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Countries (in pink) which share the mixed South African legal system

South Africa has a 'hybrid' or 'mixed' legal system,[1] formed by 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.[2] As a general rule, South Africa follows English law in both criminal and civil procedure, company law, constitutional 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.

Besides South Africa itself, South African law, especially its civil law and common law elements, also forms the basis of the laws of Botswana, Lesotho, Namibia, Swaziland and Zimbabwe, which were introduced during the process of colonisation. Basutoland (Lesotho) received the law of the Cape Colony in 1884, and Bechuanaland (Botswana) and Southern Rhodesia (Zimbabwe) received it in 1891.[3] Swaziland received the law of the Transvaal Colony in 1904,[3] and South-West Africa (Namibia) received the law of the Cape Province in 1920, after its conquest by South Africa.[4]

Contents

Court system in South AfricaEdit

 
The Palace of Justice in Pretoria, seat the High Court of South Africa Gauteng Regional Division, Pretoria

The South African court system is organized in a clear hierarchically by | Chapter 8 of the Consitution of the Republic of South Africa, specifically | s166, and consists of (from lowest to highest legal authority):

Firstly, a number of Magistrates' Courts (both smaller Regional and larger District).[5]

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.[6]. All High Court names have been clarified by the Chief Justice and can be read on page 14 of the South African Government Gazette No. 37390, 28 February 2014.[7]

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.[8]

And finally, the Constitutional Court, 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 by | 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"[9].[10] The Constitutional Court has final authority to decide whether an issue is Constitutional or not; | s167(3)(c)[11] of the Constitution of South Africa.

In addition, a number of specialized courts have also been created by the legislation in order 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.[12]

In addition, African indigenous courts, which deal exclusively with the indigenous law, also exist. A draft Traditional Courts Bill aimed at introducing a Traditional Court below, or on the same level as the Magistrates Courts has been penned, but awaits parliamentary introduction, reading and debate.[13]

History of South African lawEdit

The Roman-Dutch period (1500–1809)Edit

Until 1795, the Seven United Provinces of Holland was a sovereign independent state. Together with the other territories of the Netherlands, it was organised into a fairly free commonwealth of nations known as the Republiek der Vereenigde Nederlanden (Republic of the United Netherlands).[14] It was originally a rural territory, but the rapid speed of development during the 15th century changed it into a trading centre. The old Germanic customary law was no longer able to settle the disputes which arose in everyday trade, and the Dutch turned to the more advanced Roman law. They took it over and changed it to suit their lives, to such an extent that at the beginning of the 17th century, the great Dutch jurist Hugo de Groot (Grotius) could describe this fusion (or joining together) of Dutch and Roman principles as a “new” legal system with its own contents. This was how Roman-Dutch Law began. It was later to form the basis of the present common law in South Africa in a form that had been expanded by what were called the placaaten which was the legislation of that period.[14]

Prior to 6 April 1652Edit

With the failure of 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.[citation needed] 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.[citation needed]

6 April 1652 until 1910Edit

From the 6 April 1652 landing of the Dutch in the Cape of Good Hope, the Roman-Dutch legal system and its legislation and laws took increasing hold,[citation needed] 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.[citation needed]

31 May 1910 until 1961Edit

From the union of the Cape Colony, 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 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 lawEdit

See alsoEdit

NotesEdit

  1. ^ Thomas, PhJ; van der Merwe, CG; Stoop, BC (2000). Historical Foundations of South African Private Law. Durban, South Africa: Lexisnexis Butterworths. p. 7. ISBN 9780409058413. 
  2. ^ Du Bois, F (ed) "Wille's Principles of South African Law" 9th ed. Cape Town, Juta & Co, 2007.
  3. ^ a b Pain, JH (July 1978). "The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and Swaziland". The Comparative and International Law Journal of Southern Africa. 11 (2): 137–167. 
  4. ^ Geraldo, Geraldine Mwanza; Nowases, Isabella (April 2010). "Researching Namibian Law and the Namibian Legal System". Retrieved 7 May 2013. 
  5. ^ http://www.justice.gov.za/mc/mc-index.html
  6. ^ http://www.justice.gov.za/legislation/notices/2014/2014-02-28-gg37390_gon148-supcourts.pdf
  7. ^ http://www.justice.gov.za/legislation/notices/2014/2014-02-28-gg37390_gon148-supcourts.pdf
  8. ^ http://www.justice.gov.za/sca/aboutsca.htm
  9. ^ http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf
  10. ^ "South African criminal court system". Association of Commonwealth Criminal Lawyers. Archived from the original on 24 July 2011. Retrieved 29 December 2010. 
  11. ^ http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf
  12. ^ http://www.judiciary.org.za/index.php/about-us/102-specialised-courts
  13. ^ http://theconversation.com/south-africas-traditional-courts-bill-2-0-improved-but-still-flawed-74997
  14. ^ a b http://repository.uwc.ac.za/xmlui/bitstream/handle/10566/1316/Du%20Toit%20Ars%20Aequi.pdf?sequence=1

ReferencesEdit

  • Zimmermann, Reinhard and Visser, Daniel P. (1996) Southern Cross: Civil Law and Common Law in South Africa Clarendon Press, Oxford, ISBN 0-19-826087-3 ;
  • Joubert, W. A. et al. (2004) The Law of South Africa LexisNexis Butterworths, Durban, South Africa, ISBN 0-409-00448-0 ;

External linksEdit