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  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.
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
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,
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
 A.C. 379, P.C., at 392.
Vol. 2. No. 2
The Reception and Codification of Systems of Law
The statutes quoted have been interpreted by the Courts of their
respective territories and the interpretations agree. In
v. Vickers-Armstrong Ltd.,
1956 (2) S.A. 492 (F.C.),
sought an order attaching a debt due from appellant
to respondent, a
peregrinus, to found jurisdiction.
F. J., said, at p. 492 :—
” It is settled Roman-Dutch law that the Court, at the instance
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
to attach the goods of a
in order to found jurisdiction
where no other ground for exercising jurisdiction existed. . . . Then
Halse v. Warwick, 1931 C.P.D. 333, it was held that
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
Halse v. Warwick . . .
unless it can be said that the principle
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
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
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
was a crime. There were decisions in the Cape commencing
(1883), 1 B.A.C. 290, stating that it was
not a crime and there was a decision in the Orange Free State
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.
(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
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
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.
1950, A.C. 379.
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
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
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
(1904), 21 S.C. 323 ? Certainly not ! Nor if
the decision here had been in terms of
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
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
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
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
. . .
really means valuable consideration…”
In the Transvaal, however, in
Rood v. Wallach,
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
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 ‘.”
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.
Vol. 2. No. 2
The Reception and Codification of Systems of Law
The opinion in
” («) 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;
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
(j) The characteristics of the law that was introduced here were
described by Lord Tomlin in the case of
Pearl Assurance Co.
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.”
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
1957 (3) S.A. 727 (S.R.), MORTON,
J., after finding
that the case before the Court was on all fours with
v. The Master, 1917 A.D. 302,2
said at, pp. 732-3:—
next submits that this Court is now free to differ
from the decision in
case because the Appellate Division is
The Appellate Division now stands at the head of the South African hierarchy
of courts, appeals to the Privy Council having been abolished.
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
been the same in the Cape in 1891:
cf. Ngqobela v. Sihele
(1893), 10 S.C. 346 and
(1887), 5 S.C. 108.
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
Mr. O’Hagan cites John Bell & Co. Ltd. v. Esselen,
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
 A.C. 515, P.C., at 519, quoted by Allott,
There is a further point of interest in connection with
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
v. Maxim Nordenfelt Guns and Ammunition Co.,
A.C. 535, H.L., at 553, Lord
” 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
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
—what was sought before
Using this term to mean the non-statutory law of whatever system is in
Vol. 2. No. 2
The Reception and Codification of Systems of Law
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.
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,
in the High Commissioner’s proclamation
No. 36 of 1909 providing for the reception of Roman-Dutch law in
the Bechuanaland Protectorate,
and in section 13 of the High
Court Act, Cap. 8 (Southern Rhodesia).
No further comment
would be necessary were it not for certain
obiter dicta in Nkambula
 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.”
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
It is possible for reception to be decreed when there is no change in the
legislative authority having power to make statutory law,
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.
Bereng Griffith Lerotholi v. The King,
 A.C. 11, P.C, at ao.
* See Lee,
An Introduction to Roman-Dutch Law,
5th Ed., p. 12.
Quoted above, p. 82.
• Quoted at p. 392.
in force in the several provinces of the Union.”
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
for departing from its decision in
Tumahole Bereng v.
 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
adduced which were not under consideration when
 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
The Board arrived at its decision by
following the conclusion reached in
Bereng Griffith Lerotholi v.
 A.G. 11, P.C. It said, at p. 397:—
” I n
 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
1948 (4) S.A. 399 (A.D.) at 4 0 5 . . . . Their Lordships
agree with the conclusion reached in
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
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
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.
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
 A.C. 11, P.C. at
pp. 21, 22, referred to
as persuasive authority on
” the corresponding section in the Criminal Procedure and Evidence
Act, 1917, of the Union of South Africa ” and it followed
in Nkambula’s case,
 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
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
v. The King,
 A.C. 11, P.C.
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-
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
10th Ed., p. 167) that ” . . . the
process which, since the days of Bentham, has been known as codification [is] the
reduction of the whole
so far as practicable, to the form of enacted
” 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
cf. Wallace-Johnson v .R.,
 1 All E.R. 241;  A.G.
231, P.C., at 244, cited by Allott,
p. 28. On the other hand,
Maine has pointed out that a code is basically the proclamation
of existing law in statutory form
and many questions concerning
in Roman Law would remain unsolved if one were
confined to what is to be found in the XII Tables
. 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 . . . .”
In the administration of the criminal law the legal proceedings
are ” of a special kind “.* in which the state is ” given by law a
to seek the punishment of the offender. It does not
follow that the State
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
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
a direction to suggest ” a code of Civil and Criminal Law ” and the
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,”
2O M. L.R. p. 246. Gluckman,
The Judicial Process among the Barotse of
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.
footnote ‘, p. 95.
Kenny’s Outlines of Criminal Law,
16th Ed. by J. W. Cecil Turner, M.C., M.A.,
LL.B., p. 4.
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.
The Cape Government Commission on Native Laws and Customs 1883 (G. 4
Vol. 2. No. 2
The Reception and Codification of Systems of Law
Commission, while it felt unable to suggest a civil code,
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.”
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
refer to criminal codes and not to civil codes
which do not exist outside Natal.
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
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.
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
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”
74 (1957), S.A.L.J.
Allott, ” The Authority of English Decisions in Colonial Courts “,
[“9571 1 J-A.L. 27-30.
Allott, ” The Judicial Ascertainment of Customary Law in British Africa “,
(1957) 20 M.L.R. 261.
i.e., the land between the Umzimkulu and Tugela rivers.
In 1887 its operation was extended to Zululand,
the land between
the Tugela river and the Portuguese border.
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.
first code was repealed in 1929,
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 “.
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
” 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”.
“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 . . . .”
Later codes are more detailed,
incorporating the recommendations of later commissions,’ having
penal clauses not in the first code,
and regulating the position of
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.”
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.
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
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
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 . . .
are to the same effect
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.”
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,
(T. & N.) 147 at 152, where
” 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.”
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
affects not only the unwritten law but also subsequent codifications’
and subsequently enacted statutory Native law.
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
1903 Comm. 23,156, Vol. 3, p. 359.
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.
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,
• 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.
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.
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
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 “.
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
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
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
South African experience points to the advisability of a proclamation
Kerr, The Native Common Law of Immovable Property in South Africa,
* 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:
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.
See G.N. No. 1819 of 1923.
* See Proc. No. 131 of 1952.
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
Vol. 2. No. 2
The Reception and Codification of Systems of Law
dealing with that subject alone in preference to a codification of
the whole system of law.
Legislation is not the only source which can be of service in the
development of a system of law. Precedent may assist as in
v. Estate Tunzi & Ano.,
1950, N.A.C. (G) 46, where
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.”
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
Katsandi v. Chuma
(1937) 2 N.A.C. (S.R.) 6 at 7, and
(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—
v. Jim & Ano. (1939) 2 N.A.C. (S.R.) 49. In
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
P., said at p. 52:—
” . . . in view of the decisions in the case of
1931 S.R. 134-5, a nd in Jeremiah v. Salome
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
L.N.A.C. (S) 23 at 24,
” If a variation of the [general] custom is suggested this Court
must be satisfied that this variation has been freely, frequendy and
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” 
1 J.A.L. at 158.
‘ As to the distinction between general and particular customs see Allen,
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,
2nd Ed., p. 146.
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
and the chief of the Vandau
tribe in Southern Rhodesia is no longer entitled to the skins of
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.
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
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.
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
should be £3 but in 1904 ” it [was] impossible to get a beast anywhere
for that price “.
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 \ “
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,
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,
1903 Comm. 20,486-7, Vol. 3, p. 192, per
Sir Henry Elliot, ex-Chief Magistrate,
• 1903 Comm. 33,686, Vol. 3, p. 949.
1903 Comm. 32,453, Vol. 3, p. 877.
Vol. 2. No. 2
The Reception and Codification of Systems of Law
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
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
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 “
the code erred in relieving the father
of his duty in Native common law to return the
in case of the
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.”
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
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
” Payments in respect of a marriage are not after consummation
thereof recoverable in whole or in part from the father or his
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
Majongile v. Mpikeleli (1950) 1 N.A.C. (S.) 260, per
• 1883 Comm. 377, p. 20,
per Sir TheophUus Shepstone. Much Native
in Africa is still not fully ascertained: Roberts-Wray, ” The Need for Study of
Native Law “,  1 J.A.L. 82, at 84, 86.
3 1883 Comm. 448, p. 25, per
Sir Theophilus Shepstone.
* 1883 Comm., para. 69, p. 30.
1903 Comm. 30, 473, Vol. 3, p. 770.
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,
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
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 second case is
Mcunu v. Mcunu,
1918, A.D. 323. Respondent
alleged that he was heir to the
section of his father’s kraal and
the Court held that such a section must be recognised.
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
Gwente v. Smayile (1904), L.N.A.C. 71; Qabuka v. Dlisondabambi,
(C. & O.) 187.
Vol. 2. No. 2
The Reception and Codification cf Systems of Law
an Ikohlo section possessing the special characteristics and enjoying
the status accorded to it by Native usage.”
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
2 it seems clear that the judgment of JACKSON, J., in
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
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.
asked if he favoured ” a more rigid codification
of the law or . . . giving a wider discretion to the magistrates
” 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.”
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
section or those
relating to the position of the
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.
The figure is now one-half instead of three-quarters.
• 1883 Comm. App. C, p. 45, A38; App. C, p. 61, A38.
See p. 94 footnote •.
1883 Comm. 410, p. 23, Cf. 1903, Comm. 18,721, Vol. 3, p. 58.
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.”
The 1903 Commission itself after considering all the points of
view put before it reported
” 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
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.
1903 Comm. 34,980, Vol. 4,
• In paragraph 232, Vol. 1, p. 44.