Abstract

In Butters v Mncora 2012 (4) SA 1 (SCA), the Supreme Court of Appeal used principles of the societas universorum bonorum to award benefits to an unmarried life-partner. In RH v DE 2014 (6) SA 436 (SCA), the court abolished the civil action for adultery. This article argues that both judgments were weakened by the court’s misunderstanding and misuse of the old common-law sources. The judgments would have been more convincing if the court had researched the context and history of the common law more rigorously. An important weakness of both judgments was the court’s decision to ignore the Constitution. The court thus forfeited an opportunity to infuse the common law with constitutional values. Reliance on the Constitution could also have assisted the court when using historical sources. It is the Constitution which enables the courts to use old common-law sources persuasively and without resorting to teleological pragmatism. The Constitution provides authority for making radical changes to old institutions where this is necessary to promote the spirit, purport and objects of the Bill of Rights. It provides guidance and tools which make ‘the researches of antiquarians’ truly productive for the modern constitutional era.