The common law is a primary source of law in South Africa.
South African common law predominantly refers to Roman-Dutch law and its development through judicial precedent.
English common law has also influenced the South African legal system.
South African common law is an uncodified system with Roman-Dutch law at its foundation but with a strong English law influence.
3 different meanings of the common law
Law used country-wide: Applicable to the whole of South Africa.
Law that does not come from legislation i.e., the law that does not form part of any legislation. It does not come from legislation but institutional writers and refers predominantly to Roman-Dutch Law.
English common law – comes from judicial precedent i.e., rules developed from court cases.
South African Legal System: Three-Layer Cake
The South African legal system can be compared to a three-layer cake.
The base is Roman law, the center is Dutch law, and the top is English law.
The 'icing' represents legislation and judicial precedents aimed at rectifying the shortcomings and needs of the different systems.
RDL as a source of SA common law
Roman-Dutch law is consulted when legislation does not govern or answer a particular legal question.
The work of institutional writers forms the backbone of Roman-Dutch law.
A number of different authors might be consulted in an attempt to determine the contents of the common law.
If there is a contradiction, courts will follow the position that is in line with reason, equity, and modern notions of justice and utility.
A Roman-Dutch rule can fall away through abrogation by disuse, i.e., discarded if it is not used for a very long time.
Also, if it is irrational or out of pace with modern notions.
Green v Fitzgerald 1914 AD 88: The court could not find a single judgment reported after 1828 showing the prosecution of offenders for adultery.
The courts decided that the crime had therefore been abrogated by disuse.
EL as a source of SA common law
The South African common law has been influenced by English rules, legislation, and doctrines.
These can also be consulted in certain areas of law where legislation does not govern a particular question.
The common law definition includes a reference to English legal principles that have infiltrated the law and been accepted by the courts.
The Development of the Common Law by the Courts
There is room for the courts to develop the common law in order to fill a gap or to address an inconsistency within our legal system.
Sections 7, 8(1), 39(2), and 173 of the Constitution provide for the development of the common law.
In terms of section 39 (2) of the Constitution, there is a duty on the courts to develop the common law in accordance with the spirit and values of the Bill of Rights.
Section 173 of the Constitution provides that:
'The Constitutional Court, the Supreme Court of Appeal, and the High Court of South Africa each has the inherent power to… develop the common law, taking into account the interests of justice.'
The common law of South Africa is a living system, not a static one.
The courts may therefore develop the common law to enable it to keep in step with the dynamic and evolving fabric of society.