South African Legal System Roman-Dutch Law

One of the first steps in the establishment of a post-apartheid state, the introduction of the interim constitution on 27 April 1994, had a revolutionary effect on the South African legal system. It is important to note that the Interim Constitution and the 1996 Constitution (drafted and adopted by an elected Constituent Assembly) replaced the doctrine of parliamentary sovereignty with the doctrine of constitutional supremacy, meaning that the Constitution replaced Parliament as the supreme source of governance. At the same time, the Bill of Rights was introduced to protect human rights and put an end to centuries of human rights violations. The constitution separates power between the legislative, executive, and judiciary, with oversight mechanisms to ensure accountability, responsiveness, and openness. Judicial power is vested in the courts established by or on the basis of the Constitution. The Constitutional Court is the highest court in the country for constitutional matters. The Supreme Court of Appeal is the highest court for all non-constitutional cases and hears appeals from the High Courts. With the failure of indigenous peoples, as well as successive Dutch and British colonial governments, to grasp the laws of pre-colonial southern Africa, there is a lack of information about laws prior to the colonization of South Africa. [ref. needed] However, the current South African legal system has recognised the importance of these courts and they have been integrated into the overall legal system, where they can function as district/municipal courts. [ref. needed] Im 15. und 16.

In the nineteenth century, Roman law was “received” in the province of Holland (as sooner or later in the Netherlands), although general and local customs prevailed. These were ultimately based on Germanic tribal law – Frankish, Frisian, Saxon – supplemented by privileges and statutes (keuren) and were themselves affected by an earlier infiltration of Roman law. The resulting mixed system, for which Simon van Leeuwen coined the term “Romano-Dutch law” in 1652, remained in force in the Netherlands until it was replaced in 1809 by the Napoleonic Code, which in turn gave way to the Dutch Civil Code in 1838. The old law was also repealed in the Dutch colonies. The Dutch Civil Code of 1838 has since been extensively revised. South Africa has a “hybrid” or “mixed” legal system[1] formed by the interweaving of a number of different legal traditions: a civil law system inherited from the Dutch, a customary law system inherited from the British, and a customary law system inherited from indigenous Africans (often called African customary law, of which there are many variations depending on tribal origin). These traditions had a complex relationship, with English influence most clearly expressed in procedural aspects of the legal system and jurisprudential methods, and Romano-Dutch influence most clearly expressed in its substantive private law. [2] As a general rule, South Africa follows English law in matters of criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in South African contract law, tort law, personal law, substantive law, family law, etc. With the entry into force of the interim constitution in 1994 and its replacement in 1997, the final constitution, another component was added to this fabric. From 6 April 1652, the Dutch landed at the Cape of Good Hope, the Romano-Dutch legal system and its legislation and laws increasingly prevailed, until 31 May 1910, the Union of South Africa was formed as a dominion of the British Empire.

Even then, and to this day, wherever English law does not exist, Roman-Dutch law forms the foundation to which South Africa looks in its quest for clarity in its law. [ref. needed] Since the unification of the Cape, Natal, Transvaal and Orange River Colony in 1910 as a dominion within the British Empire, known as the Union of South Africa, and prior to the creation of the Republic of South Africa in 1961, much of English law has been incorporated or formed the basis of South African law. The jury system was abolished in 1969 and cases are decided by a single judge, sometimes assisted by two assessors. English law and Roman-Dutch law, which prevailed before that time, constitute the foundation to which South Africa still looks today in its search for clarity in its law and where there is a vacuum in its law. Roman-Dutch law, the legal system created by the fusion of modern Dutch law, mainly of Germanic origin, and Roman or civil law. It existed in the Dutch province of Holland from the 15th to the early 19th century and was transported by Dutch settlers to the Cape of Good Hope, where it became the basis of modern South African law. It also influenced the legal systems of other countries that were once Dutch colonies, such as Sri Lanka (formerly Ceylon) and Guyana. Roman-Dutch law was retained after the British annexation of the country in the 1800s and confirmed as the common law of South Africa.

Among other changes, English became the language of English courts and legal procedures, and English law of evidence was introduced in criminal and civil cases. As a result, South Africa shows a unique relationship between English common law and Roman-Dutch law. The common law has since been supplemented by law, with many court cases now involving the interpretation and application of statutes. Because of the unique heritage of South African law and the constitutional imperative to consider comparative law, foreign law is also often used as a persuasive but non-binding authority. However, there is a third element in the Romano-Dutch system, namely the acts of the Burgundian and Spanish periods, the most important of which were adopted in the 16th century. Although many laws were passed later in the 17th and 18th centuries, this had little effect on the general character of the legal system. Roman-Dutch law can also be studied in collections of cases and opinions (commonly called consultatien or advijsen) and in the rich legal literature of the system. The first attempt to reduce Romano-Dutch civil law to a system was made by Hugo Grotius in his Introduction to the jurisprudence of Holland, which he wrote in prison in 1619-20 and published in 1631; This short treatise, a masterpiece of condensed exhibition, remains a classic of law.