INTRODUCTION
“Invisible power structure that sustains colonial relations of exploitation and domination long after the end of direct colonialism” (Ndlovu-Gatsheni 2012)
The impact of the common law legal system on post-colonial legal transformation in India and other colonial countries have rooted in the profound changes brought by the British colonial rule and the subsequent adaptation of these legal structures in these countries which was ruled by the British.
During the British colonial era, the foundation of India’s present day legal system was laid by the introduction of the English common law model. As the British East India Company which was established in the year 1600 extended its territorial control in India, it recognized the necessity for a uniform legal system to govern diverse communities and facilitate administrative control.
The Regulating Act, 1773 marked the establishment of the first Supreme Court in Calcutta, formally initiating the transplantation of British judicial institutions in the Indian soil. Key colonial era codes including the Indian Penal Code, 1860, Civil Procedure Code of 1908, and other laws across the country promoted principles such as the rule of law, equality before law and adversarial legal procedures. However, this transformation did not simply replace indigenous systems, instead, it often subordinated or marginalized traditional religious and customary legal practices. The British imposed their legal ideals, sometimes in conflict with local norms and customs, leading to significant social and cultural shifts. Despite Indian characteristics being gradually grafted onto the imported model, the core framework of Indian law continued to reflect its common law origins even after independence.
In the post-colonial period, the Indian state retained much of the British legal apparatus, including codified statutes, hierarchical courts, and common law principles such as case precedent. At the same time, it began on ongoing process of legal transformation, amending supplementing and occasionally reinterpreting inherited laws to address new challenges, promote social justice, and reflect uniquely Indian constitutional values. The interaction between colonial legacies and post-independence reforms remains a central theme in contemporary debates over the nature, effectiveness and decolonization of Indian legal system.
Upendra Baxi’s theorisation of postcolonial legalities is instructive – which took three forms. The first was a total transplantation of laws into colonies. The second was a tolerance of indigenous legal systems alongside imported colonial (English) laws, creating a dual legal system of English and customary law – the latter depending on the extent of the tolerance. The third form of postcolonial legality was settler colonialism – this was applied in many parts of Africa.1
South Africa’s legal system is distinguished by its compact blend of Roman-Dutch law introduced by Dutch colonist in the 17th centaury and English common law, which became dominant after British occupation in the 19th centaury. South Africa’s laws reflects both continental civil law traditions and Anglo-Saxon common law principles, affecting every aspect of private, public and commercial laws. During the colonial and apartheid eras, English common law values such as judicial precedent, adversarial procedure and the rule of law were introduced, just like which enshrined in the Indian legal systems.
Colonial administrators did not eradicate full traditional African laws but filtered it through foreign laws often recognizing customary law only when it did not conflict with Western notions of equity and good conscience. This legal pluralism where imported colonial laws co-existed uneasily with indigenous practices created persistent social and institutional tensions.
Following independence and the end of apartheid, South Africa undertook sweeping constitutional reforms, culminating in the 1996 Constitution and Bill of Rights. These reforms sought to overcome the hierarchical legacy of colonial law and to integrate equality, human rights and protections for customary law into the post-colonial order. Judges and law makers grappled with reinterpreting common law and Roman-Dutch principles to serve the demands of justice and social transformation, while also striving to rectify exclusion and elevate the status of African legal tradition.
The ongoing transformation of South Africa’s legal system stands as a complex negotiation between inherited common law principles and the need to foster indigenous jurisprudence, address historical injustices, and promote social equity in ma multi-ethnic, multi-legal society.
THE IMPACT OF COMMON LAW LEGAL SYSTEM ON POST COLONIAL INDIA
The British rule in India is responsible for the development of the common law based legal system in India. It can be traced to the arrival and expansion of the British East India Company in the year 1600. The company gained foothold in India in 1612 after Mughal emperor Jahangir granted it the right to establish a factory in the port of Surat. In 1640, the East India Company established a second factory in Madras on the south eastern coast. Bombay Island, a former Portuguese outpost was gifted to England as dowry in the marriage of Catherine of Braganza to Charles II and was later leased to the East India Company in 1668. In the early seventeenth centaur, the crown, through a series of Charters, established a judicial system in the Indian towns of Bombay, Madras and Calcutta, basically for the purpose of administering justice within the establishment of the British East India Company. The Governor and the council of these towns formulated these judicial systems independently. The courts in Bombay and Madras were called Admiralty courts, whereas the court of Calcutta was called Collector’s court. These courts had the authority to decide both civil and criminal matters. Interestingly, the courts did not derive their authority from the crown, but from the East India Company.
The charter issued by king George I on 24th September 1726 marks an important development in Indian legal history. The charter forms the basis for the establishment of crown’s courts in India. The British East India Company requested king George to issue a Charter by which special power could be granted to the company. Accepting the letters Patent of 1726 and the subsequent charters had in effect applied English law to British India.
The application of common law has been overreaching in the Indian context. It has been enshrined in the Indian legal system over the space of two centuries by the English to the point that one can’t allocate an individual identity to Indian jurisprudence. The basic statutes governing civil and criminal justice was Indian Penal Code, 1860 Indian Evidence act, 1872 the code of criminal procedure, 1973 and the code of civil procedure, 1908.
Another contribution to Indian legal system by common law has been the adversarial system of trial. In this system the accused is presumed to be innocent and the burden of proof is on the prosecution to prove beyond reasonable doubt. The system of precedent derived from the common law too has wide application within the Indian legal system, initially the English judges and barristers presiding and practicing in the Indian courts were followed the decisions of the courts in England, thus slowly the concept of precedent came to be ardently followed within the Indian courts. This law has been carried forward in the present-day legal system as in regard to the judgments of the Supreme court of India the Indian constitution provides that “the law declared by the Supreme court shall be binding on all courts within the territory of India.”2Hence it can be said unequivocally that common law has wide application within the Indian legal fold as many of the features of this legal system have been adopted and further developed from that of the English common law system.
In the Indian context the common law initially was applied for the convenience of the English, so they could govern their territories properly but, as they became the overlords of India the common law became common for Indians. There developed a symbiotic relationship between the Indian customary law and the common law which gave birth to the modern day Indian legal system. So, in this parlance it is to be said that India has an organic law as a consequence of the common law system.
ROLE OF LAW IN SOCIAL TRANSFORMATION IN INDIA
The impact of British colonial rule on Indian society is prominent on the social transformation. British control, Christian missionaries, and English education all contributed significantly to the transformation of Indian society. During the colonial period, Anglo Saxon rules imposed on Indian society. As a result, Smriti, Sruthi, Dharma and other forms of customary laws have eroded. Though acceptance of personal laws was the colonial administration’s policy, it was done out of the respect for India’s culture and tradition, as well as a conflict avoidance mechanism due to the unexpected application of an alien law. However, with the employment of justice, equity, and good conscience as a residuary source of law, British law had a backdoor entry into the Indian legal system.3
Furthermore, many customaries’ practices could not be proven and were not enforced due to the colonial court’s stringent standard of proof. Another element that has been suggested as a reason for the invasion of British law into India is the colonial court’s consultation with pundits and maulvis, as well as the severe implementation of the stare decis. The colonial administration also imposed legal codification in India, both criminal and civil, based on the Anglo-Saxon paradigm. The Indian Penal Code, the criminal procedure code, and the evidence act are all examples of this. An essential aspect to note here is that all of these statutes introduced English legal notions into India.
From the perspective of the sociological school of jurisprudence, social change had undoubtedly occurred during the colonial administration in India, but the situation in which laws were imposed by the colonial administration provides a perception of a situation in which positivist jurisprudence could exist. The British administration could hardly be claimed to have viewed the legislation as an instrument for social engineering in Indian society. Furthermore, there was little mention of the lack of participation of the people in the formulation of laws during colonial times.
i. abolition of slavery and bonded labour system
ii. abolition of Sati system
iii. Widows remarriage
iv. Prohibition of Child Marriage
v. Elimination of Child Labour.
GHOST OF COLONIALISM IN INDIAN LAW
Ten years post-independence, the law commission in its report on the British Statutes Applicable to India considered that India with regard to her new and independent status as a Republic ought to enact her own laws and take necessary legislative actions to make it clear that the statutes in question were no longer applicable to India. Subsequently more than 400 statutes vis versa 1200 archaic regulations were repealed in bulk however, the colonial rule left its legacy in the form of various act and rule are still in rigours continuation till today.
Marital Rape
One of the legal reforms in INDIA that most clearly followed upon the efforts of the British law reformers was the age of consent law governing the age at which adolescents could legally consent to sexual intercourse. 19th centaury age of consent laws in England and India arose in the context of prostitution and child marriage, respectively, which were social issues directly linked to Victorian notions of domesticity and sexual restraint. In 1781, the age of consent bill was introduced in India in order to raise the age of consent from ten to twelve. While the bill was spurred by the publication of a rather heinous case involving the death of a child bride or eleven who was killed by a brutal sexual encounter with her thirty five year old husband, another image of male sexual licence run amok it is undeniable that much of the reforms surrounding consent were based on colonial norms of sexual restraint and family structure.
In Chief Justice Sir Mathew Hate’s book the History of the Pleas of the crown, published in 1736, laid out the theory of implied consent. “The husband cannot be guilty of raping his lawful wife because the wife has thus given herself to her husband with their mutual consent and marriage contract, which she cannot retract, “he claimed. This theory had been adopted by the legal systems of all British colonies, as well as the British common law system. A significant impact of the culmination of all these factors were reflected in the Indian Penal Code where, while defining the offense of rape, a clearly stipulated exception was carved out wherein “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”4
This exception has been part of the IPC since its inception in 1860, having been justified by Lord Macaulay in his original draft of the criminal law in 1839 as an exception necessary to protect the “conjugal rights” of a husband. This, in turn, was based on the concept of ‘coverture’ explained by the abovementioned English judge from the 1600s, Sir Matthew Hale – who said that upon marriage, a woman surrendered her agency to her husband, including when it came to consent for sexual intercourse.
In 2017, the Supreme Court of India in Independent Thought vs. Union of India dated 11th October 2017, Supreme Court of India- Civil Original Jurisdiction, read down the marital rape exception but only to change the age, and held that it should read “the wife not being under eighteen years of age” — and not 15 — ensuring that the Indian Penal Code was in line with the age of consent, which is 18; however while delivering the judgement the Apex Court specified that this exception would not carve out a new offence.5
Even as British law moved in in England Wales in 1991, when Lord Keith communicated on behalf of the Court that modern marriage is a “partnership of equals and the wife is no longer considered the subservient chattel of the husband,” Indian laws remain the same concerning marital rape. Unfortunately, by constantly and vehemently refusing to criminalise marital rape even today, lawmakers in India have implicitly reiterated that it is a wife’s duty to have sex with her husband irrespective of whether or not it is consensual, and that the institution of marriage is implies the signing away of a woman’s right to consent.
Adultery
In 2018, the Supreme court of India struck down section 497 of the Indian Penal code which penalised and provided punishment for adultery in Joseph Shine vs. Union of India. While the move applauded by jurists across the world, a bare reading of the section provides insights of the English influence of the Indian system and how such laws were modified to suit the British rule in India. Th word adultery derieves from the French word avoutre, which has evolved from the Latin verb adulterium which means to corrupt. The concept of a wife corrupting the marital bond with her husband by having a relationship outside, the marriage was termed as adultery. This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the property of her husband and the offence was committed only by the adulterous man. Post the seventeenth century in England, adultery came to be of the only grounds for divorce which could be granted only by parliament.
Around the same period in India, the first draft of the Indian Penal code was published by the law commission in 1837, which did not indict adultery as an offence Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between parties and not a criminal offence. However this view of Macaulay was overruled by the other members of the commission who were of the opinion that existing remedy for adultery under common law would be insufficient for the poor natives, who would have no recourse against the paramount of their wife. The law commission considered that not treating adultery as a criminal offence, it may give sanctions to immorality. And last when the code was enacted adultery was included as a criminal offence.
Things of course drastically changed in 201, when Supreme court of India while passing the judgement struck down the penal provisions of section 497 of the IPC with defined adultery as:
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both. In such a case, the wife shall not be punishable as an abettor”.
The apex court held that provisions created differences on the basis of gender that creates a dent indignity of women. According to the five judge constitutional bench headed by the then Chief Justice of India Hon’ble Justice Deepak Mistra quotes:
“a legislation that perpetuates such stereotypes in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is, therefore, no justification for the continuance of Section 497 of the IPC as framed in 1860, to remain on the statute book.” However it is still a ground for divorce.
Homosexuality
“It was only in 2018 when the Supreme Court of India ruled unanimously in Navtej Singh Johar v. Union of India6 that Section 377 was unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex”. Over the years, the Code underwent several changes; however. a provision which stood out for controversy was Section 377, which penalized unnatural sex or sexual activities against the order of nature. The term “unnatural sex” itself has not been defined in Indian law. Although Section 377 did not explicitly include the word homosexual, it has been used to prosecute homosexual activity. The provision was introduced by authorities in the British Raj in 1862 as Section 377 of the Indian Penal Code and functioned as the legal impetus behind the criminalization of what was referred to as, “unnatural offenses” throughout the various colonies, in several cases with the same section number”.
Tracing its history, the act of sodomy was sometimes prosecuted in England under British common law, it was first codified in the British empire as section 377 in the IPC as carnal intercourse against the order of nature in 1860. Section 377 was then exported to other colonies and even to England itself providing the legal model for the act of buggery in the Offences Against the Person Act, 1861.
Sedition
“The legacy of colonial rule in India includes any abusive laws to suppress any opposition to the governing authorities, chief among those was the sedition laws used by the imperialists to imprison nationalists and dissenting voices. Drafted by British historian-politician Thomas Babington Macaulay in 1837, sedition was defined as an act by” “whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India.”
The sedition charge, which was included in Section 124 A of the Indian Penal Code in 1870, was imposed by the British colonial government to primarily suppress the writings and speeches of prominent Indian freedom fighters. Writings of leaders like Mahatma Gandhi, Lokmanya Tilak, and Jogendra Chandra Bose were suppressed and they were tried under sedition law for their comments on the British rule.
It was only until recently in 2022, that the Apex Court of India put a hold on the use of the sedition law provisions directing that no new cases were to be registered or investigation be carried under this colonial-era provision till such time the provision was re-examined and reconsidered by the government- the first time in 162 years that the operation of the sedition law was suspended. Quite interestingly, Britain abolished her sedition laws in 2009 whilst observing that sedition along with seditious and defamatory libel were arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today.
“On a similar footing, the Supreme Court of India in S.G Vombatkere observed that the provisions of Section 124A was not in tune with the current social milieu and that the seditions laws were in fact intended for a time when the country was under the colonial regime while emphasizing the requirements of balancing the sovereignty of the nation along with civil liberties of the people7”.
Death Penalty
The practice of death penalty as a form of state punishment in India can be traced to the British to the British era rule in the country. Capital punishment was first incorporated into India’s legal system during British colonial rule when in 1860, the governor general of India Council instituted the Indian Penal Code. In India, unfortunately there still exists an obvious tilt towards this pre-colonial method of punishment. The IPC’s approach to capital punishment has remained unchanged since and still recognizes the death penalty for various crimes including criminal conspiracies, waging war against the government and murder.
“The main resistance to India joining the global consensus on the death penalty comes from the belief that common people can be made to obey the law only through fear instilled by harsh punishment. The view that exemplary capital punishment will deter capital crimes is a matter of faith—there is no empirical evidence to support this view. The British and their collaborators had made a similar mistake. They thought that the common people of India would be deterred and cowed down by the violence of the state. There are statistical reports available in the National Archives showing that the British were hanging on average three people daily in the 1920s in a desperate bid to frighten Indians into obeying British rule. 8Another key driver of capital punishment is retribution. The role of vengeance in punishment is ambiguous in India. There are authorities in favor of and against accepting retribution as a legitimate goal of sentencing in India. Even if it is not formally acknowledged, there is still doubt that vengeance does play an unofficial role in the approach of judges, victims and the general public in many cases.
India’s police and judicial institutions were invented by the British and carried through unreconstructed into our Constitution. Both wings of the government by and large believe in the same strong punitive approach to law enforcement that prevailed in colonial times. Their fundamental culture and relationship with people remain resistant to ideas of freedom and quality that have animated the global change. It is quite unfortunate that Indian establishment remains impervious to the radical change in attitude to capital punishment worldwide.
In conclusion it can be said that common law traces back its origins to England and is primarily a method of administering justice, which has incorporated different aspects of the legal pedagogy and practice with the help of deliberations of laymen and the learned over the course of time.
“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence,”
LEGAL TRANSFORMATION IN AFRICAN COUNTRIES AFTER COLONIAL RULE
The role of the common law in South Africa has been controversial. Some argue that during the apartheid era the common law could have protected rights and freedoms, but that it was overruled by security legislations passed by the Parliament. Opponents of this view argue that South Africa’s common law, with its roots in Roman-Dutch and English law, is a problematic colonial inheritance that has done little to protect justice and equality. Some have even proposed that the common law should be codified and South Africanized and that African customary law, previously derided or ignored, should be taken into account. 9
South Africa has a hybrid common law base made up mainly of Roman-Dutch and English law. The question as to whether the South African common law is Roman-Dutch or English has been the subject of much debate. Much of the South Africa’s private law comes from Roman-Dutch law, whereas English law has had a dramatic impact on public, procedural and commercial law. Initially the English did not make any changes to the Roman Dutch law that existed at the Cape of Good Hope. This policy changed in the 1820s as more British settlers arrived in the colony. However, several areas of the law remained largely Roman-Dutch. For example, the law of persons has not received a great deal from English law. One change that English law did bring about was the 1833 English decree that from the end of 1834 slavery would no longer be legal at the Cape.
Although the law of property remained largely Roman Dutch, the law of succession and contract was heavily influenced by English law. Similarly, the definitions of various crimes and aspects of delict (tort law) which contain concepts such as the ‘reasonable man’ and the ‘duty of care’ were taken from English law.
Common Law during the Apartheid Era
The common law legal system in South Africa during the apartheid era was significantly undermined by parliamentary supremacy and apartheid legislations, which repressed individual rights enabled severe racial discrimination. Although South African common law rooted from the common law principles of Britain these principles were largely overridden by statutory laws supporting apartheid. Many in the legal profession maintained during the apartheid years that South Africa’s Roman-Dutch law was grounded in principles of fairness and equality, and that when apartheid legislations was repealed, these principles would once again be the guiding spirit of law.10 The apartheid government passed laws that overrode the common law, rather than rewriting the common law itself. It can, however, be argued that the weakness of the common law with respect to equality was one of the factors that enabled the apartheid government to pass repressive legislations.
It is true that the South African laws transformed from both Roman-Dutch and English law a strong sense of justice. Both systems incorporate equality before the law and the advancement of personal freedom by the means of the perpetuation of fundamental freedoms and rights. In addition, English law incorporates natural justice and impartiality.
In Mpanza v. Minister of Native Affairs11, the court declared that the right of personal liberty “is always guarded by court of law as one of the most cherished possessions of our society.” This right, like all other common law rights, is residual, which means that it exists only insofar as it has not been denied by an Act of Parliament. Also, where such a statute or Act is ambiguous, a court may interpret it in favor of individual liberty. Thus, it can be said that the South African common law recognizes that all people have a right to any and all freedoms not statutorily denied, and as such, the judiciary must interpret any statute encroaching on personal liberty “in favorem libertatis.”
In Principal Immigration Officer vs. Narayansamy12, the court declared that all persons within the Union enjoyed the inherent right to bring an action of habeus corpus pursuant to British and Roman-Dutch law.
In Wood vs. Ondangwa Tribal Authority13, held that habeus corpus proceedings could be brought by any person on behalf of an imprisoned person. Furthermore, the court asserted that habeus corpus laws should always be constructed in favour of the liberty of the citizen.
Despite these decisions, this aspect of South African common law was pre-empted by statute. During the apartheid era, Parliament passed a serios of laws that denied individuals the remedy of habeus corpus proceedings as a means to check arbitrary deprivation of personal liberty. Some of these laws were emergency measures, while other became ordinary law, despite their origins as emergency-type legislation. During this period, the courts, were in the main not allies of the common law principles of natural justice. In fact, they often interpreted security laws in favour of the government and used ambiguous statutory language to infer restrictions on personal liberty.
The most infamous case of this period was Rossouw vs. Sachs14, in this case, the court was faced with the question of whether a detained lawyer was entitled to reading and writing materials in prison. The court departed from the traditional modes of common law interpretation and upheld legislation forbidding the lawyer these materials. In Goldberg vs. Minister of Prisons15, the Appellate division upheld board discretion for the commissioner of prisons to determine convicted political prisoners access to reading matter. The decision was particularly noteworthy because it demonstrated the court’s unwillingness to interfere with the administrative body’s discretion. Here the acting chief justice Wessels cited the reasoning of the appellate division in Rossouw vs. Sachs, in which the court had held that detainees were entitled only to necessities and not to comforts such as writing enforceable legal right to receive news, he reached the conclusion that the commissioner’s decision could not be questioned by a court of law. Judge Corbett, later Chief Justice, dissented, arguing that a convicted and sentenced prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away from him by law. The judge had no difficulty distinguishing Rossouw vs. Sachs on the grounds that it concerned non-convicted detainees.
Another natural law principle, the Audi alteram partem rule, mandates that before a person is deprived of his or her liberty, that person has a right to be heard by an administrative body. In Regina vs. Ngwevela the Audi alteram partem rule was contested. In this case, the court held that the fact that other sections of the act includes the right to be heard should not mean that it was implicitly excluded where other section were silent. However , the government quickly remedied by this amending the act so that there was a right to ask for reasons for the banning order only after it had been issued. The Audi alteram partem rule was thus excluded.
In 1986, in Momoniat & Naidoo v. Minister of Law & Order16, the court held that the right to be heard was something that Parliament could not have contemplated ousting. The court nevertheless rejected the proposition that detainees should be granted a hearing before being detained. Critics have argued that this was an inconsistent judgment because the audi alteram partem rule represents a fundamental right that the court should have excluded only if Parliament had shown a clear intention to do so.’ The role of legislature and the courts during the apartheid years need to be examined to determine whether the supposed libertarian strands were upheld or whether it was the common law that permitted the apartheid system to trample on the rights of the majority.
The state, realizing that the courts were not always going to follow its dictates, thus saw a need for greater statutory intervention in the area of security laws. As a result the Internal Security Act, was enacted following the Rabie Commission of Inquiry. This legislation consolidated most security laws into a single act. The consequence was to conserve the enormous powers of the executive at the expense of many of the common law individual right and liberties.
In Omar v. Minister of Law & Order, Fani v. Minister of Law & Order, and State President v. Cameron a number of decisions came on appeal to the Appellate Division for resolution. This judgment represented a major setback for the human rights cause. This was the first opportunity that the Appellate Division had to react to the new security regulations and their infringement of fundamental common law rights. The Appellate Division responded abysmally. All the victories in the courts of the provincial divisions were nullified by this one nonchalant decision. The court, without regard to statutory presumptions or rules of interpretation, accepted the argument that fundamental common law rights were excluded in the absence of an indication by the statute that they be retained. A minority decision stressed that the audi alteram partem is presumed to be present unless there is an unmistakable intention to eliminate it.17
So in the majority of cases during the apartheid era, Parliament rode roughshod over the common law rights to individual liberty. The courts generally served as a rubber stamp for the legislature as they upheld and sanctioned government encroachment on personal freedom. Therefore while it is obvious that the common law had strands that were compatible with human rights, the statutory laws of apartheid in South Africa overwhelmed the common law. Consequently, the residual common law rights were of minimal effect. The impact of the common law system during apartheid was marked by a diminished capacity to protect human rights, as apartheid statutes took precedence over underlying legal principles of equality and justice, allowing systematic racial oppression to flourish largely uncontested in the courts.
The Common Law in the Constitutional Era
South Africa, in its democratic era, has had two constitutions, an interim and a final constitution. The interim justiciable constitution entered into force on April 27, 1994 while the final constitution became law in February of 1997.the interim constitution contained a chapter on fundamental rights. As a result of compromise, the chapter contained only those fundamental rights that negotiators could agree warranted protection during the transitional period before a final constitution was adopted. Constitutional supremacy rather than parliamentary supremacy was established by section 4: This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. Constitutional courts was the final forum for all matters relating to the constitution and all other laws. Parliament did not have free reign to make laws as was previously the case.
Section 33(2) stated that no law, whether a rule of the common law, customary law or legislation, shall limit any right entrenched in this chapter. Thus all law, including legislations and the common law, was covered by this provision. these constitutional changes shifted legal authority from parliamentary supremacy to constitutional supremacy, positioning the Constitution as well as the Bill of Rights at the core of the South African legal system.
In Carmichele v Minister of Safety and Security case reinforced the South African Constitutional Court’s duty to develop the common law in line with the Bill of Rights, establishing that legal frameworks must advance constitutional values. This precedent expanded state accountability, affirming that the government can be held liable not just through vicarious liability, but also directly for its own negligent failure to act where there was a legal duty to do so, a principle applicable in both public and private law contexts.18
In Gardener v. Whitaker,19 the Constitutional Court held that while the Bill of Rights was aimed at vertical application, it was not exclusively so. The court also held that the constitution should not be limited to the sphere of public law because the foundation of society is to be found in the Bill of Rights, which would be undermined if ignored in private law relationships. The court further held that the highest norms of the constitution should penetrate every aspect of private law relationships and therefore the horizontal/vertical application should lose its traditional significance. The court reiterated that the constitution is concerned with transforming South African society by way of providing a legal system that is concerned with openness, accountability, human rights, democracy and reconstruction and reconciliation and therefore, in some cases, this Bill of Rights must operate in the private law sphere. The court furthermore pointed out that it was not possible to provide an answer to the question of the extent to which horizontal application applies because the question can only be answered with the concrete situation of each individual case. The court also stated that indirect application of the Bill of Rights should be performed by the other courts so that “a court which has regard to the dictates of section 35(3) does not merely develop common law in abstracto it must apply the laws found to the case before it. The court maintained, however, that it retained an oversight role. 20
After the adoption of South Africa’s final constitution in 1997, a common law underwent profound transformation to align it with constitutional values, especially dignity, equality and freedom. The supremacy of the constitution meant that any common law rule inconsistent with constitutional rights had to be changed or set aside.
One of the Court’s most enduring task in support of substantive justice is its constant reiteration of the transformative nature of the Constitution. The court’s frequent reminders of the fundamentally transformative nature of the South African Constitution and the incomplete nature of that transformation serve substantive justice in an indirect but important way. To the extent that the court’s discussion of social welfare rights or of the deeper dimensions of equality and dignity encourages popular or legislative dialogue about constitutional commitments it further advances the cause of justice reflected in those enumerated rights. All these aspects were direct result of the common law intervention in the South African Constitution.
As Justice Mohamed noted in Du Plessis vs. de Klerk “The common law is not to be trapped within the limitations of its past. It needs not to be interpreted in conditions of social and constitutional ossification. It needs to be revisited and revitalized with the spirit of the constitutional values defined in Chapter 3 of the Constitution and with full regard to the purport and objects of that Chapter”
The extent to which the constitution and bill of rights will transform the common law has yet to be determined. Generally speaking most South African private law is common law as there has not been a great deal of statutory intervention in these areas of laws. The Supreme Court of Appeal’s finding in the 1998 case of S. v. Jackson is also relevant to a discussion of the role of the constitution in the reform of the common law. It is a critical case relating to gender equality and the common law. The case dealt with an appeal from a conviction of rape. A key question before the court was the applicability of the cautionary rule in sexual assault cases. The holding of the court, according to Judge Olivier writing for the majority, was that the rule “in sexual assault cases is based on irrational and out dated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable.” The court held that the rule should not be applied in sexual cases only but that “the evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a general cautionary rule. This holding by the Supreme Court of Appeal overturned a rule of the common law that was imposed regularly by courts. While the court held the rule no longer applicable, it did not specifically mention the common law or even that the rule had been regularly applied for years. Surprisingly, no mention was even made of the constitution or its effect on the judgement. In addition, no reference was made to gender equality.21
The implication of the Constitution’s having little or no real effect on the common law is enormous. This is because most of the relations between individuals remain within the realm of private law. The courts has also shown that it is unwilling to strike down legislations enacted by South Africa’s post-apartheid parliament.
CONCLUSION
In conclusion, the legacy of the common law legal system stands as an indelible and complex cornerstone of post-colonial legal transformation in India and across the commonwealth. The transplantation of institutions, principles and procedures such as the adversarial system, the concept of stare decisis, and fundamental rights jurisprudence provided a crucial structural scaffold upon which newly independent nations could built their legal frameworks. This inheritance ensured a degree of institutional continuity and facilitated global commercial and legal integration.
However, the transformative journey has been far from simple adaptation. In India, the common law system has undergone significant changes. Post-colonial legal evolution has seen a continuous process of modifying inherited laws to align with national constitutional mandates, indigenous socio-cultural realities, and aspirations for social justice. This includes the development of constitutional review, the incorporation of fundamental rights and attempt to reconcile colonial-era statutes with personal and customary laws.
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Footnotes
1. Matha Goyale, ‘The coloniality and evolution of African customary law’ (2025)
2. THE CONSTITUTION OF INDIA ARTICLE 141
3. Galanter Marc. (1989) Law and Society in Modern India Oxford: University Press, India
4. Section 375, Exception 2-Indian Penal Code 1860
5. Writ Petition No. 382 of 2013
6. 2018 INSC 790
7. Writ Petition (Civil) No 682 of 2021
8. A Global History of Execution and the Criminal Corpse, Chapter- Execution and its Aftermath in the Nineteenth Century British Empire, Palgrave Macmillan.
9. N. J. MacNally, ‘Law in a Changing Society: A View from North of the Limpopo’, 105 S. AFR. L.J. 434,436 (1988).
10. J. Trengrove, ‘Perspectives On The Role Of Judges In A Deeply Divided Society, In Democracy And The Judiciary’ 125-26 (1989)
11. 1946 W.L.D. 225,229.
12. 1916 T.P.D. 274.
13. 1975 (2) SA 294 (A).
14. 1964 (2) SA 551 (A).
15. 1979 (1) SA 14 (A)
16. 1986 (2) SALR 264 W.L.D (Goldstone, J.)
17. 1987 (3) SA at 906.
18. 2002 (1) SACR 79 (CC) (16 August 2001)
19. 1996 (4) SA 337 (CC); 1996 (6) BCLR 775 (CC)
20. 1996 (4) SA 337 (CC); 1996 (6) BCLR 775 (CC)
21. 1998 (1) SACR 470 (A).