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Roman-Dutch Law in Modern South African Succession Law

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Roman-Dutch Law in Modern South African Succession Law 278 Ars Aequi april 2014 verdieping arsaequi.nl/maandblad AA20140278 Roman-Dutch law in modern South African succession law François du Toit* Modern South African succession law adheres to many of the tenets of Roman-Dutch succession law, and present-day South African courts frequently invoke Roman-Dutch authority to address questions regarding contemporary succession law. This article explores the history and current significance of Roman-Dutch law in South African succession law. 1 Introduction of succession provides an excellent example Roman-Dutch law, the legal system developed of the mixed nature of the South African legal in the Netherlands through the reception system because the interplay of Roman-Dutch (particularly in the sixteenth and seventeenth law and English law has had a particular centuries) of Roman law and its synthesis historical dynamism in this branch of South with Germanic customary law, feudal law African private law. and canon law, was introduced at the Cape of Good Hope (present-day Cape Town) by Dutch The South African law of settlers from the middle of the seventeenth century. English law coalesced with Roman- succession provides an Dutch law in the aftermath of Britain’s oc- excellent example of the cupation of the Cape in 1806. The new British mixed nature of the South rulers retained Roman-Dutch law, but the law at the Cape came under increased English African legal system because legal influence as the British pursued an the interplay of Roman-Dutch aggressive policy of Anglicisation from 1820 law and English law has * Prof. F. du Toit is profes- onward. In the result, a mixed legal system sor of private law at the had a particular historical University of the Western developed that spread northward as Euro- Cape, South Africa. pean settlers moved to the southern African dynamism in this branch of 1 For a concise overview of interior.1 the development of South South African private law Africa’s common law and Roman-Dutch law remains part of South its mixed legal system, Africa’s common law to this day, although, by see A.B. Edwards, The reason of legislative and judicial adaptation, History of South African Law – An Outline, Durban: not consistently in its original form. Many 2 Roman-Dutch law and South Africa’s Butterworths 1996, p. 65- aspects of modern South African private law mixed legal system 101; R. Zimmermann & are governed exclusively by the common D. Visser, ‘Introduction: South African Law as a law; South African private law is, therefore, 2.1 Historical contextualisation Mixed Legal System’, in: R. particularly infused with Roman-Dutch law. Roman-Dutch law at the Cape of Good Hope Zimmermann & D. Visser This article highlights the place and role of was unaffected by the codification movement (eds.), Southern Cross: Civil Law and Common Roman-Dutch law in contemporary South in continental Europe during the eighteenth Law in South Africa, Ken- African succession law. The South African law and nineteenth centuries. Modern South wyn: Juta 1996, p. 2-30. arsaequi.nl/maandblad AA20140278 verdieping Ars Aequi april 2014 279 African law remains uncodified and, although time, whether these statutes remain appli- statutes regulate many aspects of contempo- cable in modern South African law. In Spies rary South African law, South African courts v Smith,4 for example, the point was argued still rely on the so-called ‘old sources’ – docu- before the South African Appellate Division mented accounts of Roman-Dutch law from (now the Supreme Court of Appeal) that particularly the seventeenth and eighteenth article 12 of the Placaat of 4 October 1540 centuries – when applying the common law (the Perpetual Edict) regarding prohibited today. These old sources are:2 testamentary bequests of immovable property – the works of Roman-Dutch institutional by a minor no longer constituted part of South writers such as Inleidinge tot de Holland- African law. Judge of Appeal Steyn found it sche Rechtsgeleertheyd (Hugo de Groot, unnecessary to decide this point, but never- 1583-1645), Het Roomsch-Hollandsch Recht theless opined that the article still found ap- (Simon van Leeuwen, 1626-1682) and Com- plication in contemporary South African law.5 mentarius ad Pandectas (Johannes Voet, 1647-1713); Modern South African law – judgments handed down by Dutch courts, particularly those in the province of Hol- remains uncodified and, land; although statutes regulate – legal opinions of Dutch jurists regarding many aspects of contemporary practical legal matters contained in com- pilations such as the Hollandsche Con- South African law, South sultatiën (compiled from 1645-1666) and African courts still rely on the 2 L. du Plessis, An Introduc- the Nederlands Advijsboek (compiled from tion to Law, Lansdowne: so-called ‘old sources’ when 3 Juta 1999, p. 48. 1693-1698); and 3 Edwards 1996, p. 63-64. – statutes applicable in Holland and other applying the common law today 4 1957 (1) SA 539 (A). Dutch provinces. 5 551B-C. 6 R. van den Bergh, ‘The Statutes – particularly placaaten – that British rule at the Cape from 1806 occasioned, Remarkable Survival of applied in Holland prior to the Dutch settle- despite the retention of Roman-Dutch law by Roman-Dutch Law in ment at the Cape supplemented and extended the new British rulers, a significant English Nineteenth-Century South Africa’, Fundamina 2012-1, Roman-Dutch law at the Cape. South African law influence on the civilian legal system p. 85-87. courts have had to determine, from time to existent at the Cape. During the century that followed, this influence spread also to the law of the other British colonies in southern Africa (among others, the erstwhile Boer Republics of the Transvaal and Orange Free State that came under British rule after the Anglo-Boer War (1899-1902)). The survival of Roman-Dutch law under British rule in nine- teenth-century South Africa is indeed remark- able. According to Van den Bergh this survival can be ascribed to, first, the legal education of a number of colonial jurists at distinguished Dutch universities; secondly, translations of Roman-Dutch texts into English in order to make these accessible to English-speaking ju- rists; and, finally, the emotional attachment to the Dutch legal heritage of many descendants of the original Dutch settlers at the Cape.6 Roman-Dutch law’s survival, and its coales- cence with aspects of English law, yielded the mixed jurisdiction that typifies modern South African law. 2.2 Abolition of aspects of Roman-Dutch law under English rule Photo: Marten Hoogstraat Certain aspects of Roman-Dutch law did not, (www.whiteframe.nl) however, survive under British rule and were © Ars Aequi abolished statutorily. The law of succession 280 Ars Aequi april 2014 verdieping arsaequi.nl/maandblad AA20140278 was particularly vulnerable in this regard, placed by nineteenth-century English law as the demise of Roman-Dutch law’s uni- on testamentary freedom. In the result, all versal succession illustrates. Roman-Dutch manifestations of forced heirship, such as law prescribed that, upon adiation, the heir the legitimate portion13 as well as the Falcid- succeeded ex lege to the deceased’s assets and ian and Trebellian fourths,14 were abolished liabilities, and that the heir had to represent statutorily under English influence in the four 7 M.M. Corbett, G. Hofmeyr and administer the deceased estate. Roman- southern African British colonies during the & E. Kahn, The Law of Dutch law acknowledged the appointment of latter half of the nineteenth and early twen- Succession in South Africa, Lansdowne: Juta 2001, 15 an executor, but the executor’s function was tieth centuries. Modern South African law p. 7. merely to assist the heir in the winding-up of is, therefore, devoid of the typical Romanist- 8 In order to protect an the estate.7 This practice was entirely foreign Continental forced heirship devices.16 heir from financial ruin through the inheritance to the British, and the Cape Ordinance 104 South African law nevertheless recognises of an insolvent estate, of 1833 replaced the system of universal suc- that a person’s indigent minor child, whether Roman-Dutch law permit- cession (and, by implication, repealed all its born in or out of wedlock, has a common-law ted the heir to accept the inheritance subject to the 8 incidentals such as the beneficium inventarii ) claim for maintenance against such person’s benefit of an inventory. with the English system of executorship.9 deceased estate. It is interesting to note that The heir’s liability for the Under this system the executor takes charge the initial recognition of this claim in Carelse deceased’s debts was then limited to the assets that 17 of the deceased estate, collects the debts owed v Estate De Vries was based on a judicial were inherited: Corbett to the estate, pays estate creditors, and dis- misreading of the Roman-Dutch writer Simon e.a. 2001, p. 8. 18 9 Corbett e.a. 2001, p. 8. tributes the net assets among the deceased’s van Groenewegen’s De Legibus Abrogatis. 10 1955 (3) SA 361 (A). successors. The English-law version of execu- South African courts have, nevertheless, 11 364G. It must be noted torship spread beyond the Cape and gained a consistently followed the Carelse decision, and that, notwithstanding firm foothold in modern South African law. In in Glazer v Glazer19 the Appellate Division the court’s reference to legatees, the position is the 10 Greenberg v Estate Greenberg the Appellate confirmed that it has become settled law. The same with regard to heirs. Division emphasised the absence of universal Appellate Division in the Glazer case was not, 12 N.J. van der Merwe & C.J. succession in contemporary South African law however, willing to extend the Carelse court’s Rowland, Die Suid-Afri- kaanse Erfreg, Pretoria: when it acknowledged that a deceased’s suc- misreading of Van Groenewegen in order Van der Walt en Seun cessors do not acquire ownership of estate as- to provide patrimonial protection also for a 1990, p.
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