| Chapter 1: | Introduction |
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At that stage, there were already black people present in South Africa who lived according to their own African legal system now popularly referred to as African Customary Law or Indigenous Law. In the early 1800s, the British took over the administration of the Cape from the Dutch and introduced and applied English law. This led to the influence of English law, although Roman-Dutch law continued to develop. That there would be a greater move towards English legal institutions is hardly surprising in view of the fact that the Cape became a British colony. Contact with and sympathy towards English institutions could only lead logically to greater contact with the English common law. Then arrived the Arabs, Indians, Christian missionaries, Jews etc., who introduced various religious laws: namely, Islamic, Hindu, Christian and Jewish law respectively. A fuller history of South African law provides dynamic intricacies of the development of the law, details of which need no further analysis here.4
According to Professor Iya,
One often hears a statement like: the legal system in South Africa is Roman-Dutch law. This is not absolutely correct because as observed above, Roman-Dutch law forms only a part of the legal system of the country. English law also exercises its influence in its application especially to public law issues including legal institutions and the legal profession, just as much as customary law continues to influence the conduct of the majority blacks in South Africa. Therefore, it is more correct, when referring to the current legal system of the country as a whole that is applied, simply to speak of ‘South African Law’, a conglomeration of all the above different laws.5
While it is evident that the white South Africans inherited Roman-Dutch law from their ancestors in the Netherlands,6 Botswana, Lesotho, Zimbabwe and Swaziland have almost no ancestral ties with the Netherlands and neither were they colonized by the Dutch. One can, however, understand easily that since Zimbabwe was under a racist white minority government prior to attaining political independence, Zimbabwe, like its neighbour, South Africa, embraced a type of jurisprudence that favoured the oppression of a black majority by white minorities.