Law of South Africa
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South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...
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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
system inherited from the British, and a
customary law A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudinary or unofficial law) exists wher ...
system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin). These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law. As a general rule, South Africa follows English law in both
criminal In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
and
civil procedure Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or ca ...
,
company law Corporate law (also known as company law or enterprise law) is the body of law governing the rights, relations, and conduct of persons, companies, organizations and businesses. The term refers to the legal practice of law relating to corp ...
, constitutional law and the law of evidence; while Roman-Dutch common law is followed in the
South African contract law South African contract law is a modernised form of Roman-Dutch law rooted in canon law, canon and Roman law, Roman legal traditions.Du Plessis, et al. p.11. It governs agreements between two or more parties who intend to create legally enforcea ...
, law of delict (tort), law of persons, law of things,
family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marriag ...
, etc. With the commencement in 1994 of the interim Constitution, and in 1997 its replacement, the final Constitution, another strand has been added to this weave. Besides South Africa itself, South African law, especially its civil law and common law elements, also forms the basis of the laws of
Botswana Botswana, officially the Republic of Botswana, is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory part of the Kalahari Desert. It is bordered by South Africa to the sou ...
,
Eswatini Eswatini, formally the Kingdom of Eswatini, also known by its former official names Swaziland and the Kingdom of Swaziland, is a landlocked country in Southern Africa. It is bordered by South Africa on all sides except the northeast, where i ...
,
Lesotho Lesotho, formally the Kingdom of Lesotho and formerly known as Basutoland, is a landlocked country in Southern Africa. Entirely surrounded by South Africa, it is the largest of only three sovereign enclave and exclave, enclaves in the world, t ...
,
Namibia Namibia, officially the Republic of Namibia, is a country on the west coast of Southern Africa. Its borders include the Atlantic Ocean to the west, Angola and Zambia to the north, Botswana to the east and South Africa to the south; in the no ...
, and
Zimbabwe file:Zimbabwe, relief map.jpg, upright=1.22, Zimbabwe, relief map Zimbabwe, officially the Republic of Zimbabwe, is a landlocked country in Southeast Africa, between the Zambezi and Limpopo Rivers, bordered by South Africa to the south, Bots ...
, which were introduced during the process of colonisation.
Basutoland Basutoland was a British Crown colony that existed from 1884 to 1966 in present-day Lesotho, bordered with the Cape Colony, Natal Colony and Orange River Colony until 1910 and completely surrounded by South Africa from 1910. Though the Basot ...
(Lesotho) received the law of the
Cape Colony The Cape Colony (), also known as the Cape of Good Hope, was a British Empire, British colony in present-day South Africa named after the Cape of Good Hope. It existed from 1795 to 1802, and again from 1806 to 1910, when it united with three ...
in 1884, and Bechuanaland (Botswana) and
Southern Rhodesia Southern Rhodesia was a self-governing British Crown colony in Southern Africa, established in 1923 and consisting of British South Africa Company (BSAC) territories lying south of the Zambezi River. The region was informally known as South ...
(Zimbabwe) received it in 1891. Swaziland (Eswatini) received the law of the
Transvaal Colony The Transvaal Colony () was the name used to refer to the Transvaal region during the period of direct British rule and military occupation between the end of the Second Boer War in 1902 when the South African Republic was dissolved, and the ...
in 1904, and South-West Africa (Namibia) received the law of the
Cape Province The Province of the Cape of Good Hope (), commonly referred to as the Cape Province () and colloquially as The Cape (), was a province in the Union of South Africa and subsequently the Republic of South Africa. It encompassed the old Cape Co ...
in 1920, after its conquest by South Africa.


Court system in South Africa

The South African court system is organized in a clear hierarchy b
Chapter 8
of the Constitution of the Republic of South Africa, specificall
s166
and consists of (from lowest to highest legal authority): Firstly, a number of Magistrates' Courts (both smaller Regional and larger District). Secondly, a single High Court with multiple divisions across the country, both regional (having jurisdiction over the entire province) and smaller local division (having a geographically smaller jurisdiction, usually over a heavily populated regions) introduced by the Superior Courts Act, 2013. This is clearly seen in Gauteng which has both the High Court of South Africa Gauteng Division, Pretoria which sits in Pretoria, and the High Court of South Africa Gauteng Local Division, Johannesburg which sits in Johannesburg. All High Court names have been clarified by the Chief Justice and can be rea
on page 14 of the South African Government Gazette No. 37390, 28 February 2014
Thirdly, the Supreme Court of Appeal (SCA), a purely appellate court (court of second instance). While previously both the SCA and Constitutional Court held joint apex jurisdiction/position; the Sixth Amendment of the Constitution of South Africa, altered the hierarchy so that the Constitutional Court sitting in Johannesburg is the apex court, with the SCA below it, and the High Court below the SCA. And finally, the
Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...
, which is the highest authority in constitutional matters, and since the Sixth Amendment of the Constitution of South Africa, the highest court in the land for both constitutional matters and all other matters. This position is legally confirmed and constitutionally entrenched b
Section 167(3)(b)(ii)
of the Constitution of South Africa which states that the Constitutional Court may decide "any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court". The Constitutional Court has final authority to decide whether an issue is constitutional or not
s167(3)(c)
ref name="justice.gov.za1"/> of the Constitution of South Africa. A number of specialized courts have also been created by legislation to deal with specialized areas of law important to the public as well as to avoid a backlog in the main legal administration infrastructure. These courts exist alongside the court hierarchy; their decisions are thus subject to the same process of appeal and review through the normal courts, starting at a specific level depending on the specialized court in question. Within these specialized courts, there exist, to name a few, the Competition Appeal Court, the Electoral Court, the Land Claims Court, and the Labour and Labour Appeal Court. African indigenous courts, which deal exclusively with the indigenous law, also exist.
draft Traditional Courts Bill
aimed at introducing a Traditional Court below, or on the same level as the Magistrates Courts has been drafted, but awaits parliamentary introduction, reading and debate.


History


The Roman-Dutch period (1500–1809)

Until 1795, the
United Provinces of the Netherlands The United Provinces of the Netherlands, commonly referred to in historiography as the Dutch Republic, was a confederation that existed from 1579 until the Batavian Revolution in 1795. It was a predecessor state of the present-day Netherla ...
was a sovereign independent state. Together with the other territories of the Netherlands, it was organised into a fairly free commonwealth informally known as the Dutch Republic. It was originally a rural territory, but the rapid speed of development during the 15th century changed it into a trading centre. Germanic custom, feudal law, and the law merchant were no longer sufficient to settle the disputes which arose in everyday trade, so the Dutch turned to the more advanced '' ius commune''. Initially, it was applied ''in subsidium'' to fill in gaps in existing customary law on a case-by-case basis. Then, in the 15th and 16th centuries, it was received ''in complexu'' (as a system) to such an extent that at the beginning of the 17th century the great Dutch lawyer Huig de Groot (Grotius) could describe this fusion (or joining together) of Dutch and Roman principles as a "new" mixed legal system with its own content. This was how Roman-Dutch law began, led first and foremost by the doctrinal writers of the ''Hollandse elegante school''. It was later to form the basis of the present common law in South Africa and
Sri Lanka Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka, also known historically as Ceylon, is an island country in South Asia. It lies in the Indian Ocean, southwest of the Bay of Bengal, separated from the Indian subcontinent, ...
in a form that had been expanded by what were called the placaaten which was the legislation of that period.


Prior to 6 April 1652

With the failure of the indigenous inhabitants as well as the successive Dutch and British colonial 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. 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.


6 April 1652 until 1910

From 6 April 1652 landing of the Dutch in the
Cape of Good Hope The Cape of Good Hope ( ) is a rocky headland on the Atlantic Ocean, Atlantic coast of the Cape Peninsula in South Africa. A List of common misconceptions#Geography, common misconception is that the Cape of Good Hope is the southern tip of Afri ...
, the Roman-Dutch legal system and its legislation and laws took increasing hold, holding sway until the
Union of South Africa The Union of South Africa (; , ) was the historical predecessor to the present-day South Africa, Republic of South Africa. It came into existence on 31 May 1910 with the unification of the British Cape Colony, Cape, Colony of Natal, Natal, Tra ...
as a dominion of the
British Empire The British Empire comprised the dominions, Crown colony, colonies, protectorates, League of Nations mandate, mandates, and other Dependent territory, territories ruled or administered by the United Kingdom and its predecessor states. It bega ...
was formed on 31 May 1910. Even after this and to date, wherever English law does not stand, Roman-Dutch law forms the bedrock to which South Africa turns in its search for clarity in its law.


31 May 1910 until 1961

From the union of the
Cape Colony The Cape Colony (), also known as the Cape of Good Hope, was a British Empire, British colony in present-day South Africa named after the Cape of Good Hope. It existed from 1795 to 1802, and again from 1806 to 1910, when it united with three ...
, Natal, Transvaal and
Orange River Colony The Orange River Colony was the British colony created after Britain first occupied (1900) and then annexed (1902) the independent Orange Free State in the Second Boer War. The colony ceased to exist in 1910, when it was absorbed into the Unio ...
in 1910 as a
dominion A dominion was any of several largely self-governance, self-governing countries of the British Empire, once known collectively as the ''British Commonwealth of Nations''. Progressing from colonies, their degrees of self-governing colony, colon ...
within the
British Empire The British Empire comprised the dominions, Crown colony, colonies, protectorates, League of Nations mandate, mandates, and other Dependent territory, territories ruled or administered by the United Kingdom and its predecessor states. It bega ...
called the
Union of South Africa The Union of South Africa (; , ) was the historical predecessor to the present-day South Africa, Republic of South Africa. It came into existence on 31 May 1910 with the unification of the British Cape Colony, Cape, Colony of Natal, Natal, Tra ...
, and prior to the formation of the Republic of South Africa in 1961, much of English law was incorporated into or formed the basis of South African law. The jury system was abolished in 1969, and cases are decided by a judge alone, sometimes assisted by two assessors. 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.


Specific fields of law

* * * * * * * * * * * * * * * * * * * * * * * * *


See also

* Advocates in South Africa * Attorneys in South Africa * In re Dube (1979) *
List of national legal systems The contemporary national legal systems are generally based on one of four major legal traditions: civil law, common law, customary law, religious law or combinations of these. However, the legal system of each country is shaped by its unique ...
* Legal education in South Africa * List of law schools in South Africa * Patent attorney: South Africa


Articles on specific South African legislation

* * * *


References


Further reading

* Martin Chanock. ''The making of South African legal culture 1902-1936: fear, favour and prejudice''. Cambridge University Press, 2001. * Erika de Wet, Holger Hestermeyer, & Rüdiger Wolfrum, eds. ''The implementation of international law in Germany and South Africa''. Pretoria: Pretoria University Law Press, 2015. * Herman Robert Hahlo & Ellison Kahn. ''The South African Legal System and Its Background''. Cape Town: Juta, 1968 (5th imprint 1985). * W. A. Joubert et al. ''The Law of South Africa''. Durban: LexisNexis/Butterworths, 2004 . * Robert Warden Lee. ''An Introduction to Roman-Dutch Law'', 5th edn. Oxford: Clarendon, 1953. * Ip Maithufi, Sindiso Mnisi Weeks, et al. ''African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives''. Oxford: Oxford University Press, 2015. * Lirieka Meintjes-van der Walt. ''Introduction to South African law: Fresh perspectives''. Cape Town: Pearson Education South Africa, 2019. * C.M. Van der Bank & I. Mulder-De Does. ''An introduction to South African law and theory'', 3rd edn. Vanderbijlpark: Publitech, 2007. * C.G. Van der Merwe & J.E. Du Plessis. ''Introduction to the law of South Africa''. The Hague: Kluwer Law, 2004. * Reinhard Zimmermann & Daniel P. Visser. ''Southern Cross: Civil Law and Common Law in South Africa''. Oxford: Clarendon Press, 1996. . ; maritime law * John Hare. ''Shipping law & admiralty jurisdiction in South Africa'', 2nd edn. Kenwyn: Juta, 2009. * Patrick H. G. Vrancken. ''South Africa and the law of the sea''. Leiden: Martinus Nijhoff, 2011. ; neighbour law * Andre J. van der Walt. ''The law of neighbours''. Cape Town: Juta, 2010.


External links

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