South Africa has a “hybrid” or “mixed” legal system[1] formed by the interweaving of a number of different legal traditions: a civil law system inherited from the Dutch, a customary law system inherited from the British, and a customary law system inherited from indigenous Africans (often called African customary law, of which there are many variations depending on tribal origin). These traditions had a complex relationship, with English influence most clearly expressed in procedural aspects of the legal system and jurisprudential methods, and Romano-Dutch influence most clearly expressed in its substantive private law. [2] As a general rule, South Africa follows English law in matters of criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in South African contract law, tort law, personal law, substantive law, family law, etc. With the entry into force of the interim constitution in 1994 and its replacement in 1997, the final constitution, another component was added to this fabric. In addition, the legislation has also created a number of specialized courts to deal with specialized areas of law of importance to the public and to avoid a delay in the main infrastructure of law administration. These courts exist alongside the judicial hierarchy; Their decisions are therefore subject to the same appeal and review procedure by the ordinary courts, from a certain level, depending on the specialised court concerned. Within these specialized courts, there are, to name but a few, the Court of Appeal for Competition, the Electoral Tribunal, the Land Claims Tribunal and the Labour and Labour Court of Appeal. [10] From April 6, 1652, the Dutch landed at the Cape of Good Hope, the Romano-Dutch legal system and its legislation and laws increasingly prevailed, until on May 31, 1910, the Union of South Africa was founded as a dominion of the British Empire. Even then, and to this day, wherever English law does not exist, Roman-Dutch law forms the foundation to which South Africa looks in its quest for clarity in its law. [ref.
While legal training at university is the same for a career as a lawyer or lawyer (BA, LLB or LLB, LLM), the paths at the training level diverge. Lawyers undergo a 2-year training course known as articles in a law firm, followed by exams. Lawyers undergo a 1-year training course known as pupillage, are assigned to a “Master`s degree” in private practice, and the training includes advocacy, drafting and litigation (but not transfer of ownership), among others. In addition to South Africa itself, South African law, particularly its civil and common law elements, forms the basis for the laws of Botswana, Lesotho, Namibia, Eswatini and Zimbabwe, which were introduced during colonization. Basutoland (Lesotho) received the right of the Cape Colony in 1884, Bechuanaland (Botswana) and Southern Rhodesia (Zimbabwe) in 1891. [3] Swaziland (Eswatini) received the right of the Transvaal colony in 1904,[3] and South West Africa (Namibia) received the right of the Cape Province in 1920, after its conquest by South Africa. [4] Second, a single High Court with multiple divisions across the country, both regional (with province-wide jurisdiction) and smaller local divisions (with geographically smaller jurisdiction, usually over densely populated areas), introduced by the Superior Courts Act, 2013. This can be clearly seen in Gauteng, which has both the High Court of South Africa Gauteng Division, Pretoria, which sits in Pretoria, and the High Court of South Africa Gauteng Local Division, Johannesburg, which sits in Johannesburg. [6] All the names of the High Court have been clarified by the Chief Justice and appear on page 14 of South Africa`s Law Gazette No. 37390 of 28 February 2014.
[6] Until 1795, the Seven United Provinces of Holland were an independent sovereign state. Together with the other territories of the Netherlands, it was organized into a fairly free political entity known as the Republiek der Vereenigde Nederlanden (United Republic of the Netherlands). [12] Originally it was a rural area, but rapid development in the 15th century turned it into a commercial center. The old Germanic customary law was no longer able to settle disputes in everyday trade, and the Dutch turned to more advanced Roman law. They adopted it and changed their lives so well that the great Dutch jurist Hugo de Groot (Grotius) in the early 17th century was able to call this fusion (or combination) of Dutch and Roman principles a “new” legal system with its own content. Thus began Romano-Dutch law. It would later form the basis of today`s common law in South Africa in a form that had been extended by the so-called placaats, the legislation of the time. [12] As a former English colony, the legal profession follows the legal profession in the United Kingdom, as a distinction is made between barristers and solicitors. It is also called the profession of reference, which means that a client must first consult a lawyer in each case, who in turn will hire a lawyer. With early origins in Romano-Dutch law, South Africa follows the common law tradition (i.e.
based on previous detailed decisions of higher courts/case law) with adversarial procedure (but without a jury system) and includes English procedural law. The next level is the high courts of each province, which sit as civil and criminal courts. The jurisdiction of the High Courts is based on substantive and personal jurisdiction in civil matters and is presided over by a single judge. In criminal matters, it is competent to hear serious offences and minimal criminal proceedings, which are presided over by a single judge with 2 assessors. Some high courts operate as provincial division high courts, in which case they sit as courts of review and appeal in civil and criminal cases of the courts of first instance or the High Court under its jurisdiction. Generally, appeals are presided over by three judges. There are currently 14 provincial divisions of the Supreme Court. There are other superior courts, such as the Land Claims Court and the Labour Appeal Court, both of which were created under separate legislation. Important decisions or judgments of the High Courts are reported in Law Reports (edited by Juta and Lexis Nexis Butterworths). These include the South African Law Reports (SALR), which include the main judgments of all higher courts and some judgments from Zimbabwe and Namibia, Butterworth`s Constitutional Law Reports, Butterworth`s Labour Law Reports and All South African Law Reports. With the failure of indigenous peoples, as well as successive Dutch and British colonial governments, to grasp the laws of pre-colonial southern Africa, there is a lack of information about laws prior to the colonization of South Africa. [ref.
needed] However, the current South African legal system has recognised the importance of these courts and they have been integrated into the overall legal system, where they can function as district/municipal courts. [ref. In short, it is a dynamic system that tackles the unique problems of emerging markets, ensuring equality and trying to bridge the gap between rich and poor. There is no doubt that lawyers in South Africa are juggling the constitutional challenges and almost forgotten trade issues of the crisis sweeping the EU. The courts of first instance are Magistrate Courts, which are divided into District (similar to the local judge) and Regional (similar to the District Court). Jurisdiction is determined by the Courts of First Instance Act 1944, as recently amended, for civil disputes (usually claims below ZAR 300,000), certain criminal cases and certain family disputes.
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