South Africa has a ‘hybrid’ or ‘mixed’ legal system, formed by interweaving of a number of distinct legal traditions: A civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin). These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law. As a general rule, South Africa follows English law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law, law of delict (tort), law of persons, law of things, family law, etc. With the commencement in 1994 of the interim Constitution, and in 1997 its replacement, the final Constitution, another strand has been added to this weave.
Roman-Dutch law (Dutch: Rooms-Hollands recht, Afrikaans: Romeins-Hollandse reg) is a casuistic (judge-made) legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, Roman-Dutch law is still applied by the courts of South Africa (and its neighbours Lesotho, Swaziland, Namibia, Botswana and Zimbabwe), Guyana, Indonesia, East Timor, and Sri Lanka. It was largely drawn upon by Scots law. It also had some negligible impact on New York state, especially in introducing the office of prosecutor (schout).
Reinhard Zimmermann: The Law of Obligations. Cape Town 1990. Reprinted Muenchen, Cape Town 1992, ISBN 3-406-37246-5.
Sources of South African Law
South Africa’s law is sourced from (1) statutory law made by the legislative body (the most important of which is of course the Constitution), (2) common law (this includes the Roman-Dutch ‘old authorities’ and judicial precedent gleaned from case law), (3) African customary law, and (4) foreign and international law. Note that Custom, and Legal scholarship are not in themselves sources of law, although they inform the interpretation and application of law.
Sources of law that are binding or authoritative must be followed by judges in making decisions, while persuasive sources are not binding on their decisions. The authoritative effect of a source for a particular decision depends on the type of source, the position of the judge in the hierarchy of courts, and the other sources that are relevant to the question at hand.