Southern Cross: Civil Law and Common Law in South Africa

Southern Cross: Civil Law and Common Law in South Africa

Southern Cross: Civil Law and Common Law in South Africa

Southern Cross: Civil Law and Common Law in South Africa

Synopsis

This work provides a history of the main institutions of South African private law, as well as exploring the process through which the integration of English common law and continental civil law was achieved in that jurisdiction. It is a first stepping stone in the writing of the history of private law in South Africa.

Excerpt

'Of all the constellations that stud the sky of the Southern hemisphere, there is none that more strikes a stranger than the Southern Cross' (Philip Henry Gosse , The Oceans, London, 1849, p. 178). Equally striking for the stranger is the cross between civil law and common law as it exists today in Southern Africa. The Dutch settlers of the 17th century brought with them the European ius commune to the Cape of Good Hope; and the British judges, originally sent out to the 19th century Colony to 'measure out a scanty justice to squalid savages' (cf. (1992) 109 SALJ 301) eventually managed to graft English concepts, rules and precedents upon the law of Voet and Vinnius. South African private law has thus been shaped by the vicissitudes of European colonial ambitions and their local aftermath; but, in the process, it has acquired a composite character -- an identity as striking and distinctive as the constellation on the Southern sky.

The intellectual objectives of the present attempt to describe the emergence of South Africa's mixed legal system are set out in the Introduction. All that remains here is to thank those who have assisted with the production of the book. In Cape Town, Lisa Duminy and Dale Hutchison gave valuable advice on matters of style. In Regensburg, Coenie de Villiers and Philip Sutherland carefully went through all manuscripts in order to implement the editorial conventions and to prepare the indices. In Oxford, Richard Hart and his team lent their whole-hearted support to the project. To all of them we are very grateful. We are equally grateful to our secretaries, Gabriele Schmitt and Pat Richardson, for their superb professional commitment and their unfailing personal loyalty.

Reinhard Zimmermann and Daniel Visser, Regensburg/Cape Town, May 1996 . . .

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