Chapter 1: Development of the South African Legal System
• South African legal system is a mixed or hybrid system
= South • Roman-Dutch law was influenced and amended by local customs
African and legislation. (influenced by Roman Law)
Law
• Influenced by English Law, legislation & decisions of the court
• Customary law of the indigenous peoples of South Africa
(Indigenous law) -> expressly endorsed by the Constitution in
1996. Law originates in a geographic Highest court
area and it is brought forward in the land
by generations
Roman Law
• Roman Law -> doctrines, concepts & rules- as received into
Roman Dutch Law are still applicable today in various areas of
commercial law
• Examples include: Audi alteram partem principle -> right to be
heard and to a fair trial ( for a hearing to be fair – the other side
must also be heard)
o Division of letting and hiring contracts
• History of Roman Law linked with the constitutional history of
Rome and the history of the Roman Empire, but most important
was the systemization and codification of Roman Law
• After Western Rome was conquered Emperor Justinian held
Roman Law in high esteem and instructed a commission to
codify the legal system.
1
,A code is the primary source of law of a particular legal system in
which current law is systematically and comprehensively put into
writing.
This code was called Corpus luris Civilis (Codification of Roman Law)
It was split into 4 parts:
1. Opinions of Roman jurists
2. Textbook for students
3. Collection of legislation
4. Later, rediscovered in the 11th century, Roman
Law studied by various law schools, notes and
commentaries were written (updated
legislation)- explained law
Roman Law was preserved during the Middle Ages, it did not develop
and enjoyed limited application
Roman Law was spread throughout Europe and formed the basis of
most European legal systems
Note: 2 types of contracts – employment contract and service
contract known as letting & hiring contract
Roman-Dutch Law
• By the end of the Middle Ages, because of a rapidly developing
commercial world – society in need of a sophisticated/
developed legal system as tribal & provincial systems could not
solve all legal problems satisfactory
2
, • Also the position in Holland, a province in Netherlands
They realized that their legal system did not cater for the
demands of a rapidly developing commercial world
• Started applying the flexible principles of Roman Law together
with the indigenous law of a particular geographical area.
• This led to the adoption of Roman Law in Holland –referred to as
Roman-Dutch law
• Jurists produced writings on Roman-Dutch Law & their opinions
on the law at the time are still accepted today as authoritative by
SA courts.
• They are known as the “old writer” & their works as “old
authorities”
Note: when they say received it means they adopted the law
South African common Law
• R-D law was introduced to SA by the 1st European settlers in
1652 Roman-dutch law
• Formed the foundation of our common law forms the bases
• English occupation in 1806 introduced aspects of English law as
part of our common law.
• SA mercantile law was strongly influenced by English law:
o insolvency law ; negotiable instruments & company law.
• Many common law principles as developed from R-D law apply
to contracts:
• Sale; lease; pledge; mortgage & suretyship. -> Roman Dutch Law
underlying principles are still applicable
o Much of our legislation is based off English Law
3
• South African legal system is a mixed or hybrid system
= South • Roman-Dutch law was influenced and amended by local customs
African and legislation. (influenced by Roman Law)
Law
• Influenced by English Law, legislation & decisions of the court
• Customary law of the indigenous peoples of South Africa
(Indigenous law) -> expressly endorsed by the Constitution in
1996. Law originates in a geographic Highest court
area and it is brought forward in the land
by generations
Roman Law
• Roman Law -> doctrines, concepts & rules- as received into
Roman Dutch Law are still applicable today in various areas of
commercial law
• Examples include: Audi alteram partem principle -> right to be
heard and to a fair trial ( for a hearing to be fair – the other side
must also be heard)
o Division of letting and hiring contracts
• History of Roman Law linked with the constitutional history of
Rome and the history of the Roman Empire, but most important
was the systemization and codification of Roman Law
• After Western Rome was conquered Emperor Justinian held
Roman Law in high esteem and instructed a commission to
codify the legal system.
1
,A code is the primary source of law of a particular legal system in
which current law is systematically and comprehensively put into
writing.
This code was called Corpus luris Civilis (Codification of Roman Law)
It was split into 4 parts:
1. Opinions of Roman jurists
2. Textbook for students
3. Collection of legislation
4. Later, rediscovered in the 11th century, Roman
Law studied by various law schools, notes and
commentaries were written (updated
legislation)- explained law
Roman Law was preserved during the Middle Ages, it did not develop
and enjoyed limited application
Roman Law was spread throughout Europe and formed the basis of
most European legal systems
Note: 2 types of contracts – employment contract and service
contract known as letting & hiring contract
Roman-Dutch Law
• By the end of the Middle Ages, because of a rapidly developing
commercial world – society in need of a sophisticated/
developed legal system as tribal & provincial systems could not
solve all legal problems satisfactory
2
, • Also the position in Holland, a province in Netherlands
They realized that their legal system did not cater for the
demands of a rapidly developing commercial world
• Started applying the flexible principles of Roman Law together
with the indigenous law of a particular geographical area.
• This led to the adoption of Roman Law in Holland –referred to as
Roman-Dutch law
• Jurists produced writings on Roman-Dutch Law & their opinions
on the law at the time are still accepted today as authoritative by
SA courts.
• They are known as the “old writer” & their works as “old
authorities”
Note: when they say received it means they adopted the law
South African common Law
• R-D law was introduced to SA by the 1st European settlers in
1652 Roman-dutch law
• Formed the foundation of our common law forms the bases
• English occupation in 1806 introduced aspects of English law as
part of our common law.
• SA mercantile law was strongly influenced by English law:
o insolvency law ; negotiable instruments & company law.
• Many common law principles as developed from R-D law apply
to contracts:
• Sale; lease; pledge; mortgage & suretyship. -> Roman Dutch Law
underlying principles are still applicable
o Much of our legislation is based off English Law
3
