JURISPRUDENCE 110
Unit 11: Common Law
Introduction
Common law
- The 17th and 18th century Roman Dutch law that was imposed on the Cape.
- Can be considered a primary source of law that has binding authority.
Questions
- Is this 17th and 18th century Roman-Dutch law not a little outdated to still be used in South Africa today?
- Is the common law not really the law of white people and colonisers and should therefore be abolished in its
entirety?
- When should the common law be used and where do we find the common law?
Learning outcomes
- Investigate and define the meaning of common law
- Determine when the common law is applicable and where to find it
- Understand the relationship between the common law and legislation
- Discuss the relationship between the Constitution and the common law and look at some examples from case
law of how the courts transform the common law
Common law
- Roman-Dutch and English influence
- Generally usurped in case law or abrogated by disuse (not by Parliament)
o Not the same as legislation
- Actual source sometimes is unclear
- Can be seen to be old white law
o Audi aiteram partem
▪ Both sides need to be heard
- Adultery
o Used to be criminal offence
o Linked to Christianity
o Common law principle
▪ If wife had a relationship with another man – husband could claim damages from the man
• Not applied the other way around
Where can common law be found?
- Unclear
- Very old sources
- Generally for most examination purposes in applying this law
o Will get particular practice or principle that comes from common law
- Found in cases – can apply from there
Define the meaning of common law
Change
- Common law mainly consists of 17th and 18th century Roman-Dutch law
o Changed and developed
▪ Courts
▪ Common Law
o Forms the basis of modern South Africa law
o Has binding authority because it is a primary source of law
o Many of the general legal principles stem from common law
▪ Murder
▪ Theft
▪ Robbery
▪ Crimes that compensation must be paid for damages caused wrongfully
, ▪ Buyer who takes possession of the thing bought must pay the agreed price
- Even before our 1996 Constitution
o Stipulates that the courts have the inherent power to develop the common law
▪ The high courts in South Africa could develop the common law to keep it in line with the
changing needs of society
Mainly Roman-Dutch law & keep in mind
- Not all principles of Roman-Dutch law were imposed on South Africa
- Common law is not limited to the 17th & 18th law of the Netherlands – much wider concept
- Sometimes English law has (by precedent) influenced our common law
o Some common law principles are not pure Roman-Dutch anymore
o There are laws that came from other Western European countries
- It would be unrealistic to believe that we are still living according to these 17th and 18th century law
- Certain old principles have become abrogated by disuse.
o In Green v Fitzgerald
▪ The court declared that the Roman-Dutch principle that
• Adultery is a criminal offence was outdated
• Not in line with the modern-day needs of society any longer.
- Due to the changing law & developments
o Common law cannot be labelled Roman-Dutch law but South African law
Also outside the Netherlands
- Cape was colonised by the British
- Still see the reminisce of English principles like judicial precedent in common law.
- The Roman-Dutch law also belongs to a much bigger Western European common law/ ius commune
consisting of
o French influences
o German influences
o Spanish influences
- A true understanding and definition of the common law should therefore not be limited to the 17th and 18th
century Roman-Dutch law
o Should really also include a much wider perspective and a much more dynamic and developed body of
law
Only white law
- The common law was for many years & during apartheid
o The law used by white people for white people.
- However, not all common law and common law principles are ‘bad’.
o Example
▪ The audi alteram partem principle
• According to which no person should be judged without a fair hearing
▪ Pacta sunt servanda
• Forms the bedrock of contract law and stipulates that all agreements must be kept.
- Many of our general legal principles stem from the common law
o Example
▪ Compensation must be paid for damages caused wrongfully and that the buyer who takes
possession must pay the agreed price.
- The common law also tells us what constitutes crimes like murder, theft and robbery.
- Nevertheless
o There are indeed some common law principles and definitions that are problematic and that must be
tested against the Constitutional standard.
Unit 11: Common Law
Introduction
Common law
- The 17th and 18th century Roman Dutch law that was imposed on the Cape.
- Can be considered a primary source of law that has binding authority.
Questions
- Is this 17th and 18th century Roman-Dutch law not a little outdated to still be used in South Africa today?
- Is the common law not really the law of white people and colonisers and should therefore be abolished in its
entirety?
- When should the common law be used and where do we find the common law?
Learning outcomes
- Investigate and define the meaning of common law
- Determine when the common law is applicable and where to find it
- Understand the relationship between the common law and legislation
- Discuss the relationship between the Constitution and the common law and look at some examples from case
law of how the courts transform the common law
Common law
- Roman-Dutch and English influence
- Generally usurped in case law or abrogated by disuse (not by Parliament)
o Not the same as legislation
- Actual source sometimes is unclear
- Can be seen to be old white law
o Audi aiteram partem
▪ Both sides need to be heard
- Adultery
o Used to be criminal offence
o Linked to Christianity
o Common law principle
▪ If wife had a relationship with another man – husband could claim damages from the man
• Not applied the other way around
Where can common law be found?
- Unclear
- Very old sources
- Generally for most examination purposes in applying this law
o Will get particular practice or principle that comes from common law
- Found in cases – can apply from there
Define the meaning of common law
Change
- Common law mainly consists of 17th and 18th century Roman-Dutch law
o Changed and developed
▪ Courts
▪ Common Law
o Forms the basis of modern South Africa law
o Has binding authority because it is a primary source of law
o Many of the general legal principles stem from common law
▪ Murder
▪ Theft
▪ Robbery
▪ Crimes that compensation must be paid for damages caused wrongfully
, ▪ Buyer who takes possession of the thing bought must pay the agreed price
- Even before our 1996 Constitution
o Stipulates that the courts have the inherent power to develop the common law
▪ The high courts in South Africa could develop the common law to keep it in line with the
changing needs of society
Mainly Roman-Dutch law & keep in mind
- Not all principles of Roman-Dutch law were imposed on South Africa
- Common law is not limited to the 17th & 18th law of the Netherlands – much wider concept
- Sometimes English law has (by precedent) influenced our common law
o Some common law principles are not pure Roman-Dutch anymore
o There are laws that came from other Western European countries
- It would be unrealistic to believe that we are still living according to these 17th and 18th century law
- Certain old principles have become abrogated by disuse.
o In Green v Fitzgerald
▪ The court declared that the Roman-Dutch principle that
• Adultery is a criminal offence was outdated
• Not in line with the modern-day needs of society any longer.
- Due to the changing law & developments
o Common law cannot be labelled Roman-Dutch law but South African law
Also outside the Netherlands
- Cape was colonised by the British
- Still see the reminisce of English principles like judicial precedent in common law.
- The Roman-Dutch law also belongs to a much bigger Western European common law/ ius commune
consisting of
o French influences
o German influences
o Spanish influences
- A true understanding and definition of the common law should therefore not be limited to the 17th and 18th
century Roman-Dutch law
o Should really also include a much wider perspective and a much more dynamic and developed body of
law
Only white law
- The common law was for many years & during apartheid
o The law used by white people for white people.
- However, not all common law and common law principles are ‘bad’.
o Example
▪ The audi alteram partem principle
• According to which no person should be judged without a fair hearing
▪ Pacta sunt servanda
• Forms the bedrock of contract law and stipulates that all agreements must be kept.
- Many of our general legal principles stem from the common law
o Example
▪ Compensation must be paid for damages caused wrongfully and that the buyer who takes
possession must pay the agreed price.
- The common law also tells us what constitutes crimes like murder, theft and robbery.
- Nevertheless
o There are indeed some common law principles and definitions that are problematic and that must be
tested against the Constitutional standard.
