The promises and pitfalls of mixed legal systems: The South African and Scottish experiences

JurisdictionSouth Africa
Published date27 May 2019
Date27 May 2019
Pages338-350
AuthorJacques du Plessis
Citation(1998) 9 Stell LR 338
THE PROMISES AND PITFALLS OF MIXED
LEGAL SYSTEMS: THE SOUTH AFRICAN
AND SCOTTISH EXPERIENCES
Jacques du Plessis*
B Comm LLM PhD
Senior Lecturer, University of Stellenbosch
1 Introduction
On 16 September 1795, the Cape of Good Hope formally was placed
under British rule.
1
The fleet responsible for the annexation was under
the command of a Scotsman, Admiral Elphinstone. On 10 February
1495, Bishop William Elphinstone (a distant relative of the Admiral)
founded King's College in Aberdeen, Scotland.
2
Through rather strange
twists of history, both the annexation of the Cape and the founding of
King's College influenced the future study and practice of civil law, albeit
in different ways and in different countries. By founding King's College,
Bishop Elphinstone advanced the study of civil law in Scotland,
3
a
country which at that time already was exposed to some influence from
the English common law.
4
By annexing the Cape, where Roman Dutch
civil law was in force, Admiral Elphinstone in turn created the
opportunity for the introduction of the English common law in South
Africa. In fact, one of the first steps Admiral Elphinstone took was to
determine that the laws thus far in force (and by that was meant the
Roman Dutch civil law) would still remain in place, but that it could in
future be altered "for the general benefit".
5
In effect, this meant that the
Roman Dutch civil law at the Cape could be altered so as to incorporate
elements of the English "common law". Admiral Elphinstone's
declaration thus laid the foundation for the development of South
African law into a mixed legal system — in other words, a system which is
derived from both the civilian and common law traditions. It is the
* This is an expanded version of the text of a guest lecture given in December 1997 at the University of
Aberdeen, Scotland.
1
See Kruger & Beyers
Suid-Afrikaanse Biografiese Woordeboek
(1977) 278
et seq
for details.
2
See MacQueen
The Foundation of Law Teaching at the University of Aberdeen
in Carey Miller &
Zimmermann (ed)
The Civilian Tradition and Scots Law — Aberdeen Quincentenary Essays
(1997) 53
et seq.
The exact relationship between the two Elphinstones is not clear. Admiral Elphinstone was the
fifth son of the tenth baron Elphinstone. Macfarlane merely describes the first baron Elphinstone's wife
as a "relation" of Bishop Elphinstone
(William Elphinstone and the Kingdom of Scotland, 1413-1514:
The Struggle for Order
(1985) 257 335).
3
See Macfarlane
William Elphinstone and the Kingdom of Scotland
299
et seq.
One of the provisions of
the founding bull (issued by Pope Alexander VI as a consequence of a petition which Bishop
Elphinstone conveyed to him from King James IV) was that civil law and canon law should be taught
at the new university
(cf
MacQueen
Foundation of Law Teaching
53
et seq).
4
Cf
Sellar
The Resilience of the Scottish Common Law
in Carey Miller & Zimmermann
The Civilian
Tradition and Scots Law
149 153
et seq.
5
This decision was in accordance with the principles laid down in
Campbell v Hall
1774 1 Cowp 204
(98 ER 1045 1046 1048) and
Calvin's Case
1608 7 Coke's Reports la (77 ER 377 398).
338
(1998) 9 Stell LR 338
© Juta and Company (Pty) Ltd

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT