HFL1501 - Historical Foundations of South
African Law Study Notes.
,PART 1
The origins of South African law
,1.0 Setting the scene
South African law is built on various legal systems because South Africa
has a multi-cultural society. The South African legal system is a multi-
layered and uncodified hybrid legal system that relies not only on the
Constitution but also on different sources of law including legislation,
case law, common law and indigenous African law.
South African common law mainly consists of Roman-Dutch law as
influenced by English common law and adapted over the centuries by
local legislation and judicial precedent.
South African law can be said to be based on three main pillars or
composed of three main components: an African, Western and
universal/human-rights component.
A thorough knowledge of the history of South African law is essential to
enable one not only to work with the sources of our law, but also to
assess their significance and value. Through this knowledge, one gains a
true perspective of the sources from which the law developed. A proper
understanding of the roots of a legal system makes it possible to
undertake meaningful law reform.
The law develops with a community in order to satisfy the community’s
needs and to keep abreast of advances in fields like medicine, science
and technology. The law is not an isolated social phenomenon - it is
influenced by economic, religious and moral views and developments.
Unless one looks at the context in which concepts that are part of daily
legal practice were originally formed, one may not be able to understand
them properly.
The external history of the law traces the sources and factors that have
contributed directly or indirectly to the development of a legal system:
these include the political, constitutional, economic, sociological and
religious factors. The external legal history sheds light on the internal
history of the law. Political, constitutional, economic, sociological and
environmental events influence the way people view their world and,
consequently, the development of their legal system.
The internal history of the law covers the origins and specific legal rules
and principles of a legal system within the framework or influence of the
external legal historical events.
As an example, the policy of apartheid implemented by the National Party
was a political event in the external history of South African law while
the promulgation of the Group Areas Act was one of the consequences of
the policy of apartheid and this Act introduced new legal rules - the
Group Areas Act is an example of development within the internal history
, of South African law that resulted from the apartheid policy, an external
historical factor.
Another example is: the establishment of trade unions was an economic
event in the external history of South African law that had a huge
influence on the development of labour law. It was only after the
establishment of trade unions that the interests of employees and
labourers came under the spotlight. Activities of the trade unions in
South Africa led to the right of an employee not to be unfairly dismissed
being recognised and is now entrenched as a human right in the
Constitution – an example of the development of the internal history of
South African law.
South Africa has a complex legal system: there are two important
concepts that one must come to grips with: “legal pluralism” and “a
mixed or hybrid legal system”.
Legal pluralism describes a factual situation in the country where
there are two or more systems of law applicable in a country. South
Africa’s multi-cultural society consists of various communities – such as
the Hindu, Muslim, indigenous African and Western or European
communities.
This has led to various systems of law being applied in South Africa, even
though not all of these systems are officially recognised.
Until the 1990s, the only officially recognised law, which formed the
foundation of the South African legal system, was Roman-Dutch law as
influenced by English law. Indigenous law was applied alongside the
Roman-Dutch common law, but it had only very limited application and it
also only applied to specific people. Some parts of the indigenous law
were explicitly not recognised by the state, but were nevertheless
unofficially applied by certain communities. For example, the indigenous
marriage laws were unofficially applied among most black communities
but they were not recognised as marriages (because of their polygynous
nature) according to the prevailing common law. The position of Muslim
marriages has not yet been finalised.
Since the inception of the new Constitution, indigenous law is recognised
as part of the South
African legal system. There is now a single South African legal system,
which has distinctive features of Roman-Dutch law, English law and
indigenous African law.
A mixed or hybrid legal system is one that originated in different
legal traditions and therefore has features of those different legal
systems. South African law is built on two main legal traditions: the civil-
(Roman) law tradition and the English common-law tradition.
