Law reform in South Africa : 21 years since the establishment of a supreme constitutional dispensation

Abstract

The Republic of South Africa has a mixed legal system. It is a hybrid of Roman Dutch common law (influenced by English law), indigenous customary law, legislation at various hierarchical levels, and a supreme justiciable constitution. Since the system of apartheid (formally between 1948 and 1993) was not based on Roman Dutch law, it necessarily required legislative reform. The dawn of constitutional democracy in South Africa on 27 April 1994, again necessitated large-scale law reform in South Africa in order to dismantle the apartheid structure. This process entails both formal reform of the law (by constitutionally-mandated agencies) and institutional law reform (primarily by the South African Law Reform Commission). Although the various legislative authorities will bear the brunt of the reform of existing legislation, the judiciary also has a law-reform function. All courts and tribunals have an indirect law-reform function in that they must interpret all law legislation, and develop the common law and customary law. However, law reform in South Africa is not limited to changes and intervention by legislatures, subordinate lawmaking bodies and the judiciary. The South African Law Commission was specifically established to facilitate law reform in the Republic of South Africa. Apart from the competent lawmakers, the judiciary and the Law Reform Commission, other role players – such as the State Law Advisors, civil society and developments in international law – also play a role in the law reform and transformation required by the new constitutional dispensation. During the past 21 years these efforts proved to be effective and successful.