South Africa- research guide

By Katherine Read. July 2008. Updated 2010

Introduction

South Africa now has a hybrid legal system which reflects the history of the country and which contains a blend of Common law, Roman-Dutch law and statutory law.

The legal history of South Africa is well outlined in Barratt and Snyman's online guide "Researching South African law" ( updated in 2010 by Redson Edward Kapindu) which provides the basis for the following summary. In the mid 17th century the Dutch settlers introduced a Roman-Dutch civilian law system. The British took possession of the Cape in 1806. Although the Roman- Dutch system remained in place, English procedural law was adopted in the courts. In addition the civilian law was insufficient to support the requirements of the 19th century society.  New legislation needed to be introduced and this was often based on English Acts because many of the judges and advocates of the time had trained in the UK and were familiar with  English treatises. Apartheid became official South African government policy in 1948 and, as resistance to this increased, the Government implemented legislation to allow the state to detain, arrest and imprison its opponents. During the 1980's there were successive states of emergency until the government began to negotiate with the opposition,  a process which lead towards the Interim Constitution Act of 1993.

 

Primary sources: Constitution

On May 8th 1996, after the election of Nelson Mandela as President in 1994, South Africa adopted a first version of the new Constitution. Then, on 6th September 1996, the Constitutional Court decided that this version might not comply with the constitutional principles contained in schedule 4 to the Constitution of the Republic of South Africa, Act 200 of 1993. A second version was drafted, adopted on 11th October 1996 and signed into law in December 1996. Further amendments have since been made. The objective in drafting this was to ensure that it was legitimate, credible and accepted by all South Africans. The process of drafting the Constitution involved many South Africans in the largest public participation programme ever undertaken in the country. The Bill of Rights, which is incorporated into the Constitution, not only protects the individual against the State but can also be applied to relationships between individuals. The Constitution incorporates customary law alongside Common Law. See the explanatory memorandum as published on the Acts Online website which is the source of this information about the development of the constitution.

The South African Government Information web site offers the most up-to-date full text of the current Constitution, including amendments made since 1996.

IALS also holds the following printed commentary on the Constitution

South Africa. The Constitution of the Republic of South Africa reflecting the law as at December 2005.

Juta Law 2006.

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Primary sources: statutes

Legislation prior to the new 1994 Constitution

IALS holds the following older series most of which are held in the closed access basement.

Locale Wetten - 1849-98 (in Afrikaans only)

Revised Statutes of the Union of South Africa 1910-1929 (amended to 1934)

Union Statutes 1910-1947 (arranged according to subject) Classified and annotated reprint

Statutes of the Union of South Africa 1910-1960

Statutes of the Republic of South Africa 1961-1994 (Government Gazette)

National subsidiary legislation: IALS holds a more limited collection from the Gazette from No. 5724 (1977) to Vol. 342 of 1993.

IALS also holds collections of ordinances and regulations for the different provinces. eg. Province of Natal consolidated ordinances and regulations 1911-1986  Looseleaf compiled by H.L. Van Graan 1964-

Details of all the collections are available on the online catalogue.

Legislation post 1994 and the new Constitution

The official source of South African legislation is the Government Gazette. IALS holds this in printed format up to 2003.

Legislation published since then is available to academic users as part of Sabinet. It offers full text access to the Gazette from 1994-, to the Bills from 1998-, and to provincial gazettes from 1995-. Sabinet allows the user to search the full text of the legislation by keyword as well as searching by Act or Bill Numbers. This can be combined with narrowing the search by subject.

IALS has subscribed to the printed commercial series Juta's Statutes of South Africa since 2004. The legislation in this series is arranged by subject and currently covers the law as it stood in December 2006.

For the current legislation there are several free resources on the internet. The two main ones are government websites. The South African Government Information site offers full text Acts since 1993 and Bills/draft bills since 1996-7 under the heading of documents. The South African Parliament site currently offers Bills and is planning to offer Acts in the near future.

In addition Acts Online is a commercial site which offers full text legislation conveniently arranged by subject. It does not however guarantee that all the the texts are fully updated.

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Law reports

Law Reports prior to the new 1994 Constitution

The Cape Supreme Court was established in Cape Town in 1828 and was later followed by courts in the Eastern and Northern Cape and the Natal Supreme Court (1857). A new Supreme Court of South Africa was set up following the Union of South Africa which took place in 1910. It had local divisions in the provinces.   At a later date the 'independent states' which were created during the apartheid era set up their own superior courts.

The following list represents a selection of the older series held at IALS. These are mainly held in closed access but may be requested from the Enquiry Desk.

Officieele Reporten van het hoog Gerechtshof 1895-7 (in Afrikaans)

South African law reports (Appellate division) 1910-1946

South African law reports 1947-

Cape and Orange Free State: selected decisions of the Native Appeal court 1929-30, 1935-48 (incomplete holdings)

Natal and Transvaal: selected decisions of the Native Appeal court 1929-30/31, 1933-48 (incomplete holdings)

IALS holds the Digest of South African Case law 1909 - 1934 with annual supplements until 1973.  This is continued by Butterworths consolidated index & noter up to the All South Africa Law Reports 1947- current which is also held at IALS.

Current law reports (post 1994 and the new Constitution)

South African law reports 1994-

The Constitutional Court of South Africa is a new court which was born as a result of the formation of the new Constitution in 1994. Its reports are freely available in full text. The website also gives background information about the court, its staff and how it operates and the library.

IALS holds the printed series of Butterworths Constitutional law reports 1994-

Free internet resources for South African law reports are fairly well established.  IALS does not currently offer an online subscription service for case reports but SAFLII (Southern African Legal Information Institute) provides free full text access to cases from a variety of different courts. The starting dates for coverage range from 1995-2002.

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Encyclopedias

Joubert, W.A. Law of South Africa. 1976- (earlier years held in closed basement)

The encyclopedia is a multiple volume set arranged by subject and each subject entry is written by someone with authority in the field. References are given to relevant legislation and cases. This is intended for use alongside Law of South Africa. Current Law. which is also edited by Joubert et al.

The current law service is in two parts. The review appears monthly and is a digest of recent legal developments. The looseleaf section covers commencement dates, tables and details of recent publications and research. The Current Law Service refers readers back to entries in the main encylopedia.

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Treatises

South African treatises/books at IALS are shelved at GF or FOL GF. The following represent a selection of the more recent texts for a range of topics.

Van der Merwe, C. & du Plessis, J.E. (ed.) Introduction to the law of South Africa. Kluwer, 2004

Hockly's insolvency law.   ed. Sharrock et al. 7th ed. 2002

Cilliers, H et al. Corporate law  3rd ed. 2000

Gibson, J.T.R. South African mercantile and company law 8th ed. 2003

Forsyth, C.F. Private international law: the modern Roman-Dutch law including the jurisdiction of the Supreme Court. 4th ed. 2003

De Waal, J. & Currie, I. The Bill of Rights handbook. 5th ed. 2005

Rautenbach, I.M. & Malherbe, E. Constitutional law. 4th ed. 2004

Burchell, J. & Milton, J. Principles of criminal law 3rd ed. 2005

Grogan, J. Workplace law  2007

Kende, Mark S. Constitutional rights in two worlds: South Africa and the United States. 2009

Cilliers A.C. et al. The civil practice of the High Courts and the Supreme Court of Appeal of South Africa 2009

 

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Journals

IALS holds quite a wide selection of current South African journals. It is worth noting that many of the articles are in English even where the main journal title is in Afrikaans. The following titles are all on current subscription. Some are available in full text on Hein. Most titles are indexed in Index to Foreign Legal Periodicals.

 

Annual survey of South African law. 1947-

De rebus: the South African attorney's journal 1979- ( also available free on the Web)

De jure 1960- (IALS collection slightly incomplete)

Industrial law journal 1980- (includes Industrial law reports)

SA Mercantile law journal 1989-

South African law journal. 1901- (V.18) Vols. 1-17 had the title Cape Law Journal and are also held at IALS

South African journal of criminal justice 1988-

South African journal on human rights 1985-

Stellenbosch law review (Regstydskrif) 1990- (IALS collection incomplete)

Tydskrif vir hedendaagse Romeins-Holandse Reg. (Journal of contemporary Roman-Dutch law) 1937-

Pochtefstroom electronic law journal  1998-  Free online resource only. This journal focuses on issues relating to the development of the South African Constitutional State, including comparative law materials.

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On-line resources

High Court of the Republic of South Africa - Eastern Division provides published case reports post 2004

The Hauser Globalex site provides English language guides to a wide range of jurisdictions and subject areas covering foreign, international and comparative legal research and tools for building research collections in these areas

Researching South African law 2005 (Amanda Barratt & Pamela Snyman) updated in 2010 by  Redson Edward Kapindu

The  Competition Tribunal of South Africa site provides full text reports from the Tribunal Court which can be searched using party names and keywords. It also offers a selection of related decisions from the High Court and relevant legislation in full text.

Law Society of South Africa. Site of the professional body representing lawyers in South Africa.

South African Law Reform Commission    Provides full text access to recent Issue Papers, Discussions and Reports.

Further web links  for South Africa can be accessed on Intute

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