Die gelding van die volkereg in die Suid-Afrikaanse reg

[摘要] ENGLISH ABSTRACT:According to Rumpf£ CJ in the Nduli decision, Roman-Dutch law is the fons etorigo of the statement that customary international law is part of South Africanlaw. His sources, Fran~ois and Huber, are open to criticism because they arenot Roman-Dutch authorities on this specific question, but the decisions inNcumata v Matwa (1881-2), Du Toit v Kruger (1905), and Rex v Lionda (1944)emphasise that the reception of customary international law in South Africanlaw has taken place through Roman law. Various court decisions emphasise thatthe term Roman-Dutch law should not be interpreted narrowly, as it includesthe common law of the whole of Western Europe and not only of the provinceHolland. If this quotation is interpreted in an ius commune context, it is clearwhy Rumpf£ CJ did not cite specific sources to prove his point: he acceptedit as a given fact- as the jurists did in the middle ages. Roman-Dutch lawserves only as a frame of reference out of which international law has developed.The courts therefore apply international law as international law and not as, forexample, common law. Two important implications follow: firstly it means thatcustomary international law need not to be transformed before the courts canapply the relevant rule and secondly that new rules of customary internationallaw automatically form part of the law of South Africa.From the eighty South African court decisions discussed, it is clear that thecourts do take judicial notice of customary international law. This justifies thestatement that the judiciary regards customary international law as part of thelaw of South Africa since 1879.The influence of English law on this section of South African law must,according to Rumpf£ CJ, also be taken into account. The reason is that Englishlaw is the common law of the South African constitutional law which influencesthe application of international law by the courts. This can extend the courts'frame of reference. Only a fifth of the cases discussed refer to Roman-Dutchwriters, and then only in a comparative sense. The South African courts relymainly on Anglo-American decisions and tendencies. The South African courtsfollow their English counterparts by accepting the same qualifications on thegeneral rule that customary international law forms part of the law of the land.The willingness of the courts to apply customary international law has diminishedover the years especially in cases where state security features. Itseems that politically contentious questions play an inhibiting role on the readinessof the courts to apply customary international law where conflict, real orimaginary, between customary international law and municipal law appears.Acts of state constitute the most important obstacle in the application ofcustomary international law, because they could lead to the court abandoningits independent judicial function in favour of the executive. Because the SouthAfrican courts follow the English law in this area also, it is assumed that safetymeasures developed there would be adopted by the South African courts toprevent their jurisdiction from being limited too easily.It is recommended that more attention should be given to the existenceand application of customary international law principles and that a consciouseffort must be made by the judiciary to resolve conflict between customaryinternational law and municipal law and to do it in such a manner that dueaccount is taken of the fact that in South Africa customary international law ispart of the law of the land.

[发布机构] Stellenbosch University