International Construction Law Review
THE CONVENTIONAL PENALTIES ACT 1962 (SOUTH AFRICA): COMPARATIVE OBSERVATIONS WITH RECENT DEVELOPMENTS IN THE COMMON LAW
Richard Manly QC*
SOUTH AFRICA: A MIXED JURISDICTION – INTRODUCTION
South Africa was not always a unitary state. The Union of South Africa was formed in 1910 by the unification of four British colonies, namely the Cape of Good Hope, Natal, the Orange Free State and Transvaal. In 1961, the Republic of South Africa was created.
The South African legal system is a mixed jurisdiction made up of an interweaving of a number of legal, traditional and civil law systems represented by uncodified Roman-Dutch law (i.e. the law of seventeenth century Holland) which had been brought to the Cape of Good Hope by the original Dutch settlers in 1652 when that colony was under the administration of the Dutch East India Company. After British occupation in 1795 and 1806 and the transfer of the Cape of Good Hope to Britain in 1815 English common law principles were adopted. There is also a system of customary law inherited from indigenous Africans.
These various legal traditions have had a complex interrelationship. The English influence is most apparent in procedural aspects of the legal system and the Roman-Dutch influence is most visible in substantive private law.
Following the Boer War (1899–1902) and the establishment of the Union of South Africa (1910) English and Roman-Dutch law were largely fused into a single system.1
This brief explanation of the ingredients that make up the South African legal system goes some way to explain the divergence that developed between the competing principles of Roman-Dutch law and English common law regarding the treatment of contractual penalties.
* BA, LLB, LLM (Melb); Barrister; Member of Chancery Chambers Melbourne Australia, and Melbourne TEC Chambers; Doctoral Research Candidate, Faculty of Law, Monash University. The author would like to thank Dr Normann Witzleb and Dr Rebecca Giblin at the Faculty of Law, Monash University, for their comments on earlier drafts of this article. Any errors that remain are those of the author who can be contacted at manly@chancery.com.au.
1 See generally, William Tetley QC, “Mixed Jurisdictions: Common Law vs Civil Law (codified and uncodified)” (Part 1) (1999) 3 Uniform Law Review 591 at 604 to 605 and CG Van Der Merwe, Jacques du Plessis, Marius De Waal, Reinhard Zimmermann, Paul Farlam, “The Republic of South Africa”, Chapter 2 in Vernon Valentine Palmer, Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge University Press, 2nd Edition, 2012) 95 at 134 and 149.
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