Tatenda Madamombe(Mhofu)

This is a summarised version for Roman Dutch Law. This

pdf was written to benefit my colleagues who are new at law
school. It was written for Midlands State University students
but everyone is permissible to use the paperback for Roman
Dutch module provided they have access to it. Citations and
references are found at the bottom of the manuscript, l
wholesomely acknowledge the effort and philosophies from
other authors. I was pushed by special desires and also
encouragements from my fellow colleagues to write this
short version for level 1:1 MSU students Roman Dutch law.
The part played by Gabriel Maromo, Takudzwa Tsikwa,
Design Chikwape, Elijah Samubvu, Flemming S. Mutandi
and Charles Mhondoro, my fellow classmates and friends to
the completion of this pdf must be well accredited. They
provided me with some info. This pdf may help you in your
studies.

tatendahmadamombe98@gmail.com

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 Introduction
The term Roman Dutch was derived from the blending of 2 legal
systems from 2 diverse nations namely, Rome (Roman) and Holland
(Dutch). The society of Rome got a systematized legal system so
called Corpus Juris Civilis. This was succeeded during the Dominate
era through the innovation by emperor Justinian. This became the
official codification of Roman law which was refered to as lex Romana
in Latin. It consisted of four components namely the Digest, Codex,
Novallae and Institutes. During the application of this codified lex
Romana, the Roman were in control of Holland. Roman officials
however allowed their conquered territories to apply their laws.
There were very few states which applied other law besides
customary law except for Rome during these time. Accordingly, the
Dutch applied their customs in collaboration with the codified
Roman Law Corpus Juris Civilis. It is key to note that customary law
or customs of the Dutch sometiomes provide no answer, the so called
grey areas of the law, Roman law was invoked to provide answer.
This together with other factors led to the combination of Roman
law and medieval Dutch customs. Historians and writers came to a
general consensus that the fusion occurred between the 13th and 16th
centuries. This was after the demise of the Roman Empire, Holland
had attained its independence but the Roman legal system had
already influenced that of the day. This was inevitable given the fact
that Holland existed for more than 100 years under the sway of
Rome.

History of the law of Rome and its Development.

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The laws of Rome before the codification of them can be traced back
to the primeval stages of the state itself. The law developed together
with socio-economic and political progresses. This means that as the
economy was growing, the law was developing also. This was the
same in the case of political and social developments. Hence,
development of Roman law was facilitated by social, economic and
political factors. Religious factors were also at play.

Before the advent of the state, people who ultimately formed Rome
lived in a society without law….state of nature. There was no law
which was applicable to govern societal relations. People used their
personal reasoning when they were wronged. Absence of law made
people to live with fear always since it is a fundamental role of the
law to protect life and property of the people. Lack of it would mean
absence of freedom. However, this kind of a situation can be best
termed a free society since people would simply do what they deem
necessary with no legal consequences to result. This together with
some other reasons which could not be mentioned resulted in
Romulus forming a state. The very existence of a state is ensured and
secured by the prevailance of law in that particular state hence there
was great need for the formulation of law. This marked the first
development of law from a state of nature though it was still in its
primitive stages. It is not justifiable to say that the law developed
from the time when Rome was a village up to when it became a state,
since law was still archaic. It was still a state of nature because the
king who enforced law and responsible for its intepretation was the
only one with the knowledge of it. He was the only person who knew
what the law says so he would interpret it the way he wishes. This
was the kind of position during the Monarchy. Some books are of the
view that the pontiffes maximus(pontiffs) also had some entitlement in
the interpretation of the law. What is very surprising is that the
pontiffs and the king interpreted law which was written nowhere,

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they used their conscience thus the law which was applicable became
known as the Ius Naturalis( ius naturale). This law was also known as
Ius Quiritium since the Romans were being referred to as Quirites
during that time.

This law embraced 2 bodies namely the human law(ius) and the
divine law(fas), there was no a clear peculiarity between the human
law and the divine law. Authors described this law as archaic law
(law during its primitive stages). The social and economic set-up of
the day was also in its primary stages, the economy relied on
agriculture and the population was small therefore there was no need
for a wide legal system. Problems started to appear when Rome was
engaged in external trade… the so called long distance trade and
various military conquests. This led to a huge inflow of aliens from
surrounding states and those capture during war. There was now
need for Rome to formulate a body of law to govern the conduct
between the foreigners themeselves and the conduct between
foreigners and the indigenous people. These events were realistic
during the Republican era of Rome. This was after the Romans had
done away with the despotic rule of the first political phase of the
state.

Given the above position, the law became developed into a classical
stage thus writers refered to the Republican law as classical law
(developed law). It is vital to note that the law during the early years
of the Republic was still archaic but due several developments which
occurred, the law developed into a classical stage during mid
Republic going forward. Notable factors which led to the shift from
the Ius Quiritium which was applicable during the Monarchy involves
social, political and economic changes. The population had rapidly
increased during the days of the Republic, Rome was involved in
many wars and was fortunately prosperous in many of those. The
Roman culture was that any defeated territory is adopted into the
Roman territory and the territory became Rome’s sphere of

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influence. Incessant successful wars led to the rise of the Roman
Empire. This inturn resulted in the rise in need of a better legal
system other than the Ius Quiritium which was applicable during the
Monarchy. The Romans during the Republican times also changed
from being Quirites to Cives Romani. This shift was of great
importance in the development of the law in the sense that the law
which governs the Roman people became different to that which
governs the Romans during the times when they were refered to as
Quirites. Cives Romani means purely Roman people (only Roman
citizens) and this was different from the meaning of Quirites which
comprise of various groups provided they were residing in Roman
territory. Some people surrounding Rome were also labled Quirites
though they were not Roman citizens. Therefore, the change from
the name of the people was important in the evolvement of the law
itself. This was a beter and modified law which differentiated human
law from divine law. The appearance of the name Roman people
symbolized that there were some people who were not recognised by
the law….. they were not bound by the law which binds the Roman
people by virtue of them not being Roman people!!. They got their
distinctive name called “aliens or foreigners” hence they were
governed by their own distinct law called the Ius Gentium. This was
different from the law which regulated societal conduct amongst the
Romans, the so called Ius Civile. A combination of these 2 body of
laws formed what the authors termed classical law. Several legal
developments occurred during the Republic.

The era was filled with the longstanding struggle of orders between
the Plebeians and Patricians. The Plebeians were a poor order, they
were pushing for equal opportunities. This inturn led to the
development of the law so that it meets the needs and demands of the
Plebeian group. The most important legal development facilitated by
the struggle of orders was the Twelve Tables which was written in a
bid to achieve impartiality before the law. This led to a double effect
in the evolvement of the law. The law developed through

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interpretation of tables by the Praetors. However equality was never
achieved since deficiencies continued to exist throughout the
Republican era. Distinction between the Plebeian ended by the
passing of a law during mid Republic. This does not mean that it
marked the end in the development of law. The law continued to
develop throughout all the political phases. It is important to note
that several developments took place during the Republic.

It was during the Republic when the political order of the day geared
the development of the law. The 2 magisterial offices of the consuls
replaced the position of a king under the Monarchy. There was the
formation of other magisterial offices which were given the power to
pass laws. During the Monarchy, the king passed laws which came
into effect after ratification by the assembly of the day called Comitia
Curiata. This is what in the books but its undependable sine the
reality was that, all law making powers were held by the king and
him only had a prerogative to approve his law. Since he was the one
who elected members to the Comitia Curiata. The political set-up
during the Monarchy was not very effective in the passing of the
law. It was during the Republic which had seen the political
authority passing laws. The Consuls, Praetors as well as Quaestors
passed laws. The Praetors in particular passed what came to be
termed praetorian edicts. Consuls also held legislative powers . They
also caused development of law as they were intepreting the law.
The Praetors constituted the first phase in the interpretation of the
law. The Quaestors also aided through intepretation of the law in the
criminal proceedings. These laws were ratified by the Senate before
they came into use.

There was a formation of assemblies which came to be known as

comitias. The system of assemblies started during the time of the
Monarchy with the Comitia Curiata being the first assembly and the
only assembly comprised of members exclusively from the
Patricians. This assembly was replaced by newly formed assemblies

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during the Republican time. Due to the struggle of orders, the
Plebeians gained entry and vote in these newly formed assemblies.
They became also eligible for magisterial offices. One of the Consuls
came from the Plebeian members by mid Republic. Assemblies were
essential in the development of the law since they were allowed to
pass laws. Laws made by the Plebeian assembly known as Concilium
Ple bis were at first binding on themeselves only up until passing of a
law which stated that all plebscites passed by the Plebeian assembly
were binding on every citizen of Rome. They were later called leges
showing that they had now attained full legal force. Some laws came
from the assemblies. Three newly formed assemblies, the Comitia
Centuriata and Comitia Tributa and the Concilium Ple bis. These were
given a legislative role though their leges were to be duly passed by
the Senate. Whatever the case, law was developing. Legal
developments continued into the Principate era, the political set-up
had changed by this time. Rome was now under the leadership of
Emperos. This aided in the development of the law in the sense that
the emperors themeselves had a legislative role, they passed law in
the form of edicts. These edicts were binding on every citizen.

The role played by the Jurists in the evolvement of the law could not
be left out. These were the people who had love in the law, they built
their schools since the Republican time and they had Ius Responsa
that is they were consulted by the citizens on matters concerning the
law. They studied the law to an extent that they wrote books on the
law hence leading to the development of jurisprudence of Rome.
Their role in the development of the law was immense. Their advices
on the law became binding even on judges during the Principate era.

Rome’s legal developments came to an end with the passing of

Roman law during the Dominate era. Emperor Justinian codified
Roman laws which were scattered everywhere. Codification was also
done to attainn equality before the law among other reasons. The
code came to be known as the Corpus Juris Civilis contained four

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codes namely Codex, Digest, Institutes and Novallae. The Codex
contained all imperical edicts (laws passed by the emperors) from the
time of emperor Hadrian up to 533 A.D. This helped in the
accessibility of the law since these imperical edicts were kept in
imperical archives and only a few who were privileged got access
before 533 A.D. The Digest comprised of all the writings by Jurists
since the time of the Republic. Institutes was a book written for law
students. The Digest and Codex were too complicated…..they were
difficulty to understand thus why the emperor wrote a simplified
version for study at law schools. This shows development of the law.
Lastly, Novallae code had all the new laws which were passed. It is
believed that this code was added after the death of emperor
Justinian who had refused anyone to edit the 3 codes. He had made
the 3 codes a sole source of Roman law and nothingelse thus this
code was added after is death when editions to the law had
commenced. These 4 codes constituted what came to be known as
the Corpus Juris Civilis. This name was given by a jurist probably
after the death of the emperor. Development did not end by the
death of Justinian, the Corpus Juris Civilis continued to be edited even
after the fall of the Roman Empire. This was now done by the Jurists
who formed law schools and started teaching Roman law. The first
were called Glossators, they focused mainly on the Digest and the
Codex. Post-Glossators also came commenting on the law thus
developing it.

Roman law after the fall of the Roman Empire

and its survival.
The law which was last observed in the Roman Empire was lex
Romana (Corpus Juris Civilis). This law was applicable in the areas
under control of Rome that is throughout the empire but the
conquered were allowed to settle disputes among themeselves using

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their customs. It was sometimes when customs provide no answer,
the territories applied Roman law. The focus of the module Roman
Dutch law is on the fusion of Roman law and Dutch customs and its
transition to South Africa and Zimbabwe. Holland was under control
of Rome for somewhat time and when it attained its independence, it
continued to apply the Roman law. This was the survival of Roman
law. There were many factors which led to the receiption and
survival of Roman law. It must be borne in mind that the receiption
of Roman law meant its survival and also that it was not received in
Holland only. Other states like France, Germany and others also
received Roman law. In Netherlands, receiption took place in form of
stages. The law was not wholesomely received at once, it was instead
gradually received. There existed many years which were given the
name Dark Ages when Roman law was forgotten in the North of
Europe. What had caused this?

The fusion of Roman law and Dutch customs happened from

approximately 13th to the end of the 16thC. This was a period
propounded by different scholars but the fusion might have had
started long back when Holland was being ruled by Roman officials.
This receiption was mainly facilitated by practical resortation to
Roman legal system in the administration of justice. Some scholars
argued that the manner of receiption took place when Dutch was
under the leardership of the Frankish Monarchy. This was from about
5 A.D to the period of the Counts. This period was then termed
Infiltration stage that is when Roman law was not fully resorted to, it
was the period when there was very little application of Roman law.
The fact will however retained that there was application of Roman
law. A very well known example when Roman rules were consulted
to give an answer was when the church was introduced. Under Roman
legal system, the church was an institution under the state, there were
certain rules which governed the conduct between the church and the
state in Rome. The Franks simply resorted to those rules which
regulated state-church relationship. This shows that Roman legal

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system was being brought to life. Another example during the
infiltration stage was that of the Theodosian Code. This code was the
one which was applicable during this time but the fact that it was
drafted out of Roman ideology made Roman legal system to stay alive.
It was again drafted by Roman priests using Roman idea. Accordingly,
adherence to the Theodosian code was an indirect way of adhering to
the Roman Corpus Juris Civilis .

There was also a period called intellectual rediscovery in the course of

the survival and receiption of Roman law. This was the period which
came after the Dark Ages, the period when Roman law and all its
components were forgotten. There was no use of latin language
nomore, Roman way of settling disputes was also lost. The matter
was worsened by the fact that a copy of the Roman law the Corpus
had been lost. It was then rediscovered by Irnerius the father of
Glossators. He discovered a copy of the Digest in around 11 A.D and
constructed a law school in Italy called Bologna. This school became
the first to learn Roman law. The Glossators wrote notes known as
glosses on the margin of the Roman law particularly the Digest. This
was the rediscovery of Roman law which had been lost. Since it was
the only law school in Europe, many students from across Europe
came to Bologna and attained Roman legal education. They
graduated and returned back to their mother countries with
knowledge of the law. History has it that these would constitute the
benches of courts in their countries. This legal study also led to the
construction of many other law schools studying Roman law and
courts of laws settling disputes using Roman law. The settling of
disputes using Roman law created precedence hence survival of
Roman law.

Since there was an influx of different people in Netherlands, the

personality and territoriality principle became the way of
administration of justice. The principle entails that the law applicable
in your territory is the law which governs you for example, a trader

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from France residing in Netherlands wronged a Dutch worker, the
law applicable in France was used upon a French citizen. People
were not governed by the indegenous laws, they were instead
governed by laws of their home countries. This brought confusion in
the administration of justice since customs differs from country to
country. It was seen easier by the authority of the day to simply
resort to a well defined Roman legal system thus how it survived.
The work of Commendators in the survival of Roman law could not
be left out also. These came after the Glossators and their method
differed from that of the Glossators. They were not commenting
directly on the law as Glossators did rather, they commented on the
glosses of the Glossators. They came during the official
commencement of the fusion of Roman law with Dutch customs.
This was a period from 13th C onwards. The period came to be
known as receiption proper when Roman law was willingly received
and adopted into the existing legal system which was purely
customary. This era had seen many courts of law being built and law
schools teaching Roman law. It was the period when the government
of the day duly incorporated Roman rules into the existing statutes.
The period was that when it was officially passed that Roman Dutch law
was the common law of the country Netherlands. This became the final
signal to symbolise the fusion of these 2 legal systems. A visible
evidence came in 1664 when a book called Romstch Hollandstch Retch
was published by a Dutch writer Simon Van Leeuwen. This fused
law was the one which was carried by Jan Van Reeibeck to Cape of
Good Hope in 1652.

The coming in of Roman Dutch law to Cape of

Good Hope.
A zone by the name Cape is located in South Africa. A particular
business company in Holland hoped to establish a refreshment post
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for ships which navigate to and from Holland in transference of
goods. Jan Van Reeibeck was elected as a representative of the
company. In 1652, he visited the place with no intention to conquer
the place but simply establish a refreshment post out of peaciful
means. The company resided at Cape of Good Hope side by side with
the indegenous people. There are very few clashes which occurred
between Reeibeck’s people and the South Africans. These might have
occurred due to some misunderstandings and misapprehensions.
South Africa by this time was applying African customs. These were
note written anywhere. The company carried with it all the
administrative mechanism necessary. The Dutch were not aware of
African customs hence there was only one option left. The option
was only to transplant the law which was applicable in Holland, Van
Reeibeck’s mother country.

Jan Van Reeibeck left his country to Cape of Good Hope under the
authority granted to him by the Parliament of Netherlands, States
Generaal. The Parliament had granted authority to the Dutch East
Indian Company to establish a refereshment post at Cape of Good
Hope. This was done peacifully, the company never compelled the
natives to move out of their Cape. They didn’t have any political
endeavor, they had came simply to carryout their business. The fact
that the natives applied customary law which was never written
made the company to apply their Roman Dutch law. Given this
situation, Roman Dutch law was applied side by side with customary
law. What then would have happened if a natives wronged a member
of the Dutch company? Which law was to be applied? Was it Roman
Dutch or Customary law? This perhaps led to the clashes between
the settlers and natives as the settlers would have applied their
Roman Dutch law which was not known by the natives. Could they
contiue living like that? No!! There was no choice except adhering to
Roman principles. This would inturn result in the fusion of Roman
law and African customs.

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 English law in South Africa.
English law was the law that was applicable in Br itain. This law was
different from Roman Dutch law in many aspects. However, each of
these legal systems had its own deficiencies. The coming in of British
members in Cape of Good Hope meant the introduction of English
law in the place. The British waged a war against the Dutch who
were in control of Cape. The British wanted to take control of Cape
from the Dutch. This was seen in 1795 when Britain initially took
over control over Cape from the hands of the Dutch. From this year,
English law began to be applied in the territory. This was a colonial
take over which was different from that which was done by the
Dutch when they took control over Cape hence the Dutch had lost
control over Cape of Good Hope. The territory was now called Cape
Colony of Good Hope meaning that the British had effectively took
over control of the Cape. It was Britain which dictated and decides
on matters like the law to be applied in the territory and the political
administration of it was now solely British. The British did not do
away with the law which was applicable, instead they borrowed from
it many aspects which constituted it. This law was Roman principles
and law and Dutch customs. How did the English officials, the
judicial in particular and the executive enforce and intepret Roman
Dutch law? Did they retain Dutch judges, officers and perhaps
lawyers who were administrating justice duriing the time before
Cape was taken over? How was Roman Dutch became applicable in a
society where it was not known by the administrators of justice?
Whatever the case was, what is known with certainty is that Roman
Dutch law continued to be applied in collaboration with English
hence leading to the fusion of the 2 forming Anglo-Roman Dutch
law. The British lawyers who had knowledge about the English law
began to constitute benches in courts of law. They applied Roman

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Dutch law in areas where English law was weak. These included
areas like law of persons. English law was strong in commercial law.

Anglo-Roman Dutch law in Zimbabwe.

The law which was carried into Cape by Van Reeibeck was heavily
influenced by English law. From the time when the British took over
the Cape, there were many years English law being applied together
with Roman Dutch leading the synthesis of the two. Since the British
had seized Cape, desires started to arise given a false portrait about
mineral wealth in Zimbabwe. The territory was under the leadership
of king Lobengula, he ruled over the Ndebele and Shona people. He
was the lawmarker and was aided by army officials in the execution
as well as administration of justice. Customary law was the law
applicable by that time. It was written nowhere, the king and his
officials knew it. These customs varied from place to place, Ndebele
customs were different in some aspects with those of the Shona. A
man called Cecil John Rhodes who was the leader of the BSAC, a
company based in South Africa hoped to extract minerals from
Zimbabwe. History has it that the band of rand discovered in South
Africa was believed to have found its way into Zimbabwe. He
assumed that he would find rand in Zimbabwe. Some historians
claimed that Rhodes was came to Zimbabwe through the work by
European hunters who were drawing pictures depicting the land
Zimbabwe full of minerals.

Rhodes decided to use legal means inorder to secure his position in

the then Zimbabwean society. He first sent his delegates under the
leadership of Moffat to negotiate the Moffat treaty. This treaty
concluded the foreign policy of Zimbabwe. The king had agreed not
to enter any agreement without the knowledge and consent of the
British Queen. The country’s foreign affairs were put under a foreign
control. This was one step which puts Rhodes close to his yearnings.

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He hoped to further his wishes through the conclusion of the Rudd
Concession. This became the first legal document to seal the fate of
the country as far as administrative matters are concerned. This
agreement granted Rhodes and his delegates power to do whatever
they deem necessary inorder to procure the same. They were given
power to do whatever they deem necessary so as to acquire minerals and
matters. The expression “whatever they deem necessary” means that
they were granted power even to set-up legal commands provided
they would aid them in having access to minerals and metals in te
country. This became the document which led to the final take over
of the country. Following the conclusion of Rudd Concession
(mineral treaty), Rhodes was granted a Royal Charter by the British
Queen to administrate over the country on behalf of the British
government. The Charter became the second legal document giving
the BSACompany, power to establish police force and all other
administrative mechanism for the government of the country. What
laws the police forces were to enforce? Was it English law, Roman
Dutch law or both? Were they aware of any African customs? This
led Anglo-Roman Dutch law finding its way into Zimbabwe. The
BSAC headquarters through the British High Commissioner issued a
proclamation without delay. The proclamation provided for the
application of the law that was in force at Cape Colony of Good Hope
as at 10 June 1891. What was the law applicable at the Cape as at the
mentioned date? It was Roman Dutch law and English law.

This became the first official announcement on the application of

Anglo-Roman Dutch law in the country. It was imposition since the
initiative was against the will of the natives who knew nothing
except customs. The BSAC did not however refrain the natives from
applying their customary law in the settlement of disputes amongst
their people. The chiefs and headmen retained their political role but
was now under total control and influence of the Europeans. The
powers of the African chiefs eventually disappeared.

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There were several political changes which occurred since the
colonisation of Zimbabwe but the law that was in force at Cape was
retained. One of the notable changes occurred in 1963 when there
was an establishment of a Federal government. As far as legal
changes are concerned, Zimbabwe experienced many of them but
Anglo-Roman Dutch law continued to be applied though the law was
being somewhat modified to garb the prerequisites of the time. The
Matebeleland Order in Council, Southern Rhodesia Order in Council,
1961 Constitution, the well known Lanchster House Constitution of
1979 are some of the changes which occurred in the country but the
law to be applied remained Anglo-Roman Dutch. The law was
faintly modified during the course until a certain statute was drafted
to show the application of Anglo-Roman Dutch law as subject to
customary law. This mean that by end of 1979, customary law had
attained the same status as far as Anglo-Roman Dutch law was
concerned. Infact, it was African customs which were first applied,
when they provide no answer, foreign hybrid law was then invoked.
What is important to note here is that Anglo-Roman Dutch law was
being applied.

When Zimbabwe got its independence after the liberation struggle,

they took over control from the Europeans. It was now the natives
who decided on which law to be applied. The previous constitution
that is the Lanchaster House constitution provided for the
application of the law that was in force as at 10 June 1891 at Cape.
This provision meant that Roman Dutch law and English law was to
be applied. This constitution was amended in 2013 but the
application of Roman Dutch law and English law continued. The
2013 constitution is a homegrown constitution. Section 192 of the
constitution amendment no. 20 has it that, “the law to be
administered by the courts of Zimbabwe is the law that was in force
on the effective date, as subsequently modified. What was the
effective date? Which law was applied on the effective date? The
effective date was the date when the statute (constitution) came into

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effect. This is according to some sources. Some they say, the effective
date was 10 June 1891. Whatever the case may be, the fact remains
that the law being refered to is the common law of the country. The
common law is mainly Roman Dutch law and judicial precedency.
This is the law which is applicable in Zimbabwe today.

Evidence for the application of English law and Roman Dutch law is
found in the constitution. There are numerous constitutional
provisions which I am going to jot down. It is however to first quote
section 2 to the constitution of Zimbabwe for the benefit of
understanding the significance of constitutional provision. The value
of the constitution has been sumed up in terms of section 2(1), “this
constitution is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of the
inconsistency” This subsection must be clearly understood, the
literal and ordinary, grammatical meaning of it shows that
everything must be consistent to the constitution, be it the law,
practice, custom and conduct. Accordingly, there shall be no statute
in Ziimbabwe which do not allow the application of Anglo-Roman
Dutch law, that statute would be invalid!! Therefore, this section
made the succeeding provisions to be very solid. Section 46(2),
“when interpreting an enactment and when developing the common
law and customary law…..” What is common law? Why do the
courts need to develop it if its not applicable? What constitutes
common law? Common law is founded on Roman Dutch law and
English law as received and applied at the Cape. It is evident from
statutory provisions that our common law is based mainly on Roman
Dutch and English law…….

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