HISTORICAL FOUNDATIONS OF SOUTH AFRICAN LAW

EXTERNAL AND INTERNAL LEGAL HISTORY This module deals with the external and the internal history of South African law. The external history of the law traces the sources and factors that have contributed directly or indirectly to the development of a legal system. These relate to the political, constitutional, economic, sociological and religious factors that have infl uenced the development of the legal system. The external legal history sheds light on the internal history of the law. The internal history of the law covers the origins and development of the legal rules and principles themselves, under the infl uence of external historical events. Political, constitutional, economic, sociological and environmental events infl uence the way people view their world and, consequently, the development of their legal system. The following practical examples illustrate the relationship between external and internal legal history: The policy of apartheid, implemented by the National Party, was a political event in the external history of our law. The promulgation of the Group Areas Act was one of the consequences of the policy of apartheid, and this Act introduced new legal rules. In other words, the Group Areas Act is an example of development within the internal history of our law. The establishment of trade unions was an economic event in the external history of our law that had a huge infl uence on the development of labour law. It was only after the establishment of trade unions that the interests of employees and labourers came under the spotlight. As a result of the activities of the trade unions in South Africa, the right of an employee not to be unfairly dismissed was recognised and is now entrenched as a human right in our Constitution – an example of the development of the internal history of our law. 1.2 THE DIFFERENT COMPONENTS OF SOUTH AFRICAN LAW South Africa has a complex legal system and legal pluralism prevails in this country. To understand the history of South African law, there are two important concepts that you must come to grips with: “legal pluralism” and “a mixed or hybrid legal system”. Let us fi rst take a closer look at legal pluralism. South Africa’s multi-cultural society consists of various communities – such as the Hindu, Muslim, indigenous African and, broadly speaking, Western or European communities. Therefore, various systems of law are applied in South Africa, but not all of these systems are offi cially recognised. The offi cial state law, which forms the foundation of the South African legal system, is Roman-Dutch law as infl uenced by English law. Until the 1990s this was offi cially the only law of South Africa. However, indigenous law is now recognised in the Constitution as part of the South African legal system. We will see more about the history of the recognition and application of indigenous law in learning unit 2. The second important concept is a mixed or hybrid legal system. The South African legal system originated in different legal traditions and therefore has characteristic features of diverse other legal systems. The two main legal traditions on which South African law is built, are the civil- (Roman) law tradition and the English common- 4 law tradition. The civil-law tradition became relevant in South Africa when Jan van Riebeeck started the refreshment station at the Cape in the 17th century, and the common-law tradition when the British occupied the Cape in the 18th century. The African tradition was later added to this mix of legal traditions, when the Constitution offi cially recognised indigenous law as a part of the South African legal system. Now, does this mean that various legal systems are offi cially applied in South Africa? The answer is “no”. We have a single South African legal system, which has distinctive features of Roman-Dutch law, English law and now also indigenous African law. But what about human-rights law? In learning units 6 and 7 you will learn how and when human-rights law became part of our law. You must always bear in mind how important this facet of our legal system is. In Pharmaceutical Manufacturers Association of South Africa and another: In re Ex Parte President of the Republic of South Africa and others1 the Constitutional Court stated: “There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.” Bearing in mind what has been said above, it should become clear that there are in essence three components of South African law: an African component (because of the indigenous African law infl uence); a Western component (because of the RomanDutch and English law infl uences) and a universal component (because of the infl uence of human-rights law). We will discuss the historical development of our complex legal system under these three headings. This is a graphic representation of our law: 1 2000 (2) SA 674 (CC) para [44]. LEARNING UNIT 1: Setting the scene HFL1501/501 5 African law law law law African law dates back so far that we say that it has existed since time immemorial. The earliest origins of indigenous African law cannot be specifi cally pinpointed, because African history, including the history of African law, is essentially preliterate history; that is, a history of societies without writing. The fi rst origins of the Western component of our law may be traced back to the foundation of Rome in the 8th century BC. In the 4th century AD, the Roman Empire split into an Eastern and a Western Roman Empire. Constantinople (present-day Istanbul in Turkey) became the capital of the Eastern Roman Empire and Rome (in present-day Italy) became the capital of the Western Roman Empire. We follow the origins of our law in the Western Empire. The Eastern Roman Empire played a role in the development of South African law only until the death of Emperor Justinian in the 6th century AD. After that period, we speak of the Eastern history of the law, which is not covered in this module. The universal component of our law may be traced back to the rise of the natural-law theory. Natural-law theory is a legal philosophical school of thought that says that law must always be subject to testing against a higher norm of some kind. As we will see in learning unit 7, natural law was originally developed by the ancient Greeks and Romans, was later taken further by the Christian church fathers in medieval times, and was eventually adopted by liberal scholars whose thinking would eventually infl uence the birth and global spread of human rights. Bear in mind, though that in a South African context we also have to look at African values. This will be discussed in detail in learning unit 7. NOTE There is another important factor which, over the years, has shaped the development of all three components of our law, and which broadens our perception of the origins of our law, and that is religion. Legal-historical discussions usually focus on the infl uence of canon law (the law of the Catholic Church), Protestantism and perhaps even Judaism. But today, in our country, there are many different religions and religious legal systems that govern the lives of South Africans. It is specifi cally in the fi eld of private law, and more importantly, in marriage and succession, that these personal religious laws have an impact on the lives of people. Although all these personal religious laws are not offi cially recognised as part of our law, the Constitution provides that legislation may be promulgated, which could recognise marriages concluded under a religious legal system, as well as a system of personal and family law adhered to by the followers of a SOUTH AFRICAN LEGAL SYSTEM Indigenous component Western component Universal component Indigenous Roman-Dutch English Human-rights PART I: THE ORIGINS OF SOUTH AFRICAN LAW 6 particular religion. The South African Law Reform Commission has accordingly proposed a Draft Bill on the Recognition of Islamic Marriages. In learning unit 2 we will explore the history of Islamic law. Islamic law regulates the lives of approximately one-sixth of the world’s entire population and adherence to Islam is growing all over the world. Although Islam is a minority religion in South Africa, it is the dominant religion on the African continent. Recently, the application of this system of law and the confl ict between the values that form the foundation of Islamic law and of Western law have come under the spotlight through various cases tried in our high courts.