South Africa - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Pierre Burger, Director, Werksmans Attorneys.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
I. INTRODUCTION: ARBITRATION IN SOUTH AFRICA: HISTORY AND INFRASTRUCTURE
A. History and Current Legislation
1. Historical evolution of law relating to arbitration
South African law is usually classified as a mixed legal system, derived partially from the civilian tradition of Roman Dutch law and partially from the common-law tradition through English law. Its oldest roots lie in the Roman Dutch law which was brought to the Cape by the Dutch East India Company with the arrival of Jan van Riebeeck in 1652. The Cape Colony was occupied by Britain in 1795 while the Netherlands was under revolutionary French occupation, and again, more permanently, in 1806. Britain annexed the short-lived Boer Republic of Natalia in 1843 to form the Colony of Natal, and with the fall of the two Boer republics—the Zuid-Afrikaansche Republiek (renamed Transvaal) and the Orange Free State – in the Second Anglo-Boer War of 1899-1902, all of South Africa (as it became known upon Union in 1910) was brought within the domain of the British Empire.
The British substantially retained the Roman Dutch common law in its South African colonies, but introduced the English law of procedure and evidence in criminal and civil matters. English law was also adopted in various spheres of commercial law, including company law, banking and negotiable instruments, and others. The law of obligations – contract, delict and enrichment - has remained predominantly Roman Dutch. The Roman Dutch traditions of arbitration dated back to classical Roman law, where arbitration was regularly used. Its subjects were broad, embracing both commercial and family matters. Moreover, Roman law dealt with the enforceability of arbitration agreements contained in commercial contracts and treated arbitration clauses as separate from the main agreement. The Roman-law principles of arbitration were subsumed into the Roman Dutch law, as evidenced by the works of several of the leading Roman Dutch authorities. Johannes Voet’s Commentary on the Digest is a leading source of South African common law in this regard.