Letterkunde en die reg in die middeleeuse epos Vanden vos Reynaerde met spesifieke verwysing na die Suid-Afrikaanse regstelsel

Abstract

Die sentrale gebeurtenis in die Middeleeuse literêre werk Vanden vos Reynaerde is die verhoor van die vos voor koning Nobel die leeu. Die epos bied om hierdie rede ’n insiggewende blik op die regsprosedure van sy tyd (die 13de eeu) – spesifiek die regsprosedure soos toegepas in die feodale Vlaandere. Ons navorsing wil die Reinaert plaas binne die konteks van die moderne Suid-Afrikaanse regstelsel – ’n stelsel wat sy oorsprong ten dele in die Middeleeuse straf- en strafprosesreg van die Lae Lande het. Die volgende navorsingsvraag is geformuleer: Hoe verskil die regsproses en verhoor in die Reinaert van, of kom dit ooreen met, die hedendaagse Suid-Afrikaanse straf(proses)reg? Anders gestel: Tot watter mate word spore van die Middeleeuse reg soos wat dit in die Reinaert voorkom, in die hedendaagse Suid-Afrikaanse strafprosesreg aangetref? Ten einde hierdie vraag te beantwoord, moes vasgestel word wat die aard van die regstelsel was wat tydens die vos se verhoor gegeld het en watter oorblyfsels van hierdie Middeleeuse regstelsel nog merkbaar is in die hedendaagse Suid-Afrikaanse strafprosesreg. Ook die moderne Suid-Afrikaanse regstelsel moes dus kortliks beskryf word. Benewens die primêre bron, die Reinaert self, is regshistoriese bronne en bronne oor die Suid-Afrikaanse straf- en strafprosesreg geraadpleeg. Die teksontleding het bepaalde verskille uitgewys, wat te verstane is, aangesien agt eeue ons van die verhoor van die vos skei. Tog is daar verbasend min fundamentele verskille tussen die heersende reg in die Reinaert en die moderne Suid-Afrikaanse reg. Die regsreëls en prosesgang kan opvallend maklik en goed gevolg word en aspekte daarvan is nog steeds bekend vir ’n hedendaagse (Suid-Afrikaanse) leser. Ons hoop ons navorsing wek hernude belangstelling in die Middeleeue en die reg en ook bewondering vir die onverskrokke, wrede maar slimme vos wat die korrupte magshebbers van sy tyd genadeloos aan die kaak gestel het.

There is a long and symbiotic connection between literature and the law. The law, literature and religion formed a coherent whole in primitive societies and although these three elements eventually became separate aspects of society, there was still a close relationship between them in the Middle Ages (Pavlović 1986:697). The relationship between literature and law has intrigued literary and legal scholars for a long time and has seen the birth of a whole movement, the so-called Law and Literature Movement, in the 20th century (Gravdal 1992). We place our interdisciplinary study mainly within this field. The famous and well-studied medieval Dutch animal epic Vanden vos Reynaerde (Reynard the fox) has fascinated lovers of literature, the Middle Ages and the law for centuries. It is indisputably one of the masterpieces of medieval literature: ―If it were the only interesting and valuable work existing in the Old Dutch, it alone would fully repay the trouble of learning that language,‖ said Joseph Bosworth in 1836. The story of the misdeeds and trial of the intrepid, fearless, cruel and clever fox Reynard is filled with drama and human weaknesses and it is a welcome, pleasing and inexhaustible source of ongoing scholarly investigation. Our research aims to make a modest contribution to the vast and comprehensive international literature collection about Vanden vos Reynaerde by placing the epic within the context of the modern South African criminal legal system – a system that finds its origin in part in the late Middle Ages in the Low Countries (and Flanders in particular). Vanden vos Reynaerde tells a gripping satirical tale of justice and injustice, greed and cunning, stupidity and cleverness. On King Nobel’s open court day the stage is set for all the other animals to lay charges against the fox in his absence. Adhering to the custom of the time (13th-century Flanders), the fox could not simply be summarily condemned, but had to be summoned three times to appear in court. Eventually, after the first two messengers delivering the summons had been thoroughly humiliated by the fox, Reynard’s cousin (and legal counsel), Grimbeert, succeeds in convincing the fox to accompany him to the court. Reynard finally appears and the animals lay formal complaints. The fox is immediately sentenced to death by hanging. But Reynard, cunning as he is, succeeds in turning the greedy, power-hungry and corrupt king and queen against his enemies by telling a far-fetched tale of treachery and a great treasure. The king believes his story and grants him his freedom. After the fox commits murder by killing the hare, thereby finally humiliating the king as well as his court, he escapes with his family into the wilderness. Our research question was the following: What similarities and differences can be pointed out between the court proceedings in the Reynard epic and aspects of the modern South African legal system? The legal aspects of the epic have been thoroughly researched (see Jacoby 1970 and Lippevelde 2012), but not yet against the background of current legal systems. We wanted to link the judicial aspects as they appear in the epic to the modern South African criminal legal system, largely because the epic has always been read as a canonical text in Afrikaans departments at South African universities. The central event in the Reynard epic is the trial of the fox at the court of King Nobel, the lion. The epic offers an illuminating view of the legal processes of the time – specifically the legal procedure as it was used in feudal and royal courts. This aspect of the Reynard has already been carefully researched, but as far as could be determined, the connection between the medieval law of the Low Countries, as it is reflected in the Reynard, and the modern law of South Africa has not yet been investigated. In our study we concentrated on similarities and differences between the two legal systems, taking the text as our starting point.

In order to answer our central question – how do the legal processes and trial in the Reynard differ from or correspond to criminal law in modern-day South Africa? – we used a descriptive and comparative methodology. We attempted to compare the court proceedings taking place in the medieval text with fundamental aspects of modern South African criminal and constitutional law. We start by giving a short overview of the development of South African criminal law, which is a product of Western legal thought. We follow its development from its beginnings as primitive Germanic law, through the reception of Roman law in the late Middle Ages (the epic was probably written circa 1250) to the transplanting of Roman-Dutch law by the Dutch East Indian Company at the Cape of Good Hope. After 1806 the Cape of Good Hope became a British colony and English law made its entrance. Today South Africa has a mixed legal system. We found that there are many similarities, but legal principles that are not familiar to modern-day, 21st-century South African readers of the text are the following: a head of state that also acts as public prosecutor and as judge and who is very involved in the whole process right up to sentencing (the doctrine of the separation of powers did not exist at the time of the fox’s trial); extreme procedural rhetoric as described by Van Caenegem (1954); the duty of all free men to attend the open court day; canonical law such as the papal ban; sentencing in absentia; the violation of the king's peace; blood feuds and reconciliation and the oath of innocence. The above-mentioned legal aspects were part of a feudal society that no longer exists today. There was, for example, no distinction between public and private law. It is therefore not surprising that they did not survive the long evolution from primitive to modern South African law. This being said, there are surprisingly few fundamental differences between the prevailing law in Reynard the fox and modern South African criminal law. The rules of law and procedure are easily recognised by contemporary (South African) readers. We can point to basic human rights, enshrined in the South African Constitution of 1996, such as the right to an open trial and legal representation, the presumption of innocence until proved guilty, due process (such as the right to be summoned three times to court in the epic), the presence of the accused in court, nullum crimen sine lege and the burden of proof. To conclude: our admiration for the clever fox and the sharp satire of his creator, Master Willem, has no bounds. We are reminded that modern-day societies still need the merciless unmasking of corrupt abuse of power by someone clever enough to use the legal system against the corrupt. Finally, we show that the epic, because its theme is so timeless, can still easily be made accessible to modern-day readers.