European Legal tradition and the romanist legacy in South Africa

Abstract

The paper addresses the survival of Roman or rather Roman-Dutch law in South Africa during the 19th century; the role of the English constitutional model in laying the foundation for Apartheid and the bizarre frozen turkey interpretation of Roman-Dutch law during that era, with as interlude a case showing that discrimination without Diktat from the state or support of Roman law has always been possible. The emergence of two new distinct paradigms during the 1950’s contradicts the assertion that the distinction between public and private law and the abstract, objective nature of legal science kept politics outside private law. The bar and side-bar, by and large remained true to their legal tradition and maintained a core of legal conscience. It may be argued that the judges should not be blamed for enforcing apartheid legislation, since legal positivism and the Westminster system had allowed politicization of the law which led to injustice. New law curricula, a new political dispensation and the demand for Africanisation have eroded the classical humaniora in legal training and the Roman law legacy is gradually being marginalized