Decisions of the extinct Appellate Committee of the House of Lords will continue to resonate in South African administrative, constitutional and international law

• Author: George Barrie
• DOI: 10.10520/EJC153141
• Published date: 01 January 2013
• Date: 01 January 2013
• Pages: 249-264
• publishedBy: UNISA Press

Decisions of the extinct Appellate

Committee of the House of Lords will

continue to resonate in South African

administrative, constitutionaland

international law*

George Barrie**

1 Introduction

In 2003 it was announced that a Suprem e C ourt would repla ce the Appellate

Committee of the Hous e of Lords. This transpired in 2009 and sa w the en d of the

House o f Lords acting in the specific judicial c apacity as the final court of ap peal

for the U nited K ingdom. The oth er judic ial com mittee of the H ouse of Lo rds, the

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Jud icial Com mittee of the Privy Council, continues to function. F or all practic al

purposes the Supre me C ourt continue s to exercise the same jurisdiction as its

predecesso r. There is merely a ch ange of name and a chang e o f venue. The

Suprem e Cou rt is to be head ed by a Pre sident who was named a s Lord Phillips

of W orth Matravers.

It may be oppo rtune at this juncture to assess the major decis ions of the

Appellate Committee o f the H ouse of Lo rds (h ereinafte r the House of L ords) and

their p ossible in fluence on South African administrative law, constitutional la w and

intern ational law . These three branches of law have been selected due to the initial

– and continuing – influence of English law upon them. The influence of English law

on South Africa has be en immense and is clearly visible in the law of evidence, the

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Dedicated to the memory of Ellison Kahn who, as I perceive, believed that the fusion of the best of

*

Roman- Dutch and English law could blend into a harmonious union. He further believed that, in the

long run, the test is social utility and that emotion should not cloud the debate about the purity of

Roman-Dutch law versus reliance on English authorities. He saw no point in embarking on a war of

attrition to starve our legal system of relevant Engli sh influences.

BA, LLB (UP), LLD (Unisa), Professor Emeritus, Faculty of Law, University of J ohannesburg.

**

See Le Seur ‘From appellate committee to supreme court: A narrative’ in Blom-Cooper, Dickson

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and Drewry The judicial House of Lords 1876-2009 (2009) 65.

Schreiner The contribution of English law to South African law and the rule of law in South Africa

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(1967) 24; Schm idt and Rademeyer Law of evidence (2003) para 1311; Cowen The law of

250 (20 13) 28 SAPL

law of delict, com petition law, criminal procedure, negotiable instrum ents, commercial

law, compa ny law, the law of insurance, inte rpretation of sta tutes in a ddition to the

above-me ntioned branches of international, adm inistrative and constitutional law.

Jud gments by the House of Lordshave ofte n influen ced South African courts

by the cog ency of their reaso ning and the clarity of their language . This in fluenc e

did not cease despite the since re attempt by our appellate division to develop a

South African com mon law free fro m the imp erial influen ce of E nglish law.

Exa mples of such attem pts areRegal v African Supe rslate (Pty) Ltd;Trust Bank

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van Afrika Bpk v Eksteenand Jorda an v Biljonwhere the appellate division

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dec lined to follow princip les whic h had entered South Afric an law through English

law. As p ointed out by Cam eron (n ow Mr Justice C ameron of the Constitutional

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Court), Steyn CJ wished to term inate the spec ial bond between E nglish law and

South African law. This he atte mpted to do, not on ly by firing b roadsides at

English law, but by embarking on a war of attritio n which would e ventually lea d to

English elem ents in th e South African le gal system be ing sta rved of their support

by foreclosin g the judicial amenability and congeniality to them .

South Afric a’s constitutional law (e specia lly prior to the 1996 Cons titution ),

adm inistra tive law (desp ite the introduction of the Promotion of Adm inistrative

Jus tice Act 3 of 2000 ) and internatio nal law (despite sec tions 23 1-233 in the 1996

Constitu tion) have bee n fashio ned along Eng lish lines . Eng lish cas es are cite d no

less ofte n than before, althoug h their force is persuasive rath er than comp elling.

Ellis on Kah n’s com ments tha t ‘our cou rts have been success ful in taking the

bes t from Rom an-Du tch law and the best from English law and fusing the tw o in

a ha rmonio us union’are more tha n apt. To atte mpt to deny the Eng lish ele ments

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in ou r constitutio nal, adm inistra tive and internatio nal law would be ‘a s impo ssible

as to eliminate Ro man law from the fabric of European legal systems or to sort ou t

the wate rs of the sea in to the rivers whence they c ame’.

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negotiable instruments in South Africa (1985) 146; Joubert et al The law of South Africa vol 19

(1996) para 1; Hahlo and Kahn The Union of South Africa: The development of its laws and

Constitution (1960) 41; Van der Merwe and Olivier Die onregmatige daad in the Suid-Afrikaanse reg

(1989) 18; Van Heerden and Neethling Unlawful competiti on (1995) 53.

1963 1 SA 102 (AD) (nuisance).

3

1964 3 SA 402 (estoppel). Hoexter J (at 414) concurring stated that ‘I bear in mind that our courts

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have pointed out over and over again that, in matters of estoppel, it is prope r and safe to look for

guidance, to decisions of the English cou rts’. His was a lone voice in the court in this regard.

1962 1 SA 286 (AD) (defamation). See too Craig v Voortrekkerpers Bpk 963 1 SA 149 (AD) and

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Nydoo v Vengtas 1965 1 SA 1 (AD).

See Cameron ‘Legal chauvinism, executive mindedness and justice: LC Steyn’s impact on South

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African law’ 1982 SALJ 38. See Chaskalson ‘South Africa’ in Blom-Cooper (n 1) 360-366.

Kahn (n 2) 47.

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Id. See Bodenstein ‘English influences on the common law of South Africa’ (1913) 30 SALJ 304;

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Wessels History of the Roman Dutch law (1908) 399; De Wet ‘Gemenereg of wetgewing’ (1948) 11

THRHR 2.