Roman-Dutch Law & South African Legal System

From Roman-Dutch Law to Contemporary SA Law

• Holland was the cultural, political, and economic center of the Netherlands.
• The Netherlands followed Roman Law, like the rest of Western Europe.
• Roman Law merged with Dutch Law in Holland, and this became Roman-Dutch law.
• The end of the Republic of the Seven United Netherlands in 1795 signaled the end of Roman-Dutch law in Europe, but the law continued in former Dutch colonies like Cape Colony.

Jan van Riebeeck

• Jan van Riebeeck is known as the founder and first commander of Cape Town, South Africa.
• He was an Administrator of the Dutch East India Company (DEIC), also known as the Vereenigde Oost-Indische Compagnie (the VOC).
• Roman-Dutch law was transplanted to the Cape Colony.

Sources of Roman-Dutch Law

• Dutch writers of the 16th and 17th centuries were the most important source of Roman-Dutch law.
• They combined Western European common law with Dutch customary law.
• South African legal professionals and scholars still refer to the writings.

British Invasions of the Cape

• France defeated the Netherlands in 1795.
• Britain occupied the Cape in 1795 and again in 1806, fearing Napoleon's armies would threaten its trading route.
• The first British invasion was short, during which they continued to apply Roman-Dutch law.
• The British left the Cape when peace was brokered with France but returned in 1806.
• After the second invasion in 1806, Britain kept Roman-Dutch law as the basis of the Cape Colony's common law.
• The British colonial government influenced the legal system using legislation and precedent (court decisions).
• English Law of criminal and civil procedure were introduced through legislation.
• The use of adversarial procedure was introduced, where each side gathers evidence and presents their own case as opposed to an inquisitorial system where the judge leads discovery and presentation of evidence.
• The British introduced judicial precedent or stare decisis.
• Courts applied English doctrines frequently, because most judges and lawyers were trained in English law and found Roman-Dutch law complicated.
• The Cape colony court system began to mimic British courts through magistrates courts and the Supreme Court where appeals were able to be made.
• Some Dutch residents of the Cape Colony were unhappy under British rule.
• Those who were unhappy left the Cape Colony during the Great Trek of 1836.
• They established the independent territories of Natal, the Orange Free State and Transvaal.
• Each territory, including the Cape, had its own colonial parliament.
• Mass migration further established Roman-Dutch law as the common law in South Africa.
• The independence of the new territories was short lived: they were annexed by the British and united under a single British colony.

The Union of South Africa (1910)

• The South Africa Act, approved by the four colonial parliaments, was passed into law by the British Parliament in September 1909.
• The new union was inaugurated, and South Africa officially gained independence on May 31, 1910, with Louis Botha as the first prime minister.
• A new country was formed with four provinces: Cape, Natal, Orange Free State, and Transvaal.
• There was one central government and one highest court, the appellate division of the Supreme Court, for the whole country.
• The previously independent territories combined and applied a single unified legal system.
• The English principle of judicial precedent bound all courts to the Supreme Court's decisions.
• This allowed for uniform application of law throughout the country.
• Roman-Dutch law was decided to be the common law of the Union.

Apartheid

• Racial segregation became official policy in the South African Union of 1910, laying the groundwork for apartheid and was to be essentially a white union.
• The African National Congress (ANC) was founded in 1912 in response to the inevitable Black opposition and to protest the exclusion of black people from power.
• The 1913 Natives Land Act restricted black people from buying or living on land except as employees of a white person and opened the door for white ownership of 87% of land, and black people had to fight to acquire the rest of the land.
• In 1948, after the National Party elections win, apartheid was a social project of government backed by laws.
• Apartheid lasted from 1948 until the early 1990s.
• Apartheid is a system of institutionalized racial segregation characterized by the separation of people by race.
• The international community imposed sanctions against South Africa in an attempt to force them to end apartheid.
• The ANC and other liberation movements employed passive resistance (protests, strikes, and civil disobedience) to oppose apartheid.
• The apartheid government banned liberation movements in attempt to restore order.
• The apartheid rules were later repealed during the 20th century, and now discrimination no longer happens on the basis of race.

The Constitutional Dispensation

• Roman-Dutch law remains the foundation of modern South African common law today.
• South African law has been a mixed/hybrid/plural legal system since 1910.
• Important changes took place after 1990.
• Multi-party negotiations began to pave the way to a fully democratic government.
• These negotiations resulted in South Africa's 1993 Interim Constitution, which included the Bill of Rights, and created the Constitutional Court, making the Appellate Division of the Supreme Court no longer the highest court.
• Customary law/indigenous law which had been suppressed for years has been restored to a certain extent and developed alongside common law because a process of development is in force.
• The Constitution requires courts to develop the national law according to the values and principles of the Bill of Rights.