Portrait | Between the Romans and the Dutch, this one is right for us

WE have a long history here at the southern tip of Africa of laws that enabled and even encouraged unfair discrimination, exploitation and atrocious injustices. But we also have an almost equally long tradition of courts that applied the law of the day — as despicable as it often was — in a consistent and considered manner.

So when someone like John Hlophe, now a member of the same parliament that removed him from office as a judge in March, recently complained again that the Roman-Dutch legal tradition should no longer have a place in our courts, he's barking up the wrong tree (or he's simply being disingenuous). Hlophe would probably have been found guilty of gross misconduct by the Judicial Service Commission under any other respected legal tradition because laws, rules and the constitution are more important than the historical origin of the system.

But do he and other critics have a point when they say our legal system should move away from an approach that originated centuries and even millennia ago on another continent? Should we, in Hlophe's words, “Africanise" and “decolonise" the judiciary and get rid of “all the Latin nonsense"?

Yes, perhaps, sometimes, but this kind of question ignores two fundamental truths.

First, we live under the rule of law with a constitution, including the Bill of Rights, that is the supreme authority in our society. If someone wants to “Africanise" or “decolonise" any piece of legislation or remove any “Latin nonsense" from it, there is nothing in the Roman-Dutch legal tradition that stands in the way of that. What does have to happen, however, is that parliament passes such a law with the necessary majority, that the president then ratifies it, and that the Constitutional Court is satisfied.

Second, Roman-Dutch law's adaptability and ability to integrate with other traditions is one of the outstanding features of our legal system.

An important part of the Roman-Dutch legal tradition is indeed that laws may be changed over time. A good example of the sort of “Latin nonsense" that Hlophe might be referring to is the concept of “vitae necisque potestas", according to which a Roman pater familias had the power of life and death over any member of his household, including his wife, his children and his slaves. But while this was once almost an absolute right, and slaves never had the same rights as Roman citizens, the concept was adapted over time. Emperor Hadrian, for instance, introduced restrictions in the second century CE that made it illegal to kill a slave “without good reason".

By the way, the Romans also formulated the rights and duties of Roman citizens more than four centuries before Christ in the so-called Twelve Tables, which one could call an early type of constitution. It was a set of rules to which other rules had to conform.

More than 1,000 years after the Twelve Tables, the ambitious Byzantine emperor Justinian was in control of the eastern remnants of the Roman empire. As part of his efforts to revive Rome's former glory, he commissioned the Corpus Juris Civilis, an attempt to consolidate and codify centuries of Roman laws and principles. To cut a long story short: with the fall of Rome, the Corpus Juris Civilis (the “body of civil law") had become virtually forgotten by the Middle Ages.

And this is where the Dutch part of Roman-Dutch law enters the picture. In the 16th and 17th centuries, Dutch legal scholars began to rediscover the Corpus Juris Civilis and integrate it with their own customary law. Dutch maritime and commercial influence began to increase dramatically during this time, necessitating the development of a more sophisticated legal system that could settle complex disputes. Trade across oceans and the birth of businesses such as the Dutch East India Company (VOC), which was jointly owned by a large number of shareholders, were part of this more complex new world.

This was the legal system that Jan van Riebeeck brought with him when he came to open his Cape Café in 1652, although it's safe to say he and his countrymen didn't necessarily pay much heed to any rules. Nevertheless, Roman-Dutch law took root and grew here. It still plays an important role, not only in South Africa but also in Namibia, Zimbabwe, Sri Lanka and to a lesser extent Indonesia and Suriname, among others.

But why has it survived and continued to develop and became more important than other legal traditions, including English common law and indigenous or traditional customary law?

The short answer is that Roman-Dutch law is built on a series of powerful and relatively universal theoretical principles, but at the same time it is not rigid. It can constantly adapt and accommodate enriching concepts from other traditions. In a country such as South Africa, it is an excellent way to reconcile the often contradictory rules and practices of different cultures and traditions and arrive at something that everyone can live with — not necessarily without dissent, but at least manageable. It also leaves considerable discretion to the judge or magistrate, which means there is still a role for common sense as well.

The one thing Roman-Dutch law does not do is simply to impose European standards on customary law and traditional or indigenous law in South Africa.

For example, the constitution states in chapter two under the interpretation of the Bill of Rights:

(39) (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

In other words, customary law (or traditional or indigenous law) is not subordinate to Roman-Dutch law but equal to it, provided both are compatible with constitutional principles.

Two practical examples: The Recognition of Customary Marriages Act of 1998 gives full legal recognition to marriages conducted according to African customary law. On the other hand, in 2004 the Constitutional Court invalidated aspects of traditional inheritance law that discriminated against women and children born out of wedlock. However, this was not done by imposing concepts from Roman-Dutch law but by applying the principles of the constitution.

The constitution and Roman-Dutch law have another important thing in common: neither can withstand for long a populist political leader (or someone pulling his strings from Nkandla) who can convince enough voters that getting rid of these concepts will solve all their problems.

♦ VWB ♦

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