1. Introduction
1.1 Justification for choice of comparative systems
The underlying rationale for the legal systems chosen for the comparative analysis may be found in the historical development of South African criminal law. It is this author’s intention to illustrate the primary features of such development, in order to describe in detail the influences of Roman-Dutch and English law upon South African criminal law culminating in the present position.
The roots of the South African criminal law (as the majority of South African common-law) can be found in Roman-law. The Twelve Tables 72 for wrongful conduct to be punished by public authority can be considered the initial source of
correctly, many judges are confused. Some courts have employed a hybrid defence (citing Banks v State, 608 A. 2d 1249, 1252 (Md. Ct. spec. App. 1992): defence at trial was “an amalgamation of self-defence, hot-blooded response to provocation, and battered spouse syndrome”). Other have expressed confusion about defence strategy or ‘specialized’ application of traditional self-defence law to battered women, indicating that in practice there may well be a “battered woman syndrome defence”. Schneider supra at n 57 cites the following case law to support her conclusion: State v Scott, 1989 WL 90613 (Del, Super, July 19, 1989) (defence attorney referred to client’s defence as
“battered woman’s defence”); State v Vigil, 794 P. 2d 728, 729 (N.M 1990) (referring to a battered woman theory of self-defence).
72Promulgated in 450 BC.
Roman provisions which provided for the modern conception of criminal law.73 Delictual rules at this stage (with a penal character punishing wrongdoers) remained up until the Justinian rule, resulting in criminal law only gathering momentum in the Republic under the Principate.74
Towards the end of the Republican period laws were enacted proscribing certain offences and setting out punishment for such offences. This became the basis of substantive criminal offences which developed out of Roman law (“crimina publica”).
During the first five centuries AD the “crimina extraordinaria” came into existence incorporating all behaviour which was punished through the tribunals.75
Justinian ordered the collection of various legal texts into one work: Corpus Juris Civilis.76 Roman jurists did not directly advance the systematic study of criminal law.
This was due to little attention paid to contemporary status and customs.77 Due to the fall of the Western part of the Roman Empire to Germanic tribes, the customary laws of these tribes were introduced into Western Europe. But as a result of the introduction of Roman law, little remained of these customary laws which are significant for Roman-Dutch criminal law.
73Burchell and Hunt South African Criminal Law and Procedure 2ed (1983) Vol I: 12.
74Ibid.
75Snyman Strafreg 3ed (1992) 9.
76De Wet De Wet & Swanepoel Strafreg 4th ed (1985) 5. This work is broad authority for all currently recognized common-law crimes in South Africa.
77Burchell and Hunt supra (n 73) 18.
Roman law did not disappear completely (at the fall of the Roman empire) and while Roman law and Canon law exercised an influence on the customary law of Western Europe (in early Middle Ages) the Roman law only began to exercise its influence after the revival of the study of the Justinian compilation at the end of the eleventh century.78
Both the Glossators and Commentators contributed to the rediscovery of Roman law.
This was the direct result of these two groups writing longer commentaries on the Justinian texts. Their intention was to systematize and link them with prevailing statutory, customary and canon law.79
After the revival of the study of Roman law (developed by medieval Italian jurists) the Justinianic compilation of Roman law became the “jus commune” of Continental Europe. As a result of the similarity between the common law of the various Western European countries, Dutch writers relied on legal sources not only from within their own province but also from other provinces of Netherlands and Italy, France, Spain and Germany.80
In 1652 Van Riebeeck on orders of the Dutch East India Company established a settlement at the Cape of Good Hope. Its purpose was to provide water and victuals
78De Wet supra (n 76) 8.
79Burchell and Hunt supra (n 73) 19.
80Burchell and Hunt supra (n 73) 22-23.
for Dutch ships making their way to the Dutch East Indies. The law of the Cape Colony was specifically that of the Province of Holland. The law in force in that province was Roman law.81
In 1795, during the Napoleonic wars, the English seized the Cape in order to secure sea links with India and took it over as a British Colony in 1806. The “Roman-Dutch”
law which then obtained in the colony remained in force. Roman-Dutch law survived only in those areas which had come under British rule and had left the Dutch Empire before it adopted a civil code based on the French Model.82
Despite this, English Common law made its presence felt. This took the form of organizing and modernizing the structure of the court system of the new colony as well as its administration. The law of evidence and procedure (in both criminal and civil law) were restructured on the patterns of the Common law.83
During this time the courts had to settle the classification of common-law crimes and also create exact definitions of their essential elements. In some cases courts achieved this with little help from English law. As a result of bringing order to Roman-Dutch authority, conflicts between writers were resolved, or attention was given to a
81It had been received into Holland in the form given to it by Glossators and Commentators, and in the 17th and 18th centuries Dutch legal scholars adapted it with an admixture of Dutch Customary law:
Grotius (1583-1645); Vinnius (1588-1657); Voet (1647-1713); Bynkershoek (1673-1743) and Van der Keessel (1738-1816).
82Zweigert and Kotz An Introduction to Comparative Law 3ed (1998) 232.
83Zweigert and Kotz supra (n 82) 232-233.
particular problem of definition, or a “manageable” crime was crystallized out of wide-ranging, amorphous Roman-Dutch ones. However, in respect of most common- law crimes, there was a degree of English influence.84 Further reasons for English influence included the fact that most judicial appointments came from three United Kingdom Bars, most were educated in English law, judges and practioners were not familiar with Dutch, few had a command of Latin, and many old authorities were inaccessible and were poorly indexed.85 Furthermore, there was uncertainty and a want in uniformity in the writings of Dutch jurists and also a preoccupation with punishment at the expense of the substantive law.86
Despite the establishment of two independent Boer Republics (Orange Free State and Transvaal), these were incorporated into British Empire after winning Boer war in 1902. In 1910 they joined the Cape Colony forming the Union of South Africa, whose constitution was laid down by the British Parliament in the South Africa Act, 1909.
After the creation of the Union of South Africa in 1910, the progressive anglicization of the law came to a stop.87
84Burchell and Hunt South African Criminal Law and Procedure General Principles of Criminal Law Vol 1 (1970) 23.
85Ibid.
86Burchell and Hunt supra (n 84) 24.
87Zweigert and Kotz supra (n 82) 233. Several factors contributed to this including a sense of political independence from Britain, the recognition of English and Afrikaans as equal languages, training of native jurists, greater attention being paid to the texts of old Dutch writers and to the rules which have developed from them.
In conclusion it is clear that South African law is a hybrid legal system i.e. Roman- Dutch and English law have been fused together.88 This stems from the fact that English influence is considerably greater in regard to the “pigeon-holing” and definition of the common-law crimes than in regard to the general principles of criminal liability. South African criminal law is stronger than its parent systems, its strength lying in a discriminatory and wide use of comparative sources available to it,89 and because of its nature as a mixed system, South Africa can accommodate contributions from a greater variety of legal systems.90
Due to the fact that English law has played a vital role in the development of South African criminal law, it is clear that modern English cases, writings, and developments in this area provide an important comparative source since:
88Zweigert and Kotz supra (n 82) submit that since Roman-Dutch and English law are so intermixed that it cannot without distortion be put into one or other pigeonhole: “Like a jewel in a brooch, the Roman-Dutch law in South Africa today glitters in a setting that was made in England. Even if it were true that the whole of South Africa’s private and criminal law had remained pure Roman-Dutch law, the South African legal system as a whole would still be a hybrid one, in which civil and common-law elements jostle each other” (at 235, citing Hahlo and Kahn The South African Legal System and its Background (1968) 218).
89Burchell and Hunt supra (n 84) 37 state: “While creating order out of chaos of Roman-Dutch criminal law, by introducing detail and precision of the English law of crimes, and while avoiding most of the peculiar eccentricities of the English criminal law, including its needless proliferation of finely divided or overlapping offences, the courts have created general principles of criminal liability more logical, coherent and just than those of English Law”.
90Burchell and Hunt supra (n 84) 37. The Constitution of the Republic of South Africa of 1996 dictates that the common law should be developed with a view to giving effect to constitutional values. Section 39 (2) states: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. Furthermore, the Constitution now mandates that the courts must look to other legal systems when interpreting the Bill of Rights. Section 39 (1) states: “When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law”.
“ South African criminal law is a hybrid system (one of the forbearers which is English law); and secondly because it is the plain truth that a code and the decisions under it cannot provide the kind of practical assistance to our courts which the English, American and Scottish law reports can and do provide” 91.
Burchell and Hunt, note Hahlo and Kahn’s argument in this respect:
“Modern continental systems are codified, whereas the Roman-Dutch law is not. Continental judgments inevitably argue on specific code provisions, whereas courts in non- codified systems argue on abstract non-verbalised principles.
This explains why our judges in the past derived greater assistance from the judgments of English, Scottish and American courts than from judgments of Continental tribunals, and will continue to do so in the future”. 92
It is this author’s contention that it is appropriate to undertake a detailed comparative analysis of South African law with one of the systems which acted as a parent system:
English law. Furthermore, an analysis of American law will be undertaken since prior to its independence, those who settled in America agreed that the law of the several colonies should in principle be English Common law plus any statutes passed specifically for them. A further reason for the use of American law in this comparative analysis is the fact that the theory underlying BWS was first framed 93 in that jurisidiction.94
91Burchell and Hunt supra (n 84) 38.
92Ibid, citing Hahlo and Kahn supra (n 88) at 38.
93As developed by Dr. Lenore Walker. In this respect see pages 2-4 supra.
94See further Roberts supra (n 18) at 143 setting out a historical exposition of the use of expert testimony in cases where an abused spouse kills her abuser. In 1977, the Supreme Court of Washington case of State v Wanrow 559 P. 2d 548 (Was. 1977) (holding that a woman in self- defence case was entitled to have the jury consider her actions in the light of her own perceptions of
While both English and American systems have developed and changed from the 19th century, it is this author’s view that they add to the value of the enquiry as the two regimes may be compared to the South African regime which developed in part from the same 19th century roots.
the situation (at 559), the court held that to not allow the jury to consider this would violate equal protection (at 559). Roberts supra (n 18) at 143 notes that this case is the first step towards an objective reasonable-man standard in battered woman cases. Roberts at 143 notes that the first court ruling to admit expert testimony on battered woman syndrome was Ibn-Tamas v United States, 407 A.2d 626 (D.C. 1979) The court reasoned that the admission of the evidence was “relevant to establish the accused’s credibility and helpful to the jury in their understanding of the accused’s rationalization of her actions” (at 631). Roberts supra (n 18) at 143 goes on to state that: “since Ibn- Tamas supra decision, appellate courts in twenty-six states have addressed the admissibility of expert testimony on battered woman syndrome. Seventeen states have concluded that the testimony is admissible, with varying requirements for foundation evidence and extent of admissibility. Only three states have excluded the testimony on the merits”. Roberts supra (n 18) at 143 notes that “the watershed moment for battered woman syndrome as a buttress to self-defence claim appeared in State v Kelly, 478 A.2d 364, 372 (N.J. 1984). The New Jersey Supreme Court found an expert’s testimony on the subject of battered spouse syndrome essential to rebut the general misconceptions regarding battered women because the testimony, is aimed at an area where the purported common knowledge to the jury may be very much mistaken, an area where juror’s logic drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge”.