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 legal 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 interrelationship, with English influence most clearly expressed in the procedural aspects of the legal system and judicial methods, and Romano-Dutch influence most clearly expressed in its substantive private law. [2] As a general rule, South Africa follows English law in the areas of criminal law 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. The South African judicial system is organised according to a clear hierarchy by Chapter 8 of the Constitution of the Republic of South Africa, in particular Article 166, and consists of (from the lowest to the highest judicial instance): One of the first steps in the construction of a post-apartheid state, the introduction of the Interim Constitution on 27 April 1994, has 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 judicial branches, with oversight mechanisms to ensure accountability, responsiveness and openness. Judicial power is vested in the courts established by or under the Constitution. The Constitutional Court is the highest court in the country for constitutional matters. The Supreme Court of Appeal is the Supreme Court in all non-constitutional cases and hears appeals from the High Courts. Roman-Dutch law was maintained 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 court proceedings, and the 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 statute, 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 invoked as a convincing but non-binding authority. With the failure of the indigenous population, 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 the laws before the colonization of South Africa. [citation needed] However, the current South African legal system has recognised the importance of these courts and they have been integrated into the wider legal system, where this can act as district/local courts. [citation needed] And finally, the Constitutional Court, which is the highest authority on constitutional matters and, since the Sixth Amendment to the Constitution of South Africa, the highest court in the country for constitutional matters and all others. This position is legally upheld and enshrined in law by section 167 (3) (b) (ii) of the South African Constitution, which states that the Constitutional Court “may decide any other matter if the Constitutional Court accepts the appeal on the ground that the matter raises a contentious legal question of general public importance which should be considered by that court”.
[8] [9] The Constitutional Court has the final power to decide whether a question is constitutional or not; Article 167(3)(c)[8] of the Constitution of South Africa. For general information about South Africa, including geography, population, history and economic information, see for example: South Africa is a young constitutional democracy with a defined legal system and a sound approach to the rule of law. Its strong Roman-Dutch legal foundation and inherent ability to be flexible and learn from other jurisdictions have allowed it to adapt to the legal challenges typically faced by an immensely diverse, culturally rich and rapidly globalized country. In addition, the legislation has also established a number of specialized courts to deal with areas of particular interest to the public and to avoid a backlog in the main infrastructure of legal administration. These courts coexist with the hierarchy of courts; Their decisions are therefore subject to the same appeal and review procedure by the ordinary courts, from a certain level, depending on the specialised court concerned. Within these specialized tribunals, there are, to name but a few, the Court of Appeal for Competition, the Electoral Court, the Court of Land Claims and the Court of Appeal for Labour and Labour. [10] The South African legal system is a colourful fusion of different legal systems. Its Roman-Dutch legal basis and inherent ability to seek solutions in other systems have made it particularly suited to South Africa`s diverse society. As Lord Tomlin stated in a judgment in 1934 when he was a judge of the House of Lords (then the highest court of appeal for home affairs): “Romano-Dutch law.
is a living manly legal system which, like any system of its kind, always seeks to constantly adapt to its inherent basic principles in order to respond effectively to the increasing complexity of modern organized society. Until 1795, the Seven United Provinces of Holland were a sovereign and independent state. Together with the other territories of the Netherlands, it was organized into a fairly free community known as the Republiek of the Vereenigde Nederlanden (United Republic of the Netherlands). [12] Originally it was a rural area, but rapid development in the 15th century turned it into a commercial center. The old Germanic customary law was no longer able to settle disputes in everyday trade, and the Dutch turned to more advanced Roman law. They adopted it and changed it so well in their lives that the great Dutch jurist Hugo de Groot (Grotius) in the early 17th century might call this fusion (or combination) of Dutch and Roman principles a “new” legal system with its own content.
