P1-LU1 — Setting the Scene
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01
Learning Outcomes
After studying this unit you should be able to:
- - Explain the difference between external and internal legal history
- - Discuss the different components of South African law
- - Describe the relationship between these components
- - Analyse the reception phenomenon in the context of South African law
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1.1 External vs Internal Legal History
| Type | Focus | Example |
|---|
| External history | Political, constitutional, economic, sociological, religious factors that shaped law | Apartheid policy (political event) |
| Internal history | The actual legal rules and principles that developed as a result | Group Areas Act (new internal legal rules) |
Practical examples
| External event | Internal legal development |
|---|
| Apartheid (political) | Group Areas Act — new rules on land ownership |
| Rise of trade unions (economic) | Right not to be unfairly dismissed → entrenched in Constitution |
| French Revolution of 1789 (constitutional) | Recognition of political rights in the 18th century |
| Rise of feminism (sociological) | Rule that a husband incurs criminal liability for raping his wife |
| Global warming (environmental) | Recognition of group rights in the 1996 Constitution |
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1.2 Components of South African Law
South Africa has an uncodified, hybrid legal system built on:
- - Legal pluralism — two or more systems of law apply in a country simultaneously
- - Mixed/hybrid system — features of different legal traditions co-exist
The three components
SOUTH AFRICAN LEGAL SYSTEM
African component | Western component | Universal component
| |
Indigenous | Roman-Dutch English | Human-rights
African law | law law | law
| Component | What it includes |
|---|
| African (indigenous) | Indigenous African law of the Bantu speakers |
| Western | Roman-Dutch law + English common law |
| Universal (human-rights) | Constitutional rights; human-rights law |
"⚠️ Key case: Pharmaceutical Manufacturers Association of SA v President of RSA 2000 (2) SA 674 (CC) — "There is only one system of law. It is shaped by the Constitution which is the supreme law.""
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1.3 Reception, Transplantation & Imposition
Three ways one legal system absorbs another:
| Process | Description | Example |
|---|
| Reception | A community willingly accepts another system's rules or structure | Roman law received in Western Europe; English Companies Act adopted at the Cape |
| Transplantation | Rules are transferred from one system to another with little adaptation | — |
| Imposition | Rules are forced on a community against their will | Colonial law imposed on indigenous communities |
Two types of reception
| Type | Meaning | Example |
|---|
| Practical reception | The actual rules (content) of a legal system are adopted | English Companies Act adopted in full at the Cape |
| Scientific reception | The concepts, categories, principles and structure of a system are adopted | Roman law distinction between public and private law adopted in SA |
How did indigenous law become part of SA law?
- - Indigenous law was NOT received — it was already there (time immemorial)
- - It was eventually recognised by the Constitution (s 211)
- - Correct answer: none of the above (not reception, transplantation or imposition)
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Self-Assessment Questions
- - Describe what an "uncodified legal system" means.
- - Describe what the courts understand by "common law".
- - Explain what is meant by the three components of South African law.
- - Identify one religious legal system applicable in SA.
- - Distinguish between reception, transplantation and imposition — give an example of each.