South Africa has a 'hybrid' or'mixed' legal system,[1] formed by the interweaving of a number of distinct legal traditions: acivil lawsystem inherited fromthe Dutch, acommon law system inherited fromthe British, and acustomary law system inherited fromindigenous Africans (often termedAfrican Customary Law, of which there are many variations depending on the tribal origin). Under thepost-apartheid democratic system, the country operates a system of constitutional supremacy, by which all ordinary sources of law are subordinate to theConstitution of South Africa.[2][3]
The various influences on South African law have a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and theRoman-Dutch influence most visible in its substantive private law.[4] As a general rule, South Africa follows English law in bothcriminal andcivil procedure,company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in theSouth African contract law,law of delict (tort),law of persons, law of things,family law, etc. With the commencement in 1994 of the interimConstitution, 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 ofBotswana,Eswatini,Lesotho,Namibia, andZimbabwe, which were introduced during the process of colonisation.Basutoland (Lesotho) received the law of theCape Colony in 1884, andBechuanaland (Botswana) andSouthern Rhodesia (Zimbabwe) received it in 1891.[5] Swaziland (Eswatini) received the law of theTransvaal Colony in 1904,[5] andSouth-West Africa (Namibia) received the law of theCape Province in 1920, after its conquest by South Africa.[6]
The South African court system is organised in a clear hierarchy by Chapter 8 of the Constitution of the Republic of South Africa, and consists of (from lowest to highest legal authority):
A number of specialised courts have also been created by legislation to deal with specialised 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 specialised court in question. Examples include the Competition Appeal Court, the Electoral Court, the Land Claims Court, and the Labour and Labour Appeal Court.[12]
African indigenous courts, which deal exclusively with indigenous law matters, also form part of the South African legal system. A draft Traditional Courts Bill aimed at introducing a Traditional Court below, or on the same level as the Magistrates' Courts was introduced to theNational Assembly in January 2017.[13][14] The legislation was assented to by PresidentCyril Ramaphosa in September 2023.[13]
Until 1795, theUnited Provinces of the Netherlands was a sovereign independent state. Together with the other territories of the Netherlands, it was organised into a fairly free commonwealth informally known as the Dutch Republic.[15] It was originally a rural territory, but the rapid speed of development during the 15th century changed it into a trading centre. Germanic custom, feudal law, and thelaw merchant were no longer sufficient to settle the disputes which arose in everyday trade, so the Dutch turned to the more advancedius commune. Initially, it was appliedin subsidium to fill in gaps in existing customary law on a case-by-case basis. Then, in the 15th and 16th centuries, it was receivedin complexu (as a system) to such an extent that at the beginning of the 17th century the great Dutch lawyerHuig de Groot (Grotius) could describe this fusion (or joining together) of Dutch and Roman principles as a "new" mixed legal system with its own content. This was how Roman-Dutch law began, led first and foremost by the doctrinal writers of theHollandse elegante school. It was later to form the basis of the present common law in South Africa andSri Lanka in a form that had been expanded by what were called the placaaten which was the legislation of that period.[15]
With the failure of the indigenous inhabitants as well as 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]
From 6 April 1652 landing of the Dutch in theCape of Good Hope, the Roman-Dutch legal system and its legislation and laws took increasing hold,[citation needed] holding sway until theUnion of South Africa as a dominion of theBritish Empire was formed on 31 May 1910. Even after this and to date, wherever English 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]
From the union of theCape Colony,Natal,Transvaal andOrange River Colony in 1910 as adominion within theBritish Empire called theUnion 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. Thejury 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.
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