origins of south african law

8/18/2019 Origins of South African Law

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The Origins of South AfricanLaw

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Study Unit 1: General ntroduction

The external history of the law traces the sources and factors which have contributed directly or

indirectly to the developent of the le!al syste" These relate to the political# constitutional#econoic# sociolo!ical and reli!ious factors that have influences the developent of the le!al syste

The internal history of the law covers the ori!ins and developent of the le!al rules and principles

theselves# under the influence of external historical events

$xternal history of the law sheds li!ht on the internal history of the law

The ain sources of ori!in of our law% le!islation& court decisions& coon law& custoary law and

indi!enous 'frican law (oon law% is the centre around which other sources that !enerate law revolve" )efers to )oan-

*utch law as influenced by $n!lish law" +s a livin! law# which is capable of adaptin! to the chan!in!

values of society (ivil law% systes have been influenced by )oan law

Three a,or coponents of our law% the western or $uropean coponent )oan *utch and

$n!lish law.& the indi!enous 'frican coponent and the /niversal coponent huan- ri!hts law. Fundaental )i!hts are those ri!hts that are possessed by all huan bein!s because they are

huan" )eferred to as universal as a result of the oveent towards the universal reco!nition of huan ri!hts

'frican (oponent% has existed since tie ieorial

estern coponent% consists of )oan law# *utch Law and $n!lish law" istory of the western

coponent started with the foundation of )oe 3 4( firstly to the estern $pire and at thedeath of 5ustinian oved to the $astern $pire 6th ( '*" $n!lish law can be traced to 11th ( '*

/niversal coponent% can be traced bac7 to the rise of natural 8 law as well as to the (hurch fathers

of 9th ( '* There is no coprehensive written version of our law that has the force of le!islation- our law is not

codified

The )eception phenoenon )eception refers to the absorption or adoption of the rules# principles and institutions of a le!al

syste in an existin! le!al syste" if the reception is very coprehensive we spea7 of an incomplexu reception- a reception of an entire le!al syste

Transplantation eans the iportation or introduction of a le!al syste into a territory which has no

le!al syste +position iposin! a le!al syste on a territory which already has an existin! le!al syste- a!ainst

the wishes of the local inhabitants )oan- *utch law was an iposition on indi!enous law" $n!lish law was received

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)eception of )oan law into estern $urope% 3 phases1" :re-reception area% few )oan-law rules were chosen and then incorporated in ;eranic custoary

law" Started in th (2" +ntellectual )ediscovery% rediscovery by a !roup of ,urists called !lossators of 5ustinianorth-$ast >i!eria and (aeroon"The 4antu spea7ers cae to South 'frica about 100 years a!o- established theselves as iron-usin! farers in the Lipopo re!ion in 00 '*

4antu spea7ers have a preliterate tradition

?ral traditions are oral narrations# or counications fro the past" They are unwritten verbal

accounts of the past" Son!s# le!ends and epic poes# eori@ed and transitted fro !enerationto !eneration

?ral traditions for the ain source of inforation on a preliterate counityetherlands- interested in the South

'frican +nterior for its strate!ic position as it was on the shippin! route fro +ndia to the far east The )aad van 5ustitie- court established in 16A run by layen and then inexperienced lawyers

's the colonist started ovin! out eastwards# they overpower the 7hoi and the San" 4y 1= the 7hoi

were alost extinct The pre-colonial era is re!arded as havin! coe to an end in 1= when the 4ritish too7 control of

the (ape

The colonial $eriod

*urin! the colonial period adinistrators tried to Bcivili@eC the indi!enous population" hereindi!enous law was reco!ni@ed# it was sub,ect to the strict application of a repu!nancy clause" Therepugnancy clause determined that indigenous law would only apply as so far as it was not contrary to the western notion of public policy and natural justice


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4y iddle 1=th ( south 'frica had been divided into 2 4ritish colonies >atal and the (ape.#

nuerous indi!enous 7in!dos the Dulu and 4asotho 7in!dos bein! the lar!est. and 2Voortre77er republics the Duid-'fri7aansche )epublie7 and the )epublic of the ?ran!e Free State .

The (ape% 2 re!ions

o The (olony proper% )oan- *utch law as influenced by $n!lish law and as odified by

le!islation applied" +ndi!enous law was expressly disre!arded except when it was not contrary toany law or opposed to the western notions of orality# public policy or eEuity

o The Trans7eian territories% area was predoinantly populated by the indi!enous population andwas considered far enou!h fro the white areas not to be a threat" The indi!enous counity inthe Trans7eian territories was well structured and or!ani@ed and for the first tie indi!enous lawwas reco!ni@ed as a syste of law" +n 1AA3 a criinal code for the Trans7eian territories wasadopted

>atal% in 1A93 the authorities decided to pursue the (ape policy of non-reco!nition of indi!enous law"

Sir Theophilus Shepstone attepted to restore tribal leadership and reco!ni@ed indi!enous laws#sub,ect to the proviso that it was not repu!nant to the !eneral principles of huanity observedthrou!hout the civili@ed world" +n 1AA a codification of Dulu was adopted in >atal- was disre!ardedby the indi!enous counity as it was not a true reflection of indi!enous law of the territory" +t hassince been revised several ties# the current version was proul!ated in 1=A

The Voortre77er republics%

o The )epublic of the ?ran!e Free State% also followed the policy of non-reco!nition of indi!enouslaw and in the Thaba >chu reserve specific reco!nition was !iven to custoary arria!es" +n1A== custoary unions were forally reco!ni@ed throu!h out the territory

o The Duid-'fri7aansche )epublie7 Transvaal.% first followed the non-reco!nition policy and then in

1AA the application of indi!enous law was reco!ni@ed in civil disputes where all parties wereblac7# sub,ect to the proviso that the relevant indi!enous law had to be in accordance with the!eneral principles of civilisation ac7nowled!ed throu!hout the world"

;eneral% the +nter-colonial >ative 'ffairs (oission of 1=03-1=0 saw the ultiate !oal for the

adinistration of ,ustice as bein! the iproveent of indi!enous law and its eventual assiilationinto colonial law" +ndi!enous counities were not in favour of the colonial law" They either i!nored itand unofficially aintained their indi!enous laws and institutions or obeyed the colonial laws out of

fear

The )ost-colonial era 'lthou!h the 'partheid era officially coenced in 1=9A# a policy of separatin! the different races

had been developin! since the turn of the 20 th (" as early as 1=0 the inter-colonial >ative 'ffairs(oission recoended that a territorial se!re!ation was necessary to safe!uard white interests":olicies of political# social and econoic se!re!ation lead to the proul!ation of any acts whichwere aied at 7eepin! blac7s in a position of subordination and which also ipacted on thedevelopent of indi!enous law

The 4lac7 'dinistration act 3A of 1=2% practical reason was that a unifor approach to the

reco!nition and application of indi!enous law was needed hen the /nion was fored in 1=10# all the areas which were to a7e up the provinces reco!ni@ed

indi!enous law to soe extent# yet the le!islation of the different areas did not uniforly re!ulate theapplication of indi!enous law" The act consolidated the colonial le!islation"

S 11 1. indi!enous law would be applicable only in as far as it was not a!ainst the principles of

public policy or natural ,ustice" :roul!ated to created a coprehensive syste of blac7 adinistration

' separate court syste ca created for blac7s

The act consolidated the colonial le!islation

The 4lac7 authorities 'ct 6A of 1=1% ade provision for the establishent of self-!overnent at

local# re!ional and territorial level# and paved the way for the creation of hoelands" The hoelandsconsisted of independent national states as well as sell-!overnin! territories" The oelands werereincorporated into the )epublic of South 'frica on 2 'pril 1==9 and the (onstitution provided for

the incorporation of the le!islation of these hoelands into South 'frican law Special (ourts for 4lac7s 'bolition 'ct 39 of 1=A6% in 1=A3 the oexter (oission found it

unreasonable and unrealistic to restrict urban blac7s to coissioner


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huiliatin! and repu!nant" This act repealed S11 of the 4lac7 'dinistration act and ta7en up in theGa!istrates (ourt 'ct 32 of 1=99# and then the Law of $vidence 'endent 'ct 9 of 1=AA which isstill applicable

The le!islation above influenced the developent of indi!enous law by liitin! its application" These

laws deterined where# when and how indi!enous law could apply The 4lac7 'dinistration act and other le!islation adapted and distorted indi!enous law- in the

ordinary courts ,udicial officers who had to apply the law were not properly trained in that law& they

only applied official indi!enous law& presidin! officers at coissioners courts had liited7nowled!e& the application of indi!enous law was sub,ect to the repu!nancy clause& application of indi!enous law was at the discretion of the presidin! officer& officials presidin! at the special courtswere under the control of the state- lac7 of ,udicial independence in criinal cases

The (onstitutional $ra S2113. the (ourts ust apply custoary law indi!enous law. when that law is applicable# sub,ect to

the (onstitution and any le!islation that specifically deals with custoary law +n *he + ,agistrate hayelitsha and others. Shi/i + Sithole and others. SA u#an ights

"o##ission and others + )resident of the e$u/lic of South Africa and others !00& the(onstitutional court found that the rule of ale prio!eniture as it is applied in the +ndi!enous law of succession is unconstitutional because it discriinates unfairly a!ainst woan and extraarital

children and should therefore be abolished" 's a result the Law refor (oission published the)efor of (ustoary law of succession and re!ulation of )elated Gatters 4ills 200A which has sincebeen approved by parliaent" The purpose of the bill is to abolish the custoary rule of aleprio!eniture as far as it applies to the law of succession on order to brin! indi!enous law of succession into line with the constitution and to !ive effect to the 5ud!ent of the (onstitutional courtin the 4he case

The Law of $vidence 'endent act still applies# however all le!islation which is a!ainst the

constitution is slowly bein! aended or abolished- the act on the )epeal of the 4lac7 'dinistrationact- repeals the 4lac7 'dinistration act because it is repu!nant to the values set out in the(onstitution and because it is a reinder of past divisions and discriination

sla#ic Law The (olonial $ra% The (ape

Guslis first reached the (ape of ;ood ope in the 160atal 8 it also spread to Dibabwe# Dabia# Galawi#4otswana# Lesotho and Swa@iland

The )epublic of the ?ran!e Free State% +n 1A=1 +ndians were prohibited fro settlin! or reainin! inthe ?ran!e Free State for lon!er than 2onths without perission fro the !overnent


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The :ost-colonial :eriod +slaic :ersonal Law% the personal law of the Guslis was not reco!ni@ed 8 arria!e and law of

succession- Gusli arria!es were considered to be potentially poly!aous but so are 'fricanarria!esI

yland + 2dros- the court stated that the values of huan di!nity# eEuity and freedo ust always

be at the forefront when the constitution is interpreted" A#od + ,ultilateral ,otor Vehicle Accident Fund- the S(' reco!ni@ed a Gusli woan


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Study Unit 6: The western co#$onent: the origins of the western legaltraditions (ountries with le!al systes based on )oan law# 7nown as civil-le!al systes% ;erany# France#

the >etherlands" +taly# Spain and ost western $uropean countries Gixed le!al syste% Scotland# Sri Lan7a# South 'frica and Dibabwe

(oon-law% $n!land# /S'

'll the countries of western $urope have codified le!al systes- based on )oan Law

Ancient Gree7 $hiloso$hical thoughts- Athens 'thens was the source of critical thin7in! about the ideals which inspire the estern le!al tradition

'thens- 996 4( to 3000 4(

;ree7 philosophers- Socrates# :lato and 'ristotle- :lato was a student of Socrates" ' 5ury of citi@ens

of the city sentenced Socrates to death on false char!es of corruption- to :lato this was a clear si!nof the dan!ers inherent in politics if the state is not !overned in a rational anner" :lato wrote a boo7called the )epublic& it set out a constitution for the ideal state and explained why the state should beruled by a class of philosopher 7in!s" 'ristotle# a student of :lato# too7 the idea further and wrote atreatise on the state called politics" The ideal of a scientific and rational le!al systes fors thecornerstone of the western le!al tradition

o#an istory Foundin! of )oa- 3 4(" (odification of )oan Law of $peror 5ustinian in '* 3

The ,onarchy '&6- &0( *": $eriod of the ings Le!end- )oe was founded on the ban7s of the river Tiber by )oulus# the 1st of 7in!s to rule

)oe" 'ncient 7in! who ruled Latiu" Gars# !od of war# fell in love with the princess& they had twins)oulus and )eus" The 7in!


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The e$u/lic: &0(*"- !'*" +portant political role-players% a!istrates& Senate and the popular

The a!istrates% 2 consuls& 1 praetor and 2 aediles curules

o The consuls% there were always 2 at a tie& no consul could hold office for lon!er that one year&

each consul had the ri!ht to veto re,ect. any act perfored by the other consulo Functions- publishin! edict re!ardin! activities of the consuls theselves& punishin! citi@ens and

controllin! the state treasury" elected annually by the popular assebly

o The praetor% 364(- law passed creatin! praetorship for the adinistration of ,ustice" $lectedannually by the popular assebly

o The aediles curules% responsible for aintainin! order in the ar7et and on public roads" They

had ,urisdiction over cries coitted within the area of their wor7 as well as over le!al disputeswhich arose out of transaction at the ar7et

The senate% or council of elders 8 advisory body to a!istrates" no le!islative power# but by 24(

their decisions were re!arded as iportant enou!h to be treated as eEual to laws The popular assebly% represented all the people of )oe" :ower was underined as it was

ipossible to !et all the people to!ether at one eetin!" The )oan population !ot to !reat so it wasthe Senate that becae the true !overnin! body in )oe

Law durin! the period of the republic )oe !rew fro a sall country into an $pire" )oan law developed into a coplex syste of law

that was suited to the reEuireents of a hi!hly developed counity with an intricate social syste +portant factors that influenced le!al developent durin! the )epublic%

o The twelve tables% 904( ori!in in the class stru!!le between patricians and plebeians" 4rass

plates were placed in the foru ar7et place.o +t was a triuph for the plebeians as it reduced the patricians exclusive control over the law

o +t ar7ed the division between the rules of law and the rules of reli!ion" +t was a collection of civil-

law rules and was separate fro reli!ious ruleso Le!al certainty was created as everyone had access to the le!al rules

o 4e!innin! of le!al science- as they reali@ed that their law could be treated systeatically

o The praetor% published civil procedure in edicts that were placed in the ar7et for all to seeJ the

parties to a le!al dispute appeared before the praetor- he deterined if there was a dispute# whatthe nature of the dispute was and whether the dispute should !o before a ,ud!e" The praetor thenappointed a ,ud!e# who ade a findin! on the facts of the case

o The praetor applied the ius civile civil law." The praetor urbanus could only adinister ,ustice

between )oan citi@ens" The praetor pere!rinus hear cases between forei!ners and )oansand between forei!ners theselves 292 4(." The praetor pere!rinus relied heavily upon the ius!entiu body of international law with a less foralistic and fairer character than the )oan iuscivile." The praetor urbanus developed a new law based upon the ius civile and the ius !entiucalled the ius honorariu eventually replaced the ius civile.

o The praetors function of developin! new law cae to an end in '* 130 when all the praetorian

edicts were codified as the $dictu# :erpetuuo

+n '* 212 $peror (aracalla abolished the distinction between )oans and Forei!nerso The ,urists% their ost iportant wor7 in 24( to '* 96" were at first layen who too7 an

interest in the study of law" *urin! the latter years of the )epublic they developed into a separate!roup offerin! free le!al advice

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The )rinci$ate: !' *"- A3 !89 :olitics durin! the principate% durin! the later years of the republic there nuerous ilitary

dictatorships- best 7nown 5ulius (aesar a ilitary dictatorship is established throu!h the sei@in! ofpower by the ilitary# usually by force" 5ulius (aesar naed 'u!ustus his successor but 'u!ustuswanted to a7e his position constitutional so he !ave up is autocratic powers in 24( andpretended to restore the republic- however# he ade sure enou!h power was !iven to hi by thesenate and :opular assebly to a7e his position supree

+portant political role-players%

o The princes the eperor.% the )oan $pire was !overned by the $peror and the Senate# but

the $peror has supree power- he had the power to a7es laws" The $peror consulted hiscouncil on iportant decisions" The council was ade up of leadin! public fi!ures and ,urists-they exercised influence over the adinistration of law and the $perors le!islative body in!eneral" The council was elected by the $peror

o The popular assebly% the assebly lost its power because the people stopped attendin! and

because true le!islative power lay in the hands of the eperoro The senate% the senate


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∗ :apinian% was a influential ,urist# who published discussions on le!al probles

∗ /lpian% was a youn!er conteporary of :apinian" e wrote coentaries on ius civile law

and the praetorian edicts

∗ :aul% conteporary of /lpian- coentaries on the ius civile and on the edicts of the officials

∗ Godestinus% his wor7 portrays )oan law as it was at the end of the classical period"

o The $peror% by 2nd ( '* le!islation ori!inated fro the eperor and his officials# not of a very

hi!h standard no effect on the developent of )oan law." Fors of the eperors direct

le!islation% $dicts too7 over praetor role.& *ecrees too7 over the role of the independent ,ud!es.& )escripts le!al opinions. and Gandates the eperors directions to his officials.

The 3o#inate A3 !89- A3 9'%; :olitics durin! the doinate% 'utocratic rulers- all power in the state le!islative# executive and

,udicial. vested in the eperor" 1st autocratic ruler was *iocletian in 2A9 '* +n 3= the )oan $pire was divided into a estern )oe capital. and $astern $pire

4y@antiu capital. divided for adinistration purposes" The estern $pire was invaded by;eranic tribes in '* 96 and fell" The $astern )oan $pire survived until 193# however# the$astern $pire adopted ;ree7 culture not )oan culture

Law durin! the doinate% 5urists were absorbed in iperial office# the senate functioned as an

institution in which iperial le!islation was announced and the popular assebly ceased to exist" $ra7nown as the postclassical era characteri@ed by the decline of classical )oan le!al science"o (ollection of iperial laws% the (odex ;re!orianus& the (odex ero!enianus private

collections. and the codex Theodosianus an official collection coission by $perorTheodosius ++ of the $astern epire 93A '*" +nfluenced codifications in the west Lex )oanaVisi!othoru and the $ast the (orpus +uris (ivilis .

o (ollections and siplification of classical writin!s% the ,urists of the postclassical were incapable

of asterin! the law described by the classical ,urists so they siplified the e"!"% $pitoe ;aiand Sententiae :auli adaptations of ;aius


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authoritative& if the ,urists differed on a le!al issue# the a,ority was too be followed& if therewas no a,ority :apinian was to be followed& only if :apilian was silent on the atter# did the ,ud!e have discretion& in exceptional cases the wor7s of other ,urists could be consulted

2#$eror 5ustinianovellae

o The (odex% to codify iperial le!islation- to collect# systeatise and update existin! iperial

le!islation and reove inconsistencies" The ori!inal was replaced and updated# the newcollection cae into force in '* 39 and is referred to today as the (odex

o The *i!est% to codify the law as reflected in the writin! of ,urists- to collect# update and

systeatise the ,uristic law and eliinate inconsistencies fro the wor7s of 3= ,urists# ainly the!reat " force of law in '* 33

o The institutes% textboo7 for law students based on ;aius


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Study Unit 9: The western co#$onent: the sur+i+al of o#an law in the westduring the early #iddle ages the pre-reception phase.Giddle '!es% th ( '*- 1th ( '*" $arly iddle a!es% th-11th ( '*& late iddle a!es% 12th- 1th ( '*

Factors which $layed a role in the sur+i+al of the o#an 2#$ire during the #iddle ages: The B)oe ideaC

The codification of ;eranic law The enactent le!islation. of the Fran7ish 7in!s

The application of the personality principle

The codification of )oan law by the ;eranic invaders

The )oan catholic church

The rise and spread of feudalis

The application of the principle of territoriality

The >o#e idea? Today


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o#an law@ the "hurch and canon law Freedo of reli!ion was !ranted to (hristians by $peror (onstantine which helped the expansion

of (hristianity +n )oan ties the (atholic (hurch is the west was built of )oan le!al foundation% internal

relations in the church were !overned by )oan law and special le!islation was enacted by the)oan eperors with re!ard to the church and to church affairs

The law of (hurch of the early iddle a!es laid the foundation for the developent of canon law

4est 7nown collection of church law% by the on7 *ionysius 6th

( '* B(ollectio *iontsianaC (anon law was an iportant factor in the survival of )oan law durin! the early iddle a!es& (anon

law was not as foral and ri!id as )oan law (anon law was received into the custoary ;eranic le!al syste and becae part of )oan-

*utch law

Feudalis# and the $rinci$le of territoriality The rise and spread of feudalis Feudalis eer!ed in the =th ( '* after the death of (harlea!ne

?ri!in 8 the accuulation of land in the hands of the feudal lords or overlords% the !reat landowners

allowed non-landowners to cultivate the land in exchan!e for the perforance of certain services"

Loyalty existed between the feudal lord and his vassal- vassal had to follow the feudal lord to war#and the feudal lord had to protect the vassal The Libri feudoru 12th ( '*- best 7nown feudal law was incorporated into the corpus iuris (ivilis.

Feudalis led to le!al diversity and le!al disruption in western $urope in the 10th and 11th ( '*

because each feudal lord had his own feudal laws (ontributed indirectly to the survival of )oan law durin! the iddle a!es because on ephasi@ed

the territoriality principle

The application of the territoriality principle $veryone livin! in a specific territory is sub,ect to one law" Territorial law replaced personal or tribal

law

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1A


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Study Unit &: o#an law and "annon Law in the late #iddle ages 1!-end1&th ";

Gain reasons for the revival of )oan law% "ultural and 2cono#ic $ros$erity% a syste of law was reEuired that was universal and could be

understood by all& would be easily accessible& could fill the !aps in various custoary le!al systes

and that would for a brid!e between the different le!al systes" )evived by eans of a scientificstudy of 5ustinian


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The *ecretu ;ratiani% 12th ( ;ratianus# a on7 and ,urist published the *ecretu ;ratiani% a

collection of canon-law sources and a textboo7 on canon law" as used in the study on canon law atlaw schools

The (orpus +uris (anonici% a cobination of papal decrees and official codifications added to the

*ecretu ;ratiani" +t was studied by ,urists in the sae way as the (orpus iuris fro 12 th ( onwards"4oth )oan law and (anon law fored part of the learned law the body of acadeic le!al7nowled!e. and the $uropean ius coune coon law.

)eception of canon law into secular law% was unplanned" Soe of the canonists were trained by the!lossators and tau!ht canon law in 4olo!na# fro there canon law spread to France

The Ultra#ontani BThose fro the north of the 'lpsC" a !roup of 5urists fro a French law school of ?rleans durin! the

11th and 19th ( Their efforts led to the creation of a practical le!al syste which it was possible to apply in the 19th (

courts in +taly" )e!arded as the forerunners of the post!lossators or the coentators TechniEue% adopted a dialectical approach% they re!arded the (orpus iuris as a source boo7 for

critical discussion and not as a ri!id syste of rules to be accepted unEuestionably Sources% (orpus iuris (ivilis& town law& canon law and ;eranic custoary law

Their !oal was to incorporate )oan law into conteporary practice

;lossa 'urelianensis% the !losses of the school of ?rleans# which the /ltraontani produced in the

id 13th ( +portant /ltraontani% )evi!ny and 4ellaperche

The /ltraontani and canon law The utlraontani were ostly clerics so canon law featured stron!ly at the school of ?rleans

)eception of canon law into secular law% 'ccordin! to )evi!ny and 4ellaperche% (annon law and

)oan law each had its own sphere of application and canon law# by virtue of its fairness# could beused to teper the severity of )oan law

+nfluence of canon law% influence ainly felt in the French law of procedure" The canonical French

law of procedure was later received into *utch law

The $ostglossators or co##entators 120-160 The coentators becae ore concerned with practical aspects of the law that with substantive

)oan law as !lossed in the ;lossa ?rdinaria TechniEue% the scholastic ethod entailed that each individual coentator not only !ave his

opinion on the text of the (orpus iuris# but also referred to the views of other writers- and then a7edistinctions and raise new Euestions

To interpret the !losses on the (orpus iuris as well as the text itself

They achieved a synthesis between )oan law# ;eranic law# canon law and town lawJ the ethod

used by the coentators of interpretin! )oan law as !lossed by the !lossators# led to its bein!adapted to conteporary conditions# which led to the creation of edieval +talian law# which later

exerted considerable influence on shapin! odern civil law Sources% (orpus iuris (ivilis as !lossed by the !lossators& ;lossa ?rdinaria& canon law& ;eranic

(ustoary law and town law Scope% their wor7 included coentaries# le!al opinions and lectures

+portant coentators "inus% !reatest ,urist since 'ccursius" First +talian professor influenced by the wor7in! ethods of

the utlraontani *artolus: pupil of (inus" ;reatest edieval ,urist" 4est 7nown wor7 was his coentary on the

(orpus iuris (ivilis" e was also an assessor of the courts an assessor is a specialist who assiststhe ,ud!e in certain cases." B no one is a ,urist unless he is a 4artolistC a ,urist who copied thewor7in! ethod and propa!ated the opinions of 4artolus.

*aldus: was a pupil of 4artolus" rote coentaries on canon law as well as the (orpus iuris

'ssessent of the coentators

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They laid the foundations for the 1th ( school of natural law

4artolus laid the foundation for odern private international law

Their contribution was considerable in the field of private law

They facilitated the reception of )oan law into the practical adinistration of ,ustice& thereby

creatin! a practical le!al syste that was received throu!hout $urope ?f si!nificance to us in South 'frica because their coentaries were on the roan law which was

received into ;eranic custoary law# which becae part of )oan-*utch law

(riticis of their wor7 The !ave undue wei!ht to the a,ority opinion& they used poor Latin and they followed the ;lossa

?rdinaria to such an extent that they often i!nored the ori!inal text# thus losin! historical perspective

The coentators and canon law The coentators played a a,or role in the creation of a $uropean ius coune which consisted

of )oan law# canon law and ;eranic custoary law 'ndreae% the leadin! canonist of the iddle a!es" >oted for his coentaries on the corpus iuris

(inus# 4artolus and 4aldus% were responsible for the further developent of the rules of the

ultraontani re!ardin! the reception of canon law

)eception of canon law into secular law (anon and )oan law are 2 separate le!al systes which should be 7ept apart" There are 3

instances in which canon law has to be applied instead of )oan law% in purely spiritual atters& inatters concernin! the church and in those cases where the application of )oan Law wouldaount to sin

The 2uro$ean ius co##une co##on law; (ae into bein! when )oan law and canon law were received into the ;eranic custoary le!al

syste both )oan law and canon law had been adapted to eet the needs of individual countries. +t was the coentators who facilitated the iportation of )oan law into practical adinistration of

,ustice and it was their influence which ensured the reception of )oan law into the le!al systes of

;erany# France and the >etherlands :rintin! press- 1990 by a ;eran 5ohannes ;utenber!

The relevance of the $uropean ius coune *urin! 12th ( 8 1th ( there was a spirit of universalis in estern $urope" 'lthou!h the ,urists all

cae fro different countries they all used Latin as the international ediu of counication#transcendin! the lan!ua!e barriers

(ountries in which the $uropean ius coune applied France# ;erany# >etherlands and

Scotland. are Euiet accessible to our lawyers# who are schooled in )oan-*utch law

)oan law as an endurin! eleent of $uropean law

)eception of )oan law included the reception of the concepts# cate!ories# principles and divisions#as well as the substantive nors or rules of )oan law" The reception did not always include thereception of substantive rules of )oan law& countries outside of $urope often experienced only ascientific reception# which was not accopanied by a practical reception" This scientific receptionwas of a ore endurin! nature than the reception of substantive rules of )oan law# since ruleschan!e ore easily than the scientific structure of a le!al syste

+n any countries where substantive )oan law was received# the rules are no lon!er in force# but

the scientific syste or structure reains in force +t was this scientific structure of )oan law which led to the haroni@ation of the law s of western

$urope

'frican ius coune

South 'frican law association% refers to the countries in Southern 'frica whose le!al systes arebased on )oan-*utch law# as influenced by $n!lish law and indi!enous 'frican law% Lesotho#4otswana# Swa@iland# Dibabwe# South 'frica and >aibia

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+n Southern 'frica there is a drive to unify# or to haronise# the laws of the different countries those

of the Southern 'frican law association as well as the Southern 'frican *evelopent (ounity +n the S'*( re!ion the ephasis is on econoic developent and inte!ration

+t is possible that an 'frican ius coune could develop in the future

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Study Unit %: Legal 3e+elo$#ent in the 1%th @ 1'th and 18th "

+taly was the principle centre of le!al scholarship in the iddle a!es# which shifted to France in the

16th (# after France ;erany and >etherlands becae the center of le!al scholarship

France

)eception of )oan law before the 16th

( South )oan law was ore extensively received in the South than in the north

South% )oan law had already ade its influence felt in the South of France durin! the early

Fran7ish period the Lex )oana Visi!othoru was proul!ated in the South of France. The !lossators founded a law school at Gontpellier and the ultraontani established theselves in

the north of France# but also established branches in the South >orth% the city of :aris was the seat of the pop and the 7in! of France" They both felt threatened by

the infiltration of )oan law- The pope feared an infrin!eent on his authority and of canon law# the7in! viewed the oly )oan $pire as a threat to his power" The >orth was very protective of theircustoary law

)eception fro the 16

th

( onwards% the French uanists The uanists were a !roup of scholars who introduced a new wor7in! ethod

TechniEue% used only ele!ant Latin

Study ethod% they tried to reconstruct the wor7s of classical )oan ,urists& they aied to

rediscover )oan law as it was before 5ustinian codified it and they wanted to apply a new ethodof study to law# naely the study of law as a syste edieval law schools who studied the (orpusiuris studied in fra!ents.

Sources% (orpus iuris (ivilis and )oan-law sources datin! before the (orpus iuris" They did not

use the ;lossa ?rdinaria or the coentaries of the iddle a!es

+portant huanists "uacius: outstandin! le!al scholar& professor& reconstruction of the old classical texts& invested in

needy students 3onellus: was a professor ;erany >etherlands. ade a,or contributions to the spread of

)oan law in the >etherlands

'n assessent of the huanists The played an iportant role in the spread of )oan law& their wor7 in the field of pure roan law

was of a very hi!h standard& their wor7 on the systeati@ation of le!al aterial was of !reat value

(riticis The huanists did not ta7e the needs of their tie into account and conseEuently they had little or no

influence on practices& they i!nored developents over the centuries and attepted to replace the

)oan law which had been odified to suit the needs of practice with the old classical )oan law-they i!nored the whole course of developent of the law durin! the edieval a!es

The huanists and canon law :rotestantis was a new oveent in the (hristian reli!ion and was a reaction a!ainst the power of

the )oan (atholic church over peoples lives and inds *onellus% was in favour of the separation of canon law and secular law& tried to liit the application of

canon law *uarenus% was in favour of the study of canon law- this approach was followed in practice

French national law )efers to is custoary law as adapted and strealined by the adoption of )oan law" The national

5urists accoplished uch in systeati@in! French custoary law and reducin! it to writin! Golinaeus 16th (.# *oat 1th (. and :othier 1Ath (.

)othier wrote a nuber of treatises# ost iportant bein! on the law of obli!ations

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The codification of French law French civil private. law was codified by >apoleon in 1A09

/nder >apoleon laws were codified# feudalis abolished# efficient !overnent created and

education# science# literature and the arts fostered (ode (ivil or (ode >apoleon. incorporated soe of the freedos !ained by French people durin!

the French revolution on 1A= reli!ious tolerance& abolition of slavery.

Ger#any

The reception of )oan law +n coplexu reception% there was !reat variety in their law- there was a need for a ore !eneral and

better developed le!al syste each re!ion had its own custoary law& different le!al systes fordifferent classes.&

the )oan catholic church was established in ;erany and throu!h it canon law# and ultiately

)oan law cae )oan law was tau!ht at the ;eran varsities fro the 19th ( onwards

1th ( ;erany established a !eneral court of appeal 8 ost of the ;eran ,urists were schooled in

)oan law )oan law infiltrated the ;eran le!al syste within 2 centuriesK

Le!al developent durin! the 16 th ( The ;eran uanists% were not as far reoved fro actual practice and therefore had a !reater

influence than the French huanists Basius: first outstandin! writer of )oan law in ;erany& founder of ;eran le!al huanis in

early 16th& re!arded as a forerunner of the French huanist school

Le!al developent durin! the 1 th and 1Ath ( /sus odernus pandectaru% Bthe odern usa!e of the :andectsC :andects is another nae for

the *i!est of (orpus iuris (ivilis. Gethod% they followed a theoretical-practical line of thou!ht & they concerned theselves with

)oan law in so far as it was still in use and was applicable& they described )oan law as it appliedin practice# sub,ect to aendent and suppleentation in their own laws and courts

/sus odernus pandectaru and canon law% re,ected the coentators rules re!ardin! the

application of canon law" The /sus odernus pandectaru were of the opinion that canon lawshould have preference over )oan law# but ;eran custoary law should have preference over)oan and canon law

"ar$o+ius : ai of his wor7 was to describe the prevailin! law of his tie as it actual was in

practice" e suari@ed and copiled the laws which developed before his tie# both )oan and;eran sources- actual founder of ;eran national law

Le!al developent fro the 1= th ( istorical school 1=th (- was established in reaction to the doctrine of the law of nature there is a

hi!her# universal# unchan!eable law to which all ust confor. The historical school did not reco!ni@e any peranent or unchan!eable law& it considered law to be

both chan!eable and related to the national spirit& )oan law was studied erely for scientificinterest

Sa+igny: re!arded as the !reatest ,urist of all tie

(odification% in 1=00 the civil-law code the B4ur!erliches ;eset@buchC was introduced to the whole

;eran epire

The 4etherlands provinces% olland& Deeland& /trecht& ;elderland& the ?elands& Friesland and ?veri,ssel 2 phases of reception% the early reception phase and the phase in which reception proper too7 place

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$arly reception% late 13 th ( to iddle 1th ( The ecclesiastical church; udges who were ostly trained at 4olo!na or ?rleans- their

7nowled!e of )oan-canonical procedure played a role in the early reception of )oan law The 3utch urists: helped the reception process alon! by usin! their roan law s7ills in the draftin!

of le!al docuents Friesland: there was no stron! central !overnent in the province# the runnin! of the counities

affairs were left in the hands of the cler!y- canon law served as a vehicle for the reception of )oan

law in the Friesland

)eception proper- 2nd half of the 1th ( to end 16th ( :olitical factors: 1th >etherlands was under 4ur!undian rule- a policy of centrali@ation the

eliination of all diversity which existed as a result of the fact that there were to any provinces withdifferent adin and laws. was introduced to the >etherlandso Legislation: 16th ( the 4ur!undians introduced statutes which contained explicit reference to the

application of the BwrittenC law )oan law. in all atters not covered by the statute itself o "usto#ary law- order and certainty: provincial custos had to be put in writin! and subitted

for confiration to eliinate contradictory provincial custos" ' clause add to be added statin!the )oan law was the subsidiary law

o "ourts: prooted reception by- the ,ud!es of the hi!h courts were )oanist-orientated and had

little or no 7nowled!e of local custoary law& French law applied in the *utch courts# French lawwas influenced by )oan law and the ,ud!ents of the hi!her courts had persuasive value forthe lower courts

o )roof of custo#ary law: 1th ( the hi!h courts reEuired that custoary law had to be proved by

a !roup of witnesses $conoic factors%

o Social change and a de+elo$ing econo#y: 16th( >etherlands a!ricultural econoy had !iven

way to a rapidly developin! coercial econoy# with the ephasis on trade" The local lawsyste was not systeatic or unifor enou!h to cope with the new deands and recourse washad to )oan law

o Legal ad+ice: the rich erchant class often needed le!al advice- the advocates they consulted

relied heavily on )oan law as systeatised by the huanistso 3i+ersity in town law: each town council wanted !reater autonoy for its own town and also

wanted to 7eep the diversity of the laws applicable to different towns to a iniu" Giddles 1th ( the towns adopted a ore systeatic approach to the frain! of their local le!islation 7euren.

(ultural factors% the university of Louvain

o Founded in the 1th ( by the church and the rich duchy of 4rabant" The influence of the church

resulted in the ephasis on canon law# which naturally stren!thened the influence of )oan lawo Faculty of o#an law and canon law:

o nfluence of #edie+al uni+ersities: the universities of ?rleans and the +talian universities

exerted influence of the law school at Louvaino Glossa Ordinaria and *artolus: the law lecturers in the early days followed the ;lossa

?rdinaria and well as the wor7s of 4artolus- as a result a hi!h standard of civil-law teachin! wasestablishedo For#er students at the uni+ersity: any too7 up positions in the hi!h court# !overnent or

advisors to wealthy town bur!esseso )rofessors at the uni+ersity: acted as propa!andists in the furtherance of )oan law

The extent of the reception in the >etherlands )epublie7 der Vereeni!de >ederlanden% northern provinces. Friesland- )eception in coplexu&

olland and Deeland- extensive reception

(odification in the >etherlands +n the late 1Ath ( it was decided to codify the law of >etherlands- actin! secretary Van der Linden

was appointed- before the tas7 was copleted >apoleon conEuered >etherlands and appointed hisbrother# Louis 4onaparte as the $peror of >etherlands

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+n 1A0= Louis introduced the (ode >apoleon (ode (ivil. into >etherlands and adapted it for the

conditions there" $ven thou!h the >etherlands was no lon!er under French rule# a civil codeodeled on the (ode (ivil# was proul!ated in 1=3A

The iportance of the date of codification to S' ,urists% as )oan-*utch law developed in the

>etherlands# these developents also affected the way the law was applied in S'- )oan-*utchlaw continued developin! until codification too7 place in >etherlands in 1A0=- the (ivil code of the>etherlands does not apply in S'# as S' was no lon!er under the control of the >etherlands at the

tie of the codification" The province of olland is si!nificant to S' because the law of the provinceof olland was the leadin! law in the >etherlands" )oan-*utch law was also received in Lesotho# 4otswana# Swa@iland# Dibabwe and >aibia

2ngland

The *evelopent of $n!lish (oon law% 3 a,or influences1" illia the (onEueror%

o 1066 the >oran in! illia the (onEueror went to conEuer $n!land- at that point people

lived in sall settleents# had local courts and applied local custoary law# suppleented by afew royal statutes

o illia set the process creatin! a unified le!al syste in otion by establishin! the in!


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The rules of evidence were strictly applied- necessary to prevent the ,ury fro bein! swayed

or influenced (oon law was not very systeatically applied

The (ourt of (hancery% *eveloped out of the practice aon! petitioners plaintiffs. of see7in!

relief fro the lord (hancellor directly The Lord (hancellor had to see to it that ,ustice was done" e did this by orderin! the

defendant in each case to appear before hi and to answer all the alle!ations ade by the

petitioner in his petition" The (hancellor then !ave his decision based on eEuity- certainaxis developed that described the nature of the relationship between the law of eEuity andthe coon law% B $Euity acts in personaC# B $Euity follows the lawC# B$Euity prevailsC

the traditional coon law and the law of eEuity# existed side by side until the 1=th (# when

the ,udicature 'cts allowed any court to apply either of the 2 systes they later er!ed intoone syste 7nown as $n!lish coon law

The court of 'diralty% developed durin! the 19 th (" The presidin! officer was the 'diral"

The (ourt of 'diralty only heard atters relatin! to piracy# but later is ,urisdiction wasextended to all aritie and coercial cases

The court of 'diralty applied the Law Gerchant- an international coercial law# consistin!

ainly of trade usa!es between international erchants which 1st developed in the northern+talian cities durin! the Giddle '!es" The basis of the law Gerchant was )oan law

)esistance to )oan-law influences )esistance by the le!al profession% the iportation of )oan law as a sub,ect of study was the result

of the initiative of the +talian !lossator Vacarius 8 he cae to ?xford in 1193 to lecture in )oan law There was little reception of )oan law in the lower courts" :eople wishin! to becoe le!al

practitioners in $n!land did not attend a university# but were trained at +nns of (ourt- here le!alpractitioners instructed up coin! lawyers in le!al practice" )oan law was tau!ht at the universitiesbut not at the +nns of (ourt

)esistance by the in!% the $n!lish in! did not want to ac7nowled!e )oan law# because he was

afraid that this would a7e his sub,ect to the authority of the eperor of the oly )oan $pire- theoly )oan $pire extended over any countries and continued to exist until the 1= th (# the last

$peror of the oly )oan $pire was Francis ++ who ruled fro 1=2-1A06 )esistance by aristocracy% the aristocrats were opposed to )oan law as it !ave absolute power to

the onarch and they did not want the 7in! to have absolute power" The eperor of the oly )oan$pire had absolute power# whereas the in! of $n!land !overned with the assistance of thearistocracy" The aristocracy were afraid that the influence of the oly )oan $pire would !ive the7in! absolute power# and that they would lose their say in !overnent

The influence of )oan law on $n!lish (oon law )oan law influence can be traced in wor7s on the native law of $n!land" The wor7s of 12th and 13th

( ,urists ;lanville 12th ( a student of Vacarius# 4racton 13 th ( influenced by the !lossators." +t can also be traced in the wor7 of $n!lish canonists# which by its very nature reveals characteristics

of roan law- a stron! roan law content is to be found in canon law and the ecclesiastical courts The huanists oveent also ade its influence felt in $n!land# particularly after ;entilis cae to

$n!land 16th (" in the 1Ath ( it was lord Gansfield# (hief 5ustice# who stron!ly relied on )oan-*utch writers li7e *e ;root# uber and 4i,n7ershoe7

+nfluential $arly $n!lish Scholars (ir dward Coke" stron!ly opposed to any )oan-law influences in $n!lish law" +n the early part of

the 1th ( he published 1A volues of law reports- +nstitutes of the Lawes of $n!land- source of theold $n!lish coon law

&lackstone" (oentaries on the laws of $n!land in 9 volues in the id 1Ath (

(han!es and law refors in the 1=th (

*urin! the 1=th

( $n!land oved fro Feudalis to capitalis and deocracy" The industrial)evolution also bou!ht any chan!es in society and the law- labour issues were re!ulated by thelaw for the 1st tie

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Canon law procedure )ct of *+,- abolished the old writ syste and replaced it with a unifor court

procedure .udicature )cts of *+/0 to *+/, reor!anised the $n!lish court structure and er!ed the coon law

and the law of eEuity into a sin!le le!al syste Law reports and precedents the syste of law reports was reor!anised in 1A6 to accoodate the

reor!anised court structure

Scotland $xperienced a stron! reception of )oan law- Scotland was continually at war with $n!land in the

13th and 19th (" this propted the Scots to loo7 for political allies in $urope- these alliances also hadcultural iplications- Scottish students traveled to faous $uropean /niversities were they weretrained in )oan law and (anon law by the !reat asters" hen these students returned# any ofthe obtained iportant positions in Scottish le!al adinistration- because of the aniosity with$n!land# these students preferred to apply )oan law rather than $n!lish law# and applied )oanlaw principles whenever Scottish custoary law was deficient

+n 10 $n!land and Scotland were unified" +t was specifically provided that Scotland would retain its

own le!al syste# however# the influence of $n!lish law on Scottish law !radually increased#conseEuently odern Scottish law does not show the stron! )oan-law of previous (# althou!h the

influence is still evident

Other "ountries The influence of )oan law was not confined to $urope" *irectly or +ndirectly throu!h $uropean

inspired codes. the influence of )oan law was felt throu!hout the world The reception of )oan law which started in 4olo!na in +taly in the 12th ( was a reception of the

entire )oan le!al syste France# ;erany and >etherlands experienced both a scientific and a practical reception

The acadeics who passed on their 7nowled!e of )oan law to their students tau!ht the not only

the substantive nors and rules but also the concepts# divisions# principles and cate!ories of )oanlaw

Study Unit ': o#an 3utch law /efore codification +n the li!ht of the doinant position of the province of olland in the >etherlands# the *utch $ast

+ndia applied )oan-*utch laws in its colonies or that the adinistration of the (ape applied the lawof olland" )oan-*utch law becae applicable in the (ape throu!h custo" This law which waslater influenced by $n!lish law# eventually becae 7nown as the basic (oon law of South 'frica

=hat is o#an-3utch lawC

The >arrow interpretation of )oan-*utch law )oan-*utch law ay be understood as the law of the province of olland as it existed in the 1th

and 1Ath

( +t consists of )oan law received in the province of olland# aended by custoary law and

le!islation placaeten. of olland as they existed in the 1 th and 1Ath (

The broad interpretation of )oan- *utch law Gay be interpreted as includin! the law of all *utch provinces as well as eleents pf the $uropean

ius coune

The view of the South 'frican 'ppellate *ivision /ntil 1=AA# there was conflict of opinion- the S(' settled this old dispute in *u :lessis v Strauss by

decidin! in favour of the narrow interpretation

The relevance of the ius coune and the law of the other *utch provinces $uropean +us coune% (anon law# )oan law# ;eranic custoary law

+n the *u :lessis case the '* ephasi@ed the historical context of the rules of )oan *utch law-

)oan *utch law is re!arded as an iportant branch of the ius coune2A


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The foral source of our coon law is the law of the province of olland as it existed in the 1th

and 1Ath ( +n practice# we ust distin!uish between the search for authority for the law in !eneral and the

search for specific le!al rules" hen we loo7 at the law in !eneral ters# we note that there is unity inthe law of western $urope# but when we loo7 at specific rules# we ay find inor differences in thevarious systes which belon! to the $uropean ius coune

e will loo7 at the coon law of western $urope before codification when authority is sou!ht with

re!ard to !eneral principles# ideas and doctrines of )oan *utch law& the law of the province ofolland when authority is sou!ht for specific rules of )oan-*utch law The '* does not hesitate to adapt )oan-*utch le!al rules which have fallen out of step with the

needs of present day S' 4ecause of the spirit pf universalis that has existed in $urope for the past 00 years# )oan-*utch

law and the $uropean ius coune have influenced one another- as a result it is easy for S'lawyers schooled on )oan-*utch law# to consult the le!al systes of the $uropean ius counein his search for a solution to a new le!al proble

The Sources of o#an-3utch law The old writers# statuteJ le!islation# collections of court decisions# collections of opinions and custo

The old writers Mstudy the inforation about the wor7s of the old writers to!ether with an evaluation of their authority

in present day le!al practicesM Facts that deterine the iportance of an old writer%

o 1hich province did the writer represent I The authoritative writers on )oan-*utch law are 1stly

those who wrote on the law of the province of olland" Those who did not write on the laws of theprovince of olland# in so far as they bear witness to the reception phenoenon in estern$urope and therefore to the western $urope ius coune which was received into the>etherlands

o The period in which the writer lived % )oan-*utch law existed as an independent le!al syste in

olland for alost 3 (- the B!olden a!e of *utch ,urisprudenceC too7 place in the 1 th (" )oan-

*utch law consists of the law of olland of the 1th

and 1Ath

(- so you would first consult thewriters of this period

o The type of work written by the author % (oentaries on )oan-*utch law in its entirety the

+nleidin!e of ;rotius.& (oentaries on )oan law 5ohannes Voet (oentarius ad:andectas.& coentaries on existin! coentaries ;roenwe!en and Schorer. and treatiseson aspects of )oan-*utch law *e lure 4elli as :acis by ;ortius.

o The influence of these writers on (outh )frican legal practice% 5ohannes Voet 8 the reason for his

popularity is that in his (oentarius he covered a very wide field of the law and wroteauthoritatively on it" To South 'frican ,ud!es he personified the B!olden a!eC of *utch ,urisprudence" :ercival ;ane


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independent syste and to describe it as such" +nleidin!e can be re!arded as the 1 st consciousdescription of )oan-*utch law

The influence of the +nleidin!e on the law of the >etherlands in the 1 th and 1Ath ( 8 it served as thefoundation for any treatises and also as a basis for lectures;rotius reali@ed that publishin! scholarly wor7s in *utch would not a7e uch of an ipact outsidea *utch spea7in! area- 1=th ( 5ohannes van der Linden copleted a Latin translation

*e ,ure 4elli ac :acis% appeared in :aris in 162" as the first coprehensive treatise everpublished on public international law- it deals with international law# as well as the law of nature andle!al philosophy" +t !ives us a better understandin! of the principles set out in the +nleidin!e

Si#on +an Groenewegen- 1th ()eceived his trainin! at the /niversity of Leyden# where he practiced as an advocate2 iportant wor7s% >otes on ;rotiuss +nleidin!e and Tractatus de Le!ibus 'bro!atis>otes on ;rotiusetherlands" This a7es Voetetherlands of his tie" e paid re!ard to the achieveents of the iddle '!es# since it was theelaborations and restateents of )oan law by the edieval writers that had shaped the law thatwas valid in practice" Voet too7 what was !ood fro the huanists and fused it with the virtues of the4artolists

is reputation was ainly due to the fact that he provided a coprehensive review of the whole fieldof )oan-*utch law" is writin! is usually easy to understand# since he states his propositionsclearly and is very lo!ical in his reasonin!" is influence and fae were not restricted to hishoeland but extended throu!hout $urope" The $n!lish translation with annotations. of the(oentary by Sir :ercival ;ane was published in the 1=0


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Gost faous wor7% :raelectiones 5uris (ivilis:raelectiones% was based on the lectures he !ave to his students on the (orpus iuris (ivilis" ?nesection of this wor7 is called the *e (onflictu Le!u and is a coentary based on the *i!est- itdeals with the conflict of laws

:roinent 1th ( writers on the law of the /trecht

Antonius ,atthaeus - 1th (

e becae faous throu!hout $urope for his wor7 on criinal law 7nown as the *e criinibus#which is still consulted today Translated into $n!lish in the 1=A04 source of law# because reason wherenot !iven for the ,ud!ents handed down in the courts of his day" +t was a source of hi!h authorityshowin! how the courts arrived at their decisions" 4ecause it was only published in the 20th ( it hadno influence on the developent of )oan- *utch law in the >etherlands" 4i,n7ershoe7


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>etherlands" Van der Linden does however& deserve praise for an addition to Voetoodt andSchultin!

*utch uanists%

The *utch huanists wrote about )oan law in a huanistic way- they studied classical )oan law

and were critical of the )oan law of the Giddle '!es- )oan law as !lossed by the !lossators andcoented on by the (oentators

The *utch huanists always referred to existin! law and too7 into consideration the law of their own

tie" They too7 historical developents into account

French uanists% Studied only pure )oan law and not the )oan law of the Giddle '!es" They did not discuss the

law of their tie They did not ta7e into account the developent of )oan law over the previous 1000 year# and thus

i!nored historical developent

Statute law Le!islation.

(ollections of (ourt *ecisions (ae fro the 3 superior courts% ;root )aad van Gechelen& of van olland# Deeland en est-

Friesland and the oo!e )aad van olland en Deeland the supree (ouncil# a court of 'ppeal for

the of. The courts were not bound by previous decision because the principle of Stare decisis was not

applied in the1th and 1Ath ( *utch courts- these decisions erely had persuasive value forsubseEuent *utch courts

$"!" 4i,n7ershoe7assau la Lec7


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half way ar7 between $urope and the $ast" They cae to the (ape with the intention of establishin! arefreshent station# and not of coloni@in! the (ape

Various authorities that played a role in the adinistration of the (ape The States !eneral% fored part of the !overnent of the united >etherlands and was responsible

for overseein! its overseas settleents or colonies" +t had supree authority The V?( and ere OV++% the states !eneral dele!ated its authority to ana!e the overseas

settleent or colonies of the /nited >etherlands to the *utch $ast +ndia Tradin! (opany V?(.#which was an independent tradin! copany" the !overnin! body of the V?( was the ere OV++ 1!entleen.# a !roup of 1 *utch !entleen

;overnor-!eneral-in-(ouncil at 4atavia% the headEuarters of the V?( were at 4atavia" The

;overnor-!eneral-in-(ouncil was the authority in char!e of the headEuarters" The overseaspossessions of the V?( were under the ,urisdiction and adinistration of the ;overnor-!eneral-in-(ouncil at 4atavia he was directly responsible to the V?(.

;overnor-!eneral-in-(ouncil at the (ape% was directly responsible to the ;overnor-!eneral-in-

(ouncil at 4atavia" *urin! the 1st few years of the settleent at the (ape the Euestion of !overnentand sub,ects did not arise# because a&& the people who cae to the (ape were servant of the V?(" +twas only after the adission of the first free bur!hersforer eployees who were freed fro theircontractual obli!ations to the V?(. that the V?( started fillin! a dual function- eployer and

!overnent

'dinistration of 5ustice ;overnor in (har!e of law and order% ?ri!inally the ;overnor of the (ape was in char!e of law and

order" There was only 1 court# which was ore li7e the broad council of a ship than a court of law"The !overnor relied on a docuent artycelbrief. which set out the rules and re!ulations !overnin!the service of htose eployees of the V?( who were en!a!ed in overseas duties

)aad van 5ustitie% est" 16A" 't 1st the ;overnor of the (ape was the (hairan of this court# later on

the ;overnor


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o +t was possible for the placaeten of olland issued after 162 to becoe operative in the (ape in

an interdict anner if they were proul!ated expressly by the ;overnor-;eneral-in-(ouncil atthe (ape" ' placaeten of olland could also have been incorporated throu!h custo

The old writers on )oan-*utch law% old writers of the province of olland were Euoted by the courts

and that reference was also ade to writers of the other provinces of the /nited >etherlands 5udicial *ecisions% the collections of ,ud!ents# whether they were Frisian# *utch or fro the (ape#

had no bindin! authority on the 1Ath ( (ape (ourts

(usto% The aapse :lacaetboe7 provides exaples of custos and traditions which wereconfired in le!islation

The )eriod fro# 1'(& to 18!'*utch 4atavian. rule at the (ape cae to an end in 1=# when the 4ritish too7 control of the (ape"4ritish rule was short lived and lasted only A years" +n 1A03 the 4ritish withdrew fro the (ap" 1=-1A03 is 7nown as the 1st 4ritish ?ccupation of the (ape" hen the 4ritish left in 1A03# the *utch a!aintoo7 control of the (ape" 3 years later# the 4ritish were bac7 and too7 control of the (ape in 1A06 for the2nd tie the 2nd 4ritish occupation of the (ape." This occupation lasted until 1=61# when South 'fricafinally becae independent fro 4ritain and the )epublic of South 'frica was established

*urin! the 1st occupation# the 4ritish authorities aintained the syste of ,ustice which had already been

established durin! the period of 4atavian *utch. rule at the (ape" There was a hi!h court with staff ofpart-tie ,urists who were not always trained ,urists and were dependant on the ;overnor as the finalauthority in both civil and criinal atters" Le!al refors which were introduced durin! the brief period of 4atavian rule 1A03-1A06. did not coe to anythin!

The 2nd 4ritish occupation 1A06.% $arly chan!es in the adinistration of 5ustice 4efore the arrival of the 4ritish settlers in 1A20# the 4ritish !overnent appeared to adinister the

(olony as an outpost of the 4ritish $pire# seein!ly without the intention of an!lici@in! it withouttryin! to a7e it $n!lish in its outloo7" 'rticles of (apitulation# bur!her ri!hts and privile!es# whichincluded )oan-*utch law# were preserved"

(han!es were brou!ht about in the adinistration of ,ustice at Euiet an early sta!e and included%

) court of criminal appeal was instituted

Circuit courts were introduced

The courts which had been closed to the general public were opened to everybody

Changes to criminal procedure were made

$arly reception of $n!lish institutions and law :roclaations by Lord (harles Soerset the then !overnor of the (ape. contained evidence of a

policy of an!licisation and of $n!lish le!al rule penetratin! the syste The 4ritish !overnent appointed a coission to enEuire into the affairs of the (olony# includin!

the existin! le!al syste" This coission ade recoendation on chan!es they thou!htnecessary and on these recoendation the 1st (harter of 5ustice was issued for the (ape (olony

The rece$tion of 2nglish law at the "a$e 18!8-1(10; The 1st (harter of 5ustice introduced the be!innin! of an era which was extensively influenced by the$n!lish" +t cae into effect in 1A2A and bou!ht about iportant chan!es in the court structure and in theforal law" The use of the $n!lish court structure and foral law paved the way for the incorporation# orreception# of $n!lish law into the existin! law

The new syste of le!al adinistration included the followin! chan!es% The )aad van 5ustitie was replaced by the Supree (ourt of the (olony of the (ape of ;ood ope

'n appeal to the :rivy council in London was instituted

The ,ury syste was introduced- the ,ury syste becae unpopular fro 1A=1 onwards and was

discontinued in 1=6=

5ud!es appointed to the new bench had to be recruited fro aon! the advocates of $n!land#+reland and Scotland

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'dvocates of the (ape had to fro $n!land# +reland and Scotland# persons in possession of a

doctors de!ree in law fro the /niversities of ?xford# (abrid!e and *ublin or advocates of the old)aad van 5ustitie

' 2nd (harter of 5ustice was ipleented in 1A39- a re enactent of the 1st charter with a few

aendents and additions

The echanics of the )eception process

4oth (harters of 5ustice stipulated that the law of the (olony )oan-*utch law. should be appliedby the courts" Viscount ;oderoch indicated that there should be a !radual assiilation of $n!lish lawinto the law of the colony

Factors which contributed to the reception of $n!lish law%

o $n!lish institutions" the penetration of the colonial le!al syste by the $n!lish law should be

evaluated a!ainst the social and political bac7!round of the (ape durin! the 1= th (" 4y 1A30 itwas clear that real chan!e was ta7in! place at the (ape and that the BoldC ways were dyin! out"$ducation# lan!ua!e and coerce were the areas where the $n!lish influence was stron!est

o ducation" as part of his policy of 'n!licisation# Lord (harles of Soerset established a nuber

of schools in the rural areas- these schools were staffed by teachers with a $n!lish bac7!round#and the classes were presented in $n!lish

o Language" an $n!lish lan!ua!e policy was introduced" Lord (harles Soerset officially

introduced $n!lish as the lan!ua!e of the (apeo Commerce" was alost solely in the hands of the people# who if not $n!lish spea7in!# were

rapidly becoin! iersed in the custos of B$n!lish tradin!Co The ost iportant instruent of le!al developent# a university# which had a civil- law P)oan-

law. orientation# was lac7in! at the (ape" ithout such a university the developent of a oderncoercial law# founded solely on )oan-*utch law principle was not possible

o The role of the ,udiciary% newly appointed $n!lish ,ud!es were !iven the tas7 of prootin! the

!radual assiilation of $n!lish law into )oan-*utch substantive law" $arly ,ud!es resisted theinfluence of $n!lish law& eventually it was not law refor but other factors which led to $n!lishlaw penetratin! the syste%

o The 2nns of Court Tradition" are associations of advocates in $n!land which are responsible for

the trainin! of advocates" They reEuire advocates to pass exas in $n!lish coon law beforethey are peritted to practice" +n the absence of a university with a civilian or )oanistorientation at the (ape# the +nns of (ourt tradition ade its ar7 on the (ape ,udicial practiceand suppressed any possibility of research into the principle sources of )oan-*utch law

o )ccessibility of nglish (ources" both ,ud!es and advocates relied on $n!lish authorities as they

had received their trainin! in $n!lish law and therefore preferred to a7e use of $n!lishauthorities" 'dvocates tended to loo7 at ore accessible sources of $n!lish law on theassuption that the )oan-*utch law principle was siilar to that of $n!lish law# or that the oldwriters did not refer to the issue

o 3octrine of stare decisis" BThe decision standsC earlier decisions have bindin! authority" The

(ape Supree (ourt started followin! the doctrine of Stare *ecisis"o The iportation of law via le!islation% $n!lish law was iported throu!h statutes

The reception of $n!lish law and the internal history of South 'frican law as there a practical or a scientific reception of $n!lish law at the (ape# or bothI Soe areas of the

law experiences both a scientific and a practical reception of $n!lish law +n the >etherlands a reception too7 place both of )oa le!al rules a practical reception. and of the

)oan scientific syste The cape received the whole of the $n!lish (opanies 'ct# the $n!lish law of ne!otiable

instruents and the $n!lish law dealin! with parliaentary conventions" This is reception in the truesense because it was ore than a ere arbitrary accuulation of le!al rules& it represents areception of a body of principles and concepts fro $n!lish law"

Legal 3e+elo$#ent outside the "a$e 1868-1(10;The 4ritish !overnent was increasin!ly pursued a policy of an!licisation after the 4ritish settlersarrived" This policy was not welcoed by the existin! non-4ritish population" The 4oers resisted thispolicy to such an extent that a lar!e nuber of the decided to leave the (ape and to ove inland to

3


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!et away fro the control of the 4ritish !overnent- 7nown as the ;reat Tre7# and the people whoparticipated in the ;reat Tre7 are referred to as the Voortre77ers" The Voortre77ers oved as far as>atal# ?ran!e Free State and the Transvaal

>atal 1A3A the Voortre77ers declared that the ollandsche )echtsple!in! )oan-*utch law. would serve

as the basis for the adinistration of ,ustice around the port at port >atal *urban."

'fter the 4ritish too7 control of >atal in 1A9 it was stipulated that the le!al syste of the *istrict of>atal would be the syste practiced in the (ape colony- )oan-*utch law as odified by $n!lishprocedural laws

The Voortre77er republics 'fter the ;reat Tre7 the 4oers settled in the Transvaal and the Free State# which they declared

independent states )eferred to as the B4oer republicsC or the BVoortre77er republicsC" The Transvaal was 7nown as the B

Duid-'fri7aansche )epublie7C They were also influenced by $n!lish law

The Duid-'fri7aansche )epublie7% The ollandsche wet would for the basis of the law of the D')-

it coprised of Van der Linden


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The direct incorporation of $n!lish statutes ay also affect our law in an indirect way# because in

any instance# courts see7 authority for the interpretation of such statutes fro $n!lish cases thatturned on the sae point of law

Teachin! institutions it was not until 1=16 that it was possible to discern a oveent in South 'frica towards the Scientific

study of )oan-*utch law- /(T# StelliesThe 'ppellate *ivision

4efore unification in 1=10# the le!al systes in the different part of South 'frica developedindependently fro each other" 'lthou!h each area applied the sae basic le!al syste# the le!alsyste of a specific area developed by ta7in! into account local custos# traditions and opinions"There were any inor differences in the law of the different areas

the foration of the /nion ar7ed the be!innin! of a new period of unification and assiilation of

law the privy (ouncil# situated in London# reained our hi!hest court of 'ppeal until 1=0

the '* contributed to the developent of South 'frican law throu!h the unification of the law of

South 'frica and the creation of an independent le!al syste

The B:uristsC# BpollutionistsC and Bpra!atistsC debate the purists deanded that )oan-*utch law be applied in its pure for# free of $n!lish law

containation the pollutionists point of view was that for practical reasons $n!lish-law solutions should be accept

where the old writers are silent The pra!atists wished to steer a iddle course between the 2 opposin! points of view

The '* associates itself ost closely with the pra!atic point of view" +t has often re,ected $n!lish

le!al rules which have penetrated our syste and found support throu!h the stare decisis rule butwhich were never really received into our law" 't the sae tie the '* has not found it ipossible toabolish a rule of )oan-*utch law which it considers to by obsolete"

+t sees that the '* has ade an effort to develop the law within the )oan-*utch fraewor7"

The South 'frican Land )efor (oission

The tas7 of the coission is to investi!ate certain atters referred to it by parliaent" +n eachinvesti!ation# the (oission considers the present le!al position# the historical developent of theatter under consideration and then after extensive research# proposes chan!es to the law to brin! itinto line with the needs of society"

+f we loo7 at these draft bills# it appears that the coission does not hesitate to a7e use of the

coparative le!al aterial and that it ta7es co!ni@ance of the civil-law herita!e which we share withother $uropean le!al systes

Study Unit (: The istory of u#an ights in South Africa

The $rinci$le of "onstitutionalis#

Bthe !overnent of a country is obli!ed to act in accordance with theprescriptionsJ!uidelinesJconditions laid down in a constitution

' constitution is a set of principles or rules accordin! to which a state ust !overn" ' constitution

ay be written or unwritten 4ritain. Gechaniss to control state power% procedures for the a7in! of law& a bill of ri!hts& the separation

of power between le!islative# executive and ,udicial authorities& an independent ,udiciary andseparation of power between the national and provincial levels of !overnent

3 'pproaches to the principle of (onstitutionalis% (oplete denial of (onstitutionalis% entails that the will of the a,ority of the deocracy as

represented by parliaent# or in forer years# a Vol7sraad. ay not be liited by the rules andprocedures of a constitution

e"!" the Duid-'fri7aansche )epublie7 end 1=th (

3


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the dan!er inherent in the denial of the principle of constitutionalis is than parliaent can obtain

unliited power# and that thus ay becoe a threat to the continued existence of an open and freedeocracy

:artial )eco!nition of (onstitutionalis :arliaentary supreacy or :arliaentary soverei!nty.

here there is partial reco!nition of constitutionalis it is accepted that soe restrictions on the

power of parliaent are necessary in a deocracy :arliaents reains the soverei!n power in the state and can a7e whatever laws it want# even

un,ust laws# as lon! as the deocratic procedures for the adoption of these laws are followed" (ourtscan only decide whether the prescribed procedures were followed but cannot declare laws invalidbecause they are un,ust or unreasonable

$"!" the /nion of South 'frica under the 1=10 constitution. and the )epublic of South 'frica under

the constitutions of 1=61-1=A3. Full reco!nition of constitutionalis constitutional supreacy or constitutional soverei!nty.

here there is full reco!nition of constitutionalis it is accepted that restrictions on the powers of

parliaent and the state are necessary in a deocracy" The constitution includes restrictions and !uidelines to which the !overnent should adhere in rulin!

the country The constitution sets out the deocratic procedures that parliaent ust follow when a7in! and

applyin! laws# as well as the basic standards with which the content of the law and le!islation ustcoply &ill of 4ights" contains certain iniu standards to which all le!islation and other court decisions.

ust adhere" ?nly in exceptional circustances ay huan ri!hts be suspended or liited The 3 fundaental values of South 'frica


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>atural-law thin7ers typically clai that there is a hi!her set of eternal and universal nors which

were not created by huan bein!s but which exist in nature" They ascribe the nors to%o )eli!ious or supernatural ori!ins- one !roup believes that these nors have reli!ious or

supernatural ori!ins that a !od or deity was the source of natural lawo uan rationality- with the advent of Science and the '!e of $nli!htenent in the 16th N 1th (#

any philosophers be!an to su!!est that huan reason itself was the source of these norso )ationalis was the underlyin! philosophy of the huanists# who ephasi@ed )oan. law as a

scientific syste and the rational and lo!ical nature of the lawo u!o de ;root can be re!arded as the father of odern natural law" e was a lin7 between the

old world# where reli!ion played an all-iportant role# and the new western world" B if there whereno ;od# natural law would still existC" >atural law did not derive fro ;od# but fro the rationalnature of huans theselves"

o ' person is a social creature who wishes to be a eber of a counity" ' person


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'frican (harter on uan and peoples )i!hts which established the court" ?nly 29 'frican stateshave ratified the protocol

u#an ights in South Africa /efore A$ril 1((9

uan ri!hts and the coon law The natural law philosophy and the idea of natural# inalienable ri!hts fors part of our )oan-*utch

le!al herita!e" :arliaent was soverei!n and not only ipleented the policy of apartheid# but alsoliited the application of )oan-*utch law# as well as the power s of the courts" (onseEuentlyneither )oan-*utch law nor the courts were in a position to offer uch resistance to apartheidle!islation which ade provision for discriination on the !rounds of race# detention without trial andliitation on freedo of speech

The constitutional crisis in the Duid-'fri7aansche )epublie7 The D') constitution of 1AA ade no ention of the courts testin! power or of precisely where

soverei!nty was to reside" *ecisions of the Vol7sraad whether the courts could test their validity" /nder the leadership of (hief

5ustice ot@e# the courts declared certain Vol7sraad decisions invalid because the correct procedure#prescribed by the constitution of the D') for the adoption of le!islation had not been followed

+n 1A= this led to the disissal of ot@e by :aul ru!er# the State president of the D')- he calledthe testin! ri!hts of the court the principle of the devil

uan ri!hts in the old republic of the ?ran!e Free State The idea of individual ri!hts fors part of our coon law which has been applied at the (ape since

162# the 1st docuent in South 'frica which contained provisions that went soe way towards thereco!nition of uan ri!hts was the ?ran!e Free State (onstitution of 1A9"

The constitution of the ?ran!e Free State provided that it


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principle of constitutionalis also reEuires that the content of le!islation be tested a!ainst a bill ofri!hts contained in a constitution"

u#an ights in South Africa since A$ril 1((9 The Truth and reconciliation coission was established in 1==6 to deterine the extent and nature

of previous violations of uan ri!hts# to su!!est ways of preventin! repetition of those abuses andto ri!ht the wron!s of the past"

+n its report of 2003# the truth and reconciliation coission found that the inability of our courts tota7e a stand a!ainst the onslau!ht of apartheid le!islation was ainly the result of%o The doctrine of parliaentary soverei!nty

o The principles that ,ud!es could only adinister ,ustice and not create it

o Le!al positivis law and orality ust be separated" 5ud!es ust apply the law even if it is

un,ust. 'partheid ,ud!es were blaed because they did not always use the available opportunities where

le!islation was unclear or abi!uous to appeal to coon law and to protect the individual a!ainststate interference"

The Final (onstitution cae into effect in February 1== and contains the bill of ri!hts# alon! with the

followin! provisions%o The provisions that these ri!hts ay be aended only if the aendent is supported by at least

2J3ational assebly and at least 6 or the = provinces represented on the >ationalcouncil of provinces

o The provision that ri!hts ay by liited only be !enerally prevailin! le!al rules only if the

liitations are reasonable and ,ustifiable in an open and deocratic society based on huandi!nity# eEuality and freedo

o Factors ta7en into account in the deterination of the reasonableness and ,ustifiability of a

liitation% the nature of the ri!ht that is bein! liited& how iportant the ai of the liitation is&the nature and extent of the liitation& the relationship between the liitation and its ai andwhether the ai of the liitation could be achieved in a less restrictive way

General "haracteristics of the South African *ill of ights 3 iportant characteristics% it is coprehensive# it applies both vertically and hori@ontally and it

attepts to rectify the in,ustices of the past" 3 different !roups%

First !eneration ri!hts- 4lue- (ivil and political ri!hts% Freedo of )eli!ion# expression# )i!ht to life#

to huan di!nity to eEuality etc Second !eneration ri!hts- )ed- Social N $conoic- protect the individual a!ainst excessive state

interference" Strive for the iproveent of the socio-econoic conditions of the individual"(oncerned with the states obli!ation to play an active role in providin! certain basic !oods andservices if it has the eans to do so

Third !eneration ri!hts- ;reen- ;roup- the ri!ht to for and participate in (ultural# reli!ious andlan!ua!e counities and the ri!ht to an environent that is not harful to the populations health or wellbein!" as an 'frican orientation

The constitution provides that all or!ans of the state ust respect uan ri!hts" The constitution has

vertical application between the state and it sub,ects" The constitution also provides that in certain circustances# an ordinary person ust respect other

people huan ri!hts" The constitution also has a hori@ontal application between individuals" Thehori@ontal application of the (onstitution has caused and ay still cause any chan!es to South 'frican coon law and indi!enous law

The South 'frican coon law has already reco!ni@ed any of the ri!hts now entrenched in the

constitution% the ri!ht to privacy& the ri!ht to huan di!nity and the ri!ht to freedo of the person"These ri!hts are traditionally protected by the law of delict# but are not also protected by the

constitution" )i!hts which place to !reat a burden on individuals i!ht not be considered to operatehori@ontally

ectifying inustices of the $ast 91


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The constitution provides that property ay be alienated only after payent of fair copensation"

owever # it also provides that the history of the acEuisition and use of the property and the purposeof the alienation ay be ta7en into account in the deterination of what would be fair copensation"The public interest is also ephasi@ed and the ri!hts of the counity are protected"

;roup ri!hts are lin7ed to the 'frican ephasis on the iportance of the counity and the !roup#

and participation in the decision a7in! process

92


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origins of south african law

Documents