Learning Unit 2

History of South African Law

Lecture 1
After you have worked through this learning unit,
you should be able to:
1. Explain the relevance of knowledge of legal history to the SA law student;
2. Explain what is meant by the reception process of Roman law in Western
Europe;
3. Critically evaluate the role of the Glossators in the re-discovery and study
of the Roman-law heritage in Europe;
4. Explain what is meant by the concept 'Roman-Dutch law';
5. Evaluate the relative importance of the English-law influence in the
development of the SA legal system;
6. Distinguish between legal positivists and non-positivists;
7. Explain what is meant by the synthesis comprising the South African law;
8. Briefly describe the development of law during the various historical
phases of the Roman Empire; and
9. Briefly describe the general characteristics of indigenous law.
An understanding of the history of South African
law is important to anybody considering a career
in the South African law
Various systems and sources of law –
Roman-Dutch,
English,
Canon
Indigenous
that contributed to the development of the South
African law and legal system as we know it today.
 SA law is sometimes referred to as Roman-Dutch Law which is a
mixture of 2 legal systems : Roman Law and Dutch Law
 Why did they merge?
 What does it have to do with SA Law?
 SA was under British rule for a long time
 What role did English Law play in SA?
 African people in SA live according to their own tribal customs and
traditions – called indigenous law
 Customs based on religion such as Islam – customary law
 What role does this play in SA legal system?
 1994 – the first democratic constitutional dispensation was established
Importance of Legal History
Why is it important to know where SA law comes from and
how it developed?
1.Legal history explains the present character of law
 The present is a product of the past
 The past (history) explains why the present situation is as it is.
This is the same with Law
 A knowledge and understanding of legal history gives a better
understanding of modern law

2.Knowledge of legal history facilitates necessary change in the

law
 Every society lives according to a specific legal system
 Society's values and needs change with time and this creates a
need for the legal system to change as well. Law is not static
 SA experiencing drastic changes
 Fosters critical view of law to assess need for change – critical
approach leads to realisation that does not need to be as it is
3. Our legal history is living law
 Historical component of our law is called South Africa
common law
 Is important as still applies today
 SA has an uncodified legal system - not written down in its
entirety in a single code
 Lawyers have many sources of law to refer to and in some
cases must find answers in legal history

4. Our legal history links us to other countries

 Have a common legal history with many countries eg Britain
 Developed from same roots or share common legal history
 “Legal comparison” = when we turn to other legal systems to
solve problems
 See figure 2.1 on page 21 of textbook
Roman Law
The principles form the basis of our common law
Developed over 1300 years from 753BC to AD565
Romans lived under number of different political
orders that influenced their law:
1. Period of the Kings
2. Republic
3. Period of the Emperors
 1. Period of the Kings
 Romans founded Rome in 753 BC
 7 kings reigned over Romans who were primitive farmers
living according to unwritten customs passed down from
generation to generation
 Religious rules formed part of their law

2.Republic
 Last king was despotic (autocratic & dictatorial) so he was
driven from Rome in 510BC
 A new Constitutional Republic was installed consisting of 3
components:
1. Two executive officials (magistrates) known as consuls who
replaced the king
2. Popular assembly (assembly of the people) that passed laws
3. The Senate, an advisory body. There resolutions were in theory only
advisory but they were followed as if they were law
 In 450BC Roman law was codified for first time in Law of
Twelve Tables – passed by popular assembly as legislation
 It stipulated for e.g. debtor who could not pay his debts could be
killed and all the creditors could get a body part
 Law and religion were separated
 Roman society grew in this period – they began to conquer
most of Italy and Europe – this led to creation of Roman
Empire
 Society became more sophisticated and trade with other
nations meant law had to develop - rules for contract of sale
were created in this time and still apply in SA today
 Magistrates were appointed called praetores who were
responsible for developing law
 Development of law gave rise to people known as jurists
who studied the law in a scientific manner
3. Period of the Emperors

 In 27BC the Republic made way for new order where Rome governed by Emperors
 All power now centred with Emperor – assumed power of popular assembly and began
to legislate. The popular assembly, senate and magistrate lost their powers.
 During the first two centuries AD the Roman civilisation reached their highest state of
development and so did the law largely because of the efforts of the jurists
 Treated law as a sophisticated legal science
 Roman law of this period was classical Roman law as after this era started to decline

 Rome then split into two:

 Western Roman Empire with Rome as capital
 Overrun by Germanic tribes and Germanic people had own law

 Classical Roman law became watered down by Germanic law

 Referred to as “The fall of the Roman empire”

 Eastern Roman Empire with Byzantium as its capital

 Roman law survived more successfully here

 However no up to date systematic statement of the law

 The Law was to be found in various sources:
 Customary law

 Legislation of the popular assembly (Law of Twelve Tables)

 Enactments of the Senate

 Edicts of the Republican Magistrates

 Writings of the Jurists

 Imperial legislation

 Justinian (Emperor) wanted to bring order and decided to codify Roman Law –
the codification is known as Corpus Iuris Civilis
 It is an enormous work that consists of 4 parts:

1. Institutiones – textbook for law students explains law clearly and simply

2. Digesta – codification of works of Roman Jurists – most NB and largest part

and is a collection of opinions of jurists
3. Codex – collection of imperial legislation

4. Novellae – new legislation passed by Justinian

 Eastern Roman Empire eventually conquered by Turks and Corpus Iuris never

implemented as Justinian intended. So how did RD law emerge and why is SA

still influenced by Roman Law ?
 “Reception” of Roman Law
 This was the way in which Roman Law contained in Corpus Iuris Civilis
was received and merged with Germanic law in Western Europe in 12 th
Century
 After Germanic tribes took over Western Roman Empire, it gradually
disintegrated and Western Europe entered Dark Middle Ages
 Continued hostile attacks
 Population fragmented into small societies as a result of feudalism –
landowners gave their land in tenure to vassals who lived on the land
and worked on it and in return had certain duties including protecting
the landlord through military support
 Strong organised Roman Catholic Church, headed by the Pope
 Feudal societies lived according to Germanic law with mainly unwritten
customs and traditions – used duels and retaliation, eg. Accused persons
had to walk barefoot over red hot plough shares etc
 Primitive practices
 Roman law not studied or taught until beginning of 12 th Century with
establishment of school of glossators
Glossators
The 12th century was marked by progress in northern Italy
which gave rise to an increase in trade
Law school of the glossators was established and
developed into a university which still exists today
Professors in Bologna began to study Corpus Iuris Civilis
Wrote between lines of texts to try and explain them –
where texts were contradictory they explained them
Used the law in the Corpus as building blocks to create
new law/doctrines for their existing needs
Bologna university was international and so taught many
students worldwide
Roman law started to be applied when local law did not
provide solutions
Canon law
Roman Catholic Church had its own legal system called
Canon law and codified
Called Corpus Iuris Canonici
Largely based on Roman law
Canon law was taught at most medieval universities
Canonists extended and developed many Roman law
doctrines
Examples of modern legal concepts which originated in
canon law are:
 Doctrine of subjective rights
 Notion of juristic person
 Law of criminal and civil procedure
 Principle that contract concluded by agreement with no
formalities
Commentators
 These were lawyers responsible for reception of canon law in
secular sphere
 Also responsible for true reception of Roman law in Western
Europe
 Were the successors of the glossators
 Started the first scientific study of the Corpus Iuris Civilis
 They applied themselves to the development of a modern day
legal system that was in accordance with the needs of everyday
legal practice
 Used the law in the Corpus but did not confine themselves to it
– also looked at other sources of law like canon law, Germanic
law, local laws and statute of different feudal cities
 Roman law now served as unifying factor and a Western
European common law (ius commune) came into being
 Roman-Dutch Law
 Legal systems of Western Europe began to develop during 16th and 17th centuries
 Influence of Roman Law common in all
 In the Netherlands, local Germanic law was merged with Roman law which led to
“Roman-Dutch” law
 Roman-Dutch law was found in
 Legislation (placaaten)
 Decisions of Dutch courts
 Writings and treatises of Roman – Dutch jurists
 Best known Roman-Dutch jurists
 Hugo de Groot
 Johannes Voet
 Simon van Leeuwen
 Johannes van der Linden
Roman-Dutch law eventually codified in 1838 and became primary source of Dutch
law – Roman-Dutch jurists no longer authority in Netherlands, unlike in SA
South African Law
1. Roman-Dutch Law
 Much trade between Netherlands and East and Dutch East India Co
established – used Cape of Good Hope
 1652 – Jan Van Riebeck – established a Dutch settlement and used Roman-
Dutch law
2. English Influence
 1806 Dutch rule at Cape came to end, British occupation commenced
 Britain did not abolish Roman-Dutch law
 Great Trek started in 1836-influence of Roman-Dutch law spread
 Voortrekker colonies also annexed by Britain and in 1910 were four British
colonies – each with own government
 1910 four colonies became Union of SA – 4 provinces – one central
government and one Appellate Division of the Supreme Court for the whole
country
 All courts were bound by decisions of Appellate division (according to
precedent) so was uniform application of law in whole country
 Roman-Dutch law was not abolished but was strong English influence in
our law
 Fundamental differences between English and Roman-Dutch law.
English law exerted influence with legislation and precedent
 Legislation
 Criminal procedure, civil procedure, evidence and jury system received
through legislation
 Organisation of the legal profession into the Bar (advocates) and side
bar (attorneys)
 Some legislation e.g. Insolvency Act based on the British equivalent
 Early Constitutions modelled on English constitutional law
 Precedent
 Courts applied English doctrines in their decisions – especially law of
contract and delict
 Judges were educated at English universities
 They found application of Roman-Dutch law problematic –written in
Dutch or Latin!
Short history of Rome video
YouTube URL:
http://www.youtube.com/watch?v=BadVeuJ6h1E