Introduction to the law of South Africa

583 Pages·2004·11.59 MB·English

by  Van der Merwe

INTRODUCTION TO
THE LAW OF
SOUTH AFRICA
EDITED BY
C.G.VAN DERMERWEAND
JACQUES E.DUPLESSIS
KLUWER LAW
INTERNATIONAL
Introduction to the Law of
South Africa
General Editors of the Series: Tugrul Ansay and Don Wallace, Jr.
Introduction to Greek Law (second edition 1993)
Introduction to the Law of Israel (1995)
Introduction to German Law (1996)
Introduction to Turkish Law (fourth edition 1996)
Introduction to Hungarian Law (1998)
Introduction to Belgian Law (2001)
Introduction to the Law of the United States (second edition 2002)
Introduction to Italian Law (2002)
Introduction to the Law of South Africa (2004)
Introduction to Swiss Law (third edition 2004)
Introduction to the Law
of South Africa
Edited by
C.G. van der Merwe Jacques E. du Plessis
Professor of Civil Law, School of Law Professor of Private Law and Roman Law
Un iversity of A herdeen University of Stellenhosch
with a foreword by
Reinhard Zimmermann
Director, Max Planck Institute for Foreign Private
and Private International Law, Hamburg
KLUWER LAW
INTERNATIONAL
web-ISBN 978-90-411-5714-0
Published by:
Kluwer Law International
P.O. Box 85889,
2508 CN The Hague,
The Netherlands
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Library of Congress Cataloging-in-Publication Data
Introduction to the law of South Africa / edited by C.G. van der Merwe, Jacques E. du
Plessis, with a foreword by Reinhard Zimmermann.
p. cm. — (Introduction to ... series)
Includes bibliographical references and index.
1. Law-South Africa. I. Van der Merwe, C. G. II. Du Plessis, J. E. III. Series.
KTL68.I583 2004
349.68—dc22
2004042089
Printed on acid-free paper.
© 2004 Kluwer Law International
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without the prior permission of the publisher.
Permission to use this content must be obtained from the copyright owner. Please apply to:
Kluwer Law International, Rights and Permissions Department. P.O. Box 85889, 2508 CN The Hague,
The Netherlands. E-mail: [email protected]. Website: www.kluwerlaw.com
Printed and bound by Antony Rowe Ltd, Eastbourne
List of Contributors
Editors
C.G. VAN DER Merwe BA LLB (UOFS), BA (Hons) BCL (Oxon), LLD (Unisa),
Professor of Civil Law, School of Law, University of Aberdeen
Jacques du Plessis B Comm LLB LLM (Stell), PhD (Aberdeen), Professor of
Private Law and Roman Law, Faculty of Law, University of Stellenbosch
Authors
Jonathan Burchell BA LLB (Natal), LLM Diploma in Comparative Legal
Studies (Cantab), Professor of Law, Faculty of Law, University of Cape Town
Brigitte Clark BA LLB (Rhodes), LLM (Cantab), PhD (Rhodes), Lecturer in
Law, The Norwich Law School, University of East Anglia
Johan de Waal B Comm LLB (Stell), LLM (Notre Dame), Advocate of the
High Court of South Africa
Marius de Waal, B Comm LLB LLM LLD (Stell), Professor of Private Law
and Roman Law, Faculty of Law, University of Stellenbosch
Franqois du Bois BA LLB (Stell), BA BCL (Oxon), Associate Professor of
Law, Faculty of Law, University of Cape Town
Jacques du Plessis B Comm LLB LLM (Stell), PhD (Aberdeen), Professor of
Private Law and Roman Law, Faculty of Law, University of Stellenbosch
The Hon Mr Justice H.J. Erasmus, MA (UOFS), LLB (Unisa), D Litt et
Phil (Leiden), Emeritus Professor of Private Law and Roman Law, University of
Stellenbosch, Judge of the High Court of South Africa
Christoph Careers B Comm (Hons) (Unisa), LLM (Stell), Senior Lecturer in
Commercial Law, Faculty of Law, University of Stellenbosch
v
vi List of Contributors
Cora Hoexter BA LLB (Natal), MA (Oxon), Professor of Law, Faculty of
Law, University of the Witwatersrand
Chare Hugo BA LLB (Pret), LLM (Unisa), LLD (Stell), Professor of Mercan-
tile Law, Faculty of Law, University of Stellenbosch
Max Loubser BA LLB (Stell), DPhil (Oxon), Professor of Private Law and
Roman Law, Faculty of Law, University of Stellenbosch
Gerhard Lubbe BA LLB (Stell), LLM (Yale), Professor of Private Law and
Roman Law, Faculty of Law, University of Stellenbosch
Andrew Skeen BA Hons (Rhodes), BL Hons LLB (Rhodesia), MPhil (Cantab),
Professor of Law, University of the Witwatersrand
Richard Stevens BA LLB (Stell), LLM (Tubingen), Senior Lecturer in Com-
mercial Law, Faculty of Law, University of Stellenbosch
Philip Sutherland B Comm LLB (Stell), PhD (Edinburgh), Professor of
Commercial Law, Faculty of Law, University of Stellenbosch
C.G. VAN DER Merwe BA LLB (UOFS), BA (Hons) BCL (Oxon), LLD (Unisa),
Professor of Civil Law, School of Law, University of Aberdeen
David Zeffertt BA LLB LLD (he) (Witwatersrand), Emeritus Professor of
Law, School of Law, University of the Witwatersrand
General Introduction
It is the intention that the following work is to be a part of the series of introduc-
tory books to the laws of various countries. The whole project is intended to
prepare books which follow basically the same plan for each country. The books
in the series are not designed to be definitive texts of the law of any country.
Rather, they will attempt to provide academics, lawyers, businessmen, adminis-
trators, government officials, students and others with the basic knowledge of
legal concepts of the country in broader terms, with special emphasis on practical
issues, so that the interested persons will be able to understand the system and
pursue research on special legal problems by knowing the proper questions to
ask and the proper place to find the answer.
General Editors:
Tugrul Ansay, Don Wallace, Jr.,
Dr. jur., M.C.L., LL.M., Professor of Law and Director,
Professor of Law, International Law Institute,
K09 University, Georgetown University
Istanbul
vn

Preface
The South African legal system is characterised by some remarkable features.
Because it draws strongly on both uncodified Roman-Dutch civil law and the
English common law, it can be regarded as a member of an intriguing group
of 'mixed' legal systems, whose experiences in blending and developing these
components contain lessons that are of interest to a broader legal community.
South African law further has become especially renowned for the way in which
it has been drastically reformed from being an integral component of a system of
oppression, towards being a key instrument with which to achieve a more just
and equitable society. Of particular significance in this regard are the exciting
developments in the application of a Constitution with a Bill of Rights that
generally is regarded as one of the most progressive in the world and which has
had a profound impact on many areas of the law.
In this volume it has been sought to provide authoritative and accessible
introductory expositions of key aspects of South African law. We do, of course,
appreciate that opinion may very well differ as to the selection of divisions of
law it contains, as well as the depth in which some divisions are dealt with.
However, limitations of space, but especially the need for uniformity with other
titles in an international series, have been notable constraining factors that
resulted in the exclusion or only partial treatment of certain areas of law.
Nonetheless, we hope that ultimately we have succeeded in conveying to the
reader the essence of the system, and especially something of the excitement
shared by so many who have an interest in its continuous development to meet
the demands of these challenging times.
In compiling this volume many debts were incurred. We would like to thank
the contributors for their willingness to participate and the enthusiasm with which
they went about their task. We hardly could have expected more. We are also
most grateful to the Max Planck Institute for Foreign Private and Private Interna-
tional Law in Hamburg for the use of its research facilities, and especially to its
Director, Reinhard Zimmermann - not only for honouring us with a foreword,
but also for generally promoting awareness of the significance of the law of
South Africa outside its borders. Finally, grateful acknowledgement is also
due to our technical editor, Use van der Merwe, for her invaluable assistance
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