▪ Buyer who takes possession of the thing bought must pay the agreed price
- Even before our 1996 Constitution
o Stipulates that the courts have the inherent power to develop the common law
▪ The high courts in South Africa could develop the common law to keep it in line with the
changing needs of society
Mainly Roman-Dutch law & keep in mind
- Not all principles of Roman-Dutch law were imposed on South Africa
- Common law is not limited to the 17th & 18th law of the Netherlands – much wider concept
- Sometimes English law has (by precedent) influenced our common law
o Some common law principles are not pure Roman-Dutch anymore
o There are laws that came from other Western European countries
- It would be unrealistic to believe that we are still living according to these 17th and 18th century law
- Certain old principles have become abrogated by disuse.
o In Green v Fitzgerald
▪ The court declared that the Roman-Dutch principle that
• Adultery is a criminal offence was outdated
• Not in line with the modern-day needs of society any longer.
- Due to the changing law & developments
o Common law cannot be labelled Roman-Dutch law but South African law
Also outside the Netherlands
- Cape was colonised by the British
- Still see the reminisce of English principles like judicial precedent in common law.
- The Roman-Dutch law also belongs to a much bigger Western European common law/ ius commune
consisting of
o French influences
o German influences
o Spanish influences
- A true understanding and definition of the common law should therefore not be limited to the 17th and 18th
century Roman-Dutch law
o Should really also include a much wider perspective and a much more dynamic and developed body of
law
Only white law
- The common law was for many years & during apartheid
o The law used by white people for white people.
- However, not all common law and common law principles are ‘bad’.
o Example
▪ The audi alteram partem principle
• According to which no person should be judged without a fair hearing
▪ Pacta sunt servanda
• Forms the bedrock of contract law and stipulates that all agreements must be kept.
- Many of our general legal principles stem from the common law
o Example
▪ Compensation must be paid for damages caused wrongfully and that the buyer who takes
possession must pay the agreed price.
- The common law also tells us what constitutes crimes like murder, theft and robbery.
- Nevertheless
o There are indeed some common law principles and definitions that are problematic and that must be
tested against the Constitutional standard.
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