Origins of South African Law (FLS 1501)

African component

indigenous African Law

explain the current position of indigenous law in SA legal system differs from the position of Islamic law

indigenous law is officially recognised as a source of South African law. Islamic law does not yet enjoy official recognition in SA. However, the constitution makes it possible for religious laws to be recognised at the law reform commission is investigation the position of islamic marriages

Common law- Roman-Dutch law

influenced by English Law- Common law of England * common law systems (in contrast with Roman law i.n.a civil-law systems)

THE APPLICATION OF THE TERRITORIALITY PRINCIPLE

The Germanic peoples no longer lived exclusively in tribal formation, but in different feudal areas. This caused great legal uncertainty, because people's tribal law was frequently not the same as the feudal law of the area in which they were living. As a result, the personality principle gradually gave way to the territoriality principle. In other words, the principle that people had to live according to the laws of the tribe of which they were members was replaced by the principle of territoriality. But what is meant by the principle of territoriality? The territoriality principle is the principle that everyone living in a specific territory is subject to one law. In other words, when deciding which law to apply to a situation, it no longer mattered whether a person was a Visigoth, a Lombard or a Frank. Instead, the law that was applied was the law of the area in which that person lived. In other words, territorial law replaced personal or tribal law. The territorial or regional law which superseded the old tribal laws was mainly customary law, but it was influenced, to some extent by Roman law. You must be able to explain the principle of territoriality.

THE CODIFICATION OF GERMANIC LAW THE OLD GERMANIC LAW

The Germanic society also went through a preliterate stage in its development. Thus, in the early stages of its development, Germanic law shows similarity to early Roman law and to indigenous African law. They have the following in common: - The law was unwritten. - The law was preserved and communicated through emblems, symbols, legends and legal maxims. - The law could not be distinguished from religion and morality. However, unlike in the early Roman political structures, the highest authority in Germanic societies rested with the people's meeting. In other words, the people helped to make the law. This meant that Germanic law had the character of national law.

Codification of Germanic law

The ``Germanic peoples'' is a collective name for the different tribes that inhabited Western Europe in the early Middle Ages. Examples of such tribes include the Franks, the Burgundians, the Lombards and the Visigoths. Do not confuse the terms ``Germanic'' and ``German''. Remember that there were many different Germanic tribes which invaded the Roman Empire. ``German'' is an adjective which describes anything relating to Germany, a country in modern Western Europe. In other words, ``German culture'' refers to the culture of Germany (eg the famous Oktoberfest, which includes beer festivals), and ``German people'' refers to people born in or living in Germany.

policies of political, social and economic segregation (external legal History) led to the promulgation of legislation (internal legal history) which has aimed at keeping blacks in a position of subordination. This legislation influenced the development of indigenous law. name two Acts which promulgated as a result of such policies

The black administration act The black authorities act

Azeza has been married to Malik for 20 years. They got married under both South African law and Islamic law. They have three children. In 2003 Malik took a second wife, Mariam, whom he married under Islamic law. Malik dies in 2005 and leaves behind his two wives and children from his first wife. Malik does not leave a will, in other words he dies intestate. (a) Will both wives be able to inherit a portion of his estate and will both wives be able to claim maintenance? Explain the answer. (b) Would the position be any different if Malik had died in October 2009? Explain your answer. (c) In the light of which fundamental constitutional values did the Cape High Court base its decision in the Hassam case?

(a) The law in 2005 was governed by the 2004 Constitutional Court decision in the case of Daniels v Campbell. In this case the court held that the natural interpretation of the word ''spouse'' in the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 should include only partners in a monogamous Muslim marriage, in other words in a marriage between one man and one woman. Therefore, only the first wife, Azeza, would be able to inherit and claim maintenance. Malik's marriage to Mariam would not have been recognised as a valid marriage. (b) Yes, the position would be different if Malik had died in October 2009. The law is now governed by the Hassam case. In this case the court declared that the word ''spouse'' in the two Acts should be interpreted so as to include spouses in a polygynous Muslim marriage. In other words, where a Muslim man was simultaneously married to two wives, both wives will now be protected in terms of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990. Both Azeza and Mariam would get a share of the estate and both would be able to claim maintenance. (c) The court stated that legislation should be interpreted in a manner which is consistent with the fundamental values of human dignity, equality and freedom. The court added that to discriminate against a woman in a polygynous marriage amounts to a violation of her right to equality and human dignity.

Three main components of SA law (a.k.a three pillars of law)

*African *Western *Universal- or human rights component

the reception of Roman law in Western Europe can be divided into four phases

*pre-reception era or infiltration *intellectual "rediscovery" *early reception phase *reception proper

The colonial period

- First British Occupation of the Cape in 1795. - The Cape under Batavian rule, 1803 -1806. - Second British Occupation, 1806. - First official recognition of indigenous African Law. During the colonial period, administrators of the interior settlements and later the different British colonies to a greater or lesser extent all desired to "civilise'' the indigenous population and to do away with their "barbarous'' laws and customs. Where indigenous law was recognised, it was subject to the strict application of a repugnancy clause. The repugnancy clause determined that indigenous law would only apply in as far as it was not contrary to the Western notion of public policy and natural justice. The application of indigenous law subject to a repugnancy clause in one form or another was widespread throughout colonial Africa. By the middle of the 19th century, South Africa had been divided into various autonomous areas. There were:- - two British colonies (Natal and the Cape); - numerous indigenous kingdoms (the Zulu and Basotho kingdoms being the largest); and - two Voortrekker republics (the Zuid-Afrikaansche Republiek and the Republic of the Orange Free State).

Constitutional era

- Recognition of Indigenous law as a source of South African law in the Constitution of the Republic of South Africa, 1996

postcolonial era

- The establishment of South Africa as a Union with legislative powers under the British crown in 1910. - Black Administration Act of 1927 unifies colonial legislation on Indigenous law. - Other legislation included: The Black Authorities Act 68 of 1951 and Special Courts for Blacks Abolition Act 34 of 1986.

Study Unit 1

1.1 Background

reception proper

15th and 16th centuries roman law incorporated into the legal system of some countries to form part of their common law

The Personality Principle

As already mentioned under introduction of Study Unit 4 we said that the Germanic Tribes infiltrated the Roman Empire from about the 2nd century AD and by the 5th century AD the whole Western Roman Empire was conquered by the invading Germanic tribes. All these tribes lived in close proximity with each other. Each tribe had its own culture and law and it was felt amongst the different tribes that it would be undesirable to apply a general law to all the tribes. As a result the " personality principle" came to be applied. In terms of this principle each person lived according to the law of his/ her own tribe.

The Codification of Roman Law (LEGES ROMANORUM) by the Germanic Invaders

Because of the application of the personality principle the Germanic peoples also recorded Roman law for the Romans who lived in the Germanic territories. These recordings were known as leges Romanorum (which means the laws of the Romans) or leges Romanae barbarorum (which means the Roman laws of the barbarians). The codifications of Roman law compiled by the Germanic peoples were regarded as ``barbarian'' codifications. Keep in mind that the leges Romanae barbarorum never applied in the Eastern Roman Empire. They were compiled for the Romans who lived under Germanic rule in the West. These codifications contained vulgar Roman law, in other words Roman law which reflected a Germanic influence. The leges Romanae barbarorum nevertheless played an important role in keeping Roman law alive and these recordings prepared the way for the reception of Justinian Roman law in centuries to come. At this point it is important to note that the contact between the Romans and the Germanic tribes brought about not only the romanisation of the Germanic peoples, but also the germanisation of the Romans. In other words, just as the Germanic peoples adopted certain aspects of Roman culture (including law), the Romans also adopted certain aspects of Germanic culture (including law). The Lex Romana Visigothorum, also known as the Breviarum Alarici :- - most famous recording of Roman law by Visigoths; - proclaimed in Toulouse in France in the year AD 506; - played a very important role in preserving Roman law in the West - How did the Lex Romana Visigothorum do this? It is important that you are able to distinguish between the different codifications. Make sure that you can explain what each of the following was: the leges barbarorum, the leges Romanae barbarorum, Lex Romana Visigothorum and the Corpus Iuris Civilis.

because solutions are not always found in law reports(court reports) or statutes( legislation) there are other important sources of our law

Common law indigenous African law = historical components of our law

Unit 3: The western component: the origins of western legal tradition

Copy en paste werk van rekenaar.

FEUDALISM

Feudalism owes its origin to the accumulation of land in the hands of the great landowners (known as feudal lords or overlords). Under this system, the great landowners allowed non-landowners (also known as vassals) to cultivate the land in exchange for the performance of certain services. In other words, the feudal lord allowed the vassal to live and work on his land and in exchange, the vassal had to pay tax and pledge allegiance to his feudal lord in wartime. The feudal lord also had to protect the vassal. Feudal law, which regulated the relationship between the feudal lord and the vassal, gradually evolved. The best-known feudal law is the Libri Feudorum, recorded in the 12th century AD. The Libri Feudorum was incorporated into the Corpus Iuris Civilis by jurists of the late Middle Ages. The feudal system influenced the later constitutional structure of Western Europe and contributed indirectly to the survival of Roman law during the Middle Ages. The system of feudalism led to legal diversity (differences) and legal disruption in Western Europe in the 10th and 11th centuries and even after that. The reason being that each feudal lord developed his own feudal laws. As a result different laws applied to different feudal areas. This diversity in the law was one of the reasons why jurists felt a need for one universal, written legal system. Roman law was able to meet this need . From the 12th century onwards jurists began to show renewed interest in the Corpus Iuris Civilis. The feudal system contributed indirectly to the survival of Roman law during the Middle Ages because it emphasised the territoriality principle

The history if the western component of our law is Europe starts with the______________

Foundation of Rome

THE CODIFICATION OF GERMANIC LAW GERMANIC RECORDS (LEGES BARBARORUM)

From the 5th century AD, the Germanic peoples began to record their tribal laws. These recorded or written tribal laws were known as the leges barbarorum. The Latin term leges barbarorum literally means ``the laws of the barbarians''. The Romans regarded the Germanic tribes as barbarians and that is why they referred to the written records of Germanic tribal law as leges barbarorum. There are two reasons why the Germanic recordings or compilations are important: - They are sources of Germanic law. - They played a role in the survival of Roman law after the fall of the Western Roman Empire.

why could historians not research the unwritten history of Africa?

Human memory alone was not regarded as entirely reliable there was uncertainty about what method could be used to precess oral information in order to reconstruct the history or preliterate communities it is possible that historical facts could be distorted when recounted orally

Universal-or Human-rights component

Human rights law

Unit 2

Indigenous African law

Explain the position of Islamic law

Islamic law does not yet enjoy official recognition in this country

The origin of the universal component of our law may be traced back to the rise of the ______________ as developed by Greek and Roman Thinkers and by early Christian church fathers from the 4th century AD onwards

Natural law theory

Unit 4: Western component: the survival of Roman law in the west during early middle ages

Please note that the Western Component of the South African legal system is not rooted only in Roman law. Other legal systems, such as Germanic law and canon law, influenced the development of Roman law during the Middle Ages and even after that. Please look at the diagram on page 67 to see where this study unit fits into the South African legal system. For the purpose of this module the term "Middle Ages" refers to the period from the 5th century AD to the 15th century AD. We also distinguish between:- > Early Middle Ages (5th - 11th centuries AD); and > Late Middle Ages (12th - 15th centuries AD) The Middle Ages cover the period from AD 400 TO AD 1500. Please refer to the time lines in study unit 1 to see where the Middle Ages fit in on the time line. In this Study unit you will learn what happened to Roman law in the period after the fall of the Western Roman Empire in AD 476, but before the revival of the interest in Roman law in the 12th century AD. There were various factors that played a role in the survival of Roman law in the West. These factors include:- 1. The " Rome idea" 2. The codification of the Germanic law 3.Tthe enactments of the Frankish kings 4. The application of the personality principle 5. The codification of Roman law by the Germanic invaders 6. The Roman Catholic Church 7. The rise and spread of feudalism 8. The application of the principle of territoriality

Reception of Roman law has two meanings

Practical reception- reception of actual rules of Roman law Scientific reception- concepts, the categories, the principles and the divisions of Roman Law

As a result of their geographical isolation, the Bantu speakers had a tradition without writing which is a ______________ tradition. One may then ask: is it possible to reconstruct the history of such people? the answer is ______. How? Through ________ ________. Oral traditions are _________, __________ accounts of the past. How is oral information preserved? ____________________________________________________________________________________

Preliterate yes oral traditions unwritten, verbal through songs, legends and epic poems, memorized and transmitted from generation to generation

______________ refers to the willing adoption of a legal system by a community which already has an existing legal system

Reception

three Different ways in which legal system became applicable in a territory

Reception transplantation imposition

THE ENACTMENTS (LEGISLATION) OF THE FRANKISH KINGS

Remember that the Franks were part of the Germanic people. See the explanation above. An important source of Germanic law is found in the enactments of the Frankish kings. These pieces of legislation, enacted by the Frankish kings, were called capitularia. Like the leges barbarorum, the capitularia also contained Roman rules and thus helped to preserve Roman law. The actual writing of these enactments was done by clerics who were schooled in Latin and in Roman law, and who therefore incorporated Roman-law rules when recording these enactments. You must be able to explain how the recordings of Germanic customary law and the enactments of the Frankish kings helped with the preservation of Roman law.

Since South African law has been influenced by the _________ or __________ tradition and the_______ or __________ tradition, as well as the _____________ tradition, we may say that our legal system is a mixed or hybrid one

Roman Civilian English Common Law indigenous African

Western component

Roman-Dutch and English Law

Western component (common law= as influenced by english law)

Roman-dutch and english law Roman-dutch- roman law: older of the two elements starts with the foundation of Rome 753 years before Christ(753 BC) Origins of law can therefore be traced back to the western empire namely Rome in present day Italy( slit of Roman empire in 4th century AD-396 after the birth of Christ) English law- 11 Century AD

The _______________ is currently investigating islamic ____________ witha view to integrating it into the SA legal system

South African Law Reform Commission marriages

How could recordings of Germanic law help with the preservation of Roman law?

We have already referred to the fact that the Germanic peoples admired the Roman way of life and tried to imitate the Roman way in many aspects of their everyday lives. This resulted in the romanisation of the Germanic culture, including their law. At first, isolated rules of Roman law were randomly adopted in indigenous Germanic law. In time, these random Roman rules became so much a part of indigenous Germanic law that they were incorporated into the Germanic codifications of their law. Furthermore, in those days most people were illiterate (in other words, they could not read or write). The literate group were mostly the officials of the Roman Catholic Church. These officials or clerics were schooled in the universal language of that time, namely Latin, and they studied Roman law. The codification of the leges barbarorum was mainly the work of these clerics, who included principles of Roman law in these records of Germanic law. As a result some of the rules of Roman law were preserved in the Germanic codifications.

Although historical investigation usually focuses on the ___________ foundations of the universal concept of human rights, Islamic thought also impacted on this development

Western

The common law is an important source of the _____________ component of our law

Western

There are three major components of our law, namely an______________ a__________________ and a________________ component

Western Indigenous Universal

Pre-reception era or infiltration

a few roman-law rules were chosen and then randomly incorporated into Germanic customary law 5th century when the germanic tribes adopted the roman idea of individual land ownership

What is meant by indigenous law?

all the legal systems of the different groups of bantu speakers `indigenous law'' refers to the law of the Bantu speakers, who presently occupy the greatest part of Africa south of the Sahara.Although there is great variety of the indigenous legal systems and although they cannot be traced back to a common ancestor, these systems of law share enough common features and fundamental similarities to be regarded as a single legal family. For this reason and because of their common history, reference to ``indigenous law'' in this module includes all the legal systems of the different groups of Bantu speakers.

give specific examples of how these mechanisms affected the application of indigenous law in practice

application was subject to the repugnancy clause application of indigenous law was at the discretion of presiding officers it was applied by judicial officers who were not trained in indigenous law only official indigenous law was applied the judicial officers were under the control of the state

The earliest origins of indigenous African Law are traced to a time_____________________

before traditional indigenous African cultures first came in contact with other cultures

the legislation referred to in previous question put various mechanisms in place to limit and control the application of indigenous law. name two of these mechanisms

both acts regulated the recognition and application of indigenous law indigenous law could only be applied in disputes between black people it could be applied by special courts of chiefs and headman which had very limited jurisdiction it could be applied by commissioners court and in ordinary courts, it it was not repugnant to western perceptions of public policies and natural justice the ordinary courts and the commissioners courts had a discretion whether or not to apply indigenous law in a given case

how were the objections to the study and teaching of preliterate african historians were overcome?

by making use of an interdisciplinary approach, iow, by using the source material of other disciplines such as ethnography and acrhaeology by the critical analysis and comparison of various oral accounts. in this way information could be reconstructed, much in the same way as written records are used to obtain a true account of historical events

Religion

canon law-law of the catholic church Protestantism Judaism In Africa-many different religions and religious legal systems that govern the lives of many S. Africans. specially in private law=marriages and succession South African Law Reform Commission has accordingly proposed a draft bill for the recognition of ISLAMIC MARRIAGES

Common Law

centre around which the other sources that generate law revolve -living law: applied by courts and capable of adapting to changing values of society

Although there are may different indigenous African legal systems, their_________________ ________________ and _______________ _____________ cause them to be regarded as a single legal family

common features fundamental similarities

various sources to find the law

decisions of the courts and legislation

repugnancy clause

def: An inconsistency or opposition between two or more clauses of the same deed, contract, or statute, between two or more material allegations of the same Pleading or between any two writings. Inconsistent defenses or claims are permitted under the Federal Rules of Civil Procedure.

Oral traditions

form the main source of information on a preliterate community's past

Constitution

highest and established the principles which all laws should be tested. NB! neither statute law, nor common law or indigenous african law may be in conflict with the supreme law of the land

the reasons for the neglect of research into African history were that ___________ ____________ __________ was not regarded as entirely reliable; that there was uncertainty about what _________ to use to process oral information; and that it is possible that historical facts could be ____________ when recounted orally

human memory alone method distorted

transplantation

importation or introduction of a legal system into a territory which has no legal system

imposition

imposing a legal system on a territory which already has an existing legal system- against the wishes of the local inhabitants (Roman-Dutch law on Indigenous law)

How could the constitution influence the development of indigenous law? give one example of how this happened in practice

in terms of the constitution the application of indigenous law is subject to the constitution. Therefore indigenous law rules and principles which are not in line with the constitution may be abolished example: in the Bhe case the court found that the rule of male primogeniture in the indigenous law of succession was unconstitutional because it discriminated unfairly against women and extramarital children and that it should be abolished as a result the customary law of succession act of 2009 was promulgated. the purpose of this act is to abolish the indigenous law rule of male primogeniture as far as it applies to the law of succession in order to bring indigenous law of succession into line with the constitution

intellectual "rediscovery"

justinian's roman law- group of glossators

Main sources of origin, or places of origin of our law

legislation court decisions common law customary law indigenous African law

SA Law not codified

no comprehensive, written version of our law that has the force of legislation

indigenous african law is essentially ______ law and thus unwritten. This is so even though indigenous law has, to some extent, been recorded though legislation, codification and western restatements

oral

Internal history of law

origins and development of the legal rules of law and principles themselves, under the influence of external historical events

Precolonial era

period before the first english annexation in the Cape in 1795 - This is the era before colonisation brought Africa into real and permanent contact with the West; - for the purpose of legal history of South Africa, the precolonial era, refers roughly to the period before the first English annexation of the Cape in 1795. In other words, the precolonial era is regarded as having come to an end in 1795, when the British took control of the Cape. - the reason for the division is that the development of indigenous law was affected for the first time when the British Administration started regulating its application.

The reception of the actual rules of Roman law is called____________ reception while the reception framework, concepts and principles within a system is called the _____________ reception of Roman Law

practical scientific

African component

preliterate history- history of societies without writing Indigenous African law started developing long before traditional indigenous African cultures first came into contact with other cultures African law dates back so far that we say it existed since time immemorial

Explain the difference between reception, transplantation and imposition

reception: is the willing absorption or adoption of legal rules, principles and institutions of a legal system into an existing legal system. Transplantation: takes place where a legal system is transplanted to a territory where there is no existing legal system imposition: legal system is imposed upon a territory which already has a legal system, against the will of the inhabitants of the territory

Universal Component

rise of the natural-law theory developed by both Greek and Roman thinkers even before the birth of Christ, and the early Christian church fathers from the 4th Century AD onwards

early reception phase

scientific study of roman law 13th and 14th centuries

What was the general effect in above question on the development of indigenous law?

through the years indigenous law was adopted and became distorted

external history of law

traces the sources and factors which have contributed directly or indirectly to the development of a legal system. Relate to: political, constitutional, economic, sociological and religious factors

_______________ refers to the importation of a legal system into a territory which has no legal system

transplantation

South Africa has a multicultural society consisting of?

various communities- hindu, muslim, indigenous African and broadly speaking, western or european communities it is only the indigenous african law, which together with the western law, is officially recognized and constitutionally entrenched as a source of African Law

in the repeal of the black administration act and amendment of certain laws act two reasons are given for the need to repeal the black administration act. Name the two reasons

was against the values set out in the constitution is reminiscent of the divisions and discrimination of the past

Reception

willing absorption or adoption of rules, principles and institutions of a legal system into an existing legal system

There is no comprehensive ______________ of South African law which has the force of legislation. I.O.W SA law is not codified

written version