The law of slavery: The predicament of the slave community at the Cape

Abstract

Although slavery was not permitted in the Netherlands and in Britain, it was permitted in their colonies. The practice of slavery iras introduced at the Cape shortly after the establishment of the refreshment post, and ceased in 1834, long after Britain's permanent occupation of the Cape. In this article the legal position of the slave community at the Cape is analysed by means of the new insights gained from the study of various sources in the Cape Archives. The traditional viewpoint has been that the legal position of the slave community at the Cape should be evaluated in terms of Roman Law. There is some doubt, however, about whether Roman Law, albeit in an adapted form, was applied at the Cape during this period. The viewpoint taken in this article is that the legal position of the slaves should be evaluated against the background of the frame of reference for law enforcement contained in the Statuten van Batavia (1642) and later in the Nieuwe Statuten van Batavia (1766). From the analysis made of the legal practice at the Cape it appears that this frame of reference was not applied in respect of law enforcement. It emerges, however, that the traditional viewpoint, which holds that Roman Law was applied, should be clearly qualified.