CLA1501 Study Notes
1. The South African Legal System
Law is a social science.
South African Law is not codified: recorded in one comprehensive piece of legislation.
Origin:
Indigenous legal systems applied at the southernmost tip of Africa before 1652.
Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch law as a legal system to the Cape.
1.1 A SHORT HISTORY OF THE LAW
Unlike most European continental legal systems, SA law is not codified:
It is drawn from various authoritative sources
Such as statutes (legislation) and decided cases
Occasionally also Roman and Roman-Dutch law.
Roman Law
735BC to AD658
The Law of the Twelve Tables of 449BC were the cornerstone of the future development of Roman Law
Attempts to codify the law led to the Corpius Iuris Civilis (body or civil law) which is still the primary authoritative source or Roman Law.
Roman-Dutch Law
Roman Law was revised in the Netherlands during the 15th and 16th centuries and became mixed with the existing Dutch customary law.
Some great Roman-Dutch Jurists:
Hugo de Groot “Father of Roman-Dutch Law”
Johannes Voet
Dionysius Godefridus van der Keesel
Johannes van der Linden
English Law
After 1814, English Law began to seep into the existing Roman-Dutch system:
A jury was introduced
New legislation e.g. criminal often drew on English law
A number of statutes in existence today are squarely based on English legislation e.g. Bills of Exchange Act.
1.2 SOURCES OF LAW IN SOUTH AFRICA
Some are authoritative: courts are bound by authoritative sources
Others have merely persuasive authority: serves to convince a court to apply or interpret a rule in a particular way.
Corpus Iuris Civilis: codification of Roman law that is a primary authoritative source on which South African courts draw when reverting to Roman Law to solve a legal problem.
Statute law or legislation
The most important source of law
Can be explained as the making of law by a competent authority
To be found in: Statues, Proclamations,
Law is a social science.
South African Law is not codified: recorded in one comprehensive piece of legislation.
Origin:
Indigenous legal systems applied at the southernmost tip of Africa before 1652.
Jan van Riebeeck arrives in Cape Town in 1652 and the adoption of Roman-Dutch law as a legal system to the Cape.
1.1 A SHORT HISTORY OF THE LAW
Unlike most European continental legal systems, SA law is not codified:
It is drawn from various authoritative sources
Such as statutes (legislation) and decided cases
Occasionally also Roman and Roman-Dutch law.
Roman Law
735BC to AD658
The Law of the Twelve Tables of 449BC were the cornerstone of the future development of Roman Law
Attempts to codify the law led to the Corpius Iuris Civilis (body or civil law) which is still the primary authoritative source or Roman Law.
Roman-Dutch Law
Roman Law was revised in the Netherlands during the 15th and 16th centuries and became mixed with the existing Dutch customary law.
Some great Roman-Dutch Jurists:
Hugo de Groot “Father of Roman-Dutch Law”
Johannes Voet
Dionysius Godefridus van der Keesel
Johannes van der Linden
English Law
After 1814, English Law began to seep into the existing Roman-Dutch system:
A jury was introduced
New legislation e.g. criminal often drew on English law
A number of statutes in existence today are squarely based on English legislation e.g. Bills of Exchange Act.
1.2 SOURCES OF LAW IN SOUTH AFRICA
Some are authoritative: courts are bound by authoritative sources
Others have merely persuasive authority: serves to convince a court to apply or interpret a rule in a particular way.
Corpus Iuris Civilis: codification of Roman law that is a primary authoritative source on which South African courts draw when reverting to Roman Law to solve a legal problem.
Statute law or legislation
The most important source of law
Can be explained as the making of law by a competent authority
To be found in: Statues, Proclamations,