1 Fiscaal Crudop, Argument before the Council of Justice (January 1672) in Boëseken, A.J. Uit Die Raad Van Justitie [From the Council of Justice] 1652-1672, 378 (1986) (freely translated by the author from Dutch).Google Scholar

2 Id. Fiscaal Crudop based his prosecution expressly on two Roman-Dutch texts: Damhouder's Practyk Crimineel (1555) and Groenewegen's De Legibus Abrogatis (1649). The expansion of colonial control and jurisdiction was both gradual and haphazard – see generally, Elphick, Richard& Giliomee, Hermann, eds. The Shaping of South African Society 1652-1840, 1989.Google Scholar

3 See generally, Merry, Sally Engle “Law and Colonialism,” Law & Society Review 25 (1991): 889.Google Scholar

4 See infra Part III.Google Scholar

5 For a good general treatment of South African history, see Davenport, T.R.H.& Saunders, Christopher, South Africa: A Modern History (2000).Google Scholar

6 On the classification of legal systems into these and other families, see Zweigert, K.& Kötz, H., Introduction to Comparative Law (1998). In South Africa, the term “common law” is also used to refer to that country's own non-statutory laws. To avoid the confusion this might cause, the term is capitalized (“Common Law”) in this article when it is used to refer to the Anglo-American legal family, but written in lower case when the reference is to the relevant part of South African law. For the sake of uniformity, the same approach is adopted in the case of the term “Civil Law.”Google Scholar

7 See Palmer, V.V. ed. Mixed Jurisdictions Worldwide: The Third Legal Family (2001).Google Scholar

8 According to the 2001 population census, Africans constitute 79 per cent of the population, Whites 9,6 per cent, Coloureds (i.e., people of mixed racial descent) 8,9 per cent, and Indians 2,5 per cent. See http://www.statssa.gov.za. For the complexity of racial labels in South Africa, see Ford, Christopher A. “Challenges and Dilemmas of Racial and Ethnic Identity in American and Post-Apartheid South African Affirmative Action,” UCLA Law Review 43 (1996): 1953, 1985–1986.Google Scholar

9 For details of the institutions and sources of South African law, see Bois, François du “History, System and Sources” in Van der Merae, C.G. and du Plessis, Jacques E., eds., Introduction to the Law of South Africa, 2004.Google Scholar

10 For problems and concerns in this regard, see Hlophe, J.M. “Official Languages and the Courts,” South African Law Journal 117 (2000): 690.Google Scholar

11 See Himonga, C. “A Legal System in Transition: Cultural Diversity and National Identity in Post Apartheid South Africa,” Recht in Afrika 1998:1.Google Scholar

12 For detailed accounts of the development of South African law, see Zimmermann, Reinhard& Visser, Daniel eds., Southern Cross: Civil Law and Common Law in South Africa, 1996; Hahlo, H.R. & Kahn, Elison, The Union of South Africa: The Development of its Laws and Constitution, 1960; Chanock, M., The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice. 2001. A good general history of South Africa during this period is Beinart, William, Twentieth-century South Africa, 2001.Google Scholar

13 On this process, see Corder, Hugh “Towards a South African Constitution,” Modern Law Review 57 (1994): 491.Google Scholar

14 See infra Part IV.Google Scholar

15 Id.Google Scholar

16 For detail regarding the points touched on in this paragraph, see Bois, du supra fn. 9.Google Scholar

17 For detail regarding this period of South African history, see The Shaping of South African Society 1652-1840 supra fn. 2 and Davenport & Saunders supra fn. 5.Google Scholar

18 See generally, Hahlo, H.R.& Kahn, Elison, supra fn. 12.Google Scholar

19 This was often done through the “cuckoo technique”: English precedents were presented as based on the same underlying principles as Roman-Dutch law, and then applied on that basis. For examples, see Southern Cross, supra fn. 12.Google Scholar

20 See generally, Beinart, Ben “The English Legal Contribution in South Africa: the Interaction of Civil and Common Law,” Acta Juridica 1981: 7. For details of what is discussed in this paragraph, see Bois, Francois du & Visser, Daniel, “The Influence of Foreign Law in South Africa,” Transnational Law and Contemporary Problems (2004, forthcoming).Google Scholar

21 For detail on the place of Roman-Dutch authorities in contemporary South African legal practice, see Bois, du supra fn. 9 and Visser, Daniel, “Daedalus in the Supreme Court: The Common Law Today,” Journal of Contemporary Roman-Dutch Law (T.H.R.H.R.) 49 (1986): 127.Google Scholar

22 Id. See also, Zimmermann, Reinhard “Synthesis in South African Private Law: Civil Law, Common Law and Usus Hodiernus,” South African Law Journal 103 (1986): 259.Google Scholar

23 For examples, see Visser, Daniel “Placing the Civilian Influence in Scotland: A Roman-Dutch Perspective,” in Carey Miller, David L. & Zimmermann, Reinhard, eds. The Civilian Tradition in Scots Law, 1997. 239, 249 p.; For details of what is discussed in this paragraph, see Bois, Francois du & Visser, Daniel, supra fn. 20.Google Scholar

24 See Watson, Allan “The Making of the Civil Law,” 41 (1981) (saying “this approach is at least in its intensity, unique to South Africa in the modern world). If anything, this has increased in recent years – see Bois, Francois du & Visser, Daniel, supra fn. 20.Google Scholar

25 Ex Parte De Winnaar 1959 (1) SA 837, 839 (AD).Google Scholar

26 For details, see Bois, Francois du& Visser, Daniel, supra fn. 20.Google Scholar

27 Proculus, , “Bellum Juridicum: Two Approaches to South African Law,” South African Law Journal 68 (1951): 306.Google Scholar

28 See especially Forsyth, C.F. In Danger for their Talents: A Study of the Appellate Division of the Supreme Court of South Africa 1950-1980, 1985. 182 p.; and Bois, Francois du & Visser, Daniel, supra fn. 20.Google Scholar

29 See Visser, Daniel “Cultural Forces in the Making of Mixed Legal Systems,” Tulane Law Review 78 (2003): 41, 59–60.Google Scholar

30 See Visser, , supra fn. 23, at 251; and Bois, Francois du& Visser, Daniel, supra fn. 20.Google Scholar

31 See Cameron, E. “Legal Chauvinism, Executive-Mindedness and Justice—LC Steyns's Impact on South African Law,” South African Law Journal 99 (1982): 38, discussing the career and views of Chief Justice Steyn.Google Scholar

32 Maduna, Penuell Stare Decisis and Fundamental Change in South Africa, Address at the Conference on The Role of Law in a Society in Transition, 1989, quoted in W.J. Hosten, A.B. Edwards, Francis Bosman & Churh, Joan, Introduction to South African Law and Legal Theory, 2^nd ed., 1995. 501 p. Maduna was South Africa's second post-apartheid Minister of Justice.Google Scholar

33 This was emphasised in the Truth and Reconciliation Commission's evaluation of the apartheid legal system and its lawyers – see “Report of the Truth and Reconciliation Commission of South Africa.” Truth and Reconciliation Commission, 1998, Vol. 4, chap. 4.Google Scholar

34 Proculus, , supra fn. 27.Google Scholar

35 Id.Google Scholar

36 Corder, H.M.& Davis, D.M., “Law and Social Practice: An Introduction,” in Corder, H.M., ed. Essays on Law and Social Practice, 1988. 18 p.Google Scholar

37 See Ellman, Stephen In a Time of Trouble: Law and Liberty in South Africa's State of Emergency, 1992; Abel, R.L., Politics by Other Means: Law in the Struggle Against Apartheid 1980-1994, 1995.Google Scholar

38 See e.g., “Essays on Law and Social Practice,” supra fn. 36. The outstanding example of this is Dugard, John Human Rights and the South African Legal Order, 1978; see also the works cited in the previous footnote as well as Matthews, A.S., Freedom, State Security and the Law, 1986; Dyzenhaus, David, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy, 1991.Google Scholar

39 See infra Part IV.Google Scholar

40 The leading Constitutional Court cases emphasizing this are, The Pharmaceutical Manufacturers Association of SA: In re Ex parte Application of the President of the Republic of South Africa 2000 (2) SA 674 (CC) and Carmichele v. Minister of Safety and Security 2001 (4) SA 938 (CC).Google Scholar

41 See infra Part IV.Google Scholar

42 Examples are, Walt, A.J. van der “Tradition on Trial: A Critical Analysis of the Civil-Law Tradition in South African Property Law” South African Journal on Human Rights 11 (1995): 169; Merwe, D. van der, “Roman-Dutch Law: From Virtual Reality to Constitutional Resource” Acta Juridica 1998: 117.Google Scholar

43 This was confirmed by the Cape Supreme Court in Tabata v. Tabata, 1887 SC 328 (C).Google Scholar

44 See generally Bennett, T.W. The Application of Customary Law in Southern Africa: The Conflict of Personal Laws, 1985.Google Scholar

45 Chanock, Martin Fitzpatrick, Peter ed. “Race and Nation in South African Common Law,” in Nationalism, Racism and the Rule of Law, 1995.Google Scholar

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48 Burman, Sandra “Illegitimacy and the African Family in a Changing South Africa,” Acta Juridica 1991: 36, 49.Google Scholar

49 Allot, A.N. “What is to Be Done with African Customary Law?,” Journal of African Law 28 (1984): 56, 61.Google Scholar

50 Simons, H.J. “Customary Law in a Changing Society,” Acta Juridica 1958: 320, 322.Google Scholar

51 Mamdani, Mahmood Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, 1996. 118 p.Google Scholar

52 See Bennett, T.W. “The Equality Clause and Customary Law,” South African Journal of Human Rights 10 (1994): 122; Bennett, T.W., Human Rights and African Customary Law. 2nd ed., 1998.Google Scholar

53 See Himonga, C.& Bosch, C., “The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning?” South African Law Journal 117 (2000): 306.Google Scholar

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55 See generally Recognition of Customary Marriages Act (Act 120 of 1998) (S. Afr.).Google Scholar

56 See Mthembu v. Letsela 1998 (2) SA 675 (T); Bangindawo v. Head of the Nyanda Regional Authority 1998 (3) SA 262 (Tk)]; Hlantlalala v. Head of the Western Tembuland Regional Authority 1998 (3) SA 262 (TK); Prior v. Battle 1999 (2) SA 850 (TK); Moseneke and Others v. The Master and Another 2001 (2) SA 18 (CC).Google Scholar

57 On the transformational ambition and potential of post-apartheid constitutional law, see especially Corder, H. “Prisoner, Partisan and Patriarch: Transforming the Law in South Africa 1985-2000,” South African Law Journal 118 (2001): 772; Klug, H., Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction, 2000; Andrews, P. & Ellman, S., eds. The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law, 2001. For endorsement hereof by the holders of high judicial office, see Chaskalson, A., “The Third Bram Fischer Lecture: Human Dignity as a Foundational Value of Our Constitutional Order,” South Africa Journal on Human Rights 16 (2000): 193; Moseneke, D., “The Fourth Bram Fischer Lecture: Transformative Adjudication,” South African Journal on Human Rights 18 (2002): 309.Google Scholar

58 See e.g. National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC); Government of the Republic of South Africa v. Grootboom 2001 (1) SA 46 (CC); Permanent Secretary, Department of Welfare, Eastern Cape v. Ngxuza 2001 (4) SA 1184 (SCA); Minister of Health v. Treatment Action Campaign (2) 2002 (5) SA 721 (CC); Highveldridge Residents Concerned Party v. Highveldridge Transitional Local Council 2002 (6) SA 66 (T).Google Scholar

59 E.g., Employment Equity Act (Act 55 of 1998) (S. Afr.); Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000) (S. Afr.).Google Scholar

60 See “Press Statement by the Judges of the Witwatersrand High Court,” South African Law Journal 116 (1999): 886; Davis, D.M. Marcus, G.J. & Klaaren, J., “The Administration of Justice,” Annual Survey of South African Law 2000: 877, 884.Google Scholar

61 See Plasket, Clive “Administrative Justice and Social Assistance,” South African Law Journal 120 (2003): 494; “Judges’ orders being ignored” Sunday Times (Johannesburg) 1 April 2000; and S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC), where an official was convicted of contempt of court for criticising a judge's order. The judiciary recently felt it necessary to call collectively on the government to ensure that all court orders are observed diligently by officials – see “Symposium Statement,” South African Law Journal 120 (2003): 648, 650.Google Scholar

62 See Maduna, Penuell “Address at the banquet of the Judicial Officers’ Symposium” and Moerane, M.T.K., “The meaning of transformation of the judiciary in the new South African Context,” South African Law Journal 120 (2003): 663 and 708 respectively. Both articles describe how this is being addressed.Google Scholar

63 See Davis, D.M. Marcus, G.J. & Klaaren, J., “The Administration of Justice,” Annual Survey of South African Law 1999: 773, 787 et seq.Google Scholar

64 See McQuoid-Mason, D.J. “The Delivery of Civil Legal Aid Services in South Africa,” Fordham Law Review 24 (2000): 111. In Mohlomi v. Minister of Defence 1997 (1) SA 124 (CC) at para. [14], Didcott J took judicial notice of “the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and differences of culture and language are pronounced, where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons … are either unaware of or poorly informed about their legal rights and what they should do in order to enforce those, and where access to the professional advice and assistance that they need so sorely is often difficult for financial and geographic reasons.”Google Scholar

65 See in general, Schärf, W.& Nina, D. eds., The Other Law: Non-State Ordering in South Africa, 2000; Kotzé, H., “Mass and Elite Attitudes Towards the Criminal Justice System in South Africa: How Congruent?” South African Journal of Criminal Justice 2003: 38.Google Scholar

66 See especially Schärf, W.& Nina, D. supra fn. 65; Plasket, supra fn. 61 describes judicial responses to shocking failures of state officials to meet their legal obligations to indigent persons.Google Scholar

67 Cf. the cases cited supra fn. 58 with Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC); Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC), and Pretoria City Council v. Walker 1998 (2) SA 363 (CC), all of which involved attempts to use constitutional rights to frustrate governmental efforts at social reform. See also the intemperately expressed judicial animosity to land reform legislation in Joubert v. Van Rensburg 2001 (1) SA 753 (W) and the repudiation of this criticism in Mkangeli v. Joubert 2002 (4) SA 36 (SCA).Google Scholar

68 Marais, J.A.stated in Cape Town Municipality v. Bakkerud 2000 (3) SA 1049 (SCA) at para. [15] that “[t]here are many areas of the law in which courts have to make policy choices,” and J. Froneman observed in Ngxuza v. Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609 (E) at 619 that “[t]he reality is that the outcome of this case is not dictated by precedent or deductive legal reasoning alone: my interpretation of s 38 of the Constitution is inevitably also influenced by my own views of the context in which it is to be interpreted and applied.”. See further the cases cited supra fn. 58. Chaskalson and Moseneke supra fn. 57 contain extra-curial judicial affirmations hereof. In its very first decision to be reported, the Constitutional Court in S v. Makwanyane 1995 (3) SA 391 (CC), clearly acknowledged its role in educating and changing public opinion regarding the death penalty. See further Plessis, M. Du, “Between Apology and Utopia – The Constitutional Court and Public Opinion” South African Journal on Human Rights 18 (2002): 1, who emphasizes the “edifying” program of the Constitutional Court.Google Scholar

69 Corder, H. Judges at Work, 1984 and Forsyth, C. supra fn. 28 provide historical studies of judicial reasoning in various fields, illustrating the general point made in the text. See also Cameron, E. supra fn. 32; Visser, D.P., ed., Essays in the History of Law, 1989.Google Scholar

70 See the literature cited supra fn. 38.Google Scholar

71 See e.g. Currie, I. “Judicious Avoidance” 15 South African Journal on Human Rights 15 (1999): 138; Plessis, M. du supra fn. 68; Walt, A.J. van der, “Living with New Neighbours: Landownership, Land Reform and the Property Clause,” South African Law Journal 119 (2002): 816; Davis, D., Democracy and Deliberation, 2000. The CC has emphasized the need to ensure the ability of the Executive to act efficiently and promptly. See Premier, Mpumalanga v. Executive Committee, Association of State-Aided Schools, Eastern Transvaal, 1999 (2) SA 91, 110 (CC); Minister of Public Works v. Kyalami Ridge Environmental Association (Mukhwevho Intervening), 2001 (3) SA 1151, 1184 (CC). See also Bel Porto School Governing Body and Others v. Premier, Western Cape, and Another 2002 (3) SA 265, 300-01 (CC) (explaining the need to tread warily where questions of policy concerning the allocation of resources are in issue).Google Scholar

72 See Vos, Pierre De “A bridge too far? History as context in the interpretation of the South African Constitution,” South African Journal on Human Rights 17 (2001): 1.Google Scholar

73 See especially Brisley v. Drotsky 2002 (4) SA 1 (SCA) and Afrox Healthcare Bpk v. Strydom 2002 (6) SA 21 (SCA).Google Scholar

74 Striking examples are provided by The Pharmaceutical Manufacturers Association of SA: In re Ex parte Application of the President of the Republic of South Africa 2000 (2) SA 674 (CC) and Carmichele v. Minister of Safety and Security 2001 (4) SA 938 (CC), in both of which the Constitutional Court insisted that an issue first dealt with by the Supreme Court of Appeal in terms of the common law in fact raised a constitutional question. Equally clear are the decisions in National Media Ltd v. Bogoshi 1998 (4) SA 1196 (SCA) (overruling defamation precedents on free speech grounds, expressly on the basis of the Court's common law powers rather than its Constitutional duties); Minister of Safety and Security v. Van Duivenboden 2002 (6) SA 431 (SCA) (majority judgment treats issue as constitutional, whilst Marais JA insists that it can be dealt with purely in terms of the common law); and Brisley v. Drotsky 2002 (4) SA 1 (SCA) (Cameron JA insists that a question dealt with by the majority in terms of the common law alone, in fact concerns the impact of the Constitution on contract law).Google Scholar

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76 Sachs, Albie Protecting Human Rights in a New South Africa, 1990. 93 & 103 pp.Google Scholar