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Today, many commentators regard the resulting legal system as a truly hybrid system, a mix of English common law and civilian Roman-Dutch legal principles. While many legal doctrines and the arrangement of the law in general can be traced to a civilian heritage, court procedure owes much to the common law tradition, with adversarial trial, detailed case reports (which include dissenting judgments), and adherence to precedent.
Operating in parallel to this European based system is customary law.
All law may not conflict with the South African Constitution.
Prior to the advent of democracy in 1994 and the constitutional order, segregationist policies were essential aspect of government policy.
Currently, Salona is a Ph D candidate at the Faculty of Law at the University of Cape Town. Instead, it was decided that the local Roman-Dutch law would remain in force.
in International Legal Studies from New York University. Historical Background The South African legal system is widely known as one that is basically premised on Roman-Dutch law. In the mid-seventeenth century, Dutch settlers began to colonise and occupy the part of South Africa now known as the Western Cape. In 1806, English forces defeated the Dutch settlers and took the Cape of Good Hope as a British possession. South African law reflects this history of successive colonial governance.
Successive states of emergency were proclaimed during the 1980s.This system of official customary law, where matters of custom and tradition were ascertained and frozen in statute, is now criticised for not taking into account the fluid and dynamic nature of custom. Currently, there is a distinction drawn between living customary law (i.e.the unwritten custom and practices of a particular indigenous community) and official customary law (the customary law applied by courts and state institutions which is typically drawn from legislation, court precedents and textbooks). The Constitutional Court has held that the version of customary law recognised by the Constitution is living customary law. However, due to its fluid nature, living customary law can be difficult to ascertain and may require evidence of current customs and practises of the community to be led in court.Currently South African law only recognises certain aspects of religious marriages and does not officially recognise the large plethora of religious laws. Despite this, communities observe religious customs and practises with the assistance of unofficial religious institutions. Such institutions may make findings in disputes related to religious laws.These findings are binding only between the parties. A dissatisfied party may approach the civil courts to enforce or appeal a finding.