The Reception and Codification of Systems of Law in Southern Africa¶
A. J. Kerr (1958). The Reception and Codification of Systems of Law in Southern Africa. Journal of African Law, Vol. 2, No. 2.
| Type | journal article |
| Scope | Wider apartheid literature |
| Method | theoretical or conceptual |
| Period studied | 1858–1957 |
| Regions | Southern Rhodesia, South West Africa, Swaziland, Basutoland, Bechuanaland Protectorate, Natal and Zululand, Transkei and Ciskei, Cape Colony, Union of South Africa |
| Themes | origins segregation, politics ideology elections |
| Citation key | kerr1958 |
Argument¶
Kerr examines how Roman-Dutch law was received into Southern Rhodesia, South West Africa and the High Commission territories, and how 'Native law' was codified in the Transkei and Natal. He argues that reception marks a new development without breaking the continuity of the common law. Statute law introduced after reception, he argues, binds only the receiving territory's own legislature. Criminal codes suit a new sovereign informing its subjects, but civil codes of Native law (Natal) freeze a living customary system and produce errors, omissions and rigidity. He concludes that persuasive textbooks, targeted legislation, judicial development and particular custom are preferable to codification. The argument runs through case law, statutes and commission evidence.
Evidence and method¶
Statutes and proclamations, South African, Rhodesian and Privy Council case reports, and the Natal Codes of 1878, 1891 and 1932. Also the 1883 Cape Native Laws and Customs Commission and the 1903-5 South African Native Affairs Commission evidence, plus legal textbooks and jurisprudence.
Place in the debates¶
- Is a statutory code of Native civil law desirable, or should it be left uncodified and guided by persuasive textbooks?. Against codification of civil law: codes stereotype a system in transition and introduce errors, omissions and rigidity. Criminal codes are acceptable.
- Do consolidating statutes enacted in the parent territory bind a territory that has received its common and statute law?. Takes the orthodox view that only the receiving territory's legislature can introduce new statutes. Treats the Privy Council's contrary remarks in Nkambula as obiter dicta not to be followed.
Findings¶
-
Roman-Dutch law reached Southern Rhodesia and South West Africa from the Cape. (p. 1)
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.
-
Reception does not interrupt the continuity of the common law. (p. 5)
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
-
Orthodox position that only the receiving territory's legislature introduces new statutes. (p. 6)
The orthodox view is that only the legislative authority or authorities of the receiving country has or have power to introduce new statutes.
-
Kerr rejects the Privy Council's suggestion in Nkambula that later Union Acts bound Swaziland. (p. 8)
It is submitted that the obiter dicta in Mkambula's case are not to be followed;
-
A new colonial sovereign has a motive to codify criminal law in order to inform the governed. (p. 9)
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
-
The 1883 Commission, quoted by Kerr, found magistrates beyond the Kei applying inconsistent law and wanting a criminal code. (p. 10)
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.
-
Codification of customary law was meant to continue the system, not replace it. (p. 12)
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.
-
Codified values became rigid and out of line with economic reality, as with the lobolo price after rinderpest. (p. 15)
The Code of 1891, for example, provided that the value of a lobolo beast should be £3 but in 1904
-
The Mgidhlana case shows the imperative form of the code misleading the court. (p. 18)
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.
-
The 1903 Commission advised against a statutory civil code of Native law. (p. 19)
The weight of evidence adduced before the Commission is against the enactment of a statutory code based on Native Law.
-
Kerr's conclusion favours a pluralist, non-codified approach to developing customary law. (p. 19)
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
Evidence ledger¶
Sources used¶
| Source | Kind | Period | How used |
|---|---|---|---|
| South African Native Affairs Commission 1903-5, Report, Minutes of Evidence and Appendices (5 vols.) | commission or official report | 1903-1905 | Evidence from judges and magistrates on the purposes of the Natal Code, its errors, rigidity (lobolo values) and the weight of opinion against a civil code. |
| Natal Code of Native Law (first code 1878; Law 19 of 1891; Proc. 168 of 1932) | legislation gazette | 1878-1932 | Analysed as a codified civil Native law, e.g. its provisions on lobolo values, kraal sections, and recovery of marriage payments. |
| Cape Act No. 24 of 1886 (Criminal Code for the Transkeian Territories) | legislation gazette | 1886 | Example of a successfully enacted criminal code for African territories. |
| Reception statutes and proclamations (Southern Rhodesia High Court Act Cap. 8; SWA Proc. 21 of 1919; Basutoland 1884; Bechuanaland Proc. 36 of 1909; Swaziland Proc. 4 of 1907) | legislation gazette | 1884-1919 | Texts establishing the dates and terms on which Roman-Dutch law was received from the Cape. |
| Union Criminal Procedure and Evidence Act 1917 (and Act 56 of 1955); Swaziland Criminal Procedure and Evidence Proclamation 1938 | legislation gazette | 1917-1955 | Used to analyse whether a later consolidating Union Act binds a territory that received earlier statute law. |
| Native Administration Act No. 38 of 1927, Law No. 28 of 1865 (Natal), Act 17 of 1923, Proc. 123 of 1931, Proc. 131 of 1952 | legislation gazette | 1865-1952 | Shows legislation outside the Code regulating exemption, repugnancy, registration of births and deaths, and land tenure. |
| Law reports of South African, Rhodesian, South West African and Privy Council cases (e.g. Nkambula v. The King; R. v. Goseb; Acting Master v. Estate Mehta; Mgidhlana v. Munyu; Mcunu v. Mcunu) | other | 1883-1957 | Judicial decisions are the principal material for the argument on reception, continuity of common law and the problems of interpreting codes. |
| Native Appeal Court and Native High Court decisions (Natal, Transvaal, Cape, Southern Rhodesia) | other | 1904-1950 | Cited to show courts developing customary law through precedent, equity, and interpretation of the Code. |
| A Compendium of Kafir Laws and Customs (1858) | other | 1858 | Presented as the textbook alternative to codification in the Cape. |
Inference¶
Quantification: None.
Doctrinal and comparative legal analysis: reads statutes, case law and testimony before commissions (1883, 1903-5) to argue by reasoning from precedent and examples. Evidence is selectively quoted rather than systematically sampled.
Key claims¶
| Claim | Basis | Strength |
|---|---|---|
| Reception of a legal system causes no break in the continuity of common law, and courts seek the true interpretation of that law. (p. 86) | Judgments in Central African Airways v. Vickers-Armstrong, R. v. Goseb and Estate Mehta, read with reception statutes. | Partial data |
| The Privy Council's obiter dicta in Nkambula, that a later Union consolidating Act bound Swaziland, should not be followed; the orthodox view is that only the receiving territory's legislature introduces new statutes. (p. 89) | Analysis of Nkambula, Lerotholi, Proc. 4 of 1907, and the 1938 Swaziland proclamation. | Partial data |
| Criminal codes for African territories suit the need to inform subjects of the new sovereign's law, whereas civil Native law codes serve the different purpose of guiding judicial officers. (p. 90) | 1883 Commission report paragraphs 35 and 38 and Transkeian Criminal Code, 1886. | Partial data |
| The Natal Code of Native Law was a compilation of existing law, not a clean break, and uncodified custom continues to apply alongside it. (p. 93) | Preface of the first code, testimony before the 1903 Commission, and section 144(3) of the present code. | Partial data |
| Codification of civil Native law introduces rigidity, errors and omissions, illustrated by the fixed lobolo value after the rinderpest epidemic and the Mgidhlana v. Munyu case. (p. 96) | 1903 Commission evidence on lobolo prices and magistrates' practice, plus Mgidhlana and Mcunu judgments. | Illustrative or anecdotal |
| Codification is not needed for reform: legislation, precedent and persuasive textbooks achieve reform and uniformity better, as many officials and the 1903 Commission concluded. (p. 100) | Testimony of Shepstone, Blyth, Brownlee, Clarke, and the 1903 Commission report para. 232; Tshabalala and Southern Rhodesian cases. | Illustrative or anecdotal |
| Natives in areas without a code are no less 'civilised' than those in Natal, so a code is not needed to introduce reform. (p. 94) | Asserted from 'experience' without cited evidence. | Asserted |
The author's caveats¶
The author notes that statutory reception dates are not necessarily the first day a system had force, and that sources may be inaccessible to readers (hence extensive quotation). He also notes that some points were not fully argued before the Privy Council. He acknowledges confusion in the authorities on the ikohlo section and that the Criminal Code's translation is unknown.
Gaps in the evidence¶
The claims about the effects of codification on administration are drawn from selected testimony and a few cases rather than a systematic sample of magistrates' or Native courts' decisions. Court records from Natal and the Transkei before and after codification could test uniformity and error rates; some survive in archives. Data on actual litigant behaviour under codified versus uncodified regimes is absent.
Replicability: Data described but not public.