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International Construction Law Review

THE CONVENTIONAL PENALTIES ACT 1962 (SOUTH AFRICA): COMPARATIVE OBSERVATIONS WITH RECENT DEVELOPMENTS IN THE COMMON LAW

Richard Manly QC*

SOUTH AFRICA: A MIXED JURISDICTION – INTRODUCTION

South Africa was not always a unitary state. The Union of South Africa was formed in 1910 by the unification of four British colonies, namely the Cape of Good Hope, Natal, the Orange Free State and Transvaal. In 1961, the Republic of South Africa was created.
The South African legal system is a mixed jurisdiction made up of an interweaving of a number of legal, traditional and civil law systems represented by uncodified Roman-Dutch law (i.e. the law of seventeenth century Holland) which had been brought to the Cape of Good Hope by the original Dutch settlers in 1652 when that colony was under the administration of the Dutch East India Company. After British occupation in 1795 and 1806 and the transfer of the Cape of Good Hope to Britain in 1815 English common law principles were adopted. There is also a system of customary law inherited from indigenous Africans.
These various legal traditions have had a complex interrelationship. The English influence is most apparent in procedural aspects of the legal system and the Roman-Dutch influence is most visible in substantive private law.
Following the Boer War (1899–1902) and the establishment of the Union of South Africa (1910) English and Roman-Dutch law were largely fused into a single system.1
This brief explanation of the ingredients that make up the South African legal system goes some way to explain the divergence that developed between the competing principles of Roman-Dutch law and English common law regarding the treatment of contractual penalties.

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