Gavin Howe
South African law is a mixed legal system with origins in the civil law systems of Europe and the common law of England. The country's case law is developed by the Constitutional Court, the Supreme Court of Appeal, and the High Courts. The Constitutional Court, established in 1994, is the highest court in South Africa for constitutional matters and other matters granted leave to appeal. The Supreme Court of Appeal hears appeals from the High Court, except in labour or competition matters. The Constitutional Court's decisions have had a profound impact on the law in South Africa, with a rich pool of constitutional jurisprudence developed since its first hearing in 1995. South African case law can be accessed through online databases such as LexisNexis (South Africa) and the Southern African Legal Information Institute (SAFLII), which offers free public access to case law and legislation.
| Characteristics | Values |
|---|---|
| Highest court | Constitutional Court |
| Highest court on constitutional matters | Supreme Court of Appeal |
| Highest appellate court on non-constitutional matters | Supreme Court of Appeal |
| Court location | Bloemfontein |
| Court sitting location | Johannesburg, Gauteng Province |
| Court sitting requirements | 3-5 judges |
| Court establishment year | 1994 |
| First hearing year | 1995 |
| Law system | Mixed legal system |
| Law origins | Civil law systems of Europe, common law of England |
| Law foundation | Roman-Dutch law |
| Indigenous law | Integral part of South African law |
| Foreign law | Frequently consulted |
| Law compliance | Constitution |
| Case citation | Name of parties, year reported, law report, division of court |
| Case search | LexisNexis, Juta, SAFLII |
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What You'll Learn
The Constitutional Court
The duties that fall to the other courts are also borne by the Constitutional Court. All courts in South Africa have to apply the Constitution and the law "without fear, favour or prejudice". The Constitutional Court has to interpret, protect, and enforce the Constitution.
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The Supreme Court of Appeal
The SCA is the second-highest court of appeal in South Africa, below the Constitutional Court. It is located in Bloemfontein, which is often referred to as the "judicial capital" of South Africa. The SCA's role is to decide appeals in any matter arising from the High Court or a court of a similar status, except in labour or competition matters.
The SCA is composed of a President, a Deputy President, and several ordinary Judges of Appeal determined by an Act of Parliament. There are currently 23 ordinary positions on the court. Cases before the SCA are typically heard by panels of five judges.
Before the establishment of the Constitutional Court in 1994, the SCA was the highest court on all matters except constitutional issues. The Constitutional Court's jurisdiction initially only extended to constitutional matters. However, an amendment to the South African Constitution in 2013 gave the Constitutional Court general jurisdiction, superseding the SCA in all matters.
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High Courts
South African law is a 'mixed legal system', with origins in the civil law systems of Europe and the common law of England. The common law of South Africa is rooted in Roman-Dutch law, which was introduced to the country by Dutch settlers in 1652. During the British occupation of the Cape, from 1795 to 1803 and again after 1806, Roman-Dutch law was retained as the common law of the country.
The Constitutional Court, established in 1994, is South Africa's highest court on constitutional matters and the highest appellate court on other matters if the Court grants leave to appeal. The Constitutional Court sits in Johannesburg in the Gauteng Province and has the final decision on whether a matter is a constitutional issue.
The Supreme Court of Appeal's role is to decide appeals in any matter arising from the High Court or a court of similar status, except for labour or competition matters. South Africa has several High Courts, including the Eastern Cape High Court in Bisho, the Kwazulu-Natal High Courts in Durban and Pietermaritzburg, the Limpopo High Court in Polokwane, the Mpumalanga High Court in Mbombela, the Northern Cape High Court in Kimberley, the North Gauteng High Court in Pretoria, the South Gauteng High Court in Johannesburg, and the Western Cape High Court in Cape Town.
The Southern African Legal Information Institute (SAFLII) publishes legal information for free public access, primarily case law and legislation from South Africa. SAFLII also hosts legal materials from other countries in the region, obtained through partnerships and collaborative efforts.
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Mixed legal system
South Africa has a 'hybrid' or 'mixed' legal system, formed by the intertwining of several distinct and diverse legal traditions. The country's legal system is a combination of a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often referred to as African Customary Law, with variations depending on tribal origin).
The English influence is most evident in the procedural aspects of the legal system and methods of adjudication, such as criminal and civil procedure, company law, constitutional law, and the law of evidence. On the other hand, the Roman-Dutch influence is more visible in substantive private law, including contract law, tort law, family law, and the law of persons and things. This Roman-Dutch law was introduced to South Africa by the Dutch East India Company in 1652 and was later infused with British common law in the early 19th century.
The South African court system is organised in a clear hierarchy, with the Constitutional Court at the apex, followed by the Supreme Court of Appeal, and then the High Courts, including the Eastern Cape High Court, Kwazulu-Natal High Court, Limpopo High Court, Mpumalanga High Court, and more, all the way down to the Magistrates' Courts at the lowest level. This hierarchy is established by Chapter 8, Section 166 of the Constitution of the Republic of South Africa.
The country's legal system recognises the importance of indigenous laws and customs, incorporating them into the overall legal framework. These customary laws function as district or local courts where appropriate. The Roman-Dutch legal system, introduced in 1652, held sway until the formation of the Union of South Africa as a British dominion in 1910, when English law began to be incorporated into South African law. Even after this transition, Roman-Dutch law continues to serve as a foundation for South African law in areas not covered by English law.
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Indigenous or customary law
South African customary law refers to an uncodified legal system developed and practised by the indigenous communities of South Africa. It has been defined as:
> an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councillors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules as well as gender.
Customary law in South Africa has its roots in the diverse indigenous groups that practised it. The arrival of colonial settlers in 1652 led to the development of "native customary law", which combined indigenous customs with British legal procedures. This Shepstone system enforced a patriarchal hierarchy and became the foundation for policies dealing with indigenous peoples for decades.
The Constitutional Court has played a significant role in interpreting and applying the rights and principles in the Constitution pertaining to African customary law (ACL). In the case of Bhe v. Magistrate, Khayelitsha, the Court held that the customary rule of male primogeniture was unconstitutional, advancing women's rights in the law of succession. Similarly, in Gumede v. The President of the Republic of South Africa, the court found certain provisions under the Recognition of Customary Marriages Act of 1998 (RCMA) to be discriminatory and unconstitutional. This Act codified and reformed the law of African customary marriages, including polygynous marriages, by requiring legal recognition and compliance with statutory requirements to eliminate discrimination.
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Frequently asked questions
The Constitutional Court is the highest court in South Africa for constitutional matters and matters that raise a point of law of general public importance. It was established in 1994 and heard its first case in 1995.
The foundation of South African common law is Roman-Dutch law, which was introduced by Dutch settlers in 1652. It was retained as the common law of the country during the British occupation of the Cape from 1795 to 1803 and after 1806.
Case law in South Africa can be found on the website of the Southern African Legal Information Institute (SAFLII), which publishes legal information for free public access. LexisNexis (South Africa) is another source, which includes the All South African Law Reports, Butterworths Constitutional Law Reports, and more.
