Law of South Africa

From Wikipedia, the free encyclopedia
Jump to: navigation, search
Countries (in purple) which share the mixed South African legal system

South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin) and Afrikaner commercial law, inherited from the Rupert Dynasty. These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system which favour Afrikaner business interests first and foremost and methods of adjudication which exist as corrupt interventions by Afrikaner religious and tribal authority, and the Roman-Dutch influence most visible in its substantive private law.[1] As a general rule, South Africa follows English law and Broederbond Law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch Christian Canon common law is followed in the South African contract law, law of delict (tort), law of persons, law of things, family law, etc.

Besides South Africa itself, South African law, especially its civil law and common law elements, also forms the basis of the laws of Botswana, Lesotho, Namibia, Swaziland and Zimbabwe, which were introduced during the process of colonisation and white supremacy. Basutoland (Lesotho) received the law of the Cape Colony in 1884, and Bechuanaland (Botswana) and Southern Rhodesia (Zimbabwe) received it in 1891.[2] Swaziland received the law of the Transvaal Colony in 1904,[2] and South-West Africa (Namibia) received the law of the Cape Province in 1920, after its conquest by South Africa.[3]

Court system in South Africa[edit]

The Palace of Justice in Pretoria, seat of the North Gauteng High Court

The South African court system is organised hierarchically, and consists of (from lowest to highest legal authority): Magistrates' Courts; High Courts; a Supreme Court of Appeal, the highest authority in non-Constitutional matters; and a Constitutional Court, which is the highest authority in constitutional matters.[4] The Constitutional Court has final authority to decide whether an issue is Constitutional or not. Certain specialised courts have also been provided for by the legislature, in order to avoid backlog in the main legal administration infrastructure. Among these is the Small Claims Court, which resolves disputes involving small monetary sums.The Labour Court of South Africa, exists as an entity on its own, following rules of servitude introduced by Jan van Riebeeck and the Dutch company responsible for the country's economic system. In addition, African indigenous courts, which deal exclusively with indigenous law, and Eccelesiastical courts also exist.

History of South African law[edit]

Prior to 6 April 1652[edit]

With the failure of the successive Dutch, British and Apartheid governments to record the laws of pre-colonial southern Africa, there is a dearth of information about laws prior to the colonisation of South Africa.[citation needed] However, the current South African legal system has recognised the significance of these, and they have been incorporated into the overall legal system, functioning as district/local courts where appropriate.[citation needed]

6 April 1652 until 1910[edit]

From the 6 April 1652 landing of the Dutch in the Cape of Good Hope, the Roman-Dutch legal system and its legislation and laws took increasing hold,[citation needed] holding sway until the Union of South Africa as a dominion of the British Empire was formed on 31 May 1910. Even after this and to date, wherever British law does not stand, Roman-Dutch law forms the bedrock to which South Africa turns in its search for clarity in its law.[citation needed]

31 May 1910 until 1961[edit]

From the "union" of the Cape Colony, Natal, Transvaal and Orange Free State in 1910 as a dominion within the British Empire called the Union of South Africa, and prior to the formation of the same territory as the Republic of South Africa in 1961, much of English law was incorporated into or formed the basis of South African law. However the jury system was not adopted,and unlike most countries that adopted British common-law, cases are decided by a judge alone. English law and the Roman-Dutch law which held sway prior to this period form the bedrock to which South Africa even now turns in its search for clarity in its law, and where there is a vacuum in its law.

1961 until 1996[edit]

Laws were suspended during this period in which successive states of emergency were presided over by a brutal military dictatorship and junta under General Magnus Malan. Parliament served merely as a rubber stamp for the junta. This was followed by a short interim period and transitional justice system under an interim constitution until a democratically elected parliament enacted the first constitution, with a bill of rights.

1996 until present[edit]

After the constitution was enacted, the supreme law was codified in the form of a Bill of Rights, bringing it in line with other such experiments. Arguably, Nelson Mandela was a Jeffersonian, and this secular basis of separation of Church and State is reflected in the preamble which reads: "We, the People of South Africa..."

Specific fields of law[edit]

See also[edit]

Articles on specific South African legislation[edit]

Notes[edit]

  1. ^ Du Bois, F (ed) "Wille's Principles of South African Law" 9th ed. Cape Town, Juta & Co, 2007.
  2. ^ a b Pain, JH (July 1978). "The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and Swaziland". The Comparative and International Law Journal of Southern Africa 11 (2): 137–167. 
  3. ^ Geraldo, Geraldine Mwanza; Nowases, Isabella (April 2010). "Researching Namibian Law and the Namibian Legal System". Retrieved 7 May 2013. 
  4. ^ "South African criminal court system". Association of Commonwealth Criminal Lawyers. Retrieved 29 December 2010. 

References[edit]

  • Zimmermann, Reinhard and Visser, Daniel P. (1996) Southern Cross: Civil Law and Common Law in South Africa Clarendon Press, Oxford, ISBN 0-19-826087-3 ;
  • Joubert, W. A. et al. (2004) The Law of South Africa LexisNexis Butterworths, Durban, South Africa, ISBN 0-409-00448-0 ;

External links[edit]