EXTERNAL AND INTERNAL LEGAL HISTORY
This module deals with the external and the internal history of South African law.
The external history of the law traces the sources and factors that have contributed
directly or indirectly to the development of a legal system. These relate to the political,...
Printed and published by the
University of South Africa
Muckleneuk, Pretoria
HFL1501/501/2018
70696128
InDesign
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PREFACE
Historical Foundations of South African Law (HFL1501) deals with the external and
internal history of South African law. It provides an overview of the sources and factors
that have contributed directly or indirectly to the development of the South African
legal system against the backdrop of the Constitution of the Republic of South Africa,
1996. It further gives an outline of the Roman foundations of South African private
law, explaining the historical development of certain private-law rules and principles.
, The infl uence of the Constitution on the common-law principles of the law of
property and obligations is discussed and provides insight into the current legal
principles guiding the transformation of South African law.
Because South Africa has a multi-cultural society, South African law is built on various
legal systems. The South African legal system is multi-layered. It is an uncodifi ed,
hybrid legal system that relies not only on the Constitution ‒ the supreme law of the
land ‒ but on different sources of law. These sources of law include legislation, case
law, common law and indigenous African law. The South African common law mainly
consists of Roman-Dutch law as infl uenced by English common law and adapted over
the centuries by local legislation and judicial precedent. South African law is based on
three main pillars, or composed of three main components, namely an African,
Western and universal or human-rights component. In this module, we trace the
external legal history of the three main components of South African law.
The internal legal historical section of the module focuses on the historical foundations
and basic principles of the law of property and obligations and the relevance of these
foundations in current-day practice. We explain terms, rules, concepts and established
principles related to the Roman law of property and obligations. In addition, legal
problems are identifi ed and solved within the context of modern South African law.
The module illustrates the necessity of the continuous development of the South
African law within the framework of its historical foundations and explains this
development with reference to the interaction between the Constitution and the
historical foundations of South African law.
This study guide contains a range of activities for self-evaluation with comprehensive
feedback, which will enable you to assess your own progress, as well as your
understanding of the origins of the South African legal system. Further assessment will
take place through assignments and a portfolio examination. Tutorial letters containing
important information regarding the study material, assignments and the examination
will also guide you through the module.
HFL1501/501/2018 ( iii ) ( iv )
, Learning unit 1: Setting the scene 2
Learning unit 2: The African component and Islamic law 10
Learning unit 3: The Western component: Roman legal history until the 11th
century 19
Learning unit 4: The Western component: Legal development in Europe
from
the 12th to the 19th centuries 29
Learning unit 5: The development of the Western component in South
African
law before the 1990s 40
Learning unit 6: The South African liberation movement and its contribution
to
the development of South African law and constitutionalism 47
Learning unit 7: The universal component: The history of human rights in
South
Africa 58
Historical foundations and development of the law of property and
obligations 67
Learning unit 1: Setting the scene 68
Learning unit 2: The law of property 74
Learning unit 3: Obligations: The law of contract 106
Learning unit 4: Obligations: The law of delict 136
The role of the Constitution in South African legal development 153
CONTENTS
Page
PREFACE
iii
Part 1: The origins of South African Law 1
Part 2:
HFL1501/501
, Part 3:
Learning unit 1: Setting the scene: The supremacy of the South African
Constitution 154
Learning unit 2: Transformative constitutionalism: The duty to transform society
through law 160
Learning unit 3: Ubuntu and the transformation of South African law 165
Learning unit 4: Conclusions 171
(v)
PREFACE
INTRODUCTION TO THE MODULE
As indicated in the preface, in this module you will learn about the external and the
internal history of South African law. The external history deals with the origins of the
South African legal system, that is, how and where our law began.
South Africa has a multi-cultural society and its uncodifi ed, hybrid legal system is
founded on various legal systems. Apart from the Constitution, the supreme law of the
land, the law may be found in legislation, judicial precedent, the common law, custom
and indigenous African law. The external history in this module traces the historical
development of the three main components of the South African legal system, namely
an African, a Western and a human-rights component. Broadly speaking, the African
component comprises indigenous African law; the Western component consists of
Roman, Roman-Dutch and English law; and the universal, or human-rights component,
comprises human-rights law.
In turn, the internal legal history deals with the origins and development of specifi c
legal rules and principles of the legal system within the framework of the external legal
history. In this module we address the Roman foundations of two areas of the law in
which the historical sources play a particularly signifi cant role in current-day practice,
namely the law of property and obligations.
The module illustrates the necessity of the continuous development of the law against
the background of its roots and explains this development with reference to the
interaction of its historical foundations and the Constitution.
A thorough knowledge of the history of our law is essential to enable you not only to
work with the sources of our law, but also to assess their signifi cance and value.
Through this knowledge you will gain a true perspective of the sources from which our
law developed. A proper understanding of the roots of one’s legal system makes it
possible to undertake meaningful law reform. You must remember that the law
develops with a community in order to satisfy the community’s needs and to keep tread
with the advances in fi elds like medicine, science and technology. Law is not an isolated
social phenomenon. It is infl uenced by economic, religious and moral views and
developments. You will fi nd that unless you look at the context in which concepts that
are part of daily legal practice were originally formed, you will not be able to understand
them properly.
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