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
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
