Origins of South African Law
December 20, 2016 | Author: ValentineSithole | Category: N/A
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Origins of South African Law...
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The Origins of South African Law FLS101-V
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Study Unit 1: General ntroduction
The external history of the law traces the sources and factors which have contributed directly or indi indirec rectly tly to the devel develop opent ent of the le!al le!al syste syste" " These These relate relate to the polit politica ical# l# consti constitut tution ional al## econoic# sociolo!ical and reli!ious factors that have influences the developent of the le!al syste The internal history of the law covers the ori!ins and developent of the le!al rules and principles theselves# under the influence of external historical events $xternal history of the law sheds li!ht on the internal history of the law
The ain sources of ori!in of our law% le!islation& court decisions& coon law& custoary law and indi!enous 'frican law (oon law% is the centre around which other sources that !enerate law revolve" )efers t o )oan*utch law as influenced by $n!lish law" +s a livin! law# which is capable of adaptin! to the chan!in! values of society (ivil law% systes have been influenced by )oan law Three a,or coponents of our law% the western or $uropean coponent )oan *utch and $n!lish law.& the indi!enous 'frican coponent and the /niversal coponent huan- ri!hts law. Fundaental )i!hts are those ri!hts that are possessed by all huan bein!s because they are huan" )eferred to as universal as a result of the oveent towards the universal reco!nition of huan ri!hts 'frican (oponent% (oponent% has existed existed since tie ieorial ieorial estern coponent% consists of )oan law# *utch Law and $n!lish law" istory of the western coponent started with the foundation of )oe 3 4( firstly to the estern $pire and at the death of 5ustinian oved to the $astern $pire 6 th ( '*" $n!lish law can be traced to 11th ( '* '* /niversal coponent% coponent% can be traced bac7 to the rise of natural 8 law as well as to the (hurch fathers th of 9 ( '* There is no coprehensive written version of our law that has the force of le!islation- our law is not codified
The )eception phenoenon )eception refers to the absorption or adoption of the rules# principles and institutions of a le!al syste syste in an exist existin! in! le!al le!al syste syste"" if the recepti reception on is very very copre coprehe hensi nsive ve we spea7 of an in complexu receptioncomplexu reception- a reception of an entire le!al syste Transplantation eans the iportation or introduction of a le!al syste into a territory which has no le!al syste +position iposin! a le!al syste on a territory which already has an existin! le!al syste- a!ainst the wishes of the local inhabitants )oan- *utch law was an iposition on indi!enous law" $n!lish law was received
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)eception of )oan law into estern $urope% 3 phases 1" :re-reception area% few )oan-law rules were chosen and then incorporated in ;eranic custoary law" Started in th ( 2" +ntellectual )ediscovery% rediscovery by a !roup of ,urists called !lossators of 5ustinianorth-$ast >i!eria and (aeroon" The 4antu spea7ers cae to South 'frica about 100 years a!o- established theselves as ironusin! farers in the Lipopo re!ion in 00 '* 4antu spea7ers have a preliterate tradition ?ral traditions are oral narrations# or counications fro the past" They are unwritten verbal accounts of the past" Son!s# le!ends and epic poes# eori@ed and transitted fro !eneration to !eneration ?ral traditions for the ain source of inforation on a preliterate counityetherlands- interested in the South 'frican +nterior for its strate!ic position as it was on the shippin! route fro +ndia to the far east The )aad van 5ustitie- court established in 16A run by layen and then inexperienced lawyers 's the colonist started ovin! out eastwards# they overpower the 7hoi and the San" 4y 1= the 7hoi were alost extinct The pre-colonial era is re!arded as havin! coe to an end in 1= when the 4ritish too7 control of the (ape The colonial $eriod *urin! the colonial period adinistrators tried to Bcivili@eC the indi!enous population" here indi!enous law was reco!ni@ed# it was sub,ect to the strict application of a repu!nancy clause" The repugnancy clause determined that indigenous law would only apply as so far as it was not contrary to the western notion of public policy and natural justice
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4y iddle 1= th ( south 'frica had been divided into 2 4ritish colonies >atal and the (ape.# nuerous indi!enous 7in!dos the Dulu and 4asotho 7in!dos bein! the lar!est. and 2 Voortre77er republics the Duid-'fri7aansche )epublie7 and the )epublic of the ?ran!e Free State . The (ape% 2 re!ions The (olony proper% )oan- *utch law as influenced by $n!lish law and as odified by o le!islation applied" +ndi!enous law was expressly disre!arded except when it was not contrary to any law or opposed to the western notions of orality# public policy or eEuity The Trans7eian territories% area was predoinantly populated by the indi!enous population and o was considered far enou!h fro the white areas not to be a threat" The indi!enous counity in the Trans7eian territories was well structured and or!ani@ed and for the first tie indi!enous law was reco!ni@ed as a syste of law" +n 1AA3 a criinal code for the Trans7eian territories was adopted >atal% in 1A93 the authorities decided to pursue the (ape policy of non-reco!nition of indi!enous law" Sir Theophilus Shepstone attepted to restore tribal leadership and reco!ni@ed indi!enous laws# sub,ect to the proviso that it was not repu!nant to the !eneral principles of huanity observed throu!hout the civili@ed world" +n 1AA a codification of Dulu was adopted in >atal- was disre!arded by the indi!enous counity as it was not a true reflection of indi!enous law of the territory" +t has since been revised several ties# the current version was proul!ated in 1=A The Voortre77er republics% The )epublic of the ?ran!e Free State% also followed the policy of non-reco!nition of indi!enous o law and in the Thaba >chu reserve specific reco!nition was !iven to custoary arria!es" +n 1A== custoary unions were forally reco!ni@ed throu!h out the territory The Duid-'fri7aansche )epublie7 Transvaal.% first followed the non-reco!nition policy and then in o 1AA the application of indi!enous law was reco!ni@ed in civil disputes where all parties were blac7# sub,ect to the proviso that the relevant indi!enous law had to be in accordance with the !eneral principles of civilisation ac7nowled!ed throu!hout the world" ;eneral% the +nter-colonial >ative 'ffairs (oission of 1=03-1=0 saw the ultiate !oal for the adinistration of ,ustice as bein! the iproveent of indi!enous law and its eventual assiilation into colonial law" +ndi!enous counities were not in favour of the colonial law" They either i!nored it and unofficially aintained their indi!enous laws and institutions or obeyed the colonial laws out of fear
The )ost-colonial era 'lthou!h the 'partheid era officially coenced in 1=9A# a policy of separatin! the different races had been developin! since the turn of the 20 th (" as early as 1=0 the inter-colonial >ative 'ffairs (oission recoended that a territorial se!re!ation was necessary to safe!uard white interests" :olicies of political# social and econoic se!re!ation lead to the proul!ation of any acts which were aied at 7eepin! blac7s in a position of subordination and which also ipacted on the developent of indi!enous law The 4lac7 'dinistration act 3A of 1=2% practical reason was that a unifor approach to the reco!nition and application of indi!enous law was needed hen the /nion was fored in 1=10# all the areas which were to a7e up the provinces reco!ni@ed indi!enous law to soe extent# yet the le!islation of the different areas did not uniforly re!ulate the application of indi!enous law" The act consolidated the colonial le!islation" S 11 1. indi!enous law would be applicable only in as far as it was not a!ainst the principles of public policy or natural ,ustice" :roul!ated to created a coprehensive syste of blac7 adinistration ' separate court syste ca created for blac7s The act consolidated the colonial le!islation The 4lac7 authorities 'ct 6A of 1=1% ade provision for the establishent of self-!overnent at local# re!ional and territorial level# and paved the way for the creation of hoelands" The hoelands consisted of independent national states as well as sell-!overnin! territories" The oelands were reincorporated into the )epublic of South 'frica on 2 'pril 1==9 and the (onstitution provided for the incorporation of the le!islation of these hoelands into South 'frican law Special (ourts for 4lac7s 'bolition 'ct 39 of 1=A6% in 1=A3 the oexter (oission found it unreasonable and unrealistic to restrict urban blac7s to coissioneratal% Giddle 1= ( Guslis and indus cae fro +ndia to the 4ritish colony of >atal to wor7 as labourers on the su!ar-cane plantations The Duid-'fri7aansche )epublie7 Transvaal.% +sla was introduced to the Transvaal by Gusli railway wor7ers# artisans and sall traders fro >atal 8 it also spread to Dibabwe# Dabia# Galawi# 4otswana# Lesotho and Swa@iland The )epublic of the ?ran!e Free State% +n 1A=1 +ndians were prohibited fro settlin! or reainin! in the ?ran!e Free State for lon!er than 2onths without perission fro the !overnent
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The :ost-colonial :eriod +slaic :ersonal Law% the personal law of the Guslis was not reco!ni@ed 8 arria!e and law of succession- Gusli arria!es were considered to be potentially poly!aous but so are 'frican arria!esI yland + 2dros- the court stated that the values of huan di!nity# eEuity and freedo ust always be at the forefront when the constitution is interpreted" A#od + ,ultilateral ,otor Vehicle Accident Fund- the S(' reco!ni@ed a Gusli woanapoleon in 1A09 /nder >apoleon laws were codified# feudalis abolished# efficient !overnent created and education# science# literature and the arts fostered (ode (ivil or (ode >apoleon. incorporated soe of the freedos !ained by French people durin! the French revolution on 1A= reli!ious tolerance& abolition of slavery.
Ger#any The reception of )oan law +n coplexu reception% there was !reat variety in their law- there was a need for a ore !eneral and better developed le!al syste each re!ion had its own custoary law& different le!al systes for different classes.& the )oan catholic church was established in ;erany and throu!h it canon law# and ultiately )oan law cae th )oan law was tau!ht at the ;eran varsities fro the 19 ( onwards th 1 ( ;erany established a !eneral court of appeal 8 ost of the ;eran ,urists were schooled in )oan law )oan law infiltrated the ;eran le!al syste within 2 centuriesK Le!al developent durin! the 16 th ( The ;eran uanists% were not as far reoved fro actual practice and therefore had a !reater influence than the French huanists Basius: first outstandin! writer of )oan law in ;erany& founder of ;eran le!al huanis in early 16th& re!arded as a forerunner of the French huanist school Le!al developent durin! the 1 th and 1Ath ( /sus odernus pandectaru% Bthe odern usa!e of the :andectsC :andects is another nae for the *i!est of (orpus iuris (ivilis. Gethod% they followed a theoretical-practical line of thou!ht & they concerned theselves with )oan law in so far as it was still in use and was applicable& they described )oan law as it applied in practice# sub,ect to aendent and suppleentation in their own laws and courts /sus odernus pandectaru and canon law% re,ected the coentators rules re!ardin! the application of canon law" The /sus odernus pandectaru were of the opinion that canon law should have preference over )oan law# but ;eran custoary law should have preference over )oan and canon law "ar$o+ius : ai of his wor7 was to describe the prevailin! law of his tie as it actual was in practice" e suari@ed and copiled the laws which developed before his tie# both )oan and ;eran sources- actual founder of ;eran national law Le!al developent fro the 1= th ( th istorical school 1= (- was established in reaction to the doctrine of the law of nature there is a hi!her# universal# unchan!eable law to which all ust confor. The historical school did not reco!ni@e any peranent or unchan!eable law& it considered law to be both chan!eable and related to the national spirit& )oan law was studied erely for scientific interest Sa+igny: re!arded as the !reatest ,urist of all tie (odification% in 1=00 the civil-law code the B4ur!erliches ;eset@buchC was introduced to the whole ;eran epire
The 4etherlands
provinces% olland& Deeland& /trecht& ;elderland& the ?elands& Friesland and ?veri,ssel 2 phases of reception% the early reception phase and the phase in which reception proper too7 place
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$arly reception% late 13 th ( to iddle 1 th ( The ecclesiastical church; udges who were ostly trained at 4olo!na or ?rleans- their 7nowled!e of )oan-canonical procedure played a role in the early reception of )oan law The 3utch urists: helped the reception process alon! by usin! their roan law s7ills in the draftin! of le!al docuents Friesland: there was no stron! central !overnent in the province# the runnin! of the counities affairs were left in the hands of the cler!y- canon law served as a vehicle for the reception of )oan law in the Friesland )eception proper- 2 nd half of the 1th ( to end 16th ( th :olitical factors: 1 >etherlands was under 4ur!undian rule- a policy of centrali@ation the eliination of all diversity which existed as a result of t he fact that there were to any provinces with different adin and laws. was introduced to the >etherlands Legislation: 16th ( the 4ur!undians introduced statutes which contained explicit reference to the o application of the BwrittenC law )oan law. in all atters not covered by the statute itself "usto#ary law- order and certainty: provincial custos had to be put in writin! and subitted o for confiration to eliinate contradictory provincial custos" ' clause add to be added statin! the )oan law was the subsidiary law "ourts: prooted reception by- the ,ud!es of the hi!h courts were )oanist-orientated and had o little or no 7nowled!e of local custoary law& French law applied in the *utch courts# French law was influenced by )oan law and the ,ud!ents of the hi!her courts had persuasive value for the lower courts )roof of custo#ary law: 1th ( the hi!h courts reEuired that custoary law had to be proved by o a !roup of witnesses $conoic factors% Social change and a de+elo$ing econo#y: 16th( >etherlands a!ricultural econoy had !iven o way to a rapidly developin! coercial econoy# with the ephasis on trade" The local law syste was not systeatic or unifor enou!h to cope with the new deands and recourse was had to )oan law Legal ad+ice: the rich erchant class often needed le!al advice- the advocates they consulted o relied heavily on )oan law as systeatised by t he huanists 3i+ersity in town law: each town council wanted !reater autonoy for its own town and also o wanted to 7eep the diversity of the laws applicable to different towns to a iniu" Giddles 1 th ( the towns adopted a ore systeatic approach to the frain! of their local le!islation 7euren. (ultural factors% the university of Louvain Founded in the 1th ( by the church and the rich duchy of 4rabant" The influence of the church o resulted in the ephasis on canon law# which naturally stren!thened the influence of )oan law Faculty of o#an law and canon law: o nfluence of #edie+al uni+ersities: the universities of ?rleans and the +talian universities o exerted influence of the law school at Louvain Glossa Ordinaria and *artolus: the law lecturers in the early days followed the ;lossa o ?rdinaria and well as the wor7s of 4artolus- as a result a hi!h standard of civil-law teachin! was established For#er students at the uni+ersity: any too7 up positions in the hi!h court# !overnent or o advisors to wealthy town bur!esses )rofessors at the uni+ersity: acted as propa!andists in the furtherance of )oan law o The extent of the reception in the >etherlands )epublie7 der Vereeni!de >ederlanden% northern provinces. Friesland- )eception in coplexu& olland and Deeland- extensive reception (odification in the >etherlands th +n the late 1A ( it was decided to codify the law of >etherlands- actin! secretary Van der Linden was appointed- before the tas7 was copleted >apoleon conEuered >etherlands and appointed his brother# Louis 4onaparte as the $peror of >etherlands
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+n 1A0= Louis introduced the (ode >apoleon (ode (ivil. into >etherlands and adapted it for the conditions there" $ven thou!h the >etherlands was no lon!er under French rule# a civil code odeled on the (ode (ivil# was proul!ated in 1=3A The iportance of the date of codification to S' ,urists% as )oan-*utch law developed in the >etherlands# these developents also affected the way t he law was applied in S'- )oan-*utch law continued developin! until codification too7 place in >etherlands in 1A0=- the (ivil code of the >etherlands does not apply in S'# as S' was no lon!er under the control of the >etherlands at the tie of the codification" The province of olland is si!nificant to S' because the law of the province of olland was the leadin! law in the >etherlands" )oan-*utch law was also received in Lesotho# 4otswana# Swa@iland# Dibabwe and >aibia
2ngland The *evelopent of $n!lish (oon law% 3 a,or influences 1" illia the (onEueror% 1066 the >oran in! illia the (onEueror went to conEuer $n!land- at that point people o lived in sall settleents# had local courts and applied local custoary law# suppleented by a few royal statutes illia set the process creatin! a unified le!al syste in otion by establishin! the in!etherlands# the *utch $ast +ndia applied )oan-*utch laws in its colonies or that the adinistration of the (ape applied the law of olland" )oan-*utch law becae applicable in the (ape throu!h custo" This law which was later influenced by $n!lish law# eventually becae 7nown as the basic (oon law of South 'frica
=hat is o#an-3utch lawC The >arrow interpretation of )oan-*utch law th )oan-*utch law ay be understood as the law of the province of olland as it existed in the 1 and 1Ath ( +t consists of )oan law received in the province of olland# aended by custoary law and le!islation placaeten. of olland as they existed in the 1 th and 1Ath ( The broad interpretation of )oan- *utch law Gay be interpreted as includin! the law of all *utch provinces as well as eleents pf the $uropean ius coune The view of the South 'frican 'ppellate *ivision /ntil 1=AA# there was conflict of opinion- the S(' settled this old dispute in *u :lessis v Strauss by decidin! in favour of the narrow interpretation The relevance of the ius coune and the law of the other *utch provinces $uropean +us coune% (anon law# )oan law# ;eranic custoary law +n the *u :lessis case the '* ephasi@ed the historical context of the rules of )oan *utch law)oan *utch law is re!arded as an iportant branch of the ius coune
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The foral source of our coon law is the law of the province of olland as it existed in the 1 th and 1Ath ( +n practice# we ust distin!uish between the search for authority for the law in !eneral and the search for specific le!al rules" hen we loo7 at the law in !eneral ters# we note that there is unity in the law of western $urope# but when we loo7 at specific rules# we ay find inor differences in the various systes which belon! to the $uropean ius coune e will loo7 at the coon law of western $urope before codification when authority is sou!ht with re!ard to !eneral principles# ideas and doctrines of )oan *utch law& the law of the province of olland when authority is sou!ht for specific rules of )oan-*utch law The '* does not hesitate to adapt )oan-*utch le!al rules which have fallen out of step with the needs of present day S' 4ecause of the spirit pf universalis that has existed in $urope for the past 00 years# )oan-*utch law and the $uropean ius coune have influenced one another- as a result it is easy for S' lawyers schooled on )oan-*utch law# to consult the le!al systes of the $uropean ius coune in his search for a solution to a new le!al proble
The Sources of o#an-3utch law
The old writers# statuteJ le!islation# collections of court decisions# collections of opinions and custo
The old writers Mstudy the inforation about the wor7s of the old writers to!ether with an evaluation of their authority in present day le!al practicesM Facts that deterine the iportance of an old writer% 1hich province did the writer represent I The authoritative writers on )oan-*utch law are 1stly o those who wrote on the law of the province of olland" Those who did not write on the laws of t he province of olland# in so far as they bear witness to the reception phenoenon in estern $urope and therefore to the western $urope ius coune which was received into the >etherlands The period in which the writer lived % )oan-*utch law existed as an independent le!al syste in o olland for alost 3 (- the B!olden a!e of *utch ,urisprudenceC too7 place in the 1 th (" )oan*utch law consists of the law of olland of the 1 th and 1Ath (- so you would first consult the writers of this period The type of work written by the author % (oentaries on )oan-*utch law in its entirety t he o +nleidin!e of ;rotius.& (oentaries on )oan law 5ohannes Voet (oentarius ad :andectas.& coentaries on existin! coentaries ;roenwe!en and Schorer. and treatises on aspects of )oan-*utch law *e lure 4elli as :acis by ;ortius. The influence of these writers on (outh )frican legal practice% 5ohannes Voet 8 the reason for his o popularity is that in his (oentarius he covered a very wide field of the law and wrote authoritatively on it" To South 'frican ,ud!es he personified the B!olden a!eC of *utch ,urisprudence" :ercival ;aneotes on ;rotiuss +nleidin!e and Tractatus de Le!ibus 'bro!atis >otes on ;rotiusetherlands" This a7es Voetetherlands of his tie" e paid re!ard to the achieveents of the iddle '!es# since it was the elaborations and restateents of )oan law by the edieval writers that had shaped the law that was valid in practice" Voet too7 what was !ood fro the huanists and fused it with the virtues of the 4artolists is reputation was ainly due to the fact that he provided a coprehensive review of the whole field of )oan-*utch law" is writin! is usually easy to understand# since he states his propositions clearly and is very lo!ical in his reasonin!" is influence and fae were not restricted to his hoeland but extended throu!hout $urope" The $n!lish translation with annotations. of the (oentary by Sir :ercival ;ane was published in the 1=0etherlands Voet "ornelis +an *in7ershoe7- 1th N 1Ath ( 4i,n7ershoe7 !raduated as a doctor of 5urisprudence and established hiself as an advocate at The a!ue" e later becae a eber of the oo!e )aad van olland en Deeland the supree (ouncil. of which he was president until he died" is ethod was huanistic ost faous eber of the *utch uanist School# alon!side Schultin!. 2 ost iportant wor7s% Huestiones +uris :ublici and ?bservationes Tuultuarie Huaestiones% deals with the public international law# it earned hi an international reputation" )e!arded as one of the classics in this field# to!ether with ;rotiusatal# ?ran!e Free State and the Transvaal >atal 1A3A the Voortre77ers declared that the ollandsche )echtsple!in! )oan-*utch law. would serve as the basis for the adinistration of ,ustice around the port at port >atal *urban." 'fter the 4ritish too7 control of >atal in 1A9 it was stipulated that the le!al syste of the *istrict of >atal would be the syste practiced in the (ape colony- )oan-*utch law as odified by $n!lish procedural laws The Voortre77er republics 'fter the ;reat Tre7 the 4oers settled in the Transvaal and the Free State# which they declared independent states )eferred to as the B4oer republicsC or the BVoortre77er republicsC" The Transvaal was 7nown as the B Duid-'fri7aansche )epublie7C They were also influenced by $n!lish law The Duid-'fri7aansche )epublie7% The ollandsche wet would for the basis of the law of the D')it coprised of Van der Linden
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