Law of South Africa

The Law of 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 its Dutch colonisers, a common law system from its English colonisers, and indigenous law, often termed African customary law. 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. [Du Bois, F (ed) "Wille's Principles of South African Law" 9th ed. Cape Town, Juta & Co, 2007.] As a general rule, South Africa follows English Law in the areas of Procedural Law, the Law of Contracts and the Law of Evidence, while Roman-Dutch Common Law is followed in the South African Law of Delict (tort), Law of Persons, Law of Things, Family Law etc. Today, another strand has been added to this weave: the Constitution, which is supreme law.

Sources of South African Law

Where does South African law derive from? Where is it sourced from? Upon what is it based?

South Africa's law is sourced from (1) statutory law made by the legislative body (the most important of which is of course the Constitution), (2) common law (this includes the Roman Dutch 'old authorities' and judicial precedent gleaned from case law), (3) African customary law, and (4) foreign and international law. Note that Custom, and Legal scholarship are not in themselves sources of law, although they inform the interpretation and application of law.

Sources of law that are binding or authoritative must be followed by judges in making decisions, while persuasive sources are not binding on their decisions. The authoritative effect of a source for a particular decision depends on the type of source, the position of the judge in the hierarchy of courts, and the other sources that are relevant to the question at hand.

Sources: Constitution

The Constitution of South Africa Act, 1996 (published as Act No. 108 of 1996) which governs and applies to all law and conduct within the territory of South Africa. Any law or conduct which contravenes the provisions of the Constitution is invalid and therefore illegal.

Sources: Statutory law

Statutory law is the codified part of the South African Law. These laws are contained in Acts and By laws, and various pieces of subordinate legislation, which is passed by the legislature of South Africa (Parliament).

Sources: Common Law

Precedent

Not all law is contained in Acts passed by Parliament. Much of South African law is based on common law, and there is a great reliance on Common Law in South Africa. The development of the Common Law of South Africa is made possible by the fact that the South African courts follow the system of legal precedent or "stare decisis". This enables a higher court to develop the law in such a way that it becomes a precedent for lower courts to follow. As law is not an empirical science, it can not be expected of Parliament or any other legislative body to be able to pre-suppose all possible scenarios of life and enact relevant laws to cater for them. This is why South African Law places a great emphasis on the Higher courts to develop the law through their decisions, which become precedents and as such become law which is also known as case law.

Roman-Dutch authorities

It follows that if one's task is to research the provisions of a particular law applicable in South Africa, one should consult the codified legislation, case law and failing this, one can follow the originating sources, i.e. English Law or Roman-Dutch Law (also known as "the Old Authorities") as the case may be. Any application of such a source must be lawful within the context of the Constitution and the spirit with which it was written.

Court System in South Africa

There is a hierarchy of courts, consisting of 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 a Constitutional one.

History of South African law

From 1961 until April 27 1994

Prior to the end of apartheid, ongoing and continuous attempts were made by that regime to segregate South Africans into race-based territorial areas.

To this end a number of race-based territorially defined entities (Bantustans), each to a more or less extent able to legislate their own fate, were carved out of the existing four Natal, Cape Province, Transvaal and Orange Free State provinces. These were:
* Bophuthatswana
* Ciskei
* Gazankulu
* KaNgwane
* KwaNdebele
* KwaZulu
* Lebowa
* QwaQwa
* Transkei
* Venda

Note that South Africa for some time "managed" Namibia (which was called "South West Africa" during that period) and legislation was devoted to increasing its control over that territory, and it was largely treated as if it were a fifth province.

The political regime for non-black people, that was put into place towards the end of this whole period, was called the "Tricameral Parliament" and consisted of the House of Assembly (for Whites), House of Representatives (for Coloureds) and the House of Delegates (for Indians).

May 31 1910 until 1961

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 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.

April 6 1652 until 1910

From the 6 April 1652 landing of the Dutch in the Cape of Good Hope, the spread of 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 April 6 1652

With no written history, and the failure of the successive Dutch, British and Apartheid regimes to record the laws of pre-colonial southern Africa, there is a dearth of information about these laws. However, the current South African legal regime recognises the importance of these and no doubt over time, traditional indigenous law will more and more flavour South African legislation and other law as it emerges, and in doing so will reveal its colours to researchers such as historians and anthropologists

Laws of South Africa

Statute Law

Lists of South African Statute Law:

- South African Statutes and other Legislation

Sources of South African legislation:

- [http://www.acts.co.za Acts Online] - a free South African Legislation web site.

- [http://www.legalb.co.za/index_files/Page2159.htm LegalB] - a free South African Legislation website.

- [http://www.polity.org Polity] - Free collection of South African .pdf file format

- [http://www.gov.za South African Government documents online] - Free collection of South African legislation

- [http://web.uct.ac.za/depts/hll/country/sthafrca.htm University of Cape Town] - Various sources of legislation and other law

- [http://www.sabinet.co.za/sabinetlaw/laws_made.html Sabinet Online] - A guide to the law-making process in South African Parliament.

Articles on specific South African Legislation:

- Constitution of South Africa- Films and Publication Act, No. 65 of 1996

References

* Zimmermann, Reinhard and Visser, Daniel P. (1996) "Southern Cross: Civil Law and Common Law in South Africa" Clarendon Press, Oxford, ISBN 0198260873 ;
* Joubert, W. A. "et al." (2004) "The Law of South Africa" LexisNexis Butterworths, Durban, South Africa, ISBN 0409004480 ;

ee also

*Legal systems of the world