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The Reception and Codification of Systems of Law in Southern Africa

Published online by Cambridge University Press:  28 July 2009

A. J. Kerr
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Extract

The problems of reception and codification discussed by Dr. A. N. Allott in his article on “The Authority of English Decisions in Colonial Courts” in [1957] 1 J.A.L. 23 et seq. have also been encountered in Southern Africa and something of interest and value may be found in an account of experience of the problems in this area.2

Type
Articles
Information
Journal of African Law , Volume 2 , Issue 2 , Summer 1958 , pp. 82 - 100
Copyright
Copyright © School of Oriental and African Studies 1958

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References

2 As the authorities referred to may not be available to all readers of the Journal I quote more extensively than would otherwise be necessary.

3 It is convenient to describe the date mentioned in the various statutes as the date of reception. It must be remembered, however, that this date is a statutory one and not necessarily the first day on which a particular system of law begins to have force in a particular territory, e.g. in Swaziland the statutory date is now in 1907, but Roman-Dutch law was in force in the territory before then, either in terms of the 1904 Proclamation or, earlier, because the South African Republic had jurisdiction: see Nkambula v. The King [1950] A.C. 379, P.C., at 392.

page 85 note 1 The Appellate Division now stands at the head of the South African hierarchy of courts, appeals to the Privy Council having been abolished.

page 85 note 2 This judgment was delivered after the date of reception but while the Appellate Division was the court of appeal from the Southern Rhodesian Court. The Court found, at p. 731, that the law in Southern Rhodesia was the same in 1917 as in the Union. There is also no doubt that the decision in Seedat's case would have been the same in the Cape in 1891: cf. Ngqobela v. Sihele (1893), 10 S.C. 346 and Nanto v. Malgas (1887), 5 S.C. 108.

page 86 note 1 Using this term to mean the non-statutory law of whatever system is in question.

page 87 note 1 It is possible for reception to be decreed when there is no change in the legislative authority having power to make statutory law, e.g. Swaziland had no legislative assembly when Roman-Dutch law was received and still has none. It is also possible for reception to be decreed when the powers of the local legislative body are restricted. In such a case new statutes within the competence of the local body would be introduced by it while the remaining portions of the law would be subject to change by another authority.

page 87 note 2 Quoted in Bereng Griffith Lerotholi v. The King, [1950] A.C. II, P.C., at 20.

page 87 note 3 See Lee, An Introduction to Roman-Dutch Law, 5th Ed., p. 12.

page 87 note 4 Quoted above, p. 82.

page 87 note 5 Quoted at p. 392.

page 88 note 1 There is a new consolidating Act now, No. 56 of 1955.

page 88 note 2 “fresh facts” in this context appears to mean the same as “fresh material” used on the same page to mean matters of law or facts of legal history “not communicated or … not fully presented to the tribunal which heard and decided the earlier case.”

page 89 note 1 Additional authority for this proposition is to be found in the fact that the Criminal Procedure and Evidence Proclamation dated 23rd December, 1938, in its 328th Section, read with the Fourth Schedule, repealed Transvaal Proclamation No. 16 of 1902 in so far as it referred to evidence or witnesses in criminal proceedings but made no reference to the Union Criminal Procedure and Evidence Act of 1917. The High Commissioner therefore cannot have considered that the Union Act of 1917 was in force in Swaziland and did consider that Transvaal Proclamation No. 16 of 1902 was in force up to 1938.

page 89 note 2 Diamond, Primitive Law, 2nd Ed., p. 5, argues that a code need not necessarily be embodied in legislation but in modern times codes are invariably enacted. In this article Salmond's view (Jurisprudence, 10th Ed., p. 167) that “… the process which, since the days of Bentham, has been known as codification [is] the reduction of the whole corpus juris, so far as practicable, to the form of enacted law” is adopted with the modification that it is recognised that there are codes which embrace part only of the corpus juris, e.g. the criminal law only or the civil law only.

page 90 note 1 Ancient Law, Pollock's Edition, p. 16.

page 90 note 2 Cf. Jolowicz, Historical Introduction to the Study of Roman Law, 2nd Ed., p. 107.

page 90 note 3 Allott, “The Judicial Ascertainment of Customary Law in British Africa,” (1957) 20 M. L.R. p. 246. Gluckman, The Judicial Process among the Barotse of Northern Rhodesia, pp. 238–241, mentions the same fact but in his discussion on the point appears to be considering particular custom whereas to the people affected their law is the general custom. Cf. footnote 3, p. 95.

page 90 note 4 Kenny's Outlines of Criminal Law, 16th Ed. by J. W. Cecil Turner, M.C., M.A., LL.B., p. 4.

page 90 note 5 Gardiner and Lansdown, South African Criminal Law and Procedure, 6th Ed., by the late Mr. Justice C. W. H. Lansdown, LL.D., Q.C.; the late W. G. Hoal, B.A., LL.B.; and A. V. Lansdown, B.A., LL.B.; Vol. I, p. 3.

page 90 note 6 The Cape Government Commission on Native Laws and Customs 1883 (G. 4 of 1883).

page 91 note 1 Para. 61. The Commission appeared to consider that it was asked to codify as much of Roman-Dutch law and Native law as should be applied to the Transkei.

page 91 note 2 Italics supplied. The Criminal Code, with some changes, was duly enacted for the Transkeian Territories in Act No. 24 of 1886 (Cape). With amendments, it is still in force and, with certain minor exceptions (e.g. Act 41 of 1898 replacing section 200) it applies to all races alike. The code was never, so far as is known, translated into the vernacular.

page 91 note 3 The term “Kafir” has now fallen into disuse in legal terminology. Most legal sources use the term “Native”. “Bantu” is sometimes advocated and so is “African”, but as the Journal of African Law includes within its province all legal questions in Africa the term adopted to describe the legal system of the Bantu or Native peoples of Southern Africa is “Native law” Cf. 74 (1957), S.A.L.J. 314–317.

page 91 note 4 See e.g. Allott, “The Authority of English Decisions in Colonial Courts”, [1957] I J.A.L. 27–30.

page 91 note 5 Allott, “The Judicial Ascertainment of Customary Law in British Africa”, (1957) 20 M.L.R. 261.

page 92 note 1 Zululand now falls within the Province of Natal but in considering Native law it may still be spoken of as a separate entity, e.g. in sec. 2, Proc. No. 168 of 1932.

page 92 note 2 Ugijima v. Mapumana, 1911, N.H.C. 3 at 6.

page 92 note 3 Ibid, at pp. 7–8.

page 92 note 4 Jele v. Sibiya, 1936, N.A.C. (T. & N.) 64.

page 92 note 5 Ugijima v. Mapumana, 1911, N.H.C. 3 at 7.

page 92 note 6 1903 Comm., 18,727, Vol. 3, p. 59. The 1903 Commission is die South African Native Affairs Commission 1903–5, whose Report, Minutes of Evidence and Appendices was published in five volumes in 1905 in Cape Town.

page 92 note 7 1903 Comm. 18,082, Vol. 3, p. 16–17.

page 92 note 8 1903 Comm. 18,721, Vol. 3, p. 58; see also 1883 Comm. 8024, p. 456; 1903 Comm. 13,140, Vol. 2, p. 956; 18,955–56, Vol. 3, p. 75; 34,608, Vol. 4, p. 49.

page 92 note 9 1903 Comm. 17,811, Vol. 3, p. 2.

page 92 note 10 Ugijima v. Mapumana, 1911, N.H.C. 3 at 7.

page 92 note 11 1903 Comm. 18, 669–74, Vol. 3, p. 55 and Chap. IV of Proc. No. 168 of 1932.

page 93 note 1 1903 Comm. 23,156, Vol. 3, p. 359.

page 93 note 2 1903 Comm. 14,622, Vol. 2, p. 1068; 17,275, Vol. 2, p. 1245.

page 93 note 3 Section 144 (3).

page 93 note 4 Used thus the term “Native law and custom” means the Native legal system as a whole: see 74 (1957), S.A.L.J. 314–17.

page 93 note 5 Exemptions continued to be granted under this law until it was replaced by section 31 of Act No. 38 of 1927, under which exemptions may now be granted. Lest previous exemptions should fall away with the repeal of Law No. 28 of 1865 (Natal) such previous exemptions are deemed to be granted under the later Act. Exempted Natives may be deemed not to be exempted for certain purposes: see Stafford and Franklin, Principles of Native Law and the Natal Code, pp. 71–2.

page 93 note 6 1903 Comm. 29,627–28, Vol. 3, p. 720 per Mr. Justice Beaumont.

page 93 note 7 R. v. Mpanza, 1946, A.D. 763; 74 (1957), S.A.L.J. at 318–9.

page 94 note 1 Kerr, The Native Common Law of Immovable Property in South Africa, pp. 8–10.

page 94 note 2 1883 Comm. 216, p. 12, a statement by Sir Theophilus Shepstone assenting to a proposition put to him. He himself was opposed to codification: see below p. 99. Sir Theophilus was one of the outstanding authorities on Native Administration, particularly in Natal, and the originator of the Shepstone system: Brookes, The History of Native Policy in South Africa from 1830 to the Present Day, Ch. III, p. 41 ff.

page 94 note 3 1903 Comm. 41, 910, Vol. 4, p. 631.

page 94 note 4 Ugijima v. Mapumana, 1911, N.H.C. 3 at 7, cited above p. 92.

page 94 note 5 See G.N. No. 1819 of 1923.

page 94 note 6 See Proc. No. 131 of 1952.

page 94 note 7 Kerr, op. cit. pp. 37–38.

page 94 note 8 See e.g. Pogucki, “A Note on the Codification of Customary Land Law on the Gold Coast”, (1956), 8 J.A.A. 192. Pogucki's arguments in favour of “codification” appear to be directed towards statutory regulation with improvements and not towards a code in the sense in which the term is used in the present article.

page 95 note 1 Such a proclamation should deal with the legal aspects of tenure and should not include, as some South African proclamations do, administrative directions to officers in charge of districts.

page 95 note 2 See also Mlanjeni v. Macala, 1947, N.A.C. (C. & O.) 1, and cf. Schapera, “The Sources of Law in Tswana Tribal Courts; Legislation and Precedent” [1957] I J.A.L. at 158.

page 95 note 3 As to the distinction between general and particular customs see Allen, Law in the Making, 5th Ed., p. 66. As to the fact that the general custom is the common law, see Allen, ibid.; Salmond, Jurisprudence, 10th Ed., p. 216; Paton, A Textbook of Jurisprudence, 2nd Ed., p. 146.

page 96 note 1 Poto v. Costa, 1931, N.A.C. (C. & O.) 38.

page 96 note 2 Zaba v. Tolongo, 1944, N.A.C. (S.R.) 52.

page 96 note 3 See p. 89, n. 2 above.

page 96 note 4 1903 Comm. 18,082, Vol. 3, p. 16–17 per Mr. Justice Beaumont, quoted above, p. 92.

page 96 note 5 1903 Comm. 20,486–7, Vol. 3, p. 192, per Sir Henry Elliot, ex-Chief Magistrate, Transkei.

page 96 note 6 1903 Comm. 33,686, Vol. 3, p. 949.

page 96 note 7 1903 Comm. 32,453, Vol. 3, p. 877.

page 97 note 1 Majongile v. Mpikeleli (1950) I N.A.C. (S.) 260, per Sleigh, P.

page 97 note 2 1883 Comm. 377, p. 20, per Sir TheophUus Shepstone. Much Native law in Africa is still not fully ascertained: Roberts-Wray, “The Need for Study of Native Law”, [1957] I J.A.L. 82, at 84, 86.

page 97 note 3 1883 Comm. 448, p. 25, per Sir Theophilus Shepstone.

page 97 note 4 1883 Comm., para. 69, p. 30.

page 97 note 5 1903 Comm. 30, 473, Vol. 3, p. 770.

page 98 note 1 Gwente v. Smayile (1904), L.N.A.C. 71; Qabuka v. Dlisondabambi, 1937, N.A.C. (C. & O.) 187.

page 99 note 1 References to the ikohlo section in the different authorities are confused, some stating that it is on the right-hand and some that it is on the left. For the purposes of this article it is not necessary to resolve the difficulties because although the Code of 1878 mentioned both left hand and right hand wives (sections 25–26) it did not state the rules relating to the establishment of the ikohlo section or those relating to the position of the ikohlo heir with as great clarity as the Court required. The rule of interpretation stated by the Court must therefore be accepted for the purposes of the doctrine of precedent.

page 99 note 2 The figure is now one-half instead of three-quarters.

page 99 note 3 1883 Comm. App. C, p. 45, A38; App. C, p. 61, A38.

page 99 note 4 See p. 94 footnote 2.

page 99 note 5 1883 Comm. 410, p. 23, Cf. 1903, Comm. 18,721, Vol. 3, p. 58.

page 100 note 1 1903 Comm. 34,980, Vol. 4, p. 75.

page 100 note 2 In paragraph 232, Vol. 1, p. 44.