The argument that South Africa should abolish Roman-Dutch law — at the core of much of the justice system of the country — with something more compatible with its African roots often rears its head.
The argument is based upon the premise that Roman‒Dutch law, the principles of which remain at the core of the common law of this country, was introduced by the former Dutch colonial power.
Hence the entire body of the common law has a pedigree that is wholly inappropriate for a political programme designed to transform South Africa into an African democracy.
A less populist version of this argument finds support in the Constitution, which in Section 39(2), mandates courts, when developing the common or customary law, to promote the spirit, purport and objects of the Constitution.
Thus in the Carmichele case, the Constitutional Court imposed an obligation on the state to safeguard its citizens from dangerous criminals. The court found that the section imposed a general obligation to develop the common law when it was found to be deficient.
Readers will doubtless have noted that the obligation is to develop the common law, not to jettison all of it upon the altar of political populism. The drafters of the Constitution did not desire the eradication of South African common law but rather its incremental development, especially where the imperative of constructing a society based upon dignity, equality and freedom so dictate.
That the common law contained rules that are incompatible with the non-sexist and non-racist imperatives of democratic South Africa should be obvious to all who can read any law. But as Judge Edwin Cameron remarked in the case of Brisley v Drotsky, the Constitution requires the courts to approach the task of striking down previously accepted principles of common law with “perceptive restraint”. Judge Cameron and his colleagues at the Supreme Court of Appeal have recognised that rules of contract, delict and succession, developed over centuries hold much value — representing a collective wisdom built over centuries.
South Africa’s common law was polluted by apartheid and the racist rule that preceded 1948, but the Constitution contains the very means of its redemption. Where the very rationality of the rules of common law has been undermined by policies that are at war with the principles of the Constitution, the judiciary is mandated to restore rationality — or arguably to go further and ensure that rules accord with the society’s commitment to dignity, freedom and equality. The relationship between the common law and the Constitution has remained somewhat confused.
The constitutional drafters understood that the body of rules of common law represents a set of rational concepts, the content of which may alter as values change incrementally over time.
They understood that the Constitution could redeem that which already existed or, to use the politically correct word, transform the body of law that existed in 1994. To be sure that involves a recognition of the role of customary law in this very process, a point made by both the Supreme Court of Appeal and the Constitutional Court in the Richtersveld case.
But the legal journey begun a decade ago understood well that legal certainty was not an insignificant objective, and that legal concepts are best altered rather than being welded together by those who may be inspired by crude political populism.
A call for the replacement of the common law with the (re)creation of an African legal tradition is no more than a resurrection of an old argument that today may possess some political traction.
But a thoughtful moment will surely be sufficient to conclude that, were this plea to be implemented, the country would enjoy little legal certainty. Rather, there would be political “reconstruction” of contested customary traditions, as opposed to legal rationality and litigants would have to wait with bated breath for judges to create a new system. It is for these very reasons that we should eschew this brand of legal populism and follow the wisdom of the developmental scheme contained in the Constitution.