Understanding; the importance of legal history, the historical influences on the development of the South African Legal System, the importance of legal history, the historical influences on the development of the SA legal system, the different ways of conceiving of the history of SA and why SA law ...
JURISPRUDENCE
Unit 5
The Historical developments in South Africa
Chapter 2 summary
Outcomes
Understand
- The importance of legal history
- The historical influences on the development of the South African Legal System
- The importance of legal history
- The historical influences on the development of the SA legal system
- The different ways of conceiving of the history of SA
- Why SA law may be considered as a product of conquest
Why legal history?
- Past explains our present
- How change happened and how it can happen
- More than one story/ history
- Our legal history is a living law
o Common law/ customary law
o Uncodified/ codified
- Links us to other countries
- South African law is dynamic
Three approaches to understand legal history
1. Empty land
- Cape
o No one living a civilised life or government structure
- Dutch arrived here first and there was nothing
- White conservationist
- Terre nullius – Latin term for empty land
2. Africanist
- Actually everything was happening but all that started was a history of conquest and through military force,
took what didn’t belong to them
- Predominantly black
o Initially there – Indigenous
- Already systems in place but that started was a history of conquest and through military force, took what
didn’t belong to them
3. Freedom Charter of 1951
- Fundamentalist approach
- Idea that SA belongs to all that are living here
- Non-racial theory
- South Africa belongs to all that are living here
o Preamble
o 96th Constitution
Introduction
- Customary/ indigenous law
o African people in South Africa live according to their own traditional customs and practices
- South African law
o Roman-Dutch law
o Mixture of two legal systems
, 2.1 Importance of Legal History
- Law is not static
o South African law has gone through many changes
▪ New political dispensation
▪ New constitution
▪ Various new social structures
- South African common law
o Living law which is applied in courts
o Same as customary law → it is still applied
▪ Reason: uncodified legal system
• Our legal system is not in its entirety written down in a single code
• Codification of law is a comprehensive version of the law in writing that has the force
of legislation
o AKA an authoritative reading of the law
• Our law is found in various sources
o Two of which are customary law and common law
o This means: lawyers cannot turn to only one source of the law when they
search for answers to legal problems
- South African legal system links South Africa to various countries – Britain and others
o Reason: South African legal system shares a common legal history with these countries
▪ Because it developed from the same roots
▪ Because it was influenced by the same historical factors
▪ Because these systems influenced the South African legal system
o South African legal system shares many common characteristics with other countries
o Certain legal rules are frequently the same in different legal systems
▪ Fact is important in light of growing tendency towards globalisation
o Legal comparison
▪ Turning to other legal systems for guidance and solutions
- South African history seems to start with the arrival of colonists – Jan Van Riebeeck
o View that the frank recognition should be made that people with functioning legal systems before
colonists
▪ Indigenous/ First Nations peoples
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