Chapter Three THE HISTORICAL DEVELOPMENT OF SOUTH AFRICAN LAW AND THE ESSENTIAL PRINCIPLES OF THE SOUTH AFRICAN LAW OF CONTRACT
The historical development of South African law is largely linked to the coming of the early Dutch settlers to the Cape and, to a certain extent, to the influence of English common law. This history has been exhaustively written by eminent scholars.1 This chapter, therefore, does not aim to rewrite a comprehensive discussion of the historical development of South African law. Its goal rather is to give a succinct and rough idea of that evolution, before summarising the fundamental principles of South African contract law and the essential elements of its sales contracts. It is necessary to say immediately that the basic principles of the law of contract in South Africa include, inter alia, the need for an agreement, the freedom of contract, the requirement of good faith in contracts, and their consistency with public policy. Concerning the foundations of sales contracts, they consist of agreement on the thing sold and the payment of the price.
The Historical Development of South African Law
This section deals successively with the reception of Roman-Dutch law into South Africa, the reasons for its preservation in spite of English colonisation, and the impact that colonisation has had on modern South African law. It also discusses the South African law legal family membership as a mixed jurisdiction, and the means by which South African law has acquired its independence under the direction of the Constitutional Court.
Reception of Roman-Dutch Law into South Africa
To start with, South African law “rested on Germanic custom, substantially modified and supplemented by the compilations of Justinian.”2 This law was largely connected with the arrival of Dutch colonisers in the Cape. According to South African law historians, three ships of the East India Company, named the Vereenigde Geoctryeerde Oost-Indische Companie (VOC), arrived in Table Bay on 6 April 1652 to establish a refreshment station for ships on their way to the Indies.3 Shortly after this, Jan van Riebeeck, the first commandant of the Cape settlement, arrived and with him the Dutch India Company took possession of the Cape of Good Hope on behalf of the United Netherlands.4 When he arrived at the Cape, Jan van Riebeeck certainly did not find virgin territory.5 There were indigenous inhabitants in the Cape whose law was, unfortunately, never recognised as the law generally applicable in that area.6 So, Jan van Riebeeck and his Dutch companions “introduced the general principles and rules of law prevailing at that date in the Netherlands, whether in the shape of custom, legislation, treatises on law, or judicial decisions,”7 and transplanted them into the Cape.8 The legal system brought by them was soon known as the “Roomsch-Hollandsche Recht”,9 translated in English as the “Roman-Dutch law”.10
Initially, Roman-Dutch law was the product of the fusion of the law of Holland and Roman law.11 As far as Roman law is concerned, it had begun to influence Dutch law in the thirteenth century. Its influence increased in the fifteenth and the sixteenth centuries. It is fair to say that during the seventeenth and eighteenth centuries Roman-Dutch law acquired a semblance of autonomy. This occurred via “the writings of practising lawyers and teachers of law and the decisions of the courts in Holland and its associated provinces of the United Netherlands.”12 In spite of such apparent independence, Roman-Dutch law was, from the outset, civil in nature because of the effect of Roman law on Dutch law.13
It should be noted that during the seventeenth century, the Kingdom of the United Netherlands was very prosperous.14 The Kingdom was amongst the most economically important world powers and had some of the greater scientists and philosophers of that time, particularly Grotius, Voet, Vinnius, Ulrich Huber, Van Groenewegen, and Van Leeuwen.15 Owing to that proficiency, the United Netherlands became involved in the adventure of exploration. When Dutch settlers came to the Cape, they carried with them “their own native legal system.”16 From their arrival, the rules of law in force in Holland were recognised in the Cape as well, so that Roman-Dutch law was at times accepted to be “the common law of the Republic of South Africa.”17 Wessels has written on the subject that,
The common law of the province of Holland was accepted as the common law of the settlement of the Cape of Good Hope. All ordinances, therefore, of the States-General and of the States of Holland which were not of purely local application were recognised as law at the Cape of Good Hope. Of the ordinances passed either by the States-General or by the States of Holland, those which were enacted for the Dutch Republic and its dependencies or for the province of Holland undoubtedly applied to the Cape as well.18
The Netherlands was a confederacy of seven Provinces, each with its own laws. Thus, in order to introduce a measure of certainty in the colonies, it was important to designate, among those provinces, one whose law would govern the Cape. Given that Holland was the most influential member province of the VOC; its legal system was preferred.19 With regard to the law of contract, Roman-Dutch law brought to South Africa was, however, essentially Roman.20 As Joubert has stated, Roman contract law received in Holland and carried to South Africa through the Roman-Dutch law label was the law set out in the Justinian “Corpus Iuris Civilis as accepted, explained, and modified by Glossators, Commentators and other writers”21 in different countries such as Germany, and Holland.
During the nineteenth century, the Netherlands was forced to adopt the French Code Napoleon.22 In 1838, the country adopted its own civil code linked to the French civil code model.23 Concerning the Cape, it was occupied by the British during the course of Napoleonic wars in Europe. Roman-Dutch law, therefore, escaped from the codification movement of Western European countries.24 As a result of this, the un-codified Roman-Dutch law survived and remains the foundation of South African common law.
It is evident that any legal system is subject to change in conformity with the traditions and the needs of the community that it regulates.26 That is to say that, modern South African law is obviously different from that which was introduced into the Cape in the seventeenth century. As is stated by case law, the “(…) country has reached a stage in its national development (…) (that) its existing law can better be described as South African than Roman-Dutch.”27 That law has, however, been considerably influenced by English common law.28
Succinctly, current South African law can be defined as a mixture of English common law and a “pre-codal civil law” found in Holland before the adoption of Napoleonic style codes in the earlier part of the nineteenth century.29 One might be surprised by the preservation of Roman-Dutch law in South Africa despite the British settlement. The reasons for such survival do not lack legal justification.
The Conserving of Roman-Dutch Law in South Africa
The preservation of Roman-Dutch law in South Africa may be explained by events which occurred in the country at multiple steps. Firstly, the Articles of the Capitulation of 1795, giving effect to what is considered to be the first South African British Occupation, which ended in 1803, allowed the settlers to “retain all the privileges which they now enjoy.”30 Three weeks after the occupation, General Craig instructed the former Court of Justice, to “administer justice (…) in the same manner as has been customary until now (…), and in accordance with existing laws, (including Roman-Dutch law), statutes and ordinances,”31 in both civil and criminal matters.
Secondly, though the Cape was retroceded to the Batavian Republic from 1803 to 1806, the ordinances of the Government of Batavia appear to have retained Roman-Dutch law as well.32 By the time the British took over the Cape, however, “the law showed few marks of its prolonged sojourn in South Africa. Such changes as there were (not many or very important ones) had been made in the Netherlands, not in South Africa or Batavia.”33 Thirdly, when the second British permanent occupation took place in 1806, the Articles of Capitulation of 10 and 18 January 1806 once again allowed Roman-Dutch law to continue to have application.34 This inference has been deduced from Article 8 of the 1806 Articles of Capitulation which authorised citizens to continue to enjoy their existing rights and privileges. There is unanimity that the preservation of Roman-Dutch law during the first and the second British occupations was the consequence of British constitutional practice laid down in the Calvin,35 and Campbell v Hall cases.36 In the Campbell v Hall case, for instance, Lord Mansfield ruled that, “in lands acquired by conquest or cession from a civilized power the existing law remains operative unless and until altered by the new sovereign.”37 Insofar as South Africa is concerned, the King, and later the Queen, did not alter the legal system in force in that region which was dominantly Roman-Dutch law. Thus, Roman-Dutch law again remained operational.
When Great Britain occupied the Cape following the general peace settlement concluded by the Convention of London of 13 August 1814, likewise, the existing Roman-Dutch law legal system stayed, once more, having application. The same situation prevailed following the First and the Second Charters of Justice in 1827 and 1832.38 Furthermore, the 1857 Commission of Enquiry recognised the prevalence of Roman-Dutch law in its report, dated 10 November 1858.39 The Commission reported, “(…) the Roman-Dutch law which consists of the Civil or Roman laws as modified by the law passed by the legislature of Holland, and by the customs of that country, forms the great bulk of the law of the colony.”40 From the Cape, Roman-Dutch law was subsequently approved in the Transvaal, Orange Free State, and
As Zimmermann summarises,
Within the next few decades the territorial sphere of influence of Roman-Dutch law grew considerably, for it was adopted in the three independent Republics, Natal, Orange Free State and Transvaal, created by the ‘Boers’ who emigrated from the Cape Colony; and as in the Cape, it remained in force even when these Republics became British territories. It is therefore not surprising that after the South Africa Act of 1909 had brought about the unification of the four colonies in 1910, Roman-Dutch law was generally taken to have become the common law of the new Union of South Africa.42 This position was perpetuated under the Constitutions of the Republic of South Africa of 1961 and 1983.43
The new South African Constitution Act No. 108 of 1996 did not derogate from that principle. Its Schedule 6, s 2, relating to the continuation of existing law, maintained all the laws that were in force at the time the Constitution took effect.44 Pursuant to this provision, previous laws, which included Roman-Dutch law, had to remain in force until they were amended or repealed, or unless they were judged by the Constitutional Court to be in conflict with the Constitution.45
It is clear then that Roman-Dutch law survived the British occupation. This does not mean, however, that colonisation was without impact on South African law.
The Effect of the English Settlement on South African Law
In 1821 the Deputy Colonial Secretary, Henry Ellis, compiled a circumstantial report on the means by which justice was administered in the Cape. Subsequent to this report, the need for a progressive “Anglicisation” of local law appeared to be ever more insistent. Accordingly, two Commissioners, namely Bigge and Colebrook, were given the task of thinking through the necessity “of a gradual assimilation of the forms and principles of English jurisprudence to the Roman-Dutch” law.46 In their report, dated 6 September 1826, Bigge and Colebrook suggested that “South African legal procedure be based on that of England; that future enactments be framed in the spirit of English jurisprudence; and that gradually the English common law be adopted”,47 except for the Dutch law of property.48 With regard to commercial matters, the Colebrook-Bigge Commission realised that Roman-Dutch law was singularly deficient,49 so that it necessitated a thoughtful improvement.
On receipt of the Bigge report, Goderich, then Secretary of State for the colonies, sought how to avoid legal litigation in South Africa. In his guiding principle, dated 5 August 1827, to Major-General Bourke, acting Governor, Goderich warned British government against making any premature legal change. He said,
His Majesty’s Government have however found themselves constrained to dissent from the immediate adoption of a measure of so much importance and difficulty. I am fully prepared to admit the propriety and importance of gradually assimilating the Law of the Colony to the Law of England. But, still, it is obvious that the Roman-Dutch Law adequately provides for all the ordinaries exigencies of life in every form of Society. (…) An entire change in all the Rules of Law respecting Property, Contracts, Wills and descents, must unavoidably induce extreme confusion and distress; nor (…) is it very evident what compensatory advantage would be obtained.50
Despite this precaution, English law started to gain access into South African law progressively. Its influence was either straightforward, through legislation, or incidental, through judicial decisions and legal practices. A number of commentators have compared the method by which English law influenced South African law to the way Roman law entered European law.51 To illustrate this with Hahlo and Kahn’s statement,
The process by which English doctrines and principles infiltrated into the law of the Cape resembles in many respects the reception of Roman law on the Continent during the fifteen and sixteenth centuries. Some English institutions marched into our law openly along the highway of legislative enactment, to the sound of the brass bands of royal commissions and public discussion. Others slipped into it quietly and unobtrusively alongside-roads and by-paths.
In general, English law had greatest influence where private Roman-Dutch law was least developed, unclear, or old-fashioned.53 Its favourite domains included criminal law and criminal procedural law, constitutional law, and the law of evidence.54 Another group of fields of English law with important influence, under the private law environment, included the law of domicile and aspects of choice of law in the conflict of laws, the law of the formation of contract, and the law of remedies for breach of contract.55 Insofar as the formation of contract is concerned, numerous scholars admit that the contemporary South African law model of contracting by way of “offer and acceptance” is an approach that owes much to the English common law.56
Additionally, other branches where the influence of English law was very noticeable included company law, merchant shipping, insurance, and negotiable instruments, and, in short, mercantile law.57 In effect, by contrast to South African law, English law had already been influenced by the continental jus mercatorum. Thus, in matters regarding mercantile law, English statutes were merely adopted “with only such minor changes to suit local conditions or to fit into existing South African law.”58 In practice, when applying those acts, the courts were of a mind to rely on English authorities as a matter of course. As ruled in Mutual and Federal Insurance Co Ltd v Municipality of Oudtshoorn, for instance, “the reference to English decisions [was] usually justified on the basis of the similar wording of the acts, but just as often the English cases [were] quoted as if they were South African decisions.”59
In contrast to the first group of legal fields above, English law did not have a noticeable influence in branches where Roman-Dutch law was clearly developed, such as the law of property, the law of succession, family law, and, above all, with regard to specific contracts like sales and lease.60 Several of these legal fields had already been elaborated on by civil law principles borrowed from Roman law.
When it comes to the role of judicial decisions, the greatest contribution of English law is encountered in the adherence, by South Africa, to “the principle of precedent” known also as the doctrine of stare decisis.61 The stare decisis principle implies that regular previous judicial decisions are binding on the court which actually pronounced them, and also on lower courts which are subordinate to the one which handed down the relevant judgements.62 To give an example of this, pursuant to s 166 of the Constitution, the South African judicial system comprises the Constitutional Court (CC), the Supreme Court of Appeal (SCA), High Courts, Magistrates’ Courts, and other courts. Within this structure, the CC is the highest court in all matters, whether constitutional or not.
In the application of the doctrine of the precedent, the CC is bound by its own decisions. The highest court must at all times follow its own previous decisions on the same point of law, unless it is convinced that any such decision was wrong.64 In the same way, the decisions of the CC bind the SCA and other lower courts in the classification which must follow their ruling.65 The reason for such an approach is given in one of the CC’s decisions in Ministry v Interim Medical and Dental Council of South Africa and Others.66 In this case, the Court stated, “Each case that is decided, adds to the body of South African law, and establishes principles relevant to the decision of cases which may arise in the future.”67 Because case law create the law, it follows that judicial decisions “may only be departed from by courts higher than the court that gave the earlier decision, (…) or by the same or an equivalent court, when the second court must be satisfied that the earlier decision was wrong.”68 Moreover, s 173 of the Constitution mandates higher courts, viz. the CC, the SCA, and the High Courts “to develop the common law” by making it uniform throughout the country.69 One of the ways suggested by the Fundamental Law is to devote attention to the interests of justice, particularly by giving effect to the rights contained in the Bill of Rights.70
Requiring supreme courts to develop the common law, or to take into account the wellbeing of justice, suffices to show the interests modern South African law attaches to the stare decisis principle.71 For that reason, one commentator was right to describe the recourse to the doctrine of precedent as “the most significant connection between South African law and Anglo-American law, and the most divergence from the Roman-Dutch law as well as the other legal systems that grew out the ius commune.”72 In application of the principle of the precedent, decisions of the CC make the law in the same way as statutes passed by the Parliament in civil law jurisdictions do.73
Lastly, with regard to legal practice, the main English law influence seems to be the introduction of English as the language of the court.74 Owing to the limited number of legal scholars in the Cape, the mother country was obliged to appoint English lawyers for South African courts. These had a little knowledge of the Dutch or Latin languages. Furthermore, translations into English of Roman-Dutch and Latin authorities appeared slowly, whereas English books and reports were easily accessible.75 Owing to this situation, South African advocates and judges liked to refer to English law sources for inspiration. In addition, the preference for English material “was often justified with the specious argument that the Roman-Dutch law authorities were either silent on the point in question or advocated a solution identical to the one in English law.”76 Thus, in order to make the work easier for lawyers trained largely in England; English was adopted as the official language of the court. As a result of this, English rules and concepts were gradually introduced into South African law so that, according to Hahlo and Kahn, Roman-Dutch law was assuming an anglicised aspect.77
To conclude this with Wessels’ words,
Roman-Dutch law has been influenced by English law far more than people think. Sometimes the influence has been open and overwhelming, as when (…) English law (…) was introduced by legislation, first at the Cape and afterwards throughout the whole of South Africa. At other times English legal ideas have crept in insidiously and, as it were, almost by accident.78
The coexistence of Roman-Dutch law and English common law in South Africa has constituted the main characteristic in defining the modern South African law legal system membership as a mixed jurisdiction.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
TABLE OF CONTENTS
Chapter One INTRODUCTION
1.1 Overview of the Study
1.2 Context of the Study
1.3 Background to the Harmonisation of International Sales Law
1.4 The CISG and Harmonisation of International Sales Law
1.5 OHADA Sales Law and the CISG Compared
1.6 Problem Statement
1.7 Aims and Objectives of the Study
1.9 Delimitations and Structure of the Study
Chapter Two THE HISTORICAL DEVELOPMENT OF THE CONGOLESE CIVIL LAW AND ITS SALES LAW BASIC PRINCIPLES
2.2 The Historical Development of Congolese Civil Law
2.3 Basic Principles of Congolese Sales Law
2.4 The Essential Elements of a Commercial Sales Contract
2.5 Conclusion on Chapter Two
Chapter Three THE HISTORICAL DEVELOPMENT OF SOUTH AFRICAN LAW AND THE ESSENTIAL PRINCIPLES OF THE SOUTH AFRICAN LAW OF CONTRACT
3.2 The Historical Development of South African Law
3.3 Fundamental Principles of South African Contract Law
3.4 Ground Rules for Sales Contracts
3.5 Conclusion on Chapter Three
Chapter Four THE ORIGIN, AMBIT, AND IMPACT OF THE CISG ON NATIONAL SALES LAWS
4.2 Origins of the Vienna Sales Convention
4.3 The Vienna Sales Convention’s Sphere of Application
4.4 The CISG as a Model for the Improvement of National or Regional Sales Laws
4.5 The CISG – a Suggestion for the DRC
4.6 Conclusion on Chapter Four
Chapter Five COMPARISON REGARDING THE FORMATION OF INTERNATIONAL SALES CONTRACTS
5.2 Offer in International Sales Contracts
5.3 Acceptance of the Offer for the International Sale of Goods
5.4 The Moment and Place of Contracting
5.5 Conclusion on Chapter Five
Chapter Six COMPARISON WITH REGARD TO THE OBLIGATIONS OF THE SELLER AND THE BUYER
6.2 The Obligations of the Seller
6.3 The Obligations of the Buyer
6.4 Conclusion on Chapter Six
CONCLUSION AND RECOMMENDATIONS
7.1 General Statement of the Purpose of the Study
7.2 Implications of a Unified Legal System for International Transactions
7.3 Improvements to Congolese Sales Law
7.4 Remaining Gaps to be Filled
7.5 Additional Reasons for the DRC to Adopt the CISG
7.6 Concluding Recommendation.
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