comprehensive notes on all work (including lectures, lecture slides, examples, extra prescribed materials etc) done in semester two of introduction to law. Ive also included indications of what lecturers mark as important. This material includes summaries of the Rivonia trial, socio economic rights...
English legal influence 🇬🇧
Legislation
- In some areas of law, there was a direct takeover. Some statues (in very express terms)
stipulated that english law was applicable to that particular matter. Especially insurance law and
law of evidence
- In law of negotiable instruments and company law, english law was copied.
- Indirect takeover in other instances of law. English principles were adopted in certain statutes,
without reference to english law or adopting the wording of english law. Eg English underhand
will.
Filling of Lacunae (gaps)
- When Roman Dutch legal rules (eg law of succession) were revoked, there was a gap
(lacunae), it was then developed to correspond with english law (gap was filled with english
law).
Case Law
- judges and jurists were trained in english law, but had to interpret and apply Roman Dutch law.
- Jurists fashion was discovering the similarities between Roman Dutch and english law.
- There discovering were accepted as valid law.
- The similarities were imaginary, english legal principles were given credibility in this way, which
it would not have otherwise.
Constitutional law
- english law had far reaching consequences for South Africa. Eg constitutional and
administrative law sphere. The judges were trained in english law so naturally applied english
law. Inherited parliamentary sovereignty from the english. English system: unwritten, customary
law system that grew with British politics … that is what caused parliamentary sovereignty.
The development of SA law since 1910
- 32 May 1910: union of SA established with a constitution.
- The constitution of 1910 was very strongly orientated towards english law.
- Since 1910, there was a different interaction between Roman Dutch law and english law:
Interaction between Roman Dutch and english law:
* legislation
- For Company law, insolvency and banking law -> english law was virtually completely
received. (Reception) english law completely took over Roman Dutch.
- In law of criminal and civil procedure, english law played a very important role.
- English was the primary source of South African constitutional law and South African
administrative law until 27 April 1994.
,* Case law (role of “modernists”)
- Union constitution (zuid africa act): the appellate division of the Supreme Court of appeal in
bloemfontein was the highest court of appeal in the country
- Judicial authority could lay down uniform law for the country. This was important because the
modernists had a place in the different law faculties in the country. These authors started to
place their stamp on the legal development. These modernists were appeal judges with a very
particular view on Roman Dutch law. In principle, they respected it as a historical source and
foundation of South African law and they were in favour of its retention. But they were also
flexible about Roman Dutch law. They said Roman Dutch law cannot only be 17th and 18th cent
RD law -> it must be the “original product” as amended to adapt to SA circumstances.
Modernists build on established english practises and import english law to modernise Roman
Dutch law.
Establishment of SA law commission in 1973
- abolishing obsolete provisions in South African law; eliminating contradictions and promoting
uniformity; codification of certain branches of law.
General
* purist approach to South African law:
- SA law to be principle based
- To be simple and systematically more attractive
- “Logical” and intellectually robust
- Consistency (more appealing)
* modernist approach:
- in favour of RD law but want to adapt it. More casuistic. Much more ad hoc in nature.
- Strong point, displayed a particular sensitivity towards practical problems and towards the
application of law.
Ideological instrumentalisation of the law
In 1940s : “social engineering”
Definition: the systematic structuring of a society in accordance with a particular ideological
pattern or model.
States resources and instruments power: army, police, legal system -> used / manipulated to
achieve this ideal.
In SA context: law used to regulate people’s actions and regulate their rights and duties in align
with racial and class lines - apartheid ! This was used to create a society based on racial and
class lines by national party who came into power in 1948.
,Legislation that affected this:
- 1936: native trust and land act 18 of 1936
- 1948: “apartheid” legislation
- Security legislation: promulgated to restrict and repress opposition to the enforced
discriminatory measures -> resulted in massive infringements on basic human rights. Security
police had exceptional powers. Eg detention without trial.
Positivism vs non-positivism
- Professor Dugard gave an inaugural lecture which showed that the divide during apartheid
legal positivism was detrimental for SA law.
- Legal positivism: apply law is it is, without speculation whether the law is fair or not ->
apartheid. Parliament was supreme, and courts had to apply it without asking if law was just.
- He said the Distinction in SA not between modernists snd purists but rather between legal
positivists and non-positivists.
* modernists and positivist = positivist approach (in dugard opinion) (modernists and positivists
have positivistic elements)
- separation of legal, social, political and ideological issues - judge must dispense justice in this
way -> not influenced by subjective, emotional factors.
* non positivist
- have more critical social orientation - think of the effect of the law.
- Do not believe in “pure law” and “pure jurist”
- Purely juridical issues are an integral part of a social, political, ideological environment -> they
are an inseparable part of one another.
Indigenous legal systems
- part of SA law today still.
(1) General
- typical characteristics: unwritten and flexible
- Orally transferred between generations
- Initially supplanted by “official law”
- Approach to solving disputes fundamentally different as opposed to western law : aimed at
reconciliation of parties.
(2) Position before 1910
- Customary law was initially not recognised in the Cape up until the annexation of Transkei
(repugnancy clause)
- Courts recognised indigenous practises and usages to a certain extent
, (3) position after 1910
- consolidation: black administration act of 1927
- This resulted in greater recognition for customary law was applied to disputes where both
parties were black and where the indigenous law was not in conflict with public policy or the
rules of natural justice -> had to be a customary matter
- Western principles used to make sense of customary law
- Special courts were created for these types of matters
- Courts of chiefs and headmen had limited jurisdiction.
- Commissioners courts could adjudicate civil and criminal cases.
- Special black divorce courts and a special court of appeal were created within the black court
structure.
- 1986: promulgation of special courts for black abolition act which did away with special courts
but courts of chiefs and headmen and black divorce court retained their jurisdiction.
(4) position under constitution
- act 30, 31, 211(3), 39(2)
- SA law: hybrid character -> explained historically
- Legal systems were grouped together in legal families which had history and common features
- Constitution recognised it, it is on par with common law. No longer subordinate.
- Courts must try ascertain living customary law, can no longer say they don’t know that area of
customary law and won’t apply it.
🧿
Introduction (du plessis 71-80 )
- South Africa law had hybrid character.
- Legal systems are grouped together in legal families -> have history and common features.
🇿🇦
- 1️⃣civil law (Romanian Germanic law) + 2️⃣common law (Anglo-American law -> english influence)
+ 3️⃣social legal family = law
🧘🏼♀️
WHY DO WE LOOK AG LEGAL FAMILIES?
- because it had a huge impact on the structure of our law & how we categorise law !
Structure of the law
* categories and key concepts:
- public law (relationship between state and gov bodies/subjects) and private law (regulation of
relationships between equals)
- “Common law” (developed on a case by case basis) and “equity” (filled the gaps of common
law) —> distinction made predominantly in english law.
- Material law and formal law —> inherited from the english.
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