+++
date = 2025-11-03
title = "The Legal Tradition of South Africa (and some of its neighbors)"
+++
> updated 14.12.25 with corrections and improvements

the legal system of the republic of south africa is a mixture of common, civil, and customary law. interestingly, both common law and customary law are explicitly mentioned in the text of the constitution (constitution of the republic of south africa, 1996): “when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the bill of rights.” (chapter 2 (bill of rights), section 39(2)).

to understand how this came to be, a brief excursion into the history of south africa is required. in 1652, the netherlands, represented by the voc (vereenigde oostindische compagnie, the dutch east india company), established the first european colony in what is now south africa. along with them, the colonizers brought roman-dutch law. of course, local legal customs existed there before this, but they were not documented, and therefore not much is known about them.

the dutch administration remained in various forms until the beginning of the 19th century. during this period, the colonial administration imported laws in the style of the metropole to regulate more complex and abstract social relations, including contracts, trade, and much more.

in 1806, the dutch colonies de facto came under the control of great britain (and de jure in 1814). during the period of british rule, there were several colonies in south africa, each with its own approach to governance. for example, in the colony of natal, customary law, which was much more applicable to the daily life of the indigenous population, was not completely eradicated. a 19th-century report concluded that “customary law is not incompatible with roman-dutch law,” which still held great influence at the time. in the northern colonies, by contrast, the codification of customary laws and the coercion of indigenous people to adopt the new codified law were actively practiced.

the influence of common law grew gradually. for instance, it was under english influence that trial by jury appeared and became widespread in south africa. in 1910, the union of south africa was formed, which was within the british sphere of influence. this led to an even greater increase in the influence of common law, and by 1931, a mixed legal system had emerged under english influence: a skeleton of english law and the flesh of roman-dutch law (hahlo, h. r., & kahn, e. the union of south africa: the development of its laws and constitution. — cape town: juta & company, 1960).

in 1931, south africa gained independence, though it remained in the commonwealth of nations. a little earlier, a law was passed that secured the position of customary law. in 1948, apartheid was established in south africa – a system in which the population was segregated based on race. under this regime, the country's authorities used a distorted and codified version of customary law to control the african population through a system of bantustans and appointed chiefs (for example, through the "bantu authorities act" of 1951), although it was de facto supported by external force. furthermore, with the proclamation of a republic in 1961, the country began to distance itself from common law. for example, by 1969, trial by jury had been abolished. after the apartheid regime fell by 1990, the country found itself in a situation where it needed to fill the legal void left by the old law, which had become illegitimate due to its close ties with apartheid.

at that moment, the legal system that has survived to our time, albeit with certain changes, was created. the main event in the formation of south africa's legal system was the adoption of the 1996 constitution, which explicitly enshrined the mixture of different legal traditions: “the bill of rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation…” (chapter 2, section 39(3)).

the constitution itself de facto divides all law into “common law” and “customary law.” it is important to note that what the constitution calls “common law” is in fact a complex interweaving of two legal traditions: common law and civil law.

the following are borrowed from the civil law tradition:
*   the format of the constitution
*   the bill of rights as part of the constitution
*   the law of property and obligations. for example, south africa's legal system follows the classification of things adopted in roman law
*   principles of family law
*   the law of succession

the importance of the bill of rights (chapter 2 of the constitution) deserves special attention. all courts are instructed to interpret all matters based on it and in accordance with its spirit. this idea is part of transformative constitutionalism – a politico-legal concept, particularly prevalent in south africa, which establishes that the constitution is not just a set of dry rules, but an active instrument for transforming people's lives and eliminating inequality. according to this concept, the constitution is a kind of “project for the future,” on the basis of which courts have quite broad discretion and a duty of active intervention. for example, under this concept, any right becomes enforceable, even if there is no law that effectively supports that right and which has been violated. at this point, it is logical to discuss what was borrowed from the common law tradition:
*   procedural law, where both civil and criminal processes are based on the english adversarial model.
*   the law of evidence, which is almost entirely copied from english law
*   commercial and corporate law
*   administrative law
*   the important role of judicial precedent

at the same time, courts are supposed not just to interpret but to “develop” the common law (as written in section 173 of the constitution). it is also specified that only the constitutional court, the supreme court of appeal, and the high courts may do so (there used to be a separate supreme court of general jurisdiction, as in classic civil law countries, but it was reformed into the supreme court of appeal), but not the lower (magistrates') courts.

this system, mixing two major legal traditions, is interesting but not unique in itself. what makes it particularly interesting is chapter 12 of the constitution, which recognizes traditional leaders and also obliges courts to apply customary law in proceedings where it is applicable. the constitution itself does not provide more details on how this system should be structured, but many details on how such a feature, so unusual for modern legal systems, should work can be learned from two important cases decided by the constitutional court.

the first such decision was in 2001 in the case of _alexkor v richtersveld community_, where the court faced the question of whether the richtersveld community had a right to the land in 1913 and whether it had been violated by unjust laws. in its judgment, the court established two crucial principles for working with customary law. first, customary law is an independent source of law that should be applied separately, not through the prism of common law. second, the court established that customary law is limited by the constitution and by laws that directly regulate it. at the same time, the court noted that indigenous law is not a fixed set of formal norms and easily definable rules, but a living organism consisting of the traditions of the people who live by such law. these traditions are passed down from generation to generation, dynamically adapting to the needs of the community that practices this law. in the end, the court ruled that the land belonged to the community.

despite this, customary law was still avoided in many proceedings due to the difficulty of working with it. this was largely changed by the case of _shilubana and others v nwamitwa (2008)_, in which the court considered shilubana's complaint that the valoyi community had elected a woman as its leader (hosi), whereas previously the senior male of a particular family, which was shilubana, had been elected. in that case, the constitutional court established a special test setting out general principles for the application of customary law. it includes consideration of the traditions of the subjects of the law (including existing practices), the right of traditional communities to develop their own law (including an examination of the process that led to the changes), and a search for a balance between the old and the new (by comparing the consequences of different decisions for the various parties to the case and for third parties). the court then decided that the valoyi community's decision to appoint ms. shilubana as chief was a legitimate development of their customary law.

these cases did not resolve all the issues related to customary law (for example, we have not considered the question of what to do if traditional law conflicts between different communities or if it contradicts the constitution by violating someone's rights). however, they established an important foundation for its application, allowing it to be used in various cases without compromising legal certainty.

in summary, the south african legal tradition (which, in addition to south africa, is also used with its own peculiarities in namibia, zimbabwe, eswatini, botswana, and lesotho) is an interesting mixture of a civil law foundation, common law processes and specific spheres, and the traditional law of local communities, for the consideration of which it is especially important to understand the spirit of the constitution.