,CLA1501 NOTES
1. The South African Legal System
• Law is a social science.
• South African Law is not codified: recorded in one comprehensive piece of
legislation.
• Origin:
⦁ Indigenous legal systems applied at the southernmost tip of Africa before
1652.
⦁ Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of
Roman-Dutch law as a legal system to the Cape.
1.1 A SHORT HISTORY OF THE LAW
⦁ Unlike most European continental legal systems, SA law is not codified:
⚪ It is drawn from various authoritative sources
⚪ Such as statutes (legislation) and decided cases
⚪ Occasionally also Roman and Roman-Dutch law.
Roman Law
⦁ 735BC to AD658
⦁ The Law of the Twelve Tables of 449BC were the cornerstone of the future
development of Roman Law
⦁ Attempts to codify the law led to the Corpius Iuris Civilis (body or civil
law) which is still the primary authoritative source or Roman Law.
Roman-Dutch Law
⦁ Roman Law was revised in the Netherlands during the 15th and 16th
centuries and became mixed with the existing Dutch customary law.
⦁ Some great Roman-Dutch Jurists:
⚪ Hugo de Groot “Father of Roman-Dutch Law”
⚪ Johannes Voet
⚪ Dionysius Godefridus van der Keesel
⚪ Johannes van der Linden
English Law
⦁ After 1814, English Law began to seep into the existing Roman-Dutch
system:
⚪ A jury was introduced
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, ⚪ New legislation e.g. criminal often drew on English law
⚪ A number of statutes in existence today are squarely based on
English legislation e.g. Bills of Exchange Act.
⚪
⚪ 1.2 SOURCES OF LAW IN SOUTH AFRICA
⦁ Some are authoritative: courts are bound by authoritative sources
⦁ Others have merely persuasive authority: serves to convince a court to
apply or interpret a rule in a particular way.
Corpus Iuris Civilis: codification of Roman law that is a primary authoritative
source on which South African courts draw when reverting to Roman Law to
solve a legal problem.
⚪
Statute law or legislation
⦁ The most important source of law
⦁ Can be explained as the making of law by a competent
authority ⦁ To be found in: Statues, Proclamations,
Regulations, By Laws.
⦁ The most important piece of legislation: ⚪ The Constitution
of the Republic of South Africa, Act 108 or 1996.
⚪
⚪ The order in which SA law is consulted:
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, ⚪
⚪
⚪ Customary law
⦁ Does not consist of written rules but develops from the habits of the
community and is carried down from generation to generation
⦁ A customary rule will be recognized as a legal rule when:
⚪ It must be reasonable
⚪ It must have existed for a long time
⚪ It must be generally recognized and observed by the
community ⚪ It must be certain and clear
Judgments of the Courts
⦁ An authoritative source of law known as case law
⦁ Traditionally divided into superior and lower courts
⦁ More important judgments are
reported The old authorities
⦁ This body of law comprises the common law, i.e. the works of the old
writers referred to above. Foreign Law
⦁ A judge will to the law of other modern countries if nothing can be found in
any of the above sources
⦁ No authoritative but a persuasive only
⦁ Recognized as a source of law in the Constitution
Textbooks and law journals
⦁ Works written by lawyers, e.g. legal academics, advocates and attorneys
⦁ No inherent authority of their own but may be persuasive
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1. The South African Legal System
• Law is a social science.
• South African Law is not codified: recorded in one comprehensive piece of
legislation.
• Origin:
⦁ Indigenous legal systems applied at the southernmost tip of Africa before
1652.
⦁ Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of
Roman-Dutch law as a legal system to the Cape.
1.1 A SHORT HISTORY OF THE LAW
⦁ Unlike most European continental legal systems, SA law is not codified:
⚪ It is drawn from various authoritative sources
⚪ Such as statutes (legislation) and decided cases
⚪ Occasionally also Roman and Roman-Dutch law.
Roman Law
⦁ 735BC to AD658
⦁ The Law of the Twelve Tables of 449BC were the cornerstone of the future
development of Roman Law
⦁ Attempts to codify the law led to the Corpius Iuris Civilis (body or civil
law) which is still the primary authoritative source or Roman Law.
Roman-Dutch Law
⦁ Roman Law was revised in the Netherlands during the 15th and 16th
centuries and became mixed with the existing Dutch customary law.
⦁ Some great Roman-Dutch Jurists:
⚪ Hugo de Groot “Father of Roman-Dutch Law”
⚪ Johannes Voet
⚪ Dionysius Godefridus van der Keesel
⚪ Johannes van der Linden
English Law
⦁ After 1814, English Law began to seep into the existing Roman-Dutch
system:
⚪ A jury was introduced
2 | Page
Downloaded by Vincent master ()
, ⚪ New legislation e.g. criminal often drew on English law
⚪ A number of statutes in existence today are squarely based on
English legislation e.g. Bills of Exchange Act.
⚪
⚪ 1.2 SOURCES OF LAW IN SOUTH AFRICA
⦁ Some are authoritative: courts are bound by authoritative sources
⦁ Others have merely persuasive authority: serves to convince a court to
apply or interpret a rule in a particular way.
Corpus Iuris Civilis: codification of Roman law that is a primary authoritative
source on which South African courts draw when reverting to Roman Law to
solve a legal problem.
⚪
Statute law or legislation
⦁ The most important source of law
⦁ Can be explained as the making of law by a competent
authority ⦁ To be found in: Statues, Proclamations,
Regulations, By Laws.
⦁ The most important piece of legislation: ⚪ The Constitution
of the Republic of South Africa, Act 108 or 1996.
⚪
⚪ The order in which SA law is consulted:
lOMoARcPSD|48433225
3 |P age
Downloaded by Vincent master ()
, ⚪
⚪
⚪ Customary law
⦁ Does not consist of written rules but develops from the habits of the
community and is carried down from generation to generation
⦁ A customary rule will be recognized as a legal rule when:
⚪ It must be reasonable
⚪ It must have existed for a long time
⚪ It must be generally recognized and observed by the
community ⚪ It must be certain and clear
Judgments of the Courts
⦁ An authoritative source of law known as case law
⦁ Traditionally divided into superior and lower courts
⦁ More important judgments are
reported The old authorities
⦁ This body of law comprises the common law, i.e. the works of the old
writers referred to above. Foreign Law
⦁ A judge will to the law of other modern countries if nothing can be found in
any of the above sources
⦁ No authoritative but a persuasive only
⦁ Recognized as a source of law in the Constitution
Textbooks and law journals
⦁ Works written by lawyers, e.g. legal academics, advocates and attorneys
⦁ No inherent authority of their own but may be persuasive
4 | Page
Downloaded by Vincent master ()
