Irma J. Kroeze (January 2005)

You are currently president of the Southern African Society of Legal Historians, which was founded to promote the study of South Africa's legal system and its "diverse heritage." What are the Society's primary activities?

The Society seeks to promote research in the field of legal history in general. To this end we encourage research in this field and publish an accredited journal dedicated to legal historical research, called Fundamina. But, as one of our members used to say, history ended yesterday! Consequently, our research sometimes addresses fairly recent occurrences and issues. It should be added that, when we speak of legal history we do not refer to Roman-Dutch or English law only. The history of both indigenous law and religious legal systems is also studied. The result is that this is not a Society dedicated to Romanist studies, but one dedicated to the study of many veins of histories and traditions.

Although South Africa's legal history obviously presents an extraordinary number of interesting topics, is the Society also concerned with the legal history of neighboring countries?

Of course the Society is concerned with legal history in neighbouring countries. We take trouble to both attend conferences in neighbouring states (and, of course, further afield) and invite contributions to the journal. In Fundamina you will find contributions from, for example, Cameroon and Botswana. We do, however, have a real concern that legal historical research does not receive the attention and support it should in these countries.

What steps can countries such as Cameroon and Botswana do to support legal historical research? Also, is anything of legal-historical signficance being lost now in these countries as a result of neglect, for example documents?

To be disappointingly brief, I have no specific knowledge about the situation in these countries and my responses are based on my perception of the situation there.

The Society appears to use multiple languages, at least on its website's front page and in its journal, Fundamina. Is there much legal history research and writing being performed these days in Afrikaans, Zulu, Xhosa or other non-English languages in South Africa?

This is not an easy question to answer. Quite a lot of research on legal history is still written and published in Afrikaans and we do receive some contributions in Afrikaans and Dutch, but not in other languages. This might have to do with many factors, including apartheid and colonialism, but mainly has to do with accessibility. Currently most of our articles are published in English, mainly because we wish legal historical research to be as widely read as possible. Precious little is published in legal history anyway – we should not allow language to be a further stumbling block.

What is the current state of research into South Africa's indigenous African laws and legal systems? Is the Society active in this field?

This is an interesting an exciting field of research at the moment. Various court cases and developments have put this field in the centre of interest. In fact, the Society has two main fields of research: one dealing with Roman-Dutch and English law and one focusing on indigenous law. A great many interesting and innovative articles dealing with indigenous legal history have been published by members of this Society. Recently, this interest has been fueled by the Constitutional Court's use of the indigenous value of "ubuntu" in the Makwanyane (death penalty) case. A number of articles dealing with this aspect have been written by members of the Society in various journals.

Can you briefly explain "ubuntu" and why its consideration by the Constitutional Court is so remarkable?

Ubuntu is regarded as the core value of the indigenous culture. It was mentioned in the so-called "post-amble" of the interim constitution as a value that should guide the reconciliation process. In this sense it was used in the death penalty case to illustrate how the new system should be about humaneness and reconciliation, and not about revenge or opposition. Unfortunately, due to a number of factors, this was not developed further.

What are the techniques used to research indigenous African legal history? Are there many written records available? Also, how do researchers from outside these groups avoid casting indigenous law into a European format?

It should be fairly obvious that this is the real difficulty. Most traditional sources are based on the research of 17th – 19th century (Western) anthropologists or on case law from this period. As a result they are almost without exception "contaminated" by western ideas and preconceptions. Fortunately, we have access to many people who have experience of and expertise in both Roman-Dutch and indigenous law. (An example of this is the book by DD Ndima, The Law of Commoners and Kings: Narratives of a Rural Transkei Magistrate.) But, in a more general vein, isn't this a problem that confronts most researchers? How, for example, would an American researcher ignore his preconceptions when studying a European system or vice versa? Or how would a common law researcher shed his preconceptions when dealing with a civil law system? It might simply be that we need to re-examine our ideas regarding objectivity and neutrality and ask whether the question itself does not show a modernist preoccupation with these ideas.

You work in both English and Afrikaans. Do you find there to be a difference in the way each linguistic community views or approaches South African legal history?

The short answer is no. We encourage critical thinking and approaches to legal history and find this in all sections of our membership. Differences have more to do with personal preference and opportunities.

To what extent was Afrikaner law impacted by legal reform and codification movements in Europe between the 17th and 19th centuries? Can you also briefly describe the nature and structure of the Afrikaners' early legal systems?

This is a really strange question as there is no such thing as "Afrikaner law"! There is a South African law and the basis of this legal system is Roman-Dutch law as it was at the time of reception, i.e. 1652. From there on the legal system developed as an African system that was shaped by local conditions and problems. Any reference to a European or English source after this period would not be regarded as a source of South African law. Consequently, the codification movements in Europe could not influence South African law.

If you mean by "Afrikaner law" the law in the old Boer Republics, the answer is basically the same. At the time of the formation of these republics, the governments used whatever they could to set up a legal system. In the Transvaal, for instance, Van der Linden's Koopmans Handboek was regarded as "het Wetboek van dezen Staat" (i.e. the law of this state). References were furthermore made to Grotius, Wassenaar, Carpzovius, etc. Basically Roman-Dutch law formed the basis for all law in these old Boer Republics. The relative isolation of these republics also made influence from the codification movements in Europe unlikely.

Relations between the British and Afrikaners were seriously affected by Britain's abolition of slavery in the nineteenth century, and the legal effects of this mutual antagonism have reverberated down the decades. Does South Africa's post-apartheid legal development, and particularly its extraordinary expansion of human rights jurisprudence, mark a break with South Africa's contentious legal history?

This is another strange question! I have never heard of the idea that the abolition of slavery caused a rift in relations between the British and Afrikaners. You have to remember that most Afrikaners were relatively poor and very few owned slaves. (In fact, there were very few slaves in South Africa at all.) The real rift between the English and Afrikaners was caused by the annexation of the Free State, Transvaal and Natal by the British after gold and diamonds were discovered. In particular, the actions by the British in the concentration camps and their "scorched earth" policy destroyed any hope of normal relations.

Of course the 1996 constitution is a decisive break with the past and marks a real turning point. However, as Ronald Dworkin has pointed out, the principles of equality and dignity can also be found in Roman-Dutch legal principles. In fact many decisions of courts in the apartheid era relied on these principles to "soften" the effect of draconian legislation. But it is instructive to remember the contribution of the Dutch and the English in the historical foundation of apartheid! Many of the original pieces of land legislation (like the Land Act of 1913) were promulgated long before the National Party came to power in 1948. Not that this is an apology for apartheid – like all good historical research it merely provides the context!

Do you feel that the great attention paid to the apartheid and post-apartheid eras has caused other aspects of South African legal history to be overlooked? If so, which aspects most deserve attention?

I doubt it. Most researchers in the field of legal history are interested in a wide variety of historical issues. A brief perusal of our journal can confirm this.

The Society's website mentions "the religious tradition" as a topic for its 2003 conference on "Freedom, Justice and Equality: Three Pillars of Legal History." What role has religion played in South African legal history?

When one speaks of religion in the context of legal history, one is really only speaking of one religion – Protestantism and, specifically, Calvinism. Some research on this aspect is being undertaken, but the influence of missionary stations in the early history of South Africa was quite extensive. In the old Boer Republics and later in the apartheid state, the Christian faith was virtually elevated to the status of state religion. The result was the denial of other faiths and discrimination against members of other faiths. It is an aspect that is only now being thoroughly investigated.

On a more personal note, what drew you originally to legal history?

I have always been fascinated by history. More importantly, the connection between legal history and legal philosophy (which is my primary field) has always been important. One simply cannot understand one without the other.

What do you believe is the single greatest challenge today facing those who wish to research and publicize South Africa's legal history?

The single greatest challenge is political correctness and the tendency to re-write history to serve a specific political purpose. To my mind history should be told "warts and all" and any attempt to whitewash should be met with suspicion.

Are you currently working on any legal history projects?

Yes, I am working on a paper for the conference of the Southern African Law Teachers Association on the link between the changing of street and town names and the call for the abolition of the Roman-Dutch law.

Prof. Kroeze was interviewed by Peter C. Hansen.

© Peter C. Hansen, The Legal History Project.