Research Handbooks in Financial Law series
Edited by Julian Burling and Kevin Lazarus
Chapter 30: South Africa: Insurance Law and Regulation in the Rainbow Nation
Birgit Kuschke 1. INTRODUCTION AND BRIEF HISTORY This chapter provides a broad overview of the statutory regulation of the insurance industry and of basic insurance contract law principles in South Africa. Speciﬁc issues that are examined in detail include the effect of the modern Constitution on insurance contract law, the effect of increased mandatory insurance schemes, and the increase in insurance to the beneﬁt of third parties in the country. The South African nation has often been described as a ‘Rainbow Nation’, and its law also clearly reﬂects this state of affairs. The South African legal system is not a codiﬁed system, and consists of common-law principles that are supplemented by statute and by case law. Roman-Dutch insurance law was initially introduced as the common law in 1652. During the British occupation in the early 1800s English precedents were followed and English insurance law was even introduced by statute as the governing law in some of the provinces in the country.1 These statutes were revoked in 1977 and the Roman-Dutch law was restored as the governing insurance law.2 As the inﬂuence of English law and even the application of legal principles from other countries when Roman-Dutch law was lacking cannot be reversed, some foreign principles have been permanently assimilated into our law of insurance.3 As the insurance law for most countries devolved from the original lex mercatoria and legal principles in this ﬁeld are mostly universal, the South African common law on insurance retains a...
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