Constitutional Law

Roman-Dutch Law

The common law of South Africa — a hybrid legal system based on Roman law as received in the Netherlands (17th century), brought to the Cape Colony and subsequently developed by South African courts.

Legal Definition

Roman-Dutch law (Hollands-Romeinse reg) is the foundation of South African private law — contract, property, delict, family law, and succession are all primarily governed by Roman-Dutch common law as developed by South African courts and modified by statute. It coexists with English-derived procedural law, customary law (for certain communities), and the Constitution as the supreme law. Understanding Roman-Dutch roots explains many South African legal terms and concepts not found in other legal systems.

📖 Constitutional / Statutory Basis: Section 39 (courts may consider foreign law); Constitution as supreme law over all common law

Practical Example

The rei vindicatio, mandament van spolie, in duplum rule, and fideicommissum are all Roman-Dutch law concepts applied daily in South African courts.

Frequently Asked Questions

Does Roman-Dutch law prevail over English law in South Africa?

In private law (contracts, property, delict), Roman-Dutch law is the primary common law. English law applies primarily in commercial matters (company law, evidence, procedure), where South Africa adopted English law during British colonial rule. There is often a hybrid.

Does the Constitution replace Roman-Dutch common law in South Africa?

The Constitution is supreme — any common law rule (Roman-Dutch or otherwise) that is inconsistent with the Constitution is invalid. Courts have developed common law in light of constitutional values, particularly dignity, equality, and freedom.

Related Terms

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