With the failure of indigenous peoples, 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 laws prior to the colonization of South Africa. [ref. needed] However, the current South African legal system has recognised the importance of these courts and they have been integrated into the overall legal system, where they can function as district/municipal courts. [ref. needed] Until 1795, the Seven United Provinces of Holland were an independent sovereign state. Together with the other territories of the Netherlands, it was organized into a fairly free political entity known as the Republiek der 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 their lives so well that the great Dutch jurist Hugo de Groot (Grotius) in the early 17th century was able to call this fusion (or combination) of Dutch and Roman principles a “new” legal system with its own content. Thus began Romano-Dutch law. It would later form the basis of today`s common law in South Africa in a form that had been extended by the so-called placaats, the legislation of the time.
[12] In addition, the legislation also created a number of specialized courts to deal with specialized areas of public importance and avoid delays in the main infrastructure of judicial administration. These courts exist alongside the judicial hierarchy; 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 courts, there are, to name but a few, the Court of Appeal for Competition, the Electoral Tribunal, the Land Claims Tribunal and the Labour and Labour Court of Appeal. [10] Since the unification of the Cape Colony, Natal, Transvaal and the Orange River Colony in 1910 as a dominion within the British Empire, called the Union of South Africa, and prior to the creation of the Republic of South Africa in 1961, much of English law has been incorporated or formed the basis of South African law. The jury system was abolished in 1969 and cases are decided by a single judge, sometimes assisted by two assessors. English law and Roman-Dutch law, which prevailed before that time, constitute the foundation to which South Africa still looks today in its search for clarity in its law and where there is a vacuum in its law. From 6 April 1652, the Dutch landed at the Cape of Good Hope, the Romano-Dutch legal system and its legislation and laws increasingly prevailed, until 31 May 1910, the Union of South Africa was formed as a dominion of the British Empire. Even then, and to this day, wherever English law does not exist, Roman-Dutch law forms the foundation to which South Africa looks in its quest for clarity in its law. [ref. needed] South Africa is a hybrid jurisdiction that historically mixes Romano-Dutch civil law and English common law.
Dutch settlers occupied South Africa in the mid-seventeenth century, and Roman law, as interpreted by Dutch writers, was the main source of law. The British defeated the Dutch settlers in the early nineteenth century, and although they did not initially replace Roman-Dutch law, English law dominated the process in some areas. For many years, the legal system has mixed the two systems, with customary law also available to indigenous peoples to regulate certain issues such as marriage. However, since the adoption of the Constitution in 1996, the judiciary has ruled that South Africa is a State governed by the rule of law and that the Constitution is the supreme law of the land and that any law that precludes it is invalid. This led to the decline of the Romano-Dutch system. In South Africa, the common law is a precedent. 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, both for constitutional matters and for all other matters. This position is legally confirmed and enshrined in the Constitution by section 167 (3) (b) (ii) of the South African Constitution, which provides that the Constitutional Court “may decide any other matter if the Constitutional Court allows the appeal on the ground that the question raises a contentious question of law of general public interest which should be considered by that Court”.
[8] [9] The Constitutional Court has the final authority to decide whether a question is constitutional or not; s167(3)(c)[8] of the Constitution of South Africa. 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 law 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 relationship, with English influence most clearly expressed in procedural aspects of the legal system and jurisprudential methods, and Romano-Dutch influence most clearly expressed in its substantive private law. [2] As a general rule, South Africa follows English law in matters of criminal 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. A Bill of Rights is incorporated into the 1996 Constitution, and the Constitution provides for religious freedom in several sections. The Constitution is not the only source of protection for religious freedom. Although the Constitution does not explicitly guarantee the right to proselytize or discriminate on religious grounds in hiring practices, these rights may be protected by international treaties or other human rights laws.
South Africa is a signatory to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human Rights (ACHR). Articles 231 to 33 of the Constitution provide for the incorporation of international legal standards into South African law. The South African judicial system is organized according to a clear hierarchy by Chapter 8 of the Constitution of the Republic of South Africa, in particular Article 166, and consists (from lowest to highest legal authority): This introductory chapter first sets out the purpose of the book, which is to provide a doctrinal history of South African law. He then discusses the Romano-Dutch heritage of South African private law, the three graces of South African law, legal reporting in South Africa during the colonial period (1857-1910) and from 1910, and the growth of legal literature in South Africa. Religious freedom is generally protected in South Africa, although there are few cases of structural discrimination. It is a democracy with largely peaceful transitions of power; However, corruption diminishes a certain respect for the law. While the government has created agencies to fight corruption, law enforcement is weak due to inadequate structures and staffing. Similarly, it is difficult to enforce religious freedom laws and enact relevant new laws. `Introduction: South African Law as a Mixed Legal System` Our books are available by subscription or purchase for libraries and institutions.