Page:An introduction to Roman-Dutch law.djvu/49

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9
General Introduction

retain their old law, so long and so far as it remains unrepealed. In a system derived from the Civil Law repeal may be effected tacito consensu as well as alia postea lege lata; so that as regards the Cape Province we may state the presumption to be that, except so far as they have been abrogated by legislation or by the growth of a custom inconsistent therewith, the laws which obtained under the Dutch Government remain in force at the present day.[1] Custom, however, seems to have made short work with the pre-British statute law of the Colony. The earliest collected edition of the local statutes (1862) contains only nine enactments prior to 1795, and the latest edition (1895) only five. The remainder of the Dutch placaaten, reglementen, advertissementen, &c. (whether emanating from the home country or from Batavia, or locally enacted) seems to have been abrogated by disuse. We are speaking, of course, of the statute law subsequent to 1652, the date of the Dutch occupation of the Cape. The home legislation prior to that date may, unless inapplicable or abrogated by disuse, be regarded as forming part of the common law of the Colony. An exception, too, must be admitted in favour of the Octrooi to the East India Company of January 10, 1661, which, together with the Political Ordinance of 1580 and the Interpretation thereof of 1594, defines the law of intestate succession for the whole of Roman-Dutch South Africa.

  1. Per de Villiers C.J. in Seaville v. Colley (1891) 9 S. C. at p. 44: ‘The conclusion at which I have arrived as to the obligatory nature of the body of laws in force in this Colony at the date of the British occupation in 1806 may be briefly stated. The presumption is that every one of these laws, if not repealed by the local legislature, is still in force. This presumption will not however prevail in regard to any rule of law which is inconsistent with South African usages. The best proof of such usage is furnished by un-overruled judicial decisions. In the absence of such decisions the Court may take judicial notice of any general custom which is not only well-established but reasonable in itself. Any Dutch law which is inconsistent with such well-established and reasonable custom, and has not, although relating to matters of frequent occurrence, been distinctly recognized and acted upon by the Supreme Court may fairly be held to have been abrogated by disuse.’ This principle applies alike to the statute law and to the common law of Holland. See also Parker v. Reed (1904) 21 S. C. 496; McHattie V. Filmer (1894) 1 O. R. 305; Natal Bank v. Kuranda [1907] T. H. 155.