CONSTITUTIONAL PROTECTION OF COMMON

LAW: THE ENDURANCE OF THE CIVILIAN

TRADITION IN SOUTHERN AFRICA

GJ van Niekerk * **

1 Introduction
The coherence in the legal histories of South Africa and the erstwhile High Commission
Territories of Botswana,1 Lesotho and Swaziland is a familiar historical fact. So, too, is
the fact that legal pluralism prevails in all these countries with the European law (Roman-
Dutch law as influenced by English law) as primary legal system and African customary
law as recognised state law, albeit with a secondary status; and the fact that they all have
hybrid legal systems based on the common-law and civilian traditions coupled with a
significant African influence. Because of their legal coherence and the hybrid nature of
their legal systems, these countries further share, as far as legal technology is concerned,
the same basic mix: civilian in relation to style, terminology divisions and concepts;
and a common-law foundation with regard to the utilisation of formal sources and legal
administration.
To this shared-legal-history paradigm one may of course also add Zimbabwe that was
declared a British protectorate in 1891, and Namibia, which came under South African
control in the early twentieth century.
Legal development in all these countries took a course similar to that in Western
Europe. In the same way as a European ius commune emerged in Europe from the later
Middle Ages onwards, with Roman law and canon law as the common denominators
and Germanic customary law as the additional element, so too an African ius commune
started developing in Southern Africa, roughly at the time of the notorious “scramble for
1 Botswana was converted into a colony for the brief period of 1961 to 1966: Daniels, Trebilcock &
Carson “The legacy of Empire: The common law inheritance and commitments to legality in former
British colonies” 2011 American J of Comparative Law 141 n 108.

* Professor, Department of Jurisprudence, School of Law, University of South Africa.

** I dedicate this article to Andrew, enthusiastic and long-standing member of our small circle of South
African legal historians.

Fundamina 18 (1) 2012 ISSN: Print 1021-545X

© Unisa Press pp 115–134

115
116 GJ van Niekerk

Africa”.2 In the Southern African region, Roman-Dutch law and English law became the
common denominators with African customary law as the third element in this body of
law.
Among other things, it is the strong position of the civilian tradition that accounts
for the legal-historical unity of these countries. The history of the introduction through
custom of Roman-Dutch law into the Cape in the seventeenth century is of course trite,
and so too is the history of the importation of English law and the ensuing course these
two systems of law took to become an integrated part of contemporary South African
law. As for the other countries in the group, by and large, they all “received” the law of
the Cape in the latter half of the nineteenth century or early twentieth century.
It is thus not surprising that on the whole, as from the late-nineteenth century, the
Cape was the leading region as far as the administration of justice was concerned. For
Swaziland, the Zuid-Afrikaansche Republiek (ZAR)3 assumed the position of “leading
province” comparable to that of the province of Holland during the period of the actual
reception of Roman law in the Netherlands during the thirteenth to the fifteenth centuries.
It may be argued that, strictly speaking, there was no reception of Roman-Dutch
law in the true sense of the word in South Africa: at the Cape not one of the existing
indigenous African communities ever displayed a willingness to receive a foreign law
as its common law. In fact, the Dutch settler administration adhered to a personality
principle, focusing the administration of justice (in accordance with the civilian
tradition) on the European community whilst largely ignoring the indigenous people and
their laws. Initially, therefore, the laws regulating the internal affairs of the indigenes
were left untouched and it is only where there was interaction with the Europeans that
Roman-Dutch law was imposed on them. When Britain took control of the different
states and colonies in South Africa, starting with the first annexation of the Cape in 1795,
an existing “civilised” law was already applicable and provision was accordingly made
for the continued application of Roman-Dutch law.4
When the other Southern African countries came under her control,5 Britain imported
into them the “law for the time being in force in the Colony of the Cape of Good Hope”.
Interestingly, Britain did not import English law, the doctrines of equity and statutes
2 The scramble for Africa took place in the last two decades of the nineteenth century while the age of
imperialism stretched roughly from 1860 to 1900. Pain “The reception of English law and Roman-
Dutch law in Africa with reference to Botswana, Lesotho and Swaziland” 1978 CILSA 138 notes that
as far as Britain was concerned, the appellation “age of imperialism” projects the wrong message, as
there was in fact an “absence of imperial designs” for Africa. The British had no intention of acquiring
foreign territories in Africa and dealing with the concomitant financial burden. The purpose with the
colonisation of the Cape was strategic – to secure her sea routes.
3 Variously referred to in the historical records as the Transvaal, South African Republic and South
Africa.
4 For the Articles of Capitulation of 1795 see Eybers Select Constitutional Documents Illustrating South
African History 1795-1910 (1918) 3 (Document 3), art 7 stating that “[t]he colonists shall retain all the
privileges which they now enjoy” and in 1806 (idem 14-15 (Document 12)) art 8 (at 15) determined
that “[t]he Burghers and Inhabitants shall preserve their Rights and Privileges which they enjoyed
hitherto”: these included the right to apply Roman-Dutch law.
5 The local authorities of these countries retained power over their domestic policy but ceded foreign
and defence policies to Britain: Daniels et al (n 1) 129; Shillington History of Africa (2004) 406.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 117

of general application into these colonies and states as was customary in territories,
administered as conquered territories or protectorates, which had no existing “civilised”
laws.6 She never did intend to colonise them, but rather to incorporate them in a single
economic unit stretching from the Cape northward. This was in line with the British
policy of economic expansion (rather than that of the accumulation of land) that it hoped
to achieve by minimising financial responsibility for the territories, whilst at the same
time maximising the protection of British financial and strategic interests in them.7
As indicated, the law of the Colony of the Cape of Good Hope that was made applicable
when Britain assumed control over these territories was not intended for the indigenous
population. Further, as is apparent in the South Africa Order in Council of 1891,8 Britain
had no intention of assuming jurisdiction over the indigenous communities. The first
importation of Western law for the European inhabitants of these African territories
under British control may thus indeed be regarded as a reception, not an imposition.
The proclamations importing European law into the Southern African states and
territories were issued in terms of, and must be read against, the backdrop of the English
Foreign Jurisdiction Acts which regulated the exercise of British jurisdiction in occupied
and protected countries. And it is clear from these legislative enactments that Britain,
too, adhered to a personality principle of sorts, and that the imported law was in general
applicable to the European settler community only and not to the indigenes.9 In terms of
section 5 of the Foreign Jurisdiction Act, 1878,10 for example, British jurisdiction was
limited to British subjects resident in a foreign country “not subject to any government”.
The principle was again confirmed in the consolidating Foreign Jurisdiction Act, 1890
which limited British jurisdiction to British subjects in foreign countries without regular
governments.11
6 Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045 esp at 211, 1049; see also Abeyesekera v Jayatilake
[1932] 1 AC 260 (PC) at 264. This is in accordance with English common law and public international
law: see Hahlo & Kahn The Union of South Africa. The Development of its Laws and Constitution
(1960) 17. English law was generally imported by Orders in Council, Royal Proclamation or Act
of Parliament. The purpose with the importation of the law in those instances was not to serve the
territories as a whole, but to serve the British inhabitants. Accordingly indigenous African laws were
retained and legal administration of the indigenous communities was mostly left in the hands of the
indigenous communities: Pain (n 2) 138ff.
7 Idem 138-143.
8 SI 5005 of 1891, s 4 determined that the High Commissioner had the authority to issue proclamations
for the administration of justice but that “such proclamations shall respect any native laws or customs
by which the civil relations of any native chiefs, tribes, or populations under Her Majesty’s protection
are now regulated”.
9 The first Foreign Jurisdiction Act of 1843 (6 & 7) Vict c 94, regulated British jurisdiction over British
subjects who were in foreign countries and not under the control of either Britain or the country they
lived in. See, further, the discussion by Pain (n 2) 149-150, who is of the opinion that the local law
remained the general law as the imported law attached only to “whites”.
10 41 & 42 Vict c 67.
11 53 & 54 Vict c 37, s 2: “ Where a foreign country is not subject to any government from whom
Her Majesty the Queen might obtain jurisdiction in the manner recited by this Act, Her Majesty
shall by virtue of this Act have jurisdiction over Her Majesty’s subjects for the time being resident
in or resorting to that country ... .” In later years, Orders in Council issued in terms of the Foreign
118 GJ van Niekerk

After the Anglo-Boer War, Britain made provision in the South Africa Act, 190912 for
the inclusion of the High Commission Territories in the Union of South Africa. But this
ideal was never realised because the African chiefs’ resistance to losing their freedom
was too strong. In consequence those territories became protectorates administered as
part of South Africa.
The influence of the civilian tradition has been tenacious in the Southern African
region and the continued application of the, predominantly civilian, common law was
eventually to a greater or lesser extent safeguarded in the constitutions of all the countries
under discussion.

2 Constitutional protection of the common law

Although the constitutions of most of these countries guarantee the application of the
common law, only the constitutions of Swaziland and Zimbabwe clearly refer to the
civilian tradition. The Constitution of Namibia refers to the common law in existence
at independence and that of Lesotho merely to the existing law, without defining it any
closer.
The question that arises is whether the constitutional protection of the common law
necessarily means that the civilian tradition is protected and its survival in Southern
Africa guaranteed. In the light of the strong position of the civilian tradition in South
Africa13 and its pivotal role in the legal history of all the other countries, a concomitant
question relates to the relative authority of South African law. Because it appears prima
facie that the Constitution of Lesotho affords the least protection to the civilian tradition
and because of considerations of space I will mainly focus on and only discuss a number
of legal decisions of the courts of Lesotho to determine to what extent the civilian
tradition has been preserved in that Kingdom.
In order to interpret the constitutional provisions that safeguard the continued
application of the common law, it is necessary to visit the legal histories of these Southern
African countries and briefly look at the legislative provisions that first introduced the
European law. The current position of the Roman-Dutch tradition in Botswana and the
authority of South African law there have been discussed extensively by Fombad14 and I
will accordingly not address those issues here.
Jurisdiction Acts included protected persons and certain local inhabitants in the British jurisdiction.
See, for example, the Africa Order in Council of 1890.
12 9 Edw VII c 9, ss 150 and 151; the ideal was to incorporate Northern and Southern Rhodesia too.
13 For a recent discussion of the survival of the civilian tradition in South Africa, see Van Niekerk
“The Endurance of the Roman tradition in the South African law” 2011 (4) Studia Iurisprudentia
Universitatis Babeş-Baloyi available at http //studia.law.ubbcluj.ro/articole.php?an=2011 and the
sources referred to in that article.
14 See, among others, Fombad “Customary courts and traditional justice in Botswana: Present challenges
and future perspectives” 2004 Stellenbosch LR 165; “Botswana and the dynamics of legal modernisation
within a dual English common law / Roman-Dutch law legal heritage” 2005 African J of International
and Comparative Law 7; “Mixed systems in Southern Africa: Divergences and convergences” 2010
Tulane European and Civil Law Forum 1 (hereafter Fombad “Mixed systems”). See, also, Van
Niekerk “The application of South African law in the courts in Botswana” 2004 Comparative and
 CONSTITUTIONAL PROTECTION OF COMMON LAW 119

21 Swaziland
The Constitution of the Kingdom of Swaziland, 2005 is the most recent of the constitutions
discussed and on initial consideration affords the most comprehensive protection to the
civilian tradition, explicitly safeguarding Roman-Dutch law as the common law of that
country.15 Section 252(1) determines that
[s]ubject to the provisions of this Constitution or any other written law the principles and
rules that formed, immediately before the 6th September, 1968 (Independence Day), the
principles and rules of the Roman Dutch Common Law as applicable to Swaziland since
22nd February 1907 are confirmed and shall be applied and enforced as the common law
of Swaziland except where and to the extent that those principles or rules are inconsistent
with this Constitution or a statute.16
Interestingly, the provision appears to exclude English law as part of the common law –
and that despite Britain’s role in the constitutional history of Swaziland. The reason for
this is probably Swaziland’s historical link with the ZAR, rather than with the Cape of
Good Hope. Nevertheless, recent case law leaves no room for such an interpretation and
the English-law component of Swazi law is confirmed in many decisions.
A decision that eminently illustrates the fact that the Courts do not shy away from
English law is Ndzinisa v Steers Fast Food and Restaurant t/a Steers.17 In this case the
Court had to decide on the quantum of damages to be awarded to a plaintiff who had
International LJ of Southern Africa 312; Molokomme “The reception and development of Roman-
Dutch law in Botswana” 1985 Lesotho LJ 121. The civilian tradition still plays an important role in
legal development in Botswana, and South African case law is regularly referred to. Nevertheless,
knowledge of Roman-Dutch law is not a prerequisite for appointment to the bench (Fombad “Mixed
systems” 11). In view of its legal history, it is not surprising that South African case law still plays an
important role in the uncodified Botswana private law. However, South African judicial precedents are
also consulted in criminal and procedural law despite the fact that the Botswana Penal Code and its
Criminal Procedure and Evidence Act are based on English law: idem 13, 15-16; see also Van Niekerk
(n 14) at 312, esp at 315ff. From around 2000 the University of Botswana no longer offered a separate
course in Roman law. Currently, both Roman law and legal history are incorporated in a course on
Comparative Legal History and Systems. Interestingly, Thomas, Van der Merwe & Stoop Historical
Foundations of South African Law, (1998), which contains an elementary overview of Roman law;
as well as the comprehensive work on Roman law of JAC Thomas, Textbook of Roman Law (1976),
are prescribed. (I wish to thank Mr Bugalo Maripe of the University of Botswana for his assistance
in obtaining this information, as well as my friend and colleague, Professor Charles Fombad of the
University of Pretoria). Roman law is also no longer taught at the National University of Lesotho (see
http //www.nul.ls/faculties/law/regulations.html (7 Jul 2011)), or the University of Namibia where it
was discontinued between 2002 and 2004 (see http //www.unam.na/faculties/law/departments.html
(7 Jul 2011)).
15 Cf, also, Scott “Some thoughts on the law of property in Swaziland” 2006 (39) Comparative and
International LJ of Southern Africa 152 at 153-154, 160-162.
16 Interestingly, it determines in subs (2) that the principles of Swazi customary law “are recognised and
adopted and shall be applied and enforced as part of the law of Swaziland”. Its application is subject
to the Constitution, and, importantly, subject to a repugnancy clause. Subsection 3 determines that
“[t]he provisions of subsection (2) do not apply in respect of any custom that is, and to the extent that
it is, inconsistent with a provision of this Constitution or a statute, or repugnant to natural justice or
morality or general principles of humanity.”
17 [2006] SZHC 11.
120 GJ van Niekerk

consumed snails in his take-away meal. He instituted a damages claim for emotional
shock, pain and suffering, and hospital expenses. Default judgment had been granted
against the defendant which had failed to file a plea. The case was postponed for oral
evidence with regard to the quantum of the claim.
The Court gave a comprehensive exposition of the English law concerning a seller’s
liability for consequential damage caused by latent defects in consumer goods starting
with the seminal decision of the House of Lords in Donoghue v Stevenson18 and following
through to recent decisions on the issue. It then referred to developments in American
law, and finally turned to South African law as primary authority, stating:
One of the leading authorities in South Africa about the vendor’s liability is Kroonstad
Westelike Boere Kooperatiewe Vereniging v Botha 1964 (3) SA 561(A) at 571G-572A
wherein the principles set out in the Donoghue case were followed and applied by the
Appeal Court (as it was then known) without referring to the Donoghue case.19
Furthermore, English law has also been applied in Swaziland without linking its
application to South African law. Thus in Southern Textiles (Pty) Ltd v Taga Investments
(Pty) Ltd20 the Court followed English law, relying on a decision of the Swaziland
Appellate Division.21 A final illustration of the application of English law appears in the
decision of Dlamini v Attorney General,22 which dealt with malicious prosecution. The
Court indicated that the long-standing principles of English law were, according to the
decision of the Privy Council in Corea v Peiris,23 in fact identical to those in Roman-
Dutch law “which is of course, the common law of Swaziland”; and that although the
English-law approach had been criticised by South African academics, Corea had been
followed in a large number of South African cases. The Court concluded that “the
principles set out in those [South African] cases also represent the legal position which
should be applied in actions for malicious prosecution in Swaziland”.
Roman-Dutch law became applicable in Swaziland even before it was made a
protectorate of the bordering ZAR (from 1894-1899) and provision was made for the
application of the law of that independent state which would continue to play a significant
role in its legal development.

18 [1932] AC 562 (HL).

19 In par [26].
20 [2009] SZHC 101.
21 In par [5]: “The English law approach … has been imported into our law ... [t]he Court of Appeal
of Swaziland [in Moses Dlamini vs National Motor Company Ltd - Appeal Case No. 9/1994] has
considered the approach to a Defendant’s onus in a summary judgment application and approved the
English law approach.”
22 [2007] SZSC 1 (no page or paragraph numbers appear in the report available on Swazilii.org). See,
also, Eis Marketing (Pty) Ltd v Swaziland Sugar Association [2007] SZSC 31 at par [42] where the
Court noted that the English doctrine of estoppel by representation formed part of the law of both
South Africa and Swaziland “which, as is well-known, frequently derives support from the law in
South Africa”.
23 [1909] AC 549 (PC) esp at 552.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 121

By the 1880s, Swaziland was inundated by “grazers, miners, storekeepers and other
Europeans”24 who had acquired land and other rights in Swaziland in spite of the fact that
the Convention of Pretoria of 188125 and the Convention of London of 188426 recognised
the independence of the Swazi Nation. In response to the need to administer the affairs
of these inhabitants who were increasingly accumulating concessions and mining rights
in Swaziland, the White Committee, consisting of fifteen members, was appointed in
1887,27 but it was dissolved in 188928 on the recommendation of Theophilus Shepstone
(Jnr), who was the Resident Advisor and Agent of the Swazi Nation responsible for the
administration of the affairs of the “Whites” in Swaziland. In its place, a Provisional
Government Committee was constituted by Swaziland Proclamation of 18 December
188929 for “the maintenance of law, order, and government in respect of matters in which
white persons are concerned in Swaziland”.30 In terms of article 3 of this Proclamation
the Committee had the power to adjudicate upon civil and criminal matters in which
“any white person or his interests or property may be concerned” and “in accordance
with the principles of Roman Dutch law as administered in South Africa [the ZAR]”.31
This position remained unchanged when Swaziland became a protectorate of the ZAR
24 See Colonel Sir F de Winton Report on Swazieland presented to the Houses of Parliament in Aug
1890: BPP CA Vol 48 [c 6201] (Enclosure 3) (hereafter De Winton Report) 89. It appears also as
Appendix 5 in [c 7611] 770. The Irish University Press Series of the British Parliamentary Papers
(BPP): Colonies, Africa (CA) (Dublin, 1971) contains an unabridged photo-lithographic reproduction
of the original documents. Correspondence regarding Swaziland is contained in Vol 48. The circular
numbers of the archival records appear in brackets. Reference to page numbers is to the continuous
pagination supplied for ease of reference by the editors of the Series. For a comprehensive historical
survey of the early constitutional history of Swaziland, see, generally Hailey Native Administration in
the British African Territories Part 5 (1953) 360ff.
25 Article 24: Appendix 1 in BPP CA Vol 48 [c 7611] 750 at 755: “The independence of the Swazis,
within the boundary line of Swaziland ... will be recognised”.
26 Article 12 which is identical to art 24 of the Pretoria Convention: Appendix 3 in BPP CA Vol 48
[c 7611] 762 at 766.
27 Pretoria Convention (n 25) at 773.
28 This Committee lacked experience in administration and its members all had personal interests in
Swaziland. The minutes of its meetings contained “painful evidence of internal dimensions, continued
differences, and an absence of any desire to contribute to the real welfare of the country”: De Winton
Report (n 24) 773-774; see, also, Annexure E to the Report: Memorandum from Theophilus Shepstone
to Sir Francis de Winton 2 Dec 1889 [c 6201] 113-114.
29 See Appendix 4 in BPP CA Vol 48 [c 7611] at 767-769. This Proclamation was confirmed in art 2 of
the Convention of 1890: see idem at 782, especially subs (g) dealing with the application of Roman-
Dutch law. Interestingly, William Philip Schreiner, father of the eminent South African Judge, Oliver
Schreiner, was actively involved in Swaziland during this period. He drafted the Convention of 1890
in his capacity as legal advisor to the High Commissioner. He further accompanied Major-Genl FW
de Winton to Swaziland in 1889 when the latter compiled his report on Swaziland: see Anon “The
Hon WP Schreiner, KC” 1906 SALJ 117 at 119; see also Moseneke “Separation of powers, democratic
ethos and judicial function” Oliver Schreiner Memorial Lecture delivered 23 Oct 2008 available at
http //www.sahistory.org.za/sites/default/files/Oliver-Schreiner-Memorial-Lecture-10-December-
Final-Clean.pdf (20 Apr 2012).
30 Swaziland Proclamation (n 29) at 767. This Committee consisted of three officials, the Agent of the
Swazi Nation and one representative each of the British Government and of the ZAR.
31 Idem at 768.
122 GJ van Niekerk

in 1894, and provision was made for the continued application of the existing “laws,
ordinances, proclamations and regulations”.32 However, with the outbreak of the Anglo-
Boer War, the ZAR transferred all authority back to Swaziland and all European courts
stopped functioning.33
But the influence of the ZAR was not over yet. Upon the annexation of the ZAR by
Britain, all the powers and duties it formely held in respect of Swaziland were transferred
to the British Crown. The Swaziland Order in Council of 25 June 190334 made provision
for the appointment of a Resident Commissioner responsible, among other matters, for
the administration of justice – a position that was filled by the Governor of the Transvaal.
Proclamation 1 of 1904, the first local proclamation issued in terms of the 1903 Order
in Council, established a “Special Criminal Court” in Swaziland and in terms of the
Swaziland Administration Proclamation 3 of 1904 the law of the Transvaal, formerly the
ZAR, was made applicable to Swaziland. It was further determined that Swaziland be
administered as a district of the Transvaal.35
When the Transvaal was granted responsible government, the Swaziland
Administration Proclamation 4 of 1907 was implemented (it was essentially a re-
enactment of Proclamation 3 of 1904) and the administration of Swaziland was
transferred from the Governor of the Transvaal to the High Commissioner for South
Africa.36 In terms of section 2 of this Proclamation,
The Roman-Dutch common law save in so far as the same has been heretofore or may
from time to time hereafter be modified by statute shall be law in Swaziland and all statute
law which is in force in Swaziland immediately prior to the date of the taking effect of
this Proclamation shall save in so far as the same is hereby amended or altered or is
inconsistent herewith or may hereafter be amended or altered shall be the Statute Law of
Swaziland.
The Roman-Dutch law “as applicable to Swaziland since 22nd February 1907” referred
to in the 2005 Constitution in essence, then, refers to the law received from the ZAR.
But what exactly were the principles of Roman-Dutch law as administered in this
independent Boer Republic? By virtue of articles 1-3 of an Addendum to its Constitution
of 1858, these were primarily Johannes van der Linden’s Koopmans handboek with
Leeuwen’s Het Rooms-Hollandsch recht and Grotius’ Inleiding tot de Hollandsche
rechtsgeleerdheid as subsidiary sources. Article 1 of the Constitution reads: “Het Wetboek
van Van der Linden blijft (voor zoover zulks niet strijdt met de grondwet, andere Wetten
of Volksraadsbesluiten), het Wetboek in dezen Staat”. Article 2 further determines that
“[w]anneer in genoemd boek over eenige zaak niet genoegzaam duidelik of in geheel
niet wordt gehandeld, zal het wetboek van Simon Van Leeuwen en de Inleiding van
32 Article 5 of the Convention of 1894: see Appendix 13 in BPP CA Vol 48 [c 7611] 801 at 802.
33 Crawford “The history and nature of the judicial system of Botswana, Lesotho and Swaziland –
introduction and the superior courts” 1969 SALJ 476 at 484.
34 SI 531 of 1903.
35 See Sobhuza II v Miller [1926] 1 AC 518 (PC) at 526-527; Mahlikilili Dhlamini v R [1942] 1 AC 583
(PC) at 587-588; Nkambule v The King [1950] 1 AC 379 (PC) at 392 and also Hailey (n 24) 371-372.
36 See Nkambule v The King (n 35) at 383, 392; Hailey (n 24) 371-372; cf also Kerr “The reception and
codification of systems of law in southern Africa” 1958 J of African Law 82 at 87.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 123

Hugo De Groot verbindend zijn”. And, importantly, article 3 determines that “[b]ij
gebruik dezer drie wetboeken [Van der Linden, Leeuwen, Grotius] zal altijd gehandeld
worden op de wijze bij art. 31 der Drie en Dertig Artikelen bepaald” which in turn reads:
“In alle gevallen waarin deze wetten te kort mocht komen, zal de Hollandsche wet tot
basis verstrekken, doch op eene gemagtigde stijlvorm en overeenkomstig het costuum
van Zuid-Afrika en tot nut en welvaart van de maatschappij”(my emphasis).37
A superficial perusal of the collection of decisions based on Van der Linden, Leading
Cases on Van der Linden (1906), made by EP Delany and E Chas F Hutton, highlights
the prominent position this institutional author held in the jurisprudence of the ZAR38 as
well as the other independent territories and colonies in Southern Africa at the time. In
the preface, the authors referred to “[V]an der Linden’s Institutes as the best known text-
book on Roman-Dutch law”.
Today the importance of the civilian tradition in the Kingdom of Swaziland is
underlined by the retention of Roman law as a compulsory course in the LLB curriculum39
and, importantly, by the utilisation of legal-historical sources in the courts – to wit the
seventeenth- and eighteenth-century institutional writers of the Netherlands.40 Further,
Swazi courts still refer widely to South African case law and academic writing and apply
Roman-Dutch law as a matter of course.41 In fact, a perusal of recent Swaziland legal
decisions confirms that the Swazi courts often apply South African case law directly,
37 See Kotzé “The administration of justice in the South African Republic (Transvaal)” 1919 SALJ 129-
132; Josson Schets van het Recht der Z.A.R. (1897) 10-11; for the Thirty-Three Articles, see Eybers
(n 4) 349-356 (Document 174) at 356; for the Constitution of the Zuid-Afrikaansche Republiek,
idem 362-410 (Document 182); and for the Addenda to the Constitution (19 Sep 1859) idem 416-417
(Document 184). In 1844, following the British annexation of Natal, the Potchefstroom-Winburg
district repudiated its connection with Natal and declared an independent republic. Its constitution
became known as the Thirty-Three Articles. This document, described by Hahlo & Kahn (n 6) 62 as
a “primitive code, probably drafted by a Dutch hand” later formed the foundation of the Constitution
of the ZAR. For a discussion of the constitutional history of the early Voortrekker States, see idem at
58ff, 226-228.
38 At the time cases decided in the ZAR and later the Transvaal were reported in the Cape Law Journal;
Hertzog’s Cases of the High Court of the ZAR (1893); Kotzé’s Reports on the High Court of the
Transvaal Province (1877-1887); Official Reports of the High Court of the ZAR (1894-1898); South
African Law Journal; Reports of the Supreme Court of the ZAR; Reports of the Witwatersrand High
Court of the Transvaal (1902 onwards) and Reports of the Supreme Court of the Transvaal (1902
onwards) .
39 Information obtained from the official website of the University of Swaziland: http //www.uniswa.
sz/academic/socsci/law/courses.htm (7 Jul 2011); see, also, http //www.nyulawglobal.org/globalex/
swaziland.htm#_Sources_of_Law (7 Jul 2011).
40 See, eg, Fakudze v the Commissioner of Police [2002] SZSC 9: Voet Commentarius 47 10 15 and
Leeuwen Het Rooms-Hollandsch recht 4 37 1 ad contempt of court (no page or paragraph numbers
appear in the report available on Swazilii.org).
41 See, eg, the unreported South African case of Maduna v Herschel Taxi Association and Others (THC)
(case 1135/1997) and the case note by Koyana in 2002 (Apr) De Rebus available at http //umkn-
lib01.int.unisa.ac.za/nxt/gateway.dll?f=templates$fn=default.htm$vid=mylnb 10.1048/enu (20 Aug
2011); see, also, Scott (n 15) at 158 who, with reference to the Maduna decision above, points out the
interesting similarity between the right to land of a person who has been allocated land in terms of
Swazi customary law and emphyteusis in Roman law.
124 GJ van Niekerk

evidently regarding it as of more than merely persuasive value.42 This is so despite

the fact that the provision in the Constitution of Swaziland is not timeless, but clearly
indicates Independence Day in 1968 as the cut-off date for determining the content of
Roman-Dutch law.43

22 Zimbabwe
Section 89 of the Constitution of Zimbabwe, 1980,44 too, affords specific protection of
the civilian tradition, safeguarding the law of the Colony of the Cape of Good Hope in
force in 1891:
Subject to the provisions of any law for the time being in force in Zimbabwe relating
to the application of African customary law, the law to be administered by the Supreme
Court, the High Court and by any courts in Zimbabwe subordinate to the High Court
shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as
modified by subsequent legislation having in Zimbabwe the force of law.
Unlike the Swaziland Constitution, this section in no way excludes the application of
English law. Viewed against the backdrop of its legal historical development and with
reference to other sections in the Constitution, there is no doubt that English law is still
regarded as part of the common law of Zimbabwe.
When Southern Rhodesia received responsible government from Britain, section
49(2) of the Southern Rhodesia Order in Council of 189845 determined that
[t]he law to be administered by the High Court and by the magistrates’ courts hereinafter
mentioned shall, so far as not inapplicable, be the same as the law in force in the Colony
on the 10th day of June, 1891, except so far as that law has been modified by any Order in
Council, Proclamation, Regulation or Ordinance in force at the date of the commencement
of this Order.
In Part I of this Order, “The Colony” is defined as the Colony of the Cape of Good Hope.
In 1891, the law of the Colony of the Cape of Good Hope was no longer pure Roman-
Dutch law. English law had already made inroads into the civilian tradition, through the
Charters of Justice of 1828 and 1832 which changed the formal law and court structure
fundamentally,46 through legislative enactments, education, language and commercial
policies and, importantly, through the judiciary.
The question arises why the specific cut-off date of 10 June 1891? In April 1891,
Mashonaland was declared a British protectorate. The British South Africa Company, a
private institution, was chartered to control the territory for Britain under the supervision
of the Resident High Commissioner of the Cape. In terms of an Order in Council of
42 Cf, also, Scott (n 15) 153 n 4.
43 For a discussion of the concepts of a cut-off date versus a timeless provision, see the text below at
n 61.
44 Amended, as at 28 Feb 2009.
45 (SI 1068 of 1898).
46 As a rule, the first act of the colonial powers in Southern Africa was to establish a new court system:
see Crawford (n 33) 476.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 125

9 May 189147 the High Commissioner was granted authority to issue proclamations
concerning the administration of justice in Mashonaland.48 He issued the Proclamation
of 10 June 1891, establishing the first magistrates’ courts in the area, conferring on them
criminal and civil jurisdiction. Section 19 of the Proclamation for the first time formally
introduced European law into the territory, determining that in cases involving whites
(once more establishing a personality principle) “the law for the time being in force in
the Colony of the Cape of Good Hope” was to be applied.
Seven years later the Southern Rhodesia Order in Council of 20 October 189849
provided a constitutional framework for “Southern Rhodesia” – the combined area of
Mashonaland and Matabeleland (the present Zimbabwe).50 It again validated the powers
of the British South Africa Company to administer the territory51 and, as indicated above,
section 49(2) confirmed the application of the “law in force in the Colony on the 10th day
of June, 1891”. Section 58 instituted appeals to the Cape Supreme Court.
Article 103 of the South Africa Act, 190952 instituted appeals to the Appellate
Division of the Supreme Court of South Africa for the High Court of Southern Rhodesia.
This was abolished in 1955. As early as 1960, Hahlo and Kahn observed that the High
Courts of Southern Rhodesia were increasingly looking to English law for guidance and
predicted an increasing divergence of the laws of that country from those of the Union
of South Africa.53
To return to the present day: The Zimbabwe Constitution refers to both Roman-Dutch
and English law in relation to the qualifications required of judges, but does not require
them to have been trained in either. Section 82(1) determines that a person is eligible to
the position if
(a) he is or has been a judge of a court having unlimited jurisdiction in civil or criminal
matters in a country in which the common law is Roman-Dutch or English, and
English is an official language;54 or
(b) he is and has been for not less than seven years, whether continuously or not,
qualified to practise as a legal practitioner—
(i) in Zimbabwe:
(ii) in a country in which the common law is Roman-Dutch and English is an
official language; or
47 The Shona people inhabit that section of present-day Zimbabwe.
48 See the account of this history in the Privy Council decision of In re Southern Rhodesia [1919] AC 1
211 (PC); see, further, Daniels (n 1) 129; Shillington (n 5) 322-323; Bennett Application of Customary
Law in Southern Africa (1985) 57-59. In Zimbabwe appeals lay to the Cape Supreme Court and thence
to the Privy Council; cf Hahlo & Kahn (n 6) 27.
49 (n 45).
50 Section 4.
51 Section 7.
52 (n 12).
53 Hahlo & Kahn (n 6) 27.
54 Section 84(b) sets similar requirements for persons appointed to a tribunal to enquire into the removal
of the Chief Justice.
126 GJ van Niekerk

(iii) if he is a citizen of Zimbabwe, in a country in which the common law is

English and English is an official language.
The extent to which the civilian tradition today still influences legal development in
Zimbabwe warrants a separate article and an in-depth analysis of Zimbabwean judicial
decisions.

23 Namibia
In 1990, section 66 of the Namibian Constitution confirmed the position of the existing
common law – which at the time was Roman-Dutch law as developed in South Africa.55
Subsection (1) determines that “[b]oth the customary law and the common law of
Namibia in force on the date of Independence shall remain valid to the extent to which
such customary or common law does not conflict with this Constitution or any other
statutory law.”
Namibia’s56 legal history started somewhat differently from that of the other countries
being discussed. During the mid-nineteenth century the only Europeans present in this
territory were German and British traders and missionaries and its first colonial power
was Germany which declared it a protectorate in 1884.57 Therefore, the first European
law imposed on that country was German law.58 However, South Africa took control of
Namibia in 191559 and administered it as one of her provinces until its independence in
199060: The South African Administration of Justice Proclamation 21 of 1919 established
Roman-Dutch law “as existing and applied in the Province of the Cape of Good Hope” as
the common law of the country; the High Court of South West Africa61 became integrated
with the South African court system through the South African Court of Appeal which
received appeal jurisdiction over it in terms of the Appellate Division Act of 192062;
55 According to Ruppel “Environmental rights and justice under the Namibian Constitution” in Horn,
Bösel & Du Pisani (eds) Constitutional Democracy in Namibia (2010) 323 at 329, art 140 of the
Constitution which determines that all laws that existed prior to independence remain in force until
repealed by Parliament, ensures legal continuity, including the application of Roman-Dutch law; cf,
further, Frans v Paschke 2009 (1) SA 527 (Nm) pars [13]-[14].
56 German South West Africa from 1884 and then South West Africa from 1915 until 1990.
57 See Shillington (n 5) 327-329, 340-342, 460 on the German presence in South West Africa (Namibia)
and the Herero-Nama resistance of 1904-1907.
58 A superficial perusal of works on Namibian legal history yielded virtually no information on the
influence of German jurisprudence on the development of Namibian law. However, the extent of this
influence is not strictly relevant for the present article.
59 At the time officially a United Nations Trust Territory. South West Africa became a “C” Mandate
and was entrusted to the Union of South Africa after the First World War: see Hahlo & Kahn (n 6)
6-8, 129; Tshosa “The status of international law in Namibian national law: A critical appraisal of the
constitutional strategy” 2012 (2-1) Namibia LJ 7-8.
60 Shillington (n 5) 431. Namibia gained independence in Mar 1990 under the leadership of Sam
Nujoma.
61 Established in terms of Proclamation 21 of 1919. Section 1(1) of Proclamation 21 of 1919 (SWA),
introduced “Roman-Dutch law as it existed and applied in the province of the Cape of Good Hope”.
62 Act 12 of 1920.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 127

and, in 1959, the Supreme Court Act63 established the High Court of South West Africa
as the South West Africa Provincial Division of the Supreme Court of South Africa.64 Not
surprisingly, South African law has had a lasting influence in the law of Namibia and has
dominated its legal history.
It may be assumed that the civilian tradition in Namibia is as strong as that in South
Africa, but the extent to which the legal systems of these two countries have diverged
in the past two decades can be established conclusively only by a thorough comparative
analysis of recent judicial pronouncements in both.

24 Lesotho
As indicated, as opposed to the other constitutions discussed above, the Constitution of
Lesotho prima facie affords the least protection to the civilian tradition. Therefore, I will
analyse a number of legal decisions of that jurisdiction to determine the extent to which
Roman-Dutch law still plays a role in its current legal development.
Section 156(i) of the Constitution of Lesotho determines that “[s]ubject to the
provisions of this Constitution, the existing laws shall continue in force and effect on
and after the coming into operation of this Constitution ... .” This section further contains
an internal interpretation clause that defines “existing law” as “any law or instrument
having force and effect as part of the law of Lesotho immediately before the coming
into operation of this Constitution”. And section 154(ii) which deals with interpretation
generally, determines among other things that “law” includes “the customary law of
Lesotho and any other unwritten rule of law”.
The “existing law” referred to in the Constitution, of course, stems from the law of
the Cape. On 12 March 1868, Basutoland was declared a British protectorate to protect
it against Boer invasion. But the law of the Cape was first introduced only when it was
annexed to that Colony in 1871.65 It was dis-annexed from the Cape in 1884,66 but the
Order in Council of 2 February 188467 confirmed the continued application of the existing
law and the application of the law of the Cape was further safeguarded in section 6 of
the General Law Proclamation 2B of 1884 issued by the High Commissioner vested with
legal authority over Basutoland. This latter Proclamation determined that “the law to be
63 Act 59 of 1959.
64 See generally Amoo “The structure of the Namibian judicial system and its relevance for an
independent judiciary” in Horn, Bösel & Du Pisani (n 55) 69 at 69-70; and Horn “The independence of
the prosecutorial authority of South Africa and Namibia: A comparative study” in idem 113ff.
65 Section 8 of Cape Proclamation 74 of 1871 determined: “All laws in force in Basutoland at the time
when this Order takes effect shall continue in operation until repealed or altered by proclamation of the
High Commissioner, and all powers and authorities which by such laws are vested in the governor and
officers appointed by him shall be vested in and exercisable by the High Commissioner and officers
appointed by Him.” Cf, also, The Basutoland Annexation Act (Cape) 12 of 1871 in Eybers (n 4) 61-62
(Document 33); and further ss 12 and 24 of Cape Proclamation 41 of 1877: See, generally, Poulter “The
common law of Lesotho” 1969 J of African Law 127 at 128-129.
66 By virtue of The Basutoland Disannexation Act, 1883 (34 of 1883): Eybers (n 4) 67-68 (Document 40).
67 Order in Council Assenting to the Act of the Legislature of the Cape Of Good Hope, for the
Disannexation therefrom of Basutoland, and Providing that Basutoland Shall Come under the Direct
Authority of Her Majesty, and also Providing for its Future Administration: see SI 5015 of 1884.
128 GJ van Niekerk

administered shall, as nearly as the circumstances of the country permit, be the same
as the law for the time being in force in the Colony of the Cape of Good Hope”, but
also provided that legislation passed by the Cape Parliament after 1884 would not be
applicable.
In 1966, the Lesotho Independence Order in Council68 again confirmed the continued
application of the existing laws.
There was a considerable difference of opinion as regards the interpretation of the
1884 Proclamation69 and whether the “reception” of the Cape law was timeless or subject
to a cut-off date.
Beardsley70 opined that the “reception” was not timeless. He argued that the
Proclamation was constitutional in character and “provided a fundamental norm from
which most of the norms of private law, in areas not otherwise regulated by statute,
depend[ed]”. The provision had to be interpreted broadly, not restrictively, unlike
ordinary legislation. Although there is no specific cut-off date in the Proclamation,
constitutional developments in the Cape (its migration from a colony to a province of
the Union of South Africa and then of the independent Republic of South Africa) were
clear circumstances that pointed in the direction of a cut-off time – upon Union in 1909,
or, at least from the date of Lesotho’s independence in 1966. Beardsley concluded that
the legal system of Lesotho should therefore not be regarded as a mere extension of the
law of the Cape and was consequently no longer bound to that law but that the Cape’s
successive systems merely played a guiding role in Lesotho’s legal development.
By way of contrast, Poulter was of the opinion that the words “as it may exist from
time to time” in the General Law Proclamation could not be reconciled with the concept
of a “settled body of law at a fixed date”.71 According to him, that meant that the relevant
phrase in the Proclamation referred to the living law of the Cape, and, in effect that the
law of Lesotho developed in tandem with that of the Cape. Poulter departed from the
premise that “judges make law”72 and argued that the judicial system of the Cape had
not experienced any fundamental changes at the time of Union nor subsequently when
South Africa became a republic; the basic court structure of the law of the Cape remained
the same and the courts continued to function, if under different names; the institution
of an Appellate Division with the further option of an appeal to the Privy Council (until
1950) had no elemental impact on the legal system. His conclusion (in 1969) was then
that “Lesotho’s common law is basically the same as the common law of the Cape as it
is today”. Although Pain assumed a similar position on the law of Lesotho and regarded
68 SI 1172 of 1966: “The existing laws shall, as from the appointed day, be construed with such
modifications, adaptations, qualifications and exceptions as may be necessary to bring them into
conformity with the Lesotho Independence Act 1966 and this Order”.
69 See, eg, Poulter (n 65) 128ff; Beardsley “The common law in Lesotho” 1970 J of African Law 198ff;
Sanders “Legal dualism in Lesotho, Botswana and Swaziland” 1984 Speculum Juris 1ff.
70 (n 69) 198-202; this as also the view of Sanders (n 69).
71 Poulter (n 65) 131.
72 Idem 129.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 129

the reception as timeless73 he suggested the 1970 Appeal Court and High Court Order74
as another possible cut-off date. This Order was promulgated upon the suspension of the
Lesotho Independence Constitution,75 and abolished appeals to the Privy Council.
The similarity in the wording of the 1884 Order in Council, “all laws in force in
Basutoland at the time when this Order takes effect shall continue in operation” and the
1993 Constitution: “the existing laws shall continue in force and effect on and after the
coming into operation of this Constitution” is obvious.
The meaning of the “existing law” in Lesotho and concomitantly the question what
authority South African law holds today still prompt the courts to debate from time to time
whether the reception provision was timeless or subject to a cut-off date. And the question
may be asked whether the coming into effect of the new Constitution of Lesotho should
be regarded as such a cut-off date from the “donor country”76 or whether these provisions
should be regarded as a confirmation or continuation of the bond with the donor country.
Maqutu J does not consider the coming into effect of the Constitution or any other
constitutional event prior to 1993 as a cut-off date, but still regards 1884 as such and
as a reason why the Lesotho courts are not bound to follow South African law under
all circumstances. In Jase v Jase77 he observed: “For Lesotho, since our cut-off point
from Cape Law was May 1884, I am not sure we are obliged to follow this error
[misinterpretation of Groenewegen by the South African courts].”78 He again confirmed
his position on Roman-Dutch law in Mosisili v Ramainoanaene79 when he stated: “Our
private law is based on Roman-Dutch law as received from the Cape of Good Hope up to
1884” (my emphasis).
Nevertheless, as becomes apparent in these and other decisions, the fact that the
reception of South African law is not regarded as timeless, does not mean that the
continued bond with South Africa is negated and in these two cases (as in others) the
court generally treated the law of South Africa and of Lesotho as a coherent unit, and
made ample use of South African law and legal historical material.80
Another question that comes to the fore is what the existing law was “immediately
before the coming into operation of this Constitution”. The courts of Lesotho are clear
on this. They regard Roman-Dutch law as the common law. This is borne out by various
judicial pronouncements. In Lehloenya Mokokoane v Mokokoane81 the Judge remarked
that “[i]n this Kingdom the term ‘common law’ is very often used synonymously with
73 Pain (n 2) 145ff.
74 Act 17 of 1970.
75 Constitution Suspension Order 2 of 1970.
76 A term used by Pain (n 2) at 135.
77 [1994] LSCA 163 in pars [15]-[16].
78 See, also, the decision in R v Marabe [2000] LSCA 103 which confirms the view that the reception of
the law of the Cape was subject to a cut-off date of 1884.
79 [1996] LSCA 2 in par [7].
80 In pars [11]-[13] he discusses in general the development of the recognition of constitutionalism as
espoused in the decisions of Harris v Minister of Interior 1952 (2) SA 428 (A) and Collins v Minister
of Interior 1957 (1) SA 552 (A).
81 [2004] LSHC 37 in par [20].
130 GJ van Niekerk

Roman-Dutch law”; and in Lesetla v Matsoso,82 the Lesotho Supreme Court of Appeal
actually observed that “[t]he common law was formally introduced by Proclamation
2B of 29 May 1884 which, inter alia, applied the law in force in the Colony of the
Cape of Good Hope ... [t]hus Roman-Dutch law became, and remains, the common
law of Lesotho”. Also, in Nthethe v Lesotho Electricity Corporation83 the same Court
unequivocally stated that “Roman-Dutch law by reason of our colonial association with
the Cape Province is the proper civil law of this Kingdom.”84
The endurance of Roman-Dutch law as the common law of Lesotho is further
confirmed by the fact that the courts regard old Roman-Dutch authorities and even
Roman law as authoritative sources85 of the law of Lesotho, albeit sometimes indirectly
by way of decided South African case law.86
The way in which the Court treated the sources of law in Makhele v Commander,
Lesotho Defence Force87 is noteworthy. It specifically approved the authorities on which
one of the parties relied in support of the “proposition that the period of prescription of
the actio injuriarum is one year”: These were, firstly, the General Law Proclamation 2B
of 1884 “which is the common law of Lesotho” and which introduced the law of the
Colony of the Cape of Good Hope into Lesotho, then Maasdorp’s Institutes of Cape Law
(Vol 3), and Voet 47 10 21 and the Codex Justinianus 9 35 5 as discussed in Nathan’s The
Common Law of South Africa.88

82 [2002] LSCA 14 in par [9].

83 [2002] LSCA 150 in par [6].
84 See, also, Motokoa v Mota [2001] LSCA 91 in par [6]: “This case is a simple one. The appellant
has established a stipulatio alteri (contract for the benefit of a third party) between the son and the
Insurance Company … The institution of stipulatio alteri by virtue of being part of the Roman-Dutch
Law, also forms part of the law of Lesotho … .” and in par [7]: “The fact of the matter is that the
Roman-Dutch Law principle on which the stipulatio alteri is based is part of the Law of Lesotho and
cannot be shifted aside by regulations.” Cf, further, Jase v Jase [1994] LSCA 163 in par [2].
85 See, eg, Jase v Jase (n 84), a case dealing with the liability of a deceased estate for maintenance.
The Court referred to several South African cases and Roman-Dutch authorities such as Voet
Commentarius ad Pandectas 27 2 1 and 26 4 2, and Groenewegen (no specific reference); in Maphate
v Maphate [2005] LSHC 132 in par [7]-[8] the Court explained the law relating to usufruct with
reference to Grotius, Voet, Huber and Leeuwen; and in Masilonyane v Masilonyane [2005] LSHC 10
in par [3], Grotius Inleidinge 3 3 38, Voet Commentarius 2 14 12 and Van der Keessel Theses Selectae
510 were relied on regarding the stipulatio alteri. In Jackpot Supermarket (Pty) Ltd v Mothe [2011]
LSHC 28 with regard to possession, Grotius Inleidinge 2 2 2, Voet Commentarius 41 2 1 were referred
to. These are but random examples of references to the old authorities.
86 Thus in R v Monatsi [2007] LSHC 42 in pars [10]-[11], in determining the suitability of a sentence
that a court imposed in indignation, Steyn JA relied not only on Voet’s Commentarius, but also on Van
der Linden’s comments on the Commentarius, which included references to Cicero on Duties Bk 1 c
25 and Seneca on Mercy – as espoused in S v Rabie 1975 (4) SA 855 (A) at 865-866. He noted in par
[11] (quoting Van der Linden) that “[d]espite their antiquity these wise remarks [of Cicero and Seneca]
contain much that is relevant to contemporary circumstances”.
87 [2010] LSHC 19 (there were no paragraphs or page numbers on the Leslii.org link).
88 The full title of which was The Common Law of South Africa A treatise based on Voet’s Commentaries
on the Pandects, with references to the leading Roman-Dutch authorities, South African decisions,
and statutory enactments in South Africa 3 Vols (1904).
 CONSTITUTIONAL PROTECTION OF COMMON LAW 131

Significantly, the courts sometimes use Roman or Roman-Dutch law as an academic

tool with which to explain the indigenous law of Lesotho. One such an instance is Lebona
v Lebona89 in which the Lesotho Supreme Court of Appeal used Roman law to explain
the religious significance of burial in the law of Lesotho.90 And, in R v Nondonzela91 the
Court explained:
Voet XI.7.1 shows that the Dutch share with Basotho Custom the treatment of graves as
sacred and states; ‘A place is hallowed in which a dead body either of a free human being
or a slave, or the main portion of it, to wit the head has been laid.’
A superficial perusal of Lesotho judicial decisions over the past two decades shows
that the courts still frequently rely on South African legal materials. At first blush this
may create the impression that South African law is regarded as an authoritative source
of law in that country, especially if one takes a closer look at the dicta of some of the
judges. For example, in Mopa v Raliile,92 having referred to a number of recent and older
South African decisions in point, the Supreme Court of Appeal stated: “It follows from
the aforegoing authorities that the legal principle is well settled that the right to legal
representation is available at common law as a basic or fundamental right.”93
Nevertheless, many decisions underline the fact that the courts of Lesotho regard
South African law as merely highly persuasive and that they diverge from it freely in
appropriate circumstances. Thus, in Mokatsanyane v Motsekuoa Thekiso94 Ramodibedi
JA diverged from the prevailing South African law in point and, giving due consideration
to the majority decision of the South African Appellate Division in Kunz v Swart and
Others,95 nevertheless relied on Voet (Commentarius 5 3 4) and the minority dissenting
decision in that case, finding that the latter were “more preferable to the situation in
Lesotho”.96 Also in Jase v Jase,97 the Court diverged from the South African law since
the prevailing legal precedent on the specific issue at hand revealed a misinterpretation
of Groenewegen which had “passed into settled law” in South Africa.98
89 (CIV/APN/27/2000) [2000] LSCA 30.
90 See Van Niekerk (n 13).
91 [2004] LSHC 118 in par [3].
92 [2001] LSCA 136 in par [19].
93 In Jase v Jase (n 84) in par [6] Maqutu J states: “As already stated, our common law probably lags
behind the law of the USA in this field” (my emphasis), but then continues to discuss the South
African decision in Die Spoorband v SAR 1946 AD 990.
94 [2005] LSCA 6.
95 1924 AD 618.
96 See par [12]. The Court stated that it was “not unmindful of the majority decision in Kunz v Swart and
Others 1924 AD 618 to the effect that there is a presumption in favour of the validity of a will, thus
placing the onus of proof on the person challenging it.”
97 See (n 84) in pars [15]-[16].
98 The Court nonetheless referred to the South African case of Glazer v Glazer 1963 (4) SA 694 (A) and
to Beinart “The liability of a deceased estate for maintenance” 1958 Acta Juridica 92. In this article
Beinart discusses Groenewegen’s Tractatus de legibus abrogatis et inusitatis in Hollandia (ad D 34
1 14-15) and concludes at 96: “[Y]et this passage has (erroneously under the circumstances) been the
132 GJ van Niekerk

Recently, in BP Lesotho (Pty) Ltd v Mabathoana,99 the Lesotho High Court made an
interesting pronouncement on the authority of a principle of Roman and Roman-Dutch
law which has been abolished in South Africa by legislation. The issue in question was
whether the Senatusconsultus Velleianum and Authentica si qua mulier (which regulated
the common-law position of women acting as sureties) were still in effect in Lesotho.
The SC Velleianum (dating from AD 46) and the Justinianic Authentica (dating from AD
556) were abolished in South Africa in 1971 by the Suretyship Amendment Act.100 As was
to be expected, the Court indicated that it was not bound by South African legislation.
It further observed that although the Roman-law principles were outdated and no longer
in line with the needs of modern societies, a court could not amend the common law:
“[T]he Court’s hands are tied and for the present it would seem much as the principle
came by legislation, it can only be abolished by legislation as has happened in countries
practising Roman-Dutch law as we do.”101 This is in accordance with the declaratory
principle that courts merely state or declare the common law and have no authority to
make or amend the common law.102 This is opposed to Poulter’s view that Lesotho case
law since 1884 (and at least until 1969 when he wrote the article) confirmed the fact that
the “common law of the Cape” could not be interpreted narrowly as Roman-Dutch law,
but should be broadly interpreted as South African law, which was in essence Roman-
Dutch in nature but influenced by English law and adapted by judicial decisions and
legislation.103
The preservation of the civilian tradition and the authority of South African law in
the Kingdom of Lesotho is in no small measure due to the tradition that eminent South
African judges serve in that country’s high courts.104 Maqutu J perceived this fact and the
main authority in South Africa for holding that liability for maintenance ex lege transmits to the estate
of the person owing the duty.”
99 [2004] LSHC 141.
100 Act 57 of 1971, which determined in s 1: “The rules of law known as the Senatusconsultum Velleianum
and the Authentica si qua mulier shall as from the commencement of this Act cease to have the force
of law”; see, also, the note of Ellison Kahn “Farewell Senatusconsultum Velleianum and Authentica
si qua mulier” 1971 SALJ 364.
101 See pars [8]-[9]; see, also, Anon “Jacobus Christoffel Potgieter v Rulf Diamond (Civil Appeal.
Reported: (1960) H.C.T.L.R. 32 (Swaziland High Court); (1960) H.C.T.L.R. 77 (Court of Appeal))”
1962 J of African Law 58-61, esp 60 where the same conclusion was reached relating to the applicability
of laesio enormis which in 1952 had been abolished by statute in the Transvaal. In that case Roper JA
held that it was still applicable in Swaziland as it had not been abolished by the “law-giving authority”
in Swaziland. For the position regarding the applicability of legislation of the Transvaal in Swaziland,
see the remarks of the Privy Council in Nkambule v The King (n 35) at 392-399 and the discussion by
Kerr (n 36) at 87-88.
102 For a discussion of the declaratory theory, see Pain (n 2) 145ff.
103 Poulter (n 65) 137. He nevertheless admitted some measure of independence, stating that this law was
subject to modification demanded by the prevailing circumstances in Lesotho.
104 Eg, Smalberger JA, Gauntlett JA, Steyn JA, Groskopff JA, Plewman JA, Melunsky AJA and Eberzohn
J. See, also, the discussion of Fombad “Mixed systems” (n 14) at 11ff. Interestingly, Business Day
5 Mar 2012 reported that the Judicial Services Commission has raised concerns about the fact that
South African judges serve on the Bench in Swaziland, because of the apparent denial of the rule of
law in that country.
 CONSTITUTIONAL PROTECTION OF COMMON LAW 133

coherence in the legal histories of the Southern African countries as obstacles in the path
of the evolution of an independent Lesotho legal system. In R v Marabe105 he observed
that “there is an inevitable confusion between South African law and the law of Lesotho
because we inherited Roman Dutch law from the Cape of Good Hope” and further,
“[b]ecause we use South African text books and South African trained judges our courts
have often regarded South African law as the same as the law of Lesotho, even where the
laws are clearly different”.
Clearly, the courts of Lesotho do not regard the introduction of the law of the Cape of
Good Hope as timeless, whether they explicitly say so, as in the cases referred to above,
or not. But, while they regard their law as an independent legal system, they nevertheless
do not deny the close link with their historical roots and South African law.

Conclusion
The brief analysis of judicial decisions in Lesotho confirms that that Kingdom has
developed an independent legal system firmly rooted in the civilian legal tradition.
There is no doubt that the courts regard Roman-Dutch law as their common law and its
continued existence is buttressed by the highly persuasive authority of South African law.
It would probably not be far-fetched to surmise that the position in at least Swaziland and
Namibia is similar.
Nevertheless, there is a real and very practical threat both to the survival of the
civilian tradition in Lesotho and Swaziland and to the development of a truly independent
legal system: a lack of legal materials. This has prompted the courts to turn to the more
accessible “Western sources”.106 This problem has been recognised by the courts and in
R v Marabe107 the Supreme Court of Appeal remarked that undue reliance on English law
was primarily because law reports and other legal materials were not available: “[O]ur
law of provocation in homicide took a turn towards the English approach ... Unfortunately
the Law Office is not equipped to deal with these current problems because it does not
buy or preserve law books.”108
Fortunately the introduction of the online reserves of Lesotho legal materials
(including law reports) by the Lesotho Legal Information Institute, will to an extent
remedy what the Chief Justice of Lesotho referred to as a “sad state of affairs”. However,
there is unfortunately a dearth of primary sources of Roman-Dutch law in at least Lesotho
as also in Botswana.109
105 [2000] LSCA 103 in pars [34]-[35].
106 See the “Speech by His Lordship, the Hon Mr Justice Lehohla, Chief Justice of Lesotho” at the launch
and training workshop of the Lesotho Legal Information Institute on 27 Sep 2011 available at: http //
www.lesotholii.org/content/leslii-launch-speech-his-lordship-hon-mr-justice-lehohla-chief-justice-
kingdom-lesotho (10 Apr 2012).
107 See (n 105) in par [50].
108 See, also, par [49] where he commented that the undue reliance on English law was “inevitable ...
since the Attorney General does not equip this office with ... Lesotho Law Reports which exist for the
period between 1926 and 1996”.
109 Fombad “Mixed systems” (n 14) 17. He notes that this problem is less pronounced in Namibia and
Zimbabwe.
134 GJ van Niekerk

Nor have there been any official law reports in Swaziland since 1986.110 However,
as part of the Southern African Chief Justices Forum and the African Legal Information
Institute’s initiative the importance of published recorded judicial decisions was
recognised and with the assistance of the South African Information Institute historical
records from 1972 to date have been scanned and edited and are being loaded onto the
Swazi Legal Information Institute’s website.111
In conclusion, the civilian tradition in Southern Africa has proved to be resistant not
only on a practical level, as far as substantive law is concerned, but also with regard
to its “deeper sources” and scientific system that include divisions, concepts, maxims
and underlying principles, founded in Roman-Dutch law. The fact that the courts of
these countries have relied heavily on South African law does not mean that they are
unaware of the need to create and develop a national legal identity. Finally, the African
ius commune, which has developed over a period of more than a century, has played and
will continue to play an important role in regional integration in the Southern African
region.

Abstract
This article investigates the endurance of the civilian tradition in those Southern African
countries that received the European component of their law from the Colony of the
Cape of Good Hope or the Zuid-Afrikaansche Republiek. The modern-day constitutions
of Swaziland and Zimbabwe guarantee the application of respectively Roman-Dutch
law and the law of the Colony of the Cape of Good Hope. In order to interpret the
constitutional provisions that refer directly to the civilian tradition or to the common
law, it is necessary to look at the legislative provisions that first introduced the European
law in these countries. Lesotho prima facie affords the least protection to the civilian
tradition in its Constitution. A number of legal decisions of the courts of Lesotho are
analysed to determine how and to what extent the civilian tradition has been preserved
in that Kingdom.

110 Scott (n 15) 153-154; for a survey of law reporting in Swaziland prior to 1986, see Sanders “Law
Reporting in Swaziland” 1985 J of African Law 94-102.
111 Swazilli is available at http //www.swazilii.org/ (10 Apr 2012). At present, the following decisions
are available: Supreme Court (1996-2011); High Court (1993-2011); Industrial Court of Appeal
(1999-2011); and Industrial Court (1999-2011). This project has introduced much needed access to
Swaziland case law and materials.