About this module
Legal History explains where South African law comes from: Roman law, its revival in medieval Europe, Roman-Dutch law brought to the Cape, the English influence after 1806, customary law and its distortion under colonial and apartheid rule, and the move to constitutional supremacy in the 1990s. Knowing this history explains why South African lawyers still cite Voet and Grotius, why procedure looks English, and why customary law is now recognised in its own right. Educational tool, not legal advice. All law is South African.
Level: usually first year (LLB). Prior knowledge: none; it pairs with Module 1 (Introduction to Law).
How this guide teaches. Each chapter starts with a problem, gives the big picture, teaches the key developments and, where useful, case boxes (the legal issue, what the court held, and why it matters), lists common mistakes, sums up in short, and ends with practice questions, flashcards and a quiz. Cases are taught by the legal issue they decide, not by their facts.
Common cases and how they are checked
| Chapter | Case | Legal issue | Status (28 October 2026) |
|---|---|---|---|
| LH7 The twentieth century | Bank of Lisbon and South Africa Ltd v De Ornelas [1988] ZASCA 35; 1988 (3) SA 580 (A) | Is the exceptio doli generalis part of South African law? | Dissent read on SAFLII; majority judgment not available on the page read |
| LH8 Customary law | Alexkor Ltd v Richtersveld Community [2003] ZACC 18; 2004 (5) SA 460 (CC) | What is the status of indigenous law under the Constitution, and how is it ascertained? | Read on SAFLII |
| LH8 Customary law | Bhe v Magistrate, Khayelitsha [2004] ZACC 17; 2005 (1) SA 580 (CC) | How did colonial law distort customary law, and is the official rule of male primogeniture constitutional? | Read on SAFLII (to para 138) |
| LH9 The constitutional era | S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC) | How does constitutional supremacy change the role of Parliament and public opinion? | Read on SAFLII (to para 117) |
Module blueprint
| Chapter | Question it answers | Outcome |
|---|---|---|
| LH1 Why legal history matters | Why is South African law called a mixed system? | LLH1 |
| LH2 Roman law | How did Roman law develop, and what did Justinian compile? | LLH2 |
| LH3 The revival of Roman law in Europe | How did Roman law become the common law of Europe? | LLH3 |
| LH4 Roman-Dutch law | What is Roman-Dutch law, and who are its main writers? | LLH4 |
| LH5 Law at the Cape | How did Roman-Dutch law come to South Africa? | LLH5 |
| LH6 The English influence | Which areas of law became English, and why? | LLH6 |
| LH7 Union and the twentieth century | How did South African law develop between 1910 and 1990? | LLH7 |
| LH8 Customary law | How was customary law treated, and how is it recognised today? | LLH8 |
| LH9 The constitutional era | How did the Constitution change South African law? | LLH9 |
LH1: Why legal history matters
Problem. A first-year student asks why, in 2026, a South African court would cite a Dutch writer from 1698.
The big picture. South Africa has a mixed (hybrid) legal system. Its common law is Roman-Dutch law, much influenced by English law, and it exists alongside customary law, all subject to the Constitution (Constitution s 2). The private law (contract, delict, property, persons) is mainly Roman-Dutch in origin; procedure, evidence and much commercial law are mainly English in origin. The old authorities remain authoritative sources of the common law: courts use them as evidence of what the common law is, choose between them where they disagree, and may develop the law under the Constitution.
LH1.1 Why history is a working tool
- To find the content of a common-law rule, courts may go back to Roman-Dutch writers and, behind them, to Roman law.
- To understand why a rule exists, and whether it should be developed (Constitution s 39(2)).
- To understand the injustices built into the law under colonialism and apartheid, which the Constitution aims to undo.
Back to the problem. The Dutch writer (Johannes Voet, whose Commentarius ad Pandectas was published 1698–1704) is an authority on Roman-Dutch law, which is South Africa's common law. If no statute or binding precedent decides a point, the court may rely on him.
In short. Mixed system: Roman-Dutch common law with English influence, customary law, all under the Constitution. History is used to find and to develop the law.
Common mistakes
- Calling South African law "English law".
- Thinking old authorities have no force today; they remain authoritative sources of common law (though not binding like precedent).
LH1 practice
- Name the two main legal traditions that form South Africa's common law. Answer: Roman-Dutch law and English law.
Flashcards
| Front | Back |
|---|---|
| South Africa's legal system | Mixed (hybrid): Roman-Dutch and English common law, customary law, under the Constitution |
| South Africa's common law | Roman-Dutch law, influenced by English law |
| Areas mainly English in origin | Procedure, evidence, much commercial law |
| Areas mainly Roman-Dutch in origin | Contract, delict, property, persons, succession |
| Constitution s 2 | The Constitution is the supreme law |
Quiz
- South Africa's common law is best described as: (a) English law (b) Roman-Dutch law with English influence (c) customary law only. Answer: (b).