LECTURE 1:
THE SOUTH AFRICAN LEGAL SYSTEM AND ITS HISTORY
HISTORY OF THE SOUTH AFRICAN LAW
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A country’s legal system is not finalized and put into place overnight – the South
African legal system is no exception in this regard.
South African law is based on Roman – Dutch law (also known as the common
law: Roman law and Old Dutch law), but contemporary South African law is not
limited thereto as regards its sources. ALSO: English Law, Courts decisions,
Constitution in 1996, many Acts passed on account of the Constitution and
modern commercial legislation such as the National Credit Act 34 of 2005, the
Consumer Protection Act 68 of 2008 and the Companies Act 71 of 2008.
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ROMAN LAW HISTORY
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The development of Roman law is closely related to the constitutional history
of Rome and the Roman Empire.
 Four periods can be distinguished:
(a) The Period of the Kings (The Monarchy) (± 753 BC to 510 BC)
During this period, Rome was relatively undeveloped and the law consisted of
customs (customary law).
(b) The Republican Period (510 BC to 27 BC)
The law was for the first time systematized during this period and was put into
writing in the so- called Twelve Tables.
(c) The Period of the Emperors (The Principate) (27 BC to 284 AD)
These three centuries represent the climax in the Roman history. The empire
itself expanded over large parts of Europe and Northern Africa. Roman law
developed into a sophisticated system, mainly due to the work and writings of
the Roman jurists.
(d) The Dominate (284 AD and later)
This period is known as the Absolute Monarchy or Dominate. The empire was
divided into the Western and Eastern Roman Empire in 395 AD. After the
high-water mark of the Period of the Emperors, the Roman community, and its
legal system, showed signs of stagnation and decline.
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The Germanic tribes conquered the Western Roman Empire in 476 AD and
the application of Roman law started to decline. The empire continued to exist
in the East until 1453.
The Emperor Justinian ruled in this part (in Constantinople, today Istanbul)
between 527 AD 565 AD. He held Roman law in high esteem and instructed a
commission to codify the legal system.
The Codification was later called the Corpus luris Civilis.
It consisted of four parts, namely:
(a) the Digest (Digesta) - a selection of the opinions and writings of Roman
jurist;
(b) the Institutes (Institutiones) – a textbook for students;
(c) the Code (Codex) – a collection of current legislation; and
(d) the Novels (Novellae) – a collection of legislation enacted after the works
mentioned above.
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As the Roman Empire and community degenerated, the legal system
likewise stagnated. However, Roman law did not disappear altogether.
Justinian’s codification in particular ensured that Roman law was preserved
throughout the middle Ages. This legal system was still widely applied and
also played a role in the church.
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In the eleventh century Roman law was rediscovered and studied at a law
school in Bologna. Various law schools were founded thereafter and notes
and commentaries on Roman law were written by, amongst others, students
that studied at those schools. In this way, Roman law was spread through
Europe and formed the basis of most European legal systems.
ROMAN-DUTCH HISTORY
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By the end of the Middle Ages there was an increasing need in Europe for a
developed legal system, as the tribal and provincial systems could not solve
all legal problems satisfactorily.
The various tribal and provincial legal systems of North-western Europe of the
twelfth century were suitable for a simple agricultural community but could not
answer to the demands of a rapidly developing commercial world.
Answer: applying the flexible principles of Roman law adjacent to, and
eventually in addition to, the indigenous law. This led to the adoption or
reception of Roman law.
Various jurists produced writings on Roman and Dutch law. Their opinions on
the law at the time are still accepted today as authoritative by South African
courts. The best known writers in Holland were Hugo de Groot, Johannes
Voet, and Simon van Leeuwen. They are known as the old writers and their
works as the old authorities.
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Probably the most important two old authorities which were later used most
frequently in South Africa are De Groot’s Inleydinge tot de Hollandsche
Rechtsgleertheyt and Voets’ Commentarius ad Pandectas.
SOUTH AFRICAN LAW
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Jan van Riebeeck brought the Roman Dutch law to South Africa in 1652.
Despite the English occupation of 1806, this system remained in force in
South Africa and was extended to the interior of the country – English law
however strongly influenced SA Law.
There were various factors responsible for this:
(a) Judges and magistrates versed in English law were imported from
England;
(b) Local jurists studied in England;
(c) English court decisions were often referred to;
(d) many South African Acts (legislation) were based on corresponding
English Acts; and
(e) the final court of appeal was the Privy Council in England.
The South African mercantile law (commercial law) was strongly influenced by
English law.
The South African system is therefore a mixed or hybrid system, with RomanDutch law having been influenced and amended by local customs and
legislation, decisions of the courts and English law.
THE SOUTH AFRICAN LEGAL SYSTEM
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For the study of the law as a science, it is necessary to understand the
function of the law and to systematize legal rules in a meaningful way.
WHY DO WE NEED LAWS?
(a) the law as a system of its rules applicable to the community (objektiewe
reg); and
(b) a right to which a person has to something, for instance ownership of a
motor vehicle (subjektiewe reg).
Divisions of the objective law (the law)
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To divide or systematize the objective law is a difficult or even controversial
task.
A distinction is usually made between national law and law with an
international element
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In a division of the objective law, a distinction is traditionally drawn between
public law and private law – WHAT ARE THESE?
Public law is divided into constitutional law, administrative law, criminal law,
the law of evidence, criminal procedure and civil procedure.
Private law is divided into the law of persons, the family, succession,
corporeal and incorporeal property, personality rights and obligations.
Commercial law is private law-orientated and regulates legal relationships
which are commonly found in commercial life.
The most important subjects forming part of commercial law are, amongst
others, company law, tax law, insurance law, insolvency law, labour law, the
law of negotiable instruments and credit agreements.
TERMS THAT FLOW THEREFROM:
o NATURAL AND JURISTIC PERSON
o SERVITUDE
o REAL RIGHT
o PERSONAL RIGHTS
o LAW OF OBLIGATION NB: An obligation is a legal tie (bond) between
two or more persons in terms of which the one can claim performance
from the other (for example, to do or to give something, or to refrain
from doing something) and the latter can be compelled by law to
perform. Such a legal tie is created mainly by means of a contract, a
delict or by unjustified enrichment
o DELICT: Delict is quite common in the commercial world. A good
example of this is negligent or fraudulent misrepresentation inducing a
contract.
 The elements (requirements) of a delict are the following;
(i)
There must have been an act (human conduct). It need
not be positive conduct in that it can also be an omission.
For example, if a person insures his life and fails to
disclose on the application form a serious disease from
which he suffers, he also commits an act for the purposes
of delict. The test is whether the law requires positive
conduct from him.
(ii)
The act must be unlawful – it must have infringed on a
person’s subjective right in a manner which, in the public
opinion, is not justified, being unreasonable from an
objective point of view. If A assaults B without reason it is
unlawful; should he do so in self-defense, it will be
regarded as reasonable and lawful. Should A photocopy
parts of a book written by B and sell them, he will infringe
upon B’s immaterial (intellectual) property rights.
However, if B gives him permission to do so, A’s conduct
will be lawful.
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(iii)
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There must have been fault on the part of the wrongdoer,
either in the form of wilfulness (intent) or negligence.
(iv)
The prejudiced person must have suffered damages, in
other words his estate is prejudiced or diminished.
(v)
The element of causation requires that the act, and
nothing else, must have caused the damage.
Unjustified enrichment: means that one person will have a claim
against another if the latter has obtained an asset to the prejudice
of the other without a valid legal ground existing therefor. The test is
whether the enrichment and the impoverishment were unjustified,
not unfair or unreasonable.
PEREMPTORY AND REGULATORY RULES OF LAW
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Regulatory rules of law are rules which determine the relationship between
parties if they do not decide otherwise I.E. LEASE AGREEMENT.
A rule of law is peremptory when it of such a nature that the parties may not
change it; in other words, it will always apply.
SUBJECTIVE RIGHTS
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A subjective right is a legally protectable interest which a legal subject has to
a particular legal object against other legal subjects. A legal subject is any
entity which, according to the objective law, may have rights and duties
A legal object is any entity which, according to the objective law, forms the
object of rights and duties, for example a motor car.
RIGHTS ALWAYS HAVE RECIPROCAL DUTIES
Subjective rights are divided into four categories according to the objects to
which they relate:
(a) Real rights, which are rights to a thing (property), for example a servitude
on land, or ownership of land with a house on it;
(b) Immaterial (intellectual) property rights, which are rights that a legal
subject enjoys in relation to the products of his creativity (his ideas), for
example an invention, a painting or a publication;
(c) personality rights have, as their objects, aspects of a person’s personality,
for example a person’s good name, dignity (including privacy) and bodily
integrity; and
(d) Personal rights, which are a subject’s claim against another to
performance on the strength of an obligation which stems from (amongst
others) a contract, delict or unjustified enrichment.
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