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

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Date: 27 May 2019
• Author: Jacques du Plessis
• Pages: 338-350

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

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