Cape Colonial law is the legal system of the Cape Colony, comprising its legal tradition through custom and convention (British common law and Roman-Dutch civil law), its legislation as passed by the Cape Parliament, and court cases decided by the Cape Colonial Court. The Cape has no written constitution, although it did have one between 1853 and 1910, when it was repealed by the British Parliament in the Cape Act. This constitution, albeit void of legal force, still has influence in the nation's legal tradition, and has been absorbed into effective law through court decisions. A prominent part of the Cape legal tradition is known as the "Cape Liberal Tradition", which describes the country's progressive history with regard to race and gender affairs, as compared to its other colonial neighbors and modern African states.

Legal tradition

  • First constitution
  • Cape Liberal Tradition
  • British common law
  • Roman-Dutch civil law


Legislation, known individually as an Act of Parliament, is passed by the Cape Parliament and signed into law by the Governor General on behalf of the Queen. Theoretically, due to the Cape having no codified constitution, Acts can regulate any matter which Parliament deems appropriate. The courts have however struck down "unconstitutional" legislation which it deemed conflicted with the rule of law and the Cape Liberal Tradition. A recent example of this is when in 2011 the Chief Justice's Bench of the Cape Colonial Court declared the Business Incentives Act unconstitutional on the grounds that it empowered the Minister of Trade and Commerce to differentiate between citizens based on arbitrary grounds - thus violating the rule of law.

  • Abolition of the Slave Trade Act 1807 (UK)
  • Slavery Abolition Act 1833 (UK)
  • Cape of Good Hope Constitution Ordinance 1852
  • Freedom of Speech in Parliament Act 1854
  • Creation of Divisional Councils Act 1855
  • Resident Magistrates Act 1856
  • Management of Public Roads Act 1858
  • Educational Boards Act 1858
  • Administration of Justice Act 1864
  • British Kaffraria Incorporation Act 1865
  • Basutoland Annexation Act 1871
  • Constitution (Responsible Government) Amendment Act 1872
  • Constitution Amendment Act 1874
  • Better Administration of Justice in Criminal Cases Act 1876
  • Transkeian Territories Annexation Act 1877
  • Administration of Justice (Higher Courts) Amendment Act 1879
  • Griqualand West Annexation Act 1879
  • Constitution (Equal Language Rights in Parliament) Amendment Act 1882
  • Marriage Licenses Act 1882
  • Municipalities Act 1882
  • Kimberley Increased Representation Act 1882
  • Walfish Bay Annexation Act 1884
  • Dutch Language Judicial Use Act 1884
  • Tembuland Annexation Act 1885
  • Jurors' Law Amendment Act 1885
  • Appeal Court and Sheriff's Duties Act 1886
  • Xesibe Country Annexation Act 1886
  • Parliamentary Registration Act 1887
  • Transkeian Territories Representation Act 1887
  • Rode Valley Annexation Act 1887
  • Auditing of Public Accounts Act 1888
  • Dutch Language Judicial Use Amendment Act 1888
  • High Commissioner's Salary Act 1889
  • Jury Act 1891
  • Franchise and Ballot Act 1892
  • Minister of Agriculture Act 1893
  • Glen Grey Act 1894
  • Pondoland Annexation Act 1894
  • British Bechuanaland Annexation Act 1895
  • School Boards Act 1905
  • Cape Act 1910 (UK)
    • Structure of government
  • National Guard Act 1911
  • Judiciary Act 1911
  • Subordinate Government Act 1911
  • Collection of Revenue Act 1911
  • Executive Government Act 1912
  • Currency Act 1913
  • Foreign Policy Act 1916
  • Human Rights Act 1936
    • Cleavage of Rights
  • Bar Council and Advocates Act 1956
  • Foreign Policy Law (Amendment) Act 1956
    • Ratings system
  • Military Law (Amendment) Act 1971
  • Colonial Secrets Act 1973
  • Espionage Act 1973

Court system

The Cape Colonial Court comprises the judiciary of the Cape Colony. It was created by the Judiciary Act of 1911, and replaced the Supreme Court of the Cape Colony. It consists of three tiers: municipal, district, and national. The Cape Colony adheres to the common law doctrine of stare decisis, which means that higher courts' decisions are binding on lower courts. The Department of the Attorney General's Agency for Judicial Cooperation and Development is responsible for the administrative functioning and general services of the judiciary, and is led by the Master of the Cape Colonial Court.

The national tier is the highest level of appeal and precedent, and consists exclusively of a single Chief Justice's Bench. The Chief Justice's Bench is made up of the Chief Justice and four Associate Justices, and is located in Cape Town. The district tier consists of the intermediary appellate courts, namely the District Judge's Bench (one in each district). The District Judge of each district sits together with two Associate Judges. At the lowest level, the municipal tier, is the Municipal Judge's Bench, which is located in each urban and rural municipality. The Municipal Judge sits alone.

In the seminal judgment of Jolns v. Eck (1911), then-Chief Justice De Villiers held that "although there exists no codified constitutional document in the Cape - other than the purely technical Cape Act of 1910 - the constitutional law of the Colony is made up of accepted custom, conventions and historic legislation which has been absorbed into our legal tradition. This does not mean, however, that Parliament is not supreme. To this there can be no doubt. The Courts cannot simply declare an Act of Parliament void, for this would be a gross violation of the separation of powers and strike at the heart of our constitutional order. The Courts may only declare such Acts void if they clearly and irreconcilably conflict with our legal tradition and thus our constitutional law." This case effectively created the testing right of the judiciary, however, since then, it has only been used four times.

De Villiers was the last Chief Justice of the Supreme Court of the Cape Colony and the first Chief Justice of the Cape Colonial Court, until 1914. The current Chief Justice is Sir Paul Temple.

See also

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