South Africa has a 'hybrid' or 'mixed' legal system, [1] formed by the 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. [2] 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, Eswatini, Lesotho, Namibia, 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. [3] Swaziland (Eswatini) received the law of the Transvaal Colony in 1904, [3] and South-West Africa (Namibia) received the law of the Cape Province in 1920, after its conquest by South Africa. [4]
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The South African court system is organized in a clear hierarchy by Chapter 8 of the Constitution of the Republic of South Africa, specifically s166, and consists of (from lowest to highest legal authority):
Firstly, a number of Magistrates' Courts (both smaller Regional and larger District). [5]
Secondly, a single High Court with multiple divisions across the country, both regional (having jurisdiction over the entire province) and smaller local division (having a geographically smaller jurisdiction, usually over a heavily populated regions) introduced by the Superior Courts Act, 2013. This is clearly seen in Gauteng which has both the High Court of South Africa Gauteng Division, Pretoria which sits in Pretoria, and the High Court of South Africa Gauteng Local Division, Johannesburg which sits in Johannesburg. [6] All High Court names have been clarified by the Chief Justice and can be read on page 14 of the South African Government Gazette No. 37390, 28 February 2014. [6]
Thirdly, the Supreme Court of Appeal (SCA), a purely appellate court (court of second instance). While previously both the SCA and Constitutional Court held joint apex jurisdiction/position; the Sixth Amendment of the Constitution of South Africa, altered the hierarchy so that the Constitutional Court sitting in Johannesburg is the apex court, with the SCA below it, and the High Court below the SCA. [7]
And finally, the Constitutional Court, which is the highest authority in constitutional matters, and since the Sixth Amendment of the Constitution of South Africa, the highest court in the land for both constitutional matters and all other matters. This position is legally confirmed and constitutionally entrenched by Section 167(3)(b)(ii) of the Constitution of South Africa which states that the Constitutional Court may decide "any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court". [8] [9] The Constitutional Court has final authority to decide whether an issue is constitutional or not; s167(3)(c) [8] of the Constitution of South Africa.
A number of specialized courts have also been created by legislation to deal with specialized areas of law important to the public as well as to avoid a backlog in the main legal administration infrastructure. These courts exist alongside the court hierarchy; their decisions are thus subject to the same process of appeal and review through the normal courts, starting at a specific level depending on the specialized court in question. Within these specialized courts, there exist, to name a few, the Competition Appeal Court, the Electoral Court, the Land Claims Court, and the Labour and Labour Appeal Court. [10]
African indigenous courts, which deal exclusively with the indigenous law, also exist. A draft Traditional Courts Bill aimed at introducing a Traditional Court below, or on the same level as the Magistrates Courts has been drafted, but awaits parliamentary introduction, reading and debate. [11]
Until 1795, the United Provinces of the Netherlands was a sovereign independent state. Together with the other territories of the Netherlands, it was organised into a fairly free commonwealth informally known as the Dutch Republic. [12] It was originally a rural territory, but the rapid speed of development during the 15th century changed it into a trading centre. Germanic custom, feudal law, and the law merchant were no longer sufficient to settle the disputes which arose in everyday trade, so the Dutch turned to the more advanced ius commune . Initially, it was applied in subsidium to fill in gaps in existing customary law on a case-by-case basis. Then, in the 15th and 16th centuries, it was received in complexu (as a system) to such an extent that at the beginning of the 17th century the great Dutch lawyer Huig de Groot (Grotius) could describe this fusion (or joining together) of Dutch and Roman principles as a "new" mixed legal system with its own content. This was how Roman-Dutch law began, led first and foremost by the doctrinal writers of the Hollandse elegante school. It was later to form the basis of the present common law in South Africa and Sri Lanka in a form that had been expanded by what were called the placaaten which was the legislation of that period. [12]
With the failure of the indigenous inhabitants as well as the successive Dutch and British colonial 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.[ citation needed ] 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.[ citation needed ]
From 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,[ citation needed ] 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 English law does not stand, Roman-Dutch law forms the bedrock to which South Africa turns in its search for clarity in its law.[ citation needed ]
From the union of the Cape Colony, Natal, Transvaal and Orange River Colony in 1910 as a dominion within the British Empire called the Union of South Africa, and prior to the formation of the Republic of South Africa in 1961, much of English law was incorporated into or formed the basis of South African law. The jury system was abolished in 1969, and cases are decided by a judge alone, sometimes assisted by two assessors. English law and the Roman-Dutch law which held sway prior to this period form 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.
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Government. The current constitution, the country's fifth, was drawn up by the Parliament elected in 1994 in the South African general election, 1994. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The first constitution was enacted by the South Africa Act 1909, the longest-lasting to date. Since 1961, the constitutions have promulgated a republican form of government.
Same-sex marriage has been legal in South Africa since the Civil Union Act, 2006 came into force on 30 November 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later. South Africa was the fifth country in the world and the first in Africa to legalise same-sex marriage.
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others, [2005] ZACC 19, is a landmark decision of the Constitutional Court of South Africa in which the court ruled unanimously that same-sex couples have a constitutional right to marry. The judgment, authored by Justice Albie Sachs and delivered on 1 December 2005, gave Parliament one year to pass the necessary legislation. As a result, the Civil Union Act came into force on 30 November 2006, making South Africa the fifth country in the world to recognise same-sex marriage.
The Netherlands uses civil law. The role of case law is small in theory, although in practice it is impossible to understand the law in many fields without also taking into account the relevant case law. The Dutch system of law is based on the French Civil Code with influences from Roman Law and traditional Dutch customary law. The new civil law books were heavily influenced by the German Bürgerliches Gesetzbuch.
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
Roman-Dutch law is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principles of the Roman-Dutch system are still applied actively and passively by the courts in countries that were part of the Dutch colonial empire, or countries which are influenced by former Dutch colonies: Guyana, South Africa, Sri Lanka, Indonesia, Suriname, and the formerly Indonesian-occupied East Timor. It also heavily influenced Scots law. It also had some minor impact on the laws of the American state of New York, especially in introducing the office of Prosecutor (schout-fiscaal).
Africa's fifty-six sovereign states range widely in their history and structure, and their laws are variously defined by customary law, religious law, common law, Western civil law, other legal traditions, and combinations thereof.
The legal system of Ukraine is based on the framework of civil law, and belongs to the Romano-Germanic legal tradition. The main source of legal information is codified law. Customary law and case law are not as common, though case law is often used in support of the written law, as in many other legal systems. Historically, the Ukrainian legal system is primarily influenced by the French civil code, Roman Law, and traditional Ukrainian customary law. The new civil law books were heavily influenced by the German Bürgerliches Gesetzbuch.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
The courts of South Africa are the civil and criminal courts responsible for the administration of justice in South Africa. They apply the law of South Africa and are established under the Constitution of South Africa or under Acts of the Parliament of South Africa.
Johann van der Westhuizen (born 26 May 1952 in Windhoek, South West Africa is a former judge of the Constitutional Court of South Africa. Before his judicial appointment, he was a professor at the University of Pretoria Faculty of Law and the founding director of its Centre for Human Rights.
The Legal Resources Centre (LRC) is a human rights organisation based in South Africa with offices in Johannesburg (including a Constitutional Litigation Unit), Cape Town, Durban and Grahamstown. It was founded in 1979 by a group of prominent South African lawyers, including Arthur Chaskalson, Felicia Kentridge, and Geoff Budlender, under the guidance of American civil rights lawyers Jack Greenberg and Michael Meltsner, then Director-Counsel and former First Assistant Counsel of the NAACP Legal Defense and Educational Fund respectively.
The Centre for Human Rights at the University of Pretoria Faculty of Law, South Africa, is an organisation dedicated to promoting human rights on the continent of Africa. The centre, founded in 1986, promotes human rights through educational outreach, including multinational conferences, seminars and publications such as Human Rights Law in Africa, The African Human Rights Law Journal, the African Human Rights Law Reports and The Constitutional Law of South Africa. The centre, which was founded during Apartheid, assisted in adapting a Bill of Rights for South Africa and contributed to creating the South African Constitution. In 2006, the centre received the UNESCO Prize for Human Rights Education, particular recognising for the LLM in Human Rights and Democratisation in Africa and the African Human Rights Moot Court Competition.
South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as
an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.
The law of persons in South Africa regulates the birth, private-law status and the death of a natural person. It determines the requirements and qualifications for legal subjectivity in South Africa, and the rights and responsibilities that attach to it.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
Legal interpretation in South Africa refers to the juridical understanding of South African legislation and case law, and the rules and principles used to construct its meaning for judicial purposes. Broadly speaking there are three means by which and through which South African scholars and jurists construe their country's statutory law: linguistics or semantics, common law and jurisprudence. Although statutory interpretation usually involves a personal predisposition to the text, the goal is generally to "concretise" it: to harmonise text and purpose. This is the final step in the interpretative process. Statutory interpretation is broadly teleological, comprising as it does first the evaluation and then the application of enacted law.
The judiciary of Namibia consists of a three-tiered set of courts, the Lower, High and Supreme Courts. Parallel to this structure there are traditional courts dealing with minor matters and applying customary law.
Zukisa Laura Lumka Tshiqi is a judge of the Constitutional Court of South Africa and formerly served on the country's Supreme Court of Appeal and as an acting judge on the Constitutional Court.
Namibia has a 'hybrid' or 'mixed' legal system, formed by the 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. 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. As a general rule, Namibia follows English law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch civil law is followed in the Namibian 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.