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SOURCES OF SOUTH AFRICAN LEGISLATION
South Africa has a number of sources of legislation and law. The sources of legislation are to be found in the law-making structures that have over time existed and been recognised as such. A useful site listing sources to use in exploring both legislation and other South African law is to be found at http://web.uct.ac.za/depts/hll/country/sthafrca.htm. Below is a brief history of sources of South African legislation.
Sources of South African Legislation: 27 April 1994 to date
Since South Africa’s 27 April 1994 independence from its apartheid regime, and the coming into being of the interim and final Constitution of the Republic of South Africa Act of 1994 and 1996 respectively, international law has more and more informed the development and application of South African law.
Sources of South African Legislation: 31 May 1961 until 27 April 1994
Prior to 27 April 1994, the date of South Africa’s liberation from the racist apartheid political regime, ongoing and continuous attempts were made by that regime to segregate South Africans into race-based territorial areas.
To this end a number of race-based territorially defined entities, each to a more or less extent able to legislate their own fate, were carved out of the existing four Natal, Cape, Transvaal and Orange Free State provinces. These were:
Note that South Africa for some time “managed” Namibia (which was called “South West Africa’ during that period) and quite some legislation was devoted to increasing its control over that territory, and it was largely treated as if it was a fifth province.
The political regime for non-black people, that was put into place towards the end of this whole period, was called the “Tri-cameral Parliament” and consisted of the House of Assembly (for Whites), House of Representatives (for Coloureds) and the House of Delegates (for Indians).
Sources of South African Legislation: Union of South Africa on 31 May 1910 until 1961
From the time of the “union” of the Cape Colony, Natal, Transvaal and Orange Free State in 31 May 1910 into a self-governing parliamentary dominion within the British Empire called the Union of South Africa, and prior to the formation from the same territory of the Republic of South Africa on 31 May 1961, much of English law was incorporated into or formed the basis of South African law. It and the Roman Dutch Law which held sway prior to this period forms the bedrock to which South Africa even now turns in its search for clarity in its law, and where there is a vacuum in its law.
Sources of South African Legislation: 6 April 1652 until Union
From the 6 April 1652 landing of the Dutch in the Cape of Good Hope, the spread of the Roman-Dutch legal system and its legislation and laws took increasing hold, holding sway until the Union of South Africa as a dominion of the British Empire was formed on 31 May 1910. Even after this and to date, wherever British law does not stand, Roman-Dutch law forms the bedrock to which South Africa turns in its search for clarity in its law.
Sources of South African Legislation: Prior to 6 April 1652
With no written history, and the failure of the successive Dutch, British and Apartheid regimes to record the laws of pre-colonial southern Africa, there is a dearth of information about these laws. However, the current South African legal regime recognises the importance of these and no doubt over time, traditional indigenous law will more and more flavour South African legislation and other law as it emerges, and in doing so will reveal its colours to researchers such as historians and anthropologists. |
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