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