The legal system of South Africa
One of the world’s most instructive hybrid systems. Roman-Dutch private law supplies substance, English law supplies procedure and company law, and recognised customary law applies subject to the Bill of Rights.
Legal tradition
South Africa belongs to the mixed: roman-dutch civil law, english common law, customary law tradition. One of the world’s most instructive hybrid systems. Roman-Dutch private law supplies substance, English law supplies procedure and company law, and recognised customary law applies subject to the Bill of Rights.
How power is divided
Parliamentary executive with strong constitutional supremacy; the Constitutional Court may declare conduct of any branch invalid.
Where law comes from
- Constitution
- Supreme law; all other law and conduct must comply.
- Legislation
- Acts of Parliament, provincial acts and municipal by-laws.
- Common law
- Roman-Dutch and English precedent, developed to fit the Bill of Rights.
- Customary law
- Recognised as a distinct source under section 211.
- International law
- Must be considered when interpreting the Bill of Rights.
The legal profession
The Legal Practice Act 2014 unified regulation under the Legal Practice Council, retaining the attorney and advocate distinction.
Law by topic in South Africa
- Employment & LabourCCMA conciliation before any dismissal dispute reaches a courtDismissal requires both a fair reason and a fair procedure. Substantively the reason must fall within misconduct, incapacity or operational requirements; procedurally the employee must be heard. Almost every dispute is referred first to the Commission for Conciliation, Mediation and Arbitration, which makes the CCMA — not the Labour Court — the practical centre of South African employment law.
- Family LawThree recognised marriage regimes, and same-sex marriage since 2006South Africa recognises civil marriages, civil unions and customary marriages, each with its own formalities and property consequences. It was the first African state to open marriage to same-sex couples, following the Constitutional Court's decision in Fourie and the resulting Civil Union Act 17 of 2006. Default matrimonial property is in community of property unless an antenuptial contract is registered before the marriage.
- Constitutional LawA transformative constitution with justiciable socio-economic rightsThe 1996 Constitution is the supreme law and is widely regarded as one of the most far-reaching in the world. The Constitutional Court enforces a Bill of Rights that includes housing, health care, water and education as justiciable entitlements, not aspirations. Section 39(2) obliges every court to promote the spirit of the Bill of Rights when developing the common law or customary law, which is why constitutional reasoning reaches deep into private law.
- Business & CorporateCompanies Act 71 of 2008, business rescue, and B-BBEE as a commercial realityCompany law is codified in the Companies Act 71 of 2008, administered by the CIPC. The Act introduced a modern solvency-and-liquidity test in place of capital maintenance, partially codified directors' duties, and replaced judicial management with business rescue. Separately, broad-based black economic empowerment is not a formality: a company's B-BBEE level materially affects its ability to win public and large private contracts.
- Criminal LawCriminal Procedure Act 51 of 1977, no death penalty, and prescribed minimum sentencesSubstantive criminal law remains largely Roman-Dutch common law — murder, robbery, rape and fraud are common-law crimes — while procedure is codified in the Criminal Procedure Act 51 of 1977. Capital punishment was struck down as unconstitutional in S v Makwanyane in 1995. Sentencing is heavily shaped by the prescribed minimums in Act 105 of 1997, which a court may depart from only for substantial and compelling circumstances.
- Property & LandDeeds registration with a constitutional expropriation clause and strict eviction rulesOwnership is proved by registration in a deeds registry under the Deeds Registries Act 47 of 1937, a negative but highly reliable system in which transfer is effected by a conveyancer and registration confers real right. Section 25 of the Constitution protects property while expressly permitting expropriation for a public purpose or in the public interest, including land reform, against just and equitable compensation.
- Tax LawResidence-based income tax, 15% VAT, and a strong general anti-avoidance ruleSouth Africa has taxed residents on worldwide income since 2001, with non-residents taxed on South African source income. SARS administers a self-assessment system under the Tax Administration Act 28 of 2011. VAT is levied at 15%, and capital gains are brought into income through the Eighth Schedule rather than taxed as a separate levy.
- Immigration & NationalityImmigration Act 13 of 2002, critical skills visas, and a constitutionally protected asylum systemEntry and residence are governed by the Immigration Act 13 of 2002 and its regulations, administered by the Department of Home Affairs. Work visas are category-specific: the critical skills work visa follows a published occupations list, while the general work visa requires a Department of Employment and Labour certificate that no suitable citizen or permanent resident is available. Asylum is dealt with separately under the Refugees Act.
- Civil ProcedureUniform Rules of Court, a three-year prescription period, and compulsory judicial case managementHigh Court litigation runs on the Uniform Rules of Court, magistrates' courts on the Magistrates' Courts Rules. Proceedings are begun by summons where facts are disputed and by notice of motion on affidavit where they are not, and choosing the wrong vehicle is a common and costly error. Most debt claims prescribe after three years under the Prescription Act 68 of 1969.
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