Chapter - Theme 2 (Common law) Flashcards
Define South African Law:
*Mixed legal system and has a system of legal pluralism – multiple legal systems exist within a single legal order.
*It pertains to the historical development of South African law, indigenous law and common law becomes important
Explain the impact of Dutch colonisation on South African Law:
*The 17th century was the golden age of Dutch colonisation. The Dutch East India Company (VOC) had by this century accumulated a vast empire of colonies across Asia (including India and Indonesia).
*The Cape was considered a safe midway harbour for the ships of the VOC on route to Asia. On 6 April 1652, Jan Van Riebeeck, a VOC official, set foot on Cape shores and established a refreshment station for the VOC.
*What was the role of the VOC?
The Republic of the United Netherlands appointed the VOC as a trading company to administer commercial relations with the colonies in the East as well as to control the Dutch colonies in the East.
*When the Dutch colonised the Cape in 1652, the Cape became part of these colonised territories controlled by the VOC. The Dutch occupied the Cape from 1652 until 1795 and then again from 1803 until 1806.
*What did Van Riebeeck find at the Cape?
*In 1652, Van Riebeeck found a territory already occupied with communities who lived in established political, economic and legal systems.
Explain Roman Dutch Law:
*The Dutch colonised the Cape on the basis of international law.
International law regulates the relationship between different states.
*In terms of the international law of that time, one state/country could occupy another state and exercise sovereign control over that state if the following conditions were met:
a. The territory to be occupied was res nullius- meaning that the territory did not have a previous owner and
b. There is an intention to colonise the territory
Briefly explain the impact of English colonization on South African Law:
*English colonial influence
*In 1806, Dutch occupation of the Cape came to an end. During British colonisation, the English did not abolish Roman-Dutch law.
*However, English law did influence the development of the legal system in the Cape in some ways. This impact was primarily through the adoption of legislation and case law/precedent.
Explain the English Influence on the legal system of South Africa:
*The English Law of criminal procedure, civil procedure, evidence and the jury system was implemented in the Cape through the adoption of legislation by the British colonial authorities.
*The Dutch-inspired courts of landdrosten and heemraden were replaced by magistrates’ courts which were modelled on the courts in Britain. *A new higher court, called the Supreme Court was introduced. Appeals could be made to the Privy Council.
*The legal profession was divided into the bar (advocates) and the side bar (attorneys). This was based on the British model.
*Some legislation, for example the Insolvency Act 24 of 1936, was modelled on the British equivalent. English Constitutional law also influenced the type of constitutions that were adopted in South Africa. For example, the Constitution of the Union of South Africa (1910), the Constitutions of the Republic of South Africa in 1961.
Explain English influence in terms of court decisions:
*When the courts made decisions, they were influenced by English doctrines, especially in the areas of the Law of Delict and the Law of Contract. *Presiding judges applied these legal principles of English law because they were primarily trained at English universities. English law seeped into our current South African law through the doctrine of legal precedent.
