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South African Law

The South African Legal System 

The Republic of South Africa is a constitutional state, with a supreme Constitution and a Bill of Rights. All laws must be consistent with the Constitution.

South Africa has a mixed legal system - a hybrid of Roman Dutch civilian law, English common law, customary law and religious personal law.

The Roman Dutch civilian law and English common law influence reflects South Africa's history of successive colonial governance by the Dutch and English. The Roman-Dutch law common law of South Africa is the uncodified law of Holland as it was at the time of the original Dutch settlers in the mid-seventeenth century, and many legal doctrines and the arrangement of the law in general can be traced to this civilian heritage. The English common law influence can be seen particularly in procedural law,  with adversarial trials, detailed reporting of cases and adherence to precedent. For more information on the history of South Africa's legal system, see for example, Researching South African Law on Globalex, by Amanda Barratt and Pamela Snyman (2018 update by Salona Lutchman).

Customary / indigenous law plays an equally important role in South Africa's hybrid legal system (ss 211(2) & (3) of the Constitution). For a detailed analysis see the following open access article on SSRN: Maimela, Charles, 'The Role and Importance of African Customary Law in the 21st Century South Africa' (University of Milano-Bicocca School of Law Research Paper No 19-02, 2019)

Religious personal and family laws are also part of the hybrid legal system (s 15(3)(a)(i) and (ii) of the Constitution). For detailed commentary, see the following open access article on SSRN:  Rautenbach, Christa, 'Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law' (2010) 60 Journal of Legal Pluralism and Unofficial Law 143-177  

South Africa has not submitted an International Court of Justice jurisdiction declaration. It does accept International Criminal Court jurisdiction.

For good introductions to the South African Legal System, see, for example:

Sources of Law 

The sources of South African law are:

  • the Constitution - the supreme law of the country (s 2 of the Constitution)
  • legislation (acts of the national and provincial legislatures, and governmental regulations) 
  • common law
  • judicial precedent
  • customary / indigenous law 
    • Indigenous law has been defined by the Constitutional Court of South Africa in as having three different forms: law practised in the community; law in statutes, case law or textbooks on official customary law; and academic law that is used for teaching purposes (Bhe v Magistrate Khayelitsha [2005] 1 SA 580 (CC) at [152]). 
  • Religious personal laws
  • international law 
  • the writings of authoritative publicists of the law.

Books

 

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