Legal Systems
Legal Systems of the World
The world's legal systems fall into two main traditions. South Africa belongs to both.
Two Traditions
- CIVIL LAW (Romano-Germanic) — based on codified Roman law; legislation is primary; judges apply codes. France, Germany, Netherlands.
- COMMON LAW — judge-made law through precedent (stare decisis); courts develop law case by case. England, USA, Australia.
Other Systems
- Religious legal systems (Islamic law/sharia, Jewish law/halakha, Hindu law)
- Customary legal systems (indigenous, community-based, often oral)
- Mixed systems — incorporate two or more traditions
South Africa is a MIXED legal system: Roman-Dutch private law (civil law tradition) + English procedure and common law method + constitutional supremacy + indigenous customary law. This mix is SA's unique legal identity.
Exam trap: SA is not simply a "common law" or "civil law" system. It is deliberately mixed. The courts apply Roman-Dutch private law principles while following the English adversarial procedure and precedent method.
Roman Law
The Ancient Foundation
SA private law is built on Roman law — especially Justinian's Corpus Juris Civilis (530 AD).
The Foundation Stone
Roman law developed over more than 1 000 years. Its most important compilation — the Corpus Juris Civilis — was ordered by Emperor Justinian I in the 6th century AD and became the foundation for the legal systems of most of continental Europe.
Key Components of the Corpus Juris Civilis
- INSTITUTIONES — an introductory textbook for students
- DIGESTA (Pandects) — compilation of classical Roman jurists' writings
- CODEX — compilation of imperial legislation
- NOVELLAE — new imperial laws issued after the Codex
SA still applies many Roman law concepts: the law of obligations (contract, delict), property law (ownership, servitudes), and family law all have Roman roots visible in SA court judgments today.
Roman-Dutch Law
The Scholars' Library
Roman-Dutch law = Roman law filtered through the Dutch legal tradition. SA received it via the Dutch East India Company.
The Scholars' Desks
- HUGO GROTIUS (De Groot) — "De Iure Belli ac Pacis" (1625); "Inleiding tot de Hollandsche Rechtsgeleerdheid" — the most important Roman-Dutch authority in SA
- JOHANNES VOET — "Commentarius ad Pandectas" — systematic commentary on the Digest; frequently cited in SA courts
- SIMON VAN LEEUWEN — "Roomsch Hollandsch Recht" — Roman-Dutch law text
How it came to SA
The Dutch East India Company (VOC) established a refreshment station at the Cape in 1652. The VOC applied Dutch law. When the British took the Cape (1806), they agreed to maintain existing private law. Roman-Dutch law thus remained the private law of SA.
Roman-Dutch law governs SA's private law: contract, delict, property, family law. When a rule is unclear, SA courts consult the Roman-Dutch authorities (Grotius, Voet) to determine what the common law provides.
English Influence
The Common Law Bridge
English law shaped SA's procedural law, company law, evidence, and the precedent system.
The Bridge's Planks
- PRECEDENT SYSTEM (stare decisis) — binding and persuasive case law; ratio and obiter
- ADVERSARIAL PROCEDURE — parties control the dispute; judge is an umpire
- COMPANY AND COMMERCIAL LAW — largely English origin
- EVIDENCE LAW — heavily English influenced
- NOT EQUITY — SA never received English equity as a separate system of law, and the constructive trust is NOT part of SA law. The SA trust developed on its own civilian-influenced footing
Constitutional Period
Under the Constitution, courts are also required to consider international law (s 39(1)(b)) and may consider foreign law. The common law continues to be developed by courts under s 39(2) of the Constitution.
English law did NOT replace Roman-Dutch private law. The rule remains: Roman-Dutch law governs SA private law unless a statute provides otherwise. English law primarily shaped procedure and the common law method.
Mixed System
The Mosaic Floor
SA is a hybrid — Roman-Dutch substance + English procedure + customary law + constitutional supremacy.
The Mosaic
- ROMAN-DUTCH: contract law, law of delict, property law, family law (private law substance)
- ENGLISH: procedure, precedent, commercial law, evidence
- CUSTOMARY: applies to matters of customary law, recognised by the Constitution
- CONSTITUTIONAL: supreme over everything; requires all law to be tested against the Bill of Rights
Because SA is a mixed system, identifying the applicable law requires asking: is this a matter of private law (Roman-Dutch/statute), public law (Constitution/statute), customary law, or a mix? The source of the rule determines which tradition's authorities are relevant.
Exam trap: SA courts do not apply English common law as such. They apply Roman-Dutch law as modified by statute and the Constitution. English precedents are persuasive but not binding in the same way as English courts' decisions would be in England.
Nature
The Community Circle
Customary law is community-based, largely oral, and developed through long usage and acceptance.
Around the Fire
Customary law is the body of rules and practices that have developed within a particular community over generations and are recognised by that community as binding. It reflects collective values, social structures, and ways of life.
Key Characteristics
- ORAL — traditionally not written; passed down through generations
- COMMUNITY-BASED — derives authority from community acceptance, not state promulgation
- DYNAMIC — evolves as communities change (unlike "frozen" colonial records)
- DIVERSE — varies between different ethnic and language groups
The Constitution (s 211) recognises customary law as part of the SA legal system. Courts must apply customary law where it is applicable, subject to the Constitution and any legislation.
Constitutional Recognition
The Bridge to the Constitution
Customary law has full constitutional recognition — but must comply with the Bill of Rights.
The Two Constitutional Provisions
- S 211 — customary law is recognised; courts must apply it subject to the Constitution and legislation that specifically deals with customary law
- S 39(2) — when developing common law or customary law, courts must promote the spirit, purport, and objects of the Bill of Rights
- S 39(3) — the Bill of Rights does not deny the existence of other rights or freedoms recognised or conferred by common law, customary law or legislation, TO THE EXTENT THAT THEY ARE CONSISTENT WITH THE BILL (the qualifier is the point of the subsection)
The Test
Customary law rules that are inconsistent with the Constitution (especially the Bill of Rights) can be declared invalid. Bhe v Khayelitsha Magistrate struck down male primogeniture in succession as a violation of gender equality.
Key Case
Bhe v Magistrate, Khayelitsha2005 (1) SA 580 (CC)The customary rule of male primogeniture in intestate succession is unconstitutional — it discriminates on the grounds of gender, violating s 9 (equality).
Facts. Mrs Bhe's partner died intestate. Under the customary rule of male primogeniture (inheritance only through the male line), his estate would pass to a male relative rather than to his daughters. Mrs Bhe challenged the rule as discriminatory against women and children.
Legal question. Is the customary rule of male primogeniture in intestate succession consistent with the constitutional rights to equality and dignity?
Judgment. The Constitutional Court declared the rule of male primogeniture unconstitutional insofar as it applied to intestate succession. The Intestate Succession Act was extended to apply to all persons. The Court developed the customary law in accordance with the Constitution.
Significance. A landmark case on the relationship between customary law and the Constitution. Confirms that customary law must comply with the Bill of Rights and can be developed by courts under s 39(2). Gender discrimination in customary succession cannot be protected by appeals to cultural tradition. The Constitution takes precedence.
Exam tip. Use for: customary law (s 211), development of customary law (s 39(2)), equality (s 9), gender discrimination, the tension between tradition and constitutional rights. Remember: the Constitution requires that customary law be tested against the Bill of Rights, not sheltered from it.
Living Customary Law
Two Trees: Living vs Official
"Living" customary law is what communities actually practise — not what old statutes and cases recorded.
The Two Trees
- OFFICIAL CUSTOMARY LAW — what was recorded and codified during the colonial period; often a distorted or frozen version of customary practices
- LIVING CUSTOMARY LAW — the actual, evolving practices of communities as they exist today; the genuine expression of customary law
Why the Distinction Matters
Courts must ascertain what customary law actually provides — not simply apply colonial codifications. If a community has evolved its practices (e.g. to appoint a female chief), this evolution represents the living customary law.
Key Case
Shilubana v Nwamitwa2009 (2) SA 66 (CC)Living customary law (the actual practice of communities) prevails over official/frozen customary law. Courts must recognise community-initiated development of customary law consistent with the Constitution.
Facts. The Valoyi traditional community traditionally excluded women from becoming chief (hosi). The Valoyi royal family, recognising the Constitution's equality requirement, appointed Ms Shilubana (a woman) as hosi. The male claimant Nwamitwa challenged this as contrary to customary law.
Legal question. Can a traditional community develop its own customary law — in this case by appointing a woman as hosi — in a manner consistent with the Constitution, and should courts recognise this development?
Judgment. The Constitutional Court upheld Ms Shilubana's appointment as hosi. The community had validly developed its own customary law in a constitutionally compliant direction. Courts should defer to such community-initiated development rather than freeze customary law at a historical snapshot.
Significance. The leading case on "living customary law" — customary law as actually practised, not frozen in colonial-era records. Affirms the dynamic and evolving nature of customary law. Communities themselves can develop customary law; courts should recognise this. Pair with Bhe as the two pillars of the customary law/Constitution relationship.
Exam tip. Use for: living customary law, s 211 (customary law), s 39(2) (development of customary law), traditional leadership, gender equality in customary contexts. The key distinction: living customary law ≠ official/frozen customary law. Courts should look to actual community practice, not old records.
The correct approach: courts must ascertain the living customary law, not simply apply a colonial-era codification. The community's actual practice — especially where it is developing in a constitutionally compliant direction — is authoritative.