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STUDY UNIT 2
THE HISTORY OF SOUTH AFRICAN LAW

LEARNING OUTCOMES

• Explain the importance of legal history.

• Discuss the importance of customary law.
• Explain the history of Roman law.
• Explain the reception of Roman law into South African law.
• Explain the history of the English colonisation.
• Explain the history of Apartheid laws.
• Discuss the history of South African law from a post-colonial perspective
and the importance of transformative constitutional democracy.

Contents of STUDY UNIT 2

2.1 The Importance of Legal History
2.2 Phase One: Africa First
2.3 Phase Two: Dutch Colonisation
2.4 Phase Three: English Colonisation and Beyond
2.5 Phase Four: Apartheid
2.6 Phase Five: Transformative Constitutional Democracy

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2.1 THE IMPORTANCE OF LEGAL HISTORY

 Kleyn & Viljoen 26 - 30.

(a) Legal history explains the present character of law

• The past explains the present legal situation and context.

• There are historical reasons for why the law is as it is.
• For example, we must look at the history of our law to determine
why we do not have the death penalty as a sentence anymore.
• A knowledge of legal history leads to a better understanding of
modern law.
(b) An understanding of our legal history facilitates necessary change in
the law

• Every society lives according to a specific legal system.

• However, with time, the society’s values and needs change,
therefore, the legal system must adapt and change as well.

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• A knowledge of legal history will inevitably show how law has already
changed and adapted throughout the centuries.
• What were the most significant change in our legal system between
1990 and 1996?
(c) Our legal history is living law
• For example, one of the sources of South African law is common law
(a very old source of the law) which is still applied by our courts
today. Since it is still applied today, it is ‘living’ law.
• Same can be said about customary law (Traditional African laws such
as lobola)
(d) Our legal history links us to the law of other countries
• Influences of other legal systems evident in SA law.
• Roman-Dutch Law, Customary Law, Common Law etc.
• In essence, legal history provides understanding of our current
situation or legal system, i.e. the present character of our law.
• It facilitates necessary change in law.
• Our legal history is part of living law.
• It links us to other countries within the global village.
• Law is a social science, and history is one of the foundational social
sciences; other social sciences are psychology, sociology, philosophy
and politics.

2.2 PHASE ONE: AFRICA FIRST

 Kleyn & Viljoen 30 - 31.

• African people inhabited this space (South Africa) first and lived
according to their own African legal systems.
• This law is called indigenous or customary law.
• Customary law played an important role then and still plays an
important role now in the SA legal system.
• However, there is a lack of details on the development of these
customary laws, mainly because of the fact that these laws were not
recorded over the years.

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• Customary law displays the following characteristics:

➢ It usually consists of unwritten customs that are passed down
from generation to generation. This is known as ‘living’
customary law and it can be modified to adapt to current
situations. It differs on a tribal and territorial basis.
➢ It regulates the relationships between individuals and NOT the
relationship between individuals and the State.
➢ It is a communal or group-orientated system – not
individualistic like the Western system.

2.3 PHASE TWO: DUTCH COLONISATION

 Kleyn & Viljoen 31 - 44.

• In 1652 the Netherlands colonised the Cape.
• The Dutch did not recognise the indigenous people living in the Cape
as having rights because they were not Christian and deemed them
unable to comprehend the notion of ownership (which was false of
course).
• From that time up until the colonisation by the English, the Dutch
enforced their laws on the indigenous people and those laws became
part and parcel of South African law.
• The Dutch colonists lived according to Roman-Dutch law because
that was the legal system with which they were acquainted.
• The official sources of law in the Cape under Roman-Dutch rule
included the Roman-Dutch law of Holland, the Batavian Placaaten
and the Statutes of India.
• Roman-Dutch law was further developed and applied in the Cape as
settlements took place.
• Thus, Roman-Dutch law was imposed on African people.
• Whether Roman-Dutch law is understood in a narrow or broader
sense, there is certainty in the fact that it is based on Roman Law.
• Therefore, the historical roots of the South African legal system lie in
the basis of the ancient Roman Empire.
• Roman law also forms the historical foundation of all the legal
systems of Western Europe.
• Thus, the history of South African legal system is also inseparable
from the history of law in Europe.

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STAGE 1:
Roman Law formed part of the law in Europe and formed part of the law in the
Netherlands (particularly).

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STAGE 2:
Roman-Dutch Law: Movement from the Netherlands to the Cape.

STAGE 3:
Development of Roman-Dutch Law and its development with existing African
Customary Law and English law.

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A. The “Roman” Component of Roman-Dutch Law

Rome

Monarchy Republic Empire

- Enactments of the Senate

- Edicts of the Praetors - Writings of Jurists
- Customary Law (Ius Civile) - The XII Tables - Statute of Citation
- Lex Hortensia - Justinian’s Codification
- Ius Gentium

In order to understand the development of Roman law it is important to look

at the establishment, growth and decline of the Roman Empire which spans
roughly 1200 years.
• Three different types of government existed before and during the Roman
Empire:
(1) Roman Monarchy - 753 BCE (Before Common Era/Before Christ)– 510
BCE;
(2) Roman Republic - 510 BCE – 27 BCE;
(3) Roman Empire - 27 BCE - 1453 CE (Common Era/After Christ).

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(1) Roman Monarchy (753 – 510 BC)

• Rome was founded by Romulus in 753 BCE.
• It known as the Roman Monarch.
• A monarchy is a form of government where there is an absolute head of
state who controls the country/state as opposed to a democracy where
the voters decide who govern.
• The common characteristics of the law during the monarchy were:
➢ This justice was dispensed by the High Priest;
➢ The law which was applied was rigid and formalistic;
➢ No distinction between law and religion;
➢ Law was basic - based on unwritten customs and usages: ius civile
(civil law);
➢ Based on the customs of the ancestors.

(2) Roman Republic (509 BC – 27 BCE)

• Executive power was in the hands of consuls (magistrates), consisting of
two consuls.
• Consuls: replaced the king, governed Rome, in office for one year, but
essentially, they ruled like joint kings.
• Popular assembly (like a parliament): was retained and passed legislation.
• There was also a senate that consisted of 300 members (elderly statesmen
and ex-magistrates.
• This senate acted as an advisory body.

• In 450BCE, Roman Law was codified for the first time in the Law of the
Twelve Tables (Lex Duodecim Tabularum) which allowed for:
➢ Final separation of law and religion.
➢ Codification, which created legal certainty
➢ The beginnings of legal science and development of jurists.
➢ The inclusion of primitive laws such as a debtor could be killed for not
paying his debts.

• An important role-player during this period was the praetor (judicial

officer).
• Justice was administered by the praetor.

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• The praetor played a critical role in the development of Roman Law.

• The development of the law resulted in the creation of jurists who
undertook to study the law scientifically (critical analysis of the law).

(3) Roman Empire (27 BCE– 1453 CE)

• In 27 BCE the Roman Empire was established and the citizens were ruled
by emperors.
• The Senate and previous role-players started to gradually lose their
importance.
• The emperors personally began to promulgate imperial legislation
(imperial derived from “Emperor”).
• During this time, jurists became prominent. They were given the task of
improving the law and adapting it to the needs of the times.
• The principal function of a jurist was to give legal advice and from this
the following functions derived:
(1) Teaching law;
(2) Assistance in legal transactions;
(3) Assistance in court;
(4) Interpreting the law;
(5) Writing law.
• During the 2nd century CE the ‘Five Great’ Jurists emerged:
1) Gaius: Wrote Institutes in 161CE, which was a law textbook for
students;
2) Papinianus: Published discussions of various legal problems;
3) Ulpianus: Wrote commentaries on the civil law and the praetorian
edicts;
4) Paulus: His major works were commentaries on the ius civile and
on the edicts of the officials;
5) Modestinus: His work focused on the classical period.
• Their approach to law as a sophisticated legal science and their extensive
writings on the law ensured for its growth and development.
• Roman Law of this period is usually referred to as Classical Roman Law.

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• Eastern Roman Empire:

➢ Capital - Constantinople (modern day Istanbul in Turkey)
➢ Ruler - Constantine (285-337AD)
• Western Roman Empire:
➢ Capital - Rome
➢ Ruler – Diocletian
• The Western Roman Empire failed and was overrun by Germanic Tribes
and in 476 CE a Germanic ruler gained power in Rome.
• This event is known as the fall of the Roman Empire.
• The Eastern Roman Empire survived for a further 1000 years after the fall
of the Western Roman Empire.
• It fell in 1453 when Constantinople was captured by Turks.
• However, in 527CE, Justinian (527-565 AD), a Roman Emperor in the
Eastern Empire tried to restore the Roman Empire to its former glory.
• He appointed a 10-man commission to codify the law.
• The Corpus Iuris Civilis (Justinian’s codification of the law) consisted of
four parts:

(1) The Digesta

A codification of the classical Roman law (works of Roman jurists). Consists
of 50 volumes.
(2) The Institutiones
A student textbook which sets out the basic principles of the law clearly.
(Consists of 4 volumes).
(3) The Codex
A codification of imperial legislation.
(4) The Novellae
In the final years of his rule, Justinian issued a number of additional
imperial decrees which were collected in a document called the novels
(new legislation).

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• After Justinian’s death Corpus Iuris Civilis became forgotten; but

rediscovered in the 12th century.
• However, the Corpus Iuris Civilis is viewed as the final form of Roman
Law.
How did Roman Law become part of other legal systems in Europe?
• Roman law was voluntarily received (accepted) throughout Western
Europe from the 12th century in what was known as the reception of
Roman law.
• The (a) Glossators, the influence of (b) Canon Law and the (c)
Commentators all played an important role in the reception of Roman
law in Europe.
(a) The Glossators
• Glossators first school of legal thought after the fall of the Roman
Empire.
• Scholars of the early 12th century law schools in Italy (especially
Bologna) and France.
• Glossators taught Roman Law to their students
• Students returned to home countries and applied Roman law in cases
where their local laws failed to provide answers to legal problems.
• Thus, Roman law infiltrated different legal systems in Europe.
• They analysed the text of the Corpus Iuris Civilis;
• Tried to understand the difficult sections; and
• Tried to find the meaning of the unclear words.
• They wrote explanatory notes in the margin of the text and also between
the lines, known as glosses.

(b) Canon Law

• Roman Catholic Church = Christian church; had its seat in Rome.

• Canon law derived its sources from:
• Resolutions of the church councils;
• Decrees by Pope;
• Customary law;
• Bible;
• Code of Justinian;

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• Canon law was codified in the Corpus Iuris Canonici;

• Like the glossators, the canonists also developed many Roman law
doctrines such as the doctrine of subjective rights, the juristic
person and the law of civil and criminal procedure.
(c) The Commentators
• This movement started in Italy in the 14th century.
• After the 12th century the needs of practice became more important to
legal scholars.
• The commentators thus became more concerned with practical aspects
of the law than with substantive Roman law.
• Each commentator gave his opinion (commentary) on the text of the
Corpus Iuris Civilis and also referred to the views of other writers on the
same subject.
• Then to distinguish himself from other writers, he would make finer
distinctions and raise entirely new questions.
• Importance of their work:
➢ They laid the foundations for the 17th century school of natural
law.
➢ They played a leading role in the emergence of fields such as
Criminal law and Commercial law.
➢ The Roman law which they commented on was the Roman law
which later formed part of Roman-Dutch law which was brought
to SA.

B. The “Dutch” Component of Roman-Dutch Law

• Roman-Dutch law is the system of law produced by the fusion of early
modern Dutch law, chiefly of Germanic origin, and Roman law.
• The Dutch received Roman law into Holland. After its reception, it then
became Roman-Dutch law. The law which was received was Roman law as
expounded by the glossators and commentators.
• At that stage there was already talk of a European common law (a ius
commune) based on Roman law, and it was thus not unusual for Dutch
writers to quote French and other writers.
• Dutch students who went to study in Italy brought back Roman law
influences with them.

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• To note again, the reception of Roman law means ‘the adoption of Roman
law as a system of law or governance’.
• The reception of Roman law in the Netherlands took place from the later
thirteenth century until the end of the sixteenth century.
• From the thirteenth century until the mid-fifteenth century the jurists
incorporated Roman law into the legal documents that they drew up.
• Dutch jurists of the seventeenth and eighteenth centuries brought new
insight to the examination of the Roman sources.
• Prominent writers include Hugo de Groot, Simon van Leeuwen and
Johannes Voet

1. Hugo de Groot (Grotius) (1583-1645)

• Generally regarded as the greatest of the Dutch jurists.
• From SA’s point of view, his contribution in the private law area is of
great significance.
• What made him world famous are his contributions in legal philosophy
and international law.

2. Simon van Leeuwen (1626 – 1682)

• Was the first Dutch jurist to use the term Roman-Dutch law.

3. Johannes Voet (1647-1713)

• Along with de Groot, he is the most important Dutch jurist as far as
South African law is concerned; most quoted by our courts.

• Roman-Dutch law was eventually codified in 1838 in the Netherlands,

called the Burgerlijk Wetboek.
• South Africa does not refer to the Wetboek as authority but instead we
refer to the works of the Roman-Dutch jurists like De Groot.

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2.4 PHASE THREE: ENGLISH COLONISATION AND BEYOND

 Kleyn & Viljoen 44 – 46.

• In 1806 Dutch rule came to an end in South Africa and the English
colonisation started.
• The English decided not to abolish (terminate) Roman-Dutch law.
• However, the influence of English law on the SA legal system was inevitable.
• English law exerted its influence mainly through laws and case law.
• Laws: English Criminal Procedure, Civil Procedure and evidence were
received through legislation.
• Cases: SA courts sometimes applied English court decisions.
• Although the Dutch did not recognise customary law, some of the British
colonies in South Africa did.
• The Black Administration Act 38 of 1927 was enacted and allowed the
application of customary law and provided for a special court system for
black people.
• Most of these special courts were abolished in the 1980s.
• Therefore, it must be noted that pluralism (existence of multiple legal
systems) exists within our legal system.

2.5 PHASE FOUR: APARTHEID

 Kleyn & Viljoen 46 - 51.

• Apartheid has its roots in our colonial history.
• From 1948 the SA Government enforced and enacted unjust and abhorrent
Apartheid laws
• Apartheid legislation was passed by Parliament.
• SA did not follow the separation of powers model that it follows today but
its system was based on parliamentary sovereignty.
• Parliamentary sovereignty allows Parliament to enacts laws and only
parliament can change these laws.
• Courts are not allowed to instruct parliament to change laws.

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• Thus, even though the judges knew that the Apartheid legislation was
unlawful in terms of international human rights (and in terms of natural
law) they were not able to declare these unjust laws invalid – See for
example the judge’s decision in the case of S v Adams, S v Werner 1981 (1)
SA 187 (A).

• Examples of Apartheid laws:

➢ Population Registration Act 30 of 1950;
➢ Group Areas Act 41 of 1950;
➢ Separate Representation of Voters Act 46 of 1951;
➢ Reservation of Separate Amenities Act 49 of 1953;
➢ Prohibition of Mixed Marriages Act 55 of 1949;
➢ Bantu Education Act 47 of 1953;
➢ Suppression of Communism Act 44 of 1950 and Internal Security Act 74
of 1982.

• Apartheid law was characterised by:

• Political Autocracy – the apartheid State was run by a domineering
government with absolute political control.
• Land Dispossession – Black people were not allowed to own land and every
race group was forced to live in a specific area.
• Civil Liberty Deprivation – Rights to dignity, equality, life, freedom and
security, privacy, expression, movement.
• Opportunity Destruction – Legal strategies were enforced to prevent people
from obtaining an education that would equip them for a thriving
professional career.

2.6 PHASE FIVE: TRANSFORMATIVE CONSTITUTIONAL DEMOCRACY

 Kleyn & Viljoen 51 – 54.

• The Apartheid system caused a legitimacy crisis in SA.
• A legitimacy crisis occurs when the people in a country does not have faith
in the legal system and does not support the laws passed by parliament.
• Many political movements resisted Apartheid including those led by the
ANC and the PAC.

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• This ultimately led to Nelson Mandela being released in 1990 and

Apartheid being abolished and which paved the way for the establishment
of a democratic SA.
• Before an election could be held, the various political parties drafted a
Constitution, called the 1993 interim Constitution which included various
sections that addressed the injustices of the past.
• The 1993 interim Constitution was replaced by the “final” 1996
Constitution known as the Constitution of the Republic of South Africa,
1996 and was drafted by the Constitutional Assembly
• The Constitution is the supreme law and each and every law must be in line
with the Constitution.
• An example of the transformative impact of the Constitution on our law is
the abolishment of corporal punishment in schools. Can you think of any
other examples?

END

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