The Law in South Africa

The primary sources of South Africa law were Roman-Dutch mercantile law and personal law with English Common law, as imports of Dutch settlements and British colonialism. The first European based law in South Africa was brought by the Dutch East India Company and is called Roman-Dutch law. It was imported before the codification of European law into the Napoleonic Code and is comparable in many ways to Scottish law. This was followed in the 19th Century by British law both common and statutory. Starting in 1910 with unification, South Africa had its own parliament which passed laws specific for South Africa, building on those previously passed for the individual member colonies.

Roman Dutch law is a legal system based on Roman law as applied in the Netherlands in the 17th and 18th century. As such, it is a variety of the European continental Civil law or Ius commune. While Roman Dutch law ceased to be applied in the Netherlands themselves already at the beginning of the 19th century, Roman Dutch law is still being applied today by the courts of South Africa and Sri Lanka.

While Roman law was mostly forgotten in the early middle ages, interest in the doctrines of Roman jurists returned when —around the year 1070— a copy of the digest of Emperor Justinian I was found in Italy. Scholars in the emerging university of Bologna started to study the Roman texts and to teach law based on these texts. Courts gradually started to apply Roman law —as taught in the university of Bologna (and soon elsewhere) because the judges felt that the refined legal concepts of Roman law were more apt to solve complex cases than the Germanic laws, which had been in use before Roman law was revived. This process (the reception of Roman law) took place in Italy and then in the rest of continental Europe.

In 15th century, the process reached the Netherlands. While Italian jurists were the first to contribute to the new science of law based on the Roman texts, in the 16th century, French lawyers were most influential. In the 17th and 18th century, the leading rôle was passed on to the legal science in the Netherlands. Members of the so-called school of elegant jurisprudence included Hugo Grotius, Johannes Voet, Ulrich Huber and many others. These scholars managed to merge Roman law with some legal concepts taken from the traditional Germanic customary law of the Netherlands, especially of the province of Holland. Thre resulting mixture was predominantly Roman, but it contained some features which were characteristically Dutch. This mixture is known as Roman Dutch law. The Dutch introduced the legal system of their state to their colonies. In this way, the Dutch variety of the European Ius commune came to be applied in South Africa and Sri Lanka.

In the Netherlands, the history of Roman Dutch law ended, when the kingdom of the Netherlands adopted the French Code civil in 1809. However, Roman Dutch law was not replaced by French law in the former Dutch colonies. In this way, Roman Dutch law survived to this day.