CHAPTER 4: HISTORY OF SOUTH AFRICAN LAW

1 Introduction

The law in force in South Africa (and applied in the courts, for example) has as its
basis Roman-Dutch common law.

Literally ‘common’ law means: ‘the law common to a particular geographical region
and/or group of people’. This term is usually used to refer to the law of a whole
country or a large region as supposed to the narrower, area-specific laws (and
customs) of for example, a local community or a smaller group.

Why is it important to know where the South African law comes from and how it
developed?
 Legal history explains the present character of law. The past (history)
explains why the present situation is as it is. This is the same with law. There are
historical reasons for the character of present-day South African law. A knowledge of
legal history leads to a better understanding of modern law.
• A knowledge of legal history facilitates necessary change in law. A
society’s values and needs change with time and this creates a need for the legal
system to change and adapt as well. Knowledge of legal history shows how law has
already changed and adapted through the centuries. This tends to foster a critical
view of law, which is essential in assessing the need for change.
• Our legal history is living law. Common law is important because parts of it
are still in force in South Africa today. It is ‘living’ law which is still applied by our
courts. South Africa has an uncodified legal system. This means that our legal
system is not completely written down in a code. Because the South African legal
system is not codified, our law is found in various sources, one of which is our
common law.
• Our legal history links us to other countries. The history of South African
legal system links South Africa to various countries in Africa and Europe, as well as
other countries in the world. The reason for this is that the South African legal
system, to a greater or lesser extent, shares a common legal history with these
countries. This is so either because it developed from the same roots, or because it

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was influenced by the same historical factors, or because these systems influenced
the South African legal system. The law which developed casuistically (case by
case) in the courts in England is also known as common law, and forms the basis of
contemporary Anglo-American law.

The historical roots of South African law lie in the legal system of the ancient Roman
Empire. Whereas the ancient Greeks are famous particularly for their contributions
to philosophy, it is the legal culture of Rome that is shared to a greater or lesser
extent by many modern legal systems. Roman law also forms the historical
foundation of all the legal systems of contemporary Europe.

The term ‘common law’ has become accepted in South African legal terminology to
refer primarily to Roman-Dutch law as it was originally transferred to South Africa
and adapted and extended through the years in the case-law, but also through
custom. “Common law” refers more specifically to this historical law as clearly
distinguished from other forms of law currently in force in South Africa, especially
statute law (that is to say law laid down by legislation).

The fact that South African common law is not English common law does of course
not mean that South African law was not influenced by English law; in fact it is
actually remarkable that English law did not replace Roman-Dutch law entirely as
the common law of South Africa after the last British occupation of the Cape (in
1806) and the expansion of Britain's colonial power in South Africa. All this needs to
be understood in the light of a particular course of historical events.

In this chapter the history of (particularly "official") South African law is reviewed
briefly. First its Roman origins will be looked at and then the fate of Roman law
(along with traditional, local legal systems) in Europe will be traced in order to place
the origin and development of Roman-Dutch law in perspective. After that the
course of Roman-Dutch law in South Africa will be considered as well as the extent
of the influence of English law. Finally, there is a brief account of the development of
a distinctively South African law and legal culture.

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 2 Roman Legal History

The legal history of a society to a large extent reflects developments within that
society — especially at a socio-political level. This is why the establishment and
development of Roman law (on Roman soil, so to speak) may best be understood
against the background of the establishment, growth and decline of the Roman
Empire.

2.1 THE MONARCHY (753-509 BC)

The city of Rome is situated a few kilometres from the mouth of the Tiber River on
the west coast of the Italian peninsula. According to tradition it was established by
Romulus of Alba Longa in the year 753 BC. Originally the Roman people were
ruled by a king or rex. The first four kings were Romans but after that they came
from among the Etruscans, a powerful tribe which lived to the north of Rome. The
Etruscan kings, however, abused their power and in 509 BC the last of them,
Tarquinus Superbus, was expelled from Rome and the Etruscans themselves
defeated in the battles that followed. After this, the idea of a sole ruler was
unacceptable to the Romans. During this period the most Romans were primitive
farmers living according to unwritten customary law which included religious rules.

2.2 THE REPUBLIC (509-27 BC)

Rome was now a republic, ruled by the senatus, a council of elder statesmen.
Executive power was in the hands of the consules, of which there always had to be
two. Theoretically power in the last resort was vested in the comitia centuriata, an
assembly of the higher class or patricians. The early Republic was characterized by
a class struggle between the patricians and the lower class, the plebeians. This
struggle ended only in 287 BC, when the plebeians' assembly also acquired
legislative powers. After the Romans defeated the Etruscans, they gradually
incorporated the territories of the other tribes around them and by 275 BC they were
the masters of the whole of the Italian peninsula. After this they gradually extended
their power over Sicily, Greece, North Africa and Spain. In 90-88 BC Roman
subjects in Italy rebelled. The war which followed was ended only once virtually all
the inhabitants of the Italian peninsula were given citizenship. Shortly after this, in
88 BC, a civil war broke out. While the consul, Sulla, was in the East fighting against
the Greek king, Mithridates, a faction (the populares) under Marius took over control

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of Rome. On his return in 83 BC Sulla had to fight to regain power. After this the
writing was on the wall for the Republic. Ambitious people acquired influence by
calling upon popular support and recruiting followers while at the same time being
engaged as generals in the expansion of the empire.

2.3 THE PRINCIPATE (27 BC-284 AD)

By 27 BC the Republic made way for a new constitutional dispensation, during

which the Romans were governed by emperors. Octavius was the first emperor
and he changed his title to Imperator Caesar Augustus, the title by which he would
be known from then on. He and his successors would play the role of princeps or
"first citizen" but they were in fact sole rulers. From this time on the Roman Empire
was known as the Principate. The early Principate was characterised by peace and
prosperity — the so-called Pax Romana. The Empire continued to expand and
cultural activities in particular flourished. Succession, however, was a problem and
in 69 AD there was once again civil war when no fewer than three people became
emperors and were then murdered. Order was, however, restored and the next
emperor of importance was Hadrian (117-138 AD). During his rule the Roman
Empire was at its greatest and peace widespread but the emperor was an absolute
ruler or dominus. The Empire did not, however, expand any further and from this
point the story of Rome becomes that of an empire whose borders shrank
continuously, mainly because of the aggression of the Germanic tribes from the
northern reaches of the European continent.

2.4 THE DOMINATE (284 AD AND BEYOND)

From the beginning of the period known as the Dominate the Empire was
characterized by decline in the political, economic and social fields. In the west
particularly the Germanic tribes, the so-called barbarians, gradually began to
conquer Roman territories. The Empire's centre of gravity shifted to the east and
Constantine (285-337 AD), the first Christian emperor, built Constantinople as an
alternative capital city in what is today Turkey. In 395 AD the Empire was divided
into two parts for administrative purposes, with. The barbarians (Goths, Franks,
Teutons and others) began to conquer the western provinces of the Empire. In 476
AD the last emperor of the Western Empire, Romulus Augustulus, was deposed by

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Odoacer, thus bringing to an end the Western Roman Empire. The Eastern Roman
Empire survived until 1453 AD when
Constantinople was conquered by the Turks. An important figure here is Justinian,
who was Emperor from 527 to 565 AD. It is largely due to him that Roman law was
preserved for humanity.

3. Roman Law

3.1 Introduction

Ancient Roman law, called the ius civile, initially took them form of unwritten
customary law. In other words, it was based on the customs the ancestors. From
these there developed laws which had to meet the needs of an ever growing Roman
Empire. Originally the administration of justice was in the hands of the patricians
and dispensed by the high priest. The law was rigid and formalistic. The Romans
were not quite sure themselves where some of the formalities came from (or what
their point was.)

3.2 The twelve tables

The first important development occurred in 450 B when the plebeians rebelled
because they were not adequately informed about the law or legal procedures. After
a military strike (secessio plebis), a commission was appointed to write down the
law so that all could know what their position was. The product was the Twelve
Tables. The Twelve Tables dealt primarily with practical aspects of immediate
concern.

3.3 Further development of the law

As the law of a simple, rural society, the ius civile could in the course of time no
longer make provision for the complex problems created by the expansion of the
Empire and the associated growth in prosperity. However, legal development in a
society which is institutionally speaking in the first stages of its development is
problematic. Traditional law (the ius civile in the case of the Romans) was regarded
as inviolable. Legislation, it was believed, could thus help to clarify and interpret the

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existing law, but dare not alter it. It was only the time of the Emperor Hadrian (117-
138 AD) that it became generally accepted that law could also be created by means
of legislation.

In the Republic legislation was originally introduced by the comitia centuriata and
later, after the class struggle, also by the concilium plebis, the assembly of
plebeians. In the early Principate enactments were laid down by the senate, but
later this process was replaced by the decisions of the emperor, the constitutiones
principis. Up to the time of the middle-Principate, however, legislation was largely
restricted to dealing with social crises and purely political matters.

In most non-complex societies legal development normally occurs primarily in the

field of the law of procedure. As problems arise in practice so they are dealt with on
an ad hoc (or casuistic) basis in order to bring about equitable solutions. The result
is that in the course of time a set of rules is built up which does not have a
fundamental principle as point of departure but a large number of actual, practical
cases. A prospective litigant thus has access to the court only if an action has been
allowed in the past on the basis of an allegation similar to the one on which the
litigant wishes to base his present action. A subsequent development is normally
that the person in charge of the process is given the power to allow new actions on
the basis of new allegations. Roman law also developed according to this pattern
and a study of its evolution is thus in effect a study of Roman court procedures and
the law of procedure.

3.4 Role of the praetor

The central office in the Roman law of procedure was that of the praetor, instituted
in 367 BC. He was originally bound to allow only those actions authorised by the ius
civile, but in about 149 BC a new formulary procedure was accepted whereby he
could create new actions. He could also, in the interests of justice, create new
defences and in this way amend the ius civile. This meant that suddenly all legal
development was entrusted to the praetor. Yet this power was exercised with the
conservatism characteristic of the Romans. The praetor annually published in his
edictum (or process programme) the new actions created by him and the

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succeeding praetor normally took over where his predecessor left off. In this way the
ius civile grew.

3.5 The jurists of the classical period

The abovementioned process of legal development meant that the advice of jurists
was of great interest. The office of praetor was in effect a political one. At that stage
neither the praetor nor the judges were people with legal training. The
iurisprudentes thus had to assist the development of the law by way of advice.
These jurists played a very important role in the period from about the beginning of
the Principate up to 250 AD. This so-called classical' period was thus the golden
age of Roman law, which was closely linked to the Pax Romana of the Principate.
The quality of training was high, Greek influences were' strong and jurisprudence
was the appropriate choice of career for academically inclined people. It was also
the ideal way to start a political career. The jurists worked without remuneration and
gave primarily legal advice. In the courts themselves, however, cases were argued
by oratores, who were people with a lower status. For various reasons this period is
regarded as the classical period. In the first place, there were the beginnings of a
move towards abstract thinking, the creation of definitions and the deduction of
principles. In the second place, the classical jurists gave a great deal of attention to
the precise and elegant use of language. Their pure and economical use of
language would impress other jurists for centuries and also resulted in some of their
statements surviving in the form of legal maxims in later times. In about 130 AD the
emperor gave instructions that the praetorian edict be codified. After it had been
codified it could be amended only by the emperor himself. This ended law-making
by the praetor but it also made it much easier to write about the law, which had now
taken on a fixed form, and to expand on it by way of interpretation. It is claimed that'
more than 2 000 books were written by the classical jurists and the courts attached
a great deal of value to their opinions.

3.6 The period of decline

The decline which the Roman Empire experienced since the beginning of the
Dominate also left its mark on the law. Academic standards dropped and jurists
increasingly experienced problems in applying the writings of the classical jurists.

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Private attempts were made in 294 and 334 AD to codify the law but they were not
particularly successful. In 426 AD a law was issued which placed the opinions of the
classical writers in order of priority. This was done without attempting to establish
the merits of a particular writer's arguments on certain individual issues. In 438 AD a
number of imperial enactments were compiled into an official collection.

3.7 The legislative work of Justinian

Half a century after the fall of the Western Roman Empire, Justinian became
Emperor of the Eastern Empire. He wanted to restore the Roman Empire and also
Roman law to its position of glory. Almost immediately after coming to power he
gave instructions that the sources of Roman law be collected and adapted to keep
pace with the demands of the time. At that stage the sources consisted of the
leges, that is a variety of imperial constitutions, and the ius, that is the writings of
the classical jurists. The completed work of leges was authorised the following
year by Justinian. It was known as the Codex Iustinianus.

The next task was to collect the jurists' law. The commission completed this gigantic
task in only three years. The final product, called the Digesta or Pandectae,
consisted of 50 volumes containing excerpts from the works of about 39 jurists, 33
of whom were from the classical period. During the compilation of the Digesta the
law was amended to such an extent that the first Codex became obsolete. A second
one was compiled and it is this Codex which today still forms part of the Justinian
collection. Justinian's entire collection was given legal force on 29 December 534
and replaced all previous laws in the Eastern Empire.

3.8 The Ius Gentium

Apart from its rigidity and formalism, the original Roman ius civile was also
exclusive, and only Roman citizens (cives Romani) had access to it. The expansion
of the empire meant that many Roman subjects were not citizens. Citizenship was
gradually extended but there was nevertheless still a need for a legal system for
foreigners (or peregrini).

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In 242 BC the office of praetor peregrinus was created to deal with adjudication
among foreigners. The law created as a result of the rulings of this government
official was known as the ius gentium ("the law of the nations"). The praetor
peregrinus could not concern himself too much with formalities in his court — there
was just simply too great a diversity of peregrini from too large a variety of nations
involved in legal disputes. He was thus inclined to accept that which was common
to all the nations and to reject the rest. Consequently the ius gentium differs greatly
from the ius civile. The ius gentium is more flexible and there is more emphasis on
general guidelines. Bona fides, that is to say a litigant's disposition of good faith,
was a more important criterion, for example, than compliance with formal
procedures in trying a case. Soon the praetor for the ius civile, the praetor urbanus,
began looking at what his colleague was doing regarding a particular problem when
he himself wanted to apply I the law. In this way many ius gentium principles were
taken into the ius civile. For I instance, a number of new contract forms became
part of the ius civile in this way. In 212 AD the distinction between the two legal
systems fell away when all free inhabitants of the Empire were given citizenship.

4. Roman Law in the West after the fall of the Empire in 476 AD

4.1 Germanic law

Very little is known about the early tribal laws of the Teutonic tribes which gained
control over the Western Roman Empire. Julius Caesar gives some details in
accounts of his campaigns in Gaul as does the historian Tacitus. Germanic law was
apparently not written down; legal acts (such as concluding contracts) were
conducted in a symbolic form before an assembly of the people and they were
accompanied by the utterance of legal maxims. Very soon after these tribes
established themselves on the territory of the Western Roman Empire they began to
record their tribal laws. These written down tribal laws were later called the leges
barbarorum to distinguish them from the leges Romanorum which the Germanic
rulers compiled specifically for their Roman subjects (and about which more will be
said in the next section).

4.2 The Personality Principle and the Survival of Roman Law

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The occupying tribes, applied the personality principle, in terms of which
someone lived according to the law of his tribe regardless of what (other) tribe's
territory he was in. There is no agreement on the origin of this principle, but it
undoubtedly contributed largely to the survival of Roman law in the West. The
Germanic rulers did not only permit their Roman subjects to live according to
their own laws, but they also created codifications of Roman law (the leges
Romanes) even before Justinian began doing this for the Eastern Roman
Empire. The new Visigothic code in 654 AD replaced all other codes after the
distinction between Goths and Roman subjects eventually fell away as a result
of intermarriage.

4.3 The Feudal System

As a result of intermarriage the various tribes began to lose their own identities. The
feudal system also meant that people increasingly regarded themselves as
inhabitants of a particular region rather than as members of a particular tribe or
subjects of a particular ruler. These and other factors contributed to the personality
principle gradually being replaced by the territoriality principle. According to this
principle the same legal rules applied to all those who were living in a particular
region at a given time regardless of whether they were inhabitants of that region or
foreigners. Law thus became regionally binding rather than personality bound.

Regional laws arose for the inhabitants of feudal estates; by about 1000 AD these
were primarily customary laws. The content of these regional legal systems was
largely determined by the earlier history of the various regions. In the north of
France, for example, such systems were strongly orientated towards Germanic law
while in the south they were more Roman in character. In about 1230 AD one set
of these regional laws, that of the Saxons, was set down in writing. This codification
was known as the Sachsenspiegel and had a great influence in the area known
today as Germany. In the north of Italy the Longobardian influence was dominant
while in middle-Italy it was the Roman influence. Because of the growth in trade,
cities also became very powerful and developed their own customary law, known
as city laws.

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4.4 Canon law

Apart from the various regional and urban laws referred to in the previous section,
the Roman Catholic Church also had its own legal system. The church, with its seat
in Rome, lived according to Roman law (ecclesia vivit secundum legem Romanum).
Works such as the Lex Romana Canonice Compta dating from the ninth century, for
example, were based on the Institutes and the Codex of Justinian. The church was
in an ideal position to preserve Roman law and in fact played a key role in this
respect during the Middle Ages. The church was also responsible for the
preservation of Roman legal texts. Roman law was supplemented by resolutions of
the Church. In this way cannon law eventually developed into an independent legal
system. Cannon Law was not applied only in strictly ecclesiastical matters but also to
issues which would today be controlled by civil law, such as marriages, wills and
executors. Cannon law was arranged systematically and recorded. This record of
Canon law was used as a manual for students at law schools such as Bologna and
Orleans.

5. The revival of Roman law and its reception in Northern Europe

5.1 The Middle Ages

The history of medieval law in the West extends from the rise of the Eastern Roman
Empire and the fall of the Western Roman Empire in 476 AD to the late fifteenth
century, by which time the Eastern Roman Empire had also fallen and the cultural
and intellectual revival known as the Renaissance had begun. The reformation of
the church, the Great Reception of Roman law, the rise of the idea of nation states
and the Europeans' exploration of the surface of the earth all date from the period of
cultural and intellectual ferment at the time of and directly after the Renaissance.

5.2 The Glossators

At this time in Bologna in Northern Italy a law school was established which
concentrated particularly on the Digesta. This involved writing explanatory notes,
called glossae, in the margins of the texts of Roman law. There were probably two
reasons why this method was used. Firstly, the scholars who began studying the
Digesta had a linguistic interest in it. Secondly, the glossators still regarded
Justinian law as the existing law of their time and therefore to a large extent

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respected the emperor's prohibition of a free interpretation of and commentary on
his work. A gloss was originally a note between the lines or in the margin explaining
a difficult word or phrase, but it soon developed into a complete exposition and
explanation of the relevant principle. Texts were compared and there were attempts
to reconcile conflicting statements. Later the glossators also wrote summaries,
treatises and discussions on disputed issues, but the glosses are their most
important heritage. They were collected under the name Glossa Ordinaria. These
glosses were reprinted with issues of the Corpus luris Civilis up until the
seventeenth century.

The glossators laid a basis for the academic study of law upon which later schools
could build, and they exercised a great influence throughout Europe because of
their many students. The authority of the glosses was also soon accepted in the law
courts of the time. Yet the glossators are open to the criticism that they totally
ignored the law of their own time and considered the Corpus luris Civilis as the only
source of law. From a historical perspective, however, it is precisely this approach of
theirs which meant that a purer form of Roman law was eventually received in
Europe.

5.3 The Great Reception

This label is given to the process whereby Roman law was incorporated in to the
legal systems of the Germanic regions. Reception refers to the fairly large-scale
adoption of principles of one legal system into another. Up to about 1400 the law of
the Germanic tribes in what is today Germany, Austria, Belgium and the
Netherlands was customary law supplemented by legislation issued by the
respective Germanic emperors. As Christianity spread, the church, with its own legal
system, penetrated these regions and this paved the way for Roman law. The
revival of the academic study of Roman law was carried from Italy to these areas
and the subject was taught at the newly established universities. The uniformity of
Roman law was an attractive alternative to the legal fragmentation so characteristic
of the various systems of customary law.

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6. The Reception of Roman Law in the Netherlands

As explained before, after its revival Roman law penetrated Europe and became the
ius commune of the European continent. The process began early and initially took
place very slowly. The factors assisting reception were the same here as in the
other countries. The church initially served as precursor, because canon law and
Roman law went hand in hand. The idea that the Holy Roman Empire was a
continuation of the original Roman Empire must have played a role although there
are differences of opinion about this today.

Students who went to study in Italy after the revival must naturally have brought
back Roman law influences with them. Roman law as developed by the glossators
and commentators, was received in, and merged with, the local Germanic (Dutch)
customary law. This led to the creation of so-called Roman-Dutch law. Roman-
Dutch law can be found in legislation (placaaten) of the Estates-General, in
decisions of the Dutch courts, and especially in the writings or treatises of the
Roman-Dutch jurists. The most important Roman-Dutch jurists together with their
best known works are; Hugo de Groot, Johannes Voet, Simon van Leeuwen and
Johannes van der Linden.

Modern South African law is probably "more Roman-Dutch" than modern Dutch law
itself! This is so on the one hand because Roman-Dutch law became established in
South Africa due to the coming together of a number of circumstances (as will be
seen in due course) and on the other hand because Roman-Dutch law began to
lose its influence in the Netherlands to a large extent as a consequence of the
particular history of codification there.

7. The Development of South African Law

7.1 Roman-Dutch law at the Cape

When Jan van Riebeeck established a refreshment post at the Cape of Good Hope
on behalf of the Verenigde Geoctroyeerde Oost-Indische Compagnie (VOC) on 6
April 1652, he also brought Roman-Dutch law with him, and this legal system
became established largely through custom. But obviously Roman-Dutch law did not
remain static for the almost one hundred and fifty years of Dutch rule at the Cape.

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It was firstly supplemented and extended by legislation (in the form of placaaten).
Certain placaaten obtaining in Holland before 1652 also became valid at the Cape if
they were:

• of general validity, or

• expressly issued for the Cape, or

• incorporated by the old writers into their works and in this way became part of
RomanDutch common law.

7.2 Retention and expansion of Roman-Dutch Law

The Cape came under British rule for the first time in 1795 and then again finally in
1806. One would have thought that these historical facts in themselves would have
sounded the death knell for Roman-Dutch law. But this did not happen

The (new) British rulers at the Cape had the fullest right to abolish Roman-
Dutch law as they pleased and replace it with English law. Yet this never
happened — even though it was at some stages considered. In the capitulation
conditions of 10 and 18 January 1806, the new British rulers guaranteed the
"burghers and inhabitants" of the Cape that they would retain the "rights and
privileges which they have enjoyed hitherto". Taken very broadly these
conditions included the retention of the (Roman-Dutch) law whereby they
enjoyed their rights and privileges. Yet to say that Roman-Dutch law at the
Cape Colony was never formally replaced by English law does not mean that
there was not large-scale infiltration and even reception of English law in
certain fields. This was actually unavoidable in view of the fact that the British
were the dominant political force at the Cape.

In 1819 the English law of criminal procedure was imported into South Africa. In
1827, with the acceptance of the First Charter of Justice, the Dutch court structure
was replaced with a structure which was essentially English in orientation. The Raad
vanjustitie was replaced by the Cape Supreme Court (consisting of a chief justice
and two other judges). Resident magistrates replaced landdrosten and heemraden.
Provision was also made for trial by jury, as was typical in England, and from this
time the legal profession would consist of two branches: attorneys and advocates.

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The English law of criminal procedure was finally accepted in 1828 and the English
law of evidence in 1830.

Although the British authorities never abolished Roman-Dutch law, the influence of
English law in our legal system is inevitable. English law exerted its influence
especially through legislation and precedent (court decisions or case law).

7.3 Interaction between Roman-Dutch and English law

Since 1910 the interaction between Roman-Dutch and English law has taken place
primarily in the spheres of legislation and the administration of justice (and hence
also in the case-law). In fact, the infiltration of English law into South African statute
law has continued since 1910 in the same ways (and to the same extent) as
described previously. In certain fields where statutes play a key role, such as
company law, the law of insolvency and banking law, the relevant English law was
received virtually in its entirety. In legal fields which have a very close link with the
administration of justice, such as the law of procedure (criminal as well as civil) and
the law of evidence, English law also plays a dominant role. The role of English law
after the establishment of the Union provoked a debate among South African jurists
and split them into two camps:

• The Modernists: They respected Roman-Dutch law, and regarded it as the

basis of the South African common law, but realized that the law had to
develop and adapt in order to suit modern South African demands.
Accordingly, they used English law in order to ‘modernise’ roman-Dutch law.

• The purists: They considered the modernists as contaminators of Roman-

Dutch law. The purists applied themselves to the conservation of pure
Roman-Dutch law and tried as far as possible to rid it of English influences.

Today the whole debate has ceased. It is now accepted that English law has had a
permanent influence in certain areas of our legal system.

8. Indigenous legal systems

Before the arrival of the colonists in South Africa there were in fact indigenous
populations which had lived for generations according to their own distinctive law.
Such an indigenous legal system has certain typical characteristics. As unwritten

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customary law it is passed on orally from generation to generation and naturally has
strong ties with culture, tradition and tribe. These systems did not develop within a
complex structure in which government and private activities are clearly
distinguished from one another. It mainly regulates the relationship between
individuals.

Initially the colonial authorities ignored indigenous law. After the establishment of the
Union, a uniform policy for the whole of South Africa regarding the
acknowledgement and application of indigenous law was laid down by the Black
Administration Act of 1927. This act provided for a special court system for black
people and for the application of indigenous law. Most of these special courts were
abolished in the 1980’s.This means that indigenous law is presently applied by the
ordinary courts. Dualism exists within our legal system in the sense that not only
RomanDutch law as influenced by English law is applied, but also indigenous law.

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