n South African Law Journal - The role of good faith, equity and fairness in the South African law of contract : the influence of the common law and the Constitution : notes




The role of abstract values such as good faith and fairness in South African contract law needs to be considered against the wider background of the South African legal system and its historical development. South African private law is essentially uncodified and we must remember that, at the heart of this uncodified system lies seventeenth-century Roman Dutch law, which was the law of Holland at the time when the Cape of Good Hope was occupied, in 1652, by a Dutch commercial company, the Dutch East India Company. In 1806 the Cape was taken over by the British. The first Charter of Justice promulgated by the new colonial power in 1826 created a new Supreme Court, headed by a Chief Justice and two other judges who were to be appointed from the bars of the United Kingdom. The charter further provided that the substantive law to be applied by the court was the existing legal system - ie Roman Dutch Law - but that the judges could formulate their own law of procedure. Because the newly appointed judges were trained and formerly practiced in a common-law system, they superimposed the procedure known to them as well as the principle of stare decisis on the basic system of Roman Dutch law. Moreover, since these first judges at the Cape were more comfortable with the English language, they often resorted to English law when difficulties arose. The other geographical areas that eventually formed part of what is now the Republic of South Africa, followed closely in the footsteps of the Cape Colony. And so it came about that we joined the small group of jurisdictions - which includes Scotland, Louisiana and Sri Lanka - that are classified as mixed legal systems.


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