South African Law

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South Africa has a 'hybrid' or 'mixed' legal system, formed by interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin). These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law.[1] As a general rule, South Africa follows English law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law, law of delict (tort), law of persons, law of things, family law, etc. With the commencement in 1994 of the interim Constitution, and in 1997 its replacement, the final Constitution, another strand has been added to this weave.

Besides South Africa itself, South African law, especially its civil law and common law elements, also forms the basis of the laws of Botswana, Lesotho, Namibia, Swaziland and Zimbabwe, which were introduced during the process of colonisation. Basutoland (Lesotho) received the law of the Cape Colony in 1884, and Bechuanaland (Botswana) and Southern Rhodesia (Zimbabwe) received it in 1891.[2] Swaziland received the law of the Transvaal Colony in 1904,[2] and South-West Africa (Namibia) received the law of the Cape Province in 1920, after its conquest by South Africa.[3]

Court system in South Africa

The South African court system is organised hierarchically, and consists of (from lowest to highest legal authority): Magistrates' Courts; High Courts; a Supreme Court of Appeal, the highest authority in non-Constitutional matters; and a Constitutional Court, which is the highest authority in constitutional matters.[4] The Constitutional Court has final authority to decide whether an issue is Constitutional or not. Certain specialised courts have also been provided for by the legislature, in order to avoid backlog in the main legal administration infrastructure. Among these is the Small Claims Court, which resolves disputes involving small monetary sums. In addition, African indigenous courts, which deal exclusively with indigenous law, also exist.

History of South African law

31 May 1910 until 1961

From the "union" of the Cape Colony, Natal, Transvaal and Orange Free State in 1910 as a dominion within the British Empire called the Union of South Africa, and prior to the formation of the same territory as the Republic of South Africa in 1961, much of English law was incorporated into or formed the basis of South African law. However the jury system was not adopted,and unlike most countries that adopted British common-law, cases are decided by a judge alone. English law and the Roman-Dutch law which held sway prior to this period forms the bedrock to which South Africa even now turns in its search for clarity in its law, and where there is a vacuum in its law.

6 April 1652 until 1910

From the 6 April 1652 landing of the Dutch in the Cape of Good Hope, the Roman-Dutch legal system and its legislation and laws took increasing hold, holding sway until the Union of South Africa as a dominion of the British Empire was formed on 31 May 1910. Even after this and to date, wherever British law does not stand, Roman-Dutch law forms the bedrock to which South Africa turns in its search for clarity in its law.

Prior to 6 April 1652

With the failure of the successive Dutch, British and Apartheid governments to record the laws of pre-colonial southern Africa, there is a dearth of information about laws prior to the colonisation of South Africa. However, the current South African legal system has recognised the significance of these, and they have been incorporated into the overall legal system, functioning as district/local courts where appropriate.

Specific fields of law

  • Law of agency
  • Constitutional law
  • Criminal law
  • Contract law
  • Insolvency law
  • Law of delict
  • Property law
  • Company law
  • Law of partnerships and trusts
  • Labour law
  • Copyright law
  • Patent law
  • Family law
  • Customary law
  • Law of persons
  • Law of succession
  • Civil procedure
  • Criminal procedure
  • Legal interpretation
  • Environmental law
  • Administrative law

See also

Articles on specific South African legislation

References

  • Zimmermann, Reinhard and Visser, Daniel P. (1996) Southern Cross: Civil Law and Common Law in South Africa Clarendon Press, Oxford, ISBN 0-19-826087-3 ;
  • Joubert, W. A. et al. (2004) The Law of South Africa LexisNexis Butterworths, Durban, South Africa, ISBN 0-409-00448-0 ;

External links

  • Acts Online – a free South African Legislation web site.
  • South African Government documents online – Free collection of South African legislation
  • Law Access – a free South African Legislation web site.
  • LegalB – a free South African Legislation website.
  • Polity – Free collection of South African .pdf file format
  • SabinetLaw – A free Sabinet Online guide to the law-making process in South African Parliament including legislative profiles.
  • Legalish.co.za – View and download South African Acts for free in PDF format.

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