CHAPTER 1: THE HISTORICAL
FOUNDATIONS OF SOUTH AFRICAN LAW
● The South African legal system is not a mere collection of legal rules
thrown together. It has a history, a foundation, made up by various
sources that have shaped the development of what became South
African law.
● Most of South African common law came from Europe, hence the term
Roman-Dutch law.
● However, this is putting it simply, for the following reasons:
1. Firstly, because South Africa is part of a small group of nations that
have a so-called mixed legal system (influenced by the English common
law);
2. secondly because South Africa has a multi-cultural society in which
different legal systems (such as customary law and other religious legal
systems) exist and are observed, in the instance of customary law, long
before the colonial era;
3. and thirdly because since the advent of constitutionalism, the
Constitution of the Republic of South Africa, 1996 constitutes the basis
of our law.
The South African legal system is an amalgamation of influences by the
following legal systems and developments, namely:
● African customary law, which was observed by the indigenous peoples
of Southern Africa long before colonisation.
● Roman-Dutch law, a combination of primarily Roman law and Germanic
(customary) law of Western Europe, in particular of the province Holland
in what is today known as the Netherlands. The system was
transplanted at the Cape by Dutch colonisers, when in 1652 Jan van
Riebeeck established a Dutch colony there.
● English law, which infiltrated Roman-Dutch law during the period when
England ruled over the Cape Colony from 1795 to 1803 and again from
1806 onwards when it annexed other territories as well.
● Internal developments, such as the policy of Apartheid and the
resistance thereto.
● Most importantly, the Constitution of the Republic of South Africa, 1996,
containing the Bill of Rights. All law and conduct inconsistent with the
Constitution, is invalid.
2 THE IMPORTANCE OF LEGAL HISTORY
● When we examine a legal system as a developing system and ask
ourselves where the rules come from and how they developed to be
, what they are now, we are busy with the method of the historical study
of law.
● A legal system is usually one of the cultural and social products of a
society, and is, like the society itself, the product of its past.
It is necessary to know where our legal system comes from. This
enables us:
• To understand why our legal system looks the way it does (why,
for example, is South African law uncodified?)
• To realise that a legal system is not static: If it has changed and
developed in the past, there is no reason why it should not continue to
change and develop in order to meet the challenges of the future.
Consider in this regard the various proposed changes to South
Africa’s Energy law in view of the energy crisis and resultant load
shedding we experienced. The increase in gender-based violence is
another example. Two or three years ago the President announced
stricter rules for the prosecution and punishment of GBV perpetrators.
• To become aware of the fact that our ancestors faced problems
very similar to the ones with which we are confronted at present and
to learn from their successes and failures.
• To recognise the dangers to our society, both from within and
externally, and to find guidance as to how to deal with those dangers
when they arise.
• To grasp the social function of the law and identify the best
way to fulfil this function. Consider in this regard the way/s in which
social justice can be achieved and what the obstacles in the way
thereof, are.
• To appreciate the fact that legal systems influence one
another in the course of time and that besides the Constitution
constituting the basis of South African law, our legal system is the
product of a combination of legal systems with three major
components:
➔ African customary law,
➔ Roman-Dutch law and
➔ English law.
• In a practical sense it is essential for aspirant lawyers to know the sources of
origin of our legal system as the South African system is an uncodified one.
Anyone researching a point of law, including practitioners, needs to know that
there are several different sources of law to consider before reaching a
conclusion.
3 LEGAL DIVERSITY IN SOUTH AFRICA
Legal diversity in South Africa presents mainly two forms:
,❖ cultural diversity (for example, African customary law) and
❖ religious diversity (for example, Islamic or Hindu law).
Cultural diversity
● results from the fact that African customary law and Roman-Dutch law
are acknowledged as the two major components of the country's legal
system by the Constitution.
● Very often countries with a colonial past are legally plural. This applies
to many countries in Africa. It often leads to a dual system of law, both
in respect of the contents of the law, as well as a separate court system,
as was the case in South Africa until 1986.
The recognition of South Africa’s first 11 official languages (a 12th language,
namely sign language, was officially recognised on 19 July 2023) is indicative
of the plurality of cultures in our country. According to the 2022 Census the
statistics of the first language of the population expressed by percentage
were as follows: Afrikaans 10.6%; English 8.7%; isiNdebele 1.7%; isiXhosa 16.3%;
isiZulu 24.4%; Sepedi 10%; Sesotho 7.8%; Setswana 8.3%; siSwati 2.8%;
Tshivenda 2.5%; Xitsonga 4.7%, sign language 0.02% and other languages
2.1%. Moreover, there are currently eight traditional kings/queens and in
2018 844 senior traditional leaders in South Africa.
➔ In section 211(1) of the Constitution, the institution, status and role
of traditional leadership, according to customary law, are
recognised, subject to the Constitution.
➔ There are more than 800 recognised traditional communities in
the country, each one with potentially its own living version of
African customary law.
Religious diversity
● results from the fact that the Constitution in section 15(1) recognises
freedom of religion, conscience and belief.
● In section 15(3)(a) this section does not prevent legislation recognising
marriages concluded under any tradition, or a system of religious,
personal or family law; or systems of personal or family law under any
tradition, or adhered to by persons professing a particular religion.
● Obviously the right in section 15(1) must be consistent with other
provisions of the Constitution.
● Moreover, “the values of equality and tolerance of diversity” underlie
our Constitution, as stated in Ryland v Edros (1997 2 SA 690 (C) at 708J-
709A). This has the effect of widening the ambit of “the concepts of
public policy and boni mores that our Courts have to apply” from what
, were traditionally Western values. This has made it possible for the
courts to apply a rule of a religious legal system such as Islamic law.
● South Africa is home to a large number of religions. Statistics indicate
that approximately 79.8% of the population follow the Christian religion;
0.3% African traditional religions; 1.5% of the population described
themselves Muslim; 0.2% Jewish; 1.2% Hindu; and 17.1% as “Other”.
❖ In so far as the pluralistic nature of South African law, it will become
evident that up to date legislation and case law have given legal effect
to the institutions of the various religious legal systems.
❖ However, African customary law was the law that was originally
applicable in the Southern African region and the only legal system
other than the common law which is currently officially recognised as a
system in terms of section 211 of the Constitution.
❖ That is not to say that Islamic and Hindu law is not susceptible to
official recognition.
THE FOUNDATIONS OF SOUTH AFRICAN
LAW
CHAPTER 2: ROMAN LAW
● Roman-Dutch law constitutes South Africa’s common law. Roman law is
a fundamental component of Roman-Dutch law.
