the Reception and Codification of Systems of Law in Southern Africa (by A.J. Kerr)

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 valuemay be found in an account of experience of the problems in this area.

 

 

 

2

 

Reception

The Roman-Dutch law which is the common law in Southern

Africa was received into Southern Rhodesia and into South West

Africa from the Cape of Good Hope.

 

Article Section 13 of the High

Court Act, Cap. 8 (Southern Rhodesia) reads:—

 

” Subject to the provisions with regard to Native law and custom

 

contained in the Native Law and Courts Act the law to be administered

 

by the High Court and by the magistrates’ courts shall

 

be the same as the law in force in the Colony of the Cape of Good

 

Hope on the tenth day of June, 1891, as modified by subsequent

 

legislation having in this Colony the force of law.”

 

From 1910 until 30th June, 1955, the Appellate Division of the

 

Supreme Court of South Africa was the court of appeal from the

 

High Court of Southern Rhodesia in civil matters. Since 1st July,

 

1955, the Federal Supreme Court has been the Court of Appeal.

 

Section 1(1) of Proc. No. 21 of 1919 (South West Africa) reads:—

 

” The Roman-Dutch law as existing and applied in the Province

 

of the Cape of Good Hope [on the first day of January, 1920] shall

 

from and after the said date be the Common law of the Protectorate

 

. . . .”

 

The Appellate Division of the Supreme Court of South Africa

 

hears appeals from the High Court of South West Africa.

 

•B-A., LL.B., Senior Lecturer in Law, Rhodes University, Grahamstown;

 

Advocate of the Supreme Court of South Africa, Member of the Grahamstown

 

Bar.

 

 

1

As the authorities referred to may not be available to all readers of the Journal

I quote more extensively than would otherwise be necessary.

 

 

 

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.

 

82

Vol. 2. No. 2

The Reception and Codification of Systems of Law

83

 

The statutes quoted have been interpreted by the Courts of their

respective territories and the interpretations agree. In

 

Central African

 

Airways Corporation

v. Vickers-Armstrong Ltd.,

1956 (2) S.A. 492 (F.C.),

 

appellant, an

incola,

sought an order attaching a debt due from appellant

to respondent, a

 

 

peregrinus, to found jurisdiction.

CLAYDEN,

 

F. J., said, at p. 492 :—

” It is settled Roman-Dutch law that the Court, at the instance

of an

incola, will attach property of a peregrinus

if the property is in

its area of jurisdiction in order to found jurisdiction in the Court

 

in a claim for money by the

 

 

incola against the peregrinus,

even if there

is no other ground to exercise jurisdiction.

 

Although the law is now so settled there were conflicting decisions

 

in the Cape Colony until 1931. . . . In 1907 in

 

 

 

Ex parte Kahn,

 

24 S.C. 558, de Villiers, C.J., refused to grant an order to an

 

incola

 

to attach the goods of a

peregrinus

in order to found jurisdiction

where no other ground for exercising jurisdiction existed. . . . Then

 

in

 

 

Halse v. Warwick, 1931 C.P.D. 333, it was held that

Ex parte

Kahn

 

 

 

was wrongly decided, and the law in the Cape became settled

in the form set out above.

 

There is no doubt that the law to be applied should be that laid

 

down in

 

 

Halse v. Warwick . . .

unless it can be said that the principle

of

 

 

stare decisis

requires that decisions in Southern Rhodesia based on

 

Ex parte Kahn

 

should not be departed from.”

His Lordship then analysed the decisions in the High Court,

 

which (as was noted at p. 494) do not bind the Federal Supreme

 

Court, and continued at p. 493:—

 

” Although in the Cape cases the actual decision relating to the

 

incola

 

and the peregrinus was not given until 1907, in

Ex parte Kahn,

it is clear, having regard to the remarks of de Villiers, C.J., that

no decision other than that reached in

Ex parte Kahn

would have

been given in 1891. But a practice, later shown to be erroneous,

 

cannot be regarded as the law in force in 1891; the true law must

 

be looked to.”

 

The debt was therefore attached.

 

The South West African case is

 

 

R. v. Goseb,

1956 (2) S.A. 696

(S.W.A.) and in it the Court was called upon to decide whether

 

 

furtum usus

 

was a crime. There were decisions in the Cape commencing

with

 

R. v.Fortuin

(1883), 1 B.A.C. 290, stating that it was

not a crime and there was a decision in the Orange Free State

 

Provincial Division,

 

 

R. v. Mtaung,

1948 (4) S.A. 120 (O), stating

that it was a crime.

 

 

CLAASEN, J . P., said, at pp. 698 et seq.:

” In coming to a conclusion as to the true meaning of Proc. a 1

 

of 1919 [the proclamation on reception quoted above p. 82] the

 

following factors must be taken into consideration:—

 

(a) The object of the Proclamation was to create a common law

 

for South West Africa which was already a living, active system

 

in the Cape of Good Hope.

 

(6)

 

 

 

(c)

 

(rf) On the 1st day of January, 1920, there were in existence in

the Union the various Provincial and Local Divisions of the Supreme

Court of South Africa with a common Appellate Division. That

implied that there was a common law of South Africa which was

84

Articles

[1958] J.A.L.

fundamentally or was intended in due course to be the same for all

 

Provinces, except in so far as this common law had been modified

 

by local statutes. This was illustrated by a case such as

 

 

Conradit

v.

 

Rossouw,

 

1919, A.D. 279, and many other cases.

(«) The common law of the Cape of Good Hope was on the 1st of

 

January, 1920, not something separate and distinct from the common

 

law of the rest of the Union, but part and parcel of it. In my

 

opinion, it was in effect the South African Law as existing and

 

applied in the Cape of Good Hope that was introduced into this

 

Territory on the 1st of January, 1920. This view finds support, in

 

my opinion, in the Privy Council case of

 

Gideon JVkambuIa & Ors.

v.

 

The King,

 

1950, A.C. 379.

(f)

 

In my opinion sub-sec. (4) of sec. 3 [of Proc. 21 of 1919,

giving the High Court the same jurisdiction as the Cape Court]

 

meant no more than that this Court being equal in status with the

 

Cape Provincial Division was free to follow one of its decisions and

 

should in fact always endeavour to do so but was, just as that

 

Division itself, free to depart therefrom, if convinced that it is

 

clearly wrong.

 

(g)

 

I am of opinion that this Court is not bound to follow a

decision of the Cape Provincial Division if convinced that it is

 

clearly wrong. For example, supposing that

 

Conradit v.

Rossouw

 

had come on appeal from this Court to the Appellate Division and

that case had been decided here in conformity with the eventual

Appellate Division’s decision in that case, would that Court have

ruled that this Court should have followed the wrong decision of

Mtembu

 

v. Webster

(1904), 21 S.C. 323 ? Certainly not ! Nor if

the decision here had been in terms of

 

Mtembu’s

case do I think the

Appellate Division would have held that this Court by reason of

 

the Proclamation was correct in applying the wrong law as laid down

 

in

 

 

Mtembu’s

case. It could in my opinion never have been the

intention of the Legislature to saddle this Territory for ever with

 

decisions that may have been wrongly decided in the Cape of

 

Good Hope “

 

The reference in this paragraph and in

 

 

(d) above to Conradie

v.

 

Rossouw,

 

1919. A.D. 279, is a reference to a famous controversy

before Union in which the Cape and Transvaal Courts, with

 

knowledge of each other’s position, took opposite sides. In the

 

Cape in

 

Mtembu v. Webster

(1904) 21 S.C. 323, DE VILLIERS, C. J.,

said, at p. 331:—

 

” This court has repeatedly decided that, except in the case of donation

 

. . .

 

 

‘redelykt oorzaak’

really means valuable consideration…”

In the Transvaal, however, in

 

 

Rood v. Wallach,

1904, T.S.187,

 

INNES, C. J., said, at p. 201:—

” So far as I have been able to consult the Roman-Dutch

authorities, I have not discovered any great conflict in regard to

the meaning of the word

causa [oorzaak

in the Dutch language (see

p. 199)]; it is used again and again in the sense of reason or ground

 

for a contract, and I am unable to find any indication that it was

 

ever used in any sense equivalent to the English ‘ consideration ‘.”

 

 

Conradie’s case

 

originated in the Cape and in the Appellate

Division the view held by the Transvaal Court was preferred and

 

is now adopted in all territories administering Roman-Dutch law.

 

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The Reception and Codification of Systems of Law

85

The opinion in

 

 

Goseb’s case

continues:—

 

“(h)

” («) It was clearly, in my opinion, also not the intention of the

Legislature that the iaw should have remained static here in terms

of the law as existing and applied in the Cape of Good Hope as at

the 1st of January, 1920. It is clear on the authorities that a decision

given by the Cape Provincial Division say in 1925 reversing another

decision earlier than 1920 could validly be followed here. This

follows clearly from such decisions as

Surmon v. Surmon,

1926, A.D. 47;

 

Rex

 

v. Burgess,

1927, T.P.D. 14. . . .

It is further true that a decision interpreting the common law

 

has retrospective effect, as if the common law had always been in

 

conformity with the later decision. . . . In other words, whatever a

 

Cape Court may have decided prior to 1920, a subsequent different

 

decision by the Appellate Division must be read as if the effect

 

of the later decision was already operative on the first day of

 

January, 1920.

 

(j) The characteristics of the law that was introduced here were

 

described by Lord Tomlin in the case of

 

Pearl Assurance Co.

v.

 

Union Government,

 

1934, A.D. 560 at 563; 1934 A.C. 570 at 579 (P.C.),

in the following words: ‘ That law is a living, virile system of law,

 

ever seeking, as every such system must, to adapt itself consistently

 

with its inherent basic principles to deal effectively with the increasing

 

complexities of modern organised society. ‘ Such was the

 

law that the Legislature intended to introduce into this Territory

 

and it is the duty of this Court to interpret the law so as to deal

 

effectively with complexities of the society that obtains here.

 

In my opinion it is to be inferred from sec. 1 (1) of the Proclamation

 

that it was the intention of the Legislature to introduce into this

 

Territory the law of the Union of South Africa, as existing and

 

applied in the Cape of Good Hope, which law has for its basic

 

structure the principles of the Roman-Dutch law. Where those

 

principles have been applied in the Cape of Good Hope differently

 

from the rest of the Union, this Court must to the best of its ability

 

endeavour to interpret and apply those principles as it considers

 

the Appellate Division will interpret and apply them in a case

 

coming before it on appeal from a decision of a Court in the Cape

 

of Good Hope.”

 

 

1

 

When there is a decision, given before reception, in a court in

the country from which the system of law has been received and

when that court is superior in rank to the court called upon to

decide a matter in the receiving country the difference in rank is

a factor requiring consideration. Thus in

Acting Master, High Court

v.

 

Estate Mehta,

 

1957 (3) S.A. 727 (S.R.), MORTON,

J., after finding

that the case before the Court was on all fours with

 

 

Seedat’s

Executor

 

 

v. The Master, 1917 A.D. 302,2

said at, pp. 732-3:—

 

 

Mr. O’Hagan

next submits that this Court is now free to differ

from the decision in

 

 

Seedat’s

case because the Appellate Division is

 

1

 

The Appellate Division now stands at the head of the South African hierarchy

of courts, appeals to the Privy Council having been abolished.

 

 

1

 

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.

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[1958] J.A.L.

 

no longer our Court of Appeal. This is a startling proposition.

If it is correct, not only this Court but also all lower courts of this

Colony are now free to differ from decisions of the Cape Supreme

Court from 1891 onwards and of the Appellate Division from its

inception which were previously binding upon them. This might

re-open many old controversies which we have long regarded as

settled and would introduce grievous uncertainties into many

business transactions and legal proceedings. In support of his

proposition

Mr. O’Hagan cites John Bell & Co. Ltd. v. Esselen,

1954(1),

 

S.A. 147 (A.D.), in which Centlivres, C.J., said, at p. 154: ‘ As this

Court is now the final Court in respect of appeals from Courts in

the Union, it must naturally have the power, which the Privy

Council had and which it does not now have in respect of those

appeals, of departing from an erroneous decision of the Privy

Council.’ We are not in a position similar to that in which the

Appellate Division then found itself. It is not this Court, but

the Federal Supreme Court, which in our Judicature has taken the

position formerly held by the Appellate Division. In my view,

decisions of the Appellate Division in civil matters given before

1st July, 1955, . . . remain binding upon us until they have been

dissented from or overruled by the Federal Supreme Court or by

the Privy Council or have been avoided by legislation.”

If it is remembered that in Roman-Dutch law the highest court,

unlike the House of Lords, has power to depart from its own

previous decisions in certain circumstances the statement in the

above case will be found to accord with that in

Robins v.

National

Trust Co.,

 

 

[1927] A.C. 515, P.C., at 519, quoted by Allott,

op. at.

 

p. 26.

There is a further point of interest in connection with

 

Estate

Mehtds case. Seedat’s case

 

 

 

was based upon a finding of public policy

and it is arguable that for that reason the Court could have declined

 

to follow it. Public policy is variable and decisions on it have less

 

force in subsequent cases than those on matters of law. Thus in

 

 

Nordenfelt

 

v. Maxim Nordenfelt Guns and Ammunition Co.,

[1894]

A.C. 535, H.L., at 553, Lord

 

WATSON

said:—

” A series of decisions based upon grounds of public policy, however

 

eminent the judges by whom they were delivered, cannot possess

 

the same binding authority as decisions which deal with and formulate

 

principles which are purely legal.”

 

In the matter of the recognition of polygamous unions contracted

 

according to other systems of law (which was the question in both

 

 

Seedafs

 

and Estate Mehta’s

cases) changes are apparent in South

Africa (see 73 (1956) S.A.L.J. 402-4) and the Court could with

 

advantage have considered whether the public policy of the Federation

 

of Rhodesia and Nyasaland in 1957 was the same as that of

 

the Union of South Africa forty years earlier.

 

The principle to be extracted from the cases quoted above

 

appears to be that the reception of a system of law in any country,

 

while it marks the beginning of a new development, causes no

 

break in the life of the common law

 

1

—what was sought before

 

1

 

Using this term to mean the non-statutory law of whatever system is in

question.

 

Vol. 2. No. 2

 

 

The Reception and Codification of Systems of Law

87

 

whenever and wherever the common law applied was a true

interpretation of that law and this is also the aim of the courts

of the country into which it has been received.

But what is the position in respect of statute law ? The orthodox

view is that only the legislative authority or authorities of the

receiving country has or have power to introduce new statutes.

 

1

 

This is the view found in the High Commissioner’s proclamation

of 29th May, 1884, providing for the reception of Roman-Dutch

law in Basutoland,

2

in the High Commissioner’s proclamation

No. 36 of 1909 providing for the reception of Roman-Dutch law in

 

the Bechuanaland Protectorate,

 

 

3

and in section 13 of the High

Court Act, Cap. 8 (Southern Rhodesia).

 

 

4

No further comment

would be necessary were it not for certain

 

 

obiter dicta in Nkambula

v.

 

The King,

 

[1950] A.C. 379, P.C. The Board in that case was called

upon to interpret the provisions of the Swaziland Criminal Procedure

 

and Evidence Proclamation of 1938 relating to the

 

acceptance of accomplice evidence. In the proclamation as

 

originally promulgated the test had differed from that in the

 

Union of South Africa but an amendment had been introduced in

 

1944 and the Board found that this amendment resulted in a ” return

 

to the requisites which the law of the Union of South Africa demanded

 

” (at p. 394). Leading up to this finding the Court reviewed

 

the history of the law. In the Transvaal, before Union, the law on

 

accomplice evidence was contained in Proclamation No. 16 of

 

1902 (see p. 392). In 1904, it was stated, at p. 392, ” by Proclamation

 

the Roman-Dutch and statute law of the Transvaal was

 

applied to Swaziland “. This proclamation was not quoted by the

 

Board because the relevant provisions were re-enacted by another

 

in 1907, No. 4 of 1907, which read, in section 2:—

 

” The Roman-Dutch common law save in so far as the same has

been heretofore or may from time to time hereafter be modified

by statute shall be law in Swaziland and all statute law which is

in force in Swaziland immediately prior to the date of the taking

effect of this Proclamation shall save in so far as the same is hereby

amended or altered or is inconsistent herewith or may hereafter

be amended or altered shall be the Statute Law of Swaziland.”

 

5

 

The Transvaal statute was therefore in force in Swaziland. It

was repealed, however, in so far as it affected the Transvaal, in

1917 by the Union Criminal Procedure and Evidence Act of that

year which was a measure ” To consolidate and amend the laws

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.

 

•Quoted in

 

 

Bereng Griffith Lerotholi v. The King,

[1950] A.C. 11, P.C, at ao.

* See Lee,

 

 

An Introduction to Roman-Dutch Law,

5th Ed., p. 12.

 

4

 

Quoted above, p. 82.

• Quoted at p. 392.

 

 

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Articles

[1958] J.A.L.

 

in force in the several provinces of the Union.”

1

The Board

noted, at p. 392, that this was ” a Union Act binding in the

 

Transvaal ” and, at p. 393, said that ” From 1917 to 1938 the

 

criminal law as administered in Swaziland was governed by

 

the terms of this statute”. Again, at p. 399, summing up the

 

history of Swaziland law prior to 1938 the Board said:—

 

 

” The position, therefore, is that the present form of words was

made the law of the Transvaal by Proclamation No. 16 of 1902,

and applied to Swaziland in 1904. . . . Subsequently the Act of

1917, which made the law of South Africa homogeneous, was passed

and so became law in the Transvaal as part of the Union of South

Africa and was in force in Swaziland inasmuch as the law of the

Transvaal was there applicable.”

In stating that the Criminal Procedure and Evidence Act, 1917,

of the Union of South Africa ” governed ” or ” was in force ” in

Swaziland the Board may have intended to convey either (1) that

section 2 of Proc. No. 4 of 1907 required this; or (2) that a consolidating

Act subsequently enacted in the territory from which a

system of common and statute law has been received is binding in

the territory which received it. Both propositions are, however,

very far-reaching and neither was fully canvassed before the Board.

It is submitted that the Board will in future be justified in reconsidering

its remarks for the reasons which it gave in

 

Nkambula’s case

 

for departing from its decision in

Tumahole Bereng v.

The King,

 

[1949] A.C. 253, P.C. Repeated reference was made, at pp. 396-400,

to the difficulties and dangers encountered when a matter is not

properly argued. At p. 398, for example, the Board said:—

” The present case . . . is one in which fresh facts

2

have been

adduced which were not under consideration when

 

 

 

Tumahole’s case,

 

[1949] A.C. 253, was decided, and accordingly it is one in which,

in their Lordships’ view, they are justified in reconsidering the

foundations on which the case was determined.”

The remarks under discussion can the more readily be reconsidered

because they were not necessary for the decision of the case

and were therefore

obiter.

The Board arrived at its decision by

following the conclusion reached in

 

 

Bereng Griffith Lerotholi v.

The

King,

 

 

 

[1950] A.G. 11, P.C. It said, at p. 397:—

 

” I n

Lerotholi’s case

[1950] A.C. 11 (P.C), the cautionary rule

which is followed in South Africa was brought to the notice of the

 

Board, and is set out in the wording used by SCHREINER, J.A., in

 

 

Rex

 

v. Ncanana,

1948 (4) S.A. 399 (A.D.) at 4 0 5 . . . . Their Lordships

agree with the conclusion reached in

 

Lerotholi’s case

that the

cautionary rule so stated is that binding in Swaziland as it was in

 

Basutoland. . . .”

 

 

The history of the matter in Basutoland corresponded very closely

with that in Swaziland. In both territories a statutory rule was

1

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

“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.”

 

 

Vol. 2. No. 2

The Reception and Codification of Systems of Law

89

 

introduced on reception and those rules were substantially the

same. In both territories a change was brought about in 1938

with the introduction of a Criminal Procedure and Evidence

Proclamation and in both cases an amendment was introduced in

1944 after which the provisions of the territorial proclamations

resembled those originally received and were (with two unimportant

omissions which did not affect the sense) word for word the same

as those of section 285 of the Criminal Procedure and Evidence

Act of 1917, interpreted by

SCHREINER, J. A., in Rex v.

Ncanana,

 

1948(4) S.A. 399 (A.D.). The Board was therefore bound in the

case of both territories by the statute law of the territory in question

to apply the test stated therein which was the same as the South

African test. The Board in

Lerotholi’s case,

[1950] A.C. 11, P.C. at

pp. 21, 22, referred to

 

 

Ncanana’s case

as persuasive authority on

” the corresponding section in the Criminal Procedure and Evidence

 

Act, 1917, of the Union of South Africa ” and it followed

 

 

 

Lerotholi’s

case

 

 

in Nkambula’s case,

[1950] A.C. 379, P.C.

It is submitted that the

 

 

obiter dicta in Mkambula’s case

are not to be

followed; that as the alterations or amendments envisaged by

 

section 2 of Proc. No. 4 of 1907 (Swaziland) are those of the

 

Swaziland legislative authority nothing in that section required

 

the application of the South African Criminal Procedure and Evidence

 

Act, 1917, in Swaziland between 1917 and 1938

 

 

1

; that

there is insufficient authority for the proposition that a consolidating

 

Act subsequently enacted in the territory from which a system of

 

common and statute law has been received is binding in the territory

 

which received it; and that the orthodox view is to be preferred.

 

According to the orthodox view, it is to be noted, all relevant

 

statutes and the cases interpreting them may be referred to as

 

persuasive though not binding authority as was done in

 

 

 

Bereng

 

Griffith Lerotholi

v. The King,

[1950] A.C. 11, P.C.

2.

 

 

 

Codification*

 

Codification, like reception, marks the beginning of a new development

and in dealing with the question of its effect on the

continuity of the system of law codified two different points of view

require discussion. On the one hand it may be argued that a code

is an entirely new beginning, the previous law having been super-

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.

 

 

*

 

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.

go

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[1958] J.A.L.

seded:

 

 

cf. Wallace-Johnson v .R.,

[1940] 1 All E.R. 241; [1940] A.G.

231, P.C., at 244, cited by Allott,

 

 

op cit.

p. 28. On the other hand,

Maine has pointed out that a code is basically the proclamation

 

of existing law in statutory form

 

 

1

and many questions concerning

 

mancipatio

 

in Roman Law would remain unsolved if one were

confined to what is to be found in the XII Tables

 

2

. The different

points of view may be reconciled if the circumstances in which the

 

different types of codes are enacted are borne in mind.

 

When in the course of colonisation one sovereign is replaced by

 

another, and the law of the colonists becomes the law of the land

 

and provision is made for the recognition, in certain cases, of a

 

previously existing system of law difficult questions are likely to

 

arise. Apart from the question of the extent of recognition to be

 

accorded to the second system of law two widely different needs

 

have to be met. The first is the need to inform the subjects of the

 

country whose administration has been undertaken of the criminal

 

law which the new sovereign is to enforce, and the second is the

 

need to inform judicial officers of the rules of a system of law which

 

they are called upon to administer but which are difficult to

 

ascertain. In the latter case there is no need to inform the people

 

of the rules of law for it is their law. It “is not an occasional

 

variant from the general law . . . ; it is their general law . . . .”

 

 

 

s

 

In the administration of the criminal law the legal proceedings

are ” of a special kind “.* in which the state is ” given by law a

locus standi

 

to seek the punishment of the offender. It does not

follow that the State

 

only

may prosecute the offender . . . but . . .

the State, in providing a special machinery for dealing with the

 

perpetrators of [crimes], reserves to itself a right of putting that

 

machinery in motion even where the individual most aggrieved

 

by the unlawful act does not seek to procure the punishment of the

 

offender.”

 

 

s

It is in the circumstances only natural that when one

sovereign is replaced by another the new sovereign should feel the

 

need to inform the people brought within its rule of the principles

 

upon which it will take action against them and the matters in

 

which it expects obedience.

 

In more than one instance codification has commended itself as

 

a good method by which the need in respect of criminal law may be

 

met. Thus the terms of reference of the 1883 Commission

 

 

6

included

a direction to suggest ” a code of Civil and Criminal Law ” and the

 

 

1

Ancient Law, Pollock’s Edition, p. 16. 1Cf. Jolowicz, Historical Introduction to the Study of Roman Law,

2nd Ed., p. 107.

• Allott, ” The Judicial Ascertainment of Customary Law in British Africa,”

 

(’957)

 

 

2O 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 ‘, p. 95.

*

 

 

Kenny’s Outlines of Criminal Law,

16th Ed. by J. W. Cecil Turner, M.C., M.A.,

LL.B., p. 4.

 

 

6

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. t, p. 3.

 

 

8

The Cape Government Commission on Native Laws and Customs 1883 (G. 4

of 1883).

 

 

Vol. 2. No. 2

The Reception and Codification of Systems of Law

91

 

Commission, while it felt unable to suggest a civil code,

1

reported

in paragraphs 35 and 38 that:—

 

 

” We find no uniformity in the criminal law or procedure, which

until lately has been administered beyond the Kei. Some Magistrates

inform us that they administer the Kafir law; others that they

administer the Colonial law; some that they apply the Kafir mode

of procedure by calling to their aid assessors, and allowing the

examination of prisoners; others that they adopt our Colonial mode

of procedure; some that they apply Kafir law and procedure in

some cases, and the Colonial law and its procedure in others.

All are agreed that a Criminal Code is desirable in order to give certainty

to the law that they are called upon to administer and to enable those subject

to the laws to know them.

 

And this knowledge can best be secured

by means of a code translated into the Kafir language, which, even

 

if not read by the vast majority of Natives, will in substance be

 

learnt by them from missionaries, educated Natives, and others,

 

who, from the code itself, will be able to acquire a knowledge of

 

law at present unattainable. . . . We have suggested a Penal Code,

 

which while it adopts the general principles of the existing Colonial

 

law endeavours to remedy its defects, and retains some law and

 

principles of procedure dear to Natives, and which commend

 

themselves to us as proper for those territories.”

 

2

3

 

When such a criminal code is enacted the guiding principle in

interpreting it is, as in the case of all legislation, the intention of the

Legislature, and when the circumstances surrounding its adoption

are of the nature of those outlined above it is apparent that the

Legislature’s intention is to make a definitive proclamation and

that the courts are not intended to be bound by any authority

other than the code. Statements on the interpretation of codes in

African territories within the British Commonwealth which emphasise

this intention

4

refer to criminal codes and not to civil codes

which do not exist outside Natal.

 

 

 

8

 

When one turns to the Natal Code of Native Law which includes

the civil law, a very different picture is presented. The circumstances

calling for its enactment differed from those that brought

the criminal code into being and the intention of the Legislature

consequently differed. There have been three codes; the first was

proclaimed in 1878 and applied originally only to Natal as it then

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.

 

 

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.

 

• 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.

3H-3I7-

 

* See

 

 

e.g.

Allott, ” The Authority of English Decisions in Colonial Courts “,

["9571 1 J-A.L. 27-30.

 

 

6

 

Allott, " The Judicial Ascertainment of Customary Law in British Africa ",

(1957) 20 M.L.R. 261.

 

 

92

Articles

[1958] J.A.L.

was,

 

 

i.e., the land between the Umzimkulu and Tugela rivers.

1

 

In 1887 its operation was extended to Zululand,

i.e.,

the land between

the Tugela river and the Portuguese border.

 

 

2

The second

code, contained in the schedule to Law 19 of 1891, replaced the

 

code of 1878 in Natal only and there were then two codes of Zulu

 

law in operation, one in Natal and the other in Zululand.

 

 

3

The

first code was repealed in 1929,

 

 

4

and in 1932 Proclamation No. 168

of that year substituted a new schedule to Law 19 of 1891 and

 

extended the operation of the new code to Zululand with the result

 

that there is now only one code, the third, in operation.

 

The first code was ” merely a compilation and exposition of

 

Native Law “.

 

 

5

The Board which framed it said in a preface that it

felt it wise ” to avoid all doubtful detail and to content itself with

 

stating what the Native Law [was] with reference to certain well

 

defined leading principles “. Mr. J. W. Shepstone, one of the

 

members of the Board, stated that their aim was ” simply to lay

 

down what Native Law was, simply to codify Native Law as it

 

existed “.* The code was made for the benefit of judicial officers

 

as the evidence before the commissions shows. “As I understand,”

 

said Mr. Justice

 

 

BEAUMONT,

” the Code was introduced because

there was a considerable variety in the practice of Magistrates in

 

different districts, and indeed, in the customs of the Natives themselves,

 

occupying different districts in Natal, and one of the principal

 

objects of the Code was to have some uniform system of civil

 

jurisdiction right throughout the country”.

 

 

7

“The object was,”

said Mr. J. W. Shepstone, ” in the first instance, to . . . draw out, as

 

we did, a skeleton form, as a guide to the magistrates or to the

 

administrators of Native l a w . . . .”

 

 

8

Later codes are more detailed,

incorporating the recommendations of later commissions,’ having

 

penal clauses not in the first code,

 

 

10

and regulating the position of

chiefs

 

 

11

but the character of the civil provisions has not changed.

The present code, though not the mere skeleton that the first was,

 

is general and does not have the detail to be found in criminal

 

codes. As it is cast in legislative form some of its provisions are

 

imperative but other provisions show how descriptive it is intended

 

to be. Thus section 100 (1) speaking of the sections of a kraal says:—

 

” . . . there may be four, though in actual practice, except in

 

the case of chiefs and others of rank, influence or wealth, there

 

are seldom more than two.”

 

 

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. ! Ugijima v. Mapumana, ign, N.H.C. 3 at 6. 8 Ibid,

at pp. 7-8.

«

 

 

Jele v. Sibiya,

1936, N.A.C. (T. & N.) 64.

*

 

 

Ugijima v. Mapumana,

1911, N.H.C. 3 at 7.

• 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.

 

 

7

 

1903 Comm. 18,082, Vol. 3, p. 16-17.

* 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.

 

• 1903 Comm. 17,811, Vol. 3, p. 2.

 

 

10 Ugijima v. Mapumana, ign, N.H.C. 3 at 7. 11

1903 Comm. 18, 669-74, Vol. 3, p. 55 and Chap. IV of Proc. No. 168 of 1932.

 

Vol. 2. No. 2

The Reception and Codification of Systems of Law

93

 

It seems clear that a legislature enacting the main general

principles of a system of law does not intend a clean break with the

past but rather a continuation of the system with greater clarity

in part. It is not to be expected, at a time when judicial officers

require legislative assistance in ascertaining a law with which they

have but lately come into contact, that the persons entrusted with

the duty of drawing up the code, able though they may be, should

be capable of producing a completely comprehensive statement.

Thus Mr. Justice

BOSHOFF

said: ” I do not think that it would be

possible for any Commission to reduce Native law to writing to a

 

sufficient extent to embrace the whole law . . .

 

 

.’n

Other authorities

are to the same effect

 

 

2

and in the present code provision is made

for the application of the law relating to:—

 

 

” . . . any relevant Native custom which is not opposed to the

principles of public policy or natural justice, whether or not such

custom is defined and dealt with under this Code; provided that

where such custom is so defined and dealt with the provisions

of this Code shall prevail.”

 

3

 

Authority to apply uncodified law therefore is clear and the

question remains: How should the codified law be interpreted ?

The answer is given in

Dhlamini & Ano. v. Kulusi,

1937, N.A.C.

(T. & N.) 147 at 152, where

 

 

STAFFORD,

M., says:—

” In dealing with the matter at issue we are bound by the

 

provisions of the Code. . . . At the same time the Court must not

 

forget that it is dealing with Native law and custom and that the

 

provisions of the Code must be interpreted in the light of such

 

law and custom.”

 

 

 

4

 

Consideration of the institution of exemption from Native law

gives further authority for the uninterrupted continuation of a

system of law irrespective of codification. Under the provisions

of Law No. 28 of 1865 (Natal) a Native might be exempted from

” the operation of Native law “. Though there were no codes in

operation when this provision was enacted any exemption granted

 

5

 

affects not only the unwritten law but also subsequent codifications’

and subsequently enacted statutory Native law.

 

7

 

Distinct from the questions of the nature of codes and their interpretation

is the question of their advisability. There is a criminal

code in the Transkei and there are penal sections in the present

Natal Code, but in the remainder of South Africa the criminal law

1

 

1903 Comm. 23,156, Vol. 3, p. 359.

 

2

1903 Comm. 14,622, Vol. 2, p. 1068; 17,275, Vol. 2, p. 1245. 8 Section 144 (3). 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.

 

 

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.

 

• 1903 Comm. 29,627-28, Vol. 3, p. 720 per Mr. Justice Beaumont.

R. v. Mpanza,

1946, A.D. 763; 74 (1957), S.A.L.J. at 318-9.

 

94

Articles

[1958] J.A.L.

is uncodified. There is a civil code in Natal but in all other provinces

 

the courts seek the law in the ordinary sources, in legislation,

 

precedent, particular custom, textbooks, etc.

 

 

1

Little need be said

about the advisability of criminal codes for it can be recognised

 

that a criminal code is a good method of meeting the need outlined

 

above, pp. 90-91. Codification is, however, not the only method

 

as experience outside the Transkei shows and against it is the consideration

 

that illiterate or near illiterate people are more likely

 

to learn from precedents in actual cases than from a statutory code.

 

As regards civil codes it may be argued, and it has been argued

 

for the Natal code, that a code ” gives Government a greater power

 

of introducing civilised ideas than if the Natives were left to themselves

 

“.

 

 

2

Experience has shown, however, that Natives in parts

of South Africa that are not subject to any code are no less civilised

 

than those in Natal. In similar vein is the argument that ” certain

 

abuses [can] be removed and improvements [can] be made “.

 

 

 

3

 

Undoubtedly a code may incorporate reformative measures but

it must be remembered that it is legislation as a source of law and

not codification in the sense of ” a compilation and exposition “

of a system of law* that possesses reformative power. A custom

which is opposed to the principles of public policy or natural justice

will not be found in the Natal Code but neither will it be enforced

where the Code does not apply because legislation distinct from the

Code (Section 11 (1) of Act No. 38 of 1927) in allowing the application

of Native law prohibits the recognition of such customs. An

improvement is made in the Code in section 65 which requires the

registration of customary unions but a similar improvement

requiring the registration of Native births and deaths throughout

South Africa is made without reference to the Code by the application

of Act No. 17 of 1923 to Natives in both urban areas

5

and

non-urban areas.

 

 

6

Legislation has been resorted to in most areas

of South Africa to regulate land tenure and although the law so

 

made is statutory Native law

 

 

7

it is important to note that in Natal

the regulations are to be found in Proclamation No. 123 of 1931

 

and that there is no mention of the subject in the Code. If it is felt

 

that questions of land tenure in other areas require regulation

 

 

 

8

 

South African experience points to the advisability of a proclamation

1

Kerr, The Native Common Law of Immovable Property in South Africa,

pp. 8-10.

 

* 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. Ill, p. 41 ff.

* 1903 Comm. 41, 910, Vol. 4, p. 631.

*

Ugijima v. Mapumana,

1911, N.H.C. 3 at 7, cited above p. 92.

 

6

 

See G.N. No. 1819 of 1923.

* See Proc. No. 131 of 1952.

 

‘ Kerr,

 

 

op. cit.

pp. 37-38.

 

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.

 

 

Vol. 2. No. 2

The Reception and Codification of Systems of Law

95

 

dealing with that subject alone in preference to a codification of

the whole system of law.

 

1

 

Legislation is not the only source which can be of service in the

development of a system of law. Precedent may assist as in

Tshabalala

 

v. Estate Tunzi & Ano.,

1950, N.A.C. (G) 46, where

MARSBERG,

 

P., says, at p. 48:—

” According to pure Native law no woman can own property

 

but the Native Appeal Court has held that a widow is entitled to

 

retain in her own right property earned by her after her husband’s

 

death; the Court was aware that this is in conflict with Native

 

Custom but when Native Custom is repugnant to justice and

 

equity it must give way.”

 

 

 

2

 

In Southern Rhodesia also the courts have been effective in

developing the law to meet modern circumstances. Thus it has been

held that a Native woman may in certain circumstances own

cattle—

Katsandi v. Chuma

(1937) 2 N.A.C. (S.R.) 6 at 7, and

 

Nyongwana

 

v. Mapiye

(1947) 3 N.A.C. (S.R.) 182 at 183-4—and

that a court may, on grounds of equity, refuse to recognise the

 

claims of the next in succession to guardianship over a minor heir—

 

Jamu

 

v. Jim & Ano. (1939) 2 N.A.C. (S.R.) 49. In

Jfamu’s case

appellant claimed the custody of three minor children of his

deceased younger brother, one child being the son and heir, aged

12 years. Plaintiff proposed to remove the children to Nyasaland

though neither the children nor their mother wished to go there.

An award of custody would probably result in the separation of the

mother from her children and the children would be removed from

their birthplace and from the people amongst whom they had

grown up.

SIMMONDS,

P., said at p. 52:—

” . . . in view of the decisions in the case of

 

 

Dayimano

v.

 

Kgaribaitse,

 

1931 S.R. 134-5, a nd in Jeremiah v. Salome

(1932),

1 N.A.C. (S.R.) 43-45, the answer to the question [whether in the

 

circumstances appellant should be granted custody of the minor

 

children] must be found not in whether by Native or other law

 

he was entitled to assume guardianship, but whether the appointment

 

of appellant in that capacity would tend to be beneficial to

 

the moral and material welfare of the minor children, and incidentally,

 

of the family.”

 

In certain cases particular customs may, if proved to the satisfaction

 

of the court, be admitted to vary the general custom which

 

is the common law.

 

8 Thus in Sikurikwikwi v. Ntwakumba

(1948)

L.N.A.C. (S) 23 at 24,

 

 

SLEIGH,

P., says:—

” If a variation of the [general] custom is suggested this Court

 

must be satisfied that this variation has been freely, frequendy and

 

 

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.

 

 

1 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]

 

1 J.A.L. at 158.

 

‘ 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.

 

96

Articles

[1958] J.A.L.

consistently observed over a long period, and is just and reasonable.”

 

Custom too may have the negative effect of abrogating old law

 

with the result that certain rules which once formed part of the law

 

are no longer enforceable. Thus the chief of the Amanikwe tribe

 

can no longer nominate his great wife

 

 

1

and the chief of the Vandau

tribe in Southern Rhodesia is no longer entitled to the skins of

 

leopards killed.

 

 

 

2

 

One of the main arguments against codification is that it places

an undue emphasis on one type of law only, neglecting the others,

and that the type or form chosen is not in the circumstances the

most suitable. A code must necessarily be in the form of legislation.

 

3

 

The law becomes fixed either in general outline only or in outline

and in detail as the legislature may determine. Although there are

general principles common to all tribes in South Africa, such as

the principle of primogeniture in succession, there is a danger that

in framing a general code the particular rules of an outstanding

tribe may be enforced on other tribes within the area governed by

the code and that the variations adopted by lesser tribes may be

swept away.

4

It may not be advisable to recognise every minor

variation but ” If you make any drastic change without consulting

 

[the Councillors and wise man of the tribes] it would simply be

 

inoperative ” because ” if the people do not choose to accept [the

 

civil law] they keep out of Court ” and the law cannot be enforced.

 

 

 

5

 

On the other hand, if the code is too detailed it tends to introduce

too great rigidity into what is otherwise a flexible system. The

Code of 1891, for example, provided that the value of a

lobolo

beast

should be £3 but in 1904 ” it [was] impossible to get a beast anywhere

 

for that price “.

 

 

6

There had been an epidemic of rinderpest

since the code was enacted and not only had the value laid down

 

lost all relation to fact but suitors found it impossible to find the

 

number required by the bride’s father which, according to the code

 

as it then read, had to be paid before celebration of the union. The

 

position was so bad that it became the practice for magistrates

 

” to insist upon the marriage taking place and allowing ‘ lobolo ‘

 

to stand over ” although they recognised that ” It is very wrong

 

for us to do so, because they are deprived of the right to sue for the

 

balance of the ‘ lobolo \ “

 

 

7

It might be argued that by amendment

a code can be kept up to date, but experience shows that changes

 

which have to be introduced by the legislative process are long

 

delayed. The rinderpest epidemic took place about 1897-8 but

 

no change had been introduced when the 1903 Commission took

 

evidence; the present code, in section 86, sets the value at £5,

 

 

1

Poto

v. Costa, 1931, N.A.C. (C. & O.) 38. 8 Zaba v. Tolongo, 1944, N.A.C. (S.R.) 52. 3 See p. 89, n. 2 above. 4 1903 Comm. 18,082, Vol. 3, p. 16-17 per

Mr. Justice Beaumont, quoted above,

p. 92.

 

6

1903 Comm. 20,486-7, Vol. 3, p. 192, per

Sir Henry Elliot, ex-Chief Magistrate,

Transkei.

 

• 1903 Comm. 33,686, Vol. 3, p. 949.

 

 

7

1903 Comm. 32,453, Vol. 3, p. 877.

Vol. 2. No. 2

 

 

The Reception and Codification of Systems of Law

97

 

which is no longer a correct reflection of the actual value. The

rule in Native common law is that the ” average value of cattle

of the type usually paid as dowry ” at the time in question is to be

taken,

1

and its operation in areas where there is no code demonstrates

the greater flexibility and equity of the uncodified law.

 

The common law rule might be thought to be cumbersome but in

 

practice it is not so, because plaintiff pleads the average value and

 

if defendant in his plea does not deny it the case proceeds without

 

any evidence on the point.

 

The position with regard to errors and omissions further illustrates

 

the disadvantages of codification in the circumstances outlined

 

above. Errors appearing in legislation are more serious than those

 

occurring in a source which is not binding but persuasive only such

 

as a textbook. In a code framed to meet the need of ” a country

 

whose laws were either not yet fully ascertained, or still undecided

 

upon, when the administration of the Government of it had to be

 

undertaken “

 

 

2

errors are bound to occur and such proved to be the

case with the Natal Code. Though the framers of the first code

 

were ” an able body of men “

 

 

3

the code erred in relieving the father

of his duty in Native common law to return the

 

 

ikazi

in case of the

wife’s misconduct.

 

 

4

Asked about the second code, Mr. C. J. R.

Saunders, Chief Magistrate and Civil Commissioner of Zululand,

 

said that ” There are many details in which it is incorrect.”

 

 

 

5

 

Equally serious are omissions. As pointed out above, at p. 93

codes such as those under consideration are not, and cannot be

expected to be, complete expositions of the legal system. Faced

with a matter falling outside the code the Court is immediately

in a difficulty: was it the intention of the Legislature that the rule

relating to the question in issue should not be recognised or is the

case a proper one for the application of uncodified law ? Two

cases may be given as illustrations. The first case is

Mgidhlana

v.

 

Munyu,

 

1912 (1) N.H.C. 43. Munyu’s wife, daughter of Mgidhlana,

died a few months after he had entered into a customary union

 

with her. Munyu sued Mgidhlana for the return of the twenty

 

head of cattle he had paid. The first code, that of 1878, was

 

applicable as the case originated in Zululand and section 15

 

thereof read:—

 

” Payments in respect of a marriage are not after consummation

 

thereof recoverable in whole or in part from the father or his

 

estate.”

 

This may be accepted as a correct reflection of the general rule

 

but in Native common law special rules apply to the case where

 

a wife dies without issue shortly after entering into a customary

 

1

Majongile v. Mpikeleli (1950) 1 N.A.C. (S.) 260, per

Sleigh, P.

• 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] 1 J.A.L. 82, at 84, 86.

3 1883 Comm. 448, p. 25, per

Sir Theophilus Shepstone.

* 1883 Comm., para. 69, p. 30.

 

 

5

1903 Comm. 30, 473, Vol. 3, p. 770.

 

98

Articles

[1958] J.A.L.

union

 

 

1

and section 181 of the Code of 1891 which was not binding

in Zululand allowed the recovery of a portion of the cattle not

 

exceeding three-fourths in the event of a wife dying without issue

 

within one year of her entry into a customary union. Relying upon

 

this section the magistrate awarded Munyu fifteen head. On appeal

 

to a single judge,

 

 

JACKSON,

J., upheld the magistrate’s judgment

and said, at p. 45-6:—

 

” In view of this expressed anxiety [on the part of the Board

 

which framed the code] ‘ to avoid all doubtful detail and to content

 

itself with stating what the Native Law is with reference to certain

 

well-defined leading principles’ I think the Court is justified in

 

placing a liberal construction on points not specifically laid down.

 

Sec. 15 of the 1878 Code lays down a general principle which may

 

well be held applicable in the case of deserting wives, or to other

 

contingencies of domestic derangement, but is silent on any

 

procedure or right which may accrue in the case of a wife dying

 

shortly after marriage, and does not expressly prohibit an action

 

at law in a definite case such as the one now under review. The

 

Code of 1891, which was framed thirteen years later, and which

 

equally aims at a clear exposition of Native Law, may although not

 

in force in Zululand be referred to as illuminating obscure points.

 

Section 181 lays down that in the event of a wife dying without issue

 

within one year of her marriage, the husband is entitled to recover

 

a portion of the lobolo not exceeding three-fourths of its original

 

number or value. I have referred to this section not only for the

 

purpose of illustration, but also to show the complete antagonism

 

which would obtain in a matter of purely Native Law between

 

Natives who reside in the same Province, who derive the law from

 

the same source, and who are under the jurisdiction of the same

 

Court of Justice, if it were held that Section 15 of the old Code

 

precluded a right of action in Zululand, while Section 181 of the

 

Natal Code expressly gave that right in Natal.”

 

Notwithstanding this forceful reasoning, on a further appeal to

 

the full bench,

 

 

BOSHOFF, J.P., with whom CHADWICK and

BENNETT,

 

J J . J concurred, said, at p. 47:—

” . . . having regard to the 15th section of the Code of 1878 . . .

and to the imperative terms of that section, we are compelled to

set aside the decision of the Circuit Court Judge and also that of

the Magistrate.”

The second case is

Mcunu v. Mcunu,

1918, A.D. 323. Respondent

alleged that he was heir to the

 

 

ikohlo

section of his father’s kraal and

the Court held that such a section must be recognised.

 

 

INNES,

C. J.,

said at p. 328:—

 

” Strange to say, the Code of 1878 (differing in that respect from

 

the Natal Code of i8gi) makes no mention of an Ikohlo section

 

or an Ikohlo heir. It does, however, recognise the left hand wife

 

and the possibility of subordinate houses on that side. And I

 

cannot think that the framers intended to impair in any way the

 

right well recognised by Native custom of a kraal head to establish

 

 

1

Gwente v. Smayile (1904), L.N.A.C. 71; Qabuka v. Dlisondabambi,

1937, N.A.C.

(C. & O.) 187.

 

Vol. 2. No. 2

 

 

The Reception and Codification cf Systems of Law

99

an Ikohlo section possessing the special characteristics and enjoying

 

the status accorded to it by Native usage.”

 

 

 

1

 

From the reasoning in this case and from the fact that the present

code which applies in Zululand as well as in Natal embodies in

section 94 the principle contained in section 181 of the Code of

1891,

2 it seems clear that the judgment of JACKSON, J., in

Mgidklana’s

case,

 

 

 

1912 (1) N.H.C. 43, was correct. It is equally clear from the

judgment of the full bench in that case that it was the imperative

 

terms of the Code which misled it. The case therefore shows clearly

 

that codification which casts the law into legislative form is not a

 

good method of meeting the need which the code was designed

 

to meet.

 

If codification is not resorted to some other method must be

 

adopted to guide judicial officers and to ensure some uniformity

 

in the administration of justice. In the Transkei and Ciskei where

 

the need was as great as in Natal a textbook entitled ” A Compendium

 

of Kafir Laws and Customs ” was compiled by direction of

 

Col. Maclean, C.B., Chief Commissioner in British KafFraria, and

 

was published in 1858. The outstanding advantage of a textbook

 

is that it is persuasive authority only and not binding. It is therefore

 

well suited to afford guidance when knowledge of the system of law

 

with which it deals is necessarily incomplete. The textbook may

 

serve as an introduction to an understanding of the law while a

 

body of case-law is being built up. When there is litigation the

 

Court, with the assistance of assessors, may test any proposition

 

contained in the textbook. If it is correct, by adopting it the Court

 

gives it added authority by the operation of the doctrine of precedent.

 

If it is incorrect the Court is free to say so.

 

Many high authorities, including some with experience of codes,

 

have preferred the Ciskeian and Transkeian method to that

 

adopted in Natal. Capt. Blyth, Chief Magistrate, Transkei, and

 

the Hon. Charles Brownlee, Chief Magistrate, Griqualand East,

 

both considered that there was no necessity for a code.

 

 

3

Sir

Theophilus Shepstone,

 

 

4

asked if he favoured ” a more rigid codification

of the law or . . . giving a wider discretion to the magistrates

 

“, replied:—

 

” I should like to see the law explained, so that it should be a

 

textbook for the magistrates. If they were provided with such an

 

explanatory book they would not need any wider discretion and

 

greater uniformity would be the consequence.”

 

 

 

8

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.

 

 

1

The figure is now one-half instead of three-quarters.

• 1883 Comm. App. C, p. 45, A38; App. C, p. 61, A38.

 

 

4

See p. 94 footnote •.

 

5

 

1883 Comm. 410, p. 23, Cf. 1903, Comm. 18,721, Vol. 3, p. 58.

 

ioo

 

Articles [1958]

J.A.L.

Sir Marshal Clarke, K.C.M.G., Resident Commissioner,

Rhodesia, formerly a magistrate in Zululand, Special Commissioner

and political officer in the Transvaal, magistrate in Basutoland,

Commissioner of Police in the Cape Colony, Resident Commissioner

of Basutoland and of Zululand, said:—

” Codifying criminal law is one thing and codifying civil Native

law is another thing, and I think that experience has shown us

that . . . the codifying of civil law is stereotyping a state of law and

custom which is naturally in a state of transition, and I think it

would be very unwise to do so.”

 

1

 

The 1903 Commission itself after considering all the points of

view put before it reported

8

that:—

” The weight of evidence adduced before the Commission is

 

against the enactment of a statutory code based on Native Law.

 

It has been suggested, and with this the Commission agrees, that a

 

textbook or handbook, for reference only, descriptive of Native law

 

and custom would be useful as a help towards uniformity in

 

administration.”

 

Southern African experience then shows that with a textbook

 

or textbooks of persuasive authority, with legislation where necessary

 

for reform and regulation, with the beneficial work of the courts

 

and with particular custom allowing changes to be made directly

 

by the people themselves, a body of law rich in material and

 

capable of development may be built up.

 

 

1

1903 Comm. 34,980, Vol. 4,

p. 75.

• In paragraph 232, Vol. 1, p. 44.

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