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 

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The external history of the law traces the sources and factors which have contributed directly or  indi indirec rectly tly to the devel develop opent ent of the le!al le!al syste syste" " These These relate relate to the polit politica ical# l# consti constitut tution ional al## econoic# sociolo!ical and reli!ious factors that have influences the developent of the le!al syste The internal history of the law covers the ori!ins and developent of the le!al rules and principles theselves# 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& coon law& custoary law and indi!enous 'frican law (oon law% is the centre around which other sources that !enerate law revolve" )efers t o )oan*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% systes have been influenced by )oan law Three a,or coponents of our law% the western or $uropean coponent  )oan *utch and $n!lish law.& the indi!enous 'frican coponent and the /niversal coponent huan- ri!hts law. Fundaental )i!hts are those ri!hts that are possessed by all huan bein!s because they are huan" )eferred to as universal as a result of the oveent towards the universal reco!nition of  huan ri!hts  'frican (oponent% (oponent% has existed existed since tie ieorial ieorial estern coponent% consists of )oan law# *utch Law and $n!lish law" istory of the western coponent started with the foundation of )oe 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 coponent% coponent% can be traced bac7 to the rise of natural 8 law as well as to the (hurch fathers th of 9  ( '* There is no coprehensive written version of our law that has the force of le!islation- our law is not codified

The )eception phenoenon  )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 copre coprehe hensi nsive ve we spea7 of an in complexu receptioncomplexu  reception- a reception of an entire le!al syste  Transplantation eans the iportation or introduction of a le!al syste into a territory which has no le!al syste  +position iposin! a le!al syste on a territory which already has an existin! le!al syste- a!ainst the wishes of the local inhabitants  )oan- *utch law was an iposition on indi!enous law" $n!lish law was received

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)eception of )oan law into estern $urope% 3 phases 1" :re-reception area% few )oan-law rules were chosen and then incorporated in ;eranic custoary law" Started in th ( 2" +ntellectual )ediscovery% rediscovery by a !roup of ,urists called !lossators of 5ustinianorth-$ast >i!eria and (aeroon" The 4antu spea7ers cae to South 'frica about 100 years a!o- established theselves as ironusin! farers in the Lipopo re!ion in 00 '* 4antu spea7ers have a preliterate tradition ?ral traditions are oral narrations# or counications fro the past" They are unwritten verbal accounts of the past" Son!s# le!ends and epic poes# eori@ed and transitted fro !eneration to !eneration ?ral traditions for the ain source of inforation on a preliterate counityetherlands- 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 layen and then inexperienced lawyers   's the colonist started ovin! out eastwards# they overpower the 7hoi and the San" 4y 1= the 7hoi were alost extinct  The pre-colonial era is re!arded as havin! coe to an end in 1= when the 4ritish too7 control of  the (ape The colonial $eriod  *urin! the colonial period adinistrators 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.# nuerous indi!enous 7in!dos the Dulu and 4asotho 7in!dos 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% )oan- *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 predoinantly 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 counity in the Trans7eian territories was well structured and or!ani@ed and for the first tie indi!enous law was reco!ni@ed as a syste of law" +n 1AA3 a criinal 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 attepted 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 huanity observed throu!hout the civili@ed world" +n 1AA a codification of Dulu was adopted in >atal- was disre!arded by the indi!enous counity as it was not a true reflection of indi!enous law of the territory" +t has since been revised several ties# the current version was proul!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 custoary arria!es" +n 1A== custoary unions were forally 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 (oission of 1=03-1=0 saw the ultiate !oal for the adinistration of ,ustice as bein! the iproveent of indi!enous law and its eventual assiilation into colonial law" +ndi!enous counities 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 coenced 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 (oission recoended that a territorial se!re!ation was necessary to safe!uard white interests" :olicies of political# social and econoic se!re!ation lead to the proul!ation of any acts which were aied at 7eepin! blac7s in a position of subordination and which also ipacted on the developent of indi!enous law    The 4lac7 'dinistration 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 fored in 1=10# all the areas which were to a7e up the provinces reco!ni@ed indi!enous law to soe extent# yet the le!islation of the different areas did not uniforly 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"  :roul!ated to created a coprehensive syste of blac7 adinistration   ' 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 establishent of self-!overnent at local# re!ional and territorial level# and paved the way for the creation of hoelands" The hoelands consisted of independent national states as well as sell-!overnin! territories" The oelands 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 hoelands into South 'frican law  Special (ourts for 4lac7s 'bolition 'ct 39 of 1=A6% in 1=A3 the oexter (oission found it unreasonable and unrealistic to restrict urban blac7s to coissioneratal% Giddle 1=  ( Guslis and indus cae 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 sall traders fro >atal 8 it also spread to Dibabwe# Dabia# Galawi# 4otswana# Lesotho and Swa@iland  The )epublic of the ?ran!e Free State% +n 1A=1 +ndians were prohibited fro settlin! or reainin! in the ?ran!e Free State for lon!er than 2onths without perission fro the !overnent

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The :ost-colonial :eriod  +slaic :ersonal Law% the personal law of the Guslis was not reco!ni@ed 8 arria!e and law of  succession- Gusli arria!es were considered to be potentially poly!aous but so are 'frican arria!esI  yland + 2dros- the court stated that the values of huan 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 woanapoleon in 1A09  /nder >apoleon laws were codified# feudalis abolished# efficient !overnent created and education# science# literature and the arts fostered  (ode (ivil or (ode >apoleon. incorporated soe of the freedos !ained by French people durin! the French revolution on 1A= reli!ious tolerance& abolition of slavery.

Ger#any The reception of )oan law  +n coplexu 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 custoary law& different le!al systes for different classes.&  the )oan catholic church was established in ;erany and throu!h it canon law# and ultiately )oan law cae th  )oan law was tau!ht at the ;eran varsities fro the 19  ( onwards th  1  ( ;erany established a !eneral court of appeal 8 ost of the ;eran ,urists were schooled in )oan law  )oan law infiltrated the ;eran le!al syste within 2 centuriesK Le!al developent durin! the 16 th (  The ;eran uanists% were not as far reoved fro actual practice and therefore had a !reater influence than the French huanists  Basius: first outstandin! writer of )oan law in ;erany& founder of ;eran le!al huanis in early 16th& re!arded as a forerunner of the French huanist school Le!al developent durin! the 1 th and 1Ath (  /sus odernus pandectaru% Bthe odern usa!e of the :andectsC :andects is another nae for the *i!est of (orpus iuris (ivilis.  Gethod% they followed a theoretical-practical line of thou!ht & they concerned theselves with )oan law in so far as it was still in use and was applicable& they described )oan law as it applied in practice# sub,ect to aendent and suppleentation in their own laws and courts  /sus odernus pandectaru and canon law% re,ected the coentators rules re!ardin! the application of canon law" The /sus odernus pandectaru were of the opinion that canon law should have preference over )oan law# but ;eran custoary law should have preference over )oan and canon law  "ar$o+ius : ai of his wor7 was to describe the prevailin! law of his tie as it actual was in practice" e suari@ed and copiled the laws which developed before his tie# both )oan and ;eran sources- actual founder of ;eran national law Le!al developent 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 peranent or unchan!eable law& it considered law to be both chan!eable and related to the national spirit& )oan law was studied erely for scientific interest  Sa+igny: re!arded as the !reatest ,urist of all tie  (odification% in 1=00 the civil-law code the B4ur!erliches ;eset@buchC was introduced to the whole ;eran epire

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 )oan-canonical procedure played a role in the early reception of )oan law  The 3utch urists: helped the reception process alon! by usin! their roan law s7ills in the draftin! of le!al docuents  Friesland: there was no stron! central !overnent in the province# the runnin! of the counities affairs were left in the hands of the cler!y- canon law served as a vehicle for the reception of )oan law in the Friesland )eception proper- 2 nd half of the 1th ( to end 16th ( th  :olitical factors: 1  >etherlands was under 4ur!undian rule- a policy of centrali@ation the eliination of all diversity which existed as a result of t he fact that there were to any provinces with different adin 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 )oan law. in all atters not covered by the statute itself  "usto#ary law- order and certainty: provincial custos had to be put in writin! and subitted o for confiration to eliinate contradictory provincial custos" ' clause add to be added statin! the )oan law was the subsidiary law "ourts: prooted reception by- the ,ud!es of the hi!h courts were )oanist-orientated and had o little or no 7nowled!e of local custoary law& French law applied in the *utch courts# French law was influenced by )oan law and the ,ud!ents of the hi!her courts had persuasive value for the lower courts )roof of custo#ary law: 1th ( the hi!h courts reEuired that custoary law had to be proved by o a !roup of witnesses  $conoic factors% Social change and a de+elo$ing econo#y: 16th( >etherlands a!ricultural econoy had !iven o way to a rapidly developin! coercial econoy# with the ephasis on trade" The local law syste was not systeatic or unifor enou!h to cope with the new deands and recourse was had to )oan law Legal ad+ice: the rich erchant class often needed le!al advice- the advocates they consulted o relied heavily on )oan law as systeatised by t he huanists 3i+ersity in town law: each town council wanted !reater autonoy for its own town and also o wanted to 7eep the diversity of the laws applicable to different towns to a iniu" Giddles 1 th ( the towns adopted a ore systeatic approach to the frain! of their local le!islation 7euren.  (ultural factors% the university of Louvain Founded in the 1th ( by the church and the rich duchy of 4rabant" The influence of the church o resulted in the ephasis on canon law# which naturally stren!thened the influence of )oan 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# !overnent or o advisors to wealthy town bur!esses )rofessors at the uni+ersity: acted as propa!andists in the furtherance of )oan law o The extent of the reception in the >etherlands  )epublie7 der Vereeni!de >ederlanden% northern provinces. Friesland- )eception in coplexu& 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 copleted >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 proul!ated in 1=3A The iportance of the date of codification to S' ,urists% as )oan-*utch law developed in the >etherlands# these developents also affected the way t he law was applied in S'- )oan-*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 tie 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" )oan-*utch law was also received in Lesotho# 4otswana# Swa@iland# Dibabwe and >aibia

2ngland The *evelopent of $n!lish (oon law% 3 a,or influences 1" illia the (onEueror% 1066 the >oran in! illia the (onEueror went to conEuer $n!land- at that point people o lived in sall settleents# had local courts and applied local custoary law# suppleented 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 )oan-*utch laws in its colonies or that the adinistration of the (ape applied the law of olland" )oan-*utch law becae applicable in the (ape throu!h custo" This law which was later influenced by $n!lish law# eventually becae 7nown as the basic (oon law of South 'frica

=hat is o#an-3utch lawC The >arrow interpretation of )oan-*utch law th  )oan-*utch law ay be understood as the law of the province of olland as it existed in the 1 and 1Ath (  +t consists of )oan law received in the province of olland# aended by custoary law and le!islation placaeten. of olland as they existed in the 1 th and 1Ath ( The broad interpretation of )oan- *utch law   Gay be interpreted as includin! the law of all  *utch provinces as well as eleents pf the $uropean ius coune 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 coune and the law of the other *utch provinces  $uropean +us coune% (anon law# )oan law# ;eranic custoary law  +n the *u :lessis case the '* ephasi@ed the historical context of the rules of )oan *utch law)oan *utch law is re!arded as an iportant branch of the ius coune

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The foral source of our coon 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 ters# 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 systes which belon! to the $uropean ius coune e will loo7 at the coon law of western $urope before codification when authority is sou!ht with re!ard to !eneral principles# ideas and doctrines of )oan *utch law& the law of the province of olland when authority is sou!ht for specific rules of )oan-*utch law The '* does not hesitate to adapt )oan-*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# )oan-*utch law and the $uropean ius coune have influenced one another- as a result it is easy for S' lawyers schooled on )oan-*utch law# to consult the le!al systes of the $uropean ius coune 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 inforation about the wor7s of the old writers to!ether with an evaluation of their authority in present day le!al practicesM  Facts that deterine the iportance of an old writer% 1hich province did the writer represent I The authoritative writers on )oan-*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 phenoenon in estern $urope and therefore to the western $urope ius coune which was received into the >etherlands The period in which the writer lived % )oan-*utch law existed as an independent le!al syste in o olland for alost 3 (- the B!olden a!e of *utch ,urisprudenceC too7 place in the 1 th (" )oan*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 % (oentaries on )oan-*utch law in its entirety t he o +nleidin!e of ;rotius.& (oentaries on )oan law 5ohannes Voet (oentarius ad :andectas.& coentaries on existin! coentaries ;roenwe!en and Schorer. and treatises on aspects of )oan-*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 (oentarius 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 ;rotiuss +nleidin!e and Tractatus de Le!ibus 'bro!atis >otes on ;rotiusetherlands" This a7es Voetetherlands of his tie" e paid re!ard to the achieveents of the iddle '!es# since it was the elaborations and restateents of )oan law by the edieval writers that had shaped the law that was valid in practice" Voet too7 what was !ood fro the huanists and fused it with the virtues of the 4artolists is reputation was ainly due to the fact that he provided a coprehensive review of the whole field of )oan-*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 fae were not restricted to his hoeland but extended throu!hout $urope" The $n!lish translation with annotations. of the (oentary by Sir :ercival ;ane was published in the 1=0etherlands Voet "ornelis +an *in7ershoe7- 1th N 1Ath ( 4i,n7ershoe7 !raduated as a doctor of 5urisprudence and established hiself as an advocate at The a!ue" e later becae a eber of the oo!e )aad van olland en Deeland the supree (ouncil. of which he was president until he died" is ethod was huanistic ost faous eber of the *utch uanist School# alon!side Schultin!. 2 ost iportant wor7s% Huestiones +uris :ublici and ?bservationes Tuultuarie 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! )oan-*utch law. would serve as the basis for the adinistration 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- )oan-*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 coprised of Van der Linden