History of Modern South African Law
The history of modern South African law begins with the creation of a Dutch settlement by Jan van Riebeeck in 1652 on the Cape of Good Hope . Dutch law established itself as the legal system of the colony, which soon prospered through the settlement of Dutch, Huguenots and Germans . This Roman-Dutch law ( African Romeins-Hollandse reg , English Roman-Dutch law ) remained in force even after the Cape became an English colony in 1806 - paradoxically, only three years later in the Netherlands it became Roman-Dutch Right on the orders of Napoleon replaced by the French legal code civil .
However, the change of colonial rulers did not remain without influence on the legal system. In the area of evidence and procedural law in particular, the British modeled the legal system on the English common law . In areas of law that - such as securities, bankruptcy, maritime trade, insurance and company law - were subject to the rapid changes in business dealings, the obvious solution was to fill the gaps in Roman-Dutch law by adopting British law. As a third - and most inconspicuous - way, English law penetrated the Cape Colony through the trained judges and lawyers .
The merger of the Cape Colony with the Boer Republics to form the South African Union in 1910 marked a turning point for the reception of common law . The population developed a growing sense of independence from Great Britain, which in the legal field is characterized by the emancipation of universities from the mother country: the lawyers trained at South African universities rediscovered the sources of Roman-Dutch law and adapted them with the help of it Basic principles to the realities of the time, a process that continues into the present. This is most evident in the area of property, family and inheritance law. In contrast to common law, South African law still knows uniform property in the Roman-Germanic legal tradition, which is clearly separated from limited real rights and property in terms of definition. The trust , as a typical legal institution of common law, is unknown in South Africa; its function is taken over by Roman-Dutch legal institutions such as entails , contracts in favor of third parties and donations for pious purposes ( donatio ad pias causas ) .
The law of South Africa as a whole is therefore neither clearly assigned to common law nor to the Roman-Germanic legal system, but a mixed legal system :
Like a jewel in a brooch, the Roman-Dutch law in South Africa today glitters in a setting that was made in England. Even if it were true (which it is not) that the whole of South African private and commercial law had remained pure Roman-Dutch law, the South African legal system as a whole would still be a hybrid one, in which civil and common -law elements jostle each other .
“Today in South Africa, Roman-Dutch law glitters like a gem in a brooch in a setting that was made in England. Even if it were true (which it is not) that all of South African private law and commercial law had remained pure Roman-Dutch law, the South African legal system as a whole would still be a hybrid in which elements of Roman-Germanic and English law are mutually exclusive bump into them. "
See also
Individual evidence
- ^ A b c Konrad Zweigert , Hein Kötz : Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, B. § 16 VI., P. 227-231 .