Page:EB1911 - Volume 25.djvu/482

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466
[GENERAL FEATURES
SOUTH AFRICA

organization dates from 1847. Being declared by judicial decision in 1863 a voluntary body, the Anglicans formed “The Church of the Province of South Africa.” It is divided into the dioceses of Cape Town, Graham’s Town, Maritzburg (Natal), Kaffraria, Bloemfontein, Pretoria, Zululand, Mashonaland and Lebombo. The last-named diocese is that part of Portuguese East Africa south of the Sabi river; the Mashonaland diocese includes the Portuguese territory between the Sabi and the Zambezi. German South-West Africa is not included in the Anglican organization. The metropolitan is the archbishop of Cape Town. The constitution of the church was drawn up at a provincial synod in 1870. It accepts the doctrines of the Church of England, but acknowledges none save its own ecclesiastical tribunals, or such other tribunal as may be accepted by the provincial synod—in other words it rejects the authority of the English privy council. Bishop Colenso of Natal and other Anglicans did not accept the authority of the provincial synod, regarding themselves as in all respects members of the Church of England. This was, especially in Natal, the cause of prolonged controversy among the members of the Anglican community. By 1901, however, the majority of the “Church of England party” were represented in the provincial synod. Nevertheless the temporalities of this party remained in the hands of curators and not in the possession of the provincial church. In 1910 the practical amalgamation of the two bodies was effected (see further Natal). The Roman Catholics are a comparatively small body; the majority of their adherents are found in the Cape and Natal. At the head of their organizations are vicars-apostolic for the Cape (eastern district), the Cape (western district), Natal, Orange River, Kimberley and the Transvaal, and prefects-apostolic for Basutoland and Zambezi (or Rhodesia).

All the churches maintain missions to the natives. The first to enter the field were the Jesuits and Dominicans, who laboured on the south-east coast and among the subjects of the monomotapa (see Portuguese East Africa). Their work lasted from about Missions to Natives.1560 to 1760, but it has left little trace. The early modern missions were all Protestant. A Moravian mission to the Hottentots was begun in 1737, continued to 1744 and was re-established—against the wishes of the colonists—in 1792. Before the close of the century the London Missionary Society entered the field. The work of this society’s agents has had a greater influence on the history of South Africa than that of any other religious body save the Dutch Reformed Church. Next in order came the Wesleyans and the Glasgow Missionary Society (Presbyterian), the last-named society founding in 1824 the station of Lovedale—now the most important institution in South Africa in connexion with native missions. In 1829 the Paris Evangelical Society (whose agents have laboured chiefly in Basuto and Barotse lands) sent out their first missionaries, who were closely followed by the agents of other societies (see Missions). The Roman Catholics entered the field later on. By the end of the 19th century fully 5% of the total native population professed Christianity.

The Jews form a small but influential community. There are some thousands of Mahommedans in the Cape (chiefly Malays) and larger numbers in Natal, where there is also a large Hindu population. At Lourenço Marques the Chinese colony has its own temple and religious services.

Law.[1]—The basis of the common law of British South Africa is the Roman-Dutch law as it existed in Holland at the end of the 18th century. This was simply the old Roman jurisprudence embodied in the legislation of Justinian, modified by custom and legislative decrees during the course of the centuries which witnessed the growth of civilization in Europe; and it is to all intents and purposes the jurisprudence which was the foundation of the Code Napoléon. It was in part closely akin to the “modern Roman law” which is practised widely over the continent of Europe, and even in Scotland, at the present day. The authorities upon the common law in South Africa are: the Dutch commentators upon the civil law, the statute law of Holland, the decisions of the Dutch courts, and, failing these, the corpus juris civilis itself.

In the period which has elapsed since the establishment of British rule at the Cape the law has been considerably modified and altered, both by legislation and by judicial decisions, and it is not too much to say that at the present time there exists hardly any material difference in principle over the greater part of the field of jurisprudence between the law of England and the law of South Africa. The law of contracts, the law of torts, the mercantile law, the law relating to shipping and insurance, not to mention other subjects, are practically identical with those of England; and even the criminal law is virtually the same, though the greater elasticity of the civil jurisprudence allows fewer opportunities for the escape of malefactors, notably in cases of fraud or falsity in any form, than exist under the law of England. The constitution of the courts is based on the example of the English judiciary, and the rules of evidence and procedure are practically the same in both criminal and civil cases as in England. All serious cases of crime are tried before a judge and jury, with the same formalities and safeguards as in England, while minor offences are dealt with by stipendiary magistrates possessing a limited statutory jurisdiction. In criminal cases it is necessary for the jury to find a unanimous verdict. In civil cases either party may demand a jury, a privilege which is seldom exercised; but in a civil case the verdict of the majority of jurors prevails.

The most marked difference between the English and South African systems of law is, as might be expected, to be found in the law relating to real property. In South Africa there is a rigid and universal application of the principle of registration. The title to land is registered, in all cases; and so, with a few exceptions, is every servitude or easement, mortgage or charge, upon land. With regard to the devolution of property upon death, it may be remarked that the law of intestate succession applies equally to real and personal estate, there being no law of primogeniture. The rules of distribution in intestacy differ, however, very considerably from those established in England. There is absolute freedom of testamentary disposition in the Cape province and in some other parts of South Africa. The effect of marriage upon the property of the spouses is, by the Roman-Dutch law and in the absence of any ante-nuptial contract to the contrary, to bring about a complete community of property, virtually a universal partnership between husband and wife, subject to the sole and absolute control of the husband while the marriage lasts. The courts have, however, the right to interfere for the protection of the wife in case of any flagrant abuse of the power thus vested in the husband. Ante-nuptial agreements may be of any nature the parties may choose. Such agreements must in all cases be publicly registered. Upon the dissolution of a marriage in community of property, or in the event of a judicial separation a communione bonorum, the property of the spouses is divided as upon the liquidation of a partnership. It is not necessary here to refer particularly to certain exceptions to this general rule in cases of divorce.

By the common law gifts between husband and wife during marriage are void as against creditors. This rule cannot be evaded even by ante-nuptial agreement. By the statute law of Natal post-nuptial agreements between spouses are permitted under certain conditions, to which it is not possible now to refer at length. Divorce is granted to either spouse for either adultery or malicious desertion, the distinctions established by the English law between husband and wife in respect of divorce being disregarded.

Language.—The languages spoken in South Africa by the inhabitants of European descent are English and Dutch, the latter chiefly in the form of a patois colloquially known as the Taal. (German and Portuguese are spoken in the possessions of those countries, but a knowledge of English or Dutch is frequent even in those territories.) The history of the Dutch language in South Africa is intimately bound up with the history of the South African Dutch people. The basis of the language as spoken to-day is that 17th-century Dutch of Holland which the first settlers brought to the country; and although the Dutch of Holland and the Dutch of South Africa differ very widely to-day, Cape Dutch differs less widely from the Dutch language of the 17th century than from the modern Dutch of Holland. The tongue of the vast majority of the Dutch-speaking inhabitants may thus be said to be a degenerate dialect of the 17th-century Dutch of Holland, with a very limited vocabulary. The limiting of the vocabulary is due to two reasons. In the first place, the early settlers were drawn principally from the peasant class, being chiefly discharged soldiers and sailors; and, further, when once settled, the necessity for making the language intelligible to the natives by whom the settlers were surrounded led

  1. For the sections here incorporated on South African law and language we are indebted to the late J. W. Leonard, K.C. (d. 1909), twice attorney-general of Cape Colony.