Law of South Africa
Encyclopedia
South Africa has a 'hybrid' or 'mixed' legal system
, made of 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). 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 the areas of procedural law, lompany law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law
, law of delict
(tort), law of persons
, law of things, family law
, 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.
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.
In addition, African indigenous courts, which deal exclusively with indigenous law, also exist.
, 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. It and the Roman-Dutch law which held sway prior to this period forms 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.
, the Roman-Dutch legal system and its legislation and laws took increasing hold, 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.
Legal pluralism
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems...
, made of the interweaving of a number of distinct legal traditions: a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
system inherited from the Dutch
Dutch Empire
The Dutch Empire consisted of the overseas territories controlled by the Dutch Republic and later, the modern Netherlands from the 17th to the 20th century. The Dutch followed Portugal and Spain in establishing an overseas colonial empire, but based on military conquest of already-existing...
, a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system inherited from the British
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
, and a customary law system inherited from indigenous Africans (often termed African Customary Law
Customary law in South Africa
South African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa...
, 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 the areas of procedural law, lompany law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law
South African contract law
South African contract law is "essentially a modernised version of the Roman-Dutch law of contract," which is itself rooted in Roman law. In the broadest definition, a contract is an agreement entered into by two or more parties with the serious intention of creating a legal obligation...
, law of delict
South African law of delict
The South African law of delict engages primarily with "the circumstances in which one person can claim compensation from another for harm that has been suffered." JC Van der Walt and Rob Midgley define a delict, "in general terms [...] as a civil wrong," and more narrowly as "wrongful and...
(tort), law of persons
Law of persons in South Africa
The law of persons in South Africa is generally defined as regulating "the coming into being, private-law status and the coming to an end of a natural person." It determines the requirements and qualifications for legal personhood or subjectivity in South Africa, and the rights and responsibilities...
, law of things, family law
South African family law
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: ...
, 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.
Court System in South Africa
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. 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.
In addition, African indigenous courts, which deal exclusively with indigenous law, also exist.
31 May 1910 until 1961
From the "union" of the Cape ColonyCape Colony
The Cape Colony, part of modern South Africa, was established by the Dutch East India Company in 1652, with the founding of Cape Town. It was subsequently occupied by the British in 1795 when the Netherlands were occupied by revolutionary France, so that the French revolutionaries could not take...
, Natal
Colony of Natal
The Colony of Natal was a British colony in south-eastern Africa. It was proclaimed a British colony on May 4, 1843 after the British government had annexed the Boer Republic of Natalia, and on 31 May 1910 combined with three other colonies to form the Union of South Africa, as one of its...
, Transvaal and Orange Free State
Orange Free State
The Orange Free State was an independent Boer republic in southern Africa during the second half of the 19th century, and later a British colony and a province of the Union of South Africa. It is the historical precursor to the present-day Free State province...
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. It and the Roman-Dutch law which held sway prior to this period forms 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.
6 April 1652 until 1910
From the 6 April 1652 landing of the Dutch in the Cape of Good HopeCape of Good Hope
The Cape of Good Hope is a rocky headland on the Atlantic coast of the Cape Peninsula, South Africa.There is a misconception that the Cape of Good Hope is the southern tip of Africa, because it was once believed to be the dividing point between the Atlantic and Indian Oceans. In fact, the...
, the Roman-Dutch legal system and its legislation and laws took increasing hold, 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.
Prior to 6 April 1652
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. 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.See also
- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- Legal education in South Africa
- List of law schools in South Africa
- South African Statutes and other LegislationSouth African Statutes and other LegislationModern South African legislation reflects South African society's attempt to emerge from the deep bias and prejudice embedded in apartheid legislation, by passing a variety of laws dealing with rights and freedoms enshrined in the Constitution of the Republic of South Africa, and by developing...
- Advocate: Advocates in South Africa
- Patent attorney: South Africa
Articles on specific South African legislation
- Constitution of South AfricaConstitution of South AfricaThe Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
- South African copyright lawSouth African copyright lawThe copyright law of South Africa governs copyright, the right to control the use and distribution of artistic and creative works, in the Republic of South Africa...
- List of Acts of the Parliament of South Africa
External links
- Acts Online – a free South African Legislation web site.
- South African Government documents online – Free collection of South African legislation
- Law Access – a free South African Legislation web site.
- LegalB – a free South African Legislation website.
- Polity – Free collection of South African .pdf file format
- SabinetLaw – A free Sabinet Online guide to the law-making process in South African Parliament including legislative profiles.