You may have come across a Latin phrase or two whilst reading a contract or legal document. Phrases such as domicilium citandi et executandi, bona fide, Pro Bono, de facto, Prima Facie, to name but a few, are regularly used by lawyers, in and out of court. This may have prompted a valid question: why do lawyers use Latin phrases in the 21st century, if Latin was the language of ancient Rome? To understand why the language of ancient Rome is still used by lawyers in South Africa and elsewhere in the world today, you have to understand where our legal system comes from. We live in a country with a rich and vibrant cultural heritage. With this cultural heritage come influences not only on what we eat or drink or how we dress, but also on our legal system.  

In The History of South African Law – An Outline, the author writes:  

"A legal system, however, is usually one of the cultural products of a community and is, like the community itself, the product of its history. The same factors (geographical, political, religious and others) which have contributed to the formation of the community, also have a share in the development of the legal system concerned." 

The Republic of South Africa has a unique history. Not all historic events can be celebrated. However, exposure to world powers and foreign nations as a trade post at the Southern tip of Africa led to the development of a unique legal system. 

You may still wonder what the relevance of Latin phrases are seeing that the tip of Africa was never part of the Roman Empire. The short answer is that Roman Law infiltrated the Netherlands' legal system, which then became Roman-Dutch Law. Parts of South Africa were once colonised by the Netherlands (then known as The Cape of Good Hope and The Cape Colony). This led to what we call the "reception" of Roman-Dutch Law into our legal system. Today, Roman-Dutch Law forms part of our Civil law. 

According to legend, Rome was founded in 753 BC. The Roman Empire was established in 27 BC by Augustus Ceaser. The Romans did not just give us gladiators and magnificent architecture. They also develop a sophisticated legal system. Roman Law evolved over a period of twelve centuries. It started out as the customs of a small village state but rose to its peak as the law of a worldwide empire. It has been described as "a model for all times to come, such as has never been equalled since" 

Medieval institutions were considerably influenced by Roman law, which has served as the basis for most Western European legal systems. The reception of Roman Law in these European countries meant they abandoned their customary laws and "received" or adopted Roman Law. With the arrival of the Dutch East India Company, a company owned and regulated by the United Netherlands (a confederation at the time) in Cape Town in 1652, came Roman-Dutch law. 

It is for this reason that students still learn about Roman history as part of their law degree. There was a time where Latin was a module on its own. However, this is no longer a requirement. The South African legal system has undergone radical changes since the Constitution of the Republic of South Africa, Act 108 of 1996 came into effect on 4 February 1997.  

Customary laws now also form part of our legal system. This means that legal principles from people indigenous to South Africa have a place in our legal system.  

Section 34 of the Constitution affords everyone the right of access to justice. The effect of this is that a Court of law must assist lay persons if they come before the court in person and unrepresented by an attorney or advocate. A Judge or Magistrate will not use Latin phrases in such an instance without explaining them to a lay person. Although court proceedings are mostly conducted in English, witnesses and persons appearing before the court can request a translator.  

There is also a worldwide movement called Plain Language Law. This calls for simple language being used in legal documents, such as contracts.  

This concept now also forms part of certain legislation for example the Consumer Protection Act 68 of 2008. Section 22 of the Act stipulates that all information should be in plain and understandable language. The phrase "plain and understandable" for purposes of consumer contracts can be equated to "clear"; "understandable" and "user-friendly". This means that difficult legal concepts and documents should be transformed or simplified into a language that is plain, understandable, clear, and user-friendly.

Conclusion  

It is important to work with a Legal Practitioner who understands this right and ensures that his or her clients are not kept in the dark using legal phrases in legal documents.  

Written by Janet Mc Intosh, SchoemanLaw Inc