oa Fundamina : A Journal of Legal History - Constitutional protection of common law : the endurance of the civilian Tradition in southern Africa

Volume 18, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



This article investigates the endurance of the civilian tradition in those Southern African countries that received the European component of their law from the Colony of the Cape of Good Hope or the Zuid-Afrikaansche Republiek. The modern-day constitutions of Swaziland and Zimbabwe guarantee the application of respectively Roman-Dutch law and the law of the Colony of the Cape of Good Hope. In order to interpret the constitutional provisions that refer directly to the civilian tradition or to the common law, it is necessary to look at the legislative provisions that first introduced the European law in these countries. Lesotho affords the least protection to the civilian tradition in its Constitution. A number of legal decisions of the courts of Lesotho are analysed to determine how and to what extent the civilian tradition has been preserved in that Kingdom.

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