CLA1501
EXAM PACK
,1. THE SOUTH AFRICAN LEGAL SYSTEM
Law can be described as a social science because it deals with human conduct,
relationships and the rules that regulate behaviour within society. It provides a
framework through which rights and obligations are established and disputes can be
resolved.
The South African legal system is not codified in a single comprehensive legal
document. In other words, there is no one document that contains the whole of South
African law. Instead, the legal system has developed from a variety of sources,
including legislation, court decisions, customary law and historical legal systems.
Origin of South African Law
Before 1652, indigenous communities living in the southern part of Africa already had
their own legal customs and systems. These systems were based largely on the
traditions and practices of the respective communities.
In 1652, Jan van Riebeeck arrived at the Cape. Following the establishment of the
Dutch settlement, Roman-Dutch law was introduced and became an important
foundation of the legal system at the Cape. Over time, the South African legal system
developed through the interaction of Roman-Dutch law, English law, indigenous
customary law and legislation.
1.1 A SHORT HISTORY OF THE LAW
Unlike many European countries whose legal systems are contained mainly in
comprehensive legal codes, South African law is derived from several different legal
sources. These sources include statutes and other forms of legislation, judgments
handed down by courts, customary law and, in certain circumstances, principles
originating from Roman and Roman-Dutch law.
,The historical development of South African law can therefore be understood by
examining the influence of Roman law, Roman-Dutch law and English law.
Roman Law
Roman law developed over a long historical period, approximately from 735 BC to AD
658. It had a major influence on the development of many legal systems, particularly
those that later became associated with the civil-law tradition.
One of the earliest important stages in the development of Roman law was the Law of
the Twelve Tables, which dates from approximately 449 BC. These laws were
significant because they provided an early written foundation for Roman legal rules and
contributed to the subsequent development of Roman law.
As Roman law developed, various attempts were made to collect, organize and
consolidate its rules. One of the most important results of this process was the Corpus
Iuris Civilis, meaning the body or collection of civil law. It became an important source
for the preservation and development of Roman legal principles and remains significant
when Roman law is considered in later legal systems.
Roman law subsequently influenced the development of Roman-Dutch law and
therefore became part of the historical foundations of South African law.
Roman-Dutch Law
Roman-Dutch law developed when Roman legal principles were introduced into the
Netherlands and interacted with the existing Dutch customary law. During the fifteenth
and sixteenth centuries, Roman law was studied, adapted and incorporated into the
Dutch legal environment.
The combination of Roman legal principles with Dutch customary rules produced what
became known as Roman-Dutch law. This body of law later became particularly
important at the Cape following the establishment of Dutch rule.
, Several legal scholars played an important role in developing and explaining Roman-
Dutch law. Among the notable Roman-Dutch jurists were:
Hugo de Groot, who is commonly regarded as the “Father of Roman-Dutch
Law”.
Johannes Voet, whose writings became influential in explaining Roman-Dutch
legal principles.
Dionysius Godefridus van der Keessel, who contributed significantly to the
study and development of the Roman-Dutch legal tradition.
Johannes van der Linden, another important writer whose works contributed to
the preservation and explanation of Roman-Dutch law.
The writings of these scholars became important historical authorities and continue to
assist in understanding areas of South African law that have their origins in the Roman-
Dutch tradition.
English Law
From approximately 1814, English legal influence became increasingly significant in the
existing Roman-Dutch legal system. The interaction between the two traditions
contributed to the development of the modern South African legal system.
One example of English influence was the introduction of the jury system. English legal
principles also influenced the development of new legislation, particularly in certain
areas of criminal law.
A number of statutes that remain relevant in South African law have also been
influenced by English legislation. An example provided in the source material is
legislation dealing with bills of exchange.
Consequently, South African law developed as a mixed legal system in which Roman-
Dutch principles, English influences, customary law, legislation and judicial decisions all
contributed to its development.
EXAM PACK
,1. THE SOUTH AFRICAN LEGAL SYSTEM
Law can be described as a social science because it deals with human conduct,
relationships and the rules that regulate behaviour within society. It provides a
framework through which rights and obligations are established and disputes can be
resolved.
The South African legal system is not codified in a single comprehensive legal
document. In other words, there is no one document that contains the whole of South
African law. Instead, the legal system has developed from a variety of sources,
including legislation, court decisions, customary law and historical legal systems.
Origin of South African Law
Before 1652, indigenous communities living in the southern part of Africa already had
their own legal customs and systems. These systems were based largely on the
traditions and practices of the respective communities.
In 1652, Jan van Riebeeck arrived at the Cape. Following the establishment of the
Dutch settlement, Roman-Dutch law was introduced and became an important
foundation of the legal system at the Cape. Over time, the South African legal system
developed through the interaction of Roman-Dutch law, English law, indigenous
customary law and legislation.
1.1 A SHORT HISTORY OF THE LAW
Unlike many European countries whose legal systems are contained mainly in
comprehensive legal codes, South African law is derived from several different legal
sources. These sources include statutes and other forms of legislation, judgments
handed down by courts, customary law and, in certain circumstances, principles
originating from Roman and Roman-Dutch law.
,The historical development of South African law can therefore be understood by
examining the influence of Roman law, Roman-Dutch law and English law.
Roman Law
Roman law developed over a long historical period, approximately from 735 BC to AD
658. It had a major influence on the development of many legal systems, particularly
those that later became associated with the civil-law tradition.
One of the earliest important stages in the development of Roman law was the Law of
the Twelve Tables, which dates from approximately 449 BC. These laws were
significant because they provided an early written foundation for Roman legal rules and
contributed to the subsequent development of Roman law.
As Roman law developed, various attempts were made to collect, organize and
consolidate its rules. One of the most important results of this process was the Corpus
Iuris Civilis, meaning the body or collection of civil law. It became an important source
for the preservation and development of Roman legal principles and remains significant
when Roman law is considered in later legal systems.
Roman law subsequently influenced the development of Roman-Dutch law and
therefore became part of the historical foundations of South African law.
Roman-Dutch Law
Roman-Dutch law developed when Roman legal principles were introduced into the
Netherlands and interacted with the existing Dutch customary law. During the fifteenth
and sixteenth centuries, Roman law was studied, adapted and incorporated into the
Dutch legal environment.
The combination of Roman legal principles with Dutch customary rules produced what
became known as Roman-Dutch law. This body of law later became particularly
important at the Cape following the establishment of Dutch rule.
, Several legal scholars played an important role in developing and explaining Roman-
Dutch law. Among the notable Roman-Dutch jurists were:
Hugo de Groot, who is commonly regarded as the “Father of Roman-Dutch
Law”.
Johannes Voet, whose writings became influential in explaining Roman-Dutch
legal principles.
Dionysius Godefridus van der Keessel, who contributed significantly to the
study and development of the Roman-Dutch legal tradition.
Johannes van der Linden, another important writer whose works contributed to
the preservation and explanation of Roman-Dutch law.
The writings of these scholars became important historical authorities and continue to
assist in understanding areas of South African law that have their origins in the Roman-
Dutch tradition.
English Law
From approximately 1814, English legal influence became increasingly significant in the
existing Roman-Dutch legal system. The interaction between the two traditions
contributed to the development of the modern South African legal system.
One example of English influence was the introduction of the jury system. English legal
principles also influenced the development of new legislation, particularly in certain
areas of criminal law.
A number of statutes that remain relevant in South African law have also been
influenced by English legislation. An example provided in the source material is
legislation dealing with bills of exchange.
Consequently, South African law developed as a mixed legal system in which Roman-
Dutch principles, English influences, customary law, legislation and judicial decisions all
contributed to its development.
