CHAPTER IX. The System of Law. The Administration of Law. Land, Land Survey. (1) Law. There is no class legislation within the borders of the Cape Colony, and, therefore, both the European and native populations enjoy equality in the eye of the law. Their legal status and the condition of their political privileges are the same. The Cape Colony, having been subjected to more than one form of government in past years, is somewhat overloaded with law. As in Canada the custom of Paris has confused the law system of the Dominion, so at the Cape the law system inherited from the Dutch has made the colonial law difficult and complex. When, in 1652, the Cape became a possession of the Dutch East India Company, the law of Holland became the Colonial law, except where it was modified (1) by local ordinances, (2) by the Statutes of India. The laws of Holland, it must be always remembered, founded on the doctrines of Justinian and the precedents of Roman law, have been, nevertheless, much modified by their national customs. Questions of constitutional right and liberty, of community of property following upon marriage, intestate succession, and succession by ante-nuptial contract, and others, must be referred to the Batavian customs; but rights of dominion, servitude and pledge, contracts, and testaments, must be referred to the Roman law. The combination is known as the Roman-Dutch Law, and it still prevails in the Colony. When the Colony was ceded to England, in 1815, no great changes in the form and administration of law took place. Improvements and reforms have been made, but substantially the common law of the country remains as before-that of Rome as adopted in the Netherlands. (2) Amongst others, there are two large classes of legal questions upon which the colonial usage differs from that of England. (1) Those relating to community of property after marriage. (2) Those relating to inheritance. Judge Watermeyer has stated in a few words the colonial law on the first. 'Marriage at the Cape of Good Hope, where the future spouses have not declared otherwise by ante-nuptial contract, effects a joint-ownership of all property, moveable and immoveable, of the husband and wife; whether in possession at the time of marriage, or subsequently acquired during its continuance. The property thus owned by the common estate is liable to the debts of the parties existing at the time of the marriage-to the debts contracted by the husband during the community, or by the wife, during the community, with the husband's consent-and to debts contracted for the necessary charges of the marriage. . . . The dissolution of the community takes place by death, divorce a vinculo, or separation a mensâ et thoro. In certain cases of divorce, the courts possess power to decree forfeiture of the share possessed by the guilty spouse, either fully or partially.' With regard to inheritance after the dissolution of this nuptial partnership,' the property belongs equally to the survivor and to the heirs of the deceased, in equal moieties, after a due adjustment of all debts and the payment of all charges, fitly borne by the community. If, therefore, a husband dies, and the whole property, both of himself and his wife, amounts collectively to £40,000, half of this, i. e. £20,000, goes to his widow. The other half is divided equally amongst the children. At the death of the widow, her money is then taken and divided equally. There is, therefore, no law of entail in South Africa. As a consecuence, properties have, in certain localities, become divided up, and the occupiers descended from the condition of being owners of lordly spaces to that of small peasant proprietors. It is not an uncommon thing to find many Dutch families of the same name living in separate river-valleys and constituting small clans in themselves. Early marriages and large families are the rule rather than the exception in South Africa; and, as the average size of a South African farm for grazing and pastoral purposes is 6,000 acres, a large extent of land has always been demanded by the young generations, and this demand may partially explain the inveterate habit of trekking in the country. (3) Administration of Law. Under the old Dutch régime, before the Colony had extended far beyond. the boundaries of the Cape Peninsula, the administration of justice was of a comparatively simple character. In 1685 the High Court of Justice, as reconstituted by the Lord of Mydrecht, an official sent out by the Chamber of XVII, consisted of (1) the Governor, as he was then called the Commander, (2) the Secunde, (3) the captain, (4) the lieutenant, (5) the chief salesman, (6) the garrison book-keeper, (7) the secretary of the council of policy, and (8) and (9) the two oldest burgher councillors. This was the Council of Policy over again, with the addition of the burgher councillors to give a slight popular element to it. The Fiscal appeared as public prosecutor, and so unpopular was this official, that he has be queathed his name to the butcher-bird or 'laniarius' of the Colony. This court remained as thus constituted for one hundred years1. At the same time the Lord of Mydrecht reconstituted the same local court of the Heemraad at the new settlement of Stellenbosch, which had been constituted in 1682. This Heemraad or Home council consisted of four of the leading inhabitants, holding office for two years, but without receiving any salaries for their services. Their powers were slightly undefined at first, but their decisions appear to have been treated with respect. Two members retired annually, when the Court itself sent a list of four new names to the Council of Policy from which to select. The Lord of Mydrecht introduced an innovation by setting over these local magnates an official called a Landdrost, who was to have supervision of the Company's farms and out-stations, and to look after the Company's interests. He was to have two Europeans to assist him and to be provided with a horse and a slave. 'He was to receive £2 a month as salary and 16s. as maintenance allowance. In the Court of Landdrost and Heemraad civil cases under £2 18. 8d. were to be decided finally, but, where amounts between that sum and £10 were in question, there was to be a right of appeal to the High Court of Justice. No case could be heard where the amount in dispute exceeded £10. The Court of Landdrost and Heemraad was to hold monthly sessions for the trial of civil cases. It was to preserve order, and was also to act as a district council, in which capacity it was to see to the repair of roads, the distribution of water, the destruction of noxious animals, and various other matters. It was to raise a revenue by erecting a mill to grind corn, by collecting annually a tax from the inhabitants, which was fixed by the Council of Policy 1 Theal's History of South Africa,' p. 280. at Is. 4 d. for every hundred sheep or twenty head of large cattle owned in the district, and by sundry small imposts. Further, it was to have power to compel the inhabitants to supply waggons, cattle, slaves, and their own labour, for public purposes. In the Orange Free State the chief magistrates of the various towns and villages, corresponding to the Civil Commissioners of the Cape Colony, are called Landdrosts, and throughout this Republic there are no less than seventeen Heemraaden, proving how the Dutch trekkers have adhered to their original form of local government. In the South African Republic the Landdrosts also exist, as in the Orange Free State. In the Cape Colony such a place as the 'Drostdy,' or Landdrost's abode, still survives as a sign of the original Dutch office. (4) When the Cape was taken over by the British, in 1805, the constitution of the old Court remained unaltered for some time, the Court of Appeal being in criminal cases the Governor aided by a barrister or assessor. Little by little, the English system superseded the Dutch. In 1828, the first charter of the Supreme Court was issued, and four judges constituted this Court, including the judge of the Vice-admiralty Court,-a necessary accompaniment of British naval rule, who exercised sole jurisdiction in prize cases. In 1834, by a second charter of justice, this was made a three-judge court; but afterwards, in 1855, again made a four-judge court. As the borders of the Colony increased and colonists pushed their way eastwards, it was found convenient to establish, in 1864, an Eastern Districts Court, exercising concurrent jurisdiction over the more distant parts of the Colony. Further, when Griqualand West and the Diamond Fields were incorporated (1880) within the Cape Colony, the High Court then existing was given conTheal's History of South Africa,' p. 281. |