Since 1st July, 1955, the Federal Supreme Court has been the Court of Appeal. 493:— ” Although in the Cape cases the actual decision relating to the incola been given in 1891. 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. 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. 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said date be the Common law of the Protectorate . 494) do not bind the Federal Supreme Court, and continued at p.It was repealed, however, in so far as it affected the Transvaal, in 1917 by the Union Criminal Procedure and Evidence Act of that year which was a measure ” To consolidate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 legislative assembly when Roman-Dutch law was received and still has none. 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. 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. 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. * points of view may be reconciled if the circumstances in which the different types of codes are enacted are borne in mind.It is also possible for reception to be decreed when the powers of the local legislative body are restricted. Both propositions are, however, very far-reaching and neither was fully canvassed before the Board. 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. .” 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.” 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.The problems of reception and codification discussed by Dr. The South West African case is ” In coming to a conclusion as to the true meaning of Proc. Allott in his article on ” The Authority of English Decisions in Colonial Courts ” in  1 J. 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 term ” Kafir ” has now fallen into disuse in legal terminology. ” Bantu ” is sometimes advocated and so is ” African “, but as the 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. 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. Justice 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”. 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. 28 of 1865 (Natal) a Native might be exempted from ” the operation of Native law “.
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. 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 section 200) it applies to all races alike.
The first code was ” merely a compilation and exposition of Native Law “. 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. 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. Though there were no codes in operation when this provision was enacted any exemption granted Distinct from the questions of the nature of codes and their interpretation is the question of their advisability.
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 “. As it is cast in legislative form some of its provisions are imperative but other provisions show how descriptive it is intended to be. 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 • 1903 Comm., 18,727, Vol. 7 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. 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.” ” In dealing with the matter at issue we are bound by the provisions of the Code. 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 section 31 of Act No.
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. Leading up to this finding the Court reviewed the history of the law. This proclamation was not quoted by the Board because the relevant provisions were re-enacted by another in 1907, No. On the one hand it may be argued that a code is an entirely new beginning, the previous law having been super- 1 Criminal Procedure and Evidence Proclamation dated 23rd December, 1938, in its 328th Section, read with the Fourth Schedule, repealed Transvaal Proclamation No.