Foundations of South African law: Roman-Dutch heritage, British influence, apartheid and constitutional transformation, the Constitution as supreme law, sources and hierarchy of law, and a mixed legal system

Roman-Dutch and British roots. The Dutch East India Company settled the Cape in 1652, and with it came the Roman-Dutch law of the Netherlands: the Roman law of Justinian as developed by Dutch jurists such as Grotius, Voet and Van Leeuwen, whose works are still cited as old authorities. Britain took the Cape in 1806 (confirmed in 1814) and introduced English courts, procedure, evidence and company and commercial law, but did not replace the Roman-Dutch private law. The Union of South Africa was formed in 1910 from the Cape, Natal, the Transvaal and the Orange Free State, and became a republic in 1961.

Segregation and apartheid. The law was used to build racial inequality. The Natives Land Act of 1913 reserved most of the land for the white minority, pass laws restricted the movement of black South Africans, and after 1948 the apartheid state passed the Population Registration Act, the Group Areas Act and many others to classify people by race, force them to live apart, deny them the vote and set up nominally independent homelands. Resistance, international pressure and negotiation ended this system. An Interim Constitution took effect on 27 April 1994, the date of the first democratic elections. The Constitution of 1996, adopted by the Constitutional Assembly and certified by the Constitutional Court, came into force on 4 February 1997.

Supremacy. Section 1 states the founding values: human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism; the supremacy of the Constitution and the rule of law; and universal adult suffrage, a common voters’ roll, regular elections and a multi-party system of democratic government. Section 2 declares the Constitution the supreme law: law or conduct inconsistent with it is invalid, and the obligations it imposes must be fulfilled. Courts must promote the values of the Constitution, and section 39(2) requires them to do so when they interpret legislation and develop the common law or customary law. The Constitution is therefore not only a statute at the top of a pyramid: it shapes every rule below it.

Precedent and the common law. South African courts follow stare decisis, a doctrine inherited from English practice: a court is bound by the decisions of higher courts and, in general, by its own earlier decisions unless they are clearly wrong. The Constitutional Court and the Supreme Court of Appeal (Module 4) set the most important precedents. The old Roman-Dutch authorities carry weight but can be departed from if the law has changed or no longer fits the Constitution. Section 173 gives the highest courts the inherent power to develop the common law, taking into account the interests of justice. In practice, many parts of the common law, such as the law of contract, delict and family law, have been adapted by the courts to the Bill of Rights, while statutes now regulate much of company, labour, consumer and tax law.

Roman-Dutch, English and customary law. South Africa is neither a pure civil-law nor a pure common-law system. The private law is mainly Roman-Dutch: the law of persons, property, contract and delict rests on principles, not on a single code. English law influenced criminal and civil procedure, evidence, company and mercantile law, and constitutional ideas, and the courts use precedent in the English manner. African customary law governs marriage, family, succession and land for many South Africans, and has been recognised as a source of law in its own right. The result is a system that combines civilian principles, common-law method and customary rules under a constitutional roof.

• Official and living customary law. Official customary law is the law as recorded by colonial officials and codes; living customary law is the law as the communities actually practise and develop it. The courts say that the living law is the real one, and they check it against the Constitution (Module 3).
• Languages. The Constitution recognises twelve official languages, including sign language. English is the main language of the courts and of business.
• For a foreigner. Expect Roman-Dutch terms (such as delict for tort), English-style procedure and, in some matters of family and land, customary rules.