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Full text of "An introduction to Roman-Dutch law"

AN INTRODUCTION 

TO 
ROMAN-DUTCH LAW 



L 



oo 



. -V 



AN 



INTRODUCTION 



TO 



EOMAN-DUTCH LAW 



x+fy*' BY 

R. W. LEE, D.C.L., F.B.A. 

* 

Rhodes Professor of Roman-Dutch Law, Fellow of All Souls College, Oxford 

Hon. LL.D. the University of the Witwatersrand 

Docteur (honoris causa) de I'Universite' de Lyon 

Vice-President de l'Acad6mie Internationale de Droit Compare" 

A Master of the Bench of Gray's Inn 



FOURTH EDITION 



OXFORD 

AT THE CLARENDON PRESS 

1946 




OXFORD UNIVERSITY PRESS 

AMEN HOUSE, E.G. 4 

London Edinburgh Glasgow New York 
Toronto Melbourne Cape Town Bombay 

Calcutta Madras 
GEOFFREY CUMBERLEGE 

PUBLISHER TO THE UNIVERSITY 



PRINTED IN GREAT BRITAIN 



PREFACE 



(ADAPTED FROM THIRD EDITION) 

THE first edition of this book published in 1915 was 
designed to present a survey of the Roman-Dutch Law 
as it then existed in South Africa, in Ceylon, and in British 
Guiana. From January 1, 1917, this system was replaced 
in British Guiana by the Common Law of England. Conse- 
quently in the second edition, published in 1926, British 
Guiana was omitted from the picture. South Africa and 
Ceylon remained, the former being without question the 
predominant partner. In the interval of thirty years which 
has elapsed since the first edition, legislation of the Union 
Parliament and decisions of the Appellate Division of the 
Supreme Court of South Africa have been active in con- 
solidating the law of the Union. To the extent to which 
these influences operate the old law either takes a new 
shape or fades into the background. Even today an 
immense chasm separates the Roman-Dutch Law of Hol- 
land from the modern law of South Africa. In another 
half-century, or less, recourse to the old authorities, which 
still form the basis of this book, will seldom be made. The 
Roman-Dutch Law will have been superseded in South 
Africa, not per saltum, as in British Guiana, but by a 
gradual process of disintegration and re-statement. This, 
rather than codification, may be predicted as the future 
of the Roman-Dutch Law in this part of the world. 

Meanwhile, in the Union of South Africa, if not elsewhere 
in equal degree, many institutions of the old law exhibit 
a stubborn persistency. The law of marriage, particularly 
as regards the proprietary rights of the spouses and the 
contractual capacity of the wife, remains to-day substan- 
tially what it was in the time of Grotius ; and though a 
South African judge has adverted to 'the unfortunate con- 
sequences arising from the application to modern conditions 



vi PREFACE TO THE FOURTH EDITION 

of an archaic system of law affecting the property of 
married persons', the system thus described seems, or 
seemed till lately, too firmly established in popular senti- 
ment to be in immediate danger of change. This statement 
must be understood to be limited to the Union of South 
Africa. Southern Rhodesia has followed the example of 
Ceylon in declaring (Married Persons' Property Act, 1928) 
that ' Community of property and of profit and loss and 
the marital power or any liabilities or privileges result- 
ing therefrom shall not attach to any marriage solemnised 
between spouses whose matrimonial domicile is in this 
Colony entered into after the date of the coming into effect 
of this Act ' (unless such spouses shall by an instrument in 
writing executed before a magistrate have expressed their 
wish to be exempt from the provisions of this law). 
Further, in imitation of the law of Natal, the Act provides 
that, spouses married in community prior to the taking 
effect of the Act may take advantage of its provisions by 
postnuptial deed. Is it significant of a trend of opinion 
in the Union that a Private Member's Bill proposing 
extensive changes in the common law was introduced in 
the 1945 Session of Parliament (62 S.A.L.J., p. 333) ? 

If the established law of marriage may be supposed, at 
least in the Union, to make a sentimental appeal, there are 
other institutions of the old law which have nothing to 
commend them. Donations between spouses are still 
ineffectual until confirmed by death, and the Appellate 
Division has recently decided that it is incompetent to a 
husband married out of community and with exclusion of 
the marital power to make a valid conveyance of immov- 
able property to his wife. Modern codes repudiate such 
hoary archaisms. The process of tying up property through 
successive generations by what is called 'fideicommissary 
substitutions' is another case in point. These have been 
prohibited in France since 1792, and the law is the same, 
or nearly the same, in other European countries. In South 
Africa a testator, if he goes the right way about it, may 
tie up his property for ever (p. 386). Can it be said that 



PREFACE TO THE FOURTH EDITION vii 

such a tyranny of the dead hand has any reason for existing 
except that it exists ? 

The South African law of intestate succession is of an 
immemorial antiquity, a survival, if Professor E. M. 
Meijers of Leyden is correct, of a prehistoric ' Ligurian ' or 
'Alpine' Law, which once obtained over a great part of 
Central and Western Europe. This system assumes that 
the whole of a dead man's estate came to him by descent 
from his parents or parent, with the consequence that a sur- 
viving parent, having contributed nothing, takes nothing 
from a son who dies intestate. If the Octrooi of 1661 
(p. 408) has been more indulgent to a surviving father or 
mother, the old law is still effectual to exclude a surviving 
grandparent (p. 411). A recent Union statute, following 
the example of Natal and Southern Rhodesia, has intro- 
duced a succession unde vir et uxor unknown to the com- 
mon law (p. 412). 

If I touch upon these facts it is with no intention of 
underrating the Roman-Dutch system of law, but to sug- 
gest that it carries a burden of ancient tradition, much of 
which is out of harmony with the spirit of the age. 

The history of the Roman-Dutch Law contains many 
surprises. Perhaps the greatest of these is its persistence 
under the British Crown for more than a century after it 
ceased to function in the land of its origin and for a shorter 
period after its disappearance from the Colonies still sub- 
ject to the Kingdom of the Netherlands. It has even been 
extended to the Mandated Territory of South- West Africa, 
in abrogation of the much more highly developed system 
of German law. 

A minor surprise is that Roman-Dutch Law, being 
allowed by the Inns of Court as an alternative to the 
English Law of Real Property, has. come to be studied by 
candidates for the English Bar, drawn from remote parts 
of the world, who have no intention of practising law in 
any jurisdiction where this system is administered. Such 
students may well be bewildered by its strange complexity 
and the archaic character of its sources. They would do 



viii PREFACE TO THE FOURTH EDITION 
well to regard it, not, with the late Sir Paul Vinogradoff, 
as 'a ghost story', 'a second life of Roman Law after the 
demise of the body in which it first saw the light', but 
rather as a surviving specimen of the jus romanum 
hodiemum, which in one form or another constituted for 
centuries the common law of the greater part of Western 
Europe, and has been a useful, perhaps necessary, bridge 
between the Middle Ages and modern times. 

II 

A LEGAL text-book which passes into successive editions 
is apt to expand, and often changes its character in doing 
so. It is therefore a relief to find that the text of this 
edition has not been enlarged by more than twelve pages, 
and, of these, four are occupied by new appendices, one 
on Inheritance ab intestate in Ceylon, the other a short note 
on Conflict of Laws. Some space has been saved by cutting 
out dead matter, in particular the disused tacit hypothecs. 
On the other hand, the Law of Sale, of Delict, and of 
Testamentary Succession have been more fully stated than 
in the last edition. This has been done for the convenience 
of students in order that they may have a completer picture 
of the whole law. I have moved some footnotes into the 
text, but I regret that these parasitic additions are as 
numerous as ever. After all, they afford an author a means 
of escape from the temptation to overload his text. 
Besides, this book, I have been told, has been found useful 
by practising lawyers and their needs are not the same 
as those of students approaching the subject with a view 
to an examination (though I would not recommend a 
student wholly to neglect the footnotes). 

The author of this book cannot be sufficiently grateful 
for the indulgent reception which it has met with from the 
legal profession in South Africa and Ceylon since its first 
publication. He is very sensible of the disadvantage under 
which he has laboured in being out of touch with the 
daily disputatio fori. Distance may lend detachment to 



PREFACE TO THE FOURTH EDITION ix 

the view, but it tends to blur the details and even the 
principal features of the landscape. 

Dr. T. W. Price of Trinity Hall, Cambridge, has very 
kindly compiled the list of cases and given much valuable 
help in every part of the book. 

Previous editions of this book have been dedicated ' To 
The Hon. Sir John G. Kotze LL.D. One of His Majesty's 
Judges of the Appellate Division of the Supreme Court of 
the Union of South Africa: Late Chief Justice of the 
Transvaal'. I dedicate this volume to his beloved and 
honoured memory. 

R. W. LEE. 

ALL SOTJLS COLLEGE, OXFORD 

All Souls Day, 1945 



CONTENTS 

PRINCIPAL AUTHORITIES CITED, WITH MODE OF 

CITATION xiii 

TABLE OF LAW REPORTS, WITH MODE OF CITATION . xxii 

TABLE OF CASES . . xxv 

TABLE OF STATUTES . Ixvii 

GENERAL INTRODUCTION 2 

Appendix : HOW FAR THE STATUTE LAW OF HOLLAND OBTAINS IN 

SOUTH AFRICA AND CEYLON ...... 26 

BOOK I 

THE LAW OF PERSONS 

INTRODUCTION ... .- . ' ' _~. . . . 30 

Chapter I. BIRTH, SEX, LEGITIMACY .... 31 

Chapter II. PARENTAGE 36 

A. The parental power and its consequences' ... 36 

B. The reciprocal duty of support ..... 42 

Chapter III. MINORITY 44 

Chapter IV. MARRIAGE 51 

Section 1. The Contract to Marry . . . . .61 

Section 2. The Legal Requisites of Marriage ... 52 

Section 3. The Legal Consequences of Marriage ... 64 

Section 4. Antenuptial Contracts ..... 72 

Section 5. Dissolution of Marriage Nullity ... 87 

Section 6. Miscellaneous Matters relating to Marriage . . 96 

Chapter V. GUARDIANSHIP 100 

Section 1. The Kinds of Guardians and the Appointment of 

Guardians . . . . . . . . . 100 

Section 2. Who may be Guardians 106 

Section 3. The Powers, Rights, and Duties of Guardians . 107 
Section 4. Actions arising out of Guardianship . . .115 
Section 5. How Guardianship ends . . . . .117 

Chapter VI. UNSOUNDNESS OF MIND PRODIGALITY . 119 

Chapter VII. JURISTIC PERSONS 121 



CONTENTS xi 

BOOK II 
THE LAW OF PROPERTY 

INTRODUCTION . . '124 

Chapter I. THE MEANING OF OWNERSHIP . . . 125 

Chapter II. CLASSIFICATION OF THINGS . . . 128 

Chapter III. HOW OWNERSHIP IS ACQUIRED .. . 135 

Chapter IV. INCIDENTS OF OWNERSHIP . . . .151 

Section 1. The Incidents of Ownership in General . . 151 

Section 2. The Kinds of Ownership of Land ... . . 156 

Chapter V. POSSESSION . . . . . . .162 

Chapter VI. SERVITUDES . . . . . . .167 

Chapter VII. MORTGAGE OR HYPOTHEC ,. . . 187 

BOOK III 

THE LAW OF OBLIGATIONS 

INTRODUCTION . . . . ... . . 210 

PART I. OBLIGATIONS ARISING FROM CONTRACT 212 

Chapter I. FORMATION OF CONTRACT . . . . ' . 214 

Section A. The parties must be agreed . . . . 214 
Section B. The parties must intend, or be deemed to intend, 

to create a legal obligation . . . . . . . 222 

Section C. The object of the agreement must be physically 

and legally possible . . ... . . 223 

Section D. The requisite forms or modes of agreement (if 

any) must be observed . . ; ; . ", . 223 
Section E. The agreement must not be impeachable on the 

ground of fraud, fear, misrepresentation, undue influence, 

or lesion . . . ' . , . . 227 
Section F. The agreement must not be directed to an illegal 

object . . . . . :. . . ' t . 234 

Section G. The parties must be competent to contract . . 243 

CJiapter II. OPERATION OF CONTRACT . . . . 244 

Section 1. The persons affected by a contract . . . 244 

Section 2. The Dutj of Performance .... '. . 252 

Section 3. The Consequences of Non-performance . . 263 

Chapter III. INTERPRETATION OF CONTRACT . .271 



rii CONTENTS 

Chapter IV. DETERMINATION OF CONTRACT . . 273 
Chapter V. PLURALITY OF CREDITORS AND DEBTORS 284 
Chapter VI. SPECIAL CONTRACTS 287 

PART II. OBLIGATIONS ARISING FROM DELICT 320 
Appendix: ADDITIONAL CASES ON THE LAW OF DEFAMATION . 344 

PART III. OBLIGATIONS ARISING FROM SOURCES 

OTHER THAN CONTRACT AND DELICT . . 346 

BOOK IV 

THE LAW OF SUCCESSION 

Chapter I. SUCCESSION IN GENERAL . . . .350 
Chapter II. TESTAMENTARY SUCCESSION . . .356 
Chapter III. INTESTATE SUCCESSION . . . .397 

APPENDICES 

Appendix A. FORMS AND PRECEDENTS . . . . .416 

I. Form of Grant of Venia Aetatis in Ceylon . . . 416 

II. Form of Grant of Venia Aetatis in South Africa . . 417 

III. Form of Antenuptial Contract in use in South Africa . 418 

IV. Precedents of Mutual Wills 419 

A. Notarial Will 419 

B. Underhand Will 421 

Appendix B. THE CONTRACTS OF MINORS . . . .421 

Appendix C. MARRIAGE: PROHIBITED DEGREES . . . 423 

Appendix D. THE LEGAL CAPACITY OF MARRIED WOMEN . . 426 

Appendix E. THE LIMITS OF THE jus VINDICANDI . . . 433 

Appendix F. CONTRACT AND CAUSA ..... 436 

Appendix O. STIPULATIONS FOR THE BENEFIT OF A THIRD PERSON 442 

Appendix H. THE THEORY OF MORA ..... 445 
Appendix I. THE PRACTICE OF THE SOUTH AFRICAN COURTS WITH 

REGARD TO SPECIFIC PERFORMANCE ..... 448 

Appendix J. COMPENSATION FOR IMPROVEMENTS . . .451 
Appendix K. INHERITANCE AB INTESTATO IN CEYLON . . 453 
Appendix L. CONFLICT OF LAWS ...... 455 

INDEX 457 



PRINCIPAL AUTHORITIES CITED, WITH 
MODE OF CITATION 

ALPHEN, W. VAN. Papegay ofte formulierboek. Papegay 
ANSON, SIB W. R. Law of Contract (18th edition). Anson 
Antwerpen, Rechten ende Costumen van, Ceulen, 1660. 
APELDOOBN, PBOF. L. J. VAN. Geschiedenis van het Nederland- 

sche Huwelijksrecht. 
ABNTZENIUS, H. J. Institutiones Juris Belgici Civilis de condi- 

tione hominum. 
AUSTEN, J. E. W. W. Schorer, Aanteekeningen over de Inleydinge 

tot de Hollandsche rechtsgeleerdheid van H. de Groot, uit 

het Latijn vertaald door. . . . 

BALASINGHAM, K. The Laws of Ceylon. 

BELL, W. H. S. South African Legal Dictionary. 

Bellum Juridicum sive Oorlog der Advocaten. 

BEBWICK, T. A. Contribution to an English Translation of Voet's 
Commentary on the Pandects, comprising all the Titles on 
Purchase and Sale Letting and Hiring Mortages 
Evictions Warranty and allied subjects; being lib. xvii, 
xix, xxi, and tit. vii of lib. xiii, 2nd ed. 1902. 

BlJNKEBSHOEK, COBNELIS VAN. 

Observationes Juris Romani. 06s. Jur. Rom. 

Quaestiones Juris Privati. Quaest. Jur. Priv. 

Observationes Tumultuariae. O.T. 

BISSET, M., and SMITH, P. F. The Digest of South African Case 
Law. Consolidated Edition to the end of 1921, 6 vols. ; Con- 
solidated edition 1922-33, 2 vols.; Annual Supplements. 

BLACKSTONE, SIB W. Commentaries on the Laws of England,, 
with notes by Edward Christian. Blackst. 

BLAINE, C. H. New Consolidated Index to the Statute Law of the 
Union of South Africa up to 1936. 

Boel, T. See Loenius. 

BOEY, T. Woordentolk. 

BOBT, P. Tractaet van Complainte. 

Tractaet van de Domeynen van Hollandt. 

British Guiana, The Laws of, ed. 1905. 

British Guiana, Report of the Common Law Commission, 
1914. 

British Guiana. The Civil Law of British Guiana Ordinance, 1916, 
edited with notes by the Hon. LI. C. Dalton (Georgetown, 
1921). 

BBUNEMANNTJS, JOH. Commentarius in leges Pandectarum. 

BUCKLAND, W. W. A Text-Book of Roman Law (2nd ed.). 



xiv AUTHORITIES CITED 

BUCKLAND, W. W., and M C NAIB, A. D. Roman Law and Common 

Law. 
BUBGE. W. Commentaries on Colonial and Foreign Laws (1838). 

- New edition (1907). 

Biirgerliches Gesetzbuch (German Civil Code). B.O.B. 
Burgerlijke Wetboek (Dutch Civil Dode). B.W.B. 

CALVINUS, J. Lexicon juridicum juris Caesarei simul et Canonici. 
CANEY, L. R. A Treatise on the Law relating to Novation. 

The Law of Suretyship in South Africa. 

Cape Law Journal. 

Cape Rules of Court (C. J. Ingram and J. E. de Villiers). 

CAFTTANT, HENBI. De la Cause des obligations. 3 me ed., Paris, 1927. 

Censura Forensis. See Leeuwen, S. van. 

CHESHIRE, G. C. The Modern Law of Real Property (4th and 

5th eds.). 

Private International Law (2nd ed.). 

CHEVBIER, GEORGES. Essai sur I'Histoire de la Cause dans les 

Obligations, These pour le doctorat en droit, Sirey, Paris, 1929. 
CHIJS, J. A. VAN DER. Nederlandsch-Indisch Plakaat-Boek. 
CHKISTINAEUS, PAULTTS. In Leges Municipales Mechlinienses 

Commentaria ac Notae. 
Code Civil (French Civil Code). C.C. 
Code Civil Suisse. 
Codex Juris Canonici. 
Codex Theodosianus. Cod. Theodos. 

COKE, SIR EDWARD. Commentary on Littleton's Tenures. Co. Litt. 
COHN, A., and CAPITANT, H. Cours e"lementaire de droit civil 

franfais (6 me ed.). 

Commercial Laws of the World, vol. xv (South Africa, &c.). 
COREN, J. Observationes rerum in Senatu Hollandiae, Zelandiae, 

Frisiae judicatarum. 

Corpus Juris Civilis. Institutiones. Inst. 
Digesta. Dig. 

Codex. Cod. 

Novellae. Nov. 

Authentica. Authent. 

Cum notis D. Gothofredi. Qothojredus. 

CUQ, EDOUABD. Manuel des institutions juridiques des Romains 

(2e &i.), Paris, 1928. 

DE BLECOUBT, A. S. Kort Begrip van het Oud-Vaderlandsch 

Burgerlijk Recht (fijvde druk). 
DE BBTJYN, D. P. Opinions of Grotius (translated into English 

from the Hollandsche Consultation). 
DE HAAS, GERARDUS. Nieuwe Hollandsche Consultation [and see 

Leeuwen, Simon van]. 



AUTHORITIES CITED xv 

Decisien en Resolution van den Hove van Holland ( 'sHaage, 1751 ). 

DECKER, MB. COBNELIS W. Latin annotations of S. van Leeuwen's 
Roomsch Hollandsch Recht, ed. 1 780. Decker ad Van Leeuwen. 

DECBETUM GBATIANI. 

DE VILUEBS, J. E., and MACINTOSH, J. C. The Law of Agency in 
South Africa (1933). 

DE WET, J. C. Die Ontwikkeling van die Ooreenkomst ten 
Behoeve van 'n Derde (Leiden, 1940). 

DOMAT, M. Les Loix Civiles. 

DONGES, T. E. The Liability for Safe Carriage of Goods in Roman- 
Dutch Law. 

DUFF, P. W. Personality in Roman Law. 

ENNECEBtrs-KiPP-WoLFF, Lehrbuch des Biirgerlichen Rechts. 

FOCKEMA ANDBEAE, MB. S. J. Bijdragen tot de Nederlandsche 

Rechtsgeschiedenis (Haarlem, 1888-1900). 
Het Oud-Nederlandsch Burgerlijk Recht (Haarlem, 1906). 

Fock. And. 
Grotius, Inleidinge tot de Hollandsche Rechts -geleerdheid, 

met aanteekeningen, derde, herziene en vermeerderde uitgave 

door Mr. L. J. Van Apeldoorn, Arnhem, 1926. 
FOSTEB, JOSEPH. Legal Forms for common use in the Cape Colony. 
FBTJIN, ROBEBT. Geschiedenis der Staatsinstellingen in Nederland, 

uitgegeven door Dr. H. T. Colenbrander (tweede bijgewerkte 

druk, 's Gravenhage, 1922). 

GATLL, A. Practicae Observationes. 

GAIUS, Institutiones. 

GATLEY. Libel and Slander, 3rd ed. 

GIEBKE. Deutsches Privatrecht. 

GIBABD, P. F. Manuel elementaire de droit romain (8 me ed., 1929, 
revue et mise a jour par Felix Senn). Girard. 

GLUCK, C. F. Ausfiihrliche Erlauterung der Pandecten. 

GOTHOFBEDUS. Corpus Juris Civilis Romani cum notis Dionysii 
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GOUDSMIT, J. E. Pandekten-systeem. 

GBIMM. Deutsche Rechtsaltertiimer. 

GROENEWEGEN VAN DEB MADE, S. Annotations of Grotius' In- 
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Tractatus de legibus abrogatis et inusitatis in Hollandia vici- 

nisque regionibus. Groen. de leg. abr. 

Groot Placcaet-Boeck, vervattende de Placaten, Ordonnantien, 
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Hollandt en West-Vrieslant en van Zeelandt (1576-1795), 
Byeengebracht door C. Cau, Simon van Leeuwen, J. en 
J. P. Scheltus en J. van der Linden. G.P.B. 



xvi AUTHORITIES CITED 

GBOTIUS (DE GBOOT), HUGO. Inleidinge tot de Hollandsche 
Rechtsgeleerdheid. Or. 

[See Fockema Andreae ; Groenewegen ; Keessel, van der ; 
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GUDELINUS, P. De jure novissimo. 

HALL, C. G., and KELLAWAY, E. A. Servitudes. 
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HEIJNSBEBGEN, DB. P. VAN. Verspreide Opstellen (Amsterdam, 

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HEUMANN. Handlexicon zu den Quellen des romischen Rechts. 
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MS. Dictata upon the above. V. d. K. Dictat. 



AUTHORITIES CITED xvii 

KEBSTEMAN, F. L. Hollandsch rechtsgeleert Woordenboek, met 

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KOTZE, J. G. Causa in the Roman and Roman-Dutch Law of 

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Haas (Leyden, 1741). Gens. For. 
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Paratitla Juris Novissimi. 



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Handboek, V. d. L. 
The same, translated by Sir H. Juta under the title 'Institutes 

of Holland'. 

The same, translated by Judge G. T. Morice under the title 
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4901 



xviii AUTHORITIES CITED 

McKEBKON, R. G. The Law of Delict (2nd ed., 1939). 

MACKEUBTAN, G. H. The Sale of Goods in South Africa (2nd ed., 
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MAINE, SIB H. S. Ancient Law. 

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MATTHAEtrs, ANTONIUS. De Auctionibus. 

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1921. 
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TABLE OF LAW REPORTS 



pp. Cas.\ 
.C. / 



App 
A 
A. D. 



Buch. 
Buch. A. C. 



C. L. J. 
C.P. 

C. P. D. 



WITH MODE OF CITATION 

Appeal Cases (House of Lords and Judicial Com- 
mittee of the Privy Council), 1876-91. 
Appellate Division of the Supreme Court of South 

Africa, 1910 onwards. 
Buchanan, James & E. J. Cases decided in the 

Supreme Court of the Cape of Good Hope, 

1868-79. 
Buchanan, James & E. J. & D. M. Cases decided 

in the Court of Appeal of the Cape of Good 

Hope, 1880-1910. 
Cape Law Journal, 1884-1900. 
Common Pleas, or Common Pleas Division 

(England). 
Cases decided in the Cape Provincial Division of 

the Supreme Court of South Africa, 1910 

onwards. 

C. T. R. Cape Times Reports, 1891-1910. 

Ceylon, N. L. R. Ceylon New Law Reports. 
Ch. Chancery, or Chancery Division (England). 

Co. Rep. Sir Edward Coke's Reports. 

Current L. R. Current Law Reports (Ceylon). 
E. D. C. Cases decided in the Eastern Districts Court of 

the Cape of Good Hope, 1880-1909. 
E. D. L. Cases decided in the Eastern Districts Local 

Division of the Supreme Court of South Africa, 

1910 onwards. 

Exch. Exchequer Reports (England), 1846-56. 

Foord Foord, A. J. Cases decided in the Supreme 

Court of the Cape of Good Hope, 1880. 
H. C. G. Reports of the High Court of Griqualand West, 

1882-1910. 

Hertzog Hertzog's Cases in the High Court of the South 

African Republic, 1893, translated by Leonard. 

K. Kotz6, J. G. Cases decided in the High Court of 

the Transvaal (1877-81). 

K. B. King's Bench, or King's Bench Division (Eng- 

land). 
Knapp P. C. Knapp's Reports of Cases determined before the 

Committees of H.M.'s Privy Council, 1829-36. 
L. R. C. P. Law Reports, Common Pleas, 1865-75. 

L. R. H. L. Law Reports, House of Lords, English and 

Irish Appeals, 1865-76. 



TABLE OF LAW REPORTS 



XXlll 



L. R. P. C. Law Reports, Privy Council, 1865-75. 

Menz. Menzies, Hon. W. Cases decided in the Supreme 

Court of the Cape of Good Hope, 1820-50. 
Moo. P. C. C. Moore's Privy Council Cases, 1836-62. 
Moo. P. C. C. [N.S.] Ditto. New Series. 
N. L. R. [O.S.] Natal Law Reports, Supreme Court, Old Series, 

1873-9. 
N. L. R. Natal Law Reports, Supreme Court, New Series, 

1879-1910. 

N. L. R. New Law Reports (Ceylon). 

N. P. D. Cases decided in the Natal Provincial Division 

of the Supreme Court of South Africa, 1910 

onwards. 
O. F. S. Reports of the High Court of the Orange Free 

State, 1879-83. 
O. P. D. Reports of the Orange Free State Provincial 

Division, 1910 onwards. 
O. R. Official Reports of the High Court of the South 

African Republic, translated into English by 

W. S. Webber & J. G. Kotze", 1894-9. 
O. R. C. Orange River Colony, Reports of Cases decided 

in the High Court, 1903-10. 
P. Reports of the Probate, Admiralty, and Divorce 

Division of the High Court (England). 
P.-H. Prentice-Hall, Weekly Legal Service. 

Ramanathan Ramanathan, P. Judgments of the Supreme 

Court and High Court of Appeal, Ceylon, 

between 1820-33. 
Important Cases, Supreme Court, Ceylon, 1843- 

55. 
Important Cases, Supreme Court, Ceylon, 1860- 

8. 
Important Cases, Supreme Court, Ceylon, 1872, 

1875, 1876. 
Reports of Cases, Supreme Court, " Ceylon, 

1877. 
R. Rettie's series of the Court of Sessions Reports 

(the Fourth Series), 1873-98. 
R. Roscoe's Reports of the Supreme Court of the 

Cape of Good Hope, 1861-78. 
Searle Searle, M. W. Cases decided in the Supreme 

Court of the Cape of Good Hope, 1850-67. 
S. A. L. J. South African Law Journal, 1901 onwards. 

S. A. R. Cases decided in the Supreme Court of the 

South African Republic. 
S. C. Supreme Court Reports (Cape of Good Hope), 

1880-1910. 



xxiv TABLE OF LAW REPORTS 

S. C. C. Supreme Court Circular (Ceylon): 

S. C. B. Supreme Court Reports (Ceylon). 

T. H. Cases decided in the Witwatersrand High Court 

(Transvaal), 1902-10. 
T. P. D. Cases decided in the Transvaal Provincial 

Division of the Supreme Court of South 

Africa, 1910 onwards. 
T. S. Cases decided in the Transvaal Supreme Court, 

1902-10. 
Vanderstraaten, J. W. Decisions, Supreme Court, Ceylon, in 

Appeal, 1869-71. 
W. L. D. Reports of the Witwatersrand Local Division 

of the Supreme Court of South Africa, 1910 

onwards. 



TABLE OF CASES 



A v. B [1906] T.S. 958 . . 


. . . . 59 


A. v. M [1930] W.L.D. 292 


. . . . 42 


A.B., exparte [1910] T.S. 1332 


.. ..336 


Abbott, ex parte [1915] C.P.D. 544 


. . . . 67 


Abbott v. Bergman . . . . [1922] A.D. 53 . . 


.. ..330 


Abdul Azeez v. Abdul Rahiman [1911] A.C. 746 .. 


.. ..165 


Abdulla & Co. v. Kramer Bros. [1928] C.P.D. 423 


.. ..310 


Abeyesekera v. Tillekeratne . . [1927] A.C. 277 . . 


.. ..393 


Abrahams v. Isaacs & Co. . . (1887) 5 S.C. 183 


.. ..306 


Aburrow v. Wallis (1893) 10 S.C. 214 


.. 239,289 


Acton v. Motau [1900] T.S. 841 


.. ..451 


Adam v. Ward [1917] A.C. 309 . . 


.. ..333 


Adams v.Mocke (1906) 23 S.C. 782 


.. 434,435 


Aegis Assur. Co., exparte . . [1909] E.D.C. 363 


.. ..195 


African Guarantee Co. v. Rabi- 




nowitz [1934] W.L.D. 151 


.. ..316 


African Guarantee Co. v. Thorpe [1933] A.D. 330 . . 


.. ..318 


African Life Assurance Soc. v. 




Robinson & Co [1938] N.P.D. 277 


.. ..345 


African Realty Trust v. Holmes [1922] A.D. 389 . . 


.. ..280 


African Realty Trust v. Robin- 




son & Co [1939] T.P.D. 155 


.. ..345 


African Theatres Ltd. v. Jewell [1918] N.P.D. 1 . . 


.. ..449 


African Universal Stores Ltd. v. 




Dean [1926] C.P.D. 390 


.. ..445 


Ahmed v. Coovadia . . . . [1944] T.P.D. 364 


. . . . 41 


Ainsbury v. Ainsbury . . . . [1929] A.D. 109 . . 


.. .. 91 


Aird v. Hockley's Est [1937] E.D.L. 34. . 


.. ..428 


Akiki, ex parte [1925] O.P.D. 211 


. . . . 44 


Albertus v. Albertus' Exors. . . (1859) 3 Searle 202 


93, 96 


Aldine Timber Co. v. Hlatwayo [1932] T.P.D. 337 


.. ..138 


Aldred v. Aldred [1929] A.D. 356 . . 


88, 92 


Alexander v. Johns . . . . [1912] A.D. 393 . . 


.. ..170 


Algoa Milling Co. v. Arkell & 




Douglas [1918] A.D. 145 . . 


.. 262,280 


Alison, ex parte [1940] C.P.D. 586 


.. ..455 


Alia v. Thaba [1939] N.P.D. 231 


.. ..333 


Allen v. Allen [1935] C.P.D. 557 


.. .. 91 


Amarasekere v. Podi Menika (1932) 34 Ceylon N, 


,L.R. 82 378 


Ambaker v. African Meat Co. [1927] C.P.D. 326 


. . . . 41 


Ambrose & Aitken v. Johnson 




& Fletcher [1917] A.D. 327 . . 


.. ..264 


Amin v. Ebrahim [1926] N.P.D. 1 . . 


.. ..302 


Amina Umma v. Nuhu Lebbe (1926) 30 Ceylon N 


.L.R. 220 31 


Amod v. Parsotham . . . . [1929] N.P.D. 163 


. . . . 317 


Anderson v. Kaplan . . . . [1931] C.P.D. 50 . . 


.. ..192 


Anderson v. Van der Merwe .. [1921] C.P.D. 342 


.. ..342 



XXVI 



TABLE OF CASES 



Anderson & Co. v. Pienaar & 
Co 

Anderson's Assignee v. Ander- 
son's Exors 

Andrews v. Levy 

Annamma v. Moodley 

Anon 

Appuhami v. Kirihami 

Appuhamy v. Appuhamy 

Arbor Properties v. Bailey 

Arend v. Est. Nakiba 

Armstrong v. Magid 

Aronowitz v. Atkinson 

Arulampikai v. Thambu 

Attorney-General v. Pana 
Adappa Chetty 

Attorney-General v. Pitche . . 

Avis v. Verseput 

Ayob & Co. v. Clouts 

Azar, ex parte 



[1922] T.P.D. 435 



198,319 



(1894) 11 S.C. 432 .. .. 250 

[1930] S.R. 101 339 

[1943] A.D. 531 272 

(1871) Van der Straaten 172 405 

(1895) 1 Ceylon N.L.R. 83 335 
(1880) 3 Ceylon S.C.C. 61 . . 144 
[1937] W.L.D. 116 .. .. 268 

[1927] C.P.D. 8 185 

[1937] A.D. 260 233 

[1936] S.R. 45 244 

(1944) 45 Ceylon N.L.R. 407 366 



Baard, ex parte 

Babaihamy v. Marcinahamy . . 
Badenhorst, ex parte 
Badenhorst v. Joubert 
Badroodien v. Van Lier 
Baikie v. Pretoria Munic. . . 

Bajie, ex parte 

Baker's Est. v. Baker's Est. . . 

Balfour v. Balfour 

Balkis v. Perera 

Balsillie, ex parte 

Bandara v. Elapatha 

Banks v. Ayres 

Banks v. Clements N.O. 
Barclay's Bank v. The Master 

Barker v. Beckett & Co 

Barnabas Plein & Co. v. Sol 

Jacobson & Son 

Barnard, ex parte 

Barnard v. Col. Govt 

Barnet v. Glanz 

Barnett v. Milnes 

Barnett v. Rudman 

Barrett v. O'Niel's Exors. 

Barry v. Mundell 

Barry Colne & Co. v. Jackson's 

Ltd 

Baskin & Barnett v. Barnard 
Bassa Ltd. v. East Asiatic (S.A.) 

Co. Ltd. 



(1928) 29 Ceylon N.L.R. 431 196 
(1892) 1 Ceylon S.C.R. 11 .. 129 
[1943] A.D. 331 . . 289, 290, 291 
[1925] W.L.D. 199 . . . . 274 
[1932] O.P.D. 107 .... 63 

B 

[1926] C.P.D. 201 .... 85 
(1908) 11 Ceylon N.L.R. 232 288 
[1937] T.P.D. 174 . . . . 378 
[1920] T.P.D. 100 . . . . 170 
[1928] C.P.D. 311 .. ..451 
[1921] T.P.D. 376 . . . . 246 
1941 (2) P.H., B. 66 [W.L.D.] 74 
(1908) 25 S.C. 234 .. .. 412 
[1919] 2 K.B. 571 . . . . 223 
(1927) 29 Ceylon N.L.R. 284 384 
[1928] C.P.D. 218 . . 85, 86 
(1922) 23 Ceylon N.L.R. 411 49 
(1888) 9 N.L.R. 34 .. ..335 
[1921] C.P.D. 197 . . 92, 94 
[1934] C.P.D. 413 .... 187 
[1911] T.P.D. 151 . . . . 449 



[1928] A.D. 25 21 

[1929] T.P.D. 276 . . . . 386 
(1887) 5 S.C. 122 .. .. 306 

(1908) 25 S.C. 967 .. .. 285 
[1928] N.P.D. 1 . . 67, 426 

[1934] A.D. 203 70 

(1879) Kotze 104 .. .. 288 

(1909) 26 S.C. 475 .. ..394 

[1922] C.P.D. 372 . . . . 256 
[1928] C.P.D. 58 . . . . 276 

[1932] N.P.D. 386 . . . . 256 



TABLE OF CASES 



Batchoo v. Crick 

Baum v. Rode 

Bayer v. Bayer 

Bayne N. O. v. Kanthack 

Beart, In re 

Becker v. Stusser 

Beebee v. Magid 

Begemann v. Cirota 

Bell v. Bell 

Bell v. Lever Bros. Ltd. 
Bellingham v. Blommetje 

Bellstedt v. S. A. R 

Benischowitz v. The Master . . 
Benjamin v. Salkinder 

Bennet, ex parte 

Bennett v. Bennett 
Benning v. Union Govt. 
Bensimon v. Barton 

Beretta v. Beretta 

Bergl & Co. v. Trott Bros. . . 

Bernitz v. Euvrard 

Berrange, ex parte 

Berthiaume v. Dastous 

Bester v. Taylor 

Beukes v. Coetzee 

Bevan v. Bevan 

Beyers v. McKenzie 
Bezuidenhout v. Strydom 
Bezuidenhout v. Van Graan 

Bhaijee v. Khoja 

Bhana Nana v. Patel 

Biggs v. Molefe 

Biljoen v, Peterson 

Bing & Lauer v. Van der 

Heever . . *. 
Bingham v. Johannesburg City 

Council 

Black v. Black's Exors 

Blatchford v. Blatchford's Exors 
Blatt v, Swakopmunder Bank- 

verein 

Bliden v. Carasov 

Bloemfontein Munic. v. 

Jackson's Ltd. 
Bloemfontein Town Council, ex 

parte 

Bloemfontein Town Council v. 

Richter 

Blomerus ex parte 

Blomson v. Boshoff 



xxvu 

[1941] N.P.D. 19 . . . . 338 

[1905] T.S. 66 304 

[1937] S.W.A. 73 . . . . 344 

[1934] W.L.D. 13 .... 39 

[1912] N.P.D. 65 . . . . 67 

[1910] C.P.D. 289 . . . . 267 

(1929) 30 Ceylon N.L.R. 361 451 

[1923] T.P.D. 270 . . . . 336 

[1909] T.S. 500 87 

[1932] A.C. 132 221 

[1874] Buch. 36 . . . . 451 

[1936] C.P.D. 397 . . 39, 337 

[1921] A.D. 589 366 

(1908) 25 S.C. 512 .... 95 

[1926] C.P.D. 436 .... 85 

[1939] P. 274 89 

[1914] A.D. 420 233 

[1919] A.D. 13 . . . . 327, 328 

[1924] T.P.D. 60 . . . . 217 

(1903) 24 N.L.R. 503 

262, 264, 269 

[1943] A.D. 595 263 

[1938] W.L.D. 39 . . . . 379 

[1930] A.C. 79 64 

[1912] O.P.D. 60 309 

(1883) 1 S.A.R. 71 . . . . 343 

[1908] T.H. 193 87 

(1880) Foord 125 143, 218, 230 

(1884) 4 E.D.C. 224 .. . . 238 
[1938] T.P.D. 331 . . 247 

[1937] A.D. 246 192 

[1929] W.L.D. 234 . . . . 278 

[1910] C.P.D. 242 . . . . 250 

[1922] N.P.D. 63 . . . . 242 

[1922] T.P.D. 279 . . . . 432 

[1934] W.L.D. 180 . . . . 15*2 

[1934] T.P.D. 301 ., .. 338 

(1904) 21 S.C. 555 .. .. 370 
(1861) 1 E.D.C. 365 . . 72, 455 

[1929] S.W.A. 90 . . . . 262 
[1927] C.P.D. 2 310 

[1929] A.D. 266 195 

[1934] O.P.D. 11 39 

[1938] A.D. 195 328 

[1936] C.P.D. 368 . . . . 388 
[1905] T.S. 429 .... 238 



XXVU1 

Bloom v. American Swiss 

Watch Co 

Bloomfield v. Bloomfield 
Blower v. Van Noorden 
Blumberg v. Buys & Malkin . . 
Blumberg & Sulski v. Brown & 

Freitas 

Bona Pierce v. Hau Mon 

Booysen, In re 

Boshoff v. Reinhold . . 

Boshoff v. Theron 

Boshoff v. Van Zyl 

Bosnian Bros. v. Van Niekerk 

Botha v. Botha 

Botha v. Brink 

Botha v. Peach 

Botha v. Van der Vyver 
Botha N. O. v. Tunbridge N. O, 
Bowditch v. Peel & Magill 

Bower v. Heam 

Bowern v. Gowan 

Bown v. Mowbray Munic. 

Boyd, ex parte 

Boyd v. Nel 

Boyd v. Stables 

Boyd v. Stuttaford 

Boyes v. Versigman 
Brandt v. Bergstedt 

Braude v. Braude 

Braun v. Powrie 

Braunschweig V. M. Board v. 

Union Govt 

Breda's Exors. v. Mills 

Bredell v. Pienaar 

Breed v. Van den Berg 

Breeds v. Breeds 

Brenner v. Hart 

Bresky v. Vivier 

Breyten Collieries Ltd. v. 

Dennil 

Breytenbach v. Frankel 
Breytenbach v. Van Wijk 

Brice v. Zurcher 

Briggs v. Hughes 

Brill v. Madeley 

Brink v. Louw 

Brink's Trustees v. Mechan . . 
Biinkman v. McGill 
B.S.A. Co. v. Bulawayo Munic. 
British Westinghouse Co. v. 

Underground Ry. Co. 
Brodie v. Attorney-General . . 



[1915] A.D. 100 215 

[1942] C.P.D. 251 . . . . 105 

[1909] T.S. 890 311 

[1908] T.S. 1175 .. .. 267 

[1922] T.P.D. 130 . . . . 312 

1944 (1) P.H., O. 10 [A.D.] 326 
(1880) Foord 187 .. 64,90 

[1920] A.D. 29 175 

[1940] T.P.D. 299 . . . . 309 

[1938] C.P.D. 415 . . . . 335 

[1928] C.P.D. 67 . . . . 297 

(1848) 1 Menz. 259 . . . . 93 
[1878] Buch. 118 .. ..332 

[1939] W.L.D. 153 . . . . 327 

(1908) 25S.C. 760 .. .. 379 
[1933] E.D.L. 95 .. ..113 

[1921] A.D. 561 230 

[1938] N.P.D. 399 . . . . 326 

[1924] A.D. 550 264 

[1911] C.P.D. 429 .. .. 429 

[1938] C.P.D. 197, 510 . . 388 

[1922] A.D. 414 215 

(1821) Ramanathan,p. 19 .. 312 

[1910] A.D. 101 304 

(1879) Buch. 229 .... 75 

[1917] C.P.D. 344 . . . . 235 

(1899) 16S.C. 565 .. .. 239 

(1903) 13 C.T.R. 464 .. . . 178 

[1917] E.D.L. 186 . . . . 174 

(1883) 2S.C. 189 .. .. 168 

[1924] C.P.D. 203 . . . . 338 

[1932] A.D. 283 271 

[1929] N.P.B. 122 .... 89 

[1913] T.P.D. 607 . . 278, 279 

[1928] C.P.D. 202 . . . . 303 

[1913] T.P.D. 261 .... 152 
[1913] A.D. 390 49, 111, 161,422 



[1923] A.D. 541 
[1908] T.S. 1082 
[1933] N.P.D. 618 
[1937] T.P.D. 106 
(1842) 1 Menz. 210 
(1864) 1 Roscoe 209 
[1931] A.D. 303 . . 
[1919] A.D. 84 . . 



. . 146, 445 

.. ..307 

.. ..234 

. . . . 344 

. . . . 72 

.. ..292 

.. ..318 
376, 384, 435 



[1912] A.C. 673 267 

(1903) 7 Ceylon N.L.R. .. 132 



TABLE OF CASES 



XXIX 



Brooks & Wynberg v. New 
United Yeast Distributors 
Ltd 

Brown v. Brown 

Brown v. Brown 

Brown v. Brown 

Brown v. Laing 

Brown v. Rickard 

Brown's Est. v. Elliot Bros. . . 

Brown's Executrix v. McAdams 

Brown John v. Brownjohn 

Brownlie v. Campbell 

Brunsdon's Est. v. Brunsdon's 
Est 

Bruton, ex parte 

Buck v. Green 

Buisinne, In re Insolv. Est. 

Buisinne v. Mulder 

Bull v. Est. Bull 

Buller N. O. v. Linder 

Burger v. Central S. A. Rys. 

Burgers v. Knight 

Burns v. Burns 

Burrows v. McEvoy 

Burstein, ex parte 

Bushby v. Guardian Ass. Co. Ltd. 

Byrne v. Boadle 




[1920] 
[1938] 
[1932] 
(1828) 
(1835) 
[1940] 
[1925] 
[1903] 
[1916] 
[1937] 
[1921] 
[1941] 
[1916] 
(1863) 



T.P.D. 296 
T.S. 415 .. 
A.D. 478 .. 
N.P.D. 41 
E.D.L. 75.. .. 
2S.C. 314 
C.P.D. 325 
A.D. 231 .. 
W.L.D. 80 
5 A.C. 925 

C.P.D. 159 
C.P.D. 548 
N.P.D. 425 
1 Menz. 318, 326 

1 Menz. 162 
W.L.D. 133 . . 
N.P.D. 9 

T.S. 571 .. 
N.P.D. 399 
N.P.D. 67 
C.P.D. 229 
C.P.D. 87 
A.D. 488 .. .. 

2 H. & C. 722 . 



182, 452 

.. 96 

.. 427 

196, 203 

.. 376 

.. 86 

.. 72 

.. 319 

.. 95 

.. 451 

.. 307 

.. 388 

.. 221 

. 325 



C. v. C 

Cachet, In re 

Cadija Umma v. S. Don Manis 
Appu 

Caganoff v. Zacks 

Calitz v. Calitz 

Campbell v. Welverdiend Dia- 
monds Ltd 

Canavan & Rivas v. The New 
Transvaal Gold Farms Ltd. 

Caney v. Est. Johnsson 

Cantiare San Rocco S. A. v. 
Clyde Shipbuilding and 
Engineering Co 

Cape Dairy and General Live- 
stock Auctioneers v. Sim 

Cape Explosive Works Ltd. v. 
S. A. Oil & Fat Industries 
Ltd 

Cape Govt. v. Freer 

Cape Govt. v. Liq. Balmoral 
Diamond Co. 



[1943] E.D.L. 152 
(1898) 15 S.C. 5 . . 

[1939] A.C. 136 . . 
[1917] T.P.D. 334 
[1939] A.D. 56 . . 

[1930] T.P.D. 287 

[1904] T.S. 136 . . 
[1928] N.P.D. 13 



[1924] A.C. 226 . 
[1924] A.D. 167 . 



[1921] C.P.D. 244 
(1886) 4 S.C. 313 

[1908] T.S. 681 . 



87 
45 

282 

434 

37 

238 

160 
411 



347 
237 



216 
161 

197 



XXX 

Cape Town Council v. Ben- 
ning 

Cape Town Munic. v. Fletcher 

Cape Town Munic. v. Paine . . 

Cape Town Waterworks Co. v. 
Elder's Exore 

Carelse v. Est. De Vries 

Carey v. Carey 

Carlisle Banking Co. v. Bragg 

Carolis v. Simon 

Cassels v. Love 

Cato v. Alion & Helps 

Cato's Est. v. Est. Cato 

Celliers v. Colliers 

Central S. A. Rys. v. McLaren 

Ceylon Exports Ltd. v. Abey- 
sundere 

Chandler v. Middelburg Munic. 

Chase v. Du Toit's Trustees . . 

Chater, ex parte 

Cheek v. Cheek 

Chelliah v. Fernando 

Chester v. Munic. Council of 

Waverley 

Chiappini, In re Insolv. Est. of 

Chinnia v. Dunna 

Chisholm v. East Rand Mines 

Chiwell v. Carlyon 

Chong v. Chong 

Chudleigh's Case 

Cilliers, ex parte 

City Deep v. McCalgan 

Clarke v. Bruning 

Clarke v. Soffiantini 
Clement N. O. v. Banks 
Cloete v. Cloete's Trustees 

Cloete v. Roberts 

Cloete v. Union Corp. Ltd. 

Cluley v. Muller 

Coaton v. Alexander 
Coaton's Est. v. The Master . . 
Cock v. Cape of Good Hope 

Marine Ass. Co 

Coetzee, ex parte, 

Coetzee v. Higgins ..... 

Coetzee v. S. A. R 

Cohen, ex parte 

Cohen v. Herman & Canard . . 

Cohen v. Rapidol Ltd 

Cohen v. Shires, McHattie & 
King 



TABLE OF CASES 



[1917] A.D. 315 154 

[1936] C.P.D. 347 . . . . 176 
[1923] A.D. 207 . . 302, 324, 325 

(1890) 8S.C. 9 131 

(1906) 23 S.C. 532 .. .. 327 
[1931] C.P.D. 465 .... 88 
[1911] 1 K.B. 489 .. .. 222 
(1929) 30 Ceylon N.L.R. 266 387 

[1924] E.D.L. 28 312 

[1922] N.P.D. 469 . . 192, 200 
[1915] A.D. 290 . . 353, 370, 381 

[1904] T.S. 926 90 

[1903] T.S. 727 216 

(1933) 35 Ceylon N.L.R. 417 145 
[1924] T.P.D. 450 . . . . 337 
(1858) 3 Searle 78 . . . . 196 
[1942] O.P.D. 106 .... 74 

[1935] A.D. 336 91 

(1937) 39 Ceylon N.L.R. 130 

332, 333 

55 L.Q.R. (1939), p. 495 . . 342 
[1869] Buch. 143 .... 83 
[1940] N.P.D. 384 . . . . 40 
[1909] T.H. 297 .... 31 
(1897) 14 S.C. 61 .. ..70 
[1942] C.P.D. 192 .... 87 
(1589) 1 Co. Rep. 120 . . 376 

[1927] O.P.D. 65 384 

[1924] W.L.D. 276 . . . . 180 

[1905] T.S. 295 242 

1939 (1) P.H., B. 30 [C.P.D] 64 
[1920] E.D.L. 362 . . 70, 77 
(1887) 5 S.C. 59 .... 97 

(1903) 20 S.C. 413 . . . . 258 
[1929] T.P.D. 508 . . . . 205 
[1924] T.P.D. 720 . . . . 299 
[1879] Buch. 17 . . 200, 202 
[1915] C.P.D. 318 . . . . 394 

(1858) 3 Searle 114 . . . . 261 
1930 (1) P.H., B. 5 [O.P.D] 85 
(1887) 5 E.D.C. 352 .. . . 432 
[1933] C.P.D. 565 . . . . 342 
[1937] T.P.D. 155 .... 388 

(1904) 21 S.C. 621 . . . . 239 
[1934] A.D. 137 272 



(1882) 1 S.A.R. 41 



269 



TABLE OF CASES 



XXXI 



[1936] C.P.D. 490 


297, 298 


[1940] A.D. 399 . . 160, 


217,227 


ver . . . . [1938] C.P.D. 464 
(1857) 8 E. & B. 647 .. 
[1926] C.P.D. 187 


.. 335 
.. 311 

. . 260 


[1944] A.D. 456 . . 


. . 146 


(1907) 17 C.T.R. 110 .. 
rn (1767) 1 Sm. L.C. 406 
[1939] W.L.D. 48 
(1893) Hertzog 176 . . 
IT [1933] A.D. 141 .. 


.. 339 
.. 235 
.. 88 
.. 132 
.. 343 



Cohen v. Van der Westhuizen [1912] A.D. 519 160 

Cohen & Klein v. Duncan Gray 

& Co. 

Cole v Stuart 
Cole's Est. v. Oliver 
Collen v. Wright 
Collet v. Eva . 
Collin v. Toffie . 
Collinet v. Leslie 
Collins v. Blantern 
Collins v. Collins 
Collins v. Hugo 
Colman v. Dunbar 
Colonial Banking & Trust Co. 

v. Hill's Trustee 
Colonial Industries Ltd. v. Pro- 
vincial Insur. Co 

Colonial Manufacturing Co. v. 

Wiid 

Colonial Mutual Life Assurance 

v. Macdonald [1931] A.D. 412 339 

Columbia Furnishing Co. v. 

Goldblatt [1929] A.D. 27 194 

Comerma v. Comerma . . . . [1938] T.P.D. 220 . . . . 70 
Commrs. of Customs v. Randies 

Bros [1941] A.D. 369 .. . . 192, 240 

Commissioners of French Hoek 

v. Hugo (1885) 



[1927] A.D. 488 240 

[1922] A.D. 33 232 

[1927] C.P.D. 198 . . . . 198 



10 A.C. 336 ; 3 S.C. 
346 



155 



Commr. for Inland Revenue v. 

Crewe's Est 

Commrs. of Inland Revenue v. 

Est. Graaff 

Commrs. of Inland Revenue v. 

Est. Hollard 

Coningsby v. Coningsby 

Conradie v. Jones 

Conradie v. Roussouw 
Consolidated Finance Co. v. 

Reuvid 

Conway v. Westwood 

Cook v. Cook 

Cooper v. Crane 

Cooper v. Jordan 

Cooper v. The Govt 

Cooper's Est. In re 

Cooray v. Fernando 
Copeland & Creed v. Ditton 

Corea v. Peiris 

Coronation Collieries Co. v. 

Malan 

Coronel's Curators. Est. Coronel 



[1943] A.D. 656 .. . . 370, 443 
[1935] A.D. 210 .. . . 289, 445 



[1925] 
[1923] 
[1917] 
[1919] 

[1912] 
[1936] 
[1937] 
[1891] 
(1884) 
[1906] 
[1939] 
(1941) 
(1895) 
[1909] 

[1911] 
[1941] 



T.P.D. 154 . . 384, 386 

C.P.D. 443 .... 88 

O.P.D. 112 .. ..434 

A.D. 279 . . 215, 226, 440 



T.P.D. 1019 
N.P.D. 245 
A.D. 154 . . 
P. 369 

4 E.D.C. 181 
T.S. 436 . . 
C.P.D. 309 



276 

344 

90 

95 

138 

333 

370 



42 Ceylon N.L.R. 329 335 
9 E.D.C. 123 .. . . 429 
A.C. 549 . . 335 



T.P.D. 586 
A.D. 323 . 



153, 272 
289, 290 



xxxn 



TABLE OF CASES 



Coulthard v. Coulthard 
Court v. Mosenthal & Co. 

Coutts v. Jacob 

Cowan v. Beckworth 

Craggs, ex parte 

Cressey v. African Life Assur- 
ance Soc. Ltd 

Crisp v. Crisp 

Cronje v. Cronje 

Cronwright's Exors, ex parte . . 

Crook v. Pedersen Ltd 

Crooks & Co. v. Agricultural 
Co-op Union 

Cullinan v. Pistorius 

Cullinan v. Union Govt. 

Cuming v. Cuming 

Cundy v. Lindsay 

Curtis, Est. v. Gronningsaeter 

Cuthbert, In re 

Cutting v. Van der Hoven 



[1922] W.L.D. 13 


.. 96 


(1896) 13 S.C. 127 


.. 142 


[1927] E.D.L. 120 


.. 21 


1932 (1) P.M., B. 1 (D. & 


5 


C.L.D.) 


.. 95 


[1915] T.P.D. 385 


.. 85 


[1917] A.D. 605 .. 


.. 344 


[1934] W.L.D. 26 


.. 94 


[1907] T.S. 871 .. 


.. 90 


[1938] C.P.D. 236 


.. 132 


[1927] W.L.D. 62 


21,262 


[1922] A.D. 423 . . 137, 


193, 196 


[1903] O.R.C. 33 


250, 309 


[1922] C.P.D. 33 


.. 214 


[1945] A.D. 201 .. 


.. 70 


(1878) 3 App. Cas. 459 


.. 230 


[1942] C.P.D. 531 


.. 97 


[1932] N.P.D. 615 


.. 90 


[1903] T.H. 110 


.. 247 



D 



Dadoo Ltd. v. Krugersdorp 


i 




Munic. Council 


[1920] A.D. 530 . . 


.. ..240 


Dalton v. Angus 


(1881) 6 App. Cas. ; 


r 40 .. 175 


Dama v. Bera 


[1910] T.P.D. 928 


. . . . 41 


Daniels v. Cooper 


(1880) 1 E.D.C. 174 


.. ..294 


Danovich v. Danovitch's 






Exors 


[1919] T.P.D. 198 


. . . . 94 


Davies v. Lawlor 


[1941] E.D.L. 128 


.. ..261 


Davis v. Lockstone 


[1921] A.D. 153 . . 


.. ..319 


Davis' Tutor v. Est. Davis 


[1925] W.L.D. 168 


. . . . 43 


Dawson v. Dawson 


(1892) 9 S.C. 446 


. . . . 89 


De Beer v. De Beer 


[1940] T.P.D. 230 


93, 94 


De Beer v. Est. De Beer 


[1916] C.P.D. 125 


46, 47, 422 


De Beer v. Van der Merwe 


[1923] A.D. 378 . . 


. . 148, 175 


De Beer's Consol. Mines v 


(1893) 10 S.C. 359; ( 


1895) 12 


London & S.A. Exploratio] 


i S.C. 107 


; [1895] 


Co. 


A.C. 451 






303, 


306, 307, 451 


Debenham v. Mellon 


(1880) 5 Q.B.D. 394 


.. ..432 


De Charmoy & St. Pol v. Dhoo 




^ 


koo 


[1924] N.P.D. 254 


.. ..286 


De Jager, ex parte 


[1907] T.S. 283 . . 


.. ..384 


De Jager, ex parte 


[1926] N.P.D. 413 


.. ..378 


De Jager, In re 


[1876] Buch. 228 


. . 71, 105 


De Jager v. Oliphant's Syndi 






cate 


[1912] A.D. 505 . . 


.. ..232 


De Jager v. Scheepers 


(1880) Foord 120 


.. 149,383 



TABLE OF CASES 



xxxm 



De Jager v. Sisana [1930] 

Dekenah v. Linton . . . . [1920] 

De Klerk v. Pienaar . . . . (1899) 

De Kock v. De Kock . . . . [1942] 

De Kock v. Est. De Kock . . [1922] 

De Kock v. Fincham . . . . (1902) 

Delport v. Ah Yee [1913] 

Demerara Electric Co. Ltd. v. 

White 

Demerara Turf Club Ltd. v. 

Wight [1918] 

De Montford v. Broers . . . . (1887) 
Denny, Mott & Dickson Ltd. v. 

James B. Fraser & Co. Ltd. [1944] 

Denyssen v. Mostert . . . . (1872) 

De Pass v. Colonial Govt. . . (1886) 

Deny . Peek (1889) 

De Silva v. De Silva . . . . (1925) 

De Silva v. Juan Appu .. .. (1928) 

De Silva v. Wagapadigedera . . (1929) 

De Smidt v. Hoets (1852) 

Deutrom v. Deutrom . . . . (1935) 

Deutschman v. Mpeta . . . . [1917] 

De Villiers, ex parte [1943] 

De Villiers v. Barlow . . . . [1925] 
De Villiers u. Cape Divis. Council [1875] 

De Villiers v. Commaile . . . . (1846) 

De Villiers v. De Villiers . . [1920] 

De Villiers v. De Villiers : . [1938] 

De Villiers v, Est. De Villiers [1929] 

De Villiers v. Galloway . . . . [1943] 

De Villiers v. O'Sullivan . . (1883) 
De Villiers v. Parys Town 

Council [1910] 

De Vries v. Alexander . . . . (1880) 

De Waal v. Messing . . . . [1938] 

De Waal v. Ziervogel . . . . [1938] 

De Wet, ex parte [1919] 

De Wet, ex parte [1921] 

De Wet v. Bouwer [1919] 

De Wet v. Hiscock (1880) 

De Wet v. Union Govt [1934] 

Dhanalakium v. Subramanian [1943] 

Dias v. Livera (1879) 

Dias v. Silva (1937) 

Dicks, ex parte [1915] 

Dippenaar v. Hauman . . . . [1878] 

Dobbs v. Verran [1923] 

Dodd v. Hadley [1905] 

Dolphin, In re (1894) 

Dona Clara v. Dona Maria . . (1822) 

4901 



A.D. 71 . . . . 192, 200 

C.P.D. 579 . . . . 245 

16 S.C. 370 .. .; 148 

O.P.D. 140 . . . . 94 

C.P.D. 110 .. ..394 

19 S.C. 136 . . . . 295 

E.D.L. 374 . 328 



[1907] A.C. 330 328 



A.C. 605 294 

13 App. Cas. 149 . . 353 

A.C. 265 280 

L.R. 4 P.O. 236 . . 393 
4 S.C. 383 . . . . 285 

14 App. Cas. 337 . . 227 
27 N.L.R. 289 90, 336 

29 Ceylon N.L.R. 417 239 

30 Ceylon N.L.R. 317 383 

1 Searle 272 . . 356, 358 
37 Ceylon N.L.R. 91 143 
C.P.D. 79 197, 199, 250 
W.L.D. 16 . . . . 105 

O.P.D. 45 329 

Buch. 50 . . . . 161 
3 Menz. 544 . . . . 275 
C.P.D. 301 .... 93 
C.P.D. 565 .... 94 
C.P.D. 106 . . . . 385 
A.D. 439 155 

2 S.C. 251 . 152 



O.P.D. 55.. 
Foord 43 . . 
T.P.D. 34 
A.D. 112 .. 
O.P.D. 61.. 
C.P.D. 812 
C.P.D. 43 
1 E.D.C. 249 
A.D. 59 . . 
A.D. 160 . 



.. ..220 
. . 26, 309 
.. ..330 
.. ..332 

359 

. . . . 85 
. . . . 49 
.. ..129 
159, 160, 308 
. . 38, 106 



L.R. 5 App. Cas. 123 393 
39 Ceylon N.L.R. 358 274 



T.P.D. 477 
Buch. 135 
E.D.L. 177 
T.S. 439 . . 
15 N.L.R. 343 
Ramanathan, 
33, p. 33 



61 

. ..333 
. 215,218 
. 241,242 
.. 37 
1820- 

. 405 



XXXIV 



TABLE OF CASES 



Donniger v. Thorpe 
Dormiux v. Kriekenbeek 

Doubell v. Tipper 

Dreyer's Trustee v. Lutley . . 

Duckett v. Ochberg 

Dukes v. Marthinusen 
Duncan v. Duncan 
Dunman v. Trautman 

Dunn v. Bowyer 

Du Plessis v. Aswegen . . . . 
Du Plessis v. Est. Meyer 
Du Preez v. Du Preez 
Du Preez v. M'Kwambi 
Du Preez v. Steenkamp 
Durban Corp. v. McNeil 
Dutch Reformed Church of 

Dewetsdorp, ex parte 
Du Toit v. Renison 

Dwyer v. Goldseller 

Dwyer v. O'Flinn's Exor. 

Dyason v. Ruthven 

Dyer v. Melrose Steam Laundry 



[1930] T.P.D. 839 


.. 304,311 


(1821) Ramanathan, 


1820- 


33, p. 23 


. . . . 52 


(1894) 11 S.C. 23 


.. ..314 


(1884) 3 S.C. 59 .. 


.. ..204 


[1931] C.P.D. 493 


.. ..448 


[1937] A.D. 12 . . 


.. .. 339 


[1937] A.D. 310 . . 


89, 92 


(1891) 9 S.C. 14 .. 


.. ..308 


[1926] N.P.D. 516 


.. ..135 


[1931] T.P.D. 332 


.. ..341 


[1913] C.P.D. 1006 


.. 376,452 


(1901) 18 S.C. 438 


. . . . 93 


[1929] E.D.L. 90.. 


.. ..309 


[1926] T.P.D. 362 


.. ..312 


[1940] A.D. 66 . . 


.. ..268 


[1938] O.P.D. 136 


.. ..291 


[1939] E.D.L. 101 


.. .. 81 


[1906] T.S. 126 . . 


. . 277, 286 


(1857) 3 Searle 16 


.. ..368 


(1860) 3 Searle 282 


.. ..258 


[1912] T.P.D. 164 


.. ..216 



E 



Eastern & S. A. Telegraph Co. 
Ltd. v. Cape Town Tram- 
ways Co. Ltd 

Eastern Rand Exploration Co. 
v. Nel 

East London Munic. v. Halberd 

Eastwood v. Shepstone 

Eaton v. Registrar of Deeds . . 

Ebden's Est. v. Ebden 

Ebert v. Ebert 

Ebrahim's Est., In re 

Eckhardt v. Nolte 

Edmeades v. Scheepers 

Edwards v. Hyde 

Edwards (Waaikraal) G. M. Co. 
v. Mamogale 

Eksteen v. Eksteen 

Electric Process Engraving Co. 
v. Irwin 

Elliot v. Elliot .. 

Elliot v. Lord Joicey 

Els v. Mills 

Emslie v. African Merchants 
Ltd 

Enslin v. Meyer 

Erasmus v. Du Toit 

Erasmus v. Erasmus 



[1902] A.C. 381 338 

[1903] T.S. 42 250 

(1884) 3 S.C. 140 .. .. 238 

[1902] T.S. 294 236 

(1890) 7 S.C. 249 .. .. 133 
[1910] A.D. 321 .. . . 361, 371 
(1939) 40 Ceylon N.L.R. 388 90 
[1936] T.P.D. 60 . . . . 360 

(1885) 2 S.A.R. 48 . . 26, 309 
(1881) 1 S.C. 334 .. .. 178 
[1903] T.S. 381 .. . . 329, 342 

[1927] T.P.D. 288 . . 215, 301 
[1920] O.P.D. 195 . . . . 240 

[1940] A.D. 220 277 

[1925] C.P.D. 286 .... 87 

[1935] A.C. 209 31 

[1926] E.D.L. 346 . . . . 327 

[1908] E.D.C. 82 . . 266, 267 
[1925] O.P.D. 125 . . . . 314 
[1910] T.P.D. 1037 . . . . 173 
[1942] A.D. 265 70 



TABLE OF CASES 



XXXV 



Erasmus v. Erasmus' Guardians [1903] T.S. 843 
Erasmus v. Russell's Exor. . 
Essakow v. Galbraith 

Estel v. Novazi 

Evans, ex parte 

Evans & Plows v. Willis & Co. 
Everard, ex parte Exors. Est. 
Excell v. Douglas 



.. 361,362 
[1904] T.S. 365 .. . . 298, 299 

[1917] O.P.D. 53 119 

[1919] N.P.D. 406 . . . . 449 
1942 (2) P.H., B. 73 [O.P.D.] 74 
[1923] C.P.D. 496 . . . . 298 
[1938] T.P.D. 190 .... 86 
[1924] C.P.D. 472 ..431,432 



F. ex parte 

Fairlie v. Raubenheimer 

Farmer's Co-op. Soc. v. Berry 

Farnum v. Adm.-Gen. of Brit. 
Guiana 

Farrell v. Hankey 

Faure v. Tulbagh Div. Council 

Federal Tobacco Works v. Bar- 
ron & Co 

Feigenbaum v. Mills 

Fellows -Smith v. Shanks 

Fender v. St. John-Mildmay 

Ferguson v. Hucknell & Lan- 
german 

Fernandez v. Fernandez 

Fernando v. Alwis 

Fernando v. Fernando 

Fernando v. Fernando 

Fernando v, Fernando 

Fernando v. Kalutara Police 

Fichardt v. Webb 

Fichardt Ltd. v. Brand 

Fichardt Ltd. v. Faustmann . . 

Fichardt Ltd. v. Friend News- 
papers Ltd 

Fick v. Bierman 

Fick v. Rex 

Fietze v. Fietze 

Fillis v. Joubert Park Private 
Hospital 

Findlay v. Knight 

Fine v. Gen. Assur. Corp. 

Finn v. Joubert 

Fischer v. Liquidators Union 
Bank 

Fisher v. Coleman 

Fisher v. Malherbe & Rigg 

Fisher & Son v. Voges 

Fitzgerald, ex parte 

Fitzgerald v. Green 

Flanagan v. Flanagan 



[1914] W.L.D. 27 . . . . 363 

[1935] A.D. 135 243 

[1912] A.D. 343 .. . . 267, 269 

(1889) 14 App. Cas. 651 . . 353 
[1921] T.P.D. 590 .... 42 

(1890) 8 S.C. 72 .. .. 69,80 

[1904] T.S. 483 261 

[1929] N.P.D. 235 . . . . 261 

[1925] N.P.D. 168 . . . . 238 

[1938] A.C. 1 239 

[1903] T.H. 221 353 

[1943] 'C.P.D. 363 .... 87 
(1935) 37 Ceylon N.L.R. 201 379 
(1899) 4 Ceylon N.L.R. 285 268 
(1916) 19 Ceylon N.L.R. 193 46 
(1929) 31 Ceylon N.L.R. 107 168 
(1943) 45 Ceylon N.L.R. 49 129 
(1889) 6C.L.J. 258 .. .. 160 
[1928] O.P.D. 56 .. ..311 
[1910] A.D. 168 289 



[1916] A.D. 1 
(1882) 2 S.C. 26 . . 
[1904] O.R.C. 25 
[1913] E.D.L. 170 

[1939] T.P.D. 234 
[1935] A.D. 58 . . 
[1915] A.D. 213 . . 
[1940] C.P.D. 130 

(1890) 8 S.C. 46 .. 
[1937] T.P.D. 261 
[1912] W.L.D. 15 
[1925] C.P.D. 370 
[1923] W.L.D. 187 
[1911] E.D.L. 433 
[1913] N.P.D. 452 



. . 338, 340 

. . . . 248 

. . . . 47 

. . . . 33 

. . . . 38 

. . . . 333 

.. ..232 

. . . . 344 

352, 353, 354 
.. ..325 
. . . . 73 
. . 236, 237 
. . . . 38 
9, 31, 35, 63 
. 450 



XXXVI 

Flats Ltd. v. Transvaal Cons. 

Land Co 

Fletcher v. Bulawayo Water 

Works 

Fluxman v. Brittain 
Ford, ex parts. 

Ford v. Reed Bros 

Forster v. Becker 

Foster v. Hillman Bros. 
Foster v. Moss & Dell 

Foster v. Wheeler 

Fouche v. Battenhausen & Co. 

Fourie v. De Bruyn 

Foy v. Morkel 

Frame v. Boyce & Co 

Francis v. Savage & Hill * .. 

Franco v. Klug 

French Hoek Munic. v. Hugo 

Fresh Meat Supply Co. v. Stan- 
dard Trading Co 

Friedlander v. Cr oxford 
Friedman v. Friedman 
Friedman v. Harris 

Frost v. Leslie 

Fuchs v. Whiley, N. O 

Fulton, ex parte 



TABLE OF CASES 



[1920] T.P.D. 146 



. 170 



Gabergas v. Gabergas 
Gabrial v. Adikaran 

Galant v. Mahonga 

Galliers v. Rycroft 

Gammon v. McClure 

Gantz v. Wagenaar 

Gardens Est. Ltd. y. Lewis . . 

Gardner, ex parte 

Gaskill v. Gaskill 

Gates' Est., ex parte 

Gault v. Behrman 

Gavenas v. Gavenas 
Geldenhuys, ex parte 
Geldenhuys & Neethling v. 

Beuthin 

General Ceylon Tea Estates Co. 

v. Pulle 

George v. Lewe 

Gerber, ex parte 

Gerber v. Gerber 

Gerike v. Gerike 

Ghislin's Est. v. Fagan 
Gibson, In re 



[1915] A.D. 636 . . 


.. 451,452 


[1941] A.D. 273 . . 


. . . . 261 


[1940] W.L.D. 155 


.. .. Ill 


[1922] T.P.D. 266 


. . 198, 199 


[1914] E.D.L. 193 


. . .. 66 


[1932] W.L.D. 222 


.. ..265 


[1927] E.D.L. 208 


.. ..342 


(1887) 36 Ch. D. 695 


.. ..223 


[1939] C.P.D. 228 


47, 50, 422 


[1914] A.D. 374 . . 


. . . . 215 


[1929] W.L.D. 174 


58, 59, 95 


[1925] T.P.D. 353 


.. ..431 


(1882) 1 S.A.R. 33 


.. ..191 


[1940] A.D. 126 . . 


.. ..326 


(1883) 10 App. Cas. 336; 3 


S.C. 346 


.. ..155 


[1933] C.P.D. 550 


.. ..195 


(1867) 5 Searle 395 


.. ..309 


[1917] C.P.D. 268 


.. ..309 


[1928] C.P.D. 43 


.. ..239 


[1923] A.D. 276 . . 


.. 228,230 


[1934] C.P.D. 130 


. . 55, 423 


[1912] C.P.D. 868 


.. ..378 



G 

[1921] E.D.L. 279 . . 
(1941) 42 Ceylon N.L.R. 

[1932] E.D.L. 69. . . . 

[1901] A.C. 130; 17 S.C. 

[1925] C.P.D. 137 .. 

(1828) 1 Menz. 92 .. 
[1920] A.D. 144 

[1940] E.D.L. 175 . . 
[1921] P. 425 

[1919] C.P.D. 162 .. 

[1936] T.P.D. 37 .. 

[1936] C.P.D. 132 .. 

[1926] O.P.D. 155 . . 



. . 33 

146 204 

167, 185 

569 381 

.. 65 

.. 46 

169 

. . 122 
33 

.. 40 
.. 134 
.. 63 
. . 167 



[1918] A.D. 426 



449 

(1906) 9 Ceylon N.L.R. 98 451 

[1935] A.D. 249 ...... 243 

[1928] W.L.D. 228 . . . . 427 

[1928] W.L.D. 300 . . . . 59 

(1900) 14E.D.C. 113 .. .. 92 

[1925] C.P.D. 206 . . . . 203 

[1912] N.P.D. 204 . . . . 87 



TABLE OF CASES 



Gillespie, ex parte [1943] 

Gilsonv. Payn (1899) 

Girigorishamy v. Lebbe Marikar (1928) 



Glaser v. Blotwick [1941] 

Glass v. Perl [1928] 

Gledhill, In re Intest. Est. of (1891) 

Glover v. Finch [1921] 

Gluckman v. Goodworths Ltd. [1928] 
Gluckman v. Schneider . . . . [1936] 
Gnanaprakasam v. Mariapillai (1937) 
Goldblatt v. Fremantle . . . . [1920] 
Goldblatt v. Merwe .. .. (1902) 
Goldfoot v. Myerson . . . . [1926] 
Goldinger's Trustee v. Whitelaw[1917] 
Goldman N. O. v. Est. Gold- 
man [1937] 

Goldseller v. Kuranda . . . . [1906] 

Gonstana v. Ludidi Diana . . (1892) 

Gooneratne v. Don Philip . . (1899) 
Goonewardene v. Goonewar- 

dene 

Goonewardene v. Wickrema- 

singhe (1932) 

Goosen v. Bosch [1917] 

Goosen's Trustees v. Goosen . . (1884) 
Gopalsamy v. Ramasamy Pulle (1911) 

Gordon, In re Intest. Est. of (1909) 

Gordon v. Gordon [1929] 

Gordon's Bay Estates v. Smuts [1923] 

Gorfinkel v. Miller [1931] 

Gow v. The Master [1936] 

Graaf-Reinet Bd. of Exors. v. 

Est. Erlank [1933] C.P.D. 41 

Graham v. Local & Overseas 

Investments (Pty) Ltd. . . [1942] 

Grassman v. Hoffman . . . . (1885) 

Gray v. Perpetual Trustee Co. [1928] 

Gray v. Poutsma [1914] 

Greef v. Verraux (1829) 

Greeff v. Pretorius (1895) 

Green v. Fitzgerald . . . . [1914] 

Green v. Griffiths (1886) 

Greenberg's Est. v. Rosenberg 

& Greenberg [1925] 

Grek v. Jankelowitz . . . . [1918] 

Greydt-Ridgeway v. Hopperjb 1930 1 

Greyvenstein v. Hattingh .. [1911] 



xxxvii 

C.P.D. 58 . . . . 374 
16 S.C. 286 . . . . 261 
30 Ceylon N.L.R. 209 111 
C.P.D. 403 . . . . 242 
T.P.D. 264 . . 333, 344 
12 N.L.R. 43 .. . . 406 
C.P.D. 358 . . . . 319 

E.D.L. 95 311 

A.D. 151 333 

39 Ceylon N.L.R. 406 176 

A.D. 123 217 

19 S.C. 373 . . . . 261 
T.P.D. 242 . . 246, 445 
A.D. 66 . . . . 142, 190 



W.L.D. 64 . . 43, 388 

T.H. 185 333 

7 E.D.C. 60 . . . . 314 
5 Ceylon N.L.R. 268 234 



(1929) 31 Ceylon N.L.R. 9 371 



34 Ceylon N.L.R. 5 89 

C.P.D. 189 . . . . 353 

3 E.D.C. 368 .. . . 190 

14 Ceylon N.L.R. 238 353 

30 N.L.R. 325 . . 406 

W.L.D. 165 . . . . 92 

A.D. 160 386 

C.P.D. 251 . . . . 346 

C.P.D. 296 . 373 



A.D. 95 . . 

3 S.C. 282 
A.C. 391 . . 
T.P.D. 203 
1 Menz. 151 
12 S.C. 104 



.. 247 

.. 158 

.. 429 

.. 395 

.. 340 

.. 51 

. 194 



Grinker v. Grinker [1940] 

Grobler v. Grobler [1943] 

Grobler v. Schmilg & Freedman [1923] 

Grobler v. Union Govt [1923] 



A.D. 88 10, 34, 365, 406 
4 S.C. 346 160, 161, 308 

T.P.D. 924 . . 247, 445 
C.P.D. 140 . . . . 340 
P.H., J. 14. [T.P.D.] 338 
A.C. 355; [1911] A.D. 

358 322 

W.L.D. 236 . . . . 94 
O.P.D. 192 . . . . 94 
A.D. 496 .. . . 66, 429 
T.P.D. 429 . . 42 



XXXV111 



TABLE OF CASES 



Groenewald v. Van der Merwe 
Grootchwaing Salt Works Ltd. 

v. Van Tender 

Gruenewald v. Mathias 
Gunatilleke v. Fernando. . 



Gunatilleke v Mille Nona 
Guneratne v. Yapa . . 



[1917] A.D. 233 



142 



H. (wrongly called C.) v. C. 

Haacke v. Deutsche Presse Ltd. 

Hadley v. Baxendale 

Hagemann, exparte 

Haines' Exor. v. Haines 

Hairman v. Crawley 

Hall v. Hall's Trustees 

Hall v. Howe 

Hall v. Zietsman 

Halliwell v. Johannesburg 
Munic. Council 

Hamilton v. MacKinnon 

Hanau & Wicke v. The Stan- 
dard Bank 

Haniffa v. Ocean Accident Corp. 

Hannay v. Parfitt 

Hansen, Schrader & Co. v. 
Kopelowitz 

Hardaker v. Tjabring 

Hare v. Heath's Trustee 

Harms v. Malherbe 

Harris v. A. C. White Co. Ltd. 

Harris v. Buisinne's Trustee . . 

Harris v. Pieters 

Hart v. Cohen 

Hart v. Lennox 

Hart v. The Master 

Hartogh v. Nat. Bank 

Hartzenberg, ex parte 

Hasler v. Hasler 

Hauman v. Nortje 

Haupt v. Haupt 

Havemann v. Oldacre Bros. . . 

Havemann's Assignee v. Have- 
mann 's Exor 

Hayes v. Hayes 

Hazaree v. Kamaludin 

Hazis v. Transvaal & Delagoa 
Bay Investment Co. 

Head v. Du Toit 



[1920] A.D. 492 310 

[1925] S.W.A. 117 .. ..156 
(1919) 21 Ceylon N.L.R. 257; 

[1921] 2 A.C. 357; 

22 N.L.R. 385 144 
(1936) 38 Ceylon N.L.R. 291 95 
(1926) 28 Ceylon N.L.R. 397 291 

H 

[1929] T.P.D. 992 .... 64 

[1934] T.P.D. 191 . . . . 345 

(1854) 9 Exch. 341 .. .. 266 

(1909) 26 S.C. 503 .. .. 67 

[1917] E.D.L. 40 290 

[1923] O.P.D. 3 63 

(1884) 3 S.C. 3 .. .. 75,96 

[1929] T.P.D. 591 . . . . 241 

(1899) 16 S.C. 213 .. .. 334 

[1912] A.D. 659 325 

[1935] A.D. 114, 346 .. .. 325 



(1891) 4S.A.R. 130 .. .. 249 
(1933) 35 Ceylon N.L.R. 216 260 
[1927] T.P.D. Ill .. ..302 




[1928] 
(1896) 
[1914] 
(1897) 
(1905) 



T.S. 707 . . 
N.P.D. 145 
3 S.C. 32 . . 
C.P.D. 167 
O.P.D. 104 
2 Menz. 105 
A.D. 644 . . 
16 S.C. 363 
W.L.D. 219 
C.P.D. 78 
T.S. 1092; 

T.H. 207 
C.P.D. 385 

13 S.C. 377 
A.D. 293 . . 

14 S.C. 39 
26 N.L.R. 56 



[1927] A.D. 473 . 
[1928] T.P.D. 618 
[1934] A.D. 108 . , 

[1939] A.D. 372 . . 
[1932] C.P.D. 287 



.. ..305 

. . . . 344 

.. ..191 

. . 340, 427 

.. ..334 

145, 146, 191 

. . . . 274 

. . . . 341 

.. ..134 

. . . . 362 
[1907] 

.. ..200 

.. ..105 

. . . . 87 

. . . . 264 

. . . . 50 

.. ..259 

. . . . 355 

88 

. . . . 333 

. . . . 260 
. 175 



TABLE OF CASES xxxix 

Hearson v. Natal Witness Ltd. [1935] N.P.D. 603 . . . . 344 
Heidelburg Munic. v. Uys . . (1898) 15 S.C. 156 . . . . 173 
Heilman v. Vorbeck . . . . [1925] T.P.D. 790 . . . . 236 
Heinamann, Est. v. Heinamann [1919] A.D. 99 8, 27, 54, 91, 365 

Helps v. Natal Witness Ltd. . . [1937] A.D. 45 344 

Henderson v. Henderson . . [1944] A.C. 49 87 

Henley's Trustee v. Henley . . [1926] N.P.D. 119 . . . . 96 
Henning v. Le Roux . . . . [1921] C.P.D. 587 . . . . 302 

Henry v. Henry [1935] C.P.D. 224 .... 91 

Herbert v. Anderson . . . . (1839) 2 Menz. 166 . . 26, 160 

Heriot G. M. Co. v. Union Govt. [1916] A.D. 415 319 

Hermann v. Charlesworth . . [1905] 2 K.B. 123 . . . . 239 
Hem & Co. v. de Beer . . . . [1913] T.P.D. 721 72, 429, 430 
Herron, In re, ex parte Waters (1840) 2 Menz. 423 . . . . 372 
Hersman v. Shapiro & Co. . . [1926] T.P.D. 367 . . . . 279 
Hertzog v. Wessels' Est. . . [1925] O.P.D. 141 . . . . 450 
Herzenberg Mullne Ltd. v. Cape 

Town Council [1926] C.P.D. 451 .... 153 

Heydenrych v. Fourie .. .. (1896) 13 S.C. 371 .. 199,201 
Heydenrych v. Standard Bank 

of S.A [1924] C.P.D. 335 . . . . 218 

Heyman v. Darwin's Ltd. . . [1942] A.C. 356 265 

Hiddingh v. Commissioners for 

Inland Revenue .. .. [1941] A.D. Ill .. ..247 

Hiddingh v. Denyssen .. .. (1885) 3 S.C. 424 .. ..354 
Hildebrand v. Hildebrand . . [1923] W.L.D. 151 . . . . 59 

Hilder v. Young (1890) 11 N.L.R. 154 .. 429 

Hill & Co. v. McClure . . . . [1909] T.H. 212 .... 429 

Hochster v. De la Tour . . . . (1853) 2 E. & B. 678 . . . . 265 
Hodgson Bros. v. S. A. R. . . [1928] C.P.D. 257 . . . . 220 
Hoffman v. Est. Mechau . . [1922] C.P.D. 179 .... 35 
Hoffman v. Prinsloo & Hoffman [1928] T.P.D. 621 . . . . 234 
Hoffman v. S. A. Conserva- 

torium of Music .. .. (1908) 25 S.C. 24 .. ..220 
Holdgate v. Moodley . . . . [1934] N.P.D. 356 . . . . 72 

Holdt v. Meisel [1927] S.W.A. 45 . . . . 344 

Holmes Garage Ltd. v. Levin [1924] G.W.L.D. 58 199, 319 
Hong Kong & Shanghai Bank 

v. Krishnapillai . . . . (1932) 33 Ceylon N.L.R. 249 206 
Hoogendoorn Ltd. v. Fouche [1933] C.P.D. 560 . . . . 340 
Hopley's Est., ex parte, ,. . . [1940] C.P.D. 60 . . . . 388 

Horak v. Horak (I860) 3 Searle 389 . . 33, 96 

Home v. Hutt [1915] C.P.D. 331 .... 295 

Home v. Williams & Co. . . [1940] T.P.D. 106 . . . . 261 
Hotz v. Standard Bank . . . . (1907) 3 Buch. A.C. 53 . . 238 
Houghton Est. Co. v. McHattie (1894) 1 Off. Rep. 92 . . 307 
Houldsworth v. City of Glasgow 

Bank (1880) 5 App. Gas. 317 .. 339 

Houston v. Bletchly . . . . [1926] E.D.L. 305 . . . . 216 

Hulley v. Cox [1923] A.D. 234 .... 330 

Hulton v. Jones [1910] A.C. 20 331 

Human v. Rieseberg .. .. [1922] T.P.D. 157 .. ..311 



xl TABLE OF CASES 

Humphreys, ex parte .. .. [1921] W.L.D. 74 .... 37 

Humphreys v. Cassell . . . . [1923] T.P.D. 280 . . . . 217 

Humphreys v. Pickles .. .. [1925] A.D. 471 .. ..189 

Hunt v. Hunt [1940] W.L.D. 55 .... 95 

Hurwitz v. Taylor [1926] T.P.D. 81 . . . . 239 

Hyams & Wolf v. Simpson .. [1908] T.S. 78 445 

I 

Ibrahim Saibo v. Pallaku Lebbe (1928) 29 Ceylon N.L.R. 347 241 

Incorporated Law Soc. v. Reid (1908) 25 S.C. 612 .. ..238 
Ingle Colonial Broom Co. v. 

Hocking [1914] C.P.D. 495 . . . . 449 

Irvin & Johnson (S.A.) Ltd. v. 

Kaplan [1940] C.P.D. 647 . . . . 220 

Irwin v. Davies [1937] C.P.D. 442 . . . . 318 

Isaacman v. Miller [1922] T.P.D. 56 . . 237, 337 

Ismail v. Marikar (1932) 34 Ceylon N.L.R. 198 387 



Jacobs v. Cape Town Munici- 
pality [1935] C.P.D. 474 .. .. 43 

Jacobs v. Lorenzi [1942] C.P.D. 394 . . . . 328 

Jacobs v. Macdonald . . . . [1909] T.S. 442 335 

Jacobsohn's Trustee v. Standard 

Bank (1899) 16 S.C. 201 .. 247,248 

Jaffar, ex parte [1944] C.P.D. 142 .... 74 

Jajbhay v. Cassim [1939] A.D. 537 236 

James v. James' Est [1941] E.D.L. 67 240 

Jameson's Minors v. C. S. A. R. [1908] T.S. 575 .. . . 329, 330 
Janson v. Driefontein Cons. 

Mines [1902] A.C. 484 239 

Japhtha v. Mill's Exors [1910] E.D.C. 150 .. ..303 

Jassat v. Lewis [1924] T.P.D. 11 .. .. 308 

Jayashamy v. Abeysuriya . . (1912) 15 Ceylon N.L.R. 348 365 

Jayawickreme v. Amasuriya . . [1918] A.C. 869 226 

Jeffery v. Pollack [1938] A.D. 1 247 

Jewish Colonial Trust v. Est. 

Nathan [1940] A.D. 163 .. . . 384, 388 

Jinadasa v. Silva (1932) 34 Ceylon N.L.R. 344 246 

Jinasena v. Engeltina . . . . (1919) 21 Ceylon N.L.R. 444 152 
Joffe v. African Life Ass. Ltd. [1933] T.P.D. 189 . . . . 256 

Joffe & Co. v. Hoskins . . . . [1941] A.D. 431 104 

Johannesburg City Council v. 

Viccinovich [1940] A.D. 365 341 

Johannesburg Mun. v. Trans- 
vaal Cold Storage Co. . . [1907] T.S. 722 184 

Johannesburg Mun. Council v. 

African Realty Trust Ltd. [1927] A.D. 163 341 

Johannesburg Mun. Council v. 

Rand Townships Registrar [1910] T.P.D. 1314 .. ..161 
Johannesburg Mun. Council v. 

Robinson G. M. Co. . . [1923] W.L.D. 99 . . . . 153 



TABLE OF CASES 



Johnson v. Mclntyre 
Johnson v. Rand Daily Mails 
Johnson & Co. v. Grand Hotel 

Co 

Johnson & Irvin v. Mayston 

Johnston v. Powell 

Johnstone v. Johnstone 
Jones v. Cape Town Town 

Council 

Jones v. Cotts & Co 

Jones v . Goldschmidt 

Jones v. Reynolds 

Jonnsson's Est. v. Est. Jonns- 

son 

Jooste v. Jooste 

Jooste v. Jooste's Exors. 
Jordaan v. Winkelman 
Jordaan's Curator, ex parte . . 
Jordaan's Est., In re 

Josef v. Mulder 

Joseph v. Est. Joseph 

Joseph Constantino Steamship 

Line Ltd. v. Imperial 

Smelting Corp. Ltd. 

Joubert v. Enslin 

Joubert v. Russouw's Exor. . . 

Joubert v. Tarry & Co 

Judd v. Fourie 

Judes v. S. A. Breweries Ltd. 



xli 



(1893) 10 S.C. 318 ..39,58,59 
[1928] A.D. 190 332 

[1907] O.R.C. 42 . . . . 138 

(1908) 29 N.L.R. 696 . . 137 

(1909) 26 S.C. 35 .... 66 
[1917] A.D. 292 .. . . 91,92 

(1896) 13 S.C. 43 .. ..148 
(1902) 23 N.L.R. 269 . . 298 
(1881) 1 S.C. 109 .. .. 240 
[1913] A.D. 366 215 

[1926] N.P.D. 284 . . . . 218 
(1907) 24 S.C. 329 .. .. 87 
(1891) 8 S.C. 288 .. 71,355 

[1879] Buch. 79 175 

[1929] O.P.D. 168 . . . . 42 
(1907) 24 S.C. 84 . . . . 379 

[1903] A.C. 190 378 

(1907) 24 S.C. 76 .. ..361 



[1942] A.C. 154 280 

[1910] A.D. 6 . . 44, 215, 261 

[1877] Buch. 21 368 

[1915] T.P.D. 277 . . . . 312 
(1881) 2 E.D.C. 41 . . 173, 174 
[1922] W.L.D. 1 204 

K 



Kaal Valley Supply Stores v. 

Louw . . . . , . 
Kalamie v. Armadien 
Kam N.O. v. Udurn 

Kanatopsky v. Kanatopsky . . 

Kaplan v. Schulman 

Karbe, ex parte 

Kareiga Baptist Church Trus- 
tees v. Webber 

Karonchihamy v. Angohamy 

Karoo & Eastern Board of 
Exors. v. Farr 

Karsten v. Foster 

Katz v. Dreyer's Trustee 

Kay v. Argus Printing Co. 

Kayser & De Beer v. Est. Lie- 
benberg 

Keeler v. Butcher & Sons 

Keeve, ex parte 

Kelly v. Holmes Bros. Ltd. . . 



[1923] O.P.D. 60 
[1929] C.P.D. 490 . . 
[1939] W.L.D. 339; [1940] 
W.L.D. 137 . . 
[1935] E.D.L. 308 . . 
[1933] C.P.D. 544 . . 
[1939] W.L.D. 351 . . . . 


142 
328 

264 
95 
279 
74 


(1903) 17 E.D.C. 105 .. 
(1904) 8 Ceylon N.L.R. 1 .. 


148 

28 


[1921] A.D. 413 
[1914] C.P.D. 919 . . 
[1920] A.D. 454 
[1937] N.P.D. 119 .. .. 


231 
66 
142 
345 


[1926] A.D. 91 
(1907) 28 N.L.R. 43 .. .. 
[1929] O.P.D. 19 . . 
[1927] O.P.D. 29 


199 
249 
41 
262 



xlii 



TABLE OF CASES 



Kelner v. Baxter (1866) L.R. 2 C.P. 174 


.. 444 


Kemp's Est. v. McDonald's 




Trustee [1915] A.D. 491 .. 


384, 388 


Kemsley v. Kemsley . . . . [1936] C.P.D. 518 


67, 379 


Kennedy v. Steenkamp . . . . [1936] C.P.D. 113 


.. 236 


Kent v. Salmond [1910] T.S. 637 


.. 81 


Kerguelen Sealing & Whaling 




Co. v. Comrnrs. for Inland 




Revenue [1939] A.D. 487 .. . . 


.. 216 


Kerkhof, ex parte .. .. .. [1924] T.P.D. 711 


27,91 


Keyter v. Terblanche . . . . [1935] E.D.L. 186 


.. 449 


Kidney v. Garner [1929] C.P.D. 163 


.. 295 


Kieley v. Dreyer [1916] C.P.D. 603 


.. 239 


Kilbum v. Est. Kilburn . . [1931] A.D. 501 .. 


.. 187 


Killian v. Reilly (1908) 18 C.T.R. 159 . . 


.. 198 


King v. Gray (1907) 24 S.C. 554 .. 


.. 239 


King v. Neale [1936] E.D.L. 236 . . 


.. 344 


Kingsley v. African Land Corp. [1914] T.P.D. 666 


.. 231 


Kirkpatrick v. Bezuidenhout . . [1934] T.P.D. 155 


.. 333 


Kirsh v. Pincus [1927] T.P.D. 199 ^ .. 


151, 152 


Kirsten v. Niland [1920] E.D.L. 87. . .. 


.. 298 


Kistan v. Komarasamy . . . . [1940] N.P.D. 56 


.. 285 


Kithiratne v. Salgado .. .. (1932) 34 Ceylon N.L.R. 


69 378 


Klass v. Klass . . . . . . [1924] W.L.D. 136 . . 


.. 90 


Kleinhans, In re Est [1927] C.P.D. 73 


.. 378 


Klette v. Pfitze (1891) 6 E.D.C. 134 .. 


.. 427 


Kleyn v. Est. Kleyn .. .. [1915] A.D. 527 .. .. 


371,394 


Kleynhans v. Usmar . . . . [1929] A.D. 121 .. 


.. 333 


Kleynhans Bros. v. Wessel's 




Trustee [1927] A.D. 271 .. 


228, 296 


Klopper v. Maloko [1930] T.P.D. 860 


.. 267 


Klug v. Perkin [1932] C.P.D. 401 


.. 347 


Knocker v. Standard Bank . . [1933] A.D. 128 .. 


.. 316 


Knoop, In re (1893) 10 S.C. 198 


42,43 


Knox v.Koch (1883) 2 S.C. 382 


.. 238 


Knupffer v. London Express 




Newspaper Ltd [1944] A.C. 116 .. .. 


.. 345 


Koch v. Panovska [1934] N.P.D. 776 


.. 267 


Kock v. Klein [1933] C.P.D. 194 


.. 338 


Koen, ex parte [1930] O.P.D. 154 


.. 388 


Koenig v. Godbold [1923] C.P.D. 526 


.. 319 


Koenig v. Johnson & Co. . . [1935] A.D. 262 . . 


.. 264 


Koenigsberg & Co. v. Robinson 




G. M. Co [1905] T H. 90 


. . 166 


Komen v. De Heer (1908) 29 N.L.R. 237 . . 


.. 160 


Komen, Exor. Est. v. De Heer (1907) 28 N.L.R. 577 


.. 160 


Konien, Exor. Est. v. De Heer (1908) 29 N.L.R. 487 


.. 292 


Koniglich Preussisch-Branden- 




burgische Hausfideikom- 




miss v. Admin. S. W. A.. . [1928] S.W.A. 82 


.. 121 


Koopmans' Est. v. Est. De Wet [1912] C.P.D. 1061 . . 


.. 392 


Kotz6 v. Frenkel & Co [1929] A.D. 418 . . . . 


.. 272 



TABLE OF CASES 



xliii 



Kotze v. Johnson 

Kotz6 v. Prins 

Krige v. Scoble 

Kristnappa Chetty v. Horatala 

Kroon v. Enschede 

Kroonier v. Hess & Co 

Kropf , ex parte 

Kruger v. Verster .... 

Kunne v. De Beer 

Kunz v. Swart 

Kusmawathi v. Weerasinghe 
Kynochs Ltd. v. Transvaal Sil- 



[1928] A.D. 313 266 

(1903) 20S.C. 156 .. .. 433 

[1912] T.P.D. 814 . . . . 353 

(1923) 25 Ceylon N.L.R. 39 206 

[1909] T.S. 374 318 

[1919] A.D. 204 297 

[1936] W.L.D. 28 .... 59 

[1925] C.P.D. 6 435 

[1916] C.P.D. 667 . . . . 427 

[1924] A.D. 618 397 

(1932) 33 Ceylon N.L.R. 265 383 



ver & Base Metals Ltd. . . 


[1922] W.L.D. 71 


.. 445 




L 




Laas, ex parte 


[1923] N.P.D. 104 . . 


.. 378 


Lacey v. Lacey 


[1929] W.L.D. 132 . . 


.. 427 


Lachter v. Glaser 


[1914] T.P.D. 461 


.. 334 


Laing v. Le Roux 


[1921] C.P.D. 745 


.. 71 


Laing v. S. A. Milling Co. 


[1921] A.D. 387 .. 


.. 294 


Lalla, In re Est 


[1922] N.P.D. 18 


. . 359 


Lalchand v. Saravanamuttu . . 


(1934) 36 Ceylon N.L.R. 


273 431 


Lamahamy v. Karunarotno . . 


(1921) 22 Ceylon N.L.R. 


289 43 


Lamb v. Walters 


[1926] A.D. 358 .. 


.. 229 


Lamb & Sons v. Goring Brick Co. 


[1932] 1 K.B. 710 


.. 271 


Lament v. Heyns 


[1938] T.P.D. 22 


.. 135 


Land Bank v. Mans 


[1933] C.P.D. 16 


.. 198 


Landau v. City Auction Mart 


|>1940] A.D. 284 .. 


.. 264 


Lanfear v. Du Toit . . . . , . 


[1943] A.D. 59 . . 


.. 272 


Lange v. Lange 


[1945] A.D. 332 .. 


.. 95 


Lange v. Liesching 


(1880) Foord 55 376, 


383, 434 


Larkin v. Jacobs 


[1929] T.P.D. 693 


.. 304 


Lategan v. Union Govt. 


[1937] C.P.D. 202 


.. 169 


Lavery & Co. v. Jungheinrich 


[1931] A.D. 156 .. 


.. 267 


Lawrie v. Union Govt 


[1930] T.P.D. 402 


.. 347 


Laws v. Rutherford 


[1924] A.D. 261 .. 


.. 216 


Lazarus & Jackson v. Wessels 


[1903] T.S. 510 .. 


.. 186 


Lechoana v. Cloete 


[1925] A.D. 536 .. 


79, 452 


Lecler v. Grossman 


[1939] W.L.D. 41 


.. 90 


Ledimo v. Ledimo 


[1940] O.P.D. 65.. .. 


.. 87 


Leedham, In re 


(1901) 18 S.C. 450 .. 


.. 361 


Leeuw, ex parte 


(1905) 22 S.C. 340 


406,412 


Leibenguth v. Van Straaten . . 


[1910] T.P.D. 1203 . . 


.. 332 


Leisa v. Siyathuhamy 


(1925) 27 Ceylon N.L.R. 


315 333 


Le Lievre v. Gould 


(1893) 1 Q.B.D. 491 . . 


.. 325 


Leschin v. Kovno Sick Benefits 






Soc 


[1936] W.L.D. 9 


.. 122 


Lever v. Buhrmann 


[1925] T.P.D. 254 


.. 318 


Levin v. Levin 


[1911] C.P.D. 1026 . . 


.. 92 


Levine v. Levine 


[1939] C.P.D. 97 


94,95 


Levine v. Levine 


[1939] C.P.D. 246 


.. 63 


Leviseur v. Scott 


[1922] O.P.D. 138 


.. 274 



xliv 



TABLE OF CASES 



Levy v. Phillips [1915] A.D. 139 . . 
Levy v. Tyler [1933] C.P.D. 377 
Lewis & Co. v. Malkin . . . . [1926] T.P.D. 665 
Liebenberg v. Loubser . . . . [1938] T.P.D. 414 
Liebenberg's Est. v. Standard 
Bank [1927] A.D. 502 . . 
Lilienfeld v. Bourke . . . . [1921] T.P.D. 365 
Lionel v. Hepworth . . . . [1933] C.P.D. 481 
Liquidators of Union Bank v. 
Kiver (1891) 8 S.C. 147 
Liquidators of Union & Rhode- 
sia Wholesale Ltd. v. Brown 
& Co [1922] A.D. 549 . . 


. . . . 227 
. . . . 198 
. . . . 262 
. . . . 257 

. . ..318 
.. ..233 

. . . . 64 

. . . . 72 
. . 189, 203 


Lissack & Co. v. Sigma Build- 
ing Co (1897) 4 O.K. 213 


. . . . 178 


Livera v. Gonsalez (1913) 17 Ceylon NJ 
Liverpool Corp. v. Coghill . . [1918] 1 Ch. 307 
Lobley v. Lobley [1940] C.P.D. 420 
Logan v. Beit (1890) 7 S.C. 197 
London Chemists & Opticians 
Ltd. v. Shapiro . . . . [1926] T.P.D. 690 
London & S. A. Exploration 
Co. v. Kimberley Town 
Council (1882) 1 H.C.G. 136 
London & S. A. Exploration 
Co. v. Bouliot (1890) 8 S.C. 75 
Longpan Salt Co. v. Blumenfeld 
& Co [1922] N.P.D. 177 


L.R. 5 239 
. . . . 175 

. . . , 93 
. . 220, 222 

. . . . 445 

.. ..178 
.. ..153 
.. ..198 


Lord v. Gillwald [1907] E.D.C. 64 
LorentzN.O., ex parte .. .. [1928] S.W.A. 153 
Lorenz v. Rabinowitz . . . . [1933] C.P.D. 143 
Lorenzo v. Rakagiatis . . . . [1938] N.P.D. 68 
Loteryman & Co. v. Cowie . . [1904] T.S. 599 . . 
Loudon, In re insol. est. of, Dis- 
count Bank v. Dawes . . (1829) 1 Menz. 380 
Louisa v. Van den Berg . . . . (1830) 1 Menz. 471 
Lourenson v. Swart . . . . [1928] C.P.D. 402 
Louw, ex parte [1920] C.P.D. 7 . . 
Louw v. Louw [1933] C.P.D. 407 
Lovell v. Paxinos [1937] W.L.D. 84 
Lubbe v. Trollip [1926] E.D.L. 239 
Lucas' Trustee v. Ismail & 
Amod [1905] T.S. 239 .. 
Luyt v. Morgan [1915] E.D.L. 142 
Luzmoor v. Luzmoor . . . . [1905] T.H. 74 . . 
Lydenburg Estates v. Palm & 
Schutte [1923] T.P.D. 278 
Lyon v. Steyn [1931] T.P.D. 247 

M 
Macdonald, ex parte .. .. [1929] W.L.D. 18 
MacDonald Ltd. v. Radin N. O. [1915] A.D. 454 . . 


.. ..267 
.. ..110 
.. ..264 
.. ..373 
.. ..283 

. . . . 26 
239, 289, 445 
. . . . 296 
. . . . 45 
.. .. 31 
. . . . 247 
.. ..237 

.. 391,392 
. . . . 342 
. . . . 92 

.. ..285 
. . . . 344 

. . . . 388 
.. ..134 



TABLE OF CASES 



xlv 



Macduff & Co. v. Johannes- 
burg Consol. Investment 

Co [1924] 

MacGregor v. Sayles . . . . [1909] 

Machattie v. Filmer . . . . (1894) 

Mackay v. McCankie .. .. (1883) 

Mackellar v. Bond .... .. (1884) 

Mackenzie v. Bilbrough . . . . [1906] 

MacNaught v. Caledonian Hotel [1938] 
Macrae v. Nat. Bank of S. A. [1927] 
Madrassa v. Johannesburg 

Munic [1917] 

Maharaj v. Maharaj . . . . [1938] 
Malcolm v. Malcolm . . . . [1926] 

Male, ex parte (1910) 

Mandelkoorn v. Strauss . . . . [1942] 

Mann v. Mann [1918] 

Manning & Wax v. Heathcote's 

Trustee [1915] 

Manton v. Manton (1909) 

Mapenduka v. Ashington . . [1919] 

Marais v. Andrews [1914] 

Marais v. Commercial General 

Agency Ltd [1922] 

Maraisburg Div. Council v. 

Wagenaar 
Marcus v. Stamper & Zouten- 

dijk 

Mare v. Grobler N. O 

Marikar v. Marikar 

Marikar v. Supramanian Chel- 

liar 

Maritz v. Pratley 

Marks, ex parte 

Marks, ex parte Est. 

Marks, re Est. 

Marks v. Laughton 

Martens, ex parte 

Martienssen, ex parte 

Mason v. Bernstein 

Mason & Co. v. Williams 
Master, ex parte, The 
Master, ex parte, The 
Master, The v. African Mines 

Corp. Ltd. 

Master, The v. Castellani 
Master, The v. Edgecombe's 

Exors. 

Master, The v. Ocean AccidenJ 

Corp. Ltd. . . . . [1937] 
Masters v. Central News . . [1936] 
Matson v. Dettmar [1917] 



[1923] 

[1910] 
[1930] 
(1930) 

(1943) 
(1894) 
[1926] 
[1927] 
[1921] 
[1920] 
[1928] 
[1944] 
(1897) 
(1884) 
[1906] 
[1927] 

[1907] 
[1911] 



A.D. 573 
T.S. 553 
1 O.K. 305 

10 R. 537 

9 App. Cas. 715 
T.H. 116 
T.P.D. 577 
A.D. 62 . . 

A.D. 718 
N.P.D. 128 
C.P.D. 235 
20 C.T.R. 941 . . 
C.P.D. 493 
C.P.D. 89 

E.D.L. 81.. .. 
30 N.L.R. 387 
A.D. 343 
T.P.D. 290 

T.P.D. 440 
C.P.D. 94 

A.D. 58 . . 

T.P.D. 632 

32 Ceylon N.L.R. 

43 Ceylon N.L.R. 

11 S.C. 345 
T.P.D. 1 . . 
T.P.D. 316 
T.P.D. 180 
A.D. 12 . . 
N.P.D. 323 
C.P.D. 139 
14 S.C. 504 

5 N.L.R. 168 . . 
T.S. 563 
T.P.D. 117 

T.S. 925 
T.P.D. 763 



.. 264 

.. 333 
10, 248 

.. 335 

.. 316 

.. 249 

.. 431 

.. 257 

.. 337 

. . 452 
.. 87 
.. 67 
165, 166 
.. 340 

.. 119 
.. 59 
.. 205 
.. 319 

.. 299 
.. 328 

.. 294 

.. 435 

111 340 

409 259 
218, 220 
.. 388 
.. 388 
.. 374 
.. 231 
.. 377 
.. 90 
.. 431 
.. 429 
.. 132 
.. 110 

.. 183 
37 



[1910] T.P.D. 263 117, 118, 353 



C.P.D. 302 
C.P.D. 388 
E.D.L. 371 



354 
345 
429 



xlvi 



TABLE OF CASES 



Matthews v. Young 

Maxwell & Earp v. Est. Dreyer 

Maynard v. Usher 

Mazista Slate Quarries Ltd. v. 

Oosthuizen 

McAlpine v. Celliers 
McCabe v. Burisch 

McCalgan, In re 

McCalman v. Thorne 
McCarthy v. Newton & Zeeder- 

burg 

McCullogh v. Fernwood Estate 

Ltd 

McCullough v. Ross 
McCullough & Whitehead v. 

Whiteaway & Co 

McDaid v. De Villiers 

McGee v Mignon 

McGill v. McGill 

McGregor v. S. A. Breweries 

Ltd 

McGregor's Trustees v. Silber- 

bauer 

Mclntyre v. Goodison 
Mclntyre v. Johnston 

McKabe v. Moore 

McKay Bros. v. Eaglestone 



McKenzie v, Bloemfontein Town 



[1922] A.D. 492 
(1908) 25 S.C. 723 
(1845) 2 Menz. 170 

[1943] T.P.D. 28 
[1921] E.D.L. 112 
[1930] T.P.D. 261 
(1893) 10 S.C. 277 
[1934] N.P.D. 86 

(1861) 4Searle 64 

[1920] A.D. 204 . . 
[1918] C.P.D. 389 

[1914] A.D. 599 
[1942] C.P.D. 220 
[1903] T.S. 89 . . 
[1926] N.P.D. 398 

[1919] W.L.D. 22 



(1891) 9 S.C. 36 
[1877] Buch. 83 
(1895) 2 Off. Rep. 202. 
[1909] E.D.C. 161 
[1932] T.P.D. 301 



324, 333, 341 

98, 99 
. 160 



.. ..177 

.. ..218 

.. 262,264 

.-. .. 360 

. . . . 52 

.. ..379 

443, 444, 445 
. 426 



Council 
McKenzie v. Farmers Co-op. 

Meat Indust. Ltd 

McKenzie v. Van der Merwe 
McLaughlin v. Koenig . . 

McLean v. Murray 

McLoughlin N. O. v. Turner . 
McNaught v. McNaught ' . 
Meenadchipillai v. Sanmugam 
Mehnert v. Morrison 
Meintjes' Est., ex parte . . 
Meintjes v. Oberholzer . . 

Meintjes v. Wilson 

Meiring v. Meiring's Exors. 



[1904] O.R.C. 83 

[1922] A.D. 16 . . 
[1917] A.D. 41 . . 
[1928] C.P.D. 102 
[1923] A.D. 406 
[1921] A.D. 537 
[1937] W.L.D. 103 
(1916) 19N.L.R. 209 
[1935] T.P.D. 144 
(1907) 17 C.T.R. 451 
(1859) 3 Searle 265 
[1927] O.P.D. 183 



204 
299 
234 

87 

427 

247 
429 
306 
59 
195 

341 

214 
339 
339 
344 
237 
94 
328 
338 
183 
177 
142 



[1878] Buch. 27; 3 Roscoe 6 358 

Meiya Nona v. Davith Vedarala (1928) 31 Ceylon N.L.R. 104 377 
Melck,Exor. of Burger u.David (1840) 3 Menz. 468 .. ..145 



Mellish v. The Master 
Merrington v. Davidson 
Meyer v. Botha & Hergenroder 
Meyer v. Glendinning 
Meyer v. Jockie 



Meyer v. Merchants Trust Ltd. [1942] A.D. 244 



[1940] T.P.D. 271 .... 366 
(1905) 22 S.C. 148 .. .. 220 
(1882) 1 S.A.R. 47 .. 200,202 
[1938] C.P.D. 84 . . . . 165 
1944(2)P.H.,J14[E.D.L.].. 266 



Meyer v. Rudolph 

Meyer v. Rudolph's Exors. 



[1917] N.P.D. 159 
[1918] A.D. 70 . . 



221 

.. 288 
288, 292 



TABLE OF CASES 



xlvii 



Meyerowitz v. Annetts . . . . [1937] N.P.D. 140 


. . . . 261 


Meyer's Exors. v. Gericke . . (1880) Foord 14 


. . 341,447 


Meyer's Exors. . Meyer's Exors. [1927] T.P.D. 331 


. . ..396 


Mfunda v. Brammage . . . . [1913] N.P.D. 477 


. . ..234 


M'Guni v. M'Twali . . . . [1923] T.P.D. 368 


. . ..327 


Michelsen v. Aaronson & Baikie [1914] T.P.D. 158 


. . ..435 


Middellandsche Nationale Pers 




v. Stahl [1917] A.D. 630 


. . ..344 


Middler v. Hamilton . . . . [1923] T.P.D. 441 


. . . . 344 


Miller, ex parte [1922] W.L.D. 105 


. . ..359 


Miller v. Abrahams . . . . [1918] C.P.D. 50 


. . ..335 


Miller v. Attwell [1927] C.P.D. 150 


. . ..386 


Miller v. De Bussy [1904] T.S. 655 


. . . . 285 


Miller v. Harris [1912] C.P.D. 203 


. . ..166 


Miller v. Miller [1925] E.D.L. 120 


. . . . 90 


Miller v. Miller [1940] C.P.D. 466 


43, 65 


Mills & Sons v. Benjamin Bros." 




Trustees [1876] Buch. 115 


. . ..247 


Milner v. Webster [1938] T.P.D. 598 


. . ..279 


Mitchell v. Maison Libson . . [1937] T.P.D. 13 


. . ..325 


Mitchell v. Mitchell . . . . [1922] C.P.D. 435 


88, 89 


Mitchell v. Mitchell . . . . [1930] A.D. 217 


. . 61,105 


Mitchell Cotts & Co. v. Commr. 




of Railways [1905] T.S. 349 . . 


. . ..253 


Mkize v. Martens [1914] A.D. 382 . . 


. . ..339 


Moffat v. Rawstorne . . . . [1927] T.P.D. 435 


. . ..431 


Moffat v. Towyz & Co [1918] E.D.L. 316 


. . ..269 


Mofuken v. Mtembu . . . . [1929] W.L.D. 82 


. . . . 52 


Mogamat Jassiem v. The 




Master (1891) 8 S.C. 259 


. . . . 34 


Mograbi v. Mograbi . . . . [1921] A.D. 274 


. . . . 68 


Mohamad v. Eastern Bank . . (1931) 33 Ceylon N.L. 


R. 73 191 


Molepo v. Achterberg . . . . [1943] A.D. 85 . . 


. . 333,344 


Molyneuxv. Natal Land Etc. Co. (1903) 24N.L.R. 259; 


[1905] 


A.C. 555; 


(1905) 


26 N.L.R. 


423 . . 120 


Momololo's Exor. v. Upini v . . [1919] A.D. 58 . . 


. . ..368 


Momsen v. Mostert (1881) 1 S.C. 185 


. . . . 447 


Moolman, ex parte [1903] T.S. 159 . . 


. . - . . 45 


Moolman v. Cull [1939] A.D. 213 


. . 332, 333 


Moolman v. Erasmus . . . . [1910] C.P.D. 79 


. . . . 46 


Moolman v. Est. Moolman . . [1927] A.D. 133 


. . 377,378 


Moorrees' Est. v. Board of 




Exors [1939] A.D. 410 


. . . . 379 


Moosa v. Duma [1944] T.P.D 30 . . 


. . . . 344 


Moosa v. Mahomed .. .. [1939] T.P.D. 271 


. . ..318 


Morisset v. Brochu (1883) 10 Quebec L.R 


. 104 219 


Morkel v. Holm (1882) 2 S.C. 57 . . 


. . ..249 


Morrison v. Standard Building 




Soc. [1932] A.D. 229 . . 


. . ..122 


Morton v. Morton [1934] C.P.D. 51 


. . . . 87 


Morum Bros. v. Nepgen . . [1916] C.P.D. 392 


. . . . 435 



xlviii 



TABLE OF CASES 



Moses v. Moses 

Moss v. Moss 

Mostert v. Mostert 

Mostert v. The Master 

Mostert's Trustee v. Mostert . . 

Motan v. Joosub 

Moti & Co. v. Cassim's Trustee 

Mouton, ex parte 

Mouton v. Becket 

Mowbray v. Syfret . . . . 

Mowlem v. Morris 

Mshwakezele v. Guduka 

Mtembu v. Webster 

Mulholland v. Smith 

Muller v. Chadwick & Co. 

Muller v. Muller 

Muller v. Muller 

Mulligan v. Mulligan 

Mulock-Bentley v. Curtoys . . 

Murchie v. Murchie 

Murison v. Murison 

Murphy v. London & S. A. Ex- 
ploration Co 

Murray's Est., In re, ex parte 
Mulheam 

Muttiah Chetty v. Ukkurala 
Korala 

Muttunayagam v. Brito 

Muttunayagam v. Senathiraja 

Mutual Life Ins. Co. of N.Y. 
v. Hotz 



[1935] C.P.D. 24 


.. 94 


[1897] P. 263 . . 


. . 33 


(1854) 2 Searle 128 


.. 89 


[1878] Buch. 83 .. 


.. 61 


(1885) 4 S.C. 35 .. .. 


.. 61 


[1930] A.D. 61 . . 


.. 43 


[1924] A.D. 720 .. 


20, 316 


[1929] T.P.D. 406 


.. 85 


[1918] A.D. 181 .. 


.. 339 


[1935] A.D. 199 .. 


.. 338 


[1930] E.D.L. 83. . .. 


.. 264 


(1903) 18 S.C. 167 


.. 135 


(1904) 21 S.C. 323 


.. 226 


(1910) 10 H.C.G. 333 


.. 328 


[1906] T.S. 30 27, 187, 


433, 434 


[1929] W.L.D. 161 . . 


.. 92 


[1941] C.P.D. 332 


.. 87 


[1925] W.L.D. 178 . . 


.. 291 


[1935] O.P.D. 8 . . 


. . 335 


[1923] S.R. 116 .. .. 


.. 89 


[1930] A.D. 157 .. 


.. 89 


(1887) 5 S.C. 259 


.. 302 


(1901) 18 S.C. 213 '.. 


.. 392 



(1925) 27 Ceylon N.L.R. 336 353 
[1918] A.C. 895 77 

(1926) 28 Ceylon N.L.R. 353 275 



Nahass, ex parte 

Narunsky, ex parte 

Nasionale Pers Bpkt. v. Long 
Natal Bank v. Kuranda 
Natal Bank v. Rood's Heirs . . 

Natal Land & Colonization Co. 
v. Pauline Colliery Syn- 
dicate 

Natal Trading Co. v. Inglis . . 

National Acceptance Co. v. 
Robertson 

National Bank of S. A. v. 
Cohen's Trustee 

National Bank of S. A. v. Leon 

Levson Studios 
National Bank of S. A. v. Marks 

& Aaronson 



[1911] A.D. 556 .. . . 254, 445 

N 
[1939] C.P.D. 173 . . . . 61 

[1922] O.P.D. 32 247 

[1930] A.D. 87 345 

[1907] T.H. 155 .. . . 10, 259 
[1909] T.S. 243; [1910] A.C. 
570 ; [1910] T.P.D. 1360 97, 393 



[1904] A.C. 120; 25 N.L.R. 1 444 
[1925] T.P.D. 724 . . . . 340 



[1938] C.P.D. 175 



.. 316 



[1911] A.D. 235 187, 190, 191, 
192, 200, 251, 275 

[1913] A.D. 213 261 

[1923] T.P.D. 69 . . 250, 275 



TABLE OF CASES 



National Butchery Co. v. Afri- 
can Merchants 

National Meat Suppliers (Pty) 
Ltd. v. C. T. City Council 

Naude v. Harrison 

Naude & Du Plessis v. Mercier 

Naude, N. O. v. Transvaal Boot 
& Shoe Co. 

Neale v. Neale 

Neilson v. Mahoud 

Nel, ex parte 

Nel, ex parte 

Nel v. Divine Hall & Co. 

Nelson v. Currey 

Nelson v. Nelson's Est 

Nestadt v. Hope 

Neugebauer & Co. v. Hermann 

Neville v. Flasket 

Newberry, ex parte 

Newmark Ltd. v. Cereal Manu- 
facturing Co 

Newood v. Newood 

Newstead v. London Express 
Newspaper Ltd 

Niekerk v. Niekerk 

Nieman v. Scrivenor, N.O. 

Nieuwoudt v. Slavin 

Niewenhuis v. Schoeman's Est. 

Nino Bonino v. De Lange 

Nolte v. Johannesburg Consol. 
Investment Co. 

Nooitgedacht, In re 

Norden v. Oppenheim 

Northmore v. Meyapulle 

Northmore v. Scala Cinemas 
(Pty) Ltd 

N.W. Bank v. Poynter 

North Western Hotel Co. v. 
Rolfes, Nebel & Co. 

Norton v. Spooner 

Nosworthy v. Yorke 

Nourse v. Malan 

Nurok v. Nurok's Exors. 

Nyokana v. Nyokana 



[1907] E.D.L. 57.. .. 

[1938] C.P.D. 498 
[1925] C.P.D. 84 
[1917] A.D. 32 .. .. 

[1938] A.D. 379 .. .. 
(1903) 20 S.C. 198 
[1925] E.D.L. 26.. .. 
[1929] N.P.D. 240 
[1941] C.P.D. 314 
(1890) 8 S.C. 16 .. .. 
(1886) 4 S.C. 355 362, 
[1932] C.P.D. 395 
[1928] W.L.D. 31 
[1923] A.D. 564 .. 
[1935] C.P.D. 115 
[1924] O.P.D. 219 

[1921] C.P.D. 52 
[1939] C.P.D. 414 

[1940] 1 K.B. 377 
(1830) 1 Menz. 452 .. 
[1922] O.P.D. 101 
(1896) 13 S.C. 58 
[1927] E.D.L. 266 
[1906] T.S. 120 .. 

[1943] A.D. 295 .. 
(1902) 23 N.L.R. 81 . . 
(1846) 3 Menz. 42 
(1864) Ramanathan 95 

[1936] T.P.D. 280 
[1895] A.C. 56 . . 



xlix 

.. 450 

.. 342 
.. 229 
.. 340 

.. 325 

.. 92 
.. 168 

376, 377 
.. 388 
47, 422 

372, 374 
.. 378 
.. 432 

240, 294 
.. 274 
.. 182 

.. 294 

.. 87 

.. 331 
.. 116 

198, 199 
.. 309 
.. 240 

165, 238 

.. 186 

.. 49 

.. 333 

.. 433 

.. 261 
. 201 



[1902] T.S. 324 .. .... 304 

(1854) 9 Moo. P.C.C. 103 .. 336 
[1921] C.P.D. 404 . . . . 318 

[1909] T.S. 202 .. . . 298, 299 

[1916] W.L.D. 125 . . . . 360 

[1925] N.P.D. 227 . . . . 63 



O 

Oak v. Lumsden (1884) 3 S.C. 144 

Obermeyer's Est. v. Wolhuter's 

Est. [1928] C.P.D. 32 

O'Brien v. O'Brien [1938] W.L.D. 221 

4901 



316 

282 
88 



1 

O'Callaghan N. O. v. Chaplin 
O'Callaghan's Assignees v. Cav- 

anagh 

Ochberg v. Ochberg's Est. 

Odendaal, ex parte 

Odendaal, ex parte 

Odendaal, ex parte Est 

Odendaal v. Du Plessis 
Odendaal v. Registrar of Deeds 

Ogle v. Ogle 

Ohlsson's Cape Breweries v. 

Cossey 

Ohlsson's Cape Breweries v. 

Thompson 

Olifant's Vlei G. M. Co. v. Wolff 

Oliphant, ex parte 

Oliver v. Matzner 

Olivier v. Paschke 

Olufsen v. Fielder 

Omar v. Sahib 

Oosthuizen v. Oosthuizen's Est. 
Oosthuizen v. Stanley 
Oosthuysen v. Oosthuysen 
Orangezicht Estates Ltd. v. 

Cape Town Town Council 

Orford, ex parte 

Orlandini, ex parte 

Orsmond v. Van Heerden 
Osry v. Hirsch, Loubser & Co. 

Otto v. Otto 

Oudtshoom Town Council v. 

Smith 

Owen v. Fine , 



[1927] A.D. 310 .. . . 10, 338 

(1882) 2 S.C. 122 .. .. 190 

[1941] C.P.D. 15 .. 41,422 

[1926] O.P.D. 223 . . . . 380 

[1928] O.P.D. 218 . . . . 388 

[1933] O.P.D. 122 . . . . 378 

[1918] A.D. 470 274 

[1939] N.P.D. 327 . . . . 161 

[1910] N.P.D. 87 .... 89 

[1905] T.H. 16 449 



(1901) 11 C.T.R. 275 
(1898) 15 S.C. 344 
[1940] C.P.D. 537 
[1942] T.P.D. 324 
[1928] S.W.A. 116 
[1930] N.P.D. 260 
(1907) 28 N.L.R. 625 
[1903] T.S. 688 . . 
[1938] A.D. 322 . . 
[1868] Buch. 51 .. 

(1906) 23 S.C. 297 
[1920] C.P.D. 367 
[1931] O.P.D. 141 
[1930] T.P.D. 723 
[1922] C.P.D. 531 
[1930] W.L.D. 251 



.. ..178 
.. ..313 
.. ..330 
.. ..173 

.. ..262 
.. ..427 
.. 166 
.. ..307 
43, 329 ,330 
.. ..353 

.. ..154 
. . . . 74 
.. ..376 
.. ..304 
.. ..206 
88 



[1911] C.P.D. 558 .. .. 276 
1943(1)P.H., B.34[W.L.D.] 59 



Paiges v. Van Ryn Gold Mines 

Est. Ltd 

Palipane v. Taldena 
Papendorp, ex parte 
Parak v. Reynhardt & Co. 
Paramanathan v. Saravana- 

muttu 

Parampalam v. Arunachalam 
Parker v. Est. Fletcher 

Parker v. Reed 

Paruk v. Glendale Est. Co. . . 

Pate v. Pate 

Paterson, ex parte Est 

Paterson's Exors. v. Webster, 

Steel & Co 

Pathescope Union of S. A. v. 

Mallinick . 



[1920] A.D. 600 250 

(1929) 31 Ceylon N.L.R. 196 378 
[1932] C.P.D. 167 .... 71 
[1930] N.P.D. 254 . . . . 200 

(1928) 30 Ceylon N.L.R. 188 395 
(1927) 29 Ceylon N.L.R. 289 291 
[1932] C.P.D. 202 . . . . 355 
(1904) 21 S.C. 496 .. .. 10 

[1924] N.P.D. 1 206 

[1915] A.C. 1100 .. ..312 
[1942] C.P.D. 541 .... 97 

(1881) 1 S.C. 350 .. .. 247 
[1927] A.D. 292 230 



TABLE OF CASES 



Paton v. Paton 
Patz v. Salzburg 
Payn v. Lokwe . . 
Peacock v. Hodges 
Pearce v. De Jager 
Peard v. Rennie & 
Pearl Assurance Co. 

Govt. 
Pearl Assurance Co. v. Govt. of 

the Union of S. A. 






[1929] T.P.D. 776 
[1907] T.S. 526 .. 
[1912] E.D.L. 33. . 


.. 59 
.. 238 
. . 449 


;es 
;er 

& Sons 
Co. v. Union 


[1876] Buch. 65 .. 
[1924] C.P.D. 455 
(1895) 16 N.L.R. 175 

[19331 A.D. 277 . 


168, 169 
.. 318 
.. 216 

. 268 



[1934] A.C. 570; [1934] A.D. 

560 . 268 



Pedris v. Batcha 


(1924) 26 Ceylon N.L.R. 


89 153 


Peiris v. Village Committee, 






Paluwa 


(1938) 40 Ceylon N.L.R. 


54 169 


Pentecost v. Cape Meat Supply 






Co 


[1933] C.P.D. 472 


. . 282 


Pentz v. Col. Govt 


(1891) 8 S.C. 34 .. 


. . 166 


Pepler v. Liebenberg 


[1928] C.P.D. 266 


.. 432 


Perera v. Perera 


[1901] A.C. 354 .. 


.. 363 


Perera v. Silva 


(1935) 37 Ceylon N.L.R. 


157 193 


Perera v. Sobana 


(1884) 6 Ceylon S.C.C. 6 


I . . 165 


Perera v. Tissera 


(1933) 35 Ceylon N.L.R. 


257 234 


Peria Carpen v. Herft 


(1886) 7 S.C.C. 182 .. 


.. 259 


Perlman v. Zoutendyk 


[1934] C.P.D. 151 


.. 325 


Peters, Flamman & Co. v. Kok- 






stad Municipality 


[1919] A.D. 427 .. 


.. 280 


Petersen v. Jajbhay 


[1940] T.P.D. 182 


.. 236 


Petersen Ltd. v. Inag African 






Industrial Co 


[1934] C.P.D. 141 


.. 275 


Pettersen v. Yates 


[1928] N.P.D. 453 


..317 


Pharo v. Stephan 


[1917] A.D. 1 . . 


.. 129 


Pheasant v. Warne 


[1922] A.D. 481 .. 


119,220 


Philip v. Metropolitan Ry. Co. 


(1893) 10 S.C. 52 


.. 448 


Philips v. Brooks 


[1919] 2 K.B. 243 


.. 230 


Philips Ltd. v. Vermouth 


[1932] C.P.D. 377 


.. 319 


Phillips (Est.) v, Comm. for 






Inland Revenue 


[1942] A.D. 35 . . 


97, 289 


Phillips v. Hearne & Co. 


[1937] T.P.D. 61 


.. 195 


Phillips v. S. A. Ind. Order of 






Mechanics 


[1916] C.P.D. 61 


.. 153 


Phillips & Gordon v. Adams . . 


[1923] E.D.L. 104 


.. 198 


Philpott v. Whittal, Elston & 






Crosby & Co 


[1907] E.D.C. 193 


.. 339 


Pienaar v. Pienaar's Curator 


[1930] O.P.D. 171 


.. 119 


Pieters & Co. v. Salomon 


[1911] A.D. 138 .. .. 


.. 220 


Pieterse, N. O., ex parte 


[1933] S.W.A 4 . . 


.. 362 


Pistorius, ex parte 


[1920] T.P.D. 297 


.. 182 


Pleat v. van Staden 


[1921] O.P.D. 91.. .. 


41, 422 


Pocklington v. Cowey & Son 


(1885) 6 N.L.R. 118 . . 


.. 429 


Podisingho v. Jaguhamy 


(1923) 26 Ceylon N.L.R. 


87 161 


Polemis, In re 


[1921] 3 K.B. 560 


.. 342 


Policansky Bros. v. Policansky 


[1935] A.D. 39 . . 


.. 337 



Hi 



TABLE OF CASES 



Port Elizabeth Harbour Board 
v. Makie, Dunn & Co. 

Post v. Post 

Postmaster-General v. Van Nie- 
kerk 

Potgieter v. Bellingan 

Potgieter v. Zietsman 

Potter & Potter v. Rand Town- 
ships Registrar 

Poulett Peerage Case . . 

Poynton v. Cran 

Preston v. Luyt 

Pretoria Hebrew Congregation 
Trustees, ex parte 

Pretoria Munic. v. Bon Accord 
Irrigation Board 

Pretoria Munic. v. Esterhuizen 

Pretorius, ex parte 

Pretorius v. African Gate & 
Fence Works Ltd 

Pretorius v. Hack 

Pretorius v. Van Zyl 

Priest v. Charles 

Princess Est. v. Registrar of 
Mining Titles 

Prinsloo's Curators v. Crafford 

Provincial Admin. (O.F.S.) v. 
John Adams & Co 

Pugh v, Pugh 

Pulle v. Candoe 

Pulle v. Pulle 

Punchi Banda v, Perera 



(1897) 14S.C. 469 
[1931] N.P.D. 117 

[1918] C.P.D. 378 
[1940] E.D.L. 264 
[1914] E.D.L. 32.. 

[1945] A.D. 277 . . 
[1903] A.C. 395 . . 
[1910] A.D. 205 
[1911] E.D.L. 298 

[1922] T.P.D. 296 

[1923] T.P.D. 115 
[1928] T.P.D. 678 
[1920] T.P.D. 297 

[1939] A.D. 571 . . 
[1925] T.P.D. 643 
[1927] O.P.D. 226 
[1935] A.D. 147 . . 

[1911] T.P.D. 1066 
[1905] T.S. 669 . . 



. 221 



.. ..319 

.. ..641 

.. ..185 

.. ..289 

. . . . 32 

272, 302, 303 

.. ..333 

.. ..291 

. . . . 155 

.. ..339 

. . . . 99 

. . . . 326 

. . 65, 432 

.. ..346 

.. ..243 

,. ..392 
53,95, 119 



[1929] O.P.D. 29 130 

[1910] T.S. 792 93 

(1875) Ramanathan, 1872-6, 

p. 189 . . . . 259 
(1893) 2 Ceylon S.C.R. 105 353 
(1928) 30 Ceylon N.L.R. 355 143 



Quadling v. Quadling 
Queen v. Koning 
Queenstown Assurance Co. 
Wood's Trustee 



Q 

[1937] N.P.D. 319 
(1900) 17 S.C. 541 

(1887) 5 S.C. 327 



88 
47 

199 



Rabot v. Da Silva 

Radlof v. Ralph 

Rainforth v. Brown 

Ramalingam v. Ramalingam 

Rama Narotam v. Natha Dul- 

labh .. .. 

Ramanathan v. Saleem 
Rampersad v. Goberdun 



R 

[1909] A.C. 376 .. . . 28, 54 
[1917] E.D.L. 168 .... 52 

[1937] S.R. 269 215 

(1933) 35 Ceylon N.L.R. 174 

87,89 

[1914] N.P.D. 227 . . . . 314 
(1940) 42 Ceylon N.L.R. 80 392 
[1929] N.P.D. 32 

168, 169, 177, 342 



TABLE OF CASES 



liii 



Rand Furnishing Co. v. Hey- 




denrych [1929] T.P.D. 583 


.. ..195 


Rapson v. Putterill . . . . [1913] A.D. 417 . . 


.. ..363 


Ras v. Vermeulen [1927] O.P.D. 5 . . 


.. ..307 


Raubenheimer v. Exors. of Van 




Breda .. .... .. (1880) Foord 111 


.. ..406 


Read v. Pyper [1935] S.W.A. 16 


.. ..344 


Receiver of Revenue, Pretoria, 




v. Hancke [1915] A.D. 64 . . 


347, 363, 393 




394, 395 


Reddy v. Chinasamy . . . . [1932] N.P.D. 461 


. . . . 70 


Reddy v. Durban Corporation [1939] A.D. 293 . . 


.. ..341 


Redgrave v. Hurd (1881) 20 Ch.D. 1. 


.. ..231 


Reed Bros. v. Ford . . . . [1923] T.P.D. 150 




138, 


197,198,319 


Reeders & Wepener v. Johannes- 




burg Town Council . . [1907] T.S. 647 . . 


.. ..308 


Reed's Trustee v. Reed . . . . (1885) 5 E.D.C. 23 


.. ..204 


Reese v. Registrar of Deeds . . [1938] C.P.D. 459 


.. ..380 


Registrar of Deeds (Natal) v. 




Est. Shaw [1928] A.D. 425 . . 


.. ..354 


Reid v. Admors. Est. Reid . . [1932] W.L.D. 30 


. . . . 355 


Reid & Co. v. Federal Supply Co. (1907) 24 S.C. 102 


.. ..303 


Reinhold & Co. v. Van Oudt- 




shoorn [1931] T.P.D. 382 


.. ..195 


Reis v. Gilloway's Exors. . . (1834) 1 Menz. 186 


. . . . 72 


Reioomel v. Ramsay . . . . [1920] T.P.D. 371 




67, 


430, 431, 432 


Rens, In re , . (1880) Foord 92 


.. ..105 


Retief v. Hamerslach .. .. (1884) 1 S.A.R. 171 


.. ..433 


Retief v. Louw [1874] Buch. 165 


. . . . 155 


Reuter v. Yates [1904] T.S. 855 . . 


.. ..258 


Rex v. Blaauw [1934] S.W.A. 3 . . 


. . 423 


Rex v. Christian [1924] A.D. 101 . . 


. . . . 14 


Rex v. Detody [1926] A.D. 198 . . 


.. .. 10 


Rex v. Gillett [1929] A.D. 364 . . 


.. ..240 


Rex v. Fitzgerald [1926] N.P.D. 445 


. . . . 42 


Rex v. Harrison [1922] A.D. 320 . . 


. . 8, 9, 27 


Rex v. Mabula [1927] A.D. 159 . . 


.. .. 132 


Rex v. Nel [1921] A.D. 339 . . 


.. ..214 


Rex v. Paterson [1907] T.S. 619 . . 


. . . . 423 


Rex v. Sacks [1943] A.D. 413 . . 


8, 27 


Rex v. Seebloem [1912] T.P.D. 30 


.. ..236 


Rex v. Stamp (1878) 1 Kotz< 63 


.. ..304 


Rex v. Zillah .. [1911] C.P.D. 643 


.. ..304 


Reyne, Est. v. Reyne . . . . [1930] O.P.D. 80. . 


.. ..119 


Reyneke v. Reyneke . . . . [1927] O.P.D. 130 


33, 96 


Rhode v. Minister of Defence [1943] C.P.D. 40 


. . . . 48 


Rhodesia Rlys. v. Comm. of 




Taxes [1925] A.D. 438 .. 


.. ..312 


Richards, Slater & Co. v. Fuller 




& Co (1880) 1 E.D.C. 1 


.. ..261 



liv 



TABLE- OF CASES 



Richmond v. Chadwick 
Richter v. Du Plooy 

Richter v. Mack 

Richter v. Transvaal Govt. . . 
Richter v. Wagenaar 

Ridler v. Gartner 

Ridley v. Marais 

Ritchken's Exors. v. Ritchken 

Robb v. Mealey's Exor 

Robert v. Ettlinger 

Roberts v. Booy 

Roberts & Letts v. Fynn 

Robinson, In re 

Robinson v. Randfontein Ests. 
G. M. Co 

Robinson v. Randfontein Ests. 

G. M. Co 

Roddy v. Ohlsson's Breweries 
Roff & Co. v. Mosely . . 
Rolfes, Nebel & Co. v. Zweigen- 

haft 

Rood v. Wallach 

Roodepoort &c. G. M. Co. v. 

Du Toit 

Roorda v. Cohn 

Rooth v. The State . . 

Roscoe, ex parte 

Rose v. Brewer 

Rose & Frank Co. v. Crompton 
Rosen v. Rand Townships 
Rosenbaum v. Margolis 
Rosenberg v. Dry's Exors. 
Rossiter v. Barclay's Bank . . 

Rowe v. Rowe 

Rowel Mudaliyar v. Pieris 
Royston v. Radebe 

Rubens v. Rubens 

Rubidge v. McCabe 

Rubin v. Botha 

Rudolph v. Lyons 

Ruperti's Trustee v. Ruperti . . 

Russell v. Russell 

Russo, In re 

Rutowitz's Flour Mills v. The 

Master 

Ryan v. Mutual Tontine Assoc. 
Ryan & Burton v. Thornton 
Rykclief's Heirs v. Rykclief's 

Exors 

Rylands v. Fletcher 



N.P.D. 92 
O.P.D. 117 
A.D. 201 . . 
T.S. 146 . . 
1 Menz. 262 
T.P.D. 249 
A.D. 5 
W.L.D. 17 
16 S.C. 133 
W.L.D. 28 
4 E.D.C. 22 
A.D. 23 . . 
1 Roscoe 411 



329, 342 

. . 135 

.. 344 

.. 316 

31,52 

.. 173 

.. 447 

.. 43 

.. 359 

.. 191 

.. 259 

.. 434 

. 455 



[1921] A.D. 168 

215, 223, 226, 300, 441 



[1925] A.D. 173 . 
[1907] T.S. 125 . 
[1925] T.P.D. 101 

[1903] T.S. 185 . 
[1904] T.S. 187 . 



.. ..239 
.. ..339 
.. ..234 

253, 308, 309 
. 226 



[1928] A.D. 66 204 

[1903] T.H. 279 227 

(1888) 2 S.A.R. 259 . . 217, 218 
[1938] C.P.D. 126 .... 93 
[1933] C.P.D. 49 . . . . 344 
[1923] 2 K.B. 261 . . . . 223 
[1939] W.L.D. 5 . . . . 133 
1944(1)P.H.,B. 33[W.L.D.] 336 
[1911] A.D. 679 .. .. 347,395 
[1933] T.P.D. 375 .... 37 
[1922] W.L.D. 43 .... 87 

(1895) 1 Ceylon N.L.R. 81. . 129 

[1914] A.D. 430 227 

(1909) 26 S.C. 617 .. .. 95 

[1913] A.D. 433 169 

[1911] A.D. 568 .. .. 307,452 
[1930] T.P.D. 85 . . . . 241 
(1885) 4 S.C. 22 .. .. 81, 197 
[1924] A.C. 687 32 

(1896) 13 S.C. 185 .... 34 

[1934] T.P.D. 163 . . . . 318 
[1893] 1 Ch. 116 .... 270 
[1912] E.D.L. 168 . . . . 259 

(1896) 13 S.C. 64 .. ..387 
(1868) L.R. 3 H.L. 330 153, 338 



TABLE OF CASES 



Iv 



Sabapathi v. Huntley 
Sabapathy v. Mohamed Yoosuf 
Sadhananda Terunanse v. Sum- 

anatissa 

Sadie, ex parte 

Sadie v. Standard Bank 

St. Leger v. Town Council of 

Cape Town 

St. Marc v. Harvey 

Sakazi v. Gurr 

Salisbury Munic. v. Jooala f . 

Sallis v. Jones 

Salmon v. Lamb's Exor. 

Salonchi v. Jayatu 

Salz v. Waiggowsky 
Salzmann v. Holmes 
Samaradiwakara v. De Saram 
Samarasinghe v. Chairman V. C. 

Matara 

Sained v. Segutamby 
Saminathan Chetty v. Van der 

Poorten 

Sampson v. Union & Rhodesia 

Wholesale Ltd 

Sandeman v. Solomon 

Sandilands v. Tompkins 

Sandier v. Wholesale Coal Sup- 
pliers Ltd 

Sandrasegra v. Sinnatamby . . 

Sangaramorthy v. Candappa 

Saram v. Thiruchelvam 

Sather v. Orr . . . . . . . 

Sauerlander v. Townsend 

Sauerman v. English & Scottish 
Law Life Assurance Assoc. 

Sauerman v. Sauerman 

Savory v. Baldochi 

Scharff's Trustee v. Scharff . . 

Scheidel v. The Master 

Schein v. Joubert 

Schein v. Schein 

Scheuble, ex parte 

Schierhout v. Min. of Justice . . 

Schierhout v, Min. of Justice . . 

Schierhout v. Union Govt. 

Schlengemann v. Meyer, Brid- 
gens & Co. 



(1937) 39 Ceylon N.L.R. 396 332 
(1935) 37 Ceylon N.L.R. 70 392 

(1934) 36 Ceylon N.L.R. 422 121 
[1940] A.D. 26 386 

(1889) 7 S.C. 87 .. .. 294,295 



(1895) 12 S.C. 249 


.. 171 


(1893) 10 S.C. 267 


.. 239 


[1906] T.S. 303 .. 


.. 314 


[1911] A.D. 178 .. .. 


.. 154 


[1936] P. 43 . . 


.. 373 


[1906] E.D.C. 351 


177, 178 


(1926) 27 Ceylon N.L.R. 


366 377 


[1919] W.L.D. 90 


.. 81 


[1914] A.D. 471 .. .. 


.. 344 


[1911] A.C. 753 .. .. 


.. 385 



(1932) 34 Ceylon N.L.R. 39 169 
(1924) 25 Ceylon N.L.R. 481 28 

(1932) 34 Ceylon N.L.R. 307 205 
[1929] 



(1907) 
[1912] 

[1941] 
(1923) 
(1932) 
(1945) 
[1938] 
[1930] 

(1898) 
[1928] 
[1907] 
[1915] 
[1936] 
[1903] 
[1924] 
[1918] 
[1925] 
[1926] 
[1926] 



A.D. 468; [1933] A.C. 

178 218,229,231,250 
28 N.L.R. 140 235, 242 
A.D. 171 337 

A.D. 194 .... . . 267 

25 Ceylon N.L.R. 139 178 
33 Ceylon N.L.R. 361 395 
46 Ceylon N.L.R. 145 355 

A.D. 426 332 

C.P.D. 55 . 296 



15 S.C. 84 
C.P.D. 20 
T.S. 523 . . 
T.P.D. 463 
C.P.D. 287 
T.S. 428 . . 
W.L.D. 283 
T.P.D. 158 
A.D. 417 . . 
A.D. 99 . . 
A.D. 286 . 



[1920] C.P.D. 494 



.. 267 
.. 88 
.. 197 
.. 143 
.. 395 
.. 450 
.. 149 
.. 372 
.. 238 
237, 449 
250, 275 

. 280 



Ivi 



TABLE OF CASES 



Schnaar v. Jansen 

Schneier & London Ltd. v. 

Bennett 

Schoeman v. Olivier 
Schoeman v. Rafferty 

Scholtz v. Faifer 

Schultz v. Schultz 

Schultz, N. O. v. Meyerson . . 

Schuster v. Guether 

Schutte v. Meyer's Assignee . . 

Scott v. Sebright 

Scott v. Sytner 

Scriven v, Hindley 

Scrutton v. Ehrlich 

Seaville v. Colley 

Secretary for Lands v. Jerome 
Secretary, S. A. Assoc. v. 

Mostert 

Seedat's Exors. v. The Master 

(Natal) 

Segal v. Mazzur 

Seggie v. Philip Bros 

Sellar Bros. v. Clark 
Sellasamy v. Kaliamma 



Selohamy v. Goonewardene . . 

Senekal, ex parte 

Sercombe ^.Colonial MotorsLtd. 
Serfontein v. Rodrick 
Serrurier v. Langeveld 
Shakinovsky v. Lawson 
Shapiro v. Kotler & Rabinowitz 

Shapiro v. Yutar 

Sharp v. Dales 

Sharp's Est. v. Scheepers 
Shearer v. Shearer's Exors. . . 

Sheffield v. Hart 

Sher v. Allan 

Shill v. Milner 

Short, ex parte 

Shorter & Co. v. Mohamed 

Sichel v. de Wet 

Sikiti v. Foley 

Silberbauer v. Van Breda 
Silbereisen Bros. v. Lamont . . 
Silberman v. Hodkinson 

Silke v. Goode 

Sills, ex parte 

Silva v. Balasuriya 

Silva v. Mahammadu 



[1924] N.P.D. 218 



[1927] 
(1907) 
[1918] 
[1910] 
[1928] 
[1933] 
[1933] 
[1927] 
(1886) 
(1891) 
[1913] 
[1908] 
(1891) 
[1922] 



T.P.D. 346 
24 S.C. 759 
C.P.D. 485 
T.P.D. 243 
O.P.D. 155 
W.L.D. 199 
S.W.A. 19 
C.P.D. 371 
12 P.D. 21 
9 S.C. 50 . . 
3 K.B. 564 
T.S. 300 . . 
9 S.C. 39 . . 
A.D. 102 . 



.. 52 

. . 217 
.. 34 
.. 59 

165, 198 
.. 90 
. . 229 
.. 236 
. . 202 
.. 95 

257, 258 

.. 220 

.. 221 

10, 248 

. 138 



[1873] Buch. 31 393 



[1917] 
[1920] 
[1915] 
(1893) 
(1944) 



(1928) 
[1934] 
[1929] 
(1903) 
(1828) 
[1904] 
[1935] 
[1930] 
[1935] 
[1919] 
[1911] 
[1903] 
[1929] 
[1937] 
[1928] 
(1937) 
(1885) 
[1929] 
(1866) 
[1927] 
[1927] 
[1911] 
[1928] 
(1911) 



A.D. 302 . . 
C.P.D. 634 
C.P.D. 292 
10 S.C. 168 
44 Ceylon N.L.R 
61 T.L.R. 

(P.O.).. .. 
30 Ceylon N.L.R. 
T.P.D. 131 
N.P.D. 58 
O.R.C. 51 
1 Menz. 316 . . 
T.S. 326 .. 
W.L.D. 60 
C.P.D. 92 
N.P.D. 392 
C.P.D. 26 
C.P.D. 813 
T.H. 460 .. 
O.P.D. 137 
A.D. 101 .. 
T.P.D. 155 
39 Ceylon N.L.R. 
5 E.D.C. 58 . . 
E.D.L. 286 
5 S. 231 . . 
T.P.D. 382 
T.P.D. 562 
T.P.D. 989 
E.D.L. 278 
14 Ceylon N.L.R. 



(1916) 19 Ceylon N.L.R. 



.. 53 
.. 260 

298, 299 
.. 314 

.76; 

99 

.. 355 

112 184 
.. 388 
.. 195 
.. 366 
.. 317 

449, 450 
.. 260 
304, 310 
.. 39 
.. 272 
.. 373 
.. 305 
215, 300 
271, 450 
377, 388 

113 50 
.. 80 
.. 58 
.. 155 
.. 267 
.. 47 
.. 236 

85,86 
452 

28, 333 
426 50 



TABLE OF CASES 



Ivii 



Silva v. Ratnayake . . 
Silva v. Silva 
Silverton Ests 

Syndicate 
Sim v. The Master 
Simleit v. Cunliffe 
Sinnan Chetliar v. 
Sinnetamby Chett 
Sipondo v. Nongauza 
Sivarasipillai ? 
Skead v. Cok 

Trust Co. 
Slabber's Trustee 

Exor. 

Slade, ex parte 
Slez v. Slez 
Sloman v. Berkovitz 
Smart v. S.A.R. 
Smiles' Trustee 
Smit v. Jacobs 
Smit v. Russouw 
Smit v. Smit 
Smith v. Bard 
Smith v. Clarkson 
Smith v. De Smidt 
Smith v. Dierks 
Smith v. Elmore 
Smith v. Farrellj 
Smith v. Howse 
Smith v. Hughes 
Smith v. Lawrence 
Smith v, Martin's 
Smith v. Mathey 
Smith v. Philips 
Smith v. Smith 
Smith v. Smith 
Smith v. Smith 
Smith v. Smith 
Smith's Est. v. I 
Smith's Trustee 
Smits v. Pienaar 
Smuts, ex parte 
Smuts' Est. v. E 
Snyman v. Basse 
Snyman v. Mugg 
Solomon v. Du Preez 
Solomon v. Jearey 
Solomon v. Solomon 
Solomon v. Solomon 
Solomon v. Van Leg 
Solomon v. Van Zijl 



ake 


(1935) 37 Ceylon N.L.R. 


245 235 




(1908) 1 1 Ceylon N.L.R. 


161 288 


Co. v. Bellevue 








[1904] T.S. 462 


269, 448 


ber . . 


[1913] C.P.D. 187 


.. 359 


le 


[1940] T.P.D. 67 


.. 90 


v. Mohideen . . 


(1939) 41 Ceylon N.L.R. 


225 392 


itty v. De Livera [1917] A.C. 534 .. . . 


.. 451 


rauza 


[1927] E.D.L. 255 


.. 59 


Anthonypillai 


(1937) 37 Ceylon N.L.R. 


47 291 


ial Banking & 








[1924] T.P.D. 497 


46, 49 


ee v. Neezer's 








(1895) 12 S.C.' 163 


245, 288 




[1922] T.P.D. 220 


. . 373 




[1913] W.L.D. 109 


. . 94 


>vitz 


(1891) 12 N.L.R. 216 


.. 242 





[1928] N.P.D. 361 . . 


.. 330 


v. Smiles 


[1913] C.P.D. 739 


.. 206 




[1918] O.P.D. 30.. .. 


.. 52 


7 


[1913] C.P.D. 847 


.. 170 




[1909] T.S. 1067 


94 




[1917] C.P.D. 616 


427, 432 


>n . . .... 


[1925] A.D. 501 .. 


.. 366 


idt 


[1937] T.P.D. 8 . . 


.. 338 




(1884) 3 S.C. 142 


194, 195 




[1938] T.P.D. 18 


.. 344 


y's Trustee . . 


[1904] T.S. 949 .. 


191, 207 




(1835) 2Menz. 163 .. 


250, 276 


3 


(1871) L.R. 6 Q.B. 597 


.. 220 


ice 


[1929] N.P.D. 132 


. . 345 


's Exor 


(1899) 16 S.C. 148 


. . 148 


T 


[1926] O.P.D. 31.. .. 


.. 359 





[1931] O.P.D. 107 


.. 431 





[1914] A.D. 257 .. 


.. 151 




[1936] C.P.D. 125 


.. 33 




[1937] W.L.D. 126 . . 


.. 89 





[1943] C.P.D. 50 


.. 87 


Sst. Follett . . 


[1942] A.D. 364 .. 


-.. 379 


v. Smith 


[1927] A.D. 482 .. 


.. 288 





[1928] T.P.D. 450 


.. 238 




[1914] C.P.D. 1034 . . 


.. 85 


1st. Rust 


[1923] C.P.D. 449 


.. 394 


an, N. O. 


[1915] T.P.D. 368 


.. 353 


rlestone 


[1935] C.P.D. 565 


.. 173 


Preez 


[1920] C.P.D. 401 


.. 337 


ey 


[1921] C.P.D. 108 


.. 259 


tnon 


[1927] W.L.D. 330 . . 


.. 88 


mon & Hanna 


[1903] T.S. 460 .. 


.. 59 


Leggelo 


[1938] T.P.D. 75 


.. 333 


Zijl . . 


(1908) 25 S.C. 974 


. . 310 


ywardene 


(1928) 30 Ceylon N.L.R. 


295 378 



Iviii 



TABLE OF CASES 



S. A. Assoc. v. Mostert 

S. A. Assoc. v. Van Staden . . 

S. A. Bazaars Ltd. v. Nat. 

Union of Distributive 

Workers 

S. A. Oil & Fat Industries v. 

Park Rynie Whaling Co. 
S. A. R. v, Conradie 
S. A. R. v. Edwards . . 
S. A. R. v. Est. Saunders 
S. A. R. v. Nat. Bank of S. A. 
Southern Life Assoc. of Africa 

v. Wright 

Soysa v. Soysa 

Spangenberg, ex parte 

Spencer v. Gostelow 

Spendiff v. East London Daily 

Despatch Ltd 

Spies v. Hansford 

Spies v. Spies 

Spies' Exors. v. Beyers 
Spurrier v. Coxwell 

Stacy v. Sims 

Standard Bank v. Du Plooy 
Standard Bank v. Est. Van Ryn 
Standard Bank v. Heydenrych 

Standard Building Soc. v. Car- 
toulis 

S. B. Soc. v. Kellermann . .' 

Stander v. Stander 

Staples v. Marquard 

Steenkamp, ex parte 

Steenkamp v. Juriaanse 

Steenkamp v. Marais 

Steer's Est. v. Steer 

Steinbach v. Schmidt 

Stephens v. Liebner 

Stern v. Schattel 

Stevenson v. Alberts 

Stewart's Trustee v. Uniondale 
Munic 

Steyn v. Davis & Darlow 

Stigling v. Melck 

Stiglingh v. French 

Still v. Norton 

Stilwell, In re 

Stofberg v. Est. van Rooyen 

Stone v. Stone 

Strachan v. Prinsloo 

Stratford's Trustees v. London 
& S. A. Bank 



[1869] Buch. 231 
(1892) 9S.C. 95 . 



[1939] N.P.D. 79 

[1916] A.D. 400 . 

[1922] A.D. 137 . 

[1930] A.D. 3 

[1931] A.D. 276 . 

[1924] A.D. 704 . 



.. 395 
206, 434 



.. 339 

.. 300 
.. 318 
.. 338 
.. 325 
. 220 



[1943] C.P.D. 15 . . . . 316 
(1916) 19 Ceylon N.L.R. 314 119 
(1907) 24S.C. 288 .. .. 412 
[1920] A.D. 617 .. . . 27, 264 



[1929] E.D.L. 113 


.. ..331 


[1940] T.P.D. 1 . . 


.. ..247 


(1846) 2Menz. 454 


.. ..406 


[1908] T.S. 473 . . 


.. ..341 


[1914] C.P.D. 83 


.. ..198 


[1917] C.P.D. 533 


.. ..449 


(1899) 16 S.C. 161 


.. 222,230 


[1925] A.D. 266 . . 


.. ..237 


[1907] A.C. 336; 3 


Buch. 


A.C. 145 .. . . 202 


[1939] A.D. 510 . . 


. . . . 44 


[1930] T.P.D. 796 


.. ..315 


[1929] A.D. 349 . . 


33, 96 


[1919] C.P.D. 181 


.. ..239 


[1919] C.P.D. 112 


. . . . 387 


[1907] T.S. 980 . . 


.. 267,329 


(1908) 25 S.C. 483 


.. ..380 


[1923] C.P.D. 354 


.. ..318 


[1930] S.W.A. 8 . . 


.. ..306 


[1938] W.L.D. 95 


.. ..290 


[1935] C.P.D. 78 


.. ..431 


[1912] C.P.D. 698 


68, 71 


(1889) 7 S.C. 110 


.. ..204 


[1927] T.P.D. 651 


.. ..231 


[1935] C.P.D. 228 


.. .. 31 


(1892) 9 S.C. 386 


.. ..257 


(1838) 2 Menz. 209 


.. ..276 


(1831) 1 Menz. 537 


.. ..194 


[1928] O.P.D. 38.. 


.. ..216 


[1917] C.P.D. 143 


93, 94 


[1925] T.P.D. 709 


.. ..265 



(1874) 3 E.D.C. 439 



. 201 



TABLE OF CASES 



Strickland v. Strickland 

Stride v. Reddin 

Struben v. Cape Town Water- 
works Co 

Strydom v. Strydom's Trustee 

Stuttaford & Co. v. Oberholzer 

Subaida Umma v. Wodood . . 

Sulaiman v. Amardien 

Sullivan v. Sullivan 

Sun Life Ins. Co. v. Kuranda 

Surmon v. Surmon 

Surveyor-General (Cape) v. Est. 
De Villiers 

Sutcliffe v. Sutcliffe 

Sutherland v. Banwell 

Sutter v. Brown 

Swanepoel v. Van der Hoeven 

Swanepoel v. Van der West- 
huizen 

Swanepoel v. Van Heerden . . 

Swart v. Swart 



[1908] A.C. 551 
[1944] A.D. 162 



lix 

387 
324 



(1892) 9 S.C. 68 151 

(1894) 11 S.C. 425 . . . . 384 
[1921] C.P.D. 855 .... 48 
(1927) 29 Ceyion N.L.R. 330 338 
[1931] C.P.D. 509 . . . . 328 
(1818) 2 Hagg. Con. 238 . . 95 

[1924] A.D. 20 205 

[1916] A.D. 47 .. .. 31,32 



[1923] A.D. 594 . . 
[1918] T.P.D. 686 
[1938] A.D. 476 ... 
[1926] A.D. 155 . . 
[1878] Buch. 4 . . 

[1930] T.P.D. 806 
[1928] A.D. 15 . . 
[1924] N.P.D. 104 



129 
336 
326 
331 
165 

282 

207 

92 



Tait v. Wicht 

Tanne v. Foggitt 

Tarr, ex parte 

Tarrant v. Marikar 

Tatham v. Andree 

Tauber v. Venter 

Taylor v. Caldwell 

Taylor v. Pirn 

Taylor v. Taylor 

Taylor N. O. v. Lucas N. O. 

Texas Co. (S.A.) v. Cape Town 
Munic 

Thangamma v. Ponnambalam 

Theron v. Gerber 

Theron v. Schoombie 

Theron v. Theron 

Theron Ltd. v. Gross 

Theunissen v. Fleischer, Wheel- 
don & Munnik 

Thienhans v. The Master 

Thomas' Est. v. Kerr 

Thompson v. Pullinger 

Thornton v. Priest's Trustee . . 

Thorpe's Exors. v. Thorpe's 
Tutor 

Tietze v. Woschnitzok 

Timony & King v. King 

Tiopaizi v. Bulawayo Munic. 



(1890) 7 S.C. 158 .. .. 227 
[1938] T.P.D. 43 . . 47, 421 
[1941] C.P.D. 104 . . 370, 372 
(1934) 36 Ceylon N.L.R. 145 241 
(1863) 1 Moo. P.C.C. (N.S.) 

386 191 

[1938] E.D.L. 82 178 

(1863) 3 B. & S. 826 .. ' .. 280 
(1903) 24 N.L.R. 484 .. 367 
[1928] W.L.D. 215 . . . . 90 
[1937] T.P.D. 405 .... 39 

[1926] A.D. 467 186 

(1943) 43 Ceylon N.L.R. 265 347 
[1918] E.D.L. 288 . . . . 202 

(1897) 14 S.C. 192 296 

[1924] A.D. 244 91 

[1929] C.P.D. 345 . . . . 221 

(1883) 3 E.D.C. 291 .. . . 285 

[1938] C.P.D. 69 . . . . 366 

(1903) 20 S.C. 354 .. .. 311 

(1894) 1 O.R. 298 . . . . 450 

[1932] C.P.D. 296 . . . . 314 

(1886) 4 S.C. 488 . . . . 289 
[1929] S.W.A. 39 . . . . 334 

[1920] A.D. 133 288 

[1923] A.D. 317 .. . . 44, 303 



Ix 



TABLE OF CASES 



Tippett, ex parte 

Tissera v. Tissera 

Toerien v. Duncan 

Toms v. Toms 

Tonkin v. Van Heerden 

Tothill v. Foster 

Toy v. Blake 

Tradesmen's Benefit Society v. 

Du Preez 

Tramway Workers Union v. 

Heading 

Transvaal & Rhodesian Ests. 

Ltd. v. Golding 
Transvaal Prov. Admin, v. 

Coley 

Traub v. Bloomberg 
Tredgold v. Est. Arderne 

Tregea v. Godart 

Tregidga & Co. v. Sivewright 

N. O 

Trichardt v. Muller 

Trimble v. Central News 
Tshabalala v. Van der Merwe . . 
Tshoba Colliery v. Tshoba Coal 

Syndicate 

Tucker v. Carruthers 

Tuttv.Tutt 

Twentyman v. Hewitt 



[1942] C.P.D. 68 . . . . 360 

(1940) 42 Ceylon N.L.R. 60 134 

[1932] O.P.D. 141, 180 332, 340 

[1920] T.P.D. 455 . . . . 90 

[1935] N.P.D. 589 . . . . 170 

[1925] T.P.D. 857 . . . . 331 

[1923] C.P.D. 98 . . . . 319 

(1887) 5 S.C. 269. . 245, 444, 445 

[1938] A.D. 47 339 

[1917] A.D. 18 . . . . 328, 343 

[1925] A.D. 24 342 

[1917] T.P.D. 276 . . . . 38 
[1926] C.P.D. 25 . . . . 381 
[1939] A.D. 16 363 

(1897) 14 S.C. 86 .. ..319 
[1915] T.P.D. 175 . . . . 264 

[1934] A.D. 43 345 

[1926] N.P.D. 75 . . . . 303 

[1926] N.P.D. 526 . . . . 221 

[1941] A.D. 251 284 

[1929] C.P.D. 51 .... 10 
(1833) 1 Menz. 156 .. .. 450 



Umhlebi v. Umhlebi's Est. . . 

Umlaas Wool Washing Co., In 
re 

Unie Volkpers Bpk. v. Rossouw 

Union & Rhodesia Wholesale 
Ltd. v. Sampson 

Union Govt. v. De Koch N. O. 

Union Govt. v. Fisher's Execu- 
trix 

Union Govt. v. Gowar 

Union Govt. v. Hawkins, 

Union Govt. v. Jordaan's Exor. 

Union Govt. v. Larkan 

Union Govt. v. Leask's Exors. 

Union Govt. v. Lee 

Union Govt. v. Marais 

Union Govt. v, Nat. Bk. of S.A. 

Union Govt. v. Olivier 

Union Govt. v. Sykes 

Union Govt. v. Tonkin 

Union Govt. v. Vianini . 



U 

(1905) 19E.D.C. 237 .. .. 218 



[1934] N.P.D. 18 
[1943] A.D. 519 . 

[1928] C.P.D. 452 
[1918] A.D. 22 . 



[1921] 

[1915] 

1944 

[1916] 

[1916] 

[1918] 

[1927] 

[1920] 

[1921] 

[1916] 

[1913] 

[1918] 

[1938] 



T.P.D. 328 
A.D. 426 . 
(2)P.H.,J. 
T.P.D. 411 
A.D. 212 . 
A.D. 447 . 
A.D. 202 . 
A.D. 240 . 
A.D. 121 . 
A.D. 74 . 
A.D. 161 . 
A.D. 533 . 
A.D. 560 . 



.. ..200 
.. ..345 

.. ..231 
.. ..385 

.. ..133 

.. 233,347 

10. [A.D.] 339 

.. ..259 

.. .. 85 

. . . . 85 

.. 329,330 

.. ..151 

324, 325, 345 

377,378,387 

.. 338,341 

.. ..148 

. 215 



TABLE OF CASES Ixi 

Union Govt. v. Warneke . . [1911] A.D. 657 42, 323, 329, 

330, 336 

Union Govt. v. Whittaker's Est. [1916] A.D. 194 148 

Union Lighterage Co. v. London 

Graving Dock Co [1902] 2 Ch. 557 175 

United Building Soc. v. Law .. [1910] T.P.D. 369 .. ..206 

United Building Soc. v. Lennon [1934] A.D. 149 153 

United Building Soc. v. Smook- 

ler's Trustees [1908] T.S. 623 . . 197, 198, 203 

United Shoe Machinery Co. of 

Canada v. Brunet . . . . [1909] A.C. 330 .. . . 229, 230 

United S. A. Assoc. Ltd. v. Cohn [1904] T.S. 733 434 

Urtel v. Jacobs [1920] C.P.D. 487 . . 346, 452 

Uys, exparte .. [1929] T.P.D. 443 .. ..Ill 



V 

Valliammai v. Annammai . . (1900) 4 Ceylon N.L.R. 8 . . 425 

Van Aardtv. Hartley's Trustees (1845) 2 Menz. 135 .. ..145 

Van Biljon, ex parte . . . . [1934] O.P.D. 104 . . . . 362 

Van Breda v. Jacobs . . . . [1921] A.D. 330 21 

Van Breda v. Silberbauer . . (1869) L.R. 3 P.C. 84. . . . 155 

Van Coller v. Henny . . . . [1929] C.P.D. 244 . . . . 355 
Van den Bergh v. Polliack & 

Co [1940] T.P.D. 237 . . . . 195 

Van der Byl v. Hanbury .. (1882) 2 S.C. 80 450 

Van der Byl & Co. v. Solomon [1877] Buch. 25 38, 47, 48, 49, 

50,110,422 
Van der Byl's Assignees v. Van 

der Byl ' (1886) 5 S.C. 170 .. .. 96 

Van der Byl's Est. w. Swanepoel [1927] A.D. 141 339 

Van der Heever's Est. v. Grey- 
ling (1907) 24 S.C. 414 .. ..249 

Van der Merwe v. Franck . . (1885) 2 S.A.R. 26 . . . . 247 
Van der Merwe v. Van der 

Merwe's Executrix . . . . [1921] T.P.D. 9 . . . . 370, 384 
Van der Merwe v. Van Wyk 

N. O [1921] E.D.L. 298 . . 70, 182 

Van der Merwe v. Webb . . (1883) 3 E.D.C. 97 . . . . 433 

Van der Nest v. Van der Nest [1925] W.L.D. 12 .. .. 88 

Van der Plank N.O. v. Otto . . [1912] A.D. 353 445 

Van der Vyver v. De Wayer (1861) 4 Searle 27 . . . . 318 
Van der Walt v. Van der Walt's 

Exors (1896) 13 S.C. 336 . . . . 360 

Van der Walt v. Registrar of 

Deeds [1935] C.P.D. 463 . . . . 382 

Van der Westhuizen v. Engel- 

brecht [1942] O.P.D. 191 . . . . 59 

Van der Westhuizen v. Rex . . [1924] T.P.D. 370 . . . . 42 

Van der Westhuizen v. Velenski (1898) 15 S.C. 237 . . 448, 450 

Van Diggelen v. Triggs .. .. [1911] S.R. 154 259 

Van Dyk, ex parte [1939] C.P.D. 202 . . . . 105 



Ixii 



TABLE OF CASES 



Van Dyk v. Van Dyk's Exors. 
Van Eeden, ex parte 
Van Eeden v. Kirstein 
Van Heerden v. Coetzee 
Van Heerden v. Pretorius 
Van Jaareveld v. Van Jaars- 

veld'e Est 

Van Leggelo v. Argus Printing 

Co 

Van Misdorp, ex parte 

Van Niekerk v. Wimble 

Van Niekerk & Union Govt. . 

Carter 

Van Noorden v. De Jongh 
Van Noorden 's Est. v. Est. Van 

Noorden 

Van Oosten v. Van Oosten 

Van Pletsen v. Henning 

Van Reenen v. Board of Exors. 

Van Reenen v. Glenlily 

Van Reenen v. Van Reenen's 

Est .,_*..' 

Van Rensburg v. Snyman 
Van Rensburg v. Straughan . . 
Van Rensburg v. Swersky Bros. 
Van Rooyen v. Van Rooyen . . 
Van Rooyen v. Werner 

Van Ryn Wine & Spirit Co. v. 

Chandos Bar 

Van Schalkwijk v. Du Plessis 
Van Schalkwyk v. Hugo 
Van Schalkwyk Est. ex parte 

Vanston v. Frost 

Van Vliet's Collection Agency 

v. Schreuder 

Van Vuren v. Registrar of Deeds 
Van Vuuren, ex parte 

Van Wyk v. Leo 

Van Zyl v. African Theatres 

Ltd 

Van Zyl v. Van Zyl . . 

Vedeski v. Vedeski 

Veerapillai v. Kantar 

Venter, ex parte 

Venter, ex parte 

Venter v. De Burghersdorp 

Stores 

Venter v. Smit 

Venter v. Venter 

Vermaak v. Palmer 
Vermaak v. Vermaak 



(1890) 7 S.C. 194 . . . . 384 

[1905] T.S. 151 378 

(1880) Kotze 182 .. 67,426 

[1914] A.D. 167 169 

[1914] A.D. 69 169 

[1938] T.P.D. 343 . . . . 240 

[1935] T.P.D. 230 .. . . 342 
[1928] C.P.D. 78 .. ..109 
[1878] Buch. 190 . . . . 177 

[1917] A.D. 359 129,130,161,140 
(1892) 9 S.C. 296 .. .. 257 



[1916] A.D. 175 . . 
[1923] C.P.D. 409 
[1913] A.D. 82 . . 
[1875] Buch. 44 . . 
[1936] C.P.D. 315 

[1925] O.P.D. 239 
[1927] O.P.D. 123 
[1914] A.D. 317 . . 
[1923] T.P.D. 255 
[1927] C.P.D. 266 



.. ..355 
.. ..239 
215, 233, 272 
. . . . 362 
.. ..339 

.. ..394 
.. ..333 
.. ..346 
.. ..430 
88, 89 



(1892) 9 S.C. 425 37, 38, 39, 102, 
104, 255 

[1928] T.P.D. 417 . . . . 220 
(1900) 17 S.C. 454 . . 168, 177 

(1880) Foord89 148 

[1927] C.P.D. 268 .... 45 
[1930] N.P.D. 121 . . . . 329 

[1939] T.P.D. 265 . . . . 334 

[1907] T.S. 289 186 

[1937] T.P.D. 144 . . . . 388 

[1909] T.S. 788 258 

[1931] C.P.D. 61 . . 337, 338 
[1925] T.P.D. 130 .... 94 
[1923] W.L.D. 31 .. ..118 
(1928) 30 Ceylon N.L.R. 121 379 
[1920] O.P.D. 153 . . . . 379 
[1934] T.P.D. 69 . . . . 183 

[1915] C.P.D. 252 . . 41, 422 
[1927] C.P.D. 30 . . . . 342 
[1935] C.P.D. 27 . . . . 105 
[1876] Buch. 25 .. . . 129, 155 
[1929] O.P.D. 13 53 



Heirs 
Vermeulen's Execut 

man 

Vickerman, ex parte 
Victoria Falls & 

Power Co. v. C 

laagte Mines 
Viljoen v. Hillier 
Viljoen v. Viljoen , 
Viljoen v. Visser 
Viljoen's Exors v. T 
Villet's Est. v. Villet's Est. 
Vimpany v. Attridge 
Vincent v. Vincent . 
Visagie, ex parte 
Visagie v. Muntz & Co. 
Viviers v. Kilian 
Voeges v. Voeges 
Volshenk v. Van den Berg 
Von Holdt v. Brewer 
Von Ludwig, In re Est. 
Vuurman v. Uni 

prises Ltd. 



Wagenaar v. Wagenaar 
Walker v. Matterson 
Walker v. Syfret N. O. 
Walker v. Taylor 
Walker v. Van Wezel 
Walker v. Wales 
Wallach's Ltd. v. Marsh 
Wallach's Trustee v. Wallach 
Wanigaratne v. Selohamy 
Wanigatunga v . S 
Ward, ex parte 



Watermeyer v. Murray 
Watermeyer's Exo 
meyer's Exor. 
Waterson v. May berry 
Watson v. McHattie 
Webb v Giddy . . . 
Webb v. Langai 
Webber v. Webber . 
Webber's Exor. ex parte 
Webster v. Bosanquet 
Webster v. Ellison . 



TABLE 


OF CASES 


Ixiii 


^ermaak's 


[1909] T.S. 679 .. 


98, 353 


ix v. Mool- 






. . 


[1911] A.D. 384 .. .. 


.. 178 


i 

JL ranS Vaai 


[1935] C.P.D. 429 


.. 445 


>ns. Lang- 








[1915] A.D. 1 . . 266, 


445, 448 




[1904] T.S. 312 .. 


.. 231 




[1944] C.P.D. 137 


52, 239 





[1929] C.P.D. 473 


.. 264 


e Master 


[1922] C.P.D. 208 


.. 394 


s Est. . . 


[1939] C.P.D. 152 


.. 392 




[1927] C.P.D. 113 


.. 372 




[1914] A.D. 379 .. 


92,94 




[1940] C.P.D. 42 


.. 388 


o 


[1921] C.P.D. 582 


.. 142 





[1927] A.D. 449 .. 


.. 336 




[1922] T.P.D. 299 


.. 87 


Berg . . 


[1917] T.P.D. 321 


.. 170 


... 


[1918] C.P.D. 163 


.. 306 


st 


[1931] C.P.D. 488 


.. 387 


al Enter- 









[1924] T.P.D. 488 


237,238 




W 




ar 


[1928] W.L.D. 306 . . 


96, 288 


. . 


[1936] N.P.D. 495 


.. 241 


) 


[1911] A.D. 141 .. .. 


.. 250 




[1934] W.L.D. 101 . . 


.. 260 




[1940] W.L.D. 66 


.. 335 




[1922] C.P.D. 49 


.. 295 


<sh " .' .' 


[1928] T.P.D. 531 


344, 345 


Wallach 


[1914] A.D. 202 .. 


.. 445 


amy 


(1941) 42 Ceylon N.L.R. 


353 289 


) Appu . . 


(1925) 27 Ceylon N.L.R. 


50 130 




[1928] C.P.D. 70 


.. 386 


lerborne 


[1904] T.S. 340 .. 


.. 342 


tie Master 


[1913] C P D 784 


395 


si's Trus- 






. . 


(1834) 3 Menz. 424 .. 


.. 314 


y -. 


[1911] A.D. 61 .. .. 


.. 216 


v. Water - 








[1870] Buch. 69 


.. 258 


JT .. 


[1934] T.P.D. 210 


.. 330 


. . 


(1885) 2 S.A.R. 28 . . 


.. 204 




(1878) 3 App. Cas. 908 


.. 161 


. . 


(1884) 4 E.D.C. 68 . . 


.. 327 


. . 


[1915] A.D. 239 . . 75, 


, 87, 455 


rte 


(1902) 19S.C. 427 


.. 362 


/ 


[1912] A.C. 394 .. 


.. 268 




[1911] A.D. 73 .. 14, 


194, 195 



Ixiv 



TABLE OF CASES 



Weeks v. Amalgamated Agen- 
cies Ltd 

Weerasinghe v. Perera 

Wege's Est. v. Strauss 

Weinerlein v. Goch Buildings 
Ltd 

Welch v. Harris 

Welgemoed v. Cohen 

Wellappu v. Mudalihami 

Wells v. Dean-Willcocks 

Wells v. Du Preez 

Wells v. S. A. Alumenite Co. 

Welsford, Est. v. Est. Wright 

Wentzel v. Wentzel 

Wessels v. Wessels 

Wessels, N. O. v. Uys 

West Rand Estates Ltd. v. 
New Zealand Insur. Co. . . 

Western Alarm System (Pty) 
Ltd. v. Coini & Co 

Weyer v. Est. Weyer 

Whelan v. Oosthuizen 

Whelan v. Whelan 

White v. Landsberg's Exors. 

White Bros. v. Treasurer-Gen. 

Whiting, Re Est 

Whitlock v. Smith 

Whittaker v. Roos & Bateman 

Whittington v. Bowles 

Wickremanayake v. The Times 
of Ceylon 

Widdicombe, In re 

Wiener v. Est. McKenzie 

Wijesiriwardene v. Gunasekera 

Wijesooria v. Ibrahimsa 
Wijeysinghe v. Velohamy 
Wiley v. The Master 
Wilhelm v. Norton 
Wilhelm's Trustee v. Shepstone 
Wilken v. Holloway 

Wilken v. Kohler 

Wilkinson v. Trevett 
Wilkinson's Est. v. Wilkinson 
Willenburg v. Willenburg 
Willenburg v. Willenburg (1) 
Willenburg v. Willenburg (2) 

Williams, ex parte 

Williams v. Robertson 
Williams v. Rondebosch Foun- 
tain Garage Co 



[1920] A.D. 218 144 

(1943) 43 Ceylon N.L.R. 575 170 

[1932] A.D. 76 241 

[1925] A.D. 282 .. .... 221 

[1925] E.D.L. 298 . . . . 257 

[1937] T.P.D. 134 . . . . 345 

(1903) 6 Ceylon N.L.R. 233 288 

[1924] C.P.D. 89 .. 53,95 

(1906) 23 S.C. 284 .. .. 236 

[1927] A.D. 69 238 

[1930] O.P.D. 162 . . . . 381 

[1913] A.D. 55 91 

(1895) 12 S.C. 465 .. 89,92 

[1924] O.P.D. 329 .... 61 



[1925] A.D. 245 
[1926] A.D. 173 



[1944] 
[1939] 
[1937] 
[1925] 
[1918] 
(1883) 
[1910] 
[1943] 
[1912] 
[1934] 

(1937) 
[1929] 
[1923] 
(1917) 

(1910) 
(1928) 
[1926] 
[1935] 
(1878) 
[1915] 
[1913] 
[1922] 
(1907) 
(1909) 
(1909) 
(1908) 
[1924] 
(1886) 



C.P.D. 271 
A.D. 126 .. 
T.P.D. 304 
W.L.D. 162 . . 
C.P.D. 211 
2 S.C. 322 
T.P.D. 527 
C.P.D. 321 
A.D. 92 . . 
E.D.L. 142 . . 

39 Ceylon N.L.R. 
N.P.D. 311 .. 
C.P.D. 562 
20 Ceylon N.L.R. 

13 Ceylon N.L.R. 
29 Ceylon N.L.R. 
C.P.D. 97 
E.D.L. 143 
6 N.L.R. (O.S.) 1 
C.P.D. 418 
A.D. 135 .. 
C.P.D. 393 

24 S.C. 602 
3Buch.A.C.409 
26 S.C. 447 

25 S.C. 894 
E.D.L. 325 
8 S.C.C. 36 



[1929] C.P.D. 439 



.. 272 

.. 447 

.. 337 

.. 97 

.. 275 

.. 8 

.. 384 
232, 233 

.. 372 

.. 344 

.. 339 

.. 335 

547 332 
.. 90 

143, 239 

92 

234, 305 

195 50 

349 204 
.. 292 

168, 177 
.. 258 
.. 347 
.. 227 
.. 334 
.. 360 
39,58,59 
.. 61 
.. 58 
.. 85 
.. 11 

. 237 



TABLE OF CASES 



Williams v. Williams 
Williams v. Williams 
Williams' Est. v. Molenschoot 
Willoughby v. Me Wade 
Willoughby's Cons. Co. v. 
Copthall's Stores Ltd. 

Wilson, Est. N. G. v. Est. L. J. 
Wilson 

Wilson & Simon v. Lazarus . . 

Winn N. O. v. Oppenheimer . . 

Winstanley v. Barrow 

Wirths v. Albow Bros. & Van 
Zyl 

Witz, ex parte 

Woeke, In re 

Wolfson v. Crowe 

Wolpert v. Steenkamp 

Wood v. Davis 

Wood v. Est. Fawcus 

Woodhead Plant & Co. v. Gunn 

Woods v. Walters 

Woods v. Woods 

Woodstock, &c. Councils v. 
Smith 

Woolmer v. Rees 

Worcester Municipality v. Colo- 
nial Govt. 

Worthington v. Shagam 
Worthington v. Wilson 
Wright & Co. v. Col. Govt. . . 
Wulfsohn v. Taylor 
Wylde, Sir John's Will, In re 
Wynn N. O. v. Oppenheimer. . 
Wynne v. Est. Wynne 



(1896) 13 S.C. 200 
[1925] T.P.D. 538 
[1939] C.P.D. 360 
[1932] C.P.D. 66 

[1913] A.D. 267 . . 
[1918] A.D. 1 

[1909] N.P.D. 447 
[1921] O.P.D. 32. . 
[1937] T.P.D. 91 
[1937] A.D. 78 . . 



Ixv 

.. ..436 

. . . . 33 

.. ..347 

.. .. 332 

186, 250, 434 
.. 173,307 

... . . 97 

.. ..300 

. . . . 355 

.. 353,355 



[1922] S.W.A. 127 . . . . 285 
[1941] W.L.D. 74 .... 74 
(1832) 1 Menz. 554 .. .. 202 

[1904] T.S. 682 317 

[1917] A.D. 493 .. . . 264, 449 
[1934] C.P.D. 250 38,47,49,110 
[1935] C.P.D. 350 . . . . 374 
(1894) 11 S.C. 4 .. 433,434 

[1921] A.D. 303 217,269,448,449 
[1922] N.P.D. 367 .... 37 

(1909) 26 S.C. 681 . . . . 229 
[1935] T.P.D. 319 . . . . 216 

(1909) 3 Buch. App. Cas. 538 



Xapa v. Ntsoko 



300, 450 

[1937] N.P.D. 376 . . . . 237 

[1918] T.P.D. 104 . . . . 317 

(1891) 8 S.C. 260 . . 247,249 

[1928] T.P.D. 99 . . . . 312 

[1873] Buch. 113 .. ..361 

[1938] T.P.D. 359 . . . . 385 

(1908) 25 S.C. 951 . . . . 374 

X 

[1919] E.D.L. 177 . . . . 142 



Yates v. Aukland Park Sport- 
ing Club & Roberts 

Yates v. Dalton 

Yates v. MacRae 

Yeld v. Yeld 

Yorkshire Insurance Co. v. 
Barclay's Bank 

Young, ex parte 

Young v. Hutton 

Young v. Kemsley 

4901 



[1915] W.L.D. 55 . . . . 250 

[1938] E.D.L. 177 . . . . 216 

[1929] T.P.D. 480 . . . . 344 

[1919] C.P.D. 103 . . 94, 95 

[1928] W.L.D. 199 . . . . 318 

[1938] E.D.L. 300 . . . . 74 

[1918] W.L.D. 90 . . . . 329 

[1940] A.D. 258 333 



Ixvi TABLE OF CASES 

Young's Provision Stores v. 

Van Ryneveld [1936] C.P.D. 87 . . . . 299 

Z 

Zandberg v. Van Zyl . . . . [1910] A.D. 302 192 

Zelie v. Zelie [1944] C.P.D. 209 .... 87 

Ziedeman v. Ziedeman . . . . (1838) 1 Menz. 238 . . 93, 96 
Zweigenhaffc v. Rolfes, Nebel & 

Co [1903] T.H. 242 .... 305 



TABLE OF STATUTES 

I. DUTCH 

1452 Placaet of Philip, Duke of Burgundy, June 11 26, 1 59 

1462 Instructie voor den Stadthouder ende Luyden van de 

Kamer van den Rade, Art. 42 ... 5 

147f Great Privilege of Mary of Burgundy, March 14 . 147 
15 If Placaat of Charles V, January 22 . . . 26,159 
152f Placaat, March 20 . . . . . . 364 

1529 Placaat of Charles V, May 10 . . 6, 145, 146, 189 
1531 Placaat, October 16 . . . .364 

1540 Perpetual Edict of Charles V, October 4. . . 6, 60 
Art. 2 . . . . .429 

Art. 6 82 

Art. 8 258 

Art. 12 . . . . . 364 

Art. 14 357 

Art. 16 283 

Art. 17 56, 58, 365 

1560 Placaat, May 9 . . "'.'.'. . . 145,190 
156f Placaat of Philip II, February 21 . . . .317 

1570 Code of Criminal Procedure of Philip II . . 6 

1574 Placaat of Philip II, May 15 . . . .137 

1580 Code of Civil Procedure 6 

1580 Political Ordinance, April 1 . . . . 6 

Art. 3 57, 60, 62 

Arts. 5, 6, 7, 8, 10, 11 . . . 54, 55 

Art. 13 *'i. 57 

Arts. 19-29 400 

Art. 29 ''. . . . . 71,355 
Art. 31 26, 159, 203 

Art. 35 ; 190 

Art. 37 189 

1594 Interpretation of the Political Ordinance, May 13 399, 402 

1598 Placaat der 40 ste Penning, December 22. . 145,189 

1599 Placaat op 't stuck van de Successien ab intestato, 

December 18 . . . 402, 405, 409, 453, 455 

1608 Placaat, May 1 27 

1612 Placaat, March 6 145 

1620 Resolutie van de Staten van Hollandt, September 15 130 
1624 Placaat van de Staten van Hollandt ende West- 

Vrieslandt, July 30 376 

1629 Ordre van Regieringe, October 13 . . . 8, 407 

1642 Old Statutes of Batavia .... 8,403 

1651 Placaet, Jegens 't presenteren ende nemen van ver- 

boden Giften ende Gaven, 1 July (States-General) 27 
1656 Echt-Reglement van de Staten -Generaal, March 18 

Art. 47 59 

Art. 52 33 

Art. 83 27 



4901 



e2 



Ixviii TABLE OF STATUTES 

1656 Echt-Reglement van de Staten-Generaal, March 18 

Art. 85 54 

Art. 90 27 

1658 Placaet van de Staten van Hollandt tegens de Pachters 

ende Bruyckers van de Landen, September 26 26, 305 

Art. 9 27 

Art. 10 306 

Art. 11 196,306 

Art. 13 307 

Art. 14 ... .307 

1661 Octrooi to the East India Company, January 10 

402, 404, 408 

Placaat, December 9, Art. 51 . . . .27 

1665 Waerschouwinge van de Staten van Hollandt ende 

West-Vrieslandt, February 5 . . . .26 

1670 Placaet van de Staten van Hollandt ende West-Vries- 

landt, July 23 388 

1671 Resolutie van de Staten van Hollandt ende West- 

Vrieslandt, March 18 357 

1674 Placaet van de Staten van Hollandt ende West- 
Vrieslandt, July 18 .... 27, 28 

1677 Ordre der Hove, March 29 26 

Waerschouwinge van de Staten van Hollandt ende 

West-Vrieslandt, April 3 . . . 26, 159 

1679 Ordre ende Reglement, November 29 . .27 

1696 Placaet, February 24 26, 305 

1715 Placaat teegens neemen van giften en gaven, 10 

December (States -General) . . . .27 
1732 Resolutie van de Staten van Holland, May 1 . . 150 
Octrooi van de Berbice, December 6 ... 407 
1744 Ordonnantie op het Middel van den veertigsten 

penning, May 9, Arts. 9 and 19 . . .160 
1751 Placaat van de Staaten van Holland, February 25 54, 365 
1754 Placaat van de Staaten van Holland, March 7 . 27 

1766 New Statutes of Batavia .... 8, 404 

1774 Resolution of the States -General, October 4 (Laws of 

Brit. Gui., vol. i, p. 1) . . 8, 407 

1778 Placaat van de Staaten Generaal, August 10 . . 150 

II. IMPERIAL 

1670 Statute of Distribution (22 & 23 Car. 2, c. 10). . 412 
1677 Statute of Frauds (29 Car. 2, c. 3) . . .227 

1753 Lord Hardwicke's Act (26 Geo. 2, c. 33) . 52 

1828 (British Guiana) Order in Council, December 15 . 6 
1831 Letters Patent constituting the Colony of British 

Guiana, March 4 (Laws of British Guiana, ed. 

1905, p. 12) 11 

1837 Wills Act (7 Will. 4 & 1 Viet., c. 26), Sec. 18 . . 373 
1845 Gaming Act (8 & 9 Viet., c. 109) . . . .242 
1893 Sale of Goods Act (56 & 57 Viet., c. 71) . . . 293 
1882 Married Women's Property Act (45 & 46 Viet., c. 75) 443 
1889 The Factor's Act (52 & 53 Viet., c. 45), Sec. 2 . . 435 



TABLE OF STATUTES Ixix 

1898 Southern Rhodesia Order in Council, October 20 . 13 
1909 South Africa Act (9 Edw. 7, c. 9) . . . .13 
1923 Southern Rhodesia (Annexation) Order-in-Council, 

July 30 .13 

Southern Rhodesia Constitution Letters Patent, 

September 1 . ~. . . . . . 13 

1926 Law of Property Act ( 15 Geo. 5, c. 20) . \ . 203 
Sec. 40 (1) . . . . . .227 

Sec. 177 (1) . '.. 373 

Administration of Estates Act (15 Geo. 5, c. 23) 

Sec. 46 412 

1926 Legitimacy Act (16 & 17 Geo. 5, c. 60) 

Sec. 1 (Sub-sec. 2) . . .35 

1927 Auctions (Bidding) Agreements Act (17 & 18 Geo. 5, 

c. 12) . . . . . . . .240 

1929 Age of Marriage Act (19 & 20 Geo. 5, c. 36) . . 53 
1937 Matrimonial Causes Act (1 Edw. 8 & 1 Geo. 6) : 

Sec. 2 . . . ' . . 88,89 

Sec. 7 (d) . . - :...'.. . . 33 

Sec. 8. f 91 

1939 Marriage (Scotland) Act (2 & 3 Geo. 6, c. 34) . 63 

1943 Law Reform (Frustrated Contracts) Act (6 & 7 Geo. 

6, c. 40) 347 

1945 Law Reform (Contributory Negligence) Act (8 & 9 

Geo. 6, c. 28) '.-.- . . . . 326 

III. UNION OF SOUTH AFRICA 

1910 Interpretation Act (No. 5), Sec. 5 . . -.. >~ / 261 

1911 Public Debt Commissioners Act (No. 18) . $"< 110 
Powers and Privileges of Parliament Act (No. 19) 332 

1912 Irrigation and Conservation of Waters Act (No. 8), 

Sec. 2 . ... . . .129 

Sec. 8 . . . . ' . 155 

1913 Administration of Estates Act (No. 24): 

Sec. 2 . . ';.; . . .133 

Sec. 30 . . . . . 105 

Sec. 31 . in , . W ;" . 109 

Sec. 34 354 

Sec. 54 : . . . / . 38, 109 

Sec. 56 , < . . ... . 99 

Sec. 61 Nfapg . . . ' . . 354 

Sec. 62 . . . .--*- . 133 

Sec. 71 . . . . ' 101, 104, 105 

Sec. 72 . . '-,.'.' L r.s 101, 103 

Sec. 73 . . . . '". 103, 105, 107 

Sec. 76 ;:>: . . !t<j ft^fc . 104 

Sec. 77 4"<!,-- "V - 101, 105 

Sec. 78 . . . * . . 105 

Sec. 80 . . . t$fe R^n . 105 

Sec. 81 . . . v,", . 105 

Sec. 82 108 



Ixx TABLE OF STATUTES 

1913 Administration of Estates Act (No. 24): 

Sec. 83 77, 106 

Sec. 84 117 

Sec. 85 108 

Sec. 86 112 

Sec. 87 112,188 

Sec. 88 109 

Sec. 89 113 

Sec. 98 406 

Sec. 107 104 

Sees. 108-9 108 

Sec. 110 108 

1916 Removal or Modification of Restrictions on Im- 

movable Property Act (No. 2) ... 388 

Railways Act (No. 22), Sec. 18 (1) . . . 319 
Insolvency Act (No. 32) : 

Sec. 1 84 

Sec. 84 202 

Sec. 86 195 

Sec. 87 201, 202 

Mental Disorders Act (No. 38), Sec. 62 . . . 105 

1917 Criminal Procedure and Evidence Act (No. 31), 

Sec. 344 88 

Magistrates Courts Act (No. 32), Sec. 59 . . 434 

1919 Treaty of Peace and South -West Africa Mandate 

Act (No. 49) 14 

1920 Natal and Transvaal Marriage Law Amendment 

Act (No. 11), Sees. 1, 3 . . . . 423,424 

Appellate Division Act (No. 12) . . . 14 

1921 Union Proclamation No. 1 . . . . .14 
Marriage Law Amendment Act (No. 17) . .424 

1922 Coinage Act (No. 31), Sec. 3 .... 256 

1923 Aviation Act (No. 16), Sec. 9 . . . .128 
Adoption of Children Act (No. 25) . 41, 413, 425 
Insurance Act (No. 37): 

Sec. 20 (a) 47 

Sees. 23 ff. 84 

1924 Removal or Modification of Restrictions on Immov- 

able Property Act 1916 Amendment (No. 20) . 388 
Births, Marriages, and Deaths Registration Amend- 
ment Act (No. 17) Sec. 4 .... 35 
1926 Insolvency Act 1916 Amendment Act (No. 29), 

Sec. 29 195 

Usury Act (No. 37), Sec. 2 .. . . . .259 

Companies Act (No. 46) . . . . 121,313 

Sec. 77 444 

1932 Companies Law Amendment Act (No. 11) . . 121 
Notarial Bonds (Natal) Act (No. 18) . . 200, 202 

1934 Succession Act (No. 13) 412 

Cape Statute Law Revision Act (No. 25) 10 

Abolition of Quitrent Act (No. 54) . . .161 

Building Societies Act (No. 62) . . . .122 



TABLE OF STATUTES Ixxi 

1935 Marriage Law Amendment Act (No. 8) . . .53 
Sea-shore Act (No. 21) ..... ' . 129 
Divorce Laws Amendment Act (No. 32) . .;,.. . 88 
General Law Amendment Act (No. 46) Sec. 101, 

Sub-Sec. 3 32 

1936 Insolvency Act (No. 24) . , . . . 239 

Sec. 20 (1) (a), Sec. 22 . -'... . . 251 

Sees. 27, 28 . , .-. .. . . . 84 

Sec. 33 .- . ..,-.... . . 199 

Sees. 36, 37. . . . 294,311,434 

Sec. 47 . . ... . .199 

Sec. 84 . . . ; . . 196 

Sec. 85 . . . r.. . 192, 196 

Sec. 86 ...,<. . . . 201 

Sec. 87 ... -. . . . ; . , 202 

Sec. 98 . . 'in . . . .202 

1937 The Children's Act (No. 31) . . 41, 413, 425 
Abolition of Quitrent (Towns and Villages) Act 

(No. 33) . . . . . . 161 

Deeds Registries Act (No. 47) : 

Sec. 50 . . . < . . 191 

Sec. 51 . . ., . ... 187 

Sec. 53 (1) . . . . . .201 

Sees. 56, 57 . . . . 199, 204 

Sec. 63 (1) . 185 

Sec. 65 (1) ... . . .177 

Sec. 67 .. ... . . . 184 

Sees. 75 (1), 76 .. . . -. 174 

Sees. 86-89 ... . 73, 74 

Sec. 102 . . . 132, 160, 191 

1939 Matrimonial Causes Jurisdiction Act (No. 22) . 455 

Companies Amendment Act (No. 23) . . 121, 313 

1943 Prescription Act (No. 18) . . 149,281,283,344 

Sec. 2(1). . 50, 147, 148, 176, 184, 233, 

299, 327 

Sec. 3 .... 149, 208, 282 

Sees. 6, 7, 9, 10 . . . . - . 282 

Sec. 8 286 

Sec. 13 148 

Sec. 15 286 

1945 Matrimonial Causes Jurisdiction Act (No. 35) . 456 

IV. THE COLONY OF THE CAPE OF GOOD HOPE 

1714 Resolution of the Governor in Council, June 19 . 406 

1806 Articles of Capitulation of the Cape, January 18 . 9 

1813 Sir John Cradock's Proclamation, August 6 . . 161 

1829 Ord. No. 62 . . . . . . .44 

1833 Ord. No. 105, Sec. 1 101 

1838 Marriage Order-in-Council, September 7 . . 328 

Sec. 17 . . . . . . 59 

Sec. 19 . . . , . .52 

1845 Ord. No. 12 12 



Ixxii TABLE OF STATUTES 

1845 Ord. No. 15, Sec. 3 358, 361 

1860 Act No. 16 . . . . . . . .58 

1861 Act No. 6, Sec. 4 283 

Act No. 24 313 

1865 Act No. 7, Sec. 106 147 

1868 Act No. 11 364 

1873 Act No. 26, Sec. 1 369 

Sec. 2 98 

1874 Act No. 23, Sec. 2 369 

1875 Act No. 21 84 

Sec. 2 ...... 73 

1876 Act No. 22, Sec. 2 368 

Sec. 3 . . . . . .366 

Sec. 4 107 

1878 Act No. 3, Sec. 1 357 

1879 Act No. 8 (General Law Amendment) . . 23, 137 

Sec. 7 305, 310 

Sec. 8 . . ' . . . .234 
1889 Act No. 36 434 

1892 Act No. 40, Sec. 2 423 

1893 Act No. 19, Sec. 54 316 

1902 Act No. 36 242 



V. NATAL 

1844 Letters Patent, May 31 12 

1846 Ord. No. 4 44 

1856 Royal Charter, July 15 12 

1863 Law No. 22, Sec. 2 69 

Sec. 3 98, 369 

Sec. 5 412 

Sec. 7 72 

1865 Law No. 1 313 

1868 Law No. 2, Sec. 1 N 358 

Sec. 4 354 

Sec. 6 363 

Sec. 7 107, 366 

Sees. 8-10 371 

1878 Law No. 25 242 

1882 Law No. 14 72 

1883 Law No. 13 89 

1884 Law No. 12 160,227,317 

Law No. 40 . 316 

1885 Law No. 7, Sees. 1 & 2 369 

Sec. 3 98 

Law No. 9 318 

1895 Law No. 22 434 

1896 Act No. 39 12 

1898 Act No. 45 424 

1903 Act No. 37 12 

1905 Act No. 3 338 



TABLE OF STATUTES Ixxiii 

VI. THE TRANSVAAL 

1853 Volksraad Resolution, December 21, Art. 123 .. 44 

1859 Volksraad Resolution, September 19 . . . 13 

1871 Law No. 3, Sec. 4 . .-'.." .. . 55,423 

Sec. 8 . ' . . ' ; . . ? . 61 

1894 Law No. 13 . .. . . . V . 434 

1901 Procl. No. 34 . .- . . , . . . 13 

1902 Procl. No. 8, Sec. 2 . . . ' ., >> , . 227 

Sec. 29 . : ' . ... . 160 

Sec. 30 . . . ' . . .227 

Procl. No. 14, Sec. 17 . . . '>. . . . 13 

Procl. No. 28, Sec. 126 . ... . . 369 

Sec. 127 . . .> . . .98 

Sec. 128 369 

1903 Ord. No. 14, Sec. 1 ... . . . .358 

Sec. 2 . . . . . 368 

Sec. 3 ... . . . .366 

Sec. 4 107 

Sec. 5 . . . ... 358 

1904 Procl. No. 3 . . .' . . " ./" . 13 

1907 Procl. No. 4 . . ' , . . . . 13 

1908 Act No. 26 . . I . \ . . . . 283, 299 
Act No. 35 . . . . . . . .183 

1909 Act No. 36, Sec. 8 (1) . . ' .. ... . .313 

VII. ORANGE FREE STATE 

1899 Law No. 23 . >. > . . ,-. . . 84 
Law No. 26, Sec. 13 33 

1901 Law Book, Chap. Ixxxix, Sec. 7, Sec. 14 . . - . 44 

Chap, xcii, Sec. 1 . r . . . 98 

Sec. 2 .... 369 

Sec. 3 .... 369 

1902 Ord. No. 3, Sec. 1 . . . . . . 13 

Ord. No. 5 . 23 

Sec. 5 . . . . .1 305, 310 
Sec. 6 234 

1903 Ord. No. 31, Sees. 1 & 2 424 

1904 Ord. No. 11, Sec. 1 358 

Sec. 2 . . . ... 368 

Sec. 3 . . ' . . . 366, 368 

Ord. No. 11, Sec. 4 . . . ' . . .. .107 

Sec. 5 .. , . . . . . .358 

1906 Ord. No. 12, Sec. 49 . . . v . .227 

Sec. 51 .. . , . . 160 

VIII. CEYLON 

1796 Capitulation of Colombo . . . . .11 

1799 Proclamation of Governor Francis North, R.S. 

cap. 9 . , . - Efepl i . 10 



Ixxiv TABLE OF STATUTES 

1823 Regulation No. 15 (Lost Property), R.S. cap. 63 . 137 
1840 Ord. No. 7 (Prevention of Frauds), R.S. cap. 57, 

Sec. 2 .... 160, 174, 191, 227 

Sec. 3 363 

Sec. 5 371, 373 

Sec. 9 . - . . . . .368 

Sec. 10 366 

Sec. 13 363 

Sec. 21 312,317 

1844 Ord. No. 21. Sec. 1 (The Wills' Ordinance), R.S. cap. 

49 . . .... . .369 

Sec. 2 . ' ." . . . .363 

1847 Ord. No. 6 52 

1852 Ord. No. 5 (The Civil Law Ordinance), R.S. cap. 66 

11, 22 
Sec. 3 . . . . . .259 

Ord. No. 17, Sec. 1 191 

1862 Ord. No. 4, Sec. 2, R.S. cap. 267 . . . . 137 

1865 Ord. No. 7 (Age of Majority), R.S. cap. 53 .44 

1866 Ord. No. 22, R.S. Cap. 66 ... 23, 121, 312, 319 
1871 Ord. No. 22 (Prescription), R.S, cap. 55, 

Sec. 3 . . . . . .148 

Sec. 4 168 

Sec. 11 50 

1876 Ord. No. 11 (Entail and Settlement), R.S. cap. 54 377, 387 
Ord. No. 15 (Matrimonial Rights and Inheritance), 

R.S. cap. 47 . . . . . 453 
Sec. 8 . . . . .69 
Sec. 23 . . . . .84 
Sec. 40 405 

1887 Ord. No. 17, (Treasure Trove), R.S. cap. 147 . . 137 

1890 Ord. No. 5 (The Gemming Ordinance), R.S. cap. 164 138 

1891 Ord. No. 3, Sec. 2 (Treasure Trove), R.S. cap. 145 . 137 

1895 Ord. No. 2 (Marriage Registration), Sec. 16 . . 53 
Ord. No. 14 (Evidence Ordinance), R.S. cap. 11, Sec. 

112 33 

1896 Ord. No. 11 (Sale of Goods), R.S. cap. 70 . 23, 293 
1907 Ord. No. 19 (Marriage Registration), R.S. cap. 95 . 63 

Sec. 17 . . . . .425 

Sec. 21 51 

Sec. 22 35 

Sec. 23 61 

1909 Ord. No. 1 (Game Protection), R.S. cap. 326 . 136 

1916 Ord. No. 19 (Hotel Keepers' Liability), R.S. cap. 63 319 

1917 Ord. No. 9 (Trusts), R.S. cap. 72 . . . 387, 392 
Ord. No. 26 (Lost Property), R.S., cap. 63 . .137 

1918 Ord. No. 2 (The Money Lending Ordinance), R.S. 

cap. 67 259 

1923 Ord. No. 18 (Married Women's Property), R.S. cap. 

46 . . . . ' . . . .23,65 

Ord. No. 18, Sec. 29 . . ... . . 316 

1926 Ord. No. 18 (Carriage of Goods by Sea), R.S. cap. 71 319 



TABLE OF STATUTES Ixxv 

1927 Ord. No. 21 (Mortgage), R.S. cap. 74, Sec. 3 . .191 

Sec. 17 . . . . . .187 

Ord. No. 23 (Registration of Documents), R.S. cap. 

101 145 

Sec. 3 . . . . . .133 

Sec. 7 .". . . 145 

Sec. 16 . . . . . . 174 

Sec. 17 . . . *'':':$ .187 

Sec. 18 .191 

Ord. No. 25 (Bills of Exchange), R.S. cap. 68 . 22 

Sec. 97 . . . . -.-.. . 259 

1938 Ord. No. 51 (Companies) . . . .313 

1939 Ord. No. 6 (Companies Law Amendment) . . 313 

1941 No. 24 (Adoption of Children) . . 41 

1942 Ord. No. 19 (Companies Law Amendment) . . 313 

1943 No. 54 (Amending No. 24 of 1941) ... 41 



IX. BRITISH GUIANA 

1629 Order van Regieringe, October 13 . . - . 8,407 

1732 Octrooi for Berbice, December 6 . . . 407, 408 

1774 Resolutions of the States General, October 4 . 8,407 

1803 Articles of Capitulation of Essequibo and Demerara, 

September 18 . . . . .11 

1828 Order in Council, December 15 ','' . . . 6 

1829 Rules of Criminal Procedure . . . 6 
1831 Letters Patent constituting the Colony of British 

Guiana, March 4 . . . . I. 11 

1916 Civil Law of British Guiana Ordinance (No. 15) . 24 



X. SOUTH AFRICAN PROTECTORATES 

1884 Basutoland, Procl. of the High Commissioner, May 29 12 

1904 Swaziland, Procl. of the High Commissioner, No. 3 . 13 

1907 Swaziland, Procl. of the High Commissioner, No. 4 . 13 

1909 Bechuanaland, Procl. of the High Commissioner, No. 36 12 



XI. SOUTHERN RHODESIA 

1898 Order in Council, October 20 . \ . . 13 

1923 Order in Council, July 30 13 

1928 Married Persons' Property Act (R.S. cap. 151) 69, 72 

1929 Deceased Estates Succession Act (R.S. cap. 51) 373, 407 
1935 Abolition of Quitrent Act (No. 16) . . .161 
1938 Coinage Act No. 32, Sees. 13, 15 . . . . 256 
1943 Matrimonial Causes Act (No. 20) : 

Sec. 7 v '* . ... .89 

Sec. 9 ...... 90 

Sec. 12 . . ... .96 

Sec. 14 32 



Ixxvi TABLE OF STATUTES 

REVISED STATUTES OF SOUTHERN RHODESIA 

Cap. 27. Prescription 148, 149 

Cap. 49. Wills 368 

Cap. 187. Game 136 

Cap. 228. Usury . . 259 

XII. SOUTH-WEST AFRICA PROTECTORATE 

1919 Administration of Justice Proclamation (No. 21) . 14 

1920 Proclamation No. 31 423 



ADDENDA 

p. 234, n. 3, in fine. In Botha v. Assad [1945] T.P.D. 1 the Court 
(Schreiner J. and Brebner A. J.) held that the doctrine of laesio 
enormis does not apply to contracts of letting and hiring. 

p. 266, n. 2. Add Jackie v. Meyer [1945] A.D. 354. 

p. 326, n. 3. Add Pierce v. Hau Mon [1944] A.D. 175. 

CORRIGENDUM 
p. 381 n. 1 in fine, for 

Est. Welsford v. Est. Welsford read Eat. Welsford v. Eat. Wright. 



GENERAL INTRODUCTION 



4901 



GENERAL INTRODUCTION 

The THE phrase 'Roman-Dutch Law' was invented by Simon 
Dutch van Leeuwen, 1 who employed it as the sub-title of his 
Law: work entitled Paratitla Juris Novissimi, published at Ley- 
den in 1652. Subsequently his larger and better known 
treatise on the 'Roman-Dutch Law' was issued under that 
name in the year 1664. 

The system of law thus described is that which obtained 
in the province of Holland 2 from the middle of the fif- 
teenth to the early years of the nineteenth century. Its 
main principles were carried by the Dutch into their settle- 
ments in the East and West Indies; and when some of 
these, namely, the Cape of Good Hope, Ceylon, and part 
of Guiana, at the end of the eighteenth and the beginning 
of the nineteenth century, passed under the dominion of 
the Crown of Great Britain, the old law was retained as the 
common law of the territories which now became British 
colonies. With the expansion of the British Empire in 
South Africa, the sphere of the Roman-Dutch Law has 
extended its boundaries, until the whole of the area com- 
prised within the Union of South Africa, representing the 
four former colonies of the Cape of Good Hope, Natal, the 
Transvaal, and the Orange River, as well as the country 
formerly administered by the British South Africa Com- 
pany and now constituting a separate colony under the 
name of Southern Rhodesia, has adopted this system as its 
common law. This is the more remarkable since in Holland 
itself and in the Dutch colonies of the present day the old 
law has been replaced by codes ; so that the statutes and 
text-books, which are still consulted and followed in the 

1 See Journ. Comp. Leg., N.S., vol. xii, p. 548. 

2 The student will not fail to remember that Holland was one 
only of the seven provinces which, having declared their inde- 
pendence of Spain (1581), combined to form the Republic of the 
United Netherlands (p. 5, n. 4). The modern equivalent is the 
'Kingdom of the Netherlands', and this is what we commonly 
mean to-day when we speak of 'Holland'. 



ROMAN-DUTCH LAW 3 

above-mentioned British dominions, are seldom of practi- 
cal interest in the land of their origin. 1 

Though to indicate in general terms the nature of the 
Roman-Dutch Law is a matter of no great difficulty, pre- 
cisely to define its extent in time or space is not so easy. 
Derived from two sources, Germanic Custom and Roman its origin, 
Law, the Roman-Dutch Law may be said to have been 
anticipated so soon as the former of these incorporated ele- 
ments derived from the latter. Undoubtedly such a process 
was at work from very early times. Long before the Corpus 
Juris of Justinian had been 'received' in Germany, the 
Codex Theodosianus (A.D. 438) had left its mark upon 
the customary laws of the country now comprised within 
the limits of the kingdoms of Holland and Belgium. 2 Later, and deve- 
the Frankish Monarchy, the Church through the medium opm ' 
of its Canon Law, 3 the Universities and the Courts of law 
forged fresh links between Rome and Germany. The 
general reception of the Roman Law in Germany and Hol- 
land in the fifteenth and sixteenth centuries completed a 
process which in various ways and through various chan- 
nels had been at work for upwards of a thousand years. 4 

For many centuries after the dissolution of the Frankish 
Empire (c. 900) there was no general legislation. Under 
the rule of the Counts of Holland the law of that province 
consisted principally in general and local customs supple- 
mented to an uncertain degree by Roman Law.. The nu- 
merous privileges (handvesten) wrung from the Counts by 
the growing power of the towns only tended to complicate 
the law by a multiplication of local anomalies. 5 In such a 

1 On codification in Holland see a note by Dr. W. R. Bisschop 
in Journ. Comp. Leg., N.S., vol. iii, p. 109. 

2 Van de Spiegel, Verhandeling over den O or sprang en de Historic 
der Vaderlandsche Rechten, pp. 73-4. 

3 Ibid. p. 110. For some remarks on the part played by the 
Canon Law in the formation of the mature system of R.-D. L. see 
Kotze, Van Leeuwen [2nd ed.], vol. i, pp. 468 ff. 

4 This has been aptly described as the 'infiltration', in contrast 
with the 'reception', of the Roman Law. 

B This was particularly the case when, as usually happened, the 
towns enjoyed the privilege of making local regulations (keuren). 
Wessels, History of the Roman-Dutch Law, p. 210. 



4 GENERAL INTRODUCTION 

state of things it is not surprising that, when medieval in- 
stitutions proved inadequate to meet the needs of a fuller 
and more complex life, resort was made to the Roman 
Law as to a system logical, coherent, and complete. 1 This 
was the realization in the Netherlands of the 'momentous 
process' which scholars have described as 'the reception 
of the Roman Law' in Northern Europe. 2 Later, under 
Spanish rule, came an era of constructive legislation ; but 
by that time the reception of the Roman Law was already 
assured. 

Therecep- Prominent amongst the causes which stimulated the 
Roman 'reception' of the Roman Law in this special sense was the 
Law in the establishment of the Great Council at Mechlin 3 in the year 
lands; 1473 with jurisdiction over the provinces of the Nether- 
lands then subject to the Duke of Burgundy. This Court, 
which continued to exist until the War of Independence, 4 
did much to assimilate the law in the various provinces, 
and thus exercised a jurisdiction comparable to that of the 
Judicial Committee of the Privy Council or (in a narrower 
field) of the Appellate Division of the Supreme Court of 
South Africa at the present day. Nicolaus Everardus, 5 one 
of our earliest authorities for the Roman-Dutch Law, was 
President of this Court in 1528. 6 Perhaps we shall not be 
wrong if we select the year of the institution of this tri- 

1 Sir John Kotze in 26 S.A.L.J. (1909), pp. 407-8, and Kotze, 
Van Leeuwen, vol. i, Appendix, pp. 459-60. 

8 Vinogradoff, Roman Law in Medieval Europe (2nd ed., 1929), 
p. 12. 

8 The Great Council (De Groote Road) was instituted in the 
year 1446 by Philip the Good, Duke of Burgundy and Count of 
Holland. It was fixed at Mechlin by Charles the Bold in 1473, and 
again by Philip the Fair in 1503 (Fruin, Geschiedenis der Staatsin- 
stellingen in Nederland, p. 140). The Provincial Court of Holland 
(Hof van Holland) also exercised an important influence in the 
same direction. For a short history of these Courts see Kotze, 
op. cit., pp. 478 ff. 

4 Fruin, p. 261. Its place was taken, as regards Holland and 
Zeeland only, by the Hooge Road van Holland (en Zeeland), estab- 
lished in The Hague in 1581. Zeeland submitted to its jurisdiction 
in 1587. 

6 Kotze, 27 S.A.L.J. (1910), p. 29. 

6 He had previously been President of the Court of Holland 
from 1509. 



ROMAN-DUTCH LAW 5 

bunal as, approximately, the starting-point of the system 
which we know by the name of the Roman-Dutch Law j 1 
but it was not until a century later that the Roman Law 
established itself in the inferior Courts. 2 

The reception of the Roman Law was by no means unequal 
equally complete in all the provinces of the Dutch Nether- m t . he 
lands. 3 It was most far-reaching in Friesland, least so in provinces. 
Overijsel and Drente. 4 The other provinces lay at various 
points between these extremes. It follows that the laws of 
no two provinces were precisely the same, though, no doubt, , 

the legal systems of the principal provinces exhibited a 
general resemblance, and the law-books of one province 
are frequently cited as authority for the law of another. 
But when we speak of the Roman-Dutch Law we mean not 
a law common to the whole of the United Netherlands, 
but specifically the law peculiar to the Province of Holland. 

If we ask to what extent the Roman Law was received The ex- 
in the Netherlands in general and in the province of Holland reception* 3 
in particular, we get different answers from the partisans matter of 
of rival schools. 5 There are those who regard Grotius, Van vers y. 
Leeuwen, Voet, and the other romanists as traitors to the 

1 Bijnkershoek (Observationes Juris Romani, in praefat.) and 
Sir John Kotze attribute the definite reception of the Roman Law 
in the Province of Holland to a legislative enactment of Charles 
the Bold of the year 1462 (Instructie voor den Stadthouder ende 
Luyden van de Kamer van den Rode, Art. 42, 3 G.P.B. 635), but 
this relates to procedure only and cannot carry the burden which 
has been put upon it. Dr. P. van Heijnsbergen, Verspreide Op- 
stellen, Amsterdam, 1929, p. 295. 

2 Kotze, op. cit., p. 464. 3 Kotze, op. cit., p. 467. 

4 Drente was never admitted to representation in the States - 
General, but enjoyed full provincial autonomy. Fruin, p. 258. 
The seven Provinces represented in the States -General were 
Holland, Zeeland, Friesland, Overijsel, Groningen, Gelderland, 
and Utrecht. The reception of the Roman Law was very largely 
due to the establishment of Courts of the modern type with 
academically trained judges. This condition was wanting in 
Overijsel and Drente. 

5 See, on the whole subject, Modderman, De Receptie van net 
Romeinsche Recht (Groningen, 1874); Kotze, 26 S.A.L.J. (1909), 
pp. 398 ff. ; Holdsworth, A History of English Law, vol. iv, pp. 
217 ff . ; Vinogradoff, Roman Law in Medieval Europe (2nd ed. by 
Prof, de Zulueta, Oxford, 1929) ; A. S. de Blecourt, Kort Begrip 
van het Oiid-Vaderlandsch Burgerlijk Recht (vijfde druk), pp. 31 ff. 



6 GENERAL INTRODUCTION 

law of their country, which, it is inferred, they enslaved to 
an alien system. But they must have the credit of bringing 
some order into chaos. No one disputes the fact of the re- 
ception of the Roman Law. What is questioned is the 
degree to which the reception went. Van der Linden sup- 
plies the answer : 'In order to answer the question what is 
the law in such and such a case we must first inquire 
whether any general law of the land or any local ordinance 
(plaatselijke keur), having the force of law, or any well- 
established custom, can be found affecting it. The Roman 
Law as a model of wisdom and equity is, in default of such 
a law, accepted by us through custom in order to supply 
this want.' 1 The limits of this acceptance are defined by 
Van der Keessel in a series of theses 2 which the late Pro- 
fessor Fockema Andreae accepted as substantially correct. 3 
Legisla- During the period of Spanish rule, legislation became 
tion under active. Many useful measures were promulgated by 
rule. Charles V, such as the Placaat of May 10, 1529, 4 relating 
to the transfer and hypothecation of immovable property, 
and the Perpetual Edict of October 4, 1540. 5 In 1570 his, 
son Philip II issued a Code of Criminal Procedure, 6 which 
regulated the practice of the Dutch Colonies until super- 
seded by the humaner provisions of the English Law. 7 
The Political Ordinance of April 1, 1580, 8 must also be 
mentioned as one of the formative elements of the modern 
law. The Civil Procedure of the Courts was regulated by 
another Ordinance of the same year and day. 9 

1 Van der Linden, Handboek (Juta's translation), p. 2. See also 
Gr. 1. 2. 22; Van Leeuwen, 1. 1. 11. 

2 V.d.K. 6-23. 

8 Irileidinge tot de Hollandsche Rechts-geleerdheid, beschreven bij 
Hugo de Groot, met aanteekeningen van Mr. S. J . Fockema Andreae, 
Hoogleeraar te Leiden (derde uitgave), Arnhem, 1926, vol. ii, p. 12 ; 
Kotze, ubi sup. at p. 508. 

4 1 G.P.B. 374. 

B 1 G.P.B. 311. Wessels (p. 218) summarizes its contents. 

6 2 G.P.B. 1007 ; Wessels, p. 373. 

7 It remained part of the Law of British Guiana until 1829, 
when it was superseded by Rules of Criminal Procedure made 
under the authority of an Order in Council of December 15, 1828. 

8 1 G.P.B. 330. Wessels (p. 222) summarizes its contents. 
2 G.P.B. 695. See Wessels, p. 186. 



ROMAN-DUTCH LAW 

The history of the Roman-Dutch Law is for our present The 
purpose the history of the authorities from whom we de- 



rive our knowledge of it. To these we shall presently refer. Law " 
In the home of its origin the Roman-Dutch Law as a separ- 
ate system survived by a few years the dissolution of the 
Republic of the United Netherlands. In 1809 it was super- 
seded by the Napoleonic Codes, which in turn gave place 
in 1838 to the existing codes in force in the Kingdom of the 
Netherlands. Van der Linden, the latest writer on the old 
law, was also the earliest writer on the new. When the old 
system crumbled beneath his hands he left unfinished his 
projected Supplement to Voet's Commentary upon the 
Pandects, 1 and, applying his tireless industry in a new 
field, became to his countrymen the interpreter of the laws 
of their conqueror. 2 The existing Dutch Civil Code, how- 
ever, in many respects reverts from the rules of the French 
law to the earlier law of Holland. 

Having said thus much of the Roman-Dutch Law in 
general, we go on to speak more particularly of its history 
in the Dutch Colonies and in those parts of the world 
where this system still obtains. After that we shall speak 
of the sources from which our knowledge of the Roman- 
Dutch Law is derived. 

The two great trading companies of East and West, the The 
Dutch East India Company, incorporated in 1602, and 



the Dutch West India Company, incorporated in 1621, Law in 
carried the Roman-Dutch Law into their settlements. Colonies? 
The Cape was occupied by Van Riebeek in 1652. The 
maritime districts of Ceylon were won from the Portuguese 
in 1656. The Dutch settlements upon the 'Wild Coast' of 
South America, which came to be known as Guiana > date 
from the early years of the seventeenth century. How far How far 
the statutes of the mother country were in force in these statute 
Colonies the evidence hardly allows us to say. On prin- Law was 

in force. 

1 Johannis Voet, Commentarii ad Pandectas tomus tertius, con- 
tinens supplementum auctore Joanne van der Linden. Sectio prima, 
a libro I usque ad XII Pandectarum, Trajecti ad Rhenum, 1793. 

2 In his Beredeneerd register op het wetboek Napoleon, ingericht 
voor het Koningrijk Holland (Amsterdam, 1809) and other works. 



8 GENERAL INTRODUCTION 

ciple they would not apply unless expressly declared to 
be applicable, or at least unless locally promulgated j 1 but 
some may have been accepted by custom as part of the 
common law. 2 As regards laws of the patria passed sub- 
sequently to the date of settlement it may be thought that 
the burden of proof lies on him who alleges their applica- 
tion. The States of Holland (i.e. the Provincial Legisla- 
ture) were not competent to legislate for the Colonies. 3 
The States-General (i.e. the Federal Legislature of the 
United Netherlands) seldom did so. The two Chartered 
Companies of East and West acted through their Execu- 
tive Committees, the Council of XVII and the Council of 
X respectively, which, no doubt, influenced the course of 
legislation in the several Colonies, but formally, the legisla- 
tive authority in each case was the Governor-in-Council, 
and, in the East Indies, the Governor-General, who from 
Batavia issued rules for the government of the various 
stations, which, if locally promulgated, had binding force 
until superseded or forgotten. 4 Failing the above and any 
colonial custom having the force of law, recourse was had 
to 'the laws statutes and customs of the United Nether- 
lands' and, where these were silent, in the last resort to 
the Law of Rome. 5 It may be supposed, since the Dutch 

1 As to the necessity of promulgation see Gr. 1.2. 1, and Groene- 
wegen and Schorer, ad loc. : Van Leeuwen, 1. 3. 14; V.d.K. 1. 
8 See Appendix to this chapter (infra, p. 26). 

3 This does not exclude the acceptance of some enactments 
of the States of Holland and their incorporation in the common 
law of South Africa. Est. Heinamann v. Est. Heinamann [1919] 
A.D. at p. 114 (de Villiers A.J.A.) ; Rex v. Harrison [1922] A.D. at 
p. 330 (Innes C.J.) ; Rex v. Sacks [1943] A.D. at p. 422. 

4 The collected edition of the Statutes of Batavia of 1642 seems 
to have been promulgated at the Cape in 1715. Burge, Colonial 
and Foreign Laws (New Edition), vol. i, p. 115. Governor van der 
Parra's New Statutes of Batavia of 1766 were never recognized by 
the States-General and had not strictly the force of law. (But see 
'The New Statutes of India at the Cape', by J. L. W. Stock, 32 
S.A.L.J. (1915), p. 328.) Neither of these collections was published 
under the old regime. The law in force in the West Indies was 
defined by the Ordre van Regieringe of October 13, 1629 (2 O.P.B. 
1235; Burge, vol. i, p. 119), and later by the resolutions of the 
States -General of October 4, 1774 (Laws of Brit. Gui., ed. 1905, vol. 
i, p. 1 ; Burge, vol. i, pp. 121 ff.). 5 Burge, vol. i, p. 116. 



ROMAN-DUTCH LAW 9 

Colonies stood in no peculiar relation to the province of 
Holland more than to any other province of the United 
Netherlands, that even general customs of this province 
had no preferential claim to acceptance in the Colonies. 
In theory this is true. In practice the predominant partner 
carried the day. In South Africa, at all events, there is a 
presumption in favour of the admission of a general custom 
of Holland rather than that of any other province as part 
of the common law of the country. 1 

The Dutch settlements of the Cape of Good Hope, Cey- The 
Ion, and Guiana passed into the hands of the British at 
the end of the eighteenth and the beginning of the nine- Lawunder 
teenth century. The Cape was taken from the Dutch in R "jg! 
1795, given back in 1803, retaken in 1806, since when it () At the 
has remained part of the British Dominions. 2 It does not 
appear that any express stipulation was made upon the 
occasion of either the first or the second cession for the re- 
tention of the Roman-Dutch Law. 3 Its continuance is the 
expression of the settled principle of English law and policy 
that colonies acquired by cession or by conquest retain 
their old law, so long and so far as it remains unrepealed. 
In a system derived from the Roman Law repeal may be 
effected tacito consensu as well as alia postea lege lata ; so 

1 Per Kotze J.P., in Fitzgerald v. Green [1911], E.D.L. at p. 493. 
Dr. Bisschop (Burge, 2nd ed., vol. i, p. 91) directs attention to the 
preponderating influence in the affairs of the Company of the 
Chambers of Amsterdam and of Middelburg, and to the" fact that 
the Company was held to be domiciled within the jurisdiction of 
the Court of Holland. The same writer has observed elsewhere 
that the colonial courts in most cases got their law, so far as it 
was not comprised in local statutes and customs, from text- 
books rather than from the original sources, with the result that 
'the local law of the Netherlands as far as it was not referred 
to by writers on Roman-Dutch Law would be ignored'. Law 
Quarterly Review, vol. xxiv, p. 169. 

2 The definitive cession to Great Britain was effected by the 
Convention of London, 13 August 1814. British and Foreign State 
Papers, 1814-15, p. 37. 

3 But 'The Cape Articles of Capitulation, dated the 18th Janu- 
ary, 1806, stipulated that the rights and privileges which the 
inhabitants had theretofore enjoyed should be preserved to them. 
Among those privileges the retention of their existing system of 
law was undoubtedly included.' Rex v. Harrison, ubi sup. 



10 GENERAL INTRODUCTION 

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, or by mere disuse, the laws which 
obtained under the Dutch Government remain in force at 
the present day. 1 Custom, however, has made short work 
with the pre-British statute law. The earliest collected 
edition of the Cape statutes (1862) contains nine enact- 
ments prior to 1806, the latest edition (1895) five, and now 
there is a partial retention of two. 2 The remainder of the 
Dutch placaten (whether emanating from Batavia, or 
locally enacted) have been abrogated by disuse. We are 
speaking, of course, of statute law subsequent to 1652, the 
date of the Dutch occupation of the Cape. The home legis- 
lation prior to that date, unless inapplicable or abrogated 
by disuse, may be regarded as forming part of the common 
law of the Colony. 

(6) i n In Ceylon the continuance of the Roman-Dutch Law 

Ceylon; was guaranteed by the Proclamation of Governor the 
Honourable Francis North of September 23, 1799, which 
declared that the administration of justice and police 
should be henceforth and during His Majesty's pleasure 
exercised by all courts of judicature, civil and criminal, 
'according to the laws and institutions that subsisted 

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 '. 
This principle applies alike to the statute law and to the common 
law of Holland. See Parker v. Reed (1904) 21 S.C. 496 ; Machattie 
v. Filmer (1894) 1 O.K. 305; Natal Bank v. Kuranda [1907] T.H. 
155; Green v. Fitzgerald [1914] A.D. 88. In the last-named case 
Innes J.A. said (at p. Ill): 'I do not think, however, that the 
doctrine of the Roman-Dutch Law can be confined to cases where 
contrary usage has been established; both in principle and on 
authority mere desuetude must in certain circumstances be 
sufficient.' See also Rex v. Detody [1926] A.D. at p. 223; O'Cal- 
laghan N.O. v. Chaplin [1927] A.D. at p. 328 ; Tutt v. Tutt [1929] 
C.P.D. at p. 53. 

2 Act No. 25 of 1934. 



ROMAN-DUTCH LAW 11 

under the ancient government of the United Provinces', 
subject to such deviations and alterations as have been or 
shall be by lawful authority ordained and published. 1 The 
central portion of the island did not pass under British 
rule until 1815, but the Dutch Law was applied to this 
region also by Ord. No. 5 of 1852. 2 In Guiana the existing (c) In 
laws and usages were expressly retained in the articles of G u ia na . 
capitulation of Essequibo and Demerara dated September 
18, 1803, and Berbice surrendered on the same terms a few 
days later. A similar provision was contained in the Letters 
Patent of March 4, 1831, by which the three settlements 
were constituted a single colony under the name of British 
Guiana. 3 

It results from what has been said that the foundation General 
of the law of Cape Colony was the Dutch law as it existed re 
in that settlement in the year 1806 ; that the law of Ceylon 
is based upon the system administered in the island in 
1796; 4 and that the law of British Guiana rested upon a 
substructure of Dutch laws and usages having authority 
in the settlements of Essequibo, Demerara, and Berbice 
in the year 1803. 

It remains to speak of the geographical extension of the 
Roman-Dutch Law in South Africa. 

1 It has been doubted whether the Dutch ever applied their law 
to the native races of the low country. But since the British occu- 
pation the low-country Sinhalese have had no distinctive law of 
their own, and have always been treated as subject to the Roman- 
Dutch law. 

2 This Ordinance extends to the Kandyan provinces certain 
specified branches of the law of the Maritime Provinces, and 
further enacts that if the Kandyan Law is silent on any matter 
the law of the Maritime Provinces is to be applied. It says nothing 
as to the general law applicable to Europeans or low-country 
Sinhalese residing in the Kandyan provinces. The extension to 
them of the Roman-Dutch Law in general seems to be the work of 
judicial decisions (see Williams v. Robertson (1886) 8 S.C.C. 36). 

3 Laws of B. Q. ed. 1905, vol. i, p. 12. For the history of the 
Roman -Dutch Law in British Guiana see Report of the Common 
Law Commission (Georgetown, Demerara, 1914) and 'Roman- 
Dutch Law in British Guiana' (Journ. Comp. Leg., N.S., vol. xiv, 
p. 11), by the present writer. 

4 The capitulation of Colombo to the British is dated February 
15 of that year. 



12 



GENERAL INTRODUCTION 



Geograph- 
ical exten- 
sion of the 
Roman- 
Dutch 
Law. 



Natal. 



Zululand. 



Basuto- 
land. 



Bechuana- 
land Pro- 
tectorate. 



So long as the boundaries of Cape Colony enlarged them- 
selves by gradual and inevitable advance, so long the Dutch 
law extended its sphere by the same natural process of ex- 
pansion without express enactment. But before the middle 
of the last century the era of annexation had begun. 

Natal was annexed to the Cape by Letters Patent of 
May 31, 1844, and this was followed by Cape Ordinance 
No. 12 of 1845, establishing the Roman-Dutch Law in and 
for the district of Natal. This remained the common law of 
the Colony, which was called into existence as a separate 
entity by Royal Charter of July 15, 1856; and now the 
Natal Act No. 39 of 1896 provides (sec. 21) that: 'The 
system, code, or body of laws commonly called the Roman- 
Dutch law as accepted and administered by the legal tri- 
bunals of the Colony of the Cape of Good Hope up to 
August 27, 1845, 1 and as modified by the Ordinances, 
Laws, and Acts now in force, heretofore made or passed 
in this Colony by the Governor or Legislature thereof, is 
the law for the time being of the Colony of Natal, and of 
His Majesty's subjects and ah 1 others within the said 
Colony.' 

The law of Natal, with some reservations, obtains also 
in Zululand, which became part of Natal on December 30, 
1897. 2 

In Basutoland, by Proclamation of the High Commis- 
sioner, dated May 29, 1884, the law to be administered 
(save between natives) is, as nearly as the circumstances 
of the country permit, the same as the law for the time 
being in force in the Colony of the Cape of Good Hope ; 
but Acts of the Cape Legislature passed after the date of 
the Proclamation do not apply. 

By Proclamation of the High Commissioner, No. 36 of 
1909, the law of Cape Colony is to be administered, as far 
as practicable, in the Bechuanaland Protectorate, to the 
exclusion, however, of Cape statutes promulgated after 
June 10, 1891. 



1 This is the date from which the Cape Ordinance took effect. 
a Natal Act No. 37, 1903. 



ROMAN-DUTCH LAW 13 

By the Southern Rhodesia Order in Council of October Southern 
20, 1898, s. 49 (2), the law of Cape Colony as it stood on Rhodesia - 
June 10, 1891, applies in Southern Rhodesia, except so 
far as that law had been modified by any Order in Council, 
Proclamation, Regulation or Ordinance in force at the 
date of the commencement of the Order. 1 

In the Republics the Roman-Dutch law remained in Transvaal 
force almost unaltered up to the date of annexation. 2 



It is continued in the Orange River Colony (now once Free 
more the Free State) by Ordinance No. 3 of 1902, s. 1, and 
in the Transvaal by Proclamation No. 14 of 1902, s. 17. 
But in each of the new Colonies extensive alterations were 
made so as to bring the law into closer harmony with the 
system obtaining in the adjoining territories. 

By Proclamation of the High Commissioner of February Swazi- 
22, 1907, the Roman-Dutch common law, save in so far as land> 
the same has been or shall be modified by statute, is law 
in Swaziland. 3 

By the South Africa Act, 1909 (9 Edw. VII, c. 9), which The 
took effect on May 31, 1910, the four Colonies of the Cape gjjjJJ of 
of Good Hope, Natal, the Transvaal, and the Orange River Africa. 
Colony 4 were united in a Legislative Union under one 
Government under the name of the Union of South Africa 
(s. 4), and became original provinces of the Union under 

1 The territories within the limits of the Southern Rhodesia 
O. in C., 1898, were by the Southern Rhodesia (Annexation) O. in 
C., dated July 30, 1923, annexed to the British Crown as from 
September 12 of that year, and have since been known as the 
Colony of Southern Rhodesia. The Southern Rhodesia Constitu- 
tion Letters Patent of September 1, 1923, taking effect from 
October 1, provide for the establishment of Responsible Govern- 
ment, and define the constitution of the Colony. 

2 A resolution of the Volksraad of the South African Republic 
of September 19, 1859, gave statutory authority to the legal 
treatise of Van der Linden, which failing, the commentaries of 
Simon van Leeuwen and the Introduction of Hugo de Groot were 
to be binding. This quaint enactment was repealed by Tr. Procl. 
No. 34 of 1901. 

3 And Transvaal Statute Law as it existed on October 15, 1904, 
except so far as amended or altered. Procl. 3 of 1904; Procl. 4 of 
1907. 

4 On annexation to the British Crown (May 31, 1902), the 
Orange Free State became the Orange River Colony. 



14 



GENERAL INTRODUCTION 



The Pro- 
tectorate 
of South- 
West 
Africa. 



The 
sources 
of the 
Roman- 
Dutch 
Law. 



I. Trea- 
tises. 



the names of Cape of Good Hope, Natal, Transvaal, and 
Orange Free State respectively. Subject to the provisions 
of the Act, all laws 1 in force in the several Colonies at 
the establishment of the Union are continued in force in 
the respective provinces until repealed or amended by the 
Parliament of the Union, or by the provincial councils in 
matters in respect of which the power to make ordinances 
is reserved or delegated to them (s. 135). 

The latest extension of Roman-Dutch Law is to the 
Mandated Territory, known as the Protectorate of South- 
West Africa. By the Administration of Justice Proclama- 
tion (No. 21 of) 1919, issued by the Administrator of the 
Protectorate by virtue of powers delegated to him by the 
Governor-General of the Union, the Roman-Dutch Law as 
existing and applied in the province of the Cape of Good 
Hope at the date of the coming into effect of this Pro- 
clamation (January 1, 1920) shall from the said date be 
the Common Law of the Protectorate, and all Laws within 
the Protectorate in conflict therewith shall to the extent 
of such conflict ... be repealed. 2 

The last portion of this introductory chapter relates to 
the authentic sources of the Roman-Dutch Law, which are 
also the primary sources of our knowledge of that system. 
These are : 

1. Treatises. 4. Opinions of Jurists. 

2. Statute Law. 5. Custom. 

3. Decisions of the Courts. 

I. Treatises? The numerous works of the Dutch jurists, 

1 'By the word Laws in that section the Legislature meant 
Statutes, and never intended that the section should apply to 
Judge-made Law.' Webster v. Ellison [1911] A.D. at p. 99 per 
Solomon J. 

2 Off. Gaz. of the Protectorate of S.-W. Africa, 1919, No. 25. 
See also Union of S. A. Act No. 49 of 1919 and Union Procl. No. 1 
of 1921. Act No. 12 of 1920 gives jurisdiction to the Appellate 
Division to hear appeals from the High Court of the Protectorate. 
All relevant documents are collected in 'The Laws of South-West 
Africa, 1915-1922'. The constitutional and international status of 
the mandated territory raised difficult questions. See Rex v. Chris- 
tian [1924] A.D.' 101. 

8 For a bibliography of the principal Roman-Dutch law books 



ROMAN-DUTCH LAW 15 

written in Dutch and Latin at various dates from the six- 
teenth to the nineteenth centuries, are cited to-day as 
authoritative statements of the law with which they deal. 
A modern textbook has no such authority. The rules 
therein expressed are merely opinions which counsel in 
addressing the Court may, if he pleases, incorporate in his 
argument, but which have no independent claim to atten- 
tion, however eminent their author. The works of the 
older writers, on the contrary, have a weight comparable 
to that of the decisions of the Courts, or of the limited 
number of 'books of authority' in English Law. They are 
authentic statements of the law itself, and, as such, hold 
their ground until shown to be wrong. Of course the 
opinions of these writers are often at variance amongst 
themselves or bear an archaic stamp. In such event the 
Courts will adopt the view which is best supported by au- 
thority or most consonant with reason ; or will decline to 
follow any, if all the competing doctrines seem to be out of 
harmony with the conditions of modern life ; or, again, will 
take a rule of the old law, and explain or modify it in the 
sense demanded by convenience. 

The principal writers on the old law and their principal Writers of 
works are the following : seven- 

teenth 
SEVENTEENTH CENTURY century. 

H. DE GROOT (1583-1645). Inleiding tot de Hollandsche 
RechtsgeleertheydCsGiavenhage, 1631) ; the same with notes 
by Groenewegen (1644); the same with added and more 
extensive notes by W. Schorer (1767). 1 This is the best old 

see The Commercial Laws of the World, vol. xv South Africa 
pp. 14 ff. The South African Legal Bibliography of Mr. A. A. 
Roberts, K.C. (Pretoria, 1942) is a mine of information and a 
monument of industry. 

1 In the early editions of Grotius the paragraphs are not num- 
bered. Van Leeuwen cites Grotius by book, chapter, and the 
initial words of the paragraphs, e.g. Grot., Introd., lib. I, cap. 5, 
vers. Alle Mondigen. Voet makes the numeration of Groenewegen's 
notes do duty for paragraphs. Thus: Hugo Grotius manuduct. ad 
Jurisprud. Holl. Libr. I, cap. 5, num. 13 (= Gr. 1. 5. 9). The division 
of the chapters into paragraphs was first employed in an edition of 
the 'Inleydinge' published at Amsterdam by Jan Boom in 1727. 



16 GENERAL INTRODUCTION 

edition. The best modern edition is that with historical 
notes by Fockema Andreae and (3rd ed.) van Apeldoorn. 
There are translations by Charles Herbert (1845), Sir 
A. F. S. Maasdorp (3rd ed. 1903), and R. W. Lee (1926). 

AUNOLDUS VINNIUS ( 1 588-1 657 J. 1 In IV libros Institutio- 
num Imperialium Commentarius (1642). This well-known 
work contains copious references to the jus hodiernum. 
The best edition is that with notes by the Prussian jurist 
Heineccius. 

S. VAN GBOENEWEGEN VAN DEB, MADE (1613-52) 
edited the Inleiding of Grotius in 1644. In 1649 he pro- 
duced his well-known Tractatus de legibus abrogatis et 
inusitatis in Hollandia vicinisque regionibus, in which he 
goes through the Corpus Juris by book and title and con- 
siders how far it has been received or disused in the 
modern law. 

SIMON VAN LEEUWEN (1625-82) published his Censura 
Forensis in 1662 and his Roomsch Hollandsch Recht in 
1664. 2 The last-named work was an amplification of a 
slighter treatise called Paratitla Juris Novissimi, pub- 
lished in 1652 and again in 1656. The best edition of the 
Censura Forensis is the edition of 1741, with notes by 
Gerardus de Haas. The best edition of the Roomsch Hol- 
landsch Recht is that with notes by C. W. Decker issued in 
1780. This has been translated with additional notes by 
the late Sir John Kotze. 3 

ULBIK HUBEB (1636-94) issued the first volume of his 
Praelectiones Juris Civilis, containing his commentary on 
the Institutes of Justinian, in the year 1678. This was 
followed after a considerable interval by his commentary 

1 Wessels, History of the Roman-Dutch Law, p. 294. 

a The title-pages of this work and of its precursor, the Paratitla, 
afford an interesting indication of the uncertainty of seventeenth 
century spelling. The first edition of the Paratitla has for its sub 
title Een kort begrip van het Rooms -Hollandts-Reght. In the second 
edition this becomes Een Kort begrip van het Rooms -Hollands -Recht. 
The first edition of the later work is described as Het Rooms-Hol- 
lands-Regt. Lastly, in Decker's edition (1780) we have Roomsch 
Hollandsch Recht, and this I have followed. 

8 Second edition, 1921-3. 



ROMAN-DUTCH LAW 17 

on the Digest in two additional volumes. The best edition 
is that of J. Le Plat of Louvain issued in 1766. The same 
author published in 1686 his treatise entitled Heedens- 
daegse Rechtsgeleertheyt, soo elders als in Frieslandt gebrui- 
kelyk. The last-named work, though principally concerned 
with the law of Friesland, not of Holland, is a valuable 
contribution to the study of the Roman-Dutch Law. It 
was edited after the author's death by his son ZACHABIAS 
HUBEB, who, like his father, was a Judge of the Frisian 
High Court. 1 

JOHANNES VOET (1647-1713). Commentarius ad Pan- 
dectas. This work was published at The Hague and at . 
Leyden in 1698 and 1704 in two volumes folio. It has gone 
through very many editions. The best is the Paris edition 
of A. Maurice of 1829, which is free from some of the mis- 
prints which disfigure the folio editions. The whole of Voet 
has not been systematically translated into English, but 
translations varying in merit are procurable of many of the 
separate titles. 2 In 1793 Van der Linden published, in 
folio, a Supplement to Voet's Commentary. It extends 
only to Book xi of the Pandects. Amongst the lesser works 
of Voet may be mentioned his Compendium of the Pan- 
dects, which, though issued before the larger work, serves 
the purpose of an analysis of it. A little book in Dutch 
published in the eighteenth century under the name of De 
beginselen des rechts is a translation from the Latin of 
Voet's analysis of the Institutes (Elementa Juris), supple- 
mented with a translation of those passages in Vinnius' 
Commentary in which reference is made to the modern law. 

EIGHTEENTH CENTURY 

CORNELIS VAN BlJNKEBSHOEK (1673-1743) is beyond Writers 

controversy the most eminent Dutch jurist of the eigh- f ^ e 

teenth century. He was President of the Supreme Court teenth 

century, 

1 Translated into English by Mr. Justice Gane of the Supreme 
Court of South Africa (Butterworth & Co., 1939). 

2 There is an Italian translation printed in parallel columns 
with the Latin text (Venezia, 1846). It is understood that Mr. 
Justice Gane is making a translation into English of the whole work, 

4901 



18 GENERAL INTRODUCTION 

of Holland, Zeeland, and West Friesland from 1724 until 
his death. For our present jpurpose the most useful of his 
works is the Quaestiones Juris Privati, published in Latin 
in 1744, and in a Dutch translation in 1747. Of his notes 
on decided cases entitled Observations Tumultuariae two 
volumes have been published. 1 

Mention has been made of SCHOBEB'S edition of Grotius 
(1767) and of DECKEB'S edition of Van Leeuwen (1780). 
A Dutch translation of Schorer's notes on Grotius, which 
contains additional matter supplied to the translator by 
the author, appeared from the hand of J. E. AUSTEN in 
1784-6. This is the edition referred to in the margin of 
Professor Fockema Andreae's edition of Grotius. 

A useful work was published by Van der Linden and 
other jurists in 1776 under the name of Honderd Eechtsge- 
leerde Observatien, dienende tot opheldering van verscheide 
duistere, en tot nog toe voor het grootste gedeelte onbewezene 
passagien uyt de Inleidinge tot de Hollandsche Eechtsge- 
leerheid van wylen Mr. Hugo de Groot. 

D. G. VAN DEB KEESSEL (1738-1816), a Professor at 
Leyden, issued in the year 1800 his Theses Selectae juris 
Hollandici et Zelandici ad supplendam Hugonis Grotii In- 
troductionem ad Jurisprudentiam Hollandicam. The work 
was reprinted in 1860. There is a translation by C. A. 
Lorenz. The Dictata in which the author of the Theses 
expanded and supported them still circulate in manuscript, 
but have not been printed. There is a fine MS. copy in the 
University Library at Leyden corrected by Van der Kees- 
sel, and another with extensive additions from the author's 
hand in the University Library at Utrecht. A type-script 
of the Leyden MS. was presented to the Supreme Court 
Library at Cape Town by the late Dr. C. H. van Zyl. 

JOANNES VAN DEB LINDEN (1756-1835) is the last of the 
old text-writers. In 1781 he published his Verhandeling 
over de judicieele practijcq, which is still consulted. But 

1 See 39 S.A.L.J. (1922), p. 291. The first volume, edited by 
Professors Meijers and de Blecourt of Leyden and Bodenstein of 
Stellenbosch, was published in 1926. A second volume appeared 
in 1934. 



ROMAN-DUTCH LAW 19 

his best-known work is his introduction to Roman-Dutch 
Law, issued in 1806 under the name of Regtsgeleerd, Prac- 
ticaal, en Koopmans Handboek. The book is elementary, 
but has enjoyed favour among students, particularly in 
the translations of Sir Henry Juta and G. T. Morice. 
There is an older translation by Jabez Henry (1828). 
Another work by the same author which may be men- 
tioned (besides his supplement to Voet referred to above) 
is his Dutch translation of POTHIER on Obligations, with 
short notes from his own hand (1804-6). 

If the student wishes to supplement the above-men- 
tioned list of books with a handy law dictionary he will 
find BOEY'S Woorden-tolk sometimes useful. KERSTEMAN'S 
larger work, Hollandsch Rechtsgeleert Woorden-Boek 1768, 
and the supplementary volumes by Lucas Willem Kramp 1 
enjoy a reputation which is scarcely merited. The collec- 
tion of pleadings by WILLEM VAN ALPHEN known by the 
quaint name of Papegay (originally published in 1642) is 
deservedly famous. If Van der Linden's work on Proce- 
dure proves inadequate, reference may be made to PAUL 
MERULA'S Manier van Procederen, the last and best edition 
of which, under the names of Didericus Lulius and Joannes 
van der Linden, was issued in the years 1781-3. 

II. Statute Law. The enactments of the States-General n. Statute 
and of the States of Holland and West Friesland 2 are to Law< 

be found in the ten folio volumes of the Groot Placaat Boek. 
The statutes of Batavia are printed in VAN DEE, CHIJS, 
Nederlandsch-Indisch Plakaat Boek. The pre-British stat- 
utes of the Cape exist but have not been printed. 

III. Decisions of the Courts. Many published volumes III. Deci- 



of Decisions have come down to us and are a valuable ^ e ns 
source of law. Particular mention may be made of the Courts. 
Sententien en gewezen Zaken van den Hoogen en Provincialen 

1 As to the authorship of the Aanhangsel to Kersteman's 
Woorden-Boek see Journ. Comp. Leg., N.S., vol. xii, p. 549. It 
consists largely of translations from Voet's Commentary. 

2 This is the official description of the legislature of the Province 
of Holland. West Friesland was annexed to Holland in the 
thirteenth century. 



20 GENERAL INTRODUCTION 

Road in Holland, Zeeland en West- Vriesland, published by 
JOANNES NAERANUS at Rotterdam in 1662; of the Utrius- 
que Hollandiae, Zelandiae, Frisiaeque Curiae Decisiones of 
CORNELIUS NEOSTADIUS, printed at the Hague in 1667; 
and of the Decisiones Frisicae sive rerum in Suprema 
Frisiorum Curia judicatarum libri V of JOHANNES A SANDE, 
himself a Judge of the Court whose decisions he reports. 
The Latin original of this work is dated 1634. There is also 
a Dutch translation. These three volumes of Reports are 
often cited by Voet. Van der Keessel frequently refers to 
a volume entitled Decisien en Resolution van den Hove van 
Holland, published at The Hague in 1751 j 1 but this and 
Van der Linden's Verzameling van merkwaardige Oewijsden 
der Oerechts-hoven in Holland? published at Leyden in 
1803, are rarely obtainable. 

IV. Opin- IV. Opinions of Jurists. The numerous volumes of 
Jurists Consultatien, Advysen, &c., are a very interesting and 
characteristic feature of the Roman-Dutch system of juris- 
prudence. It is enough here to refer more particularly to 
the well-known collection entitled Consultatien, Advysen 
en Advertissementen g eg even ende geschreven by verscheijden 
treffelijke Rechtsgeleerden in Hollant end elders (commonly 
known as the Hollandsche Consultatien), first published by 
Naeranus at Rotterdam from 1645 to 1666, 3 containing 

1 The author of this collection has been identified by Professor 
Meijers as Anthony Duyck, who was successively Registrar of the 
Court of Holland (1602-16) and Member of the Hooge Raad 
(1620-1). (Tijdschri/t voor Rechtsgeschiedenis, vol. i, p. 400.) Many 
of the decisions had previously been published in Holl. Cons., 
vol. iii, part 2 (Amsterdamsche Derde Deel) and Holl. Cons., vol. vi. 
- 2 The Introduction to this volume contains some valuable 
observations by the compiler on the authority of decided cases. 
In the same connexion reference may be made to Sir John Kotz6's 
article on 'Judicial Precedent' in 34tS.A.L.J. (1917) r p. 280, and to 
Kotze, Van Leeuwen, vol. i, p. 484. See also Moti & Co. v. Cassim's 
Trustee [1924] A.D. at p. 741. 

* Wessels, p. 243. There are two separate third volumes of the 
Hollandsche Consultatien, known respectively as the Rotterdamsche 
derde deel and the Amsterdamsche derde deel (the work of an inter- 
loping publisher), commonly distinguished as iii (1) and iii (2) 
(but Voet inverts the order). The additional Consultatien contained 
in the Amsterdam volume were included by Naeranus in vol. vi. 



ROMAN-DUTCH LAW 21 

the opinions of Grotius and other eminent lawyers. The 
opinions of Grotius, in particular, have been translated 
and edited by D. P. de Bruyn (1894). Other collections 
designed to supplement the above-named work were issued 
at various dates during the eighteenth century. 

V. Custom. This is in every country a source of law. 1 V. Custom. 
It is mentioned here more particularly because, as observed 
above, it is through custom that the Roman Law found 
its way into Holland, 2 and it is as custom that it continues 
to exist in the modern law. Without attempting a biblio- 
graphy of the jus civile we may perhaps be allowed to 
recommend the student to supply himself with the Momm- 
sen-Kriiger-Schoell edition of the Corpus Juris. For a law 
lexicon he will consult the older works of Calvin 3 or Vicat 4 
or Heumann's Handlexicon, 5 or the exhaustive Vocabu- 
larium Jurisprudentiae Romanae in course of publication 
under the auspices of the Savigny Foundation. 

Such, then, are the sources of the Roman-Dutch Law, or Sources 
such were its sources while it still flowed in an undivided modern 
stream. They remain the sources of the modern law, la ^. 
supplemented by enactments of the local legislatures, de- 
cisions of the Courts of law, and local authoritative custom. 
The treatises and opinions of modern lawyers do not make 
law, though they help the inquirer to find out what the 
law is. 

Amongst works on the modern law of South Africa the 
following may be particularly mentioned: The Common 

and in later editions are incorporated in vol. iii. (A. A. Roberts, 
Legal Bibliography, p. 157.) 

1 Gr. 1. 2. 21; Voet, 1. 3. 27 ff . ; Van Breda v. Jacobs [1921] 
A.D. 330. For the cognate topic of 'trade usage ' or 'trade custom ' 
see Coutts v. Jacob [1927] E.D.L. 120; Crook v. Pedersen Ltd. 
[1927] W.L.D. 62; Barnabas Plein & Co. v. Sol Jacobson & Son 
[1928] A.D. 25. 

3 Gr. 1. 2. 22 (door gewoonte als wetten aengenomen). 

8 Calvinus J., Lexicon juridicum juris Caesarei simul et Canonici, 
Geneva, 1670. 

4 B. Philip Vicat, Vocabularium Juris utriusque, Lausanne, 
1759. 

6 Heumanns Handlexicon zu den Quellen des romischen Rechts 
(9th ed., edited by Dr. E. Seckel), Jena, 1907, reprinted 1926. 



22 GENERAL INTRODUCTION 

Law of South Africa, by Dr. MANFRED NATHAN ; The Insti- 
tutes of South African Law, by Sir A. F. S. MAASDORP ; 
English and Roman-Dutch Law, by GEORGE T. MORICE ; 
The Law of Contract in South Africa, by Chief Justice Sir 
JOHN WESSELS, edited by Mr. Advocate A. A. ROBERTS ; 
Principles of South African Law, by Professor GEORGE 
WILLE. In recent years there has been an increasing 
number of monographs on various branches of the law, 
many of which are cited in this book. 

For the Law of Ceylon the student may refer to The 
Laws of Ceylon, by Mr. Justice PEREIRA (2nd ed., Colombo, 
1913); The Laws of Ceylon by K. BALASINGHAM (1929- 
37) in course of publication ; and to the earlier work entitled 
Institutes of the Laws of Ceylon, by HENRY BYERLEY 
THOMSON, a Puisne Judge of the Supreme Court of Ceylon, 
published in 1866. Sir CHARLES MARSHALL'S Judgments, 
the., of the Supreme Court of the Island of Ceylon, published 
at Paris in 1839, furnishes a conspectus of the law of the 
Colony as it existed in the first half of the last century. 

Reception The reader who may use this book or one of the older 
Sf 11 ??, text-books mentioned above as an introduction to his 

English 

Law in the study of the modern law in South Africa or Ceylon must 

168 ' bear in mind that just as the Roman-Dutch law of Holland 

was drawn from different sources, so the law of these 

countries, Roman-Dutch in origin, has been affected in 

almost every department by the influence of English Law. 

there- This has been the result partly of express enactment, 

Mex^ress P^ly f judicial decisions, partly of tacit acceptance. 

enact- As examples of statutory introduction of the law of 

Jn ' England, mention may be made of the Ceylon Ordinance 
No. 5 of 1852, which enacts that the law of England is to 
be observed in maritime matters and in respect of all con- 
tracts and questions relating to bills of exchange, promis- 
sory notes, and cheques j 1 and of the Ceylon Ordinance No. 

1 But see now Ord. No. 25 of 1927, 'An Ordinance to declare 
the Law relating to Bills of Exchange, Cheques, and Promissory 
Notes ', which repeals Ord. No. 5 of 1 852 pro tanto. 



ROMAN-DUTCH LAW 23 

22 of 1 866, which makes similar provisions with respect to 
the law of partnerships, joint-stock companies, corpora- 
tions, banks and banking, principals and agents, carriers 
by land, life and fire insurance. 

At the Cape the General Law Amendment Act No. 8 of 
1879 introduced the English law: (s. 1) in all questions re- 
lating to maritime and shipping law; and (s. 2) in all 
questions of fire, life, and marine assurance, stoppage in 
transitu, and bills of lading. 1 But (s. 3) English statutes 
passed subsequently to the date of the Act do not apply. 

It would occupy too much space to speak of the numer- or imita- 
ous statutes which follow more or less closely the language English 
of English Acts of Parliament, and through this channel statute 
admit rules and principles of the law of England. As 
examples may be cited the Ceylon Sale of Goods Ordinance 
No. 1 1 of 1896, the Ceylon Married Women's Property Ordi- 
nance No. 18 of 1923, and the South African legislation on 
Bills of Exchange and Companies. The numerous changes 
produced by the statutory abolition of institutions of the 
Roman-Dutch common law will be illustrated in the 
course of this book. 

Judicial decisions, whether of the local Courts or of the (6) judicial 
Judicial Committee of the Privy Council, have done much ( 310ns; 
to affect the development of the Roman-Dutch common 
law. This is another channel through which the English 
law has made its influence felt an influence not directed 
by any deliberate purpose, but none the less profound and 
far-reaching in its effects. 

Lastly, much of the English law has found its way in (c) tacit 
by a process of silent and often unnoticed acceptance. 
It would be easy to accumulate instances in every branch 
of the law. 2 But the student may better be left to draw 

1 This section was made applicable to the O. F. S. by Ord. No. 5 
of 1902. 

3 Reference may be made to Sir John Wessels, History of the 
Roman-Dutch Law, Part I, chap, xxxv; to Professor H. D. J. 
Bodenstein, 'English Influences on the Common Law of South 
Africa,' 32 S.A.L.J. (1915), p. 337; and to C. Graham Botha, 
'Early Influence of the English Law upon the Roman -Dutch Law 
in South Africa', 40 S.A.L.J. (1923), p. 396. 



24 GENERAL INTRODUCTION 

his own conclusions from the pages of the law reports and, 
in course of time, from the practice of his profession. 
The In conclusion, a few words will be permitted with regard 

Dutch* 1 " * * ne P as * history, present condition, and future prospects 



of the Roman-Dutch system within the British Empire. 
British I n South Africa, in Ceylon, and in British Guiana its for- 
Empire. tunes have been widely different. Isolated from one 
another and wholly disconnected from their common 
source in the Netherlands, the legal systems of South 
Africa, Ceylon, and British Guiana have pursued each its 
separate course with very different results. In South 
Africa the old law has maintained an unbroken tradition. 
If it has been profoundly modified by the influence of 
English Law, it retains an individual character. Not so in 
British Guiana. There the Roman-Dutch Law, after lan- 
guishing for rather more than a century under the British 
Crown, has, at last, for most purposes, been replaced by 
the Common Law of England. This is the effect of the 
Civil Law of British Guiana Ordinance, 1916. 1 Ceylon has 
occupied an intermediate position. Here there are law 
reports almost continuous since 1821, and the law has been 
expounded by writers of ability. But the Dutch language 
is no longer spoken in the island, and the Dutch element 
in the law has passed into oblivion. Voet is the authority 
most frequently cited. English Law has exercised a pre- 
ponderating influence even in departments where in South 
Africa the old law has maintained its ground. 2 Though 
Ceylon shows no disposition to follow the example of 
British Guiana, it will not be denied that the future of 
Roman-Dutch Law lies principally in South Africa. 
The fu- What will that future be ? At present we get our know- 
f * ne law from statutes, from the decisions of the 



Dutch l Edited with notes by Mr. Justice Dalton, of the Supreme Court 

system o f British Guiana (Georgetown, 1921). See also 'The Passing of 
of Law. Roman-Dutch Law in British Guiana' by the same writer, 

36 S.A.L.J. (1919), p. 4; and 'Roman-Dutch Law in British 

Guiana' by J. E. Ledlie, Journ. Comp. Leg., N.S., vol. xvii, p. 210. 
a Reference may be made to 'The Roman -Dutch Law in Ceylon 

under the British Regime ' by the late Sir A. Wood Renton, in 

49 S.A.L.J. (1932), p. 161. 



ROMAN-DUTCH LAW 25 

Courts, and from an extensive literature in Dutch and 
Latin dating from the sixteenth to the early nineteenth 
century. As the reader will find, use has been made of this 
last-mentioned source in the following pages. But few 
people have the leisure or inclination to become familiar 
with these old books. For the practitioner, who makes an 
occasional raid upon them for an immediate purpose, they 
present every disadvantage. It has been said of the 
Roman-Dutch Law of to-day that its text-books are anti- 
quated and its weapons rusty. The reproach is well 
founded, and those who recognize the substantial merits 
of the system would wish to see it removed. 

Happily time provides a remedy. The Parliament of the 
Union of South Africa and the Appellate Division of the 
Supreme Court, which hears appeals also from Southern 
Rhodesia 1 and from the Mandated Territory of South-West 
Africa, are year by year producing a body of statutory and 
judge -made law, in which the principles of the Roman- 
Dutch Law are consolidated and developed. It may be 
anticipated that under such auspices the Roman-Dutch 
Law will assume a completeness and a symmetry which it 
has not attained in previous ages. Meanwhile, unless codi- 
fication is resorted to as a preferable alternative, it is to be 
expected that the law of South Africa will follow the same 
course as the law of Scotland and that recourse to the old 
authorities will become increasingly infrequent as the 
ground is more and more occupied by statute law and 
decided cases. 2 

1 (Union) Act No. 18 of 1931. 

2 Sir John Wessels, 'The Future of Roman -Dutch Law in South 
Africa', 37 S.A.L.J. (1920) at p. 284; R. W. Lee, 'Roman-Dutch 
Law in South Africa', 40 L.Q.R. (1924), p. 61. 



APPENDIX 

HOW FAR THE STATUTE LAW OF HOLLAND OBTAINS 
IN SOUTH AFRICA AND CEYLON 

IN In re Insolvent* Estate of London, Discount Bank v. Dawes 
(1829), 1 Menz. at p. 388, the Court observed: 'When this 
Colony was settled by the Dutch, the general principles and 
rules of the law of Holland were introduced here, but by such 
introduction of the law of Holland it did not follow that special 
and local regulations should also be introduced; accordingly 
the provisions of the Placaat of 5th February, 1665, as to the 
payment of the 40th penny [3 G.P.B. 1005], have never been 
part of the law of this Colony, because this tax has never been 
imposed on the inhabitants of this Colony by any law pro- 
mulgated by the legislative authorities within this Colony. In 
like manner until a law had been passed here creating a public 
register, the provisions of the Placaat of 1st February, 1580 
( ? 1st April 1 G.P.B. 330), were not in force or observance 
here.' 

In Herbert v. Anderson (1839), 2 Menz. 166, the following 
Placaats were said to be merely fiscal and revenue laws of 
Holland, which had never become or been made law in Cape 
Colony, viz. Placaats, &c., of June 11, 1452 (3 G.P.B. 586), 
January 22, 1515 (1 G.P.B. 363), April 1, 1580, Art. 31 
(1 G.P.B. 337), March 29, 1677 (3 G.P.B. 672), April 3, 1677 
(3 G.P.B. 1037). This decision was quoted with approval by 
Kotze C.J. in Eckhardt v. Nolte (1885) 2 S.A.R. 48, who added 
(at p. 52): 'From this it follows that the Placaats of [Septem- 
ber 26] 1658 (2 G.P.B. 2515) and [February 24] 1696 (4 G.P.B. 
465) and others in pari materia, merely renewing the earlier 
Placaats, are likewise of no application at the present day.' 
On the other hand, in De Vries v. Alexander (1880) Foord at 
p. 47, de Villiers C. J., referring to Herbert v. Anderson, said: 
'The Court could only have intended to confine their decision 
to those portions of the Edicts [of 1515 and 1580] which are of 
a fiscal or of a purely local nature. So far as they had been 
incorporated in the general law of Holland, and were not 
inapplicable here, they were equally incorporated in the law 
of this Colony.' Applying this principle, the learned Chief 



APPENDIX 27 

Justice held that the 9th Art. of the Placaat of September 26, 
1658 formed part of the law of Cape Colony. In this connexion 
it should be borne in mind that 'a section or portion of aplacaat 
may, as has often been decided by the Courts, continue to be of 
force, while another portion may have ceased to have any 
validity or have become obsolete ' (Kotze, Van Leeuwen, vol. i, 
p. 497). 

Since Union, the Appellate Division has on more than one 
occasion pronounced against the continued validity of parts of 
the old statute law ; notably in Est. Heinamann v. Heinamann 
[1919] A.D. 99, in which the Court, by a majority, declared the 
provisions of sec. 83 of the Echt-Reglement of the States- General 
of March 18, 1656 (2 G.P.B. 2444), and of the Placaat van de 
Staten van Hollandt ende West Vrieslandt of July 18, 1674 
(3 G.P.B. 507), prohibiting intermarriage between persons 
who have committed adultery together, to be no longer in 
force, though, it seems, both of these enactments 'may fairly 
be said to have been incorporated into the common law of 
South Africa', per de ViUiers A.J.A. at p. 114. In Spencer v. 
Gostelow [1920] A.D. 617 a like conclusion was come to with 
regard to the Plakaten of May 1, 1608 (2 G.P.B. 2256), and 
November 29, 1679 (3 G.P.B. 527), relating to domestic ser- 
vants ; and in Rex v. Harrison [1922] A.D. 320 it was held that 
the Placaat of the States of Holland of March 7, 1754 (teegen 
het drukken en divulgeeren van Pasquillen, &c., 8 G.P.B. 570), 
was not and never had been law at the Cape. Reference may 
also be made to Muller v. Chadwick and Co. [1906] T.S. at p. 40 
(Placaat of December 9, 1661, Art. 51, 2 G.P.B. 2775, held 
inapplicable), and to Exparte Kerkhof [1924] T.P.D. 711 as to 
the question whether sec. 90 of the Echt-Reglement forms part 
of the law of South Africa. 

In Rex v. Sacks [1943] A.D. at p. 422 Tindall J.A. said: 'The 
question whether the Placaat of 1715 (Placaat teegens neemen 
van giften en gaven, den 10 December, 1715, 5 G.P.B. 686) 
forms part of the Roman-Dutch law in South Africa was not 
raised before us ; counsel on both sides assumed that it does . . . 
the Placaat of 1715 was passed by the States-General and it is 
obviously one of general and not merely local application. It 
will be noted that it makes special mention of the Dutch East 
India Company. However [in any event] . . . the Placaat of 
1 July 1651 of the States-General (1 G.P.B. 402) . . . having 



28 APPENDIX 

been promulgated before 1652 was part of the law of the Cape 
of Good Hope.' 

For Ceylon Law see Karonchihamy v. Angohamy (1904) 
8 N.L.R. 1, in which Middleton J. and Sampayo A.J. (Mon- 
creiff A.C.J. dissenting) held that the Placaat of July 18, 1674, 
was not in force in Ceylon, and that it for those who assert 
and rely upon the operation of a law enacted since the date 
of the Dutch occupation of the island in 1656 to show beyond 
all question that it operates and applies. See also Robot v. 
de Silva [1909] A.C. 376, and authorities cited; Silva v. 
Balasuriya (1911) 14 N.L.R. 452; Samed v. Segutamby (1924) 
25 N.L.R. 481 ; Pereira, Laws of Cfylon, p. 12. 



BOOK I 
THE LAW OF PERSONS 



BOOK I 
INTRODUCTION 

The Law THE law relating to persons occupies the first book of the 
Persons- Institutes of Gaius and Justinian. The scope and meaning 
what it of the phrase have been much discussed, with little result 
save to show that the distribution of topics made in these 
treatises between the law of persons and the law of things 
is not logically defensible, or, at least, is not readily under- 
stood. In this volume we include under the law of persons 
the allied topics of: (1) the law of status ; (2) the law of the 
consequences of status ; and (3) family law. The method 
adopted will be to trace the legal life-history of human 
beings from conception to the grave and to see how their 
rights and duties are affected by certain conditions or 
accidents of human life, such as birth, minority, marriage, 
mental disease. To this will be added some remarks on 
artificial or juristic persons. The subject will be treated 
in chapters dealing with : 

1. Birth, Sex, Legitimacy. 

2. Parentage. 

3. Minority. 

4. Marriage. 

5. Guardianship. 

6. Unsoundness of mind Prodigality. 

7. Juristic persons. 



BIRTH, SEX, LEGITIMACY 

SECTION 1. BIRTH 

LEGAL personality, and with it capacity to have rights and Birth, 
to be subject to duties, begins with the completion of 
birth, subject however to the qualification that a child in 
the womb is deemed already born when such a fiction is for 
its advantage. 1 Thus an unborn child may take under a 
will, 2 inherits ab intestato, and may have a right of action 
in respect of his father's death. 3 

SECTION 2. SEX 

Sex, as such, is not a factor of importance in the sphere Sex. 
of private law. There is a difference, however, in the age of 
puberty, which for males is fixed at fourteen years, for 
females at twelve. Further, there is a special rule of law by 
which a woman cannot bind herself as surety unless she 
expressly renounces the benefits which the law allows her. 4 

SECTION 3. LEGITIMACY 

A child is presumed to be legitimate, if conceived during Legiti- 
marriage, or born during marriage (no matter how soon ma y- 
after its celebration), or if the mother was pregnant of the 
child at any time during marriage. 5 This presumption is 
expressed in the maxim Pater is est quern nuptiae demon- Pater is 
strant. 6 The presumption of legitimacy is not irrebuttable, 7 ^ ^ 

1 Dig. 1. 5. 7; Gr. 1. 3. 4; Voet, 1. 5. 5; Elliot v. Lord Joicey demon- 
[1935] A.C. 209 ; 53 L.Q.R. (1937), p. 19 (note by McGregor J.). strant. 

2 Gr. 2. 16. 2 ; Voet, 28. 5. 12 ; Roll. Cons. i. 98. Or by gift, as in 
French law (C.C. Art. 906) ? 

8 Chisholm v. East Rand Mines [1909] T. H. 297. 

4 Infra, p. 315. 

8 Gr. 1. 12. 3 ; VanLeeuwen, 1.7. 2 ; Voet, 1. 6. 5 and 7 ; V.d.K. 169. 

8 Dig. 2. 4. 5; Voet, 1. 6. 6; Richter v. Wagenaar (1829), 
1 Menz. 262 ; Surmon v. Surmon [1926] A.D. 47 ; Stigling v. Melck 
[1935] C.P.D. 228; (Ceylon) Amina Umma v. Nuhu Lebbe (1926) 
30 N.L.R. 220. 

7 The presumption in favour of legitimacy may be rebutted by 
'clear and unimpeachable evidence'. Fitzgerald v. Green [1911] 
E.D.L. at p. 462 ; Louw v. Louw [1933] C.P.D. 407. 



32 THE LAW OF PERSONS 

but if, in the circumstances, conception could have taken 
place during marriage, it will, both in fact and in law, be 
more difficult to displace the presumption than when the 
facts point to conception before marriage. In the first 
case neither husband nor wife will be heard to say that the 
husband was not the father, ' unless (to quote Grotius) 
there is evidence of incapacity to generate or of an absence 
inconsistent with the period of gestation.' 1 In the second 
case the husband's evidence is admissible to prove non- 
access before marriage. 2 Whether conception took place 
during marriage or not is decided with a view to all the 
circumstances of the case, and in particular to the possible, 
or probable, period of gestation. The old books, follow- 
ing the Roman Law, say that a child will be supposed to 
have been conceived during marriage if born between the 
beginning of the seventh month after its celebration and 
the beginning of the eleventh month after its dissolution 
by death or divorce. 3 Reckoned in days this means born 
not less than 180 days after the celebration of the marriage 
and not more than 300 days after its dissolution, the 
month being arbitrarily taken to be equivalent to thirty 
days. 4 But the tendency of modern cases, at least as 

1 Gr. 1. 12. 3; Surmon v. Surmon [1926] A.D. at p. 53. This is 
what is meant when it is said that neither spouse may bastardize 
the issue. But, now, the General Law Amendment Act, 1935, 
sec. 101, subsec. 3, provides that 'for the purpose of rebutting the 
presumption that a child to which a married woman has given 
birth is the offspring of her husband' either spouse may give 
evidence of non-access in any proceedings civil or criminal. This 
abrogates Surmon v. Surmon, in which the Court reluctantly 
followed Russell v. Russell [1924] A.C. 687 owing to a statutory 
provision incorporating by reference English rules of evidence. 
The Southern Rhodesia statute (Matrimonial Causes Act, No. 20 
of 1943, sec. 14), says 'in any proceedings for divorce'. 

a Voet, 1. 6. 5. The rule is the same in English law: The Poulett 
Peerage Case [1903] A.C. 395 ; Russell v. Russell [1924] A.C. at p. 723. 

8 Dig. 1. 5. 12 ; 38. 16. 3, 12 ; Gr. 1. 12. 3 ; Voet, 1. 6. 4 ; de Haas, 
Nieuwe HolL Cons., Nos. 35, 36; Girard, p. 185. 

* Savigny, System, iv. 340; Windscheid, i. 103 (c); V.d.K. 170 
(Lee, Commentary, p. 56). These periods are adopted by the 
French Code (Arts. 312, 315) and the Dutch Code (Arts. 305 ff.). 
The German Code, Art. 1592, defines the period of conception 
as extending from the 181st to the 302nd day (in each case in- 
clusive) before the day of birth. 



BIRTH, SEX, LEGITIMACY 33 

regards the maximum period, is to rely mainly upon medi- 
cal evidence. 1 It must be noted that though birth during 
marriage raises a presumption of legitimacy, if the hus- 
band can prove sexual relations before marriage unknown 
to him followed by pregnancy existing at the time of 
marriage and not condoned by cohabitation or otherwise, 
he is entitled to have the marriage declared null and void. 2 
To prevent difficult questions as to paternity, the Dutch 
Law, following the Roman Law, 3 prohibited re-marriage 
within a certain time after a first husband's death. 4 This 
was called the widow's 'annus luctus' ; in Holland the 
period of mourning (treur-tijd) varied in different places, Annus 
with a preference for a term of six months. 5 In the Roman luctus - 
Law re-marriage within the year of mourning entailed 
penal consequences. This was not the case in the Dutch 
Law, and in the modern law the institution itself has 
passed out of use. 6 If a widow remarries within the period 
of mourning and issue is born which may be attributed to 

1 Williams v. Williams [1925] T.P.D. at p. 542. The books 
contain cases in which unusually prolonged gestation was estab- 
lished by evidence. Thus, in a case reported by Sande (Decis. Fris. 
4. 8. 10), the husband died on August 10, 1631, and the child was 
born on July 9, 1632, i.e. on the 334th day. In the English case of 
Qaskill v. Gaskill [1921] P. 425 the period of gestation was 331 
days. For Ceylon, see the Evidence Ordinance, No. 14 of 1895, 
sec. 112. Is evidence admissible to show that a child born within 
the minimum period was conceived in wedlock ? Windscheid, 
i. 56 (b), note 3. The German Code, Art. 1592, admits contrary 
proof as to the maximum, not as to the minimum, period. 

2 Voet, 24. 2. 15; Horak v. Horak (1860) 3 Searle 389; Fietze v. 
Fietze [1913] E.D.L. 170; Reyneke v. Eeyneke [1927] O.P.D. 130; 
Smith v. Smith [1936] C.P.D. 125. It was not so in English Law. 
Moss v. Moss [1897] P. 263. But the law has been brought into 
line with the R.D.L. by the Matrimonial Causes Act, 1937, 
sec. 7 (d). Stuprum unaccompanied by pregnancy at the time of 
marriage is insufficient, Gabergas v. Oabergas [1921] E.D.L. 279; 
even if there is illegitimate issue living at the time of the marriage, 
Stander v. Stander [1929] A.D. 349. 

3 Cod. 5. 9. 2. 4 Gr. 1. 5.' 3. 

5 Fock. Andr. Bijdragen, vol. i, p. 167 ; V.d.K. 67. 

6 A shadow of it remains in O.F.S. Law No. 26 of 1899, sec. 13, 
which enacts that it shall not be lawful to solemnize the marriage 
of a widower within three months of his wife's death, or of a 
widow within 180 days of her husband's death. These periods are 
taken from the Echt-Beglement of 1656, Art. 52 (2 G.P.B. 2440). 

4901 T, 



34 



THE LAW OF PERSONS 



Eene 

moeder 

maakt 

geen 

bastsard 



Legiti- 
mation. 



either father, it is presumed to be the child of the second 
husband. 1 

A bastard has no lawful father and therefore no rights 
of succession ex parte paterna. But with the mother it is 
different ; for 'eene moeder (aliter eene wijf ) maakt geen 
bastaard', and therefore her illegitimate issue succeeds to 
her and to her blood relations. 2 Such was the opinion of 
Grotius, though as regards these last Van der Linden 
inclines to a contrary view. 3 

Illegitimate issue may be legitimated : (1) by subsequent 
marriage ; (2) by an act of grace on the part of the Sove- 
reign. 4 The first of these modes alone obtains at the pre- 
sent day. 

In the Roman Law legitimation by subsequent marriage 
was limited to the issue of concubinage. The Canon Law 
allowed it in the case of all illegitimate children other than 
the issue of adultery and incest, and this was followed by 
the Roman-Dutch Law. 5 

1 Voet, 1. 6. 9; who gives amongst other reasons because 'ipse 
incertitudinis auctor et causa est'. German Law (B.G.B. Art. 
1600) assigns the child to the first husband, if born within 270 
days of the dissolution of the first marriage. 

2 Gr. 2. 27. 28 ; Van Leeuwen, 1. 7. 4; Anton. Matthaeus, Paroe- 
miae, No. 1. It is questionable whether the Roman Law made any 
distinction between simple bastards and adulterine or incestuous 
bastards (Anton. Matth., ubi sup., sec. 9) ; nor was any such dis- 
tinction made by the law of South Holland (V.d.K. 345), and 
since the decision of the Appellate Division in Green v. Fitzgerald 
[1914] A.D. 88 this may be taken to be the law of South Africa. 
See Lord de Villiers C.J. at pp. 100-1. 

8 V.d.L. 1. 10. 3. The question was much debated. See against 
Grotius, Bijnkershoek, Quaest. Jur. Priv. lib. iii, cap. xi and 
O.T. ii. 2017; for Grotius, Van der Vorm (Versterfrecht, ed. 
Blondeel, pp. 212 ff.), and V.d.K. 342-5. The Cape Court has 
adopted the more liberal view. Mogamat Jassiem v. The Master 
(1891) 8 S.C. 259 ; In re Russo (1896) 13 S.C. 185. As to succession 
to bastards see Van der Vorm, ubi sup., p. 237. 

4 Gr. 1. 12. 9; Van Leeuwen, 1. 7. 5; Voet, 25. 7. 6 and 13; 
V.d.K. 171-2. 

6 Gr. 1. 12. 5; Van Leeuwen, 1. 7. 7; Voet, 25. 7. 8; V.d.L. 
1. 4. 2. Writers on the modern Civil Law are not agreed in refusing 
legitimation to the issue of an adulterous union (Windscheid, iii. 
522 ; Vangerow, i. 255) ; and if such an exception exists, the 
question further arises whether the law requires that marriage 
between the parents must have been possible at the time of 



BIRTH, SEX, LEGITIMACY 35 

conception or at the time of birth. The Ontwerp van het Burgerlijk 
Wetboek voor het Koningrijk der Nederlanden of 1820 (Art. 543), 
and the Dutch Civil Code (Art. 327), adopt the former of these 
alternatives. Kotze J., in Fitzgerald v. Green [1911] E.D.L. at 
p. 472, and Van Zyl J., in Hoffman v. Est. Mechau [1922] C.P.D. at 
p. 185, adopt the latter, and the English Legitimacy Act, 1926, 
contains the proviso (sec. 1, subsec. 2)': 'Nothing in this Act shall 
operate to legitimate a person whose father or mother was married 
to a third person when the illegitimate person was born.' But the 
(Union of South Africa) Births, Marriages and Deaths Registra- 
tion Amendment Act, 1924, sec. 4, allows a child to be registered 
as the legitimate child of parents who subsequently marry 
'whether [the parents] could or could not have legally married 
each other at the time of his birth'. In Ceylon illegitimate 
children procreated between the same parties are legitimated by 
subsequent marriage unless procreated in adultery (Ord. 19 of 
1907, sec. 22). Incest is not mentioned, no doubt because marriage 
is out of the question. 



II 

PARENTAGE 

BIRTH implies parentage and the reciprocal duties of 
parent and child. These may be considered under two 
heads : (A) The parental power and its consequences ; 
(B) The reciprocal duty of support. 

A. The parental power and its consequences 

The Parental power, or, as it is called, natural guardianship, 

parental ^ &s }jttle in common with the patria potestas of Roman 

power and. 

its conse- Law. Van der Linden writes : 

' The power of parents over their children differs very much 
among us from the extensive paternal power among the 
Romans. It belongs not only to the father, but also to the 
mother, and after the death of the father to the mother alone. 
It consists in a general supervision of the maintenance and 
education of their children and in the administration of their 
property. It gives the parents the right of demanding from 
their children due reverence and obedience to their orders, and 
also in case of improper behaviour to inflict such moderate 
chastisement as may tend to improvement. Parents may not 
be sued by their children without leave of the Court, termed 
venia agendi. 1 No marriage can be contracted by children 
without the consent of their parents. The parents are entitled 
on their decease to provide for the guardianship of their 
children.' 2 

Whatever is here said of children must be understood 
to refer to minor children, for in the Roman-Dutch Law 
parental power ceases when the child attains full age. 3 

The incidents of the parental power described by Van 
der Linden may be developed as follows : 

1. Cus- 1. Custody and Control. The custody, control, and 
tody and education of children belong to the father, and after his 

1 In the Cape Province venia agendi is abrogated by disuse. 
Mare v. Mare [1910] C.P.D. 437. 

8 V.d.L. 1. 4. 1 (Juta's translation). 

* V.d.L. 1. 4. 3. Full age is now fixed by law at the twenty-first 
birthday. Infra, p. 44. 



PARENTAGE 37 

death to the person named in his will. 1 Failing such, the 
mother takes the place of the father unless the Court sees 
fit to direct otherwise. 2 Re-marriage is not in itself a 
ground of exclusion. 3 

2. Administration. During the lifetime of both parents, 2. Admini- 
and in the modern law until the father's death, 4 the stratlon ; 
management of a minor child's property belongs to the 
father as natural guardian, except so far as the person 
from whom such property is derived may have excluded 
the father from the administration and appointed a cura- 
tor nominate in his stead, 5 or the Court for special reasons 
may have taken the administration out of his hands ; 6 and 
as a general rule payment to the father as natural guardian 
of moneys due to the child is a good payment. 7 In the 
event, however, of property coming to the child by inheri- 
tance the parents must give notice to the proper authority, 
who will inquire whether the administration of such pro- 
perty requires a special guardian or not. 8 The father may 

1 Voet, 27. 2. 1; Van Rooyen v. Werner [1892] 9 S.C. 425 
(where de Villiers C.J. reviews the whole subject of paternal and 
maternal rights ; but the law has been modified by the Admini- 
stration of Estates Act, 1913); Woods v. Woods [1922] N.P.D. 
367 (conflicting claims of parents); Calitz v. Calitz [1939] A.D. 56 
(paramount right of father to custody). 

8 In re Dolphin (1894) 15 N.L.R. 343. * Voet, ubi sup. 

4 In the old law the father's natural guardianship only partially 
survived the death of the mother. He might apply to the Court 
to be appointed guardian along with the guardian, if any, named 
in the will of his deceased spouse. Except in this capacity a sur- 
viving father had no competence either to represent his minor 
son in Court or to administer his estate. Gr. 1. 7. 8-9; Voet, 
26. 4. 4. But to-day 'the father is the natural guardian of his 
legitimate children until they attain majority'. Van Rooyen v. 
Werner, ubi sup. at p. 428. 

5 Gr. 1. 6. 1. and Schorer ad loc. 

6 The Master v. Castellani [1911] T.P.D. 763; Ex parte 
Humphreys [1921] W.L.D. 74. 

7 Rossiter v. Barclays Bank [1933] T.P.D. at p. 383. 

8 Gr. ubi sup. ; V.d.K. 103. In S.A. the general rule is that an 
executor must pay into the hands of the Master any money which 
has become due from the estate to any minor ; but ' The survivor 
of two spouses shall, in the absence of any provision to the contrary, 
be entitled as natural guardian to receive from the executor and 
retain for and on behalf of his minor child any sum of money due 
to that child from the estate of the deceased spouse : provided that 



38 THE LAW OF PERSONS 

apply the income of property belonging to the child for 
his maintenance, education, and other like purposes, in- 
vest the surplus, and conclude contracts in due course of 
administration. 1 If the father is dead and has not appoint- 
ed a testamentary guardian, the mother normally takes 
his place as natural guardian, 2 and the mother is natural 
guardian of her illegitimate child. 3 A minor child, while 
unemancipated, is unable to contract without his father's 
consent. 4 Any contract concluded by him without such 
consent is ipso jure void, and will not bind either the child 
or the father 5 except so far as either of them has been 
enriched thereby, and if any payment has been made by 
the minor under such contract, it is recoverable by the 
condictio indebiti. If, however, the father allows the minor 
to make a contract in the father's name or ratifies a con- 
tract so made, the father is bound. This is simply a ques- 
tion of the general law of principal and agent. So far and 
so far only may a minor son bind his father by his con- 
tracts. 6 

A father may indeed be held liable for necessaries sup- 
plied to his child and this liability is not affected by 
divorce. But it is a liability imposed by law and does not 
imply a contractual obligation either of child or parent. 7 

A father may represent his son in Court and sue and 
defend in the son's name, 8 but if he does so without leave 
from the Court he will be personally liable for costs if the 

such sum has been secured by bond to the satisfaction of the 
Master'. Administration of Estates Act, 1913, sec. 54. 

1 Van Leeuwen, 1. 13. 2; Van der Byl & Co. v. Solomon [1877] 
Buch. at p. 27 ; Wood v. Davies [1934] C.P.D. at p. 256. 

2 Ex parte Fitzgerald [1923] W.L.D. 187. 

3 Dhanabakium v. Subramanian [1943] A.D. at p. 166. 

4 V.d.L. 1.4. 1. 

6 Gr. 3. 1. 34. But as to ipso jure void see below p. 48. Nor is 
a father liable for his son's delicts unless made so by statute. 
V.d.K. Dictat. ad loc. ; Lee, Commentary, p. 226. 

6 Voet, 15. 1. 11. This case must be carefully distinguished from 
the case in which the father 'authorizes' (in the technical sense) or 
subsequently ratifies the minor's contract (infra, pp. 46, 47). 

7 Fillis v. Joubert Park Private Hospital [1939] T.P.D. 234. 

8 Gr. 1. 6. 1 ; 3. 48. 10 ; Van Rooyen v. Werner, ubi sup. at p. 430 ; 
Traub v. Bloomberg [1917] T.P.D. 276. 



PARENTAGE 39 

suit proves unsuccessful. 1 Even the leave of the Court 
affords no more than a, prima facie protection. 2 

3. Consent to marriage of minor children. The consent 3. Con- 
of parents, or of a surviving parent, is necessary to the Carriage 
marriage of minor children, 3 and without it the marriage of minor 
is null and void. 4 Consent may be either express or im- 
plied. It is implied if the father knows that the marriage 

of the minor is about to take place and does not forbid it. 5 
Strictly, the mother's consent is also necessary, but in case 
of disagreement the father's will prevails. 6 Publication of 
banns is presumptive evidence of consent, and a marriage 
celebrated after publication of banns without objection by 
the father is, in general, neither void nor voidable. But a 
marriage celebrated after special licence without the 
father's consent may be set aside at his instance, 7 per- 
haps only before the minor spouse attains majority. 8 The 
consent of grandparents is in no case necessary, 9 nor is 
any consent necessary to a second marriage under the age 
of majority. 10 The marriage cannot be impeached by a 
minor spouse on the ground of absence of parental con- 
sent. 11 

4. Right to provide testamentary guardians. This has 4. Right 
been mentioned above, and will be further considered to . a ?' 

point 

under the head of Guardianship. guardians ; 

1 Bayne N. 0. v. Kanthack [1934] W.L.D. 13; Ex parte 
Bloemfontein Town Council [1934] O.P.D. 11; Bellstedtw. South 
African Railways [1936] C.P.D. at p. 412. But 'a father who 
assists his minor child to bring an action is not a party to the 
action, and, if it fails, he cannot be ordered to pay the costs'. 
Sharp v. Dales [1935] N.P.D. 392. 

2 Taylor N. O. v. Lucas N. O. [1937] T.P.D. 405. 

3 Gr. 1. 5. 15, and Schorer, ad loc. ; Van Leeuwen, 1. 14. 6. 

4 Voet, 23. 2. 11 ; V.d.K. 75; V.d.L. 1. 3. 6. More precisely it is 
voidable at the suit of the aggrieved parent. Infra, p. 58. 

5 Voet, 23. 2. 8. 

6 Voet, 23. 2. 13; Schorer, ubi sup. At the Cape: 'He alone can 
consent to their marriage.' Van Rooyen v. Werner, ubi sup. at 
p. 429. 

7 Johnson v. Mclntyre (1893) 10 S.C. 318. 

8 28S.A.L.J. (1911), p. 478. 

9 Voet, 23. 2. 15 ; V.d.L. 1.3. 6. 

10 Van Leeuwen, 1. 14. 9; V.d.L., 1. 4. 3. 

11 Willenburg v. Willenburg (1909) 3 Buch. A.C. 409. 



40 THE LAW OF PERSONS 

6. Rights 5. Rights in respect of minor children's property. Voet 
of minor an( ^ other writers, following the Roman Law, distinguish 
children's peculium profecticium and peculium adventicium. The 
y ' first included property derived from the father or given to 
the son with the intention of conferring a benefit on the 
father. The second included any other property which 
came to the son from an external source. By the Roman 
Law the first belonged wholly to the father ; of the second, 
which belonged to the son, the father had the usufruct. 
But to-day contrary to the Roman Law a father may 
make an effective gift of property to his unemancipated 
son, thus putting it out of the reach of the father's credi- 
tors, 1 and the father has no usufruct of the adventicious 
property unless this has been given to him by the person 
from whom the property is derived or unless it is necessary 
to use the property and apply its proceeds for the main- 
tenance and upbringing of the child. 2 Voet refers to the 
head of peculium profecticium anything acquired by 
children residing at home and supported by their parents, 
whether acquired suis operis or ex re patris. Schorer is 
to the same effect: 'What children acquire by their 
labour and industry, while supported by their parents, is 
acquired for their parents', being set off against the cost 
of maintenance. 3 This may be still law. 

The distinction of peculium profecticium and peculium 
adventicium is not wholly unimportant. It has been said 
that 'the Court has always assumed greater powers in 
dealing with the profecticious property of minors than in 
the case of property accruing to a minor from some 
stranger or for value'. Accordingly, in the case from which 
this dictum is taken the Court authorized a re-settlement 
of property varying the terms of a deed of donation made 
by parents in favour of minor children. 4 

1 Infra, p. 288. 

a Van Leeuwen, 1. 13. 2; Voet, 15. 1. 6; V.d.K. 105. 

1 Gr. 1. 6. 1. and Schorer ad loc. ; Van Leeuwen, 2. 7. 7 ; Voet, 
15. 1. 4; 25. 3. 14; V.d.K. 104; Chinnia v. Dunna [1940] N.P.D. 
384. But see Groen., de leg. abr. ad Inst. 2. 9. 2. 

4 Exparte Est. Gates [1919] C.P.D. 162. 



PARENTAGE 41 

Thus far of the incidents of the parental power. It 
remains to see how it is acquired and lost. 

Parental power is acquired by: (1) birth in lawful wed- How 
lock; (2) legitimation by subsequent marriage; 1 but not, power is 
as amongst the Romans, by adoption. 2 A child born out acquired. 
of wedlock is in the power of the mother 3 (eene moeder 
maakt geen bastaard). 

Parental power is determined by : (1) the death of parent How 
or child; (2) majority; 4 (3) marriage; 5 (4) emancipation. mine( j. 
This, Grotius says, 'takes place either in Court, or 
tacitly, when a child is permitted to have a home of his 
own and do business'. 6 The first of these methods, which 
may be described as express emancipation, consisted in 
a declaration made by the father before the Court. 7 It 
was already disused in the eighteenth century, being re- 
placed by venia aetatis. 8 Tacit emancipation remains in 
use, 9 but, as interpreted by recent decisions of the Courts, 
is merely a general and revocable licence of parent or 
guardian authorizing contracts incidental to a particular 
trade or business. 10 This is not properly speaking eman- 
cipation, and is not what the old writers mean when they 
speak of tacit emancipation. 

If a father becomes insane, his parental authority is in Effect of 
suspense and passes to the mother or to a tutor or curator l 

1 Supra, p. 34. &c - 

2 Gr. 1. 6. 1 ; Voet, 1. 7. 7; V.d.L. 1. 4. 2. The Children's Act, 
1937, replacing Act No. 25 of 1923, permits the adoption of 
children under the conditions therein stated. For S.Rh. see Revised 
Statutes, cap. 155, for Ceylon Ord. No. 24 of 1941 (amended by 
Ord. No. 54 of 1943). 

3 V.d.L. 1. 4. 2. 4 Voet, 1. 7. 15. 

6 Gr. 1. 6. 4; Voet, 1. 7. 13. 6 Gr. ibid. 

7 Voet, 1. 7. 11 ; Fock. And. Bijdragen, i. 28. 

8 Deeker ad Van Leeuwen, 1. 13. 5; V.d.K. 107; V.d.L. 1. 4. 3, 
n. 4; infra, p. 44. 

9 Dama v. Bera [1910] T.P.D. 928; Venter v. De Burghersdorp 
Stores [1915] C.P.D. 252; Pleat v. van Staden [1921] O.P.D. 91. 
The two conditions mentioned by Gr. need not coexist. V.d.K. 
Dictat. ad Gr. 1. 6. 4; Lee, Commentary, p. 37. 

10 Ambaker v. African Meat Co. [1927] C.P.D. 326; Ex parts, 
Keeve [1929] O.P.D. 19; Ochberg v. Ochberg's Est. [1941] C.P.D. 
at p. 37; Ahmed v. Coovadia, 1944 (1) P.H., M. 17 [T.P.D.]. See 
Appendix B. 



42 THE LAW OF PERSONS 

appointed by the Court. The same applies if the parent is 
sentenced to a long term of imprisonment. Interdiction 
for prodigality terminates or suspends the father's natural 
guardianship for most purposes, but he remains competent 
to give an effective consent to the marriage of minor 
children. An insane parent is replaced for this purpose 
by the Court. 1 

B. The reciprocal duty of support 

The duty A father must support his children, i.e. must supply 
port! P them with necessary food, clothing, shelter, medicine and 
instruction. 2 

The duty extends to illegitimate 3 as well as to legiti- 
mate children. The father does not escape liability by the 
fact that he has made other provision for a son, which the 
son has lost or squandered. 4 

The mother likewise is liable together with the father 
during his lifetime and solely after his death. 5 In case of 
divorce, both parents may be required to maintain the 
children according to their means. 6 The obligation of 
support ceases if the children are able by their industry or 
from their own means to support themselves, but may 
revive even after full age, if their means again become 
insufficient. 7 The burden of proving that the child cannot 
support himself and that the parent has sufficient means 
lies upon the child. 8 The old writers differ on the ques- 
tion whether the duty of maintenance ends with the death 

1 Gr. 1. 6. 5; V.d.K. Dictat. ad loc.; Lee, Commentary, p. 37; 
infra, p. 59, n. 5. 

2 Gr. 1. 9. 9 ; Van Leeuwen, 1. 13. 7 and 8 ; Voet, 25. 3. 4 and 5. 

3 Voet, 25. 3. 5; Van der Westhuizen v. Rex [1924] T.P.D. at 
p. 373, including incestuous and adulterine issue. As to assess- 
ment of maintenance see A. v. M. [1930] W.L.D., 292. Is a 
husband bound to maintain an illegitimate child born to his wife 
before marriage ? Rex v. Fitzgerald [1926] N.P.D. 445. 

4 Voet, 25. 3. 5. 

6 Voet, 25. 3. 6; Union Oovt. v. Warneke [1911] A.D. at p. 668. 
8 Van Leeuwen, 1. 15. 6; Voet, 25. 3. 6; Farrell v. Hankey 

[1921] T.P.D. 590. 

7 Voet, 25. 3. 14 and 15; In re Knoop [1893] 10 S.C. 198; Ex 
parte Jordaan's Curator [1929] O.P.D. 168. 

8 Grobler v. Union Oovt. [1923] T.P.D. 429. 



PARENTAGE 43 

of the parent or is transmitted to the heirs. 1 The South 
African Courts have preferred the latter view, holding that 
the duty of educating and maintaining minor children is 
'a debt resting upon the estate' of either parent post- 
poned to other debts but preferred to legacies. 2 If parents 
have not adequate means the burden of maintenance 
passes to grandparents, but if the grandchild is illegiti- 
mate, to maternal grandparents alone. 3 

The duty of support is reciprocal. Children must main- 
tain their indigent parents, 4 and if they are minors or 
insane the Court may charge the cost of maintenance upon 
their estate. 5 All this must be understood to be subject 
to the primary duty of a husband to support his wife. 
'Primarily the duty falls upon the husband, and it is only 
when he is dead or unable to provide support that a right 
to claim support from a parent, grandparent, child or 
brother arises.' 6 

1 Voet, 25. 3. 18 ; Groen., de leg. abr. ad Dig. 34. 1. 16. 

2 Eitchken's Exors. v. Ritchken [1924] W.L.D. 17 ; Davis' Tutor v. 
Est. Davis [1925] W.L.D. 168; Goldman N.O. v. Est. Goldman 
[1937] W.L.D. 64. The decisions seem to be limited (so far) to 
W.L.D. In Ceylon it was held by the full bench in Lamahamy v. 
Karunaratna (1921) 22 N.L.R. 289 that an action will not lie 
against the administratrix of a deceased person's estate for 
maintenance of such person's illegitimate child. 

8 Voet, 25. 3. 7; Motan v. Joosub [1930] A.D. 61. 

4 Voet, 25. 3. 8; Oosthuizen v. Stanley [1938] A.D. at pp. 
327-8. A stepmother is not entitled to be supported by a .stepson. 
Jacobs v. Cape Town Munic. [1935] C.P.D. 474. Is a husband 
bound to support his wife's indigent parents ? Ford v. Allen 
[1925] T.P.D. 5. As to support of brothers and sisters see 
Oosthuizen v. Stanley at p. 331 and Miller v. Miller [1940] C.P.D. 
at p. 469. 

6 In re Knoop, ubi sup. 

9 Miller v. Miller, ubi sup. 



Ill 



MINORITY 

Minority. A MINOR by Roman-Dutch Law is a person of either sex 
who has not completed the twenty-fifth year. 1 For this 
the twenty-first year has been substituted by statute. 2 As 
to the precise moment at which minority ends Voet makes 
the following distinction. The last day of minority is 
regarded as completed at the moment of its inception, 
when it is to the minor's advantage that it should be so 
considered ; 3 but when the advantage lies the other way, 
so as, e.g., to prolong the benefit of restitutio in integrum, 
majority is not deemed to be attained until the very 
minute arrives corresponding with the time of birth. 4 

Majority Majority may be accelerated by: (1) Venia aetatis; 



(1) Venia 



Venia aetatis is an anticipation of full age granted to a 
petitioner by the Sovereign authority in the State. 5 The 
effect of venia aetatis (which is not given to males under 
twenty or to females under eighteen years of age) 6 is to 

1 Dig. 4.4.1; Gr. 1. 7. 3; Voet, 4. 4. 1. 

2 Cape Ord. 62, 1829, sec. 1 ; Natal Ord. No. 4 of 1846, sec. 2; 
Transv. Volksraad Resolution of December, 1853, Art. 123; 
O.F.S. Law Book of 1901, chap. 89, sec. 14; Southern Rhodesia, 
R.S. cap. 26; Ceylon Ord. No. 7 of 1865, sec. 1. 

3 Voet, 4. 4. 1. 

4 Dig. 4. 4. 3, 3 ; Gr. 3. 48. 9 ; Cens. For. 1. 4. 43. 11 ; Voet 4. 4. 1 ; 
44. 3. 1. In English Law full age is reached at the beginning of the 
day before the twenty -first birthday (1 Blackst. Comm. 463 and 
Christian's note), not so in Roman Law. Savigny, System, iv. 
184. As to calculation of time in general and particularly in con- 
tracts see Joubert v. Enslin [1910] A.D. 6; Tiopaizi v. Bulawayo 
Munic. [1923] A.D. 317; Standard Bldg. Society v. Cartoulis 
[1939] A.D. 510. For French Law see Planiol, i. 1616, for German 
Law, B.G.B., Art. 187. 

6 Voet 4. 4. 4 ; V.d.L. 1.4.3. 

6 Cod. 2. 44 (45). 2; V.d.L., ubi sup. But see Van Leeuwen, 
1. 16. 11. By the O.F.S. Law Book of 1901, chap. Ixxxix, sec. 7, 
' The Court shall in no case recommend the granting of venia aetatis 
if the petitioner is under the age of eighteen years'. As to the 
circumstances in which the Court will recommend a grant, see 
Exparte Akiki [1925] O.P.D. 211. 



MINORITY 45 

put an end to all the incapacities and privileges of minority 
except that the alienation or hypothecation of immovables, 
unless expressly included in the grant, can only be effected 
after leave obtained from the Court. In this respect alone 
minors who have obtained venia aetatis remain in the 
position of other minors. 1 

Up to the present in South Africa the grant of venia 
aetatis has been confined to the Orange Free State, where 
it rests on statute. There seems to be no reason why this 
useful institution should not be extended to the other 
Provinces. 2 It has remained in use in Ceylon. 3 

It is the practice to refer a petition for venia aetatis to 
the Court for its report. But the Court has no independent 
right to make the grant. 4 At the Cape, however, the 
Court has in several cases released a minor from tutelage 
and authorized a payment to him from the Guardians' 
Fund. 5 In Holland similar powers were often vested in 
the weesmeesters by the local keuren. 6 This is not 
venia aetatis, though it seems to come very near it. 

Marriage puts an end to minority for all purposes, 7 (2) Mar- 
and it does not revive in the event of the dissolution of na & e - 
the marriage before the ordinary age of majority. 8 This 
applies to both sexes indifferently. 9 

The next matter for consideration is the legal status and Legal 
capacity of a minor. The subject is inadequately treated 
in the text-books, but the following rules may be ex- 
tracted from them. 10 

1 . If the child is so young that he does not know what 
he is about, he is absolutely incapable of contracting at all, 

1 Voet, 4. 4. 5. 2 Tydscrif, i. 197. 

3 For form of grant now in use see Appendix A. 

4 Non obstante, Gr. 1. 10. 3 (Lee, Commentary ad loc.) ; Exparte 
Moolman [1903] T.S. 159. 

8 In re Cachet (1898) 15 S.C. 5; Ex parte Louw [1920] C.P.D. 7 ; 
Ex parte Est. Van Schalkwyk [1927] C.P.D. 268. 

8 V.d.K. 161. 7 Voet, 4. 4. 6. 8 Voet, 4. 4. 9. 

9 So advised by advocates practising at The Hague in 1711. 
de Haas, Nieuwe Hollandsche Consultatien, no. 34. See V.d.K. 
879 and Dictat. ad loc. ; Lee, Commentary, p. 359. 

10 See further Appendix B and L. R. Caney, Minors' Contracts, 
47 S.A.L.J. (1930), p. 180. 



46 THE LAW OF PERSONS 

with or without assistance, for, as Van Leeuwen says: 
' All obligations must arise out of a free and full exercise 
of the will. It cannot therefore take place where there 
is a hindrance to the exercise of the will, as in the case of 
lunatics and madmen, and young children, who are bound 
neither by a promise nor acceptance.' 1 

2. If the child is old enough to understand the nature 
of the transaction, he has intellectus but is still wanting 
in judicium, and therefore cannot incur a valid obligation 
without his parent's or guardian's consent. 'Municipal 
law', says Grotius, 2 'considers all obligations of minors 3 
invalid unless incurred through delict or in so far as they 
may have been benefited.' 

Such obligations are said to be ipsojure void, and there- 
fore minors are ipso jure secure from any claims in respect 
of them without the need of invoking the extraordinary 
remedy of restitutio in integrum. 4 The phrase 'ipso jure 
void' must not, however, be taken too literally, for as will 
be seen, such obligations are not so much void as voidable 
at the minor's option. 6 

Cases in 3. A minor is bound by contracts duly made with the 
minor fs consent of his parent or guardian, 6 subject to his right in 

bound by 

contract. * Van Leeuwen, 4. 2. 2 (Kotz^'s TransL, vol. ii, p. 12). Voet 
says (26. 8. 9): 'si infans seu septennio minor sit sic ut nullum 
omnino queat consensum adhibere. ' Arg. Dig. 23. 1. 14. 

2 Gr. 3. 1. 26. 3 i.e. unassisted. 

4 Cens. For, 1. 4. 43. 2; De Beer v. Eat. De Beer [1916] C.P.D. 
125. Proof of lesion is not required. Gantz v. Wagenaar (1828) 
1 Menz. 92. For the Senatusconsultum Macedonianum forbidding 
loans of money to filii-familias see below, p. 314, n. 4. 

8 For Ceylon law herein see Pereira, The Laws of Ceylon, p. 
185, and Fernando v. Fernando (19 16) 19 N. L. R. 193. 

6 V.d.K. 128 and Dictat. ad loc. ; Lee, Commentary, p. 45; 
Moolman v. Erasmus [1910] C.P.D. 79 ; Skead v. Colonial Banking 
& Trust Co. [1924] T.P.D. 497. It makes no difference, says Voet 
(26. 8. 1 in fin.), whether the tutor's authority is not given at all, 
or is wrongly given, citing Dig. 26. 8. 2 : Nulla differentia est non 
interveniat auctoritas tutoris an perperam adhibeatur. This 
points to the rule 'in rem suam auctorem tutorem fieri non posse '. 
Dig. 26. 8. 1 pr. What if a guardian unreasonably withholds his 
consent ? Voet says (26. 8. 8) that he can be compelled to give it. 
Perhaps this means to-day that the Court as upper guardian will 
authorize the contract. 



MINORITY 47 

a fit case to claim relief by way of restitutio in integrum. 
Ratification is equivalent to consent. 1 Further, a father 
and guardian, as we have seen or shall see hereafter, may 
in due course of administration contract in the name of 
the minor and bind him by such contract, subject however 
to the same relief. 2 

4. A minor is bound, as mentioned by Grotius in the 
passage above cited, so far as he has been enriched or 
benefited by his contract. 3 To this head may be referred 
a minor's liability for necessaries, or for money borrowed 
and expended on necessaries. 4 The liability is quasi-con- 
tractual, 5 and rests upon the principle stated by Pomponius : 
'Nam hoc natura aequum est neminem cum alterius de- 
trimento fieri locupletiorem.' 6 

5. A contract entered into by a minor is good without 
the tutor's consent, if the advantage is all on his side, and 
there is no corresponding disadvantage or burden. This 
results from the principle that without the authority of 
his tutor a minor may improve his position, but cannot 
make it worse. 7 By an extension of this principle or of 
the principle of enrichment minors have sometimes been 
held liable ex contractu when the contract was plainly 
beneficial, e.g. a contract of employment. 8 But it is per- 
haps safer to say that with one statutory exception 9 a 
minor can never unassisted bind himself by contract. 10 

1 Voet, 26. 8. 1 ad fin. ; Fouche v. Battenhausen & Co: [1939] 
C.P.D. 228. 

2 Gr. 3. 1.28; 1.8. 8; 3. 48. ]0;V.d.K. 133; Van der Byl & Co. v. 
Solomon [1877] Buch. 25; Wood v. Davies [1934] C.P.D. 250; 
infra, p. 113. 

3 Gr. 1.8. 5; 3. 1.26 ; 3. 6.9 ;3. 30. 3; Voet, 26. 8. 2; VanLeeuwen, 
1. 16. 8 ; Nelv.Divine,Hall & Co. (1890) 8 S.C. 16 ; DeBeerv. Est. De 
Beer [1916] C.P.D. at p. 127; Tanne v. Foggitt [1938] T.P.D. 43. 

4 Dig. 46. 3. 47, 1: Si necessariam sibi rem emit, quam necessario 
de suo erat empturus. 8 Gr. 3. 30. 3. 

6 Dig. 12. 6. 14; 23. 3. 6, 2; 50. 17. 206. 

7 Inst. 1. 21 pr. ; Gr. 1. 8. 5; Voet, 26. 8. 2. 

8 Queen v. Koning (1900) 17 S.C. 541; Fick v. Rex [1904] 
O.R.C. 25; Silberman v. Hodkinson [1927] T.P.D. at p. 570. 

9 By the Insurance Act, 1923, sec. 20 (a), a minor who has 
attained the age of eighteen years may effect a policy on his 
own life. 10 Tanne v. Foggitt, ubi sup. 



48 



THE LAW OF PERSONS 



Are the 
contracts 
of an un- 
assisted 
minor 
void or 
merely 
voidable ? 



Liability 
for de- 
licts and 



6. It has been said above that the phrase 'ipso jure 
void' must not be taken too literally. This appears from 
the fact that the other party to the contract is bound, if 
the minor through his tutor, or the late minor after 
majority on his own motion, takes steps to enforce the 
contract. 1 In other words, a contract entered into by a 
minor, unassisted, may be ratified either during his minor- 
ity with his tutor's assistance, 2 or after its determination. 3 
Voet adds that if a minor seeks to enforce a contract 
made by him without his tutor's authority, he may do so 
only on condition that he himself performs his part. 4 
He further points out that an unassisted contract of a 
minor always creates a natural obligation, 5 and therefore 
supports the collateral undertaking of a surety, provided 
that the minor be upwards of seven years of age. But, 
contrary to the rule usually applicable to such obligations, 
the natural obligation of a minor does not exclude the 
condictio indebiti. 6 Accordingly, if the minor has made 
a payment in pursuance of an unauthorized contract he 
can get the money back. But, if he ratifies after full age, 
his obligation is no longer merely natural, but civil, and 
he must perform his part of the contract. 7 

7. A minor above the age of seven years is liable for his 
delicts and crimes. 8 With regard to delicts Voet says that 
if there is wrongful intention the minor is always liable. 
If, on the other hand, he has done injury through slight 
or very slight fault (levi vd levissima culpa), without 
wrongful purpose, he should be excused, or at least re- 
lieved from punishment by restitutio in integrum. 9 

1 Gr. 3. 6. 9 ; Voet, 26. 8. 3. Conversely a father or guardian has 
the right to repudiate a contract entered into by a minor without 
his knowledge or consent, Rhode v. Minister of Defence [1943] 
C.P.D. 40. 

2 Voet, 26. 8. 1 ad fin. 

3 Voet, 26. 8. 4 ad fin. and 4. 4. 44 ; Van der Byl & Co. v. Solomon 
[1877] Buch. 25. Ratification may be inferred from conduct. 
Stuttaford & Co. v. Oberholzer [1921] C.P.D. 855. 

4 Voet, 26. 8. 3. 6 Windscheid, ii. 289 ; Girard, p. 682. 
6 Dig. 12. 6. 29 and 41. 7 Voet, 26. 8. 4. 

8 Gr. 1. 4. 1 ; 3. 1. 26; 3. 32. 19 (and Groen., ad loc.); 3. 48. 11. 

9 Voet. 4. 4. 45. 



MINORITY 49 

8. In the sphere of property-law there is nothing to Property, 
prevent a minor from acquiring ownership, 1 but he cannot 
alienate or charge his property 2 without his parent's or 
tutor's authority ; which in the case of the alienation or 
hypothecation of immovables is not sufficient without an 

order of Court. 3 

Minors under the age of puberty are incompetent to 
make 4 or to witness a will. 5 

9. Restitutio in integrum, which has been already men- Restitu- 
tioned, is an extraordinary remedy, by which the Court 

so far as possible restores the status quo ante. It is granted 
to minors when it appears that they have suffered pre- 
judice in consequence of their own acts, 6 or of acts done 
by their parents or guardians on their behalf. 7 The bur- 
den of proving prejudice rests, as a rule, upon the minor. 8 
This remedy is given in respect not only of contracts, but 
also of alienation of property by donation or otherwise ; 
of compromises; of judicial proceedings (e.g. when the 
minor has failed to put in his pleadings in time), 9 and even 
in case of alienations sanctioned by the Court. 10 The bene- 
fit of restitution accorded to a minor devolves on death, 11 
but does not generally avail persons who have bound 

1 Inst. 2. 8. 2; Dig. 41. 1. 11. 

2 Gr. 1. 8. 5; 2. 48. 4; Van Leeuwen, 2. 7. 8; nor make a gift 
mortis causa (Gr. 3. 2. 23 from whom Schorer, ad loc., dissents) ; 
nor discharge a debt by release (Gr. 3. 41. 8) ; or by novation.( Voet, 
46. 2. 8) ; nor make a valid payment of a debt (Gr. 3. 39. 11) ; i.e. 
he may recover the money if possible ; if this is impossible the 
payment holds good (ibid.). 

3 Voet, 26. 8. 5; 27. 9. 1 and 4; Breytenbach v. Frankel [1913] 
A.D. 390. 4 Infra, p. 363. 6 Infra, p. 367. 

6 Gr. 1. 8. 8 ; 3. 48. 9-13 ; Voet, 4. 4. 12 ff. Skead v. Col. Bkg. and 
Trust Co. [1924] T.P.D. 497. It must be observed that restitution 
is granted on the ground of prejudice inherent in the act which it 
is sought to set aside, not of loss accidentally resulting from it, as 
when a minor has entered into a contract for the purchase of a 
horse, which is killed by accident next day. Dig. 4. 4. 11, 4. For 
Ceylon see Bandara v. Elapatha (1922), 23 N.L.R. 411. 

7 Gr. ubi sup. ; Van der Byl & Co. v. Solomon [1877] Buch. at 
p. 29 ; Wood v. Davies [1934] C.P.D. 250. 

8 Voet, 4. 4. 13. 9 Voet, 4. 4. 14 ff. 

10 In re Nooitgedacht (1902) 23 N.L.R. 81; De Wet v. Bouwer 
[1919] C.P.D. 43. u Voet, 4. 4. 38. 

4901 TB 



50 THE LAW OF PERSONS 

themselves as sureties for a minor, therein differing from 
other cases of restitution. 1 Restitution is refused when a 
minor has fraudulently misrepresented his age. 2 It is 
waived by ratification after full age, which may be ex- 
press or implied. 3 It is barred by the lapse of four 4 
(now three 5 ) years after majority, or from the time after 
full age when the late minor knew, or might have known, 
of the laesio which entitled him to relief. 6 A minor can- 
not obtain restitution against marriage on the ground of 
minority alone, 7 nor against liability for crime or serious 
delicts. 8 

1 Voet, 4. 4. 39. 

2 Cod. 2. 42 (43) ; Voet, 4. 4. 43. Fouche v. Battenhausen & Co. 
[1939] C.P.D. 228; (Ceylon) Wijesooria v. Ibrahimsa (1910) 
13 N.L.R. 195. In this case the Court refused to set aside a sale 
of immovable property, though made without sanction of the 
court. See Shorter & Co. v. Mohamed (1937) 39 N.L.R. 113. 

3 Voet, 4. 4. 44; Van der Byl & Co. v. Solomon [1877] Buch. 25. 

4 Gr. 3. 48. 13;V.d.K. 900. 

6 Prescription Act, 1943, sec. 3 (2); (Ceylon) Ord. No. 22 of 
1871, sec. 11, Silva v. Mahammadu (1916) 19 N.L.R. 426. 

6 Voet, 4. 1. 20. 

7 Voet, 4. 4. 5;Haupt v. Haupt (1897) 14 S.C. 39. 

8 Voet, ibid. 



IV 
MARRIAGE 

IN this chapter we shall consider: (1) the contract to 
marry; (2) the legal requisites of marriage; (3) the legal 
consequences of marriage ; (4) antenuptial contracts ; (5) 
the dissolution of marriage ; (6) some miscellaneous matters 
relating to marriage. 

SECTION 1 THE CONTRACT TO MARRY 

Marriage 1 is commonly preceded by espousals (sponsalia- The pro- 
trouwbeloften), which constitute a binding contract be- marry? 
tween the parties. No form is prescribed for the contract. 2 
Any persons competent to marry may validly engage 
themselves. 3 Conversely persons not competent to marry 
cannot contract a valid engagement. 4 This excludes boys 
and girls below the age of marriage. 5 If they have reached 
that age but have not attained the age of majority they 
may engage themselves with the consent of parents or 
guardians. 6 Failing such consent the engagement is 
invalid. 7 With it, the engagement is valid, subject however 
in this case, as in other contracts of minors, to restitutio in 
integrum on the ground of lesion ; 8 from which it follows 
that the engagements of minors are in no case con- 
clusively binding unless and until ratified after full age. 9 
By the common law of Holland the consent of tutors was 
not required, the place of the deceased parents in this 

1 On the whole of this subject Van Apeldoorn, Geschiedenis van 
het Nederlandsche Huwelijksrecht (Amsterdam 1925) may be use- 
fully consulted, as well as Fockema Andreae, Het Oud-Nederlandsch 
Burgerlijk Recht, vol. ii, chap, iv, and Bijdragen, Parts 1 and 2; 
de Blecourt, Kort Begrip van het Oud-Vaderlandsch Recht, chap, ii ; 
Wessels, History of the Roman-Dutch Law, Part ii, chap. iii. 

2 Voet, 23. 1. 1. In Ceylon writing is required. Ord. No. 19 of 
1907, sec. 21. 3 V.d.L. 1. 3. 2. 

4 Voet, 23. 1. 2. 8 V.d.K. 52. 

6 Greefv. Verraux (1829) 1 Menz. 151. 

7 Voet, 23. 1. 20; Bijnk., O.T. i. 348. 

8 Voet, 23. 1. 17; V.d.K. 61 ; supra, p. 49. 

9 Gens. For. 1. 1. 11. 13. 



52 THE LAW OF PERSONS 

matter being taken by the relatives of the 'four quarters' j 1 
but in the later law the want of consent of tutors, no less 
than of parents, was a sufficient ground for repudiation 
of the contract by either party. 2 

An engagement lawfully contracted with the necessary 
consents cannot be broken off without just cause. 3 Under 
the Roman-Dutch Law the Courts would decree specific 
performance of the marriage contract, 4 and even declare 
a reluctant party married in absence. 5 This practice is 
disused in the modern law, 6 but an action lies for damages 
for breach of the contract to marry. 7 The old books 
enumerate the grounds which justify a repudiation of a 
promise to marry. In the modern law the plea of justi- 
fication for resiling from the contract is not so readily 
admitted, since performance is no longer decreed. 8 

SECTION 2 THE LEGAL REQUISITES OF MARRIAGE 
Essentials Assuming the consent of the parties to be a necessary 
riage. condition of marriage as of contracts in general we may 

state the essentials of a valid marriage to be : (A) Capacity 

to marry and to intermarry ; (B) Consent of parents ; 

(C) Due observance of ceremonies. We deal with these 

in order. 

1 Infra, p. 102. 

2 Loenius, Decis. 4; V.d.K. 53. 

3 V.d.K. 60; V.d.L. 1. 3. 2. 

4 The law was the same in England before Lord Hardwicke's 
Act (1753). 

6 Voet, 23. 1. 12; V.d.K. 57; (Cape) Richter v. Wagenaar (1829) 
1 Menz. 262; (Ceylon) Dormiux v. Kriekenbeek (1821) Ramana- 
than, 1820-33, p. 23. The Court would appoint a proxy to go 
through the ceremony. Fockema Andreae, Oud-Nederlandsch Bur- 
gerlijk Recht, vol. ii, p. 146; this was called 'met de handschoen 
trouwen'. 

6 (Cape) Marriage Order-in-Council of 7 Sept. 1838, sec. 19, in 
force in the Colony from Feb. 1, 1839. In Ceylon the action to 
compel marriage was abolished by Ord. No. 6 of 1847, sec. 30. 

7 Radio/ v. Ralph [1917] E.D.L. 168; Smit v. Jacobs [1918] 
O.P.D. 30; McCalman v. Thome [1934] N.P.D. 86 (measure of 
damages). If the defendant was married at the time of the promise 
the innocent party has an action not for breach of contract but for 
injuria, Viljoen v. Viljoen [1944] C.P.D. 137. 

Schnaar v. Jansen [1924] N.P.D. 218. 



MARRIAGE 53 

A. Capacity to marry and to intermarry. The following A. Capa- 
cannot contract a valid marriage: 1 viz. those who are 
(1) already married, (2) under marriageable age, (3) insane, 
(4) impotent. 

1. A man can have only one wife, a woman one hus- 
band. 2 The Courts refuse to recognize a foreign poly- 
gamous marriage, i.e. a marriage the nature of which is 
consistent with the husband marrying another wife during 
its continuance. Whether he does so or not is beside the 
question. But though such a marriage is invalid the 
children will be held to be legitimate if they were so by 
the law of their domicile at the time of birth. 3 

2. The age of marriage as by the Roman Law and the 
Canon Law was the age of puberty, which was taken to be 
fourteen for males, twelve for females. But now in South 
Africa no boy under the age of eighteen years and no girl 
under the age of sixteen years is capable of contracting a 
valid marriage except with permission in writing of the 
Minister of the Interior. 4 In Ceylon the ages are sixteen 
and twelve (for a daughter of European and burgher 
parents fourteen). 5 In England the age is now sixteen 
for both sexes. 6 The canonical age is now sixteen for males 
and fourteen for females. 7 

3. Insanity is not a status. It is a question of fact in 
each case whether a party to a marriage understood the 
nature of the contract and was able to appreciate properly 
its duties and responsibilities. 8 

4. Impotence renders the contract of marriage voidable, 
not void. 9 

1 A valid marriage is a marriage which is neither void nor 
voidable. 2 Gr. 1. 5. 2. 

3 Seedats Exors. v. The Master (Natal) [1917] A.D. 302 ; Cheshire, 
Private International Law (2), p. 381. 

* Marriage Law Amendment Act, 1935. 

5 Ord. No. 2 of 1895, see 16. 

8 Age of Marriage Act, 1929. This extends to Scotland, not to 
Northern Ireland. 

7 Cod. Jur. Can. c. 1067. 

8 Prinsloo's Curators v. Crafford [1905] T.S. 669; Vermaak v. 
Vermaak [1929] O.P.D. 13. 

9 Wells v. Dean-Willcocks [1924] C.P.D. 89. 



54 



THE LAW OF PERSONS 



Capacity 
to inter- 
marry. 



Intermarriage is forbidden between persons related to 
one another within the prohibited degrees. By the law of 
^_ Holland, as by the Canon Law, persons who had previously 
committed adultery together might not intermarry, 1 but 
in the modern law this rule is abrogated by disuse. 2 

The books mention other impediments to marriage 
which scarcely form part of the modern law. For instance, 
the Roman Law 3 prohibited marriage between a female 
ward and her tutor or curator, or his son ; and this pro- 
hibition, though considered to be obsolete by Van Leeu- 
wen, 4 Groenewegen, 4 Voet, 4 and others, was accepted as 
existing law by Bijnkershoek, 5 Van der Keessel, 5 and Van 
der Linden. 5 In South Africa the marriage of a guardian 
with his female ward requires the sanction of the Court. 6 
By the Roman and Roman-Dutch Law a ravisher might 
not marry the woman whom he had ravished. 7 The old 
disqualifications on the ground of differences of religion 8 
are obsolete. 

Marriage The law of prohibited degrees was defined for Holland 
mitteT by the Political Ordinance of April 1, 1580, 9 which for- 
within the ^j^g marriage between: (1) ascendants and descendants, 10 
degrees, whether related by legitimate or illegitimate birth ; n (2) col- 

I V.d.K. 70; V.d.L. 1. 3. 6. 

a (Ceylon) Rabot v. de Silva [1909] A.C. 376; (South Africa) 
Est. Heinamann v. Heinamann [1919] A.D. 99. 

8 Dig. 23. 2. 62 and 64 ; Cod. lib. 5, tit. 6. But a tutor might 
give his daughter in marriage to his ward. Dig. 23. 2. 64, 2. 

4 Van Leeuwen, 1. 14. 13 and Cens. For. 1. 1. 13. 25; Groen. de 
leg. abr. ad Cod. ubi sup. ; Voet, 23. 2. 25. 

5 Bijnkershoek, Quaest Jur. Priv. lib. ii, cap. iii, p. 219; V.d.K. 
74; V.d.L. 1. 3. 6. 8 1 Maasdorp, p. 22. 

7 Cod. 9. 13. 1, 2; Voet, 23. 2. 26; Echt-Reglement van de 
Staten-Generael, March 18, 1656, Art. 85 (2 G.P.B. 2444) ; Placaat 
van de Staaten van Holland, Feb. 25, 1751 (8 G.P.B. 535). 
Groenewegen, whose book first appeared in 1649, i.e. before the 
Placaats, says (ad Cod. 9. 13. 1): Jure Canonico raptae raptori 
nubere licet, et hoc jure utimur. Not so now by canon law. 
Cod. jur. Can. c. 1074. 

8 Voet, 23. 2. 26 ; V.d.K. 73 ; V.d.L. 1. 3. 6. 

9 1 G.P.B. 330. The relevant articles of the P.O. are translated 
by Maasdorp, Institutes of South African Law, vol. i, Appendix. 

10 P.O., Art. 5; Gr. 1. 5. 6; Voet, 23. 2. 30. 

II Groen. de leg. abr. ad Dig. 38. 10. 8 ; V.d.K. Dictat. adGr.l. 5. 6. 



MARRIAGE 55 

laterals of whom either is related to the common ancestor 
in the first degree of descent, e.g. brother and sister, uncle 
and niece, uncle and great-niece, nephew and aunt. 1 In 
the latter class no distinction is made between the whole 
and the half blood, and in both classes the prohibition 
extends to relations by marriage as well as to relations 
by blood and within the same degrees ; 2 that is to say, 
since a man may not marry his sister or sister's daughter, 
neither may he marry his sister-in-law or sister-in-law's 
daughter ; and so with all the other prohibited degrees of 
relationship. It must be observed that though relation- 
ship by marriage is a disqualification within the prohi- 
bited degrees, this rule has no application when more than 
one marriage intervenes between the intending spouses. 3 
Thus by the Dutch law a man might not marry his de- 
ceased wife's sister, 4 but there was no reason why he should 
not marry his deceased wife's brother's widow. In South 
Africa and Ceylon the matter of prohibited degrees has in 
part or in whole been regulated by statute. 5 

B. Consent of parents. In the oldest Germanic law the B. Con- 
consent not alone of parents but also of other near rela- 
tives was a necessary, or, at all events, usual, preliminary 
of marriage. 'Intersunt parentes et propinqui,' says Taci- 
tus, 'ac munera probant.' 6 In Holland a case is cited as 
late as the year 1422 in which the parents incurred a 
penalty for having given their minor daughter in marriage 
without the consent of relatives and of the authorities of 

1 P.O., Arts. 6-7; Gr. 1. 5. 7-8; Voet, 23. 2. 31-2. In the 
Transvaal only if the parties are within the third degree of rela- 
tionship. Law No. 3 of 1871, sec. 4. This coincides with English 
Law. Blackst. Comm. i. 435 (Christian's note). But it is believed 
that men do not often marry their great-aunts. 

2 P.O., Art. 8; Gr. 1. 5. 9. See on the whole subject, Loenius, 
Decis., Cas. 7, pp. 39-62 ; Rechts. Obs., pt. 4, no. 3 ; Fudis v. 
Whiley N. 0. [1934] C.P.D. 130. 

3 In other words, my wife's affines are not my affmes so as to 
bring them within the prohibited degrees. Voet, 23. 2. 33. These 
impedimenta secundi generis, as they were called, were abolished 
as early as 1215 by the fourth Lateran Council. 

4 P.O., Art. 10. B See Appendix C. 
6 Tacitus, Germania, cap. 18. 



56 THE LAW OF PERSONS 

the town. 1 In the sixteenth century the matter was regu- 
lated by two enactments: viz. the Perpetual Edict of 
Charles V of October 4, 1540, and the Political Ordinance 
of the States of Holland and West Friesland, of April 1, 
1580. 
The Perpetual Edict (Art. 17) runs as follows: 2 

The pro- 'And whereas, daily, many inconveniences are caused in our 
visions of rea } m j n consequence of secret marriages, which are contracted 
petual between young persons without the advice counsel and consent 
Edict of of friends and relatives of both sides, we observing that accord - 
1540 6r ' m S ^ ^ G P rece pts f the written law such marriages are not 
Art. 17. in accordance with honour and due obedience, and generally 
come to a bitter end, Will, Ordain and Decree that in case any 
one shall take upon himself to solicit or induce any young girl, 
not exceeding the age of twenty years, by promise or otherwise, 
contract marriage with her (sic), or in fact contract marriage 
without the consent of the father or mother of the said girl, or 
of the majority of the friends and relatives, 3 in case she had no 
father or mother, or of the judicial authorities of the place, such 
man shall at no time be entitled to take or receive any douarie, 
or other benefit (whether by way of contract before marriage, 
by the custom of the country, by testament, gift, transfer, 
cession, or otherwise in what manner soever) out of the goods 
which the said girl may leave behind, even though he may, 
after the marriage has been completed (na 't houwelijck vol- 
bracht sijnde), obtain the consent of the father and mother, of 
the aforesaid friends and relatives, or of the Court ; of which 
circumstance we will that no regard should be had in this 
matter. In like manner if any girl or woman take upon herself 
to contract marriage with a young man not exceeding the age 
of twenty-five years, without consent of father or mother, or of 
the nearest friends and relatives, or of the judicial authorities of 
the place, such woman shall never be entitled to take or acquire 

1 Van Mieris, Groot Charterboek, vol. iv, p. 660. 

2 1 O.P.B. 319; 1 Maasdorp, p. 363. 

3 The original text reads 'van de meeste Vrienden ende Magen'. 
Meeste seems to be a mistake for naeste, which occurs lower down. 
The words 'Vrienden ende Magen' taken together mean 'rela- 
tives' (so in English law an infant sues by his 'next friend'). The 
reference is to the nearest relatives of the 'four quarters' (infra, 
p. 102). The requirement of consent of relatives strikes an archaic 
note. Even as early as the sixteenth century their place was being 
taken by tutors testamentary or dative. 



MARRIAGE 57 

any douarie or other benefit out of the goods which such man 
may leave behind (whether by way of contract of marriage, 
by the custom of the country, by testament, gift, transfer or 
cession, in what manner soever), even though she may, after 
the marriage has been consummated (nae 't huwelick ghecon- 
sommeert), 1 obtain the consent of father or mother, of the afore- 
said friends and relatives, or of the judicial authorities; of 
which circumstance we will that no regard should be had. 
Further, we forbid all our subjects to be present, to consent or 
agree to such marriages made without the consent of the 
judicial authorities, or to receive, entertain, or lodge in their 
houses persons so married, under penalty of one hundred gold 
Caroli or other severe punishment in the discretion of the 
Court. We forbid also all Notaries to receive any antenuptial 
contract or other promise to effect such marriage under pain 
of deprivation of office and, moreover, of being punished at 
discretion. Commanding all our officers and fiscals to take 
good care to have this ordinance observed and maintained, 
and to punish the contra veners of the same without favour or 
dissimulation.' 

The above enactment, it will be noticed, penalizes mar- 
riages contracted without the necessary consents, without, 
however, annulling them, which would have been (as it 
still is 2 ) contrary to the law of the Church. This further 
step was taken by the Political Ordinance of April 1, The Pro- 
1580, which by Art. 3 3 provides that banns shaU not be 



granted or proclaimed if those who apply for the same are cal Ordin- 
beneath the proper age, viz. twenty-five for young men, April !, 
and twenty for young women, unless they produce to the i580,Arts. 
magistrate or minister of religion the consent of their 
parents or the survivor of them (if they have any) ; and 
by Art. 13 declares 'null and void and of no effect mar- 
riages not contracted and celebrated' as required by the 
Ordinance, and adds an express reservation of the pro- 
visions of the Perpetual Edict relating to the marriage of 
minors and the penalties therein contained. 4 With regard 

1 See V.d.K. 50, Lee, Commentary, p. 8. 

2 Cod. jur. Can. c. 1034. 

3 1 O.P.B. 331; Gr. 1. 5. 14-15; Voet, 23. 2. 11. 

4 1 G.P.B. 334. 



58 THE LAW OF PERSONS 

The com- to the interpretation of these two enactments and their 
effect of combined effect divergent views have been entertained, 
these As regards minors who have parents or parent yet living 
ments: the law seems plain. Such young persons can neither 
(a) As re- engage themselves 1 nor contract a valid marriage 2 without 
sent of Q the consent of parents or parent. 3 If both parents are 
parents; living the consent of both is required, but in case of differ- 
ence between them the will of the father as the head of 
the family prevails over that of the mother. 4 If the father 
is dead the mother's consent is necessary, and sufficient, 5 
even though she has contracted a second marriage. 6 Con- 
sent may be express or tacit, the latter when a parent 
knows of the intended marriage and does not forbid it. 7 
Indeed, in the absence of fraud on the part of one or both 
of the spouses, publication of banns is deemed to be notice 
to the parents, and a marriage thereafter concluded is 
valid, even though, through carelessness on the part of the 
marriage-officer or other person responsible, the parents 
may in fact not have consented to the marriage or even 
have known of it. 8 In any event, ratification by the 
parents or parent after marriage, so far as concerns the 
validity of the marriage and the legitimacy of the children, 
has the same effect as a previous consent ; but no ratifica- 
tion after marriage 9 can relieve from the penalties imposed 
by the Perpetual Edict, this being expressly excluded by 
the terms of the Edict. 10 In the absence of consent or rati- 
fication the marriage will be declared void at the instance 
of the aggrieved parent, if he chooses to insist upon his 

1 Voet, 23. 1. 20; V.d.L. 1. 3. 2. 

2 Van Leeuwen, 1. 14. 6; V.d.K. 75; Willenburg v. Willenburg 
(2) (1908) 25 S.C. at p. 910; (1,909) 3 Buch. A.C. 409. 

3 Grandparents are not included. V.d.K. 77. 

4 Voet, 23. 2. 13. 6 Ibid. 6 Voet, 23. 2. 14. 

7 Foy v. Morkel [1929] W.L.D. 174. 

8 Voet, 23. 2. 18 ad fin. ; Johnson v. Mclntyre (1893) 10 S.C. 318. 
The presumption is not irrebuttable. Secus, when banns have 
been proclaimed by a magistrate under (Cape) Act 16 of 1860. 
Sikiti v. Foley [1929] E.D.L. 286. 

9 After consummation of the marriage? Perpet. Ed. Art. 17; 
supra, p. 57. 

10 Voet, 23. 2. 19; V.d.K. 75. 



MARRIAGE 59 

right. 1 But the marriage is not a void ab initio, and can- 
not be avoided by the spouses or either of them merely 
on the ground of the want of parental consent, nor (per- 
haps) by a parent after the child has reached full age. 2 
Parental consent once given may be withdrawn before 
marriage. 3 

If parents foolishly, frivolously, or in bad faith, withhold 
their consent, it would seem just that the Court should 
have power to override their veto. But only very pecu- 
liar circumstances would justify overriding the parental 
authority. 4 An insane parent, so far as concerns consent, 
is treated as non-existent, and the same consent, if any, 
is required and sufficient as would be sufficient if he or 
she were already dead. 5 

A minor who has married with consent, and who be- 
comes widowed before reaching the usual limit of full age, 
may re-marry without consent. Such at least was the 
law in the province of Holland with regard to males and 
females alike. 6 

Thus far we have spoken of the consent of parents or of or other 

relatives. 

1 Si rigido jure uti velit, Voet, 23. 2. 11 ; Johnson v. Mclntyre, 
ubi sup. ; Solomon & Solomon v. Hanna [1903] T.S. 460 (action by 
mother as natural guardian, the father being absent from the 
country) ; Willenburg v. Willenburg (1909) 3 Buch. A.C. at p. 423 ; 
Manton v. Manton (1909) 30 N.L.R, 387; Gerber v. Gerber [1928] 
W.L.D. 800 ; Foy v. Morkel [1929] W.L.D. 174 (action by widowed 
mother as natural guardian). Owen v. Fine, 1943 (1) P.H., B. 34 
[W.L.D.]. 

2 Vander Westhuizen v. Engelbrecht [1942] O.P.D. 191, dissent- 
ing from McKabe v. Moore [1909] E.D.C. 161. 

3 Subject to appeal' to the Court. Schoeman v. Rafferty [1918] 
C.P.D. 485; Sipondo v. Nongauza [1927] E.D.L. 255. 

4 Voet, 23. 2. 22 ; Schorer ad Gr. 1. 5. 16 ; V.d.K. 76 ; HiMebrand 
v. Hildebrand [1923] W.L.D. 151 ; Paton v. Paton [1929] T.P.D. 
776; Mofuken v. Mtembu [1929] W.L.D. 82. 

5 V.d.K. 82. At the Cape any person desirous of marriage to 
whose marriage consent is necessary, but cannot be given or is 
withheld, may apply by petition to the Chief Justice. Marr. O. in 
C. 1838, sec. 17. For Transvaal see A. v. B. [1906] T.S. 958; 
Ex parte Kropf [1936] W.L.D. 28. 

6 Voet, 23. 2. 17; V.d.K. Dictat. ad Gr. 1. 5. 15; Lee, Commen- 
tary, p. 15; supra, p. 45, n. 9. The Echt-Reglement of March 18, 
1656 (2 G.P.B. 2439) contains an express provision to this effect 
for the Generaliteyts Landen. 



60 THE LAW OF PERSONS 

a surviving parent. But what if both parents are dead ? 
The Political Ordinance (Art. 3) does not require the con- 
sent of relatives. 1 Inasmuch, however, as Art. 17 saves the 
operation of the penal clauses of the Perpetual Edict, it 
seems that a marriage of minors whose parents are dead, 
if contracted without the consent of friends and relatives, 
or, if these disagree amongst themselves or unreasonably 
withhold their consent, of the Court, though not void, is 
penalized. This is the view of Grotius, who treats the con- 
sent of the nearest relatives as necessary, if the penalty is 
to be avoided, though he says that the marriage of minors 
is not void by reason of its being prohibited by their guar- 
dians or relatives. 2 In the modern law relatives have no 
locus standi in the matter, except so far as they may hap- 
pen to be guardians. 

(6) As re- The argument founded upon the language of the Per- 
sent of n " P e tual Edict clearly fails as regards the consent of guar- 
tutors. dians, for the Edict does not penalize marriages contracted 
without such consent. In view of this fact it cannot be 
said that the common law of Holland made the consent of 
guardians a necessary condition of a valid marriage of a 
minor whose parents were dead, 3 nor, apart from general 
or local legislation or custom having the force of law, can 
the penalty of the Edict be extended to a case to which it 
does not in terms apply. 4 It is plain, however, from Van 
der Keessel, that the consent of guardians or relatives, and 
often of both, was very generally required by the local 
statutes, if not for the validity of the marriage, at all 
events for the avoidance of the penalty. On the other 
hand, the law of Zeeland, which penalized and also an- 
nulled marriages contracted without such consents, seems 
to be mentioned as exceptional. 5 In South Africa a mar- 

1 Voet, 23. 2. 16; V.d.K. 77. 2 Gr. 1. 8. 3. 

3 Gr. ubi sup. and Schorer ad loc. ; Van Leeuwen, 1. 14. 9; 
Groen. de leg. abr. ad Cod. 5. 4. 8; Voet, 23. 2. 16; V.d.L. 1. 3. 6; 
Bijnk. O.T. i. 46. 

4 Van Leeuwen (ubi sup.) applies it, but with hesitation. In any 
event consent of guardians will be easily inferred. Ibid. 

8 V.d.K. 125-6. 



MARRIAGE 61 

riage contracted without consent of guardians has the 
usual penal consequences, but is not void, or voidable at 
the suit of the guardian. 1 

With regard, more particularly, to the statutory penalty, The statu- 
it must be noticed that it attaches only to the person o 



full age of either sex who inveigles a minor of the other not attach 
sex into marriage. Such person is not allowed to take any S p OU se 
benefit from the property of the minor spouse, whether w ^ 1S a 
present or future, whether by gift, legacy, inheritance, or 
in any other way. One effect of this is that the major spouse 
takes no advantage from the marriage by way of com- 
munity of property, nor, where this exists, by antenuptial 
contract ; 2 and he acquires no right of control or adminis- 
tration over the property of the wife, who retains the 
administration in her own hands. 3 But the minor spouse 
is not penalized, 4 so that the proprietary consequences of 
the marriage will not be disturbed where they are for the 
minor spouse's benefit. 5 In the modern law minority in 

1 Mostert v. The Master [1878] Buch. 83; Willenburg v. Willen- 
burg (1) (1909) 26 S.C. at p. 453. In the Transvaal, by Law No. 3 
of 1871, sec. 8, it is not lawful to solemnize the marriage of a minor, 
if he or she cannot produce the consent of father or guardian. 
For Ceylon see Ord. No. 19 of 1907, sec. 23. Interdicted prodigals 
are in most respects in the same position as minors (Voet, 27. 10. 9), 
but they can marry without the consent of their curators (Mitchell 
v. Mitchell [1930] A.D. 217), and can give the required consent to 
the marriage of their children. Supra, p. 55. 

1 'The husband, whether he knew at the time or did not know 
the lady to be a minor, can receive no benefit from such a marriage 
and can have no control over her property.' Mostert v. The Master 
ubi sup. at p. 85 per de Villiers C.J. But Anton. Matthaeus 
(Paroem. no. 2, sec. 18) says: Igitur scientem, non etiam ignoran- 
tem vel errantem, ea constitutio plectit. 

3 Mostert' 's Trustees v. Mostert (1885) 4 S.C. 35 ; Wessels N. O. v. 
Uys [1924] O.P.D. 329; Ex parte Nahass [1939] C.P.D. 173. But 
there is old authority to the contrary. See Sentent. van den Hoog. 
en Provincial. Raad., no. 158, a decision which, as V.d.K. says 
(Dictat. ad Gr. 1. 8. 3), 'well deserves inspection'. It is regrettable 
that in such cases the Court (it seems) will neither order a settle- 
ment of the wife's money (Mostert v. The Master, at p. 84) ; nor 
permit the parties to make a postnuptial settlement, Ex parte 
Dicks [1915] T.P.D. 477. As to the power of the Court to order a 
settlement, Loenius, Cos. 55, pp. 357-60 and Bijnk O.T. ii. 1047, 
may be consulted. 4 Voet, 23. 2. 20. 

6 Groen. de leg. abr. ubi sup. 



62 THE LAW OF PERSONS 

this connexion terminates for the male at twenty-one and 
for the female, apparently, at the same age. 1 If both parties 
are minors, presumably the Court will try to find out 
which of the two was the more guilty. Failing this the 
community will stand. 

By the Law of Holland consent of parents was required 
even when the spouses were of full age, but such consent 
was easily presumed and might not be unreasonably with- 
held. If consent was withheld the Court determined 
whether the grounds of refusal were sufficient. 2 In the 
modern law the consent of parents is not necessary when 
the parties to the marriage are of full age. 

C. The C. The formal requirements of marriage. Until the six- 
recmire- teenth century the Canon Law, adopting the Roman rule 
ments of Consensus facit nuptias, did not require any formal celebra- 
tion of the marriage. 3 It was enough that the parties per 
verba de praesenti declared their intention here and now to 
be husband and wife. The law of the Church was changed 
by the Council of Trent (1545-63), which required that 
marriage should be contracted in the presence of a parish 
priest and at least two witnesses. This decree had no 
authority in Holland 4 after the adoption of the reformed 
religion, but the legislature followed the example set by 
the Church. The Political Ordinance of 1580 by Art. 3, 5 
besides giving statutory authority to the canonical prac- 
tice of publication of banns (first enjoined by the fourth 
Lateran Council in 1215), required further that the marriage 
should be celebrated by a Minister of religion, or by the 
Magistrate. 

The text of the Political Ordinance runs as follows : 
Political 'Those who after the publication of these presents shall 
Desire to en ter upon marriage shall be bound to appear before 

1 If this is so, it is a singular instance of extensive interpretation 
of a penal enactment. But perhaps we must regard the law of 
South Africa as resting rather on custom than on the statute. The 
pre-British law of the Cape fixed the ages at 21 and 18. J. de V. 
Roos in 23 S.A.L.J. (1906), p. 249. 

2 P.O., Art. 3 ; 1 Maasd., p. 356. 

3 Gr. 1. 5. 16; Van Leeuwen, 1. 14. 3. 

4 Fock. And., vol. ii, p. 137. B 1 G.P.B. 331. 



MARRIAGE 63 

the Magistrates or Ministers of Religion of the towns and 
places of their residence, and there apply for the granting to 
them of three Sunday or Market-day banns, to be made in the 
Churches or from the Council-House or other places where 
justice is administered, on three successive Sundays or Market- 
days : which banns shall be granted and made to the end that 
any one who wishes to advance any let or hindrance, whether 
of blood, affinity or pre-contract of marriage, by reason of 
which the marriage should not go forward, may do so. Pro- 
vided, however, that the said banns shall not be granted or 
made, if those who desire them are under age, that is to say 
young men beneath the age of twenty-five, and young women 
beneath the age of twenty, unless they show to the Magistrates 
or Ministers the consent of their parents or of the survivor of 
them (if they have any). . . . The said banns being made, if no 
lawful objection has been offered to them, the parties shall 
be married by the magistrates or Ministers according to the 
ordinances in use in the Churches and which shall be communi- 
cated to the Magistrates by the States aforesaid.' 1 

The later Dutch Law, following the example of the The 
French, made a civil marriage indispensable, a religious ^ ei 
ceremony being left to the option of the parties. 2 The 
principle that marriage is concluded by mere consent still 
persists in many of the States of the American Union, and 
persisted until 1940 in Scotland. 3 

With regard to the solemnization of marriage at the pre- 
sent day the reader is referred to the statute law of the 
several Provinces or Colonies. 4 

It may happen that two persons contract marriage Putative 
under the belief that they are free to do so, while in fact mama g e - 
one or both of them is married already, or for some other 
reason, such as near relationship, the conditions required 

1 i.e. the Provincial legislature, the States of Holland and West 
Friesland. 

8 V.d.K. 84; V.d.L. 1. 3. 6 (ad fin.). 

3 Marriage (Scotland) Act, 1939. 

4 South Africa, 1 Maasdorp, chap, iv; Ceylon, Ord. No. 19 of 
1907. As to presumption of marriage from cohabitation and 
repute see Fitzgerald v. Green [1911] E.D.L. at pp. 449, 454-9; 
Hairman v. Crawley [1923] O.P.D. 3 ; Nyokana v. Nyokana [1925] 
N.P.D. 227 ; Ex parte Azar [1932] O.P.D. 107 ; Gavenas v. Gavenas 
[1936] C.P.D. 132; Levine v. Levine [1939] C.P.D. 246. 



64 THE LAW OF PERSONS 

for a valid marriage do not exist. Such a marriage is 
termed a putative marriage, which, by the law of South 
Africa and of many other countries, but not of England, 
has some of the effects of a valid marriage, and, in par- 
ticular, the consequence that children born of the marriage 
are deemed to be legitimate. If there is good faith on the 
part of one of the parties only, the consequences of a 
putative marriage enure for the benefit of that party only 
and of the issue of the marriage. 1 Thus, if persons within 
the prohibited degrees innocently intermarry without an 
antenuptial contract, they are deemed to be married in 
community with the usual consequences so long as they 
are ignorant of their relationship. If it is known to one, 
unknown to the other, community continues so far as it 
is advantageous to the innocent party. 2 

SECTION 3 THE LEGAL CONSEQUENCES OF MARRIAGE 
The legal The legal consequences of marriage may be considered, 
quences of first, in relation to the personal status and capacity of 
mamage: ^he wife; secondly, in respect of the property of the 

spouses. 

A. Effect A. Effect of marriage, on the personal status and capacity 
riageasre- f the wife. This consists principally in the marital power 
gardsthe o f ^he husband over the wife, 3 with its consequences, 
status and which are as follows : 

capacity. 

1. The wife acquires the rank or dignity of the husband, 
which after the husband's death she retains durante vidui- 
tate. She acquires also her husband's forum and domicile. 4 

1 V.d.K. 64, Lee, Commentary, p. 11; In re Booysen (1880) 
Foord at p. 190; Berthiaume v. Dastous [1930] A.C. 79, appealed 
to P.O. from the Province of Quebec. For Scots Law see Gloag 
and Henderson (2), p. 529. As to the legitimacy of the children 
see H. (wrongly called C.) v. C. [1929] T.P.D. 992. In later cases 
the Court has declined to make a declaration of legitimacy when 
the children were not represented. Lionel v. Hepworth [1933] 
C.P.D. 481; Clarke v. Soffiantini, 1939 (1) P.H., B. 30 [C.P.D.] ; 
Potgieter v. Bellingan [1940] E.D.L. 264. 

2 Matthaeus, Paroem. ii, sec. 73 ; Voet, 23. 2. 89. 

3 V.d.L. 1. 3. 7. 

4 Voet, 23. 2. 40. 



MARRIAGE 65 

2. Though she may have been of full age before mar- 
riage, on marriage she is deemed to be a minor under the 
guardianship of her husband. 1 Like a minor she has, in 
general, no independent persona standi in judicio. She 
cannot institute or defend an action in her own name. 
Whether as plaintiff or defendant she must proceed by or 
with the assistance of her husband. 2 

3. In the matter of contract a married woman is in 
much the same position as a minor. She cannot, in general, 
bind herself except by her husband's authority. 3 But she 
can incur a natural obligation which is a good foundation 
for a contract of suretyship and excludes the condictio in- 
debiti in case she has paid money in discharge of such 
obligation after her husband's death. 4 Contracts made 
without her husband's authority being civilly void, neither 
wife nor husband can be sued upon them either during the 
marriage or after its determination. Subsequent ratifica- 
tion by the husband has the same effect as antecedent 
authority, and so, it seems, has tacit acquiescence in the 
contract. 5 The wife may confirm the contract after her 
husband's death. 6 

4. There are cases in which a married woman's contracts 
have full legal effect. 7 Thus: (a) She may enter into a 
unilateral contract which is solely to her advantage. Her 
husband takes the benefit, and payment must be made to 
him, not to his wife without his knowledge. 8 

1 Gr. 1. 5. 19; van Leeuwen, 1. 6. 7; Voet, 1. 7. 13; 23. 2. 41; 
V.d.L. 1. 3. 7. V.d.L. says: 'De vrouw wordt door het huwelijk 
minderjarig. ' Grotius more correctly says : ' werd ghehouden 
voor onmondig.' As to husband's duty to support wife see 
Gammon v. McClure [1925] C.P.D. 137 ; Miller v. Miller [1940] 
C.P.D. at p. 469. 

3 Gr. 1. 5. 22, 23 ; van Leeuwen, ubi sup. ; Voet, 5. 1. 14; 23. 2. 
41 ; V.d.K. 95 ; 1 Maasdorp, p. 47. See Appendix D. In Ceylon 
(Ord. No. 18 of 1923) a married woman may sue or be sued in all 
respects as if she were a feme sole. The Ordinance is modelled 
upon the English M.W.P. Acts. 

3 Gr. 1. 5. 23; Voet, 23. 2. 42 ; Pretorius v. Hack [1925] T.P.D. 
643. 4 V.d.K. 96. But see Voet, 12. 6. 19. 

5 Voet, 23. 2. 42. A wife may contract as agent for her husband, 
but that is another matter. * Voet, 23. 2. 43. 

7 See Appendix D. 8 Voet, 23. 2. 44. 

4901 -n, 



66 THE LAW OF PERSONS 

(6) Husband and wife are rendered liable by the wife's 
contracts, though made without the husband's authority 
or ratification, to the extent of their enrichment, that is 
to the extent to which he or she has taken a benefit under 
the contract. 1 

(c) A wife who is authorized or permitted by her hus- 
band to carry on the business of a public trader binds her- 
self, and (where there is community of goods or, at least, 
of profit and loss) her husband, by her trade contracts. 2 
It makes no difference whether she is above or below the 
normal limit of full age. 3 The wife's authority to bind her- 
self or her husband ceases if the husband has revoked his 
consent. Such revocation must be communicated to third 
parties and cannot be made to their prejudice in respect 
of transactions already begun. 4 

(d) A wife may bind herself and her husband by con- 
tracts incidental to the household. 5 This authority results 
from the wife's position as domestic manager and cannot 
be taken from her except by judicial decree and public noti- 
fication. 6 Under the designation of 'necessaries' (which 
does not by any means imply merely the bare neces- 
sities of life) the modern law has enlarged the conception 
of contracts incidental to the household to cover any 
reasonable expenses or liabilities. It is for the judge to say 
whether a particular contract falls within the permitted 

1 Gr. 1. 5. 23 (ad fin.); Voet, 23. 2. 43 (ad fin.); V.d.L. 1. 3. 7; 
Johnston v. Powell (1909) 26 S.C. 35; Forster v. Becker [1914] 
E.D.L. 193; Karsten v. Foster [1914] C.P.D. 919. 

2 Gr. 1. 5. 23; van Leeuwen, 1. 6. 8 and 2. 7. 8; Voet, 23. 2. 44 
(ad init.) ; V.d.L. ubi sup. As to what constitutes a public trade 
see Grobler v. Schmilg and Freedman [1923] A.D. 496. 

3 Voet, loc. cit. * Voet, loc. cit. 

6 Gr. ubi sup. ; van Leeuwen, ubi sup. ; Voet, 23. 2. 46. See 
Appendix D. This is an old Germanic institution Schlusselgewalt. 
Stobbe, Deutsches Privatrecht, iv. 188. 

6 Gr. ubi sup. : 't welck een man niet en kan beletten, ofte hy 
most sijn vrouw oock dat bewint rechtelick verbieden, ende 't selve 
doen afkondighen. The meaning of 'rechtelick ' appears from Voet 
(23. 2. 46), who says: nisi hujuscemodi rei domesticae cura, ac circa 
earn contrahendi licentia, ad mariti desiderium uxori publica magi- 
stratus auctoritate justas ob causas interdicta sit. Does this hold 
good to-day ? 



MARRIAGE 67 

class. 1 Much depends upon the custom of the country, the 
husband's condition and resources and the previous course 
of dealing. It is all one whether the wife has purchased 
goods for domestic use or borrowed money for the purpose 
of doing so. 2 

(e) If the husband has deserted his wife and is absent 
from the jurisdiction she may apply to the Court for leave 
to acquire and hold property and to contract in her own 
name. 3 

(/) In matrimonial causes a wife may in her own name 
take proceedings against her husband or defend proceed- 
ings taken by him against her. She may incur liability 
for the cost of such proceedings and for incidental expenses, 
and may defend in her own name an action brought against 
her to enforce such liability. 4 

(g) Lastly, as will be seen later, a woman may by apt 
words in her marriage contract retain the freedom of con- 
tracting which she enjoyed before marriage. 5 

5. During the marriage the husband (if the marital 
power is not excluded by antenuptial contract) administers 
the joint property and property of the wife which has been 
kept out of community. He may alienate it even by way 
of gift or encumber it, as he pleases. 6 The only limitation 
which the law places upon his administration is that gifts 
made in fraud of the wife or her estate may be called in 
question. 7 He is not accountable for his marital admini- 
stration, nor can he be required to indemnify his wife or 

1 Reloomel v. Ramsay [1920] T.P.D. 371. 

2 Voet, ubi sup. 

3 Sande, Decis. Fris. 2. 4. 4; Ex parte Hagemann (1909) 26 S.C. 
503; Ex parte Male (1910) 20 C.T.R. 941; In re Beart [1912] 
N.P.D. 65; Ex parte Abbott [1915] C.P.D. 544. The cases relate 
principally to permission to take transfer of immovable property. 

4 Van Eeden v. Kirstein (1880) Kotze, at p. 184; Barnett v. 
Milnes [1928] N.P.D. 1. 

5 Infra, p. 81. 

6 Gr. 1. 5. 22; Schorer ad Gr. 2. 48. 2; Van Leeuwen 1. 6. 7; 
Voet, 23. 5. 7; V.d.K. 92; Bijnk O.T. i. 727; power to lease, 
Voet, 19. 2. 17. 

7 Voet, 23. 2. 54 ; Van Leeuwen, ubi sup. ; Kemsley v. Kemsley 
[1936] C.P.D. 518. 



68 THE LAW OF PERSONS 

her heirs for his negligence. 1 The wife, on the other hand, 
may not alienate or encumber her property without her 
husband's consent unless in due course of trade or for 
household expenses. 2 

6. Where there is community of goods, or at least of 
profit and loss, the husband's contracts fall into the com- 
munity and so far benefit or burden the wife. 3 After the 
dissolution of the marriage she is entitled pro semisse, and 
liable pro semisse after recourse first had to the common 
estate, and, if the common estate has been distributed, to 
the estate of the husband. 4 Similarly, the wife's contracts, 
so far as she can validly contract, benefit and burden the 
community. In this case it will be the husband who is 
liable pro semisse after the dissolution of the marriage. 5 

7. Though, in general, a married woman is in the posi- 
tion of a minor, in some respects she is not so favourably 
situated. Thus, as remarked above, she cannot hold her 
husband to account or claim restitutio in integrum from 
contracts concluded by herself or by her husband in her 
name. 6 

B. Effect B. Effect of marriage in respect of the property of the 
of mar- spouses. By the law of Holland, in the absence of contract 

nage on *. 

the pro- to the contrary, marriage created ipso jure a community 

the^ f ^ gds (communio bonorum gemeenschap van goederen) 

spouses, between the parties. 7 The books describe it as a statutory 

Com- community, which means, in effect, that it was an institu- 

ti n f native origin not derived from Roman Law. 8 It is 

1 Sande, Decis. Fris. 2. 4. 1 ; V.d.K. 91. 

2 Gr. 1. 5. 23; Van Leeuwen, 2. 7. 8. 
8 Infra, pp. 77 ff. 

4 Gr. 2. 11. 17 ; 3. 1. 38, V.d.K. Dictat. ad loc., Lee, Commentary, 
p. 227; Stevenson v. Alberts [1912] C.P.D. 698. 
B Appendix D. 

6 V.d.K. Dictat. ad Gr. 1. 5. 21 (citing Voet 4. 4. 51 ; 23. 2. 63) ; 
Lee, Commentary, p. 22. 

7 Gr. 2. 11. 8; Voet, 23. 4. 1 ; V.d.K. 216; Mograbi v. Mograbi 
[1921] A.D. 274. 

8 The medieval lawyers were in the habit of describing the 
particular law of a town as its statute. Hence the intricate theory 
of statutes in the Conflict of Laws. Expanding this usage, 'By 
statutes the civilians mean . . . the whole municipal law of the 
particular state from whatever cause arising ... in contradiction 



MARRIAGE 69 

also described as universal, for, with exceptions to be 
mentioned, it covered all the property of the spouses and 
was not limited as in other countries to acquired property 
(to the exclusion of inherited property), or to a community 
of profits, which is the form in which matrimonial com- 
munity first comes into view in early Saxon and Prankish 
sources. 1 

Community might be excluded in whole or in part by How ex- 
antenuptial contract, and was excluded by law in the case c ' 
of minors marrying without the required consents. There 
were besides certain kinds of property which did not fall 
into community. In the Union of South Africa the law 
remains substantially unaltered. In the absence of proof 
of the contrary every marriage is presumed to be in com- 
munity. 2 In Ceylon and in Southern Rhodesia community 
of goods is no longer a consequence of marriage. 3 

The following kinds of property are (or were) excluded Not ap- 
from community, viz. (i) (by the old law) lands held by Certain 
feudal tenure ; (ii) property burdened with a fideicommis- kinds of 

property. 

to the Roman Law which they are accustomed to style by way of 
eminence the common law, since it constitutes the general basis 
of the jurisprudence of all continental Europe '. Story, Conflict of 
Laws, sec. 12. 

1 There were three principal types of community, together with 
many varieties, viz. 1. Community of postnuptial acquisitions 
the Dutch community of profit and loss (infra, p. 76) ; 2. Com- 
munity of movables (brought into marriage and after acquired) ; 
3. Universal community. In the Northern Netherlands this last 
(algeheele gemeenschap) prevailed in Holland, Zeeland, Utrecht, 
Gelderland and most of Overijsel. It also occurred in many parts 
of Germany and in Flanders. It is thought to have originated in 
the towns in the later Middle Ages. Fock. And. O.N.B.R. ii. 170; 
Bijdragen, ii. 109 ff. ; de B16court (5), pp. 106 &. It was re-intro- 
duced into the Law of Holland (the Kingdom of the Netherlands) 
by Art. 174 of the Burgerlijk Wetboek of 1838, now in force, which 
put an end to the domination of the French Code (supra, p. 7). 

2 Faure v. Tulbagh Divisional Council (1890) 8 S.C. 72. 

8 Ceylon, Matrimonial Rights and Inheritance Ordinance, No. 15 
of 1876, sec. 8; Southern Rhodesia Married Persons, Property 
Act, 1928 (E.S. cap. 151). In Natal by Law No. 22 of 1863, sec. 
2, community of goods does not attach to any spouses married 
elsewhere than in South Africa unless the spouses by written 
and registered agreement exempt themselves from this law. 
Brown v. Brown [1921] A.D. 478. 



70 THE LAW OF PERSONS 

sum. The property itself does not fall into community 
though the rents and profits accruing from it do so. 1 The 
same applies to property held in usufruct. 2 (iii) It has 
been said that jewels and other such things given by a 
bridegroom to the bride on marriage 3 and the clothes of 
the spouses 4 are (within limits) exempt from community, 
but, however reasonable this proposition may be, there is 
little, if any, authority for it. (iv) Finally, any person 
who gives or bequeaths property to either spouse may ex- 
pressly exclude it from community. 5 Similarly, any specific 
property may be kept out of community by antenuptial 
contract, but in the absence of stipulation to the contrary 
the proceeds of the sale of such property fall into com- 
munity. 6 

What uni- With these exceptions the community comprises all the 
property of the spouses, 7 present and future, movable and 

munity immovable, wherever situate, 8 jura in personam as well 
as jura in rem. The whole is under the administration of 
the husband, who is described as head of the community. 
Conversely, the liabilities of the spouses, whether ante- 
nuptial or postnuptial, are charged upon the community 

1 Gr. 2. 11. 10; Voet, 23. 2. 71 ; V.d.K. 221 ; Barnett v. Rudman 
[1934] A.D. 203. 

2 Van der Merwe v. Van Wyk N.O. [1921] E.D.L. 298. 

3 Van Leeuwen, 4. 24. 13; Voet, 23. 2. 78; but see Reddy v. 
Chinasamy [1932] N.P.D. 461. 

* Arntzenius, Inst. Jur. Civil. Belg. pt. 2, tit. 4, sec. 18, refers 
only to local statutes. Van Leeuwen (4. 24. 14) cites Costum. van 
Antwerpen, xli. 53-4 ; Lee, Commentary, p. 100. 

6 Erasmus v. Erasmus [1942] A.D. 265; Cuming v. Cuming, 
1945 (1) P.H., G. 13 [A.D.] a gift to the wife 'absolutely' held 
in the circumstances to exclude community. 

8 Voet, 23. 2. 79; Clement N.O. v. Banks [1920] E.D.L. 362. 
Another case of relatively small importance is that in an action 
by the wife for judicial separation and in proceedings to enforce 
the order the husband's marital power is in abeyance and costs 
awarded to the wife fall out of community. Comerma v. Comerma 
[1938] T.P.D. 220. 

7 Voet, 23. 4. 30; V.d.L. 1. 3. 8. The proverb says: 'Man 
ende Wijf hebben geen verscheyden goet.' Matthaeus, Paroem, 
no. 2. 

8 Voet, 23. 2. 85 ; unless the lex situs requires a formal mode of 
transfer in which case a personal action lies to compel transfer 
accordingly. Chiwell v. Carlyon (1897) 14 S.C. at p. 66. 



MARRIAGE . 71 

and diminish the joint estate, 1 and an antenuptial stipula- 
tion to the contrary is void in law unless community of 
goods is also excluded. 2 A married woman, therefore, may 
be utterly ruined by her husband's extravagance, but the 
remedy is in her own hands, viz. to ask the Court to inter- Boedel- 
dict the husband from the administration of the estate. 3 

Community begins when marriage begins, i.e. so soon as 
the necessary rites or ceremonies have been performed ; 4 When 
it persists during its continuance and ends upon its dissolu- 



tion. Thereupon the common fund is divided ipso jure begins 
into two equal shares, one of which vests in the surviving ai 
spouse, without regard to the amount which such spouse 
may have contributed, the other of which vests in the 
testamentary or intestate successors of the deceased. 5 On 
the dissolution of the community outstanding postnuptial 
liabilities attach to the extent of one-half to each moiety 
of the now divided estate. 6 Antenuptial liabilities, on the 

1 Die den man of de vrouw trouwt, trouwt ook de schulden. 
Gr. 2. 11. 12; V.d.K. 222. 2 Voet, 23. 2. 80. 

3 Gr. 1. 5. 24; Voet, 23. 2. 52;Rechts. Obs., pt. 4, no. 8; V.d.L. 
1. 3. 7 (in fin,); Ex parte Papendorp [1932] C.P.D. 167. Grotius 
speaks of boedelscheiding, but it is not now the practice to decree 
a formal separation of goods. In the event of insanity the marital 
power is suspended, not determined. V.d.K. 101. In such case the 
wife may permit the husband's curator to administer her property, 
or apply to the Court for power to administer it herself, or get 
herself appointed curatrix bonis to her husband. V.d.K. Dictat. 
ad Gr. 1. 5. 27 ; In re De Jager [1876] Buch. 228. She may not be 
appointed curatrix of the person of her husband. Ibid. 

4 Gr. 1. 5. 17; 2. 12. 5; Neostad., de pact, antenupt. Obs." 15-17; 
Van Leeuwen, 4. 23. 3 ; V.d.K. 87. 

5 Gr. 2. 11. 13. Children who have received advances must bring 
them into collation for the benefit of the joint estate before division. 
Gr. ibid.; P.O. Art. 29 (1 G.P.B. 336); V.d.K. 223; Jooste v. 
Jooste's Exors. (1891) 8 S.C. 288; 1 Maasdorp, chap, xix; infra, 
p. 358. 

6 Gr. 1. 5. 22; V.d.K. 93 and 223. Creditors may sue the 
husband or his heirs for the whole debt, the wife or her heirs for 
half. Laing v. Le Roux [1921] C.P.D. at p. 748. But proceedings 
may not be taken by creditors of the husband against the wife 
until they have endeavoured to recover what is due to them from 
the husband or his representatives. Stevenson v. Alberts [1912] 
C.P.D. 698. The husband (or his heirs) may recover from the wife 
(or her heirs) to the extent of one half. Gr. 2. 11. 17 ; Voet, 23. 2. 
52 and 80. 



72 THE LAW OF PERSONS 

other hand, which have not been discharged during the 
marriage, revert to the side from which they came. 1 

Apart from the events which put an end to the marriage, 
community may be determined in Natal and Southern 
Rhodesia, by postnuptial contract. 2 In many places in 
Holland, as in Germany, 3 a married woman was allowed on 
her husband's death to renounce the community and there- 
by to escape further liability for his debts. It was custom- 
ary for her to lay her keys on the coffin and to go out before 
the bier with nothing about her but her everyday clothes 
(some say in borrowed clothes). 4 This was something like 
the beneficium separationis allowed to the necessarius 
heres in Roman Law. 5 Reft of its ceremonial this repudia- 
tion of the community has been recognized as an existing 
institution in South Africa. 6 

SECTION 4 ANTENUPTIAL CONTRACTS 

No persons need marry in community unless they wish 
to do so. It is always open to the spouses to exclude or 
modify the common law by antenuptial contract. 7 ' Ante- 

1 Gr. 2. 11. 15; Van Leeuwen, 4. 23. 6; V.d.K. 224. According 
to Voet (23. 2. 80), if the husband (or his heirs) has discharged 
the whole of an antenuptial debt, he (or they) has (have) regressus 
against the wife or her heirs in respect of one-half. Schorer (ad 
Grot. 2. 11. 12) takes the same view. Van der Keessel (ubi sup.) 
dissents. See Neostad., Observ, de pact, antenupt., nos. 12 and 13 ; 
Loenius, Decis., case 99, and Boel's Excursus. For South African 
Law see Reis v. Gilloway's Exors. (1834) 1 Menz. 186 ; Blatchford v. 
Blatchford's Exors. (1861) 1 E.D.C. 365; Liquidators of Union 
Bank v. Kiver (1891) 8 S.C. at p. 150. 

2 In Natal (by Law No. 22 of 1863, sec. 7, as explained and 
extended by Law 14 of 1882) the spouses may depart from the 
community by postnuptial contract duly executed and registered, 
Butter N.O. v. Linder [1925] N.P.D. 9 ; but this does not permit a 
postnuptial exclusion of the jusmariti, Holdgatev.Moodley [1934] 
N.P.D. 356. Similar provision in Southern Rhodesia. Married 
Persons' Property Act, 1928, sec. 2; R.S. cap. 151, sec. 3. 

8 Grimm, Deutsche Rechtsaltertumer (4), i. 243. 

4 Gr. 2. 1 1. 18 and V.d.K. Dictat. ad loc. ; Lee, Commentary, p. 105. 

6 Inst. 2. 19. 1. 

6 Brink v. Louw (1842) 1 Menz. 210; Hem & Co. v. De Beer 
[1913] T.P.D. at p. 726. 

7 Gr. 2. 11. 8; V.d.K. 227; R. C. Elliott, Antenuptial Contracts, 
45 S.A.L.J. (1928), pp. 181 and 320. 



MARRIAGE 73 

nuptial contracts, being of wide application, ' says Van Antenup- 
der Keessel, ' can scarcely be otherwise defined than as tracts'- 11 
agreements between future spouses or other interested 
persons regarding the terms or conditions by which the 
marriage is to be regulated.' 1 By the law of Holland it Is writing 
was not absolutely necessary that the contract should be t^thelr^ 
in writing, but satisfactory proof and, therefore, the pre- validity ? 
sence, at the least, of competent witnesses was necessary 
if it was to affect creditors. 2 

In the practice of Cape Colony writing was invariably 
employed, and by Act 21 of 1875, sec. 2, an antenuptial 
contract, in order to be valid against creditors, had to be 
executed before a notary and two witnesses (under-hand 
documents not being entitled to registration) and registered 
in the Deeds Registry Office, and a duplicate original or Registra- 
notarial copy of the contract must be left in the Deeds 



Registry for general information. tial con- 

This Act and similar legislation in the other Provinces 
are now superseded by the (Union) Deeds Registries Act 
No. 47 of 1937 (replacing Act No. 13 of 1918), which pro- 
vides : 

Sec. 86. An antenuptial contract . . . executed after the 
commencement of this Act, shall be registered in the 
manner and within the time mentioned in section 
eighty-seven, and unless so registered shall be of no 
force or effect as against any person who is not a party 
thereto. 

Sec. 87 (1). An antenuptial contract executed in the 
Union shall not be registered unless it has been attested 
by a notary public and unless it has been tendered for 
registration in a deeds registry within two months 
after the date of its execution or within such extended 
period as the Court may on application allow. 

(2). An antenuptial contract executed outside the 
Union shall not be registered unless it has been attested 

1 V.d.K. 228. 

2 V.d.K. 229 ; Holl. Cons. iv. 35 ; Fisher v. Malherbe & Eigg 
[1912] W.L.D. 15. 



74 THE LAW OF PERSONS 

by a notary public or has been otherwise entered into 
in accordance with the law of the place of execution 
and unless it has been tendered for registration in a 
deeds registry within six months after the date of its 
execution ... or within such extended period as the 
Court may on application allow. 

Sec. 88. Notwithstanding the provisions of sections 
eighty -six and eighty -seven the court may, subject to 
such conditions as it may deem desirable, authorize 
postnuptial execution of a notarial contract having 
the effect of an antenuptial contract, if the terms 
thereof were agreed upon between the intended 
spouses before the marriage, and may order the regis- 
tration, within a specified period, of any contract so 
executed. 1 

The provisions of sees. 86 and 87 (supra) mutatis mutandis 
apply in respect of the registration of postnuptial contracts 
in the province of Natal (sec. 89). 

It is to be noted that the absence of registration only 
affects the validity of an antenuptial contract as regards 
creditors. An unregistered contract cannot operate to 
their prejudice so as to deprive them of any rights which 
they would have in the absence of contract by the com- 
mon law. As regards the parties, however, and persons 
claiming through them, as well as others taking a benefit 
under it, the contract holds good in the absence of registra- 
tion and even (semble) though not reduced to writing. 2 
Who In this connexion it should be observed that the parties to 
parties. an antenuptial contract may be not only the spouses but 
also any relatives or others who may be disposed to exer- 
cise any liberality towards them. 3 In fact the contract 

1 Ex parte Orford [1920] C.P.D. 367. Recent cases. Ex parte 
Young [1938] E.D.L. 300 (leave refused); Ex parte Karbe [1939] 
W.L.D. 351 (granted); Ex parte Witz [1941] W.L.D. 74 (granted); 
Ex parte Bajie, 1941 (2), P.H. B. 66 [W.L.D.] (granted); Ex parte 
Evans, 1942 (2), P.H. B. 73 [O.P.D.] (granted); Ex parte Chater 
[1942] O.P.D. 106 (refused); Ex parte Jaffar, 1944 (1), P.H. B. 30 
[C.P.D.] (granted). 2 Voet, 23. 4. 2 and 4. 

3 Voet, 23. 4. 10-11. 



MARRIAGE 75 

often serves a double purpose: first, its obvious one, to 
exclude or modify the incidents of marriage at the common 
law; and secondly, to regulate the devolution after the 
death of one or both of the spouses of the property con- 
tributed to the marriage. In this latter event the contract 
plays the part of what in English Law is called a marriage 
settlement. 

Generally speaking, any condition may be introduced What 
into a marriage contract provided that it is not contrary ^ ms be 
to law or good morals. 1 Some stipulations are disallowed inserted. 
as contrary to the legal nature of marriage ; for example a 
provision that donations shall be permitted or legacies not Certain 
permitted between the spouses. 2 Provisions to the effect: ^f^re 
that the husband shall not change his domicile without his not per- 
wife's consent ; 3 or that the husband shall not represent m 
his wife in Court, but that she shall have a persona standi 
of her own, 4 though condemned by Voet, are allowed by 
Van der Keessel. 5 The last of these indeed is so far from 
being open to objection at the present day, that where 
there is exclusion of community and of the marital power, 
the wife has as full capacity to appear in Court, whether 
as plaintiff or defendant, as if no marriage had taken place. 6 

A stipulation that a wife shall share in profits but not 
in losses, though condemned by Grotius, 7 is in Van der 
Keessel's 8 opinion free from objection. 

To undertake a detailed discussion of the various ante- Permitted 
nuptial stipulations which may be made is beyond our 



scope. We shall indicate, however, the principles which into cer- 
govern the interpretation of such agreements, and mention fi ne d 

classes. 

1 Voet, 23. 4. 19; V.d.K. 228; V.d.L. 1. 3. 4. 

2 Voet, ubi sup. ; Hall v. Hall's Trustee (1884) 3 S.C. 3. 

8 Voet, ubi sup. and 5. 1. 101. See Webber v. Webber [1915] A.D. 
at p. 241. 

4 Voet, ubi sup. and 5. 1. 14-15. 

6 V.d.K. 228 and Dictat. ad Gr. 2. 12. 3; Lee, Commentary, 
p. 107. 

6 Boyes v. Versigman [1879] Buch. 229. Infra, p. 81. 

7 Gr. 2. 12. 9; Neostad., de pact, antenupt. Obs. 21 (in notis). 

8 V.d.K. 249; for, as he says: creditoribus etiam nihil nocet, 
cum lucrum intelligi nequeat, nisi damno prius deducto. 



76 THE LAW OF PERSONS 

the objects aimed at and the effect produced. So far as 
they are directed to the modification or exclusion of the 
common law they fall into well-defined groups according 
as the exclusion is more or less complete ; and in this con- 
nexion it must be remembered that antenuptial contracts 
are strictly construed, and that the presumption is in 
favour of the continuance of the common law in all cases 
where its exclusion is not clearly expressed or implied. 1 

The consequences of marriage in community have been 
seen to be mainly two: viz. community of goods (which 
extends not only to goods brought into the marriage, but 
also to subsequent acquisitions 2 and profits), and the mari- 
tal power. Any or all of these consequences may be ex- 
cluded by antenuptial contract. Thus the parties may: 
ofnar- ]_ Exclude () community in respect of goods brought 

rower or i M. j -, ,, N 

wider into the marriage, leaving it unimpaired as regards (6) 
extent. postnuptial acquisitions, (c) profit and loss, and (d) the 
marital power. Such is the effect of a stipulation which 
does not exclude community of goods in terms, but pro- 
vides that ' the goods brought into the marriage shall re- 
turn to the side whence they came'. 3 

2. Exclude community of goods, whether (a) brought 
into the marriage, or (6) after-acquired (other than 'pro- 
fits'), leaving unimpaired (c) community of profit and loss, 
and (d) the marital power. 

3. Exclude community of goods whether (a) brought 
into the marriage, or (6) after-acquired (not being profits), 
and (c) community of profit and loss, leaving only (d) the 
marital power. 

4. Exclude all community (a), (6), and (c) and the mari- 
tal power (d) as well. 4 

1 Gr. 2. 12. 11; V.d.K. 251. Van der Linden (1. 3. 4) gives 
the clauses in common use in his time. See Burge, vol. iii, pp. 443 ff. 
(1st ed. vol. i, pp. 321 ff.). 

2 By 'subsequent acquisitions' is here meant 'subsequent 
acquisitions' not referable to the head of profits. This will be 
explained below. 

8 Voet, 23. 4. 46. 

4 A writer in 29 S.A.L.J. (1912) 37 criticizes the phrase 
'exclusion of the marital power', and says 'It is certain that the 



MARRIAGE 77 

In speaking of the legal consequences of marriage (p. 68, In ante- 
supra) we used the phrase ' community of goods ' in the contracts 
sense of the universal community of the common law with 'corn- 
all its consequences. This exists independently of contract. g 00 ds' is 

But in antenuptial contracts the phrase acquires a nar- contrasted 

Jr i with com- 

rower meaning, viz. community of goods whether (a) munity of 

brought into the marriage, or (6) after-acquired (other P^* and 
than 'profits'), but not (c) community of profit and loss. 
Accordingly, where community of goods (alone) is ex- 
cluded, the phrase is understood in the narrower sense, 
and community of profit and loss is tacitly reserved ;* and, 
conversely, where community of profit and loss is expressly 
reserved, community of goods (in the narrower sense) is 
tacitly excluded. 2 It is necessary, therefore, to determine 
with some precision the meaning of 'profits' or 'acquests', The mean- 
as they are also called. Briefly, the phrase includes all^ ts ' ; 
postnuptial acquisitions, which the law does not attribute what the 
to one spouse alone. Thus it comprises: (1) the fruits 3 and 
other profits of property belonging to the community or 
to either spouse severally, whether originally brought into 
the marriage or acquired subsequently ; (2) profits accruing 
from the work, labour, industry, or skill of either spouse ; 4 
(3) official and other salaries; (4) rights under contracts 
concluded by the husband, or by the wife within the limits 
which the law allows; 5 (5) property purchased stante 
matrimonio with common moneys, 6 and even with the 
money (including proceeds of the sale of the property) of 

marital power . . . cannot be entirely excluded by an antenuptial 
contract '. The phrase, however, is now statutory (Administration 
of Estates Act, 1913, sec. 83 (2)), and means, I suppose, 'the 
marital power which the husband by law possesses over the pro- 
perty and the estate of his wife'. See Precedent of antenuptial 
contract, Appendix A. 

1 Gr. 2. 12. 11 ; Voet, 23. 4. 28. 2 Voet, ibid. 

3 Gr. 2. 12. 12; Voet, 23. 4. 32; Clement N.O. v. Banks [1920] 
E.D.L. 362 ; Muttunayagam v. Brito [1918] A.C. 895. The profits of 
goods subject to fideicommissum are included under the term 
'fruits' (Gr. 2. 11. 10); also the benefit of a usufruct. V.d.K. 253. 

4 Voet, ubi sup. 

6 Voet, 23. 4. 30 ; Sande, Decis. Fris. 2. 5. 6. 
6 Voet, 23. 4. 33. 



78 THE LAW OF PERSONS 

one of the spouses ; except that in the last case the matter 
must be adjusted between the spouses on the dissolution 
of the marriage. 1 

what it On the other hand, the term ' profits ' does not include : 
include. () property which became due to one or other of the 
spouses before marriage ; 2 (6) accessions (e.g. by alluvion 
or increased value or otherwise) to the separate property 
of husband or wife; (c) inheritances, legacies, or gifts 
accruing after the marriage to either spouse. 3 With regard 
to this last group difference of opinion existed whether it 
fell within the definition of 'profits' or not. Most jurists 
answered the question in the negative. Voet distinguishes 
according as such acquisitions are derived from strangers 
or from parents or relatives to whom there is a right of 
intestate succession. In his view, in the first case they are 
'profits', in the second not so. 4 It is with regard, more 
especially, to such acquisitions as these that it becomes 
important to determine whether an antenuptial contract 
falls within the second or the third of the four classes 
mentioned above. 

Community of profits involves also community of loss, 
so that if either of these is named the other is taken to be 
implied. 5 As between themselves, indeed, the spouses may 
make any terms they please, e.g. to share the profits, but 
to throw all the losses on the husband's estate. But such 

1 Voet, 23. 4. 35 ; i.e. the thing purchased is owned in common, 
but the spouse with whose money it was purchased is credited as 
against the other spouse with the money so expended. However, 
property purchased stante matrimonio will not become common if 
the husband intended to acquire it exclusively for himself or for 
his wife. V.d.K. 254. Clothes are a case in point. Van Leeuwen, 
4. 24. 14. See Bijnk. O.T, i. 727, where the question is discussed 
utrum res stante matrimonio pecunia dotali empta censenda sit 
dotalis necne. 

2 Voet, 23. 4. 39 ; e.g. bought before marriage, delivered after 
marriage. V.d.K. 254. 

3 Anton. Matthaeus, Paroemiae, no. 3 (Erfnis is geen winste) ; 
V.d.K. 252; Lee, Commentary, p. 113. 

4 Voet, 23. 4. 43. Matthaeus (ubi sup., sees. 4-7) is of the same 
opinion with regard to legacies, but holds that an inheritance never 
comes under the head of 'profit'. 

6 Gens. For. 1. 1. 12. 18; Voet, 23. 4. 48. 



MARRIAGE 79 

a clause will not avail against creditors who, where there 
is community of profits, are entitled, at all events, to 
enforce half the amount of their claim against the wife's 
estate. 1 What is 

The word 'losses' is no less wide in its appli cation than un der 
the word 'profits'. Without attempting a complete enum- 'losses', 
eration of possible cases of loss, it is enough to say that it 
includes commercial losses which do not attach to the 
separate property of one of the spouses only ; 2 and liabilities 
arising out of the postnuptial contracts of the husband, 3 
and of the wife so far as she is competent to contract. 4 
But the term 'losses' does not cover the antenuptial debts 
or liabilities of either spouse, 5 nor liabilities ex delicto, 6 
nor loss or deterioration of the separate property of either 
spouse ; 7 nor necessary expenses of an unusual character. 8 Various 

The above explanation will enable the reader to dis- 
tinguish the effect of a clause excluding community of 

1 Gens. For. 1. 1. 12. 11. 

2 Voet, 23. 4. 49. 3 V.d.K. 93. 

* Arntzenius, Inst. Jur. Civ, Belg. 2. 4. 26. 

5 Voet, 23. 4. 50. 

6 In other words, the joint estate is not chargeable, as between 
the spouses, with pecuniary liabilities arising ex delicto. See Boel 
ad Loen., no. 103, p. 670 ; V.d.K. 94, 225, and Lorenz ad V.d.K. 94 ; 
Nathan, Common Law of S.A., vol. iii, pp. 1547-8; infra, p. 339. 
See also Sande, Decis. Fris. 2. 5. 8; Voet, 23. 2. 56. It is not 
clear that the exclusion of liability goes beyond fines, forfeitures, 
&c., of a penal character, and extends to what we now call delicts. 

7 Voet, 23. 4. 49 ; V.d.K. 257 ; Vervolg op de Holl. Cons. vol. ii, 
no. 19 (contra, no. 33, in special circumstances) ; unless the loss or 
deterioration in question is imputable to the fault of the other 
spouse. Voet, 24. 3. 21. Useful and voluptuary expenses incurred 
by one spouse in respect of the other's property must be made good 
so far as the property is found at the dissolution of the marriage to 
have been thereby increased in value. Voet, 25. 1. 3-4; V.d.K. 
257, non obstante Gr. 2. 12. 15. Any excess of value over outlay 
is reckoned as profit and accrues to the joint account of the spouses, 
if community of profits is not excluded. Voet, ibid. 

8 Impensae necessariae graviores. Voet, 25. I. 2; V.d.K., ubi 
sup. Necessary expenses are such as are required to preserve 
property from depreciation. Useful expenses increase the value of 
the property, though their omission would not render it less valu- 
able. Voluptuary expenses add to its amenity, but do not render 
it more profitable speciem ornant non fructum augent. Voet, 
25. 1. 1-4; Lechoana v. Cloete [1925] A.D. at p. 547. 



80 THE LAW OF PERSONS 

antenup- goods only (class 2, supra], and of a clause excluding both 
tract^'dis- community of goods and also community of profit and 
tinguished loss (class 3, supra). The effect of a clause excluding com- 
as jega s mun ^y Q f g OO( j s only is that the spouses are not liable 



effects. to creditors for each other's antenuptial debts. 1 On dis- 
clusion of solution of marriage each of them is credited as between 



r themselves with what he or she brought into the marriage, 2 

munity of 

goods' plus his or her subsequent acquisitions not being 'profits', 
y; plus half the net balance, if any, of profits over losses. 
Each of them is debited with half the net balance, if 
any, of losses over profits, 3 and by consequence with half 
the outstanding postnuptial debts. All this as between the 
spouses. The creditors may, if they please, recover the 
whole of their claim from the husband, in which case he has 
the right of recourse against his wife to the extent of half. 
They may also, if they choose, after the husband's death 
recover one-half, but not more, directly from the wife. 4 

But a creditor who proceeds against the wife must aver 
and prove that the claim has been duly lodged with the 
person charged with the administration and distribution 
of the common estate and has not been satisfied. 5 

If during the marriage the husband has applied his 
wife's property in paying his own antenuptial debts, the 
money so applied constitutes as between the spouses a first 
charge 6 upon the net balance, if any, of profits over losses ; 
that is to say, the wife is first credited with it, and the 
remainder of such balance is then divided between the 
spouses. The wife cannot claim repayment until all post- 
nuptial creditors have been fully satisfied. 7 

1 Voet, 23. 4. 50 (because postnuptial debts count as 'damnum', 
antenuptial not) ; V.d.K. 255. 

2 Gr. 2. 12. 14; Voet, 23. 4. 31; V.d.K. 256. 

3 Voet, 23. 4. 48. 4 Gr. 1. 5. 22. 

6 Faure v. Tulbagh Divisional Council (1890) 8 S.C. 72 ; and see 
Sichel v. De Wet (1885) 5 E.D.C. 58. 

6 Voet, 23. 4. 50. Voet says that in the absence of provision 
to the contrary, the wife's property may stante matrimonio be 
taken in execution for the husband's antenuptial debts. Van der 
Keessel (Th. 255) dissents. But if done by the husband's direction 
it seems to be a logical consequence of the marital power. 

7 Voet, 24. 3. 21. But she may resume such of her property as 



MARRIAGE 81 

The effect of a clause excluding community both of (b) exclu- 
goods and of profit and loss is that the spouses are not com- 
liable to creditors for each other's debts, ante- or post- munity of 
nuptial. 1 On dissolution of the marriage each of them is ofprofiT 
credited with what he or she brought into the marriage, andlos s; 
plus subsequent acquisitions from all sources whatever. 

Lastly, by the exclusion of community of goods and of (c) exclu- 
profit and loss and of the marital power (class 4, supra) 81on of 
a wife is, as regards her property, in the same position as munity of 
if the marriage had not taken place. 2 She may contract, of profit 
and, according to modern practice, sue and be sued in. her and loss 
own name. If the husband has alienated her property mar ital 
without her consent she may vindicate it from the alienee. 3 P wer - 
From what has been said it is evident that nothing short Present 
of the exclusion of all community and of the marital power day ,. 

practice. 

affords a married woman an adequate protection against 
her husband's liabilities, and this is in fact the only form 
of antenuptial contract in use at the present day. A 
woman is either married in community or stipulates for 
the completest freedom. 4 

The antenuptial pacts above described have all been 
directed to the exclusion or modification of the common 

exists in specie on the dissolution of the marriage, subject to the 
obligation of satisfying postnuptial creditors pro semisse. Neostad., 
de pact, antenupt. Obs. 9, note A ; and the husband is not entitled 
to deduct expenses. Van Leeuwen, 4. 24. 13. 

1 Except that the wife is liable even soluto matrimonio to 
creditors pro semisse in respect of debts for household expenses 
contracted by her husband (Voet, 23. 4. 52 ; Van Leeuwen, 4. 24. 3 ; 
Neostad., de pact, antenupt. Obs. 9, note (d)), with a right of 
regressus against the husband. V.d.K. 99. See Appendix D. 

3 Kent v. Salmond [1910] T.S. at p. 642. So where the wife 
reserved to herself free control over her property 'as fully and 
effectually as if no marriage had taken place '. Ruperti's Trustee v. 
Ruperti (1885) 4 S.C. 22. But a proviso that the wife shall retain 
and possess all her estate as fully and effectually as if the marriage 
did not take place does not exclude the marital, power. ' "Possess" 
is not equivalent to "control".' Salz v. Waiggowsky [1919] W.L.D. 
90; Du Toit v. Renison [1939] E.D.L. 101. 

3 Voet, 23. 4. 21 and 23. 5. 7. 

4 Approximately 70 per cent, of the European marriages in the 
Union are still in community. The proportion of 'free' marriages 
would no doubt be higher but for the cost of executing and 
registering the contract. 

4901 n 



82 



THE LAW OF PERSONS 



Marriage 
settle- 
ments. 



Morgen- 
gave. 



Provisions 
of the 
Perpetual 
Edict of 
October 4, 
1540, 
Art. 6. 



law consequences of marriage. It remains to speak of 
stipulations of another kind, namely, those which may be 
described as 'settlements'. Under this head may be in- 
cluded: (1) gifts made to one or other of the spouses, but 
more especially to the wife, either by the husband or by 
some third party, and taking effect immediately upon the 
conclusion of the marriage ; (2) contracts whereby the wife 
or husband is to receive something by way of gift at some 
future date, usually upon the death of the other spouse ; 
(3) provisions regulating the devolution of the property 
brought into the marriage (or part of it) upon the dissolu- 
tion of the marriage by death. 

To gifts of the first kind the Dutch Law gave the name 
of 'morgengave', a term applied originally to a gift by the 
husband to the wife on the morning after marriage. 1 A 
provision which took effect on the death of the husband or 
wife was known as 'douarie'. 2 Prima facie there is no legal 
objection to any such gift. The antenuptial pact which 
creates it is, at all events, binding upon the spouses. If 
made by third parties to either spouse, or by the wife to 
the husband, or by the husband so as to confer rights on 
the issue of the marriage, it would by the Dutch common 
law be good against creditors. But when a husband made 
a gift or promised a douarie to his wife the law was other- 
wise ; for by statutory enactment her claim in this regard 
was only allowed to take effect when her husband's credi- 
tors had been satisfied. The law on this subject was con- 
tained in the Perpetual Edict of Charles V of October 4, 
1540, Art. 6, which runs as follows: 3 

'Item, whereas many merchants take upon themselves to 
constitute in favour of their wives large dowers and excessive 
gifts and profit on their goods, as well in order to contract a 
marriage as to secure their goods with their aforesaid wives 

1 Wessels, p. 463. Boey (Woordentolk) says: 'Morgengaav is 
een gift die de Bruidegom aan de Braid gewoon is te doen des 
anderen daags naa 't voltrokke huwelyk als een belooning van 
haer Maagdom.' V.d.K. 258. 

8 V.d.K. 259; V.d.L. 1. 3. 4; Wessels, ubi sup. 

3 1 G.P.B. 316. 



MARRIAGE 83 

and children, and thereafter are found unable to pay and 
satisfy their creditors, and wish their wives and widows to be 
preferred before all creditors, to the great injury of the course 
of commerce : We will and ordain that the aforesaid wives, who 
henceforth shall contract marriage with merchants shall not 
pretend to, have, or receive any dowry (douarie) or other 
profit on the goods of their husbands, or take part or portion 
in the profits made by the said husbands or during their 
marriage [sic], although they may have been inherited or given 
in feud, 1 until such time as all the creditors of their aforesaid 
husbands shall have been paid or satisfied ; whom we will in 
this matter to be preferred before the aforesaid wives and 
widows, saving to the latter their right of preference, to which 
they are entitled by reason of their marriage portion brought 
by them into the marriage or given to them or coming to them 
by succession from their friends and relatives.' 2 

The effect of the Placaat was: (1) that, in general, no Its effect. 
antenuptial contract could secure to a wife any property 
of the husband in competition with creditors ; but (2) that, 
if she was content, by antenuptial contract, to forgo all 
advantage from the husband's estate, she might keep her 
own property secure and unimpaired and enjoy in respect 
of it a preference over creditors and a hypothec over her 
husband's goods. 3 But she could not have it both ways. If 
she claimed to benefit financially by the marriage, she 
must also take her share in its burdens. In order to secure 
her property against creditors it was necessary that she 
should be content to keep her estate entirely distinct from 
that of her husband. 

It must be observed, that though the Placaat speaks of 
'merchants', it was never held to be so limited in its 
application. 4 

If the practice before the passing of this measure oper- 
ated in prejudice of creditors, the enactment has in modern 
times been thought to be unduly oppressive to married 
women. 5 Accordingly, the law was in some of the colonies 

1 Al waer 't soo dat sy ghe-erft oft beleent waren. 

2 See In re Insolvent Estate Chiappini [1869] Buch. 143, where 
the Dutch text is given. 8 Infra, p. 197. 

4 V.d.K. 262. B Wessels, History, p. 464. 



84 



THE LAW OF PERSONS 



Legisla- 
tion on 
marriage 
settle- 
ments in 
South 
Africa. 



Stipula- 
tions with 
regard to 
rights of 
succession 
upon 
death. 



altered by legislation in the direction of securing the 
validity of settlements. Thus in the Cape Colony the sixth 
article of the Perpetual Edict was repealed by Act 21 of 
1875, which substituted other provisions in its place. 1 It 
was withdrawn from operation in all the Provinces of the 
Union by sec. 1 of the Insolvency Act, 1916, and now the 
Insolvency Act, 1936 provides: 

Sec. 27. No immediate benefit under a duly registered 
antenuptial contract given in good faith by a man to 
his wife or any child to be born of the marriage shall 
be set aside as a disposition without value, unless that 
man's estate was sequestrated within two years of 
the registration of that antenuptial contract. 
An 'immediate benefit' shall mean a benefit given by a 
transfer, delivery, payment, cession, pledge, or special 
mortgage of property completed before the expiration 
of a period of three months as from the date of the 
marriage. 2 

Sec. 28 (2) excludes from a man's insolvent estate any 
policy or policies of life insurance, not being an imme- 
diate benefit as above defined, which a person before 
or during marriage has in good faith effected in favour 
of or ceded to or for the benefit of his wife or child or 
both, at any time more than two years before the 
sequestration of his estate, but not beyond the amount 
of two thousand pounds, together with any bonus 
claimable in respect thereof. 3 

Closely akin with, and sometimes indistinguishable from, 
the settlements described in the preceding paragraphs are 
pacts relating to future succession. 4 These, as pointed out 
by Voet, may relate either: (1) to the succession of the 

1 It was repealed in O.F.S. by Law No. 23 of 1899, sec. 4, but 
remained in force in the Transvaal and Natal. Declared to have 
no operation in Ceylon by Ord. No. 15 of 1876, sec. 23. 

2 See Mars, The Law of Insolvency, pp. 199 ff. 

8 See also the Insurance Act, no. 37 of 1923, sees. 23 ff. and 
45 S.A.L.J. (1928), p. 190, where the effect of these statutes is 
considered. 

4 Voet, 23. 4. 57 (sec. 58 in the Paris ed. In the folio ed. sec. 57 is 
duplicated). 



MARRIAGE 85 

spouses to each other j 1 or (2) to the succession of a third 
party to the spouses ; 2 or (3) to the succession to the chil- 
dren of the marriage (particularly in the event of their 
dying in childhood and therefore intestate) ; 3 or (4) to the 
succession to a third person who has become a party to 
the antenuptial contract. 4 Such agreements, though con- 
demned by the Roman Law, were permitted by the law of 
Holland, if they formed part of an antenuptial settlement, 5 
but not of any other act inter vivos* 

This brings us to another topic. How far, if at all, can Can ante- 
antenuptial contracts be revoked or modified by the sub- contracts 
sequent act of one or more of the parties ? By act inter be re- 
vivos they cannot be altered at all ; 7 by testament, within n ^ 0( iifi e ( d 
limits, they may, provided such an intention is clearly by the 
expressed or implied by the will. 8 Of course, if property 
has been contributed to the marriage by a parent or other 
third party with an added provision that it is to revert to 
the giver or to go to another specified person, it cannot 
be affected by the testamentary dispositions of the 
spouses. 9 When the question relates to property brought 
into the marriage by the spouses, and the antenuptial con- 

1 V.d.K. 236-8. 2 V.d.K. 239-40. 

3 V.d.K. 241-3. 4 V.d.K. 244-6. 

6 Voet, 2. 14. 16. 

6 Voet, 23. 4. 59 (60); infra, p. 241. 

7 Neostad., de pact, antenupt. Obs. 4 (in notis) ; Voet, ubi sup. ; 
V.d.K. 264. Ex parte Smuts [1914] C.P.D. at p. 1037; Union 
Oovt. v. Larkan [1916] A.D. at p. 224 per Innes C.J. Note, 
however, that 'the authorities do not lay down that upon 
good cause being shown the parties cannot obtain an altera- 
tion or revocation of their antenuptial contract through a judg- 
ment of the Court. . . . Antenuptial contracts are not so 
irrevocable that their provisions cannot upon just grounds appear- 
ing to the Court be by it annulled or departed from.' Ex parte 
Smuts, ubi sup. ; Ex parte Craggs [1915] T.P.D. 385 ; Ex parte De 
Wet [1921] C.P.D. 812; Ex parte Williams [1924] E.D.L. 325; 
Ex parte Board [1926] C.P.D. 201 ; Ex parte Bennet [1926] C.P.D. 
436 ; Ex parte Mouton [1929] T.P.D. 406 ; Ex parte Coetzee 1930 (1) 
P.H., B. 5 [O.P.D.]. But see Ex parte Balsillie [1928] C.P.D. 218; 
Ex parte Sills [1928] E.D.L. 278. 

8 Voet, 23. 4. 60 (61); Holl. Cons. iii. 185 (Grotius); Union 
Oovt. v. Leask's Exors. [1918] A.D. at p. 449. 

9 Voet, 23. 4. 61 (62). Secus if it is merely to revert 'to the side 
whence it came '. 



86 THE LAW OF PERSONS 

Only by tract has provided for the succession of one to the other, 
w iu alteration or revocation by will is permitted, but it must 

be a mutual will of the spouses. Further, such a will is 
merely 'ambulatory' in effect, i.e. revocable at any time 
before death. Therefore, either spouse may by a subse- 
quent will, without the concurrence or even knowledge of 
the other, revoke so much of the joint will as concerns 
himself or herself alone and revert to the dispositions con- 
tained in the original contract. Indeed, even after the 
death of the first spouse, the survivor has the same right 
of repudiating the joint testament, conditionally, however, 
upon declining all benefit under it. 1 When the spouses 
have by antenuptial contract provided that some third 
person or persons shall succeed to the several shares on the 
dissolution of the marriage, both spouses by mutual will 
or either spouse by his or her separate will may freely 
depart from this agreement. 2 But the law is otherwise if 
the intended successor was a party to the antenuptial 
contract and acquired a contractual right under it. 3 
When the future succession to children was the subject of 
the antenuptial pact, in Holland not only might the 
spouses (or the survivor of them) alter the arrangement by 
testament, but the children, having reached the age of 
testamentary capacity, might do the like after their 
parents' death. They might also freely alienate the pro- 
perty by act inter vivos. This must be understood, of 
course, only where there was no fideicommissum in favour 

1 Voet, 23. 4. 62 (63); Van Leeuwen, 4. 24. 12; V.d.K. 265; 
Bijnk. O.T. i. 341 ; Vervolg op de Holl. Cons. ii. 80 ; infra, p. 392. 

2 Voet, 23. 4. 63 (64). Note the distinction between this case, 
and the case mentioned above, providing for the succession of 
the spouses inter se. This is binding as a contract, revocable 
only by mutual consent (Ex parte Exors. Est. Everard [1938] 
T.P.D. 190; Bullv. Executrix Est. Bull [1940] W.L.D. 133). But 
a clause providing for the succession of a third party has merely 
the effect of a testamentary disposition, 'cum in ordinandis 
successionibus pacti non sit major vis quam testamenti', Bijnk. 
O.T. ubi sup. 

8 Voet, 23. 4. 64 (65). A tendency has recently developed to 
regard the intended successors, e.g. children, born or unborn, as 
acquiring rights as beneficiaries of a stipulatio alteri. Ex parte 
Balsillie [1928] C.P.D. 218; Ex parte Sills [1928] E.D.C. 278. 



MARRIAGE 87 

of ulterior successors. 1 When a third person has become 
a party to the contract and has undertaken to leave his 
own property in a particular way, such undertaking has 
the force of a contract, and can only be revoked with the 
consent of the other parties to the agreement. 2 

SECTION 5 DISSOLUTION OF MARRIAGE NULLITY 
Divorce a vinculo matrimonii is decreed by the Court Divorce a 
at the suit of one or other spouse on the ground of: ^tri- 
(1) adultery; 3 or (2) malicious desertion; 4 to which some monii. 
authorities, by an extensive interpretation, add (3) sodo- 
my; 5 and (4) perpetual imprisonment. 6 Relief will be 
refused if the Court finds that : (a) the petitioner has during 
the marriage been accessory to or connived at the adultery 
complained of; 7 or (b) the petitioner has condoned the 
adultery complained of; 8 or (c) the petition is presented or 
prosecuted in collusion with either of the respondents ; 9 
and is usually refused (d) if the Court finds that the peti- 
tioner has been guilty of adultery during the marriage. 10 

1 Gr. 2. 29. 3; Voet, 23. 4. 66 (67). 

2 Voet, 23. 4. 67 (68). 

3 Gr. 1. 5. 18; Van Leeuwen, 1. 15. 1 ; Voet. 24. 2. 5. 

4 Voet, 24. 2. 9; Webber v. Webber [1915] A.D. 239; Morton v. 
Morton [1934] C.P.D. 51; Ledimo v. Ledimo [1940] O.P.D. 65; 
(Ceylon) Ramalingam v. Ramalingam (1933) 35 N.L.R. 174. 

6 Schorer ad Gr. ubi sup. ; V.d.K. 88; V.d.L. 1. 3. 9; McGill v. 
McOill [1926] N.P.D. 398. 

6 V.d.K. 89; V.d.L. loc. cit. ; Jooste v. Jooste (1907) 24 S.C. 329; 
Smith v. Smith [1943] C.P.D. 50; but not on the ground of an 
indeterminate sentence (Voeges v. Voeges [1922] T.P.D. 299), or 
of a sentence of ten years' imprisonment, five years of which had 
expired, In re Gibson [1912] N.P.D. 204; where see comment on 
Jooste' s case. 

7 Hosier v. Hosier (1896) 13 S.C. 377; Bevan v. Bevan [1908] 
T.H. 193. 

8 Bell v. Bell [1909] T.S. 500; Rowe v. Rowe [1922] W.L.D. 43; 
Elliott v. Elliott [1925] C.P.D. 286; C. v. C., 1943 (1) P.H., B. 26 
[E.D.L.]; Henderson v. Henderson [1944] A.C. 49. 

9 Malcolm v. Malcolm [1926] C.P.D. 235. 

10 Voet, 24. 2. 6 ; Newood v. Newood [1939] C.P.D. 414; Mutter v. 
Mutter [1941] C.P.D. 332. The Court has discretion to condone 
plaintiff's adultery, but plaintiff must present a very strong case, 
Chong v. Chong [1942] C.P.D. 192 ; Fernandez v. Fernandez [1943] 
C.P.D. 363 ; Brownjohn v. Broumjohn 1944 (1) P.H., B. 15 [W.L.D] ; 
Zelie v. Zelie [1944] C.P.D. 209. 



88 THE LAW OF PERSONS 

Undue delay in taking proceedings may justify the 
inference that the adultery has been condoned, but is not 
in itself a ground for withholding relief. 1 

The Divorce Laws Amendment Act, 1935, adds two 
further grounds of divorce, viz. (5) incurable insanity 
which has continued for a period of not less than seven 
years ; 2 and (6) imprisonment for not less than five years 
after the prisoner has been declared an habitual criminal 
under Act No. 31 of 1917, sec. 344. 3 

It must be noted that cruelty is not in South Africa (as 
it now is in England) 4 a ground for a decree of divorce, but 
is an element to be taken into account in determining 
whether the conduct of the defendant amounts to what is 
called constructive desertion. 5 

When an action is brought for divorce on the ground of 
malicious desertion the practice is to ask for an order for 
restitution of conjugal rights, failing which for divorce. 6 
The Court has no power to dispense with the preliminary 
order. 7 

1 Carey v. Carey [1931] C.P.D. 465. 

2 In English Law five years. Matrimonial Causes Act, 1937, 
sec. 2. In S. Rhodesia five years within the ten years immediately 
preceding the commencement of the action for divorce. Matri- 
monial Causes Act, 1943, sec. 4. 

8 S. Rhodesia for five years within the last ten years. Ibid. 

4 And in S. Rhodesia. Ibid. 

6 i.e. conduct on the part of either spouse compelling the other 
to go away. 44 S.A.L.J. (1927), p. 32; Whelan v. Whelan [1925] 
W.L.D. 162; Solomon v. Solomon [1927] W.L.D. 330; Otto v. Otto 
[1930] W.L.D. 251; O'Brien v. O'Brien [1938] W.L.D. 221; 
Collins v. Collins [1939] W.L.D. 48; Post v.Po[1931]N.P.D. 117. 
Persistent refusal to cohabit. Quadlingv. Quadling [1937] N.P.D. 
319. 

6 Cape Rules of Court, 371 (Ingram and de Villiers, p. 98). 

7 Aldred v. Aldred [1929] A.D. 356. The order will be made even 
though defendant is detained in prison or in an inebriate reforma- 
tory (Coningsby v. Coningsby [1923] C.P.D. 443; Van der Nest 
v. Van der Nest [1925] W.L.D. 12; Sauerman v. Sauerman [1928] 
C.P.D. 20) ; but will not necessarily be followed by a decree of 
divorce (Hayes v. Hayes [1928] T.P.D. 618). A statement by a 
plaintiff, who asks for an order of restitution, that even if the 
defendant complies with the order he [she] will not receive back, 
or go back to, the defendant is not in itself a ground for refusing 
the order. It is a case in which the Court will exercise its dis- 
cretion. Mitchell v. Mitchell [1922] C.P.D. 435; VanRooyenv. Van 



MARRIAGE 89 

In Natal a petition for divorce is not maintainable until 
desertion has continued uninterruptedly for eighteen 
months, 1 and there are other peculiarities in the divorce 
law of this Province. 2 In the other Provinces 'length of 
absence, although an ingredient in the case is not essential, 
the Cape Supreme Court having in one case granted a 
divorce after an absence of only six days'. 3 In England 
a petition for divorce may be presented to the High Court 
on the ground that the respondent has deserted the 
petitioner without cause for a period of at least three 
years immediately preceding the presentation of the 
petition. 4 

The guilty party to a divorce is penalized by loss of all 
the advantages of the marriage, whether arising from 
community of goods or from antenuptial contract, includ- 
ing all benefits derived or to be derived from the marriage 
by the guilty party, 5 and the Court has no discretion to 
refuse such an order, if demanded by the injured spouse. 6 

Rooyen [1927] C.P.D. 266; Murchie v. Murchie [1923] S.R. 116; 
Duncan v. Duncan [1937] A.D. 310. As to malicious desertion in 
general see 41 S.A.L.J. (1924), p. 38. 

1 Law No. 13 of 1883 sec. 1 ; Breeds v. Breeds [1929] N.P.D. 122. 

2 Mitchell v. Mitchell, ubi sup. at pp. 443-4. 

8 1 Maasdorp, p. 106, citing Mostert v. Mostert (1854) 2 Searle 
128 and Brown v. Brown [1905] T.S. 415. 

4 Matrimonial Causes Act 1937, sec. 2; Bennett v. Bennett 
[1939] P. 274. In S.Rh. a final order of divorce on this ground 
may not be granted unless three years have elapsed since the date 
of the marriage, and desertion has been continuous for six months. 
For Ceylon see Goonewardene v. Wickremasinghe (1932) 34 N.L.R. 5 ; 
Ramalingam v. Ramalingam (1933) 35 N.L.R. 174. 

6 V.d.K. 88; Dawson v. Dawson (1892) 9 S.C. 446; Wessels v. 
Wessels (1895) 12 S.C. at p. 470. When forfeiture is asked for the 
proper order is division of the joint estate and forfeiture of all 
benefits accruing from the side of the plaintiff by virtue of the 
marriage in community ; which means that the defendant's 
moiety will be reduced, and the plaintiff's moiety increased, by 
any excess that the plaintiff may have contributed over the 
contribution of the defendant. Contributions made during the 
marriage are taken into account including the result of industry 
and investment as well as benefactions from third persons. Smith 
v. Smith [1937] W.L.D. 126 per Schreiner J. citing Ogle v. Ogle 
[1910] N.P.D. 87 and other cases. 

6 Murison v. Murison [1930] A.D. 157. Secus in S.Rh. Matri- 
monial Causes Act, 1943, sec. 7. 



90 THE LAW OF PERSONS 

But the Court will not deprive the guilty party of the share 
of the joint estate which he or she may have contributed. 1 
The innocent spouse is as a general rule entitled to the 
custody of minor children, but the Court has a wide dis- 
cretion and may grant the custody to the guilty party if 
the welfare of the children requires it. 2 The spouse who 
is not awarded the custody has a right of reasonable access 3 
and may invoke the Court's intervention if it is alleged 
that the right of control is not being exercised in the 
interest of the children. 4 

The Court (semble) has no power to order a guilty husband 
to maintain an innocent wife who has obtained a decree 
of divorce against him. 5 

Divorced persons are free to marry again subject only 
to statutory restrictions on marriage with a divorced wife's 
sister and a divorced husband's brother. 6 

Prolonged In general, no absence of one of the spouses, however 
lce> prolonged, entitles the other spouse to contract another 
marriage, even though for purposes of administration the 
Court may have presumed the absent spouse's death. 7 
If the other spouse re -marries, there is always the risk 
that the marriage may be pronounced invalid in the event 

1 Celliers v. Celliers [1904] T.S. 926; (Ceylon) De Silva v. 
De Silva (1925) 27 N.L.R. 289. 

2 Cronje v. Cranje [1907] T.S. 871; Klass v. Klass [1924] 
W.L.D. 136; Cook v. Cook [1937] A.D. 154. 

3 Lecler v. Grossman [1939] W.L.D. at p. 44 per Schreiner J. 

4 Simleit v. Cunliffe [1940] T.P.D. 67. 

6 Schultz v. Schultz [1928] O.P.D. 155; Taylor v. Taylor [1928] 
W.L.D. 215; (Ceylon) Ebert v. Ebert (1939) 40 N.L.R. 388; 
1 Maasdorp, p. 128. The order has, however, been made on several 
occasions. Toms v. Toms [1920] C.P.D. 455 ; Miller v. Miller [1925] 
E.D.L. at p. 126. The law of S.Rh. permits it. Matrimonial Causes 
Act, 1943, sec. 9. 

6 Appendix C. 

7 In re Booysen (1880) Foord 187. As to the circumstances in 
which the Court will make an order presuming death see In re 
Widdicombe [1929] N.P.D. 311. In In re Cuthbert [1932] N.P.D. 
615 a person had not been heard of for thirty years. The Court 
declined to presume his death, but authorized the Master to pay 
the children the shares which would have come to them ab 
intestato, conditionally upon their giving security de restituendo. 
For commorientes see Windscheid, i. 53; Ex parte Martienssen 
[1944] C.P.D. 139. 



MARRIAGE 91 

of the absent spouse's return. This was the law in Holland, 
with the qualification that the Court might with the con- 
sent of all the parties concerned declare the first marriage 
dissolved and permit the first husband to contract another 
marriage. 1 But for the Generaliteitslanden (that is the 
lands under the control of the States-General and not of 
any one of the Provinces) the Echt-ReglementofM.a,Tch 18, 
1656, sec. 90, allowed a spouse whose husband or wife had 
been absent for five years to apply to the Court for leave 
to re-marry. 2 It has been said that this enactment ' may 
fairly be said to have been incorporated into the common 
law of South Africa', 3 but whether this article in particular 
has been so incorporated remains undecided. 4 It will be 
remarked that this licence to re-marry does not proceed 
upon a presumption of death and is distinct from a decree 
of divorce on the ground of malicious desertion. 5 

Judicial separation a mensa et thoro is decreed by the Judicial 
Court on the ground of cruelty or other unlawful conduct tion. 
of the defendant rendering continued cohabitation dan- 
gerous or intolerable, 6 or of malicious desertion. 7 The 

1 Voet 23.2.99 in fin. ; Kersteman, Woordenboek sub voce 
Dissolutie; Lee, Commentary, p. 11. 

2 2 O.P.B. 2444. 

3 Supra, p. 27. 

4 See Est. Heinamann v. Est. Heinamann [1919] A.D. at p. 114: 
Ex parts, Kerkhof [1924] T.P.D. 711 ; 12 Cape Law Journal (1895), 
p. 165 ; Burge, 1st ed., vol. i, p. 151. 

5 This 1 appears clearly from the Ontwerp of 1920, sec. 422, 
which says that a marriage is determined by: 1. The absence of 
one of the spouses during ten years followed by another marriage 
of the other spouse consequent upon a judicial decree. 2. Divorce. 
3. Death. But in English Law the Court is now empowered 
(Matrimonial Causes Act 1937, sec. 8) in such circumstances to 
make a decree of presumption of death and of dissolution of the 
marriage. 

8 Gr. 1. 5. 20; Van Leeuwen, 1. 15. 3; Voet, 24. 2. 16; V.d.L. 
1. 3. 9; Wentzel v. Wentzel [1913] A.D. 55; Theron v. Theron 
[1924] A.D. 244 (pre-nuptial misconduct of such a character as 
to render cohabitation unbearable) ; Ainsbury v. Ainsbury [1929] 
A.D. 109; Cheek v. Cheek [1935] A.D. 336; Henry v. Henry [1935] 
C.P.D. 224; Allen v. Allen [1935] C,P.D. 557. 

7 Contrary to the practice when divorce is claimed on this 
ground, the decree may be granted absolutely, without a pre- 
liminary order for the restitution of conjugal rights. Johnstone v. 



92 THE LAW OF PERSONS 

result is to relieve the parties from the personal conse- 
quences of marriage, but not to dissolve the marriage. 
As regards the effect of such a decree upon the proprietary 
rights of the spouses the Dutch authorities are by no 
means agreed. 1 In the modern practice the matter is very 
much in the discretion of the Court. 'The marriage re- 
mains in force with all its consequences except in so far as 
any of them may be modified by the decree. . . . The 
Court may determine as many of the incidents of the 
marriage contract as the justice of the case requires.' 2 An 
order is usually made, if asked for, directing a division 
of the common estate, 3 or a rescission of any antenuptial 
promise which the innocent spouse may have made of a 
gift to take effect on his or her death, or at some other 
future date, conditionally, however, on renunciation by 
the innocent spouse of any corresponding advantage. 4 
The effect of such an order is to suspend the community, 
and to free either spouse from liability for the other's debts 
subsequently contracted. 5 Further, if the husband be- 
comes insolvent, the wife ranks as a preferred creditor for 
half of the common estate. 6 A decree of alimony for the 
wife lies in the discretion of the Court. 7 

Johnstone [1917] A.D. 292; Aldred v. Aldred [1929] A.D. 356; 
Duncan v. Duncan [1937] A.D. 310. 

1 Schorer ad Gr. 1. 5. 20 ; Voet, 24. 2. 17 ; V.d.K. 90 ; 1 Maasdorp, 
p. 88. 

2 Weasels v. Wessels (1895) 12 S.C. at pp. 470-1. 

8 But see Oerike v. Gerike (1900) 14 E.D.C. 113 ; Swart v. Swart 
[1924]N.P.D. 104. 

* Wessels v. Wessels, ubi sup. at p. 469 ; 1 Maasdorp, p. 89. 
Forfeiture will be decreed of benefits not yet accrued, but not of 
benefits already accrued such as a completed gift. Wessels v. 
Wessels, at p. 470; Muller v. Mutter [1929] W.L.D. 161; even 
though the contract has provided for the forfeiture of all benefits 
in the event of the spouses becoming separated or living apart. 
Gordon v. Gordon [1929] W.L.D. 165. 

6 Neale v. Neale (1903) 20 S.C. 198 ; Levin v. Levin [1911] C.P.D. 
1026; Vincent v. Vincent [1914] A.D. 379; Banks v. Clement N.O. 
[1921] C.P.D. 197. 

6 Luzmoor v. Luzmoor [1905] T.H. 74. 'To ascertain what this 
half share amounts to, the debts of the common estate up to the 
date of the order of the Court must, of course, be first deducted, 
and she will be entitled to half of what remains.' Per Smith J. 

7 Voet, 24. 2. 15; 24. 4. 18. 



MARRIAGE 93 

An order for separation is sometimes made in terms of Separa- 
a consent paper to which the spouses are parties. But a a ^ e _ y 
decree will not be granted unless there is evidence which ment. 
satisfies the Court that there are adequate grounds for the 
separation. 1 The better view seems to be that an extra- 
judicial agreement to live apart has no legal effect, unless, 
perhaps, to exclude an action for restitution of conjugal 
rights until the agreement has been annuUed by a com- 
petent Court. 2 But if such agreement has been made for 
just cause, or if the Court has decreed a separation a mensa 
et thoro without giving any direction as to property, an 
incidental or subsequent agreement may be approved by 
the Court at the instance of the parties or in later conten- 
tious proceedings, although it involves a donation be- 
tween the spouses or an alteration of their proprietary 
relations. Just cause means a cause which at the time of 
the agreement would have been sufficient to ground a 
decree for judicial separation. 3 Until such agreement is 
absorbed in a decree of judicial separation it is effective 
only inter partes. It does not affect the rights of creditors. 4 

There is, no doubt, some inconvenience in determining 
retrospectively, it may be many years later, whether a 
just cause existed at the time of the agreement to separate, 
and in some Transvaal cases the question has been ex- 
cluded as irrelevant. 5 Apparently, in this Province an 
agreement to separate is prima facie valid, and will be 
sustained, if, and so far as, it does not constitute a pro- 
hibited donation between spouses 6 or purport to alter 
'the mutual proprietary relation whether of community 

1 Du Preez v. Du Preez (1901) 18 S.C. 438; De Villiers v. De 
Villiers [1920] C.P.D. 301. 

2 Botha v. Botha (1848) 1 Menz. 259; Stone v. Stone [1917] 
C.P.D. 143. 

3 V.d.K. 90; Albertus v. Albert' Exors. (1859) 3 Searle at pp. 
212-13 ; Ex parte Roscoe [1938] C.P.D. 126 ; Lobley v. Lobley [1940] 
C.P.D. 420. 

4 Voet, 24. 2. 19 ; Ziedeman v. Ziedeman (1838) 1 Menz. 238. 

6 Pugh v. Pugh [1910] T.S. 792; De Beer v. De Beer [1940] 
T.P.D. 230. 

6 Voet, 23. 4. 59 ; Albertus v. Albertus' Exors., ubi sup. at p. 212 ; 
Pugh v. Pugh, ubi sup. at p. 802. 



94 



THE LAW OF PERSONS 



Spes 

reconcili- 

ationis. 



The 
Court's 
power to 
recall a 
decree. 



of goods or the reverse fixed as at the time of marriage'. 1 
But it cannot be said that any consistent doctrine is yet 
established by the decisions. 2 

Perhaps the better view is that a judicial order of separa- 
tion must be set aside by the Court before either party 
can sue for a restitution of conjugal rights ; 3 that no order 
for restitution may be made during the subsistence of an 
extra-judicial agreement of separation ; and that claims for 
cancellation of the agreement and for restitution cannot 
be entertained in the same action. 4 

A decree of separation with or without division of pro- 
perty is always provisional, being made, as the phrase is, 
sub spe reconciliationis, in the hope that the parties will 
be reconciled and come together again. 5 This is why a 
South African Court refused to recognize a Scottish decree 
of separation expressed to take effect 'in all time coming'. 6 
If the spouses resume cohabitation the decree ceases to 
operate. 7 

The Court must recall a decree of separation if the 
parties desire it, 8 and may do so in its discretion for any 
sufficient cause. Thus, if one of the spouses has committed 
adultery and the innocent party desires a divorce, the 
Court has power to set aside a previous decree of separa- 
tion together with any order as to the division of the joint 
estate. This may be more advantageous to the innocent 

1 Per Murray J., De Beer v. De Beer at p. 233 ; V.d.K. Dictat. ad 
Gr. 3. 21. 11. 

2 Danovich v. Danovich's Exors. [1919] T.P.D. 198 is incon- 
clusive ; De Beer v. De Beer to some extent leaves the question open. 

3 De Kock v. De Kock [1942] O.P.D. 140 (Yeld v. Yeld [1919] 
C.P.D. 103 not followed). 

4 Groblerv. Grobler [1943] O.P.D. 192. See also judicial separa- 
tion, Smit v. Smit [1909] T.S. 1067; Slez v. Slez [1913] W.L.D. 
109 ; Grinker v. Grinker [1940] W.L.D. 236 voluntary separation, 
Stone v. Stone [1917] C.P.D. 143; Crisp v. Crisp [1934] W.L.D. 
26 ; Moses v. Moses [1935] C.P.D. 24. 

6 Schorer ad Gr. 1. 5. 20; Lee, Commentary, p. 20; Banks v. 
Clement N.O. [1921] C.P.D. 197; Vincent v. Vincent [1914] A.D. 
379; Levine v. Levine [1939] C.P.D. 97. 

6 McNaught v. McNaught [1937] W.L.D. 103. 

7 De Villiers v. De Villiers [1938] C.P.D. 565. 

8 VanZyl v. Van Zyl [1925] T.P.D. 130. 



MARRIAGE 95 

spouse, who is entitled to ask for an order of forfeiture 
by the guilty spouse of any proprietary benefits derived 
from the marriage. 1 

The Court will make a decree of nullity when the essen- Decree of 
tial conditions of a valid marriage are wanting and the n ' 
apparent 'marriage' was, therefore, void ab initio, or when 
the marriage is voidable at the suit of one of the parties 
to it or of a third party. 

In particular the following grounds of nullity may be 
specified : (1) mistake as to the nature of the ceremony, as 
for example when one of the parties supposed it to be a 
ceremony of espousals, not of marriage ; 2 (2) mistake as 
to the identity of the other party to the contract ; 3 (3) 
fraud or duress, if of a character to exclude genuine and 
free consent; 4 (4) insanity or arrested mental develop- 
ment existing at the time of the ceremony ; 5 (5) immaturity 
(one or other parties below the age of marriage) ; (6) rela- 
tionship within the prohibited degrees ; (7) serious irregu- 
larity in the publication of banns, the issue of a licence, or 
the celebration of the marriage ; 6 (8) if the marriage was 
bigamous. 7 

In the above cases the marriage is void ab initio. There 
are other cases in which the marriage is not void, but 
voidable, viz. (9) in case of impotency existing antece- 
dently to the marriage and since continuing ; 8 (10) in case 

1 Yeld v. Yeld [1919] C.P.D. 103 ; Levine v. Levine, ubi sup. 

2 Benjamin v. Salkinder (1908) 25 S.C. 512; Rubens v. Rubens 
(1909) 26 S.C. 617; Kanatopsky v. Kanatopsky [1935] E.D.L. 308. 

3 Voet, 23. 2. 6. Cod. jur. can. c. 1083. 

4 Cod. jur. can. c. 1087. For English Law see Scott v. Sebright 
(1886) 12 P.D. 21 ; Cooper v. Crane [1891] P. 369. 

6 Prinsloo's Curators v. Crafford [1905] T.S. 669; Cowan v. 
Beckworth, 1932 (1) P.H., B. 1 (D. & C.L.D.); Lange v. Lange, 
1945 (1) P.H., B. 8 [A.D.]. Voet adds (23. 2. 6) si quis dum nuptias 
contrahit per ebrietatem plane mentis impos sit. Cf. Sullivan v. 
Sullivan (1818) 2 Hagg. Con. at p. 246 per Lord Stowell. 

6 Foy v. Morkel [1929] W.L.D. 174. 

7 Wells v. Dean-Willcocks [1924] C.P.D. at p. 90. 

8 Voet 24. 2. 15 and 16; Wells v. Dean-Willcocks [1924] C.P.D. 
89; Hunt v. Hunt [1940] W.L.D. 55; (Ceylon) Ounatileke v. 
Mille Nona (1936) 38.N.L.R. 291 ; refusal to consummate, Burgers 
v. Knight [1916] N.P.D. 399. 



96 THE LAW OF PERSONS 

of antenuptial stuprum followed by pregnancy of the wife 
unknown to the husband at the time of marriage and not 
subsequently condoned ; x (11) at the suit of a parent when 
a minor has married without parental consent. 2 

SECTION 6 MISCELLANEOUS MATTERS RELATING TO 
MARRIAGE 

In this section we deal with various matters relating 
to marriage, not specially connected with one another. 
These are: (A) Donations between spouses; (B) Boedel- 
houderschap and continuation of community after the 
death of one spouse ; (C) Second marriages. 

A. Dona- (A) Donations between spouses. In the Roman Law 
tween *" sucn gifts were prohibited by custom, and were regulated 
spouses, by a senatusconsultum of A.D. 206. 3 The rule passed 
into the Roman-Dutch Law. 4 It follows that a spouse- 
donee has no dominium and cannot give a valid title to 
third parties. 5 But the prohibition does not affect reci- 
procal or remuneratory gifts 6 and must not be harshly 
and unreasonably construed so as to apply to simple 
offices of affection ; 7 and any gift between spouses if validly 

1 Voet, 24. 2. 15 ; Horak v. Horalc (1860) 3 Searle 389 ; Reyneke v. 
Reyneke [1927] O.P.D. 130; Slander v. Stander [1929] A.D. 349; 
supra, p. 33. 

2 Supra, p. 58. For the grounds of a decree of nullity in S.Rh. 
see Matrimonial Causes Act, 1943, sec. 12. 

3 Dig. 24. 1. land 32 pr. 

4 Gr. 3. 2. 9; Van Leeuwen, 4. 24. 14; Voet, 24. 1. 17; V.d.K. 
486; Hall v. Hall's Trustee & Mitchell (1884) 3 S.C. 3; Van der 
Byl's Assignees v. Van der Byl (1886) 5 S.C. at p. 176 ; Coulthard v. 
Coulthard [1922] W.L.D. 13; Henley's Trustee v. Henley [1926] 
N.P.D. 119. But there is no rule of law prohibiting contracts 
between husband and wife not amounting to donations. Ziedeman 
v. Ziedeman (1838) 1 Menz. 238 ; Albertus v. Albertus' Exors. (1859) 
3 Searle 202. See 'The validity of pacts between husband and 
wife' by Prof. H. D. J. Bodenstein, 34 S.A.L.J. (1917), p. 11 
(commented upon 46 S.A.L.J. (1929), p. 149). Donations between 
spouses are permitted in Ceylon. 6 Voet, 24. 1. 3. 

Voet, 24. 1. 10; Schorer ad Gr. 3. 2. 9;Exparte Bruton [1938] 
C.P.D. 548. 

7 Dig. 24. 1. 28, 2: non amare nee tanquam inter infestos jus 
prohibitae donationis tractandum est, sed ut inter conjunctos 
maximo affectu et solam inopiam timentes; Voet, 24. 1. 11; 
Wagenaar v. Wagenaar [1928] W.L.D. 306. 



MARRIAGE 97 

executed, is confirmed by the death of the donor. 1 Once 
a donation is confirmed, the donee acquires the right to 
keep the gift if it has been transferred, or to demand it, if 
it has not. The gift may be revoked, and is ipso jure void 
if the donee predeceases the donor, 2 or the marriage has 
been dissolved by divorce. 3 

(B) Boedelhouderschap. In ancient times the commu- B - Boe - 
nity which existed between spouses was sometimes con- S chap U ' 
tinued between a surviving spouse and the issue of the 
marriage, usually until the youngest child came of age. 
This institution, known as boedelhouderschap, depended 
upon local custom. It effected a general community 
between the surviving parent on the one side and the 
children on the other, but to the exclusion (generally) of 
acquisitions by way of inheritance or gift. 4 

With the development of the system of Orphan Cham- 
bers in the fifteenth and sixteenth centuries this automatic 
community fell into disuse though it continued possible 
(as it still is in South Africa) 5 to produce the same result 
by antenuptial contract, or by mutual will or by the 
separate will of the predeceasing spouse. It must be re- 
marked, however, that in South Africa it is the practice to 
describe as boedelhouder boedelhoudster a surviving 
spouse, whom the first dying has appointed guardian of 
the minor children and administrator of the joint estate 
during their minority. But this, without more, does not 
amount to a continuation of the community or boedel- 
houderschap properly so-called. 6 

In Holland another type of boedelhouderschap some- 

1 Dig. 24. 1. 32, 2; Cod. 5. 16. 1; Voet, 24. 1. 4; if the donor 
dies solvent, ibid, see 6. As to confirmation see Lee, Commentary, 
p. 234 ; Est. Phillips v. Comm. for Inland Revenue [1942] A.D. 35 ; 
Ex parte Est. Paterson [1942] C.P.D. 541. 

2 Dig. 34. 5. 8 (9). 

3 Est. Curtis v. Gronningsaeter [1942] C.P.D. 531. 

4 Gr. 2. 13. 2 ; Lee, Commentary, p. 131 ; de Blecourt, pp. 118 ff. 
6 Cloete v. Cloete's Trustees (1887) 5 S.C. 59; Natal Bank Ltd. v. 

Rood's Heirs [1909] T.S. at pp. 258-9; [1910] A.C. at p. 583, [1910] 
T.P.D. at p. 1365. For Natal see Est. N. G. Wilson v. Est. L. J. 
Wilson (1909) N.P.D. 447. 

8 Weyer v. Est. Weyer [1939] A.D. 126. 

4901 



98 THE LAW OF PERSONS 

times occurred. It was penal in character and one-sided 
in operation, and took place if the surviving parent being 
at the same time guardian of the children failed to draw 
up an inventory or make to them an assignment or buy out 
their interest (noch aan dezelven bewijs, vertigting of uit- 
koop doet). The consequence was that the community 
continued between the survivor and the children for the 
advantage of the latter who shared in profit, while all loss 
fell upon the surviving parent. 1 

This penal boedelhouderschap is unknown to the law of 
South Africa. 

C. Second (C) Second marriages. In the Roman Law second mar- 
marriages, riages entailed numerous penalties, which, says Van der 
Linden, have not been adopted by us. 2 He excepts from 
this statement lex 6 of the relevant title in the Code, 
which is called from its opening words the lex hac edictali* 
It is an enactment of Leo and Anthemius of the year 
A.D. 472, providing that no man or woman who remarries, 
having children by a former marriage, may by gift inter 
vivos or by will settle on the second spouse more than the 
amount of the smallest portion bequeathed to any of the 
children of the former marriage. 4 A gift contrary to this 
law is void to the extent of the excess, and the excess must 
be equally divided among the children of the prior mar- 
riage or marriages alone. 

This enactment need not detain us further, since in the 
modern law it has either never been received or has been 
repealed by statute. 5 

The penal boedelhouderschap mentioned above was one 

1 V.d.L. 1. 5. 4; Maxwell & Earp v. Est. Dreyer (1908) 25 S.C. 
at p. 730; Vermaak's Exor. v. Vermaak's Heirs [1909] T.S. 679. 

2 V.d.L. 1. 3. 10 ; and see Bijnk. O.T. i. 325. 

3 Cod. 5. 9. 6 (de secundis nuptiis). 

4 Van Leeuwen, 4. 24. 8. In the Dutch law the permitted 
portion was termed filialeportie (or kindsgedeelte). Boey, Woorden- 
tolk, sub voce. 

6 Repealed in the Cape Province by Act 26 of 1873., sec. 2 ; in the 
Transvaal by Procl. 28 of 1902, sec. 127 ; in the Free State by the 
Law Book of 1901, chap, xcii, sec. 1 ; in Natal by Laws No. 22, 
1863, sec. 3 (A) ; No. 7, 1885, sec. 3. In Ceylon the lex hac edictali 
has, apparently, never been recognized. 



MARRIAGE 99 

application of a general rule which imposes upon the sur- 
viving parent, before contracting another marriage, the 
duty of paying or securing to the minor children of the 
first marriage the shares due to them out of the estate of 
the deceased. 1 

In South Africa this security took the form of a notarial 
general bond over movables known as a Icinderbewijs? 
but now this is only used, when the surviving parent is 
unable to furnish the special hypothecation of immovable 
property required by statute. 3 A defaulting parent for- 
feits for the benefit of the minor children a sum equal to 
one fourth of his or her share in the joint estate, besides 
incurring a statutory penalty of fine or imprisonment. 4 

1 Gr. 1. 9. 6-7; Voet, 23. 2. 100; V.d.K. 142 ff . ; V.d.L. 1. 5. 4. 
Rechts. Obs., part 1, no. 15; Boey, Woordentolk, ad verb. Vertigting. 

2 2 Maasdorp, p. 291 ; Maxwell & Earp v. Est. Dreyer, iibi sup. 
8 Howard, Administration of Estates (6), p. 127. 

4 Administration of Estates Act, 1913, sec. 56. Payment or 
security is not required if the estate is of less value than one 
hundred pounds. The duty of giving security cannot be remitted 
by the will of the deceased spouse. Ex parte Pretorius [1920] 
T.P.D. 297. 



GUARDIANSHIP 

Guar- IN the Institutes of Justinian under the titles of tutela 
lp ' and cura are considered two institutions designed by the 
law for the protection of persons who, though not subject 
to parental control, are nevertheless on account of imma- 
turity of years or for other cause incompetent to be in all 
respects their own masters. The first of these, tutela, re- 
lated to young persons alone, and ended with puberty. 
The second, in the case of young persons, extended from 
the fourteenth (or twelfth) to the twenty-fifth birthday, 
and was also applicable to the case of insane persons and 
prodigals. 

In Roman-Dutch Law there is one kind of minority 
only, which, as we have seen, now ends by statute at 
twenty-one. The distinction between tutela and cura of 
minors has therefore disappeared. 1 But the terms tutor and 
curator are still retained to denote various cases of control. 

In this chapter we consider: (1) the different kinds of 
guardianship and how guardians are appointed ; (2) who 
may be guardians ; (3) the powers, rights, and duties of 
guardians ; (4) actions arising out of guardianship ; (5) how 
guardianship ends. 

SECTION 1 THE KINDS OF GUARDIANS AND THE 
APPOINTMENT OF GUARDIANS 

The In the Roman Law three principal kinds of guardian 

guardians. were recognized: (1) Tutores testamentarii, i.e. guardians 
appointed to minors in power by the father or other male 
ascendant; (2) Tutores legitimi, i.e. the nearest agnatic 
(afterwards cognatic 2 ) relatives of the minor, who acted 
in default of testamentary appointment ; (3) Tutores da- 
tivi, i.e. guardians appointed by the magistrate in default 
of either of the first two classes. 

1 Gr. 1. 7. 3 and Schorer ad loc. ; Voet, 27. 10. 1 ; V.d.K. 111. 

2 Nov. 118, capp. 4-5 (A.D. 543). 



GUARDIANSHIP 101 

In early Germanic Law testamentary guardians were Tutors 
unknown, but fathers sometimes, before their death, com- 
mitted the care of their minor children to persons in whom 
they confided j 1 failing these, near relatives were considered 
to be entitled to the guardianship ; failing these, again, an 
appointment was made by the King, and in later times 
by the Count or other sovereign authority, who also 
claimed the prerogative of confirming guardians belonging 
to either of the first-named classes. This prerogative right 
was the source of the upper guardianship (opper-voogdij) 
of minors, which in later Dutch Law and at the present 
day is vested in the Court. 

The Roman-Dutch Law here, as elsewhere, has worked 
the principles of the Roman Law into the original fabric. 
When in later times testaments came into use, testamen- 
tary guardians began to be appointed, and the phrase was 
taken to include guardians appointed whether in an ante- 
nuptial settlement or by other judicial or notarial act 
inter vivos? and that by the mother no less than by the 
father of the minor children. 3 

A special variety of testamentary guardian was the Tutors 
assumed or substituted guardian, i.e. a guardian named by assumed - 
a testamentary guardian, by virtue of a special authority 
conferred upon him in that behalf, to act either together 4 
with such testamentary guardian, or in substitution for 
him, particularly in the event of his death. 5 

1 Rechts. Obs. pt. 4, no. 9 ; Fock. And., O.N.B.R., vol. ii, pp. 221ff . 

2 Cf. Administration of Estates Act, 1913, sec. 72 (1). 

8 Gr. 1. 7. 9 ; Van Leeuwen, 1. 16. 3 ; Voet, 26. 2. 5. But in South 
Africa, by the Administration of Estates Act, 1913, sec. 71 (re- 
enacting and amending Cape Ord. No. 105, 1833, sec. 1): 'It shall 
not be lawful for any person except (a) the father of a minor ; or 
(6) the mother of a minor whose father is dead or has abandoned 
the minor ; or (c) the mother of a minor to whom the custody of 
such minor has been given by a competent court, by any will or 
other deed to nominate any tutor or tutors to administer and 
manage the estate or to take care of the person of that minor.' 
This is without prejudice to the right to appoint a curator nominate. 

4 Voet, 26. 2. 5 (magt van assumptie). 

6 Magt van surrogatie of substitutie. Vide Boey, Woordentolk, 
sub voce Voogdye; V.d.L. 1. 5. 7; Administration of Estates Act, 
1913, sec. 77. 



102 THE LAW OF PERSONS 

Theguar- Failing testamentary guardians, the guardianship or 
of^iood the appointment of guardians devolved upon the nearest 
relations, relatives of the minor and, in particular, as Grotius tells 
us, went to the 'four quarters' (vier vieren-deelen), i.e. to 
the nearest of kin on the side of each of the four grand- 
parents. 1 'Afterwards, however,' he continues, 'it was 
thought better that guardians should be appointed by 
the authorities, that is, by the Court of Holland, by the 
town and country Courts, or by the Orphan Chambers, 
which are in several places charged with that duty, the 
upper guardianship of orphans remaining, however, in the 
Court. These authorities are accustomed and bound in 
appointing guardians to consult the nearest relatives, and 
to choose the guardian from among them so far as this 
can be done with advantage to the wards.' 

unknown The consequence of the change described by Grotius 
modem was to extinguish the last survivals of the old guardianship 
law - of blood-relations as a separate institution, so that Grotius 
and Voet are able to speak of 'born' or 'lawful' guardians 
as no longer recognized by the common law of Holland. 2 All 
Tutors guardians thenceforward were either (1) testamentary; 
or (2) appointed, 3 and the intermediate class of 'legitimi 
tutores' disappears. Over both of these classes, it is im- 
portant to remember, subsists the upper guardianship of 
the Sovereign exercised through the Courts of Justice. 4 
Orphan At this point something may conveniently be said 
'about the Orphan Chambers. These were official boards 
charged with the supervision of orphan children, 5 which 
so early as the middle of the fifteenth century were already 
in existence in most of the towns of Holland. 6 Their 

1 Gr. 1. 7. 10. Sic vocantur quia ex quattuor avis et aviabus 
descendant. V.d.K. Diktat, ad loc. But anciently the vier vieren- 
deelen were the groups constituted by the four pairs of great - 
grandparents and their descendants ; de B16court, p. 475. 

2 Gr. 1. 7. 8; Voet, 26. 4. 4; V.d.K. 117. 

3 Gr. 1. 7. 7; Voet, 26. 5. 5; V.d.L. 1. 5. 2. 

4 Van Rooyen v. Werner (1892) 9 S.C. at p. 428. 

6 i.e. of minor children who had lost one or both parents (Gr. 
1. 7. 2) ; sometimes also of onbestorven kinderen (Gr. 1. 6. 1). 
8 Fock. And. O.N.B.R. ii, 242; de Blecourt, p. 128. 



GUARDIANSHIP 103 

functions were variously defined by the keuren of the 
towns. Strictly speaking, their authority was co-ordinate 
merely with that of the testamentary guardian, but they 
constantly tended to supervise, 1 and sometimes to en- 
croach upon, 2 his functions. Thus in the town of Alkmaar, 
testamentary guardians must be confirmed by the Orphan 
Chamber, though as a rule such guardians did not require 
confirmation. 3 Consequently it was the common practice 
of testators when appointing guardians to express in clear 
terms their wish to exclude the Orphan Chamber from 
interference with the estate. 4 Even this did not always 
produce the desired result. 5 

The word 'guardianship' is not free from ambiguity, is a sur- 
for it implies sometimes guardianship of the person, some- 1^^. 
times administration of the property, sometimes both, ipso jure 
Where property alone is concerned the term 'curatorship' gua 
may be employed. But it is not always easy to distinguish 
the two functions, for control of the property tends to 
imply control of the person. Guardianship certainly does 
not exclude the parental power, 6 but neither is it excluded 
by it. A surviving parent was not, as such, guardian of 
the property of his or her minor children, 7 however much 
parental power might imply control of the person. Accord- 
ingly such parent, unless appointed by the deceased 

1 Gr. 1. 9. 2. 2 Van Leeuwen, 1. 16. 3. 

3 This is implied by Van Leeuwen, who mentions the case of 
Alkmaar as exceptional ; but in Cens. For. 1. 1. 17. 3 he says: hodie 
omnes omnino tutores ex inquisitione dantur aut confirmantur. 
See Voet, 26. 3. 1 and 26. 7. 2 (ad fin.). It appears from Van der 
Keessel (Th. 116) that the practice varied. In South Africa con- 
firmation is always necessary (Administration of Estates Act, 
1913, sec. 72), except that a father or mother does not require 
letters of confirmation (sec. 73). 

4 V.d.L. 1. 5. 2-3; V.d.K. 120. 

6 Van Leeuwen, ubi sup. In South Africa Orphan Chambers 
exist at the present day and the administration of estates is often 
left to them, but they are not official and no longer appoint guar- 
dians. They are in fact merely Trust Companies. The place of the 
official Orphan Chamber has been taken by the Master of the 
Supreme Court. 6 Gr. 1. 7. 8. 

7 Gr. ubi sup. ; Voet, 26. 4. 4. But the parents had a prior claim 
to be appointed, and usually were appointed, to act concurrently 
with one or two other tutors dative. Gr. 1. 7. 11-12. 



104 THE LAW OF PERSONS 

spouse 1 or by the Orphan Chamber or Court, 2 could not 
lawfully intermeddle with the estate. 3 This seems some- 
what harsti in the case of the father, who having been sole 
administrator of the minor's property during the marriage, 
might reasonably expect to continue to exercise the same 
functions after his wife's death, at all events as regards 
property not coming to the child ex parte materna. The 
reasonableness of this claim is recognized by the law of 
South Africa, which gives the father the exclusive control 
of the person and also of the property of his minor children, 
during the whole of his life, and even permits him to be- 
stow equally extended powers upon guardians appointed 
by his will. 4 He may, in this way, exclude the surviving 
mother from the guardianship during her lifetime 5 and 
from the power of appointing testamentary guardians to 
act after her death. 6 

On the other hand, when no testamentary guardians 
have been appointed she is solely entitled to the guardian- 
ship to the exclusion of guardians dative. 7 

In South Africa the appointment of tutors dative is 
vested in the Master of the Supreme Court, subject to 
review by the Court. 8 The same official confirms testa- 

1 Voet, 26. 4. 4. 

2 Gr. 1. 7. 10; Van Leeuwen, 1. 16. 2. 

3 Gr. 1. 7. 8. 

4 Van Rooyen v. Werner (1892) 9 S.C. 425. 

5 Ibid., per de Villiers C.J. at p. 431, 'It is only on failure by the 
father to appoint such tutors that the surviving mother acquires 
her full rights.' But a deceased father cannot exclude the mother 
except by appointing a testamentary guardian in her place. Voet, 
26. 4. 2. The right to the custody of the children (supra, p. 37) must 
be distinguished from the guardianship. 

6 According to V.d.K. (Dictat. ad Grot. 1. 7. 9 and Th. 118) 
a surviving mother even though not appointed guardian by her 
husband's will may by her own will appoint co -guardians to act 
with the guardians appointed by her husband. The Administra- 
tion of Estates Act, 1913 (sec. 71), contemplates the appointment 
of a tutor testamentary by the mother of a minor, whose father is 
dead ; but leaves the position undefined in case the father's will has 
made provision for the guardianship. 

7 Van Rooyen v. Werner, ubi sup. ; Joffe & Co. v. Hoskins [1941] 
A.D. 431. 

8 Administration of Estates Act, 1913, sees. 76 and 107. 



GUARDIANSHIP 105 

mentary tutors, 1 and supplies casual vacancies in case of 
death, incapacity, or removal. 2 

A testamentary tutor, as we have seen, is appointed Curators 
by parents only. But it is permitted to any person who n( 
gives or bequeaths property to a minor or insane person 
to direct at the same time that some specified person shall 
administer it. 3 A person so appointed is termed a curator 
nominate, 4 and if a curator nominate is expressly em- 
powered to appoint another to act in that capacity, such Curators 
other becomes (after confirmation) a curator assumed. 5 a s sumed - 

Curators dative are appointed by the Court (in South Curators 
Africa upon the application of the Master or of some 
person interested) to insane persons or prodigals, 6 and the 
master appoints curators dative to administer the pro- 
perty of persons absent from the Union and not otherwise 
represented. 7 In case of minor disqualifications such as Curators 
deafness, dumbness, or the like, 8 the Court may appoint boms - 
curators bonis whose functions will be limited by the 
requirements of the particular case. 9 

1 Administration of Estates Act, 1913, sec. 73. 

2 Ibid., sec. 78. s Voet, 26. 2. 5 ; V.d.K. 118 ; V.d.L. 1. 5. 2. 
4 Ibid., sec. 71. 

6 Ibid., sec. 77 (1). 

6 1 Maasdorp, pp. 309, 311. Such persons were known as bejaerde 
wezen (Gr. 1. 11. 1-4; Van Leeuwen, 1. 16. 13 ; Voet, 27. 10. 3 and 
6 ; V.d.K. 164-5) or as Ho/3- or Stads -kinder en (V.d.L. 1. 5. 8). 

7 Administration of Estates Act, 1913, sec. 80. 

8 Gr. 1. 11. 2; In re Rens (1880) Foord 92; Ex parte Van Dyk 
[1939] C.P.D. 202; Ex parte De Villiers [1943] W.L.D. 16. An 
insane or prodigal wife is placed under the guardianship of her 
husband; an insane or prodigal husband is not placed under the 
custody of his wife, but his property may be. Gr. 1. 11. 7 ; V.d.K. 
168. In re De Jager [1876] Buch. 228; Venter v. Venter [1935] 
C.P.D. 27 ; Bloomfield v. Bloomfield [1942] C.P.D. 251. The marital 
power is suspended by the husband's insanity. V.d.K. 101. 

9 Voet, 27. 10. 13 ; 1 Maasdorp, p. 31 1. In the case of prodigality 
also the modern practice is to appoint a curator bonis, whose func- 
tions are limited to administering the estate. 'A curator bonis 
deals with the estate of the person under curatorship and not with 
his person.' Mitchell v. Mitchell [1930] A.D. at p. 223. For pro- 
cedure see Ex parte Hartzenberg [1928] C.P.D. 385. There are cases 
also in which the Master may appoint a curator bonis ad interim 
(Adm. of Est. Act, 1913, sec. 30, sec. 81 (2)) ; and a similar appoint- 
ment may be made by the Court under Act 38 of 1916 (Mental 
Disorders Act), sec. 62 (1). 



106 THE LAW OF PERSONS 

Curators Curators ad litem are appointed to a minor or insane 

5m ' person or prodigal, for the purpose of bringing or defending 

an action, when such minor has no other guardian or 

curator, or when the guardian or curator is a party to 

the litigation. 1 

The various kinds of guardian, then, are: (1) tutors 
testamentary ; (2) tutors assumed ; (3) tutors dative ; 
(4) curators nominate ; (5) curators assumed ; (6) curators 
dative ; (7) curators bonis ; (8) curators ad litem ; and they 
are appointed in the ways described. 

SECTION 2 WHO MAY BE GUARDIANS 

Some Van der Linden says that some persons are prohibited 

arTdis 8 from being guardians, others may excuse themselves. 2 
qualified To the first class he assigns: (1) persons who are them- 
selves subject to tutela or cura, 3 with whom must be 



guardians, i ncmc led all persons less than twenty-five (now twenty- 
one) years of age, although majority may have been anti- 
cipated by marriage or venia aetatis ; 4 (2) women, except 
a mother and grandmother, and they only so long as they 
have not contracted a second marriage ; 5 (3) creditors and 
debtors of the minor, if the debt is considerable and the 
Court sees fit to exclude them. 6 

To these the modern law adds : (4) any person who as 
witness has attested the execution of a will which appoints 

1 Van der Linden, Judic. Prac. 1. 8. 3. 

2 V.d.L. 1. 5. 1. * Gr. 1. 7. 6. 

4 Voet, 26. 1. 5; V.d.K. 112. Dhanabakium v. Subramanian 
[1943] A.D. at p. 166. May a surviving spouse, though under age, 
be guardian to his or her children ? Voet, 26. 4. 2 ; Holl. Cons. v. 
213; Schorer ad Gr. 1. 7. 11. 

6 Gr. 1. 7. 6 and 11 ; Voet, 26. 1. 2 ; V.d.K. 114. In South Africa, 
by the Administration of Estates Act, 1913, sec. 83: (1) The pro- 
visions of this Act in regard to the election and appointments of 
tutors and curators shall apply to males and females; (2) Letters 
of confirmation shall not, without the consent in writing of her 
husband, be granted to a woman married in community of property 
or to a woman married out of community of property when the 
marital power of the husband is not excluded. 

8 Grotius is silent on this point. Voet (26. 1. 5), Groenewegen 
(ad Cod. 5. 34. 8) and van Leeuwen (Gens. For. 1. 1. 16. 19) agree 
that there is no absolute disqualification. See also Sande, Decis. 
Fris. 2. 9. 1. 



GUARDIANSHIP 107 

such person guardian, and the wife or husband of such 
person. 1 

The second class includes: (1) soldiers; 2 (2) persons others 
already burdened with three guardianships ; (3) persons 



upwards of seventy years of age ; (4) persons disqualified them- 
by sickness or infirmity. This list is not exhaustive, nor 
by the common law could anyone claim exemption as of 
right. In fact, the whole matter lay in the discretion of 
the Court. 3 In South Africa excuses are unnecessary, for but in 
guardianship is at the present day a voluntary office, Africa 
which no one can be compelled to undertake against his guardian- 
will. 4 This marks a departure from the Roman-Dutch voluntary. 
common law, according to which anyone who was named 
guardian was bound to accept the office, unless excused, and 
in case of unwillingness could be compelled to undertake 
it by civil imprisonment. 5 

SECTION 3 THE POWERS, RIGHTS, AND DUTIES 

OF GUARDIANS 

Without seeking to distinguish too exactly between the The 
duties and the powers or rights of guardians, we may 



classify their functions of whatever kind under the fol- of guar- 

, . , n dians: 

lowing heads. 

1. The duty to find security. In Holland practice varied (l) To find 
in different localities. Van der Linden says : 6 'The practice 8e 
of guardians finding security is in our law fairly out of 
use, though where there are weighty reasons for doing so 

1 Cape, Act No. 22 of 1876, sec. 4 ; Transvaal, Ord. No. 14 of 
1903, sec. 4; O.F.S. Ord. No. 11 of 1904, sec. 4. In Natal there is 
no such disqualification (see Law 2 of 1868, sec. 7). In Ceylon 
there is no statutory provision. Voet adds to the disqualifications 
mentioned in the text: (5) a person not subject to the jurisdiction 
cannot be tutor dative (26. 5. 3); (6) persons prohibited by the 
will of either parent (26. 1. 4). 

2 Grotius (1.7. 6) says that soldiers cannot be guardians ; so also 
Voet (26. 1. 4). Van der Keessel (Th. 113) and Van der Linden 
(1. 5. 1) say that they are not disqualified, but may be excused. 

3 Gr. 1. 7. 14; Voet, 27. 1. 12; V.d.K. 124. 

4 1 Maasdorp, p. 313 ; Administration of Estates Act, 1913, sec. 
73 (2). 

6 Gr. 1. 7. 16; Van Leeuwen, 1. 16. 5; V.d.L. 1. 5. 1. 

6 V.d.L. 1. 5. 3. Cf. Gr. 1. 9. 1 ; Voet, 26. 7. 2; V. d.K. 134. 



108 THE LAW OF PERSONS 

the Court may demand it.' But in South Africa, by the 
Administration of Estates Act, 1913, sec. 82, every tutor 
and every curator now gives security, except only a 
testamentary tutor or a curator nominate when: (a) he 
is the parent of the minor; or (6) has been nominated 
by will executed before the commencement of the Act 
(October 1, 1913), and has not been directed by the will 
to find security ; or (c) has been nominated by will executed 
after the commencement of the Act and the testator has 
directed the Master to dispense with security ; or (d) the 
Court otherwise directs. 

(2) to 2. Inventory. Guardians must make a full inventory 
invento" ^ ^ e estate which they are to administer, or demand 

an inventory from a surviving parent. 1 In South Africa 
every tutor and every curator must make such inventory 
within thirty days 2 of the date of his entering on office. 
If a guardian fails herein, he is liable (besides other 
penalties) 3 to removal ; as he is, also, if he wilfully omits 
items of credit or inserts false items of debt. 4 A surviving 
parent who, in preparing the inventory, fraudulently con- 
ceals any property forfeits his or her interest therein. 5 
A similar inventory must be made by parent or guardian 
in the event of any property coming to a minor from any 
source whatever, e.g. by testament, either during the life- 
time of both parents or after the death of one or both of 
them. 6 The inventory when complete must be delivered 
to the Orphan Chamber, 7 the place of which is taken in 
South Africa by the Master of the Supreme Court. 

(3) to 3. Securing minors' portions. The next duty of the 

1 Gr. 1. 9. 3 and 8 ; Van Leeuwen, 1. 16. 6 ; Voet, 26. 7. 4 ; V.d.K. 
135 ff. ; V.d.L. ubi sup. The first dying parent may not dispense 
the survivor from the duty of preparing an inventory. V.d.K. 137. 

2 Administration of Estates Act, 1913, sec. 85. 

3 Ibid., sees. 108-9. 

4 Voet, 26. 7. 5. 

6 Gr. 1. 9. 4; V.d.K. 139; Administration of Estates Act, 1913, 
sec. 110. 

6 Gr. 1. 6. 1 and 1. 9. 5. If a curator nominate has been ap- 
pointed to the property in question, the duty of making an inven- 
tory falls on him and not on the parent. V.d.K. 140. 

7 Gr. 1. 9. 3 and 8; V.d.K. 135 ff. 



GUARDIANSHIP 109 

guardian (and this is the object of the inventory) is, sub- minors' 
ject to the control of the proper authority, to see that portlons; 
within the time prescribed by the local statute and at 
latest before proceeding to a second marriage the sur- 
viving parent assigns to the minor children of the marriage 
their shares in the joint estate, 1 or at all events gives 
security for future payment. This done, the guardian pro- 
ceeds to deal with the property of the minors in his charge, 
retaining it under his control as administrator, or placing 
it in the hands of the proper authority, as required by law. 2 

4. Maintenance and education. All preliminaries being (4) to 
properly settled, it is the duty of the guardian to provide ^^du" 
for the maintenance and education 3 of the ward according oate the 
to the directions of the father or mother, and failing such, 
to make suitable arrangements. 4 

The guardian must take care that his expenditure in 
this regard keeps within the limits of the annual income 
of the estate, unless in very special circumstances, which 
should be made the subject of an application to the Court. 5 

1 Gr. 1. 9. 6; Voet, 23. 2. 100; supra, p. 99. 

3 In S.A. moneys must be paid over to the Master, if not re- 
quired for the immediate payment of the debts of the estate or the 
immediate maintenance of the person to whom the money belongs, 
and in the case of a tutor testamentary or curator nominate subject 
to the terms of the will or deed. Adminstration of Estates Act, 
1913, sec. 88. Securities must be deposited. Gr. 1. 9. 9. It must 
be borne in mind that the guardian represents the minors, not the 
deceased. He has no general duty of liquidating the estate. In the 
modern law the estate of a deceased person vests for administration 
and distribution in an executor, testamentary or dative (Ad- 
ministration of Estates Act, 1913, sec. 31). Subject to the right of 
the surviving spouse, in the absence of any provision to the con- 
trary contained in the will of the first dying, as natural guardian 
to receive from the executor and retain for and on behalf of his 
minor child (on giving security) any sum of money due to that 
child from the estate of the deceased spouse, it is the duty of the 
executor to pay to the Master any money which has become due 
from the estate to any minor (ibid., sec. 54). Ex parte Van Misdorp 
[1928] C.P.D. 78. 

3 Gr. 1. 9. 9; Voet, 26. 7. 1 and 6. Generally speaking a sur- 
viving mother is entitled to the custody (V.d.K. 114), notwith- 
standing a remarriage (Voet, 27. 2. 1). 

4 Gr. ubi sup. ; Voet, 27. 2. 1. 
6 Voet, 27. 2. 2. 



110 THE LAW OF PERSONS 

(5) to ad- 5. Administration of the ward's property. 1 This includes 

the general supervision and management of the minor's 
estate, in which task the guardian must display the 
diligence of a bonus paterfamilias. 2 His expenditure must 
be such as is demanded by the interest and credit of the 
minor, regard being had to the value of the estate and 
the minor's position in life. 3 He must preserve and secure 
the property, 4 call in and enforce debts, 5 invest in good 
securities, 6 and meet the minor's liabilities as they fall 
due. 7 When the guardianship comes to an end, the guar- 
dian must wind up the business of his office, and is deemed 
to remain guardian for the purpose. 8 Where there are 
more guardians than one, they need not all act; but, 
whether he acts or not, each is responsible for the acts of 
every other. 9 

(6) not to 6. Alienation of property. A guardian may, in due 
hnmov- course of administration, sell 10 or mortgage any movable 
ables property under his charge. But the alienation or hypo- 
leave of thecation of immovable property, except by leave of the 
Court. Court, 11 is prohibited. Such leave is only given after full 

1 Gr. 1. 9. 11; Van Leeuwen, 1. 16. 8; V.d.L. 1. 5. 3. 

2 Gr. 3. 26. 8; Voet, Compendium, 26. 7. 3; 27. 3. 4; V.d.L. 
1. 5. 3. It seems that in R.L. he was not required to exhibit more 
that the diligentia quam suis rebus. Buckland, Textbook, p. 157. 

3 Voet, 26. 7. 6 ; 27. 2. 2. 

4 Voet, 26. 7. 8. 8 Voet, ibid. 

6 Gr. 1. 9. 10; 3. 26. 7; Van Leeuwen, 1. 16. 8; Voet, 26. 7. 10; 
V.d.K. 153-5; Van der Byl & Co. v. Solomon [1877] Buch. at 
p. 27 per de Villiers C.J. But now investments are usually made 
by the Public Debt Commissioners under Act 18 of 191 1. Ex parte 
The Master [1927] T.P.D. 117; Ex parte Lorentz N.O. [1928] 
S.W.A. 153. The power of investment of natural guardians re- 
mains unaffected. Wood v. Davies [1934] C.P.D. at p. 256. 

7 Voet, 26. 7. 7. 

8 Voet, 26. 7. 15. If the guardianship is determined by the 
minor's death, the guardian must render accounts and make over 
the property to his heir. V.d.K. 159. 

9 Gr. 1. 9. 11 ; Voet, 26. 7. 1 ; V.d.L. 1. 5. 3 (ad fin.). Remunera- 
tion of guardians, infra, p. 115. 

10 Gr. 1. 8. 5; Voet, 27. 9. 4. Grotius adds: 'doch met kennisse 
van de weeskamer daer de zelve niet en is uitgesloten.' Cf. V.d.K. 
129. 

11 Gr. 1. 8. 6; Voet, 27. 9. 1. Application must be made in the 
first instance to the Court of the minor's domicile ; if the property 



GUARDIANSHIP 111 

inquiry, and it was usual to consult the nearest relatives. 1 
The measures proposed must be necessary for payment of 
debts, maintenance, or marriage of the ward, or otherwise 
to his manifest advantage. 2 The word 'immovables' ex- 
tends to such incorporeal rights as are commonly included 
under the term immovable property, and to the cession 
of rights of action relating to such property. 3 Alienation 
includes any act of the guardian whereby a real right of 
the ward is in any way diminished, lost, or abandoned. 4 
Failing a judicial decree (where such is necessary) every- 
thing that takes place in the course of, or incidentally to, 
such alienation is ipso jure null and void. 5 The same 
applies if the decree is shown to have been obtained from 
the Court by fraud. 6 

The prohibition of the sale of immovables is stated by 
Grotius to extend to money put out at interest and rents. 7 
Van der Keessel says that the same rule ought to be laid 
down in respect of public Dutch or foreign securities. 8 
Voet goes further and adds to the list all movables which 
are not perishable in their nature (quae servando servari 
possunt), 9 as gold, silver, and jewellery, whereas perish- 
able movables the guardian not only may sell, but must. 10 
By some local statutes of Holland even movables could not 
be sold except by public auction and after notice to the 
Orphan Chamber (unless this were expressly excluded). 11 

is situated in another jurisdiction, it may be necessary to apply to 
the Court of the locus rei sitae as well. Voet, 27. 9. 5 ; Ex parte Uys 
[1929] T.P.D. 443; Ex parte Ford [1940] W.L.D. 155. In Ceylon 
it has been held that a power to mortgage cannot be conferred by 
will. Girigorishamy v. Lebbe Marikar (1928) 30 N.L.R. 209. 

1 Voet, 27. 9. 7; and the weeskamer. V.d.K. 131. 

2 Voet, 27. 9. 7-8. 3 Voet, 27. 9. 2. 

4 Voet, 27. 9. 3 ; Sande, de prohib. rerum alienat. 1. 1. 47. This 
covers a lease in longum tempus. Breytenbach v. Frankel [1913] 
A.D. at p. 402. But short leases are permitted and bind the ward 
even after majority. Sande, Decis. Fris. 2. 9. 22; Voet, 19. 2. 17. 

6 Gr. 1. 8. 6. 6 Voet, 27. 9. 9. 

7 Renten ende pachten. Gr. 1. 8. 6. 

8 V.d.K. 130. 9 Cf. Cod. 5. 37. 22, 6. 

10 Voet, 27. 9. 1. 

11 Gr. 1. 8. 5; Van Leeuwen, 1. 16. 8; V.d.K. 129; Rechts. Obs. 
ii. 13. 



112 THE LAW OF PERSONS 

In the case of immovables too the sale must be by public 
auction. 1 
South In South Africa by the Administration of Estates Act, 

A f * 

La" C as to 1913, sec. 87, no tutor and no curator (other than a tutor 
alienation testamentary or a curator nominate duly authorized 
ables. thereto by the will or deed under which he has been 
appointed) shall alienate or mortgage any immovable 
property belonging to a minor unless the Court or, when 
the Master is satisfied that the immovable property does 
not exceed three hundred pounds in value, unless the 
Master authorize the alienation or mortgage of such pro- 
perty. But the Master may authorize the mortgage of im- 
movable property belonging to a minor to an extent not 
exceeding three hundred pounds, if satisfied that the 
mortgage is necessary for the preservation or improvement 
of the property, or for the payment of expenses necessarily 
incurred in connexion therewith, or for the maintenance 
or education of the minor. The same Act by sec. 86 saves 
the common law as regards the powers and duties of 
tutors except so far as they are affected by that Act. 
Remedies The ward's remedies in respect of unauthorized aliena- 
are two: against the tutor and against the alienee. 



thorized Against the first he has the actio tutelae directa. From the 

tion. second he may vindicate the property (together with all 
fruits, if the defendant's possession is mala fide ; but if 
it is bona fide, together with fruits existing at the time 
of action brought). If, however, the purchase-money has 
been received and applied to the minor's use, it must be 
refunded with interest as a condition precedent of the 
return of the property. 2 A sale of immovable property 
made by a minor without judicial decree and without his 
guardian's authority cannot be impeached on behalf of 
such minor, when the minor has falsely represented him- 
self as of full age. 3 

Ratifica- An alienation void ab initio may be ratified on full age. 

void alien- Ratification is express or tacit. 4 When ratification has 

1 Gr. 1. 8. 6; Van Leeuwen, 1. 16. 9. 2 Voet, 27. 9. 10. 

3 Voet, 27. 9. 13 (ad fin.). 4 Voet, 27. 9. 14. 



GUARDIANSHIP 113 

taken place the transaction may, in Roman-Dutch Law, 
still be rescinded on the ground of laesio enormis, 1 but in 
the Cape Province and in the Orange Free State this is no 
longer law. 2 

7. Accounts. The guardian must render annual or other (7) Guar- 
periodical accounts as required by law to the proper au- renders 
thority. 3 If the testator has remitted this duty, the Court accounts; 
or other authority may none the less in its discretion 

insist upon it. 4 

8. Representing the minor in Court. A minor has no (8) repre- 
persona standi in judicio. 5 He must therefore be repre- minor in 
sented or assisted by his guardian in any proceedings to Court; 
which he is a party, whether as plaintiff or defendant. 6 

If the guardian is himself a party to the proceedings the 
ward obtains a curator ad litem. 7 No doubtful action may 
be brought by a guardian in the name of the ward with- 
out previous sanction of the Court ; 8 otherwise, if the ward 
fails in the suit, the guardian will be ordered to pay the 
costs himself. 9 In all other matters of importance too, 
says Van der Linden, 10 the Court should be consulted. 

9. Contracting in the name of the minor. Guardians have (9) con- 
the right to contract on behalf of their wards, but must *^. c n s a ^ e 
proceed with particular caution, otherwise they will be of the 
liable in damages. 11 By such contracts the wards acquire m 
rights and incur liabilities. They may sue and be sued on 

the contracts entered into by their guardians, 12 saving, 

1 Voet, ibid, (adfm.); Cod. 4. 44. 2 and 8. 

2 See below, p. 234, n. 3. 

3 Gr. 1. 9. 12; V.d.K. 120 and 157; Administration of Estates 
Act, 1913, sec. 89. An exception is made in favour of a surviving 
spouse 'to whom the predeceasing spouse has by will or other 
lawful instrument entrusted the administration of their joint 
estate during the minority of their children'. 

4 Van Leeuwen, 1. 16. 6. 

B Gr. 1. 7. 8; V.d.K. 127; V.d.L. 1. 5. 5. 

8 Gr. 1. 8. 4; Voet, 26. 7. 12. 7 Gr. ubi sup. 

8 Subsequent allowance affords the same protection. Botha 
N.O. v. Tunbridge N.O. [1933] E.D.L. at p. 108. 

9 Voet, ubi sup. 10 V.d.L. 1. 5. 3. Cf. Gr. 1. 9. 2. 

11 Gr. 1. 8. 7; 3. 1. 30; Voet, 26. 9. 1-2. 

12 Gr. 1. 8. 8; V.d.K. 133; and see Cod. 5. 39. Semble, if a guar- 
dian contracting on behalf of his ward, has acted fraudently (or 

4901 T 



114 THE LAW OF PERSONS 

however, their right to restitutio in integrum, if they have 
been prejudiced thereby ; which right they must prosecute 
within four (now three) years after attaining majority. 1 
It seems that a guardian who has contracted nomine pu- 
pilli is himself alternatively liable to the other contracting 
party ; 2 though if the contract was a proper one, he will 
be entitled to an indemnity from the estate. A ward is 
not bound by a donation made by his guardian or by a 
release of a manifest right. 3 

(10) 10. Authorizing the minor's acts. Finally, the guardian 

k e 5S 'interposes his authority', that is, assists and represents 
minor's the minor in all transactions, and in particular, as has 
been seen, represents him in Court. 'Authority ' in Roman 
Law meant a present consent to and approval of what is 
done by the ward, but in the modern law a subsequent 
ratification will have the same effect as a contemporaneous 
authority. 4 Where there are several co-tutors the author- 
ity of one alone is generally sufficient. 5 If the guardian 
withholds his authority the Court will in a fit case compel 
it. 6 A male or female minor upwards of fourteen or twelve 
years of age requires no authority to make a will, 7 nor is 
a marriage contracted without authority of the guardian 
invalid. 8 

Thus far the powers, rights, and duties of the guardians 
of minors. Since the functions of the curators of lunatics 

carelessly? Dig. 26. 7. 61), the ward is not liable, except: (1) to 
the extent of his enrichment ; (2) in the absence of enrichment only 
if the guardian is solvent, so that the ward can have recourse 
against the guardian's estate ; and the ward can always free himself 
by ceding his actions against the guardian. Gr. 3. 1. 30; Voet, 
26. 9. 4. 

1 Cod. 2. 52 (53). 7 pr. ; Voet, 44. 3. 6-7 ; supra, p. 49. 

3 Voet, 26. 9. 3 ; but generally only during the continuance of 
the guardianship. Cf. Cod. 5. 39. 1. 

8 Gr. 3. 1. 30 and 3. 2. 7 ; unless it be a remuneratory donation. 
Gr. 3. 2. 3. Guardians may make a novation in the name of their 
wards, if for the wards' benefit (Voet. 46. 2. 8) and may com- 
promise on behalf of their wards provided they do not thereby 
effect an alienation of the wards' property. V.d.K. 517. 

4 Voet, 26. 8. 1. 6 Voet, 26. 8. 7. 

8 Voet, 26. 8. 8, i.e. moribus. It was otherwise jure civili. Dig. 
26. 8. 17. 7 Gr. 1. 8. 2. 8 Gr. 1. 8. 3; supra, p. 61. 



GUARDIANSHIP 115 

and interdicted prodigals are generally similar, 1 it is un- 
necessary in an elementary treatise to make them the 
subject of special discussion. 

SECTION 4 ACTIONS ARISING OUT OF GUARDIANSHIP 

Two actions arise out of guardianship, the one by the The actio 
ward against the guardian (actio tutelae directa), the other ^^ta 
by the guardian against the ward (actio tutelae contraria). and con- 
The first is available to the ward and his heirs 2 against 
the guardian and his heirs, 3 and against each guardian in 
solidum (saving that on satisfaction by one the others are 
released), requiring him to render an account of his admini- 
stration, 4 to transfer everything which by virtue of the 
guardianship has come under his control, 5 and to make 
good all losses caused to the minor by his bad management. 

The contrary action lies for the guardian and his heirs 6 
against the ward and his heirs to be indemnified for 
expenses and loss incidental to his office, 7 and to recover a 
reasonable recompense for his time and trouble. 8 

In the Roman Law these actions lay only after the 
termination of the guardianship, 9 but in the modern law 
they may be brought during its continuance. 10 

The statement made above that each tutor is liable in Extent 
solidum must be understood subject to the law as to the ^ian"* 1 
benefit of excussion and the benefit of division. Where liability. 
one tutor alone has acted he must be sued before the 
rest, who otherwise can plead the beneficium excussionis. 

1 Gr. 1. 11. 5; Voet, 27. 10. 5 ff. 

2 Voet, 27. 3. 4; also to the husband of a minor against her 
former guardians and in some cases to creditors. 

3 Voet, 27. 3. 5 ; or other successors. * Voet, 27. 3. 7. 

5 Voet, 27. 3. 8; including claims arising excontractu. Gr. 3. 1. 38. 
But the emancipated ward may sue in respect of such claims 
without cession of the right of action. V.d.K. Dictat. ad loc. ; 
Dig. 26. 9. 2. 6 Voet, 27. 4. 2. 

7 Gr. 3. 26. 10; Voet, 27. 4. 3-7. 

8 V.d.L. 1. 5. 6. In the Roman Law the office of tutor was 
unpaid. Dig. 26. 7. 33, 3. In R.-D.L. a reasonable remuneration 
was allowed except to parents. Gr. 1. 9. 11 ; Voet, 27. 4. 12. The 
amount was usually fixed by local statutes. V.d.K. 156. 

9 Dig. 27. 3. 4 pr. and 27. 4. 1. 3. 

10 Groen. de leg. abr. ad Dig. 27. 3. 4. 



116 THE LAW OF PERSONS 

Where more than one tutor have acted, any one of the 
acting tutors may be sued, but by pleading the beneficium 
divisionis can divide his liability with the other tutors who 
were solvent at the earliest time at which the pupil could 
properly have sued. Where different duties of admini- 
stration have been assigned by the testator, or the judi- 
cial authority, between several tutors, each is, generally 
speaking, liable only for his own particular sphere of duty. 1 
Other ac- In addition to the above actions the Roman Law gave 
Roman various other remedies or securities to the minor, more 
Law. particularly: (1) an action 'for separation of accounts' 
(rationibus distrahendis) ; 2 (2) an action against the magi- 
strate by whom the guardian had been appointed ; 3 (3) 
the crimen suspecti 4 for the removal of guardians on the 
ground of misconduct actual or anticipated ; (4) a tacit 
hypothec upon the guardian's estate. 5 

The action 'rationibus distrahendis', which was as old 
as the Twelve Tables, 6 applied only to those who during 
their administration had carried off something from the 
ward's estate. 7 It lay for twice the value of the thing 
taken. Voet seems to treat this remedy as still existing, but 
Groenewegen says that the penalty of double was disused. 8 
In the Roman Law a subsidiary action lay in certain 
cases against the magistrates, when the ward had failed to 
obtain satisfaction from the guardian appointed by them. 9 
Whether this action subsisted in the Roman-Dutch Law 
was much debated. Voet and others 10 allowed it in case 

1 Gr. 3. 26. 9; Voet, 27. 8. 6. 'With regard to losses occasioned 
by omissions, all the guardians are liable in solidum, and, though 
they may claim the benefit of division as between themselves, are 
not entitled to the benefit of excussion.' 1 Maasdorp, p. 334; 
Niekerk v. Niekerk (1830) 1 Menz. 452. 

2 Dig. 27. 3. 1. 19; 27. 3. 2. 

3 Dig. 27. 8. 1 ; Cod. 5. 75. 5. 4 Inst. 1. 26 pr. 
6 Cod. 5. 37. 20 (Constantino, A.D. 314). 

8 Dig. 26. 7. 55, 1. 7 Dig. 27. 3. 2. 

8 Groen. de leg. abr. ad Dig. 27. 3. 2 and Cod. 9. 47 (rubric). 

9 Inst. 1. 24. 2. 

10 Van Leeuwen, 1. 16. 4, and Decker's note; Cens.For. 1. 1. 17. 
4 ; Voet, 27. 8. 5 ; Groen. de leg. abr. ad Inst. 1. 24. 4 ; Vinnius, ibid. ; 
V.d.K. 770. 



GUARDIANSHIP 117 

of fraud or gross negligence. But the Orphan Chamber, 
at all events, was answerable for the moneys of minors 
committed to its keeping. 1 

With regard to the removal of guardians the Court, as Removal 
the upper guardian, has a wide discretion, 2 which it may diaris^ 
exercise of its own motion or on the complaint of a co- 
guardian or near relatives of the ward. 3 Incapacity, dis- 
honesty, or insolvency are the most frequent grounds of 
removal. In South Africa the final order for sequestration 
or assignment of the guardian's estate ipso facto determines 
the office of tutor or curator, unless he shall have found 
security to the satisfaction of the Master for due and faith- 
ful performance of his duties. 4 

Lastly, wards had a legal or tacit hypothec over the The 
property of their tutors or curators in respect of debts due ^*^ . 
to them arising out of the administration and to the extent pothec. 
of loss attributable to the guardian's misconduct. 5 By 
statute this legal hypothec was abolished in the Transvaal 
and materially restricted at the Cape ; since the Insolvency 
Act, 1916, it has ceased throughout the Union to give any 
preference on the estate of an insolvent. 6 

SECTION 5 How GUARDIANSHIP ENDS 

Guardianship is determined by the following events : viz. How 
(1) the death of the minor; (2) the death of the guardian, 7 
in which case an assumed tutor (curator) (if any) or tutor 
(curator) dative replaces him ; (3) majority, unless the Court 
decides that the ward is to remain under guardianship 
for some time longer ; 8 (4) marriage, unless the Court for 
weighty reasons orders that the guardianship is to con- 

1 Decker ad Van Leeuwen, 1. 16. 4. 

2 Voet, 26. 10. 2. 

3 Gr. 1. 10. 4; The Master v. Edgecombe's Exors. [1910] T.S. at 
p. 272. 

4 Administration of Estates Act, 1913, sec. 84. 

8 Gr. 2. 48. 16; Voet, 20. 2. 11 ff.; V.d.L. 1. 12. 2. 

6 Infra, p. 197. 7 Gr. 1. 10. 1. 

8 Gr. ubi sup. The age of majority was sometimes anticipated 
by order of the pupillary magistrates, but this practice was re- 
placed by grant of venia aetatis. V.d.K. 110. 



118 THE LAW OF PERSONS 

tinue either absolutely or with respect to the immovable 
property of the ward; 1 (5) venia aetatis; 3 (6) arrival of 
time or cessation of purpose, when the guardianship was 
created for a limited time or purpose ; 3 (7) removal 4 or re- 
lease of the guardian by the Court ; (8) absence of the ward 5 
for a prolonged period, such as furnishes a presumption 
of death, in which case his property is divided amongst 
testamentary or intestate heirs, security being given 
for its return in the event of the ward's reappearance ; 6 (9) 
(in South Africa) the insolvency of the guardian 7 and, so 
far as concerns the property, of the ward. 8 

1 Gr. 1. 10. 2. In Vedeski v. Vedeski [1923] W.L.D. 31 Morice 
A.J. held that where a woman had a curator bonis, appointed to 
manage her affairs on the ground of her prodigality, the curator - 
ship was not determined by her marriage in community. 

2 Gr. 1. 10. 3. But this does not carry the right to alienate im- 
movables except by leave of the Court. Supra, p. 45. According 
to the modern practice the Court does not assume the power to 
declare a minor to be a major in law, but the Cape Courts have 
in several cases made an order releasing a minor from tutelage. 
Supra, p. 45. 

3 Gr. 1. 10. 6. 

* Gr. 1. 10. 4; Voet, 26. 10. 1-4; V.d.K. 162; The Master v. 
Edgecombe's Exors. [1910] T.S. 263. 

6 Gr. 1. 10. 5, and Schorer's note; V.d.K. 163. 
8 Supra, p. 90, n. 7. 

7 Supra, p. 117. 8 1 Maasdorp, p. 340. 



VI 

UNSOUNDNESS OF MIND PRODIGALITY 

IN the last chapter we saw that curators dative are Unsound- 
appointed by the Court for insane persons, and (after in- ne . ss of 
terdiction) for prodigals. It is tempting to speak of un- 
soundness of mind as constituting a status ; but it would 
not be correct to do so, for mental unsoundness is not 
necessarily permanent or constant, and the question which 
must be answered is not, 'Has the man been declared 
mad ? ' but, ' Was he, in fact, incapable of understanding 
the particular transaction which is brought in issue ? n If 
the answer is negative the transaction stands. This has 
been applied to a marriage contracted by a man against 
whom a lunacy order was still in force, who was found to 
have been at the time of marriage of sound mind and full 
understanding. 2 In the contrary event the transaction is 
wholly void 3 for 'furiosus nullum negotium gerere potest, Furiosus 
quia non intelligit quid agit'. The same principle applies ^gothim 
to any other form of mental alienation. 4 It is immaterial gerere 
that the other party to the transaction was unaware of the po 
condition of the person with whom he was dealing. The 
rule, however, admits two qualifications : (1) 'The Roman- Qualifica- 
Dutch law, while denying the capacity of an insane person th 
to bind himself by contract, recognizes the equity of allow- 
ing a person who has in good faith expended money on 

1 Prinsloo's Curators bonis v. Crafford & Prinsloo [1905] T.S. 
669; Pheasant v. Warne [1922] A.D. at p. 488; Est. Eehne v. 
Rehne [1930] O.P.D. 80; Pienaar v. Pienaar's Curator [1930] 
O.P.D. 171. 

2 Prinsloo' s Curators v. Crafford, ubi sup. In English law a 
lunatic so found by inquisition is incapable of marriage. Hailsham 
xvi, sec. 844. This is perhaps the only case in which the law recog- 
nizes a status of insanity. 

3 Inst. 3. 19. 8; Gr. 3. 1. 19; (Ceylon) Soysa v. Soysa (1916) 19 
N.L.R. 314. 

4 As to drunkenness see Gr. 3. 14. 5 ; Voet, 18. 1. 4; Manning & 
Wax v. Heathcote's Trustee [1915] E.D.L. 81 ; Essakow v. Galbraith 
[1917] O.P.D. 53. 



120 THE LAW OF PERSONS 

behalf of a lunatic to have his expenses recouped. n (2) 
' Where acts have been done on behalf of an insane person 
by virtue of a power of attorney [or other mandate] given 
by him before he was bereft of his reason, there are autho- 
rities (such as Digest 46. 3. 32, and Pothier on Obligations, 
sec. 81) from which it might be fairly inferred that want of 
knowledge regarding the principal's change of condition 
would protect persons dealing with the agent. The power 
is revoked by reason of the insanity ; but if the power held 
out the agent as a person with whom third parties might 
contract as such until they receive notice of the revocation 
of the authority, their knowledge of the insanity would 
have an important bearing on their right to recover upon 
a contract thus made. That would, however, be a very 
different matter from saying that an agent appointed after 
the insanity of the principal could, under the Roman- 
Dutch law, validly bind such principal. ' 2 

Inter- The condition of the prodigal after interdiction and 

P u klic notification thereof may correctly be described as 
a status. Until the interdict has been removed and the 
removal notified he is for most purposes subject to the 
same legal incapacities as a minor, and, like the minor, 
can without his curator's authority enter into a contract 
which is solely advantageous. 3 

1 Molyneux v. Natal Land and Colonization Co. [1905] A.C. 555 ; 
in appeal from Natal (24 N.L.R. 259) per Sir Henry de Villiers, at 
p. 569. 

2 Ibid, at p. 563. The P.O. judgment in Appeal is reproduced in 
26 N.L.R. 423. 

3 Gr. 1. 11. 4; Voet, 27. 10. 6 seq. As to marriage and consent 
to the marriage of their children vide supra, p. 61, n. 1. 



VII 

JURISTIC PERSONS 

To enter upon a detailed discussion of this topic lies out- Juristic 
side our scope. Not to speak of the fiscus (imperial trea- 
sury) and municipalities, which belong principally to the 
sphere of public law, the later Roman Law, more or less 
consciously, attributed an artificial personality to: (1) Cor- 
porations (corpora and universitates) ; (2) Foundations (piae 
causae). 1 These reappear in the Law of Holland. 2 In the 
modern law we no longer attribute personality to unincor- 
porated foundations, the only personality which comes in 
question being that of the trustees in whom the trust pro- 
perty is vested; 3 while the rights, duties, and powers of 
corporations are most often denned by the terms of some 
general or special statute. 4 If on the one hand corporations, Corpora- 
being persons, a,reprima facie capable of enjoying the same *}^ : na . 
rights and of incurring the same liabilities as natural per- ture and 
sons, on the other hand this general proposition receives a capaci y> 
necessary limitation both from the mere fact of their arti- 
ficial personality and from the terms and objects of the 
incorporation in each particular case. Within these limits, 
a corporation may acquire, own, and possess property; 
may contract ; may sue and be sued in courts of law. But 
from the nature of the case it can only act through a body 

1 Goudsmit, Pandecten-Systeem, vol. i, pp. 61 ff. ; Ruckland, 
Textbook of Roman Law, p. 307 ; P. W. Duff, Personality in 
Roman Law. 

2 Fock. And., vol. i, p. 140; de Blecourt, pp. 89 ff. 

8 In Ceylon the English law of corporations was introduced by 
Ord. No. 22 of 1866. This left no place for the pia causa as a 
distinct juristic entity. See Sadhananda Terunanse v. Sumanatissa 
(1934) 36 Ceylon N.L.R. 422, where the statement in the text was 
accepted as correct. For piae causae in the old law see Fock. And., 
O.N.B.R., vol. i, p. 147 ; and de Blecourt, p. 92. A legal persona 
of this character constituted under German Law came in question 
in Das Koniglich Preussisch-Brandenburgische Hausfideikommiss v. 
The Administrator of South-West Africa and the Registrar of Deeds 
[1928] S.W.A. 82. 

4 See for S.A. The Companies Act (46 of) 1926, amended by 
Acts No. 11 of 1932 and 23 of 1939. 



122 THE LAW OF PERSONS 

of individuals (its governing body) or through other per- 
sons or groups of persons properly authorized, whether per- 
manently or for the particular work in hand. Corporations 
how derive their existence from the State, through being created 
by a special act of the Legislature (or by the prerogative of 
the Crown) or under the provisions of a general Act, as is 
the case with most trading companies ; or through being 
recognized by the Legislature without special creation. 1 
how dis- A corporation ceases to exist : (a) when it has been called 
solved. j n ^ o existence for a limited time and that time has expired ; 
(6) when all the individuals composing it (corporators) are 
dead if only one member survives it seems that the cor- 
poration still continues in his person ; 2 (c) when the mem- 
bers (and in the absence of contrary provision the majority 
of members voting) resolve that the corporation shall be 
dissolved, provided that in the particular case such mode 
of dissolution is not forbidden or excluded by law or by 
the constitution of the corporation ; (d) when any other 
event occurs which the law prescribes for the dissolution 
of the corporation in question. With these few words on 
the nature of corporations in general we leave the student 
to pursue the subject, as he may find desirable, in the 
system of law which particularly concerns him. 

1 The decision in Morrison v. Standard Building Society [1932] 
A.D. 229 does not go further than this. (Registered Building 
Societies are now incorporated by the Building Societies Act, 
1934, and no unregistered society may carry on business.) There 
are, no doubt, other cases in which the Court has attributed some 
of the consequences of juristic individuality to unincorporated 
bodies, not too happily termed 'voluntary corporations'; thus, 
lately, to 'The Salem Party of Settlers' (Ex parte Gardner [1940] 
E.D.L. 175). In the present state of the law it is not possible to 
say when an association is a 'voluntary corporation'. Prof. 
Wille says that it becomes such 'by virtue of its having exercised, 
for a substantial period, the essential characteristics of a corpora- 
tion' (Principles, p. 113). But I have not found any suggestion 
of this in Morrison's Case. See, further, Leschin v. Kovno Sick 
Benefit Society [1936] W.L.D. 9. 

9 Dig. 3. 4. 7, 2. 



BOOK II 
THE LAW OF PROPERTY 



BOOK II 
INTRODUCTION 

The 'Law THE Roman institutional writers make the Law of Things 
of Things . ^e second division of the Jus Privatum. Under this head 
are included: (1) Ownership, and Modes of Acquisition; 
(2) Proprietary rights less than ownership, such as Servi- 
tudes ; (3) Inheritance ; (4) Obligations. What the common 
element is which makes these topics all referable to one 
branch of law is not at once apparent. Probably it is 
ownership. ' The true point of contact between the various 
res seems in reality to be the fact that whoever has a res 
is actually or prospectively so much the better off. n Grotius 
defines ' things ' as ' whatever is external to man and in any 
way useful to man'. 2 This, however, is not wide enough, 
for 'thing' in its legal significance includes not merely 
material things but also rights over material things ( jura 
in re) and rights to services (jura in personam). Voet's 
definition of res as ' everything of which the Courts take 
cognizance' 3 is perhaps to be preferred. It is, however, 
unprofitable to labour to define what is scarcely definable. 
In the following pages we follow modern practice and 
treat as separate and principal divisions of the Law : the 
Law of Property, the Law of Obligations, and the Law 
of Succession. The subject of this Book is the Law of 
Property, which will include ownership and real rights 
connected with or derived from ownership. We shall speak 
of: 1. The meaning of ownership; 2. The classification of 
things; 3. How ownership is acquired; 4. The incidents 
and kinds of ownership; 5. Possession; 6. Servitudes; 
7. Mortgage or Hypothec. 

1 Moyle, Justinian's Institutes, p. 187. 

2 Gr. 2. 1. 3: Zaken noemen wy hier al wat daer is buiten den 
mensch, den mensch eenichsints nut zijnde. 

8 Voet (Elem. Jur. 2. 1. 1): Res est omne id de quo jus dicitur. 
Jus namque dicitur inter personas, de rebus, auxilio actionum. 



I 

THE MEANING OF OWNERSHIP 

DOMINION or Ownership is the relation protected by law in Dominion 
which a man stands to a thing which he may : (a) possess, ^ip^* 
(6) use and enjoy, (c) alienate. 1 The right to possess 
implies the right to vindicate, that is, to recover possession 
from a person who possesses without title to possess 
derived from the owner. Grotius selects this right as the 
most signal quality of ownership, which he says is the 
relation to a thing by virtue of which a person not having 
the possession may obtain the possession by legal process. 2 
This analysis of ownership is more particularly applicable 
to the ownership of a material thing, and it is in this sense 
that the word 'ownership' is used in this chapter. In an 
extended sense the word is also applied to the analogous 
relation in which a man stands to an incorporeal thing such 
as patent-right or copyright, or to a universitas juris such 
as inheritance. 3 To constitute full ownership all the above- 
mentioned rights must be exclusive. Where all these rights 
are vested in one person to the exclusion of others he is 
sole owner. 4 Where all these rights are vested in two or 
more persons to the exclusion of others they are co-owners. 
If one or more of these rights is vested in one person, the 
remainder in another or others, the ownership of each of 
such persons is qualified or restricted. 5 Thus, if you have 
by contract or otherwise acquired the right to : (a) possess, p u u 
or (6) use, or (c) alienate, my property, my ownership is, ownership 
BO far, restricted ; and ownership is, so far, vested not in qualified 
me but in you. But since to speak of us both as owners 

1 Holland, Jurisprudence, p. 210; V.d.L. 1. 7. 1. 

2 Gr. 2. 3. 1. 

3 Holland, Jurisprudence, p. 211. Properly speaking, the sub- 
ject-matter of ownership is in all cases a right, but usage and 
convenience permit us to speak of the ownership of a material 
thing and to distinguish this both from the extensive sense of 
ownership mentioned in the text, and from jura in re aliena 
(servitudes, hypothec, &c.) and jura in personam (obligations). 

4 Gr. 2. 3. 10. 8 Gr. 2. 3. 11; 2. 33. 1. 



126 THE LAW OF PROPERTY 

would be misleading, unless the degree of ownership of 
each of us were on every occasion exactly specified, it is 
usual to speak of one of us only as owner of the thing and 
as having a restricted ownership in it, while the other 
is spoken of as owner of the right, and as having a right 
Jura in re of possession, a right of use and enjoyment, a right of 
alienation, in or over the property of another. Hereupon 
the question arises which of two or more such competitors 
is to be regarded as owner, which not as owner. The 
answer depends not so much on the extent of the right 
or of the profit derived from it as on the consideration 
where the residue of rights remains after the deduction 
from full ownership of some specific right or rights of 
greater or less extent. Thus, if I give you a right of way 
over my field, clearly your right is specific and limited, 
mine is unlimited and residuary. 1 I therefore am owner, 
you not. The same applies if you have the usufruct of 
property, the residuary rights over which are vested in me, 
or even if you have an inheritable right of the kind termed 
emphyteusis. 2 In all these cases the dominium remains in 
me, but in the two last, being reduced to a mere shadow, 
at all events for the time, it is bare ownership (nuda 
proprietors), i.e. ownership stripped of its most valuable 
incidents. All the above-mentioned rights, it must be 
noted, whether greater or less, are rights of property, and 
as such protected by appropriate remedies against all the 
world ( jura in rem) ; but while the residuary right, how- 
ever reduced, is a right of ownership (dominium jus in re 
propria), the specific rights, however extended, are rights 
inferior to ownership (jura in re aliena). Such, at least, is 
the analysis commonly accepted. Grotius, however, uses 
the word eigendom (ownership) in a wider sense; for he 
includes under it both dominium (stricto sensu) which he 
distinguishes as voile eigendom dominium plenum, and 
jura in re aliena which he distinguishes as gebreckelicke 

1 Gr. 2. 33. 5. 

2 Gr. 2. 33. 1 ; Dig. 6. 3. 1 : Qui in perpetuum fundum fruendum 
conduxerunt a municipibus, quamvis non efficiantur domini, &c. 



THE MEANING OF OWNERSHIP 127 

eigendom dominium minus plenum* In the following 
pages when we use the word ' ownership ' we mean either 
complete ownership or the residuary right which remains 
in a person after deduction from his ownership of specific 
and limited portions of ownership vested in another or 
others. 

1 Gr. 2. 3. 9. 



II 



How 

things 
are classi- 
fied. 



Things as 
objects of 
owner- 
ship. 



THE CLASSIFICATION OF THINGS 

WHEN we speak of the classification of things, we mean 
their classification according to the legal system which 
we are examining. In the Roman-Dutch system things 
are classified, first, according to their relation to persons, 
i.e. in regard to the question whether they are or are not 
objects of ownership ; and secondly, according to their 
nature, as corporeal and incorporeal, movable and immov- 
able. 1 The significance of these distinctions will appear 
from the sequel. 

THINGS AS OBJECTS OF OWNERSHIP. Justinian distin- 
guishes things as (a) res communes, (6) res publicae, (c) 
res universitatis, (d) res nullius, (e) res singulorum. 2 These 
categories have little scientific value, but will serve as a 
basis of classification. 



Res com- 
munes 
and res 
publicae. 



The air. 



To the class of things common, i.e. common to all man- 
kind, are referred the air, flowing water, the sea, and the 
sea-shore. 3 The class of things public includes harbours, 4 
public rivers or lakes, 5 and public roads. 6 In the Roman 
view the above classes of things cannot be owned either 
by individuals or by corporations. Thus, the air is not 
susceptible of ownership, but it is not inconsistent with 
this that a landowner has certain rights in respect of the 
air incumbent on his land, so that, e.g. he may require his 
neighbour not to project his building into it. 7 

1 Gr. 2. 1. 4. 

2 Inst. 2. 1 pr. ; Gr. 2. 1. 16; Voet, 1. 8. 1 ; (a) (b) (c) and (d) are 
said to be extra nostrum patrimonium, i.e. legally incapable of 
being owned, or acquired by a private person. Other things are 
in nostro patrimonio. Inst. loc. cit. 

3 Inst. 2. 1. 1 ; Dig. 1. 8. 2; Gr. 2. 1. 17 and 21 ; Voet, 1. 8. 3. 

4 Inst. 2. 1. 2. 

5 Gr. 2. 1. 25-8; Van Leeuwen, 2. 1. 12. 

6 'Herewegen.' Gr. 2. 35. 9; Gens. For. 1. 2. 14. 34; Stockmans, 
Decis. Brabant, no. 85. 

7 Gr. 2.1. 23; 2. 34. 8. As to aircraft see Act No. 16. of 1923, sec. 9. 



CLASSIFICATION OF THINGS 129 

The sea-shore is said to be res communis, 1 but according The 
to another and perhaps better view it was the property 8ea " sllore - 
of the Roman people. 2 In the modern law it is the property 
of the Crown. 3 The use is common to the people of the 
State, so that every member of the community may use 
it for any lawful purpose not inconsistent with the rights 
of others. 4 The sea-shore extends on the land side as far 
as the highest winter flood. 5 

Rivers are either public or private. Public rivers are Public 
such as flow perennially ; 6 rivers which do not flow perenni- nvers - 
ally are private. But a public river does not become private 
merely from having dried up in one summer. 7 Private 
rivers are matter of private right and call for no further 
reference in this place. Public rivers are publici juris. As 

1 Inst. 2. 1. l. 

2 Dig. 43. 8. 3 pr. 

3 Survey or -General (Cape) v. Est. De Villiers [1923] A.D. at 
p. 594 per Innes C.J. In South Africa the Sea-shore Act, 1935, 
sec. 3(1) declares the Governor-General to be the owner of the 
sea-shore. Sec. 13 reserves the rights of the public. For Ceylon 
see Attorney -General v. Pitche (1892) 1 S.C.R. 11, and Rowel 
Mudaliyar v. Pieris (1895) 1 N.L.R. 81. 

4 This in Roman Law included the right of building ; and the 
ground occupied became the property of the owner of the fabric, 
but only for so long as the building stood. Dig. 1. 8. 6 pr. ; 41. 1. 
14; Voet, 1. 8. 3. 

6 Inst. 2. 1. 3; Dig. 50. 16. 96 and 112; Pharo v. Stephan [1917] 
A.D. 1 ; (Ceylon) Fernandas. The Kalutar a Police (1943) 45 N.L.R. 
49 ; and now in S.A. by statute : 'Sea-shore means the land situated 
between low-water mark and high-water mark.' 'High -water 
mark means the highest line reached by the sea during ordinary 
storms occurring during the most stormy period of the year, 
excluding exceptional or abnormal floods.' 'Low -water mark 
means the lowest line to which the sea recedes during periods of 
ordinary spring tides.' Sea-shore Act, 1935, sec. 1. 

8 Dig. 43. 12. 1, 3. 

7 Dig. 43. 12. 1. 2; Vermaak v. Palmer [1876] Buch. at p. 28; 
De Wet v. Hiscock (1880) 1 E.D.C. at p. 257. In the (Union of 
South Africa) Irrigation and Conservation of Waters Act, 1912, 
public stream is denned (sec. 2) as 'a natural stream of water 
which, when it flows, flows in a known and denned channel 
(whether or not the channel is dry during any period) if the water 
thereof is capable of being applied to the common use of the 
riparian owners for the purposes of irrigation'; and 'a stream 
which fulfils these conditions in part only of its course shall be 
deemed to be a public stream as regards that part only'. See Van 
Niekerk and Union Government v. Carter [1917] A.D. at p. 377. 

4901 



130 THE LAW OF PROPERTY 

such they cannot be privately owned, but may be used and 
enjoyed by all members of the community for navigation 
or fishing. 1 Amongst public rivers the Roman-Dutch Law, 
following the feudal law, distinguished further between: 
(1) navigable rivers and their tributaries, (2) other public 
Regalia, rivers. 2 The former class fell under the head of regalia, 3 with 
the result that fishing in navigable rivers and other inland 
navigable waters was not permitted without licence from 
Government. 4 This distinction is of little or no importance 
at the present time, for in the modern law the prerogative 
of the Crown extends to all public rivers and streams. 5 
Whatever has been said as to the rights of the public in 
public rivers must be understood subject to the qualification 
that no person may exercise his right improperly to the 
public detriment. Accordingly an interdict lies to prohibit 
interference with navigation or the flow of the stream. 6 

1 Voet, 1. 8. 8. 

2 This distinction appears already in the Roman Law in con- 
nexion with the topic of leading water. Dig. 43. 12. 2; Voet, 

1. 8. 9 (ad fin.). 

3 Lib. Feud. II. 55 (56) (constitution of Frederick I of 1158); 
Gudelinus, de jure novissimo, 5. 3. 5 ; Groen. de leg. abr. ad Inst. 

2. 1. 2; Vinnius ad Inst. 2. 1. 2, sec. 3; Gr. 2. 1. 25-7; Huber, 
Heedensdaegse Rechtsgeleertheyt, 2. 1. 17-19; Voet, 1. 8. 8 and 9 
(ad fin.); 49. 14. 3. 

4 Gr. 2. 1. 25-7; Van Leeuwen, 2. 1. 13; Voet, 1. 8. 9 ad Jin.; 
41. 1. 6; but rod-fishing was allowed. Gr. 2. 1. 28. The right of 
ferry (veer-recht) also was included under the head of regalia. 
Provincial Administration (O.F.S.) v. John Adams and Co. [1929] 
O.P.D. 29. On the subject of ferries reference may be made to 
F. A. Holleman, Rechtsgeschiedenis der Heerlijke Veren in Holland, 
a thesis presented for the degree of doctor juris, Leiden, 1928. 

8 This seems a legitimate inference from Van Niekerk's case. By 
Dutch Law regalia, speaking generally, were inalienable (Resolutie 
van de Staten van Hollandt, 15 September, 1620, 3 G.P.B. 734); 
and in this connexion the distinction indicated in the text may 
still exist 'Without expressing any view upon the position of 
navigable rivers it will be sufficient to say that the Crown may 
validly include in a grant of land the bed of a non-navigable 
public stream' (per Innes C.J. in Van Niekerk's Case at p. 373) 
and 'when once property is shown to be riparian that is, to run 
up to the natural boundary of the river then it lies upon him 
who contests its extension to midstream to show that it stops at 
the bank' (p. 376). For Ceylon see Wanigatunga v. Sinno Appu 
(1925) 27 N.L.R. 50 (the bed of a public stream belongs to the 
Crown). Dig. 43, tits. 12 and 13. 



CLASSIFICATION OF THINGS 131 

The phrase res nullius is used in the Roman Law in Res 
three distinct senses: 1 (1) Res communes are said to be res nuUlus - 
nullius and humani juris; (2) Res sacrae, religiosae and 
sanctae (churches, graveyards, city walls) are res nullius 
and divini or quasi divini juris ; 2 (3) Things ownable, but 
unowned, are res nullius 3 and may be acquired by occupa- 
tion. With regard to the second of these classes, which 
alone here concerns us, it is sufficient to say that it has no 
place in Roman-Dutch Law, since all the things comprised 
in it are owned either by corporations or individuals or by 
the State. 4 

Passing over things ownable, but unowned in fact, of Kesuni- 
which we shall speak hereafter, we come to the last two Versi . tatl8 

* res sin.211* 

classes in Justinian's division, viz. res universitatis and lorum. 
res singulorum. The first class comprises things owned by 
towns, villages, and similar societies or by corporations. 5 
The second class comprises things owned by individuals. 
This distinction seems to be a distinction not of things, 
but of persons, i.e. according as they are (a) artificial or 
juristic persons; or (6) natural persons. 

THINGS ACCORDING TO THEIR NATURE. Things are Things 
further classified according to their nature as corporeal 



and incorporeal. 6 Corporeal things can be touched, e.g. nature: 
land, houses, cattle, clothes. 7 Incorporeal things consist andin- 
in a right, as servitude, inheritance, obligations, debts, corporeal; 
actions, rents. 8 

Again, things are divided into immovables and mov- immov- 
ables. 9 This is properly a classification of corporeal 
things; but in law most incorporeal things are deemed 

1 See Kotze's Van Leeuwen, vol. i, p. 148 (translator's note). 

2 Voet, 1. 8. 1. 8 Inst. 2. 1. 12; Gr. 2. 1. 50-2. 

4 Gr. 2. 1. 15 ; Van Leeuwen, 2. 1. 9 ; Groen. de leg. abr. ad Inst. 
2. 1. 8 and 9; Cape Town Waterworks Co. v. Elders' Exors. (1890) 
8 S.C. 9. 

6 Gr. 2. 1. 31 ff. ; Voet, 1. 8. 10. The State (or what comes to the 
same thing, the fiscus) may, of course, o wn property qua individual. 
Property so owned is not properly speaking res publica. It is in 
pecunia populi, not publico usui destinata. Dig. 18. 1. 6 pr. ; Gr. 2. 
1. 40. 6 Gr. 2. 1. 9; Voet, 1. 8. 11. 

7 Gr. 2. 1. 10. 8 Gr. 2. 1. 14; Voet, 1. 8. 18. 
9 Gr. 2. 1. 10; Voet, 1. 8. 11. 



132 THE LAW OF PROPERTY 

to be comprised under immovables or movables. 1 This 
division, therefore, becomes the principal basis of classi- 
fication. Where, however, the context requires it, in- 
corporeal things form a third and separate class by 
themselves. 2 The class of things immovable comprises 
not merely things physically immovable, but also some 
movable and incorporeal things, which are deemed to be 
immovable and are governed by the law of immovables. 
The class of things movable comprises not merely things 
physically movable, but also some incorporeal things 
which are deemed to be movable and are governed by 
What the law of movables. Immovable 3 things and things 
deemed to be immovable are: (1) land and houses; 4 



immov- (2) things naturally or artificially annexed to or associated 
with land and houses 5 (under this head fall growing 
trees and fruits ; minerals, stones, &c. ; certain movables 
annexed to houses even though temporarily removed; 
certain movables not annexed to, but enjoyed along with, 
land and houses or destined for perpetual use therewith) ; 6 
(3) praedial servitudes ; 7 (4) personal servitudes over im- 
movables ; 8 (5) actions in rem directed to the recovery of 
immovables ; 9 (6) annual rents charged on land ; 10 and (7) in 
the modern law, leases of immovable property so far as 
they create rights in rem ; n (8) other real rights over land 

1 Voet, 1. 8. 18; Ex parte Master of the Supreme Court [1906] 
T.S. 563. 

2 Voet, 1. 8. 29; V.d.K. 178-9; Ex parte CronwrighVs Exors. 
[1938] C.P.D. 236. 

3 Ontilbaer ofte onroerbaer; res immobiles. 4 Gr. 2. 1. 12. 
6 Gr. 2. 1. 13 : Wat aerd- ofte naghel- vast is, werd ghehouden als 

een gevolg van het ontilbare; Voet, 1. 8. 13-14. Rex v. Mabula 
[1927] A.D. 159. Van Leeuwen (Gens. For. 1. 2. 1. 4) adds title- 
deeds. For Ceylon see Brodie v. Attorney -General (1903) 7 N.L.R. 
81. 6 Voet, ubi sup. 7 Voet, 1. 8. 20. 

8 Voet, ibid. Voet, 1. 8. 21. 10 Voet, 1. 8. 24. 

11 Collins v. Hugo (1893) Hertzog 176 per Kotze J. ; Ex parte 
Master of the Supreme Court [1906] T.S. 563; infra, p. 161. By 
the Deeds Registries Act No. 47 of 1937, sec. 102, 'immovable 
property' includes: 

(a) Any registered lease of rights to minerals ; and (6) any 
registered lease of land which, when entered into, was for a period 
of not less than ten years or for the natural life of the lessee or any 
other person mentioned in the lease, or which is renewable from 



CLASSIFICATION OF THINGS 133 

and houses. 1 Mortgages, even of land, are classed as mov- 
ables, the mortgage being considered as merely accessory 
to a principal and personal obligation, whose nature it, 
therefore, follows. 2 

Movable things and things deemed to be movable are : What 
(1) all movable things except such as are deemed to be da^d^s 
immovable ; (2) money, and rents accrued due 3 (this movables. 
includes money destined to be laid out in land, 4 or arising 
from the sale of land) ; 5 (3) securities for money (including 
mortgages of immovable property) ; 6 (4) personal servi- 
tudes over movables ; 7 (5) actions in personam and actions 
in rem directed to the recovery of movables ; 8 (6) annual 
rents not charged on land; 9 (7) shares in a company; 10 
(8) all other property capable of classification as movable 
or immovable and not specifically assigned to the class of 
immovables. This includes most incorporeal rights other 
than such as have already been mentioned. 

The legal consequences and therefore also the impor- The im- 
tance of the distinction of things as immovable or mov- P^ nce 
able are principally the following: 11 (1) in relation to the distinc- 
Conflict of Laws immovables generally follow the lex loci 



rei sitae, movables generally following the lex domicilii ; 12 immov- 
(2) immovables require special formalities of alienation or movables. 
hypothecation ; 13 (3) special rules apply to the alienation 

time to time at the will of the lessee indefinitely or for periods 
which together with the first period amount in all to not, less than 
ten years. See also the definition of 'immovable property ' in Adm. 
of Estates Act, 1913, sec. 2, and for Ceylon the definition of 'Land' 
in Ord. No. 23 of 1927 (Registration of Documents Ordinance), 
sec. 3. 

1 Rosen v. Band Townships [1939] W.L.D. 5. 

2 Voet, 1. 8. 27. Eaton v. Registrar of Deeds (1890) 7 S.C. at 
p. 255 perhaps not always. Union Govt. ; v. Fisher's Executrix 
[1921] T.P.D. 328. 3 Voet, 1. 8. 22. * Voet, 1. 8. 15. 

5 Voet, 1. 8. 16. 6 Voet, 1. 8. 27. 7 Voet, 1. 8. 20. 

8 Voet, 1. 8. 21. According to Van der Keessel (Th. 179) an 
action on a kusting-brief (infra, p. 203) is an immovable. 

9 Voet, 1. 8. 24. 10 Act 46 of 1926, sec. 32 (1). 

11 Voet, 1. 8. 30. 

12 Paul Voet, De mobil. et immobil. natura, cap. xxiii, sees. 1 and 3. 

13 Op. cit., cap. xix, sees. 3 and 4; as to transfer of immovables 
out of an estate by an executor see Adm. of Est. Act, 1913, sec. 62. 



134 THE LAW OF PROPERTY 

of the immovable property of minors ; l (4) the process of 
execution upon immovables differs from the process of 
execution upon movables. 2 

The above distinctions, though a useful guide, are not in- 
variably conclusive. A thing may, for instance, be treated 
as immovable for some purposes but not for all. Thus a 
mortgage of land, like a sale or other alienation, requires 
to be solemnly executed and registered if it is to bind 
third parties, and so far resembles immovable property, 3 
but is, nevertheless, as we have seen, in other respects 
classed with movables. 

Fixtures. As to things annexed to land or houses, or what are 
commonly called fixtures, the question whether they have 
become immovable through annexation by human agency 
depends upon the circumstances of each case. 'The thing 
must be in its nature capable of acceding to realty, there 
must be some effective attachment (whether by mere 
weight or by physical connexion), and there must be an 
intention that it should remain permanently attached ' ; 
and 'the intention required (in conjunction with annexa- 
tion) to destroy the identity, to merge the title, or to 
transfer the dominium of movable property must surely 
be the intention of the owner'. 4 

1 Op. cit., cap. xviii, sec. 1 ; supra, pp. 49, 110. 

2 Op. cit., cap. xx, sec. 7 ; Van der Linden, Verhandeling over de 
Judicieele Practijcq, book iii, chap, vi; Nathan, Common Law of 
South Africa, vol. iv, pp. 2206 ff. A judgment creditor must excuss 
the movable property of his debtor before proceeding against the 
immovables: Cape Rules of Court, Rule 36; Hart v. Lennox [1926] 
W.L.D. 219. As to the incapacity of a guardian to take immovable 
property under the will of his ward see below, p. 364. The dis- 
tinction is also of importance in insolvency, in construing wills, 
contracts and mortgages, and in determining the incidence of 
transfer duty, rates and taxes. 

8 Voet, 1. 8. 27. 

4 Macdonald Ltd. v. Rodin N. 0. & Potchefstroom Dairies [1915] 
A.D. at pp. 466-7 per Innes C.J. ; Gault v. Behrman [1936] 
T.P.D. 37; (Ceylon) Tissera v. Tissera (1940) 42 N.L.R. 60. 



Ill 

HOW OWNERSHIP IS ACQUIRED 

IN this chapter we deal with the acquisition and extinc- Modes of 
tion of ownership in corporeal things and principally with *^^f " 
the legal modes of acquisition of ownership, i.e. the pro- corporeal 
cesses which, in law, make a thing mine. The modes of 
acquiring and losing ownership of incorporeal things will 
be considered in connexion with the various incorporeal 
things of which we shall speak hereafter. The modes of 
acquisition of corporeal things, i.e. of single things (rerum 
singularum) for with acquisition per universitatem we 
are not now concerned are principally the following: viz. 
(1) occupation; (2) accession; (3) specification; (4) tradi- 
tion or delivery; (5) prescription. We shall speak of these 
in order. Since the Dutch treatment of modes of acquisi- 
tion closely follows the Roman Law, we shall credit the 
reader with a knowledge of the first title of the second 
book of Justinian's Institutes and limit ourselves to re- 
calling the heads of classification therein contained, and 
to directing the attention to some particulars in which the 
Roman-Dutch Law presents features of peculiar interest. 

I. Occupation may be defined as the lawful seizing Occupa- 
(with the intention of becoming owner) of an unowned tlon * 
corporeal thing capable of ownership. 1 This mode of ac- 
quisition is applicable inter alia to: (1) wild beasts, birds, 
and fishes ; 2 (2) enemy goods ; 3 (3) abandoned things (res 
derelictae) ; 4 and, in short, to every ownable thing which 
either never has been owned or having once been owned 
is owned no longer. 5 

With regard to wild animals the Dutch Law departed Wild 

animals. 

1 Voet, 41. 1. 2; Heinecc. Elem. Jur. Civ. ad Inst., sec. 342. 

2 Inst. 2. 1. 12-16; Bichter v. Du Plooy [1921] O.P.D. 117; 
Lament v. Heyns [1938] T.P.D. 22. Held by the Natal Court in 
Dunn v. Bowyer [1926] N.P.D. 516 that a person who captures a 
wild animal illegally does not become owner. 

3 Inst. 2. 1. 17; Mshwakezele v. Guduka (1903) 18 S.C. 167. 

4 Inst. 2. 1. 47. 6 Gr. 2. 1. 60. 



136 THE LAW OF PROPERTY 

in many particulars from the law of Rome. It is, however, 
unnecessary to recall the obsolete feudal customs and 
game laws which formed part of the old law. 1 Such 
matters are now regulated by legislation. 2 One doubtful 
point may be mentioned, viz. as to the ownership of 
tamed animals which have lost the animus revertendi. 3 
According to several authorities they do not thereby re- 
vert to their natural liberty, but remain the subject of 
private ownership. 4 Falcons and sparrow-hawks are cited 
as examples. The instances given suggest that the rule 
belongs to an order of ideas which has passed away. 
Lost Things which have been lost by their owner remain his 
prope y. p rO p er ^y an( j ca nnot be acquired by occupation. 5 A person 
who takes them in bad faith commits theft. 6 If after 
proper inquiry the owner is not found, the finder of a 
thing may retain it, but the full prescriptive period of 
thirty years must elapse before he can claim to remain in 
Wreckage, possession as owner. 7 Wreckage is separately treated. 
This Grotius tells us, 'used from of old to be regarded as 
the private property of the Counts, but in view of the 
increase of shipping in and about these lands the Count, 
nobles, and towns decreed that every one might recover his 
shipwrecked and lost property'. 8 The claim must be made 
within a year and six weeks, 9 and the owner must bear 

1 For which see Gr., book ii, chap. 4 ; Van Leeuwen, 2. 3. 2 ff . 
They were swept away at the end of the eighteenth century (1795), 
but fresh regulations were found necessary a few years later. 
V.d.L. 1. 7. 2. 

2 See e.g. Ceylon Ord. No. 1 of 1909, which amends and con- 
solidates the law relating to the protection of game, wild beasts, 
birds, reptiles, and fish. For the Union see Elaine's Consolidated 
Index to Statute Law, sub voce 'Game', and for Southern Rhodesia 
Revised Statutes, cap. 187. 

3 Inst. 2. 1. 15; Dig. 41. 1. 5. 5; Gr. 2. 4. 13. 

4 Cens. For. 1. 2. 3. 7 ; Voet, 41. 1. 7 ; Groen. de leg. abr. ad Inst., 
ubisup. Modern Codes (B.G.B. 960, Code Civil Suisse 719) follow 
the Roman Law. 5 Voet, 41. 1. 9; V.d.K. 189; V.d.L. 1. 7. 2. 

6 Inst. 2. 1. 48 (ad fin.). 7 Voet, ubi sup. ; V.d.k. 189. 

8 Gr. 2. 4. 36. There was much legislation. Lee, Commentary, 
ad loc. 

9 So says Grotius, but further authority is wanting ; Rechts. Obs., 
pt. 4, no. 18. Gr. is followed by Vinnius (ad Inst. 2. 1. 47) and by 
Schorer (ad Gr. 3. 27. 6), both of whom attribute this time limit to 



HOW OWNERSHIP IS ACQUIRED 137 

the cost of salvage. 1 If the wreckage remains unclaimed, 
it belongs not to the finder, but to the fiscus. 2 

Treasure in Roman Law went, as a rule, half to the Treasure. 
finder, half to the owner of the land where it was found, 3 
and, therefore, if found by the owner of the land, wholly 
to the finder. In Holland it was matter of contro- 
versy whether treasure followed the rules of the Roman 
Law or went to the Count or public chest. Grotius, 4 who 
is charged with official bias, 5 leaves the question open. 
Groenewegen decides against the Treasury ; 6 and this view 
has prevailed. 7 

Where several persons are interested in the same land, 
e.g. as dominus and usufructuarius, mortgagor and mort- 
gagee, vendor and purchaser (before delivery), the question 
may well arise who is entitled to the owner's share. 8 The 
reader will find the matter considered by Voet in his com- 
mentary, lib. xli, tit. 1. 

Mines and precious stones should, on general principles, Mines and 
belong to the owners of the soil, and that this was so by 
Dutch Law is the opinion of Voet, expressed, however, 

a Placaat of Philip II. If the reference is to the Placaat of May 15, 
1574 (2 G.P.B. 2117) this is incorrect. The statement reappears 
in Johnson & Irvin v. Mayston (1908) 29 N.L.R. at p. 701. It 
may be open to question in S.A. whether matters relating to 
wreck are governed by R.-D. L. or by English Law. See Cape Act 
No. 8 of 1879; 2 Maasdorp, p. 45; Crooks & Co. v. Agricultural 
Co-op. Union [1922] A.D. 423. l V.d.L. 1. 7. 2 (bergloon). 

2 Grotius (ubi sup.) adds 'but may easily be redeemed '. See also 
V.d.K. 193-7. For Ceylon Law see Ord. No. 4 of 1862, sec. 2; 
Pereira, p. 343. 

3 Inst. 2. 1. 39 ; Dig. 41. 1. 31, 1 ; 49. 14. 3, 10; Cod. lib. x, tit. 15. 

4 Gr. 2. 4. 38. 

5 He was appointed advocate fiscal in 1607 and pensionaris of 
Rotterdam in 1613. 

6 Groen. de leg. abr. ad Inst. 2. 1. 39, sec. 4. 

7 Voet, 41. 1. 11; Vinnius ad Inst. 2. 1. 39 in fine; V.d.K. 198. 
In Ceylon by Ord. No. 17 of 1887, sec. 2, all treasure trove is the 
absolute property of His Majesty, and the person finding the same 
is not, as of right, entitled to any portion thereof, but the Ord. 
(as amended) provides for a reward to the finder. Treasure trove 
is defined by Ord. No. 3 of 1891, sec. 2; found property, other 
than treasure trove, goes half to the finder, half to the Treasury. 
Regulation, No. 15 of 1823; Ord. No. 26 of 1917. 

8 Voet, 41. 1. 12. 



138 THE LAW OF PROPERTY 

with no certain voice. 1 In the modern law such matters 
are regulated by statute. 2 

Accession. II. Accession is a mode of acquiring ownership whereby 
a thing becomes the property of a person by being physi- 
cally or intellectually associated with some other thing 
of which such person is already owner. 3 The thing which 
accedes may either be previously unowned (res nullius) or 
previously owned (res alicujus}. When two owned things 
become united by accession it may be questioned which 
of the two accedes to the other, i.e. which is principal, 
which accessory. Grotius says that ' accession takes place 
when of two things which are joined together the more 
valuable draws to itself the less valuable'. 4 But the test 
adopted by Ulpian is better : ' Whenever we ask which of 
two things cedes to the other, we look to see which is 
applied to ornament the other'; 5 so that, e.g. precious 
stones adhere to a silver plate in which they are set; or 
we may say that the principal thing is the thing which 
maintains its independent existence whether the other 
thing is joined to it or not. 6 

Cases of Accession comprises inter alia the following modes of 
lon- acquisition: viz. (1) alluvion; 7 (2) island rising in a river; 8 
(3) change of river-bed ; 9 (4) industrial attachment (ad- 
junctio) ; 10 (5) planting 11 and sowing. 12 Details will be 
noticed only so far as the Roman-Dutch Law presents 
features of peculiar interest. . 

Alluvion. Alluvion is defined as a 'latent increment, whereby 
something is added to land so slowly that it is impossible 

1 Voet, 41. 1. 13, and see 49. 14. 3. 

2 For Ceylon Law see Ord. No. 5. of 1890 and Pereira, p. 286. 

3 Voet, 41. 1. 14; V.d.L. 1. 7. 2. 

4 Gr. 2. 9. 1 ; A Mine Timber Co. v. Hlatwayo [1932] T.P.D. 337. 
6 Dig. 34. 2. 19, 13. 

8 Dig. 6. 1. 23, 5; 41. 1. 26 pr. 7 Inst. 2. 1. 20. 

8 Inst. 2. 1. 22. 9 Inst. 2. 1. 23. 

10 Inst. 2. 1. 26 (intextura) ; sees. 29 and 30 (inaedificatio) (John- 
son & Co. v. Grand Hotel Co. [1907] O.R.C. at p. 50; Reed Bros. v. 
Ford [1923] T.P.D. at p. 153) ; sec. 33 (scriptura) ; sec. 34 (pictura) ; 
Cooper v. Jordan (1884) 4 E.D.C. 181 (wheels annexed to wagon). 

11 Inst. 2. 1. 3.1 ; Secretary for Lands v. Jerome [1922] A.D. at 
p. 117. 12 Inst. 2. 1. 32. 



HOW OWNERSHIP IS ACQUIRED 139 

to say how much is added at any one moment'. 1 By the 
Roman Law land so added by the wash of a river or stream 
belonged to the owner of the land to which it adhered. 2 

In the Netherlands the law of alluvion was very un- 
settled, and varied from province to province. 3 According 
to one view alluvion, being an incident of rivers, fell under 
the head of regalia. 4 'Certainly in South Holland,' says 
Vinnius, 'no man was formerly found to claim this right 
of increment as his own unless on the ground that the 
right had been granted to him by the Count, or that the 
land had been assigned to him to hold by the same right 
as the Count had therein, that is, up to the river.' 5 On 
principle the claim of prerogative must be limited to 
navigable public rivers, these alone falling under the head 
of regalia. 6 This limitation is not always expressed by the 
Dutch writers, who lived in a land where all rivers are 
navigable. The claim, whatever its extent, is not admitted 
by Van Leeuwen, 7 or by Voet 8 except in the case of agri 
limitati. 9 Grotius declares the claim of the Count in this 
case to be undoubted. 10 . Beyond this he expresses no 
certain opinion. 

Another case of accession is that of an island rising in island 
a public river. Here the claim of the Count is admitted by "^ 
the Dutch writers, who consider that the ownership of the 
island follows the ownership of the stream. 11 The result is 
the same when a navigable public river wholly abandons 
its course. The deserted river-bed belongs to the Crown. 12 

I Inst. 2. 1. 20. 2 Gr. 2. 9. 13; Voet, 41. 1. 15. 

3 Gr. 2. 9. 18 ff. ; Van Leeuwen, 2. 4. 2. 

4 Cens. For. 1. 2. 4. 12; Groen. de leg. abr. ad Inst. 2. 1. 23; 
Bort, Tractaet van de Domeynen van Hollandt, cap. 5, sees. 16 ff. 

6 Vinnius ad Inst. 2. 1. 20, sec. 2, following Gr. 2. 9. 26; Van 
Leeuwen, 2. 4. 4. 6 But see above, p. 130. 

7 Cens. For. ubi sup. 8 Voet, 41. 1. 28. 

9 i.e. 'defined by straight lines, having no necessary relation to 
natural features, as was usual in grants by the State.' Buckland, 
p. 211. 10 Gr. 2. 9. 25. 

II Voet, 41. 1. 17; Vinnius ad Inst. 2. 1. 22, sec. 7; Schorerod 
Gr. 2. 9. 24 ; Van Leeuwen, 2. 4. 2. 

12 Voet, 41. 1. 18: moribus nostris magis est ut alveus numinis 
desertus fisco cedat. The same holds good of the beds of public 



140 THE LAW OF PROPERTY 

But a partially abandoned river-bed accedes to riparian 
owners provided that they have the right of alluvion. 1 
Inunda- If land is covered by flood it does not therefore cease 
to belong to its owner, who may resume possession when 
the flood abates. 2 In Holland, naturally, the legal conse- 
quences of inundation were matter of serious interest. The 
rule of the Roman Law, which left inundated lands the 
property of their original owners, might have hindered 
efforts at reclamation. Accordingly, the law provided that 
if the land had continued under water for a whole period 
of ten years, and the owner had not given any evident 
indication of an intention to retain possession (which, 
contrary to the Roman Law, 3 he might do by fishing 
merely), the land was held to be abandoned and to go to 
the Count. 4 It is scarcely necessary to add that inter- 
mittent floods do not affect the ownership of property 
Sand without evidence of abandonment. 5 In Holland sand- 
( ^^* drift was by custom assimilated to flood, so that if land 
had for a period of ten years remained unenclosed from 
the waste and completely covered by sand it became by 

lakes. Voet, 41. 1. 18. Of. 1 O.P.B. 1252 ; and see Bort, Domeynen 
van Hollandt, cap. 5, sees. 38 ff. 

1 Vinnius ad Inst. 2. 1. 23, sec. 3. The statement in the text 
must be read in connexion with the decision in Van Niekerk & 
Union Oovt. v. Carter [1917] A.D. 359 to the effect that property 
bounded by a non -navigable stream must be presumed to extend 
ad medium filum fluminis ; and that, though this presumption 
may be rebutted, the mere facts that the diagram does not extend 
beyond the bank and that the specified measurement is complete 
without such extension are not, either singly or together, sufficient 
to establish a rebuttal (per Innes C.J. at p. 378). As to navigable 
rivers the Court refrained from expressing an opinion (supra, 
p. 130, n. 5). It is interesting to note that 'the Roman-Dutch 
Law that riparian owners only own to the edge of the stream is the 
present law of New York. . . . The survival of this law has resulted 
in litigation with reference to the bed of the Hudson River. ' 
Prof. H. Milton Colvin in Memoir es de V Academic Internationale de 
Droit compare (Sirey, Paris, 1934, vol. ii, pt. ii, p. 136). The 
Dutch were in occupation from 1624 to 1664. 

2 Inst. 2. 1. 24. 

3 Dig. 7. 4. 23. The text is not altogether in point, but it is cited 
in this connexion. 

4 Gr. 2. 9. 7; Voet, 41. 1. 19; Vinnius ad Inst. 2. 1. 24, sec. 2. 
8 Gr. 2. 9. 8. 



HOW OWNERSHIP IS ACQUIRED 141 

accession the property of the owner of the adjoining waste 
and sand-hills, i.e. usually the property of the fiscus. 1 

Another small difference between the Roman and the Inaedi- 
Roman-Dutch Law may be noted in connexion with the c 
rights of the owner of material which another person has 
used for building his house. 2 By a rule which dates from 
the XII Tables, the last-named person, at all events if the 
material was res furtiva, was answerable to the owner for 
double value (actio de tigno juncto)* In Dutch Law the 
double penalty was not admitted, but the owner of the 
material had his action for damages. 4 

Voet brings acquisition of fruits under the general head Acquisi- 
of accessio. It is more often treated as a distinct title. But fr" t 
on a careful analysis it appears that the various cases of 
acquisition of fruits cannot be referred to a single principle. 
The usufructuary acquires by perceptio, i.e. by taking, 
the emphyteuta and bona fide possessor by separatio, the 
lessee by a kind of traditio. 5 

III. Specification is a separate mode of acquisition. Specifica- 
The media sententia adopted by Justinian 6 is an unsatis- 
factory solution. The French code does better by discard- 
ing the test of reducibility, and assigning the ownership 

to the specificator, when the value of the work far exceeds 
the value of the material. 7 

IV. Tradition or Delivery 8 considered as a mode ofTradi- 
acquisition may be described as a transfer of possession 

of a corporeal thing under such circumstances that it 
effects a transfer of ownership. 9 Normally, tradition 
implies a physical transference of possession from one 
person to another. But this is not always so. The trans- 
ference may have taken place already for some other 
cause. Thus, I have lent you my watch. Now I give it 

1 Gr. 2. 9. 6; Voet, 41. 1. 20. No ultimate authority has been 
found for this statement. 2 Inst. 2. 1. 29-30. 

3 Dig. 47. 3. 1; 24. 1. 63; 6. 1. 23, 6; 10. 4. 6. 

4 Gr. 2. 10. 7 ; Groen. de leg. abr. ad Inst. 2. 1. 29 ; Voet, 47. 3. 2. 

5 Girard, p. 344; Buckland, Textbook, p. 221. 

8 Inst. 2. 1. 25. 7 C.C. Arts. 570, 571. 

8 Leevering ofte opdrachte. Gr. 2. 5. 2. 
Voet, 41. 1. 34. 



142 THE LAW OF PROPERTY 

you. 1 As a rule the ownership in a gift does not pass until 
tradition. But here tradition has preceded and further 
handing over is unnecessary. This is called 'brevi manu 
traditio'. 2 The same consequence follows if an agent who 
holds goods for A receives directions to hold them for B. 
' The effect of such change of custody is to constitute 
delivery to such third person.' 3 Conversely, I may agree 
to remain in possession, not as owner any longer, but as 
borrower, e.g. I give you my watch on condition that you 
are to lend it me until next week. Technically, two trans- 
ferences of possession are necessary, first to perfect the 
gift, secondly to effect the loan. But the two cancel one 
another, and I remain in physical possession, but under a 
new right. This is called 'constitutum possessorium'. 4 An 
alleged agreement of the sort is regarded by the Courts 
with some suspicion and disfavour. ' A process by which a 
change of dominium may depend upon a mere change of 
mental attitude is one the application of which should be 
carefully scrutinized.' 5 In both the above cases the tradi- 
'Ficti- tion is said to be ' feigned ' or ' fictitious ' ; and so it is too 
tradition, when there is no actual handing-over, but a thing is placed 
in my sight or I am placed in sight of it, so that I may 
easily take possession.' This is 'longa manu traditio'. 6 
Another kind of tradition is said to be symbolical, e.g. 
when the keys of a warehouse are handed over (on the 
spot ?), the building and its contents are deemed to pass. 7 
But there is nothing symbolical or fictitious about this 

1 Inst. 2. 1. 44; Dig. 41. 2. 9, 5. Cf. Dig. 12. 1. 9, 9; 12. 1. 10. 

2 Gr. 2. 5. 11 ; Voet, 41. 1. M;Meintjes v. Wilson [1927] O.P.D. 
183 

3 Court v. Mosenihal & Co. (1896) 13 S.C. at p. 153; B.G.B. 931. 

4 This is still recognized in S.A. Goldinger's Trustee, v. Whitelaw 
[1917] A.D. 66; Groenewald v. Van der Merwe [1917] A.D. 233; 
Katz v. Dreyer's Trustee [1920] A.D. 454; Visagie v. Muntz & Co. 
[1921] C.P.D. 582. 

5 per Innes C.J. in Goldinger's Trustee v. Whitelaw & Son, 
ubi sup. at p. 74. 

6 Dig. 46. 3. 79 ; Groenewald v. Van der Merwe, ubi sup. at p. 239 ; 
Xapa v. Ntsoko [1919] E.D.L. 177; Kaal Valley Supply Stores v. 
Louw [1923] O.P.D. 60. 

7 Inst. 2. 1. 45; Dig. 41. 1. 9, 6. Papinian (Dig. 18. 1. 74) says 
'apud horrea'. 



HOW OWNERSHIP IS ACQUIRED 143 

process, for handing over the keys is the best means of 
giving control over and therefore possession of the ware- 
house and its contents. 1 In other words, the possessor of 
the keys is prima facie also possessor of the building. 

Tradition will not operate as a means of acquiring Essentials 
ownership (but only as a transfer of possession) unless f ^^ 
the following conditions concur : mode of 

1. The transferor must be owner, or at least act by 
authority of the owner, viz. as his servant or agent. 2 
Ratification is equivalent to antecedent authority. 

2. The transferor must have the intention of transferring 
ownership 3 ex justa causa. 4 Such intention is absent when 
a person transfers his own property in error, supposing 
that it is the property of another person. 5 

3. The transferor must be legally competent to alienate. 
Therefore a minor (generally speaking) or an interdicted 
prodigal cannot pass ownership by tradition without the 
authority of his tutor or curator. 6 

1 Savigny, Das Recht des Besitzes, book ii, sec. 16 ; C. H. Monro 
on Dig. xli, 1, Appendix 1. 

2 Inst. 2. 1. 42-3 ; Dig. 41. 1. 20 pr. ; Gr. 2. 5. 15 ; Van Leeuwen, 
2. 7. 5; Voet, 41. 1. 35. Sometimes the authority is conferred by 
law and not by act of party. ' Accidit aliquando ut qui dominus 
non sit alienandae rei potestatem habeat' (Inst. 2. 8 pr.), as the 
pledgee, or the guardian as administrator of his ward's property. 

3 Inst. 2. 1. 40. 

4 This means that the legal disposition intended is of such a kind 
that the transfer of possession carries with it in law transfer of 
ownership. Dig. 41. 1. 3 pr. : Nunquam nuda traditio transfert 
dominium sed ita si venditio aut aliqua justa causa praecesserit 
propter quam traditio sequeretur. See Beyers v. McKenzie (1880) 
Foord at p. 127. The causa need not literally precede. It may be 
simultaneous with the tradition. 

5 Dig. 41. 1. 35: nemo errans rem suam amittit. 

6 Supra, pp. 49 and 115. For prohibition of alienation in fraud 
of creditors see Gr. 2. 5. 3 (ad fin.) and 4 ; Van Leeuwen, 2. 7. 8-9 ; 
Voet, lib. xlii, tit. 8 (actio pauliana); V.d.K. 199-200; and the 
learned judgment of Berwick D.J. (Ceylon), in Ramanathan, 
1872-6, 7, p. 89 (repeated in 3 N.L.R. 282). More recent cases 
Punchi Banda v. Perera (1928) 30 N.L.R. 355 ; Deutrom v. Deu- 
trom (1935) 37 N.L.R. 91. In the law of South Africa the ground 
has been to a great extent covered by the Insolvency Acts, but 
not to the exclusion of the common law remedy where applicable. 
Scharff's Trustee v. Scharff [1915] T.P.D. at p. 476; Wiener v. 
Est. McKenzie [1923] C.P.D. at p. 579; Mars, Insolvency, p. 220. 



144 THE LAW OF PROPERTY 

4. The thing transferred must be legally alienable by 
delivery. This rules out things which cannot be owned 
by individuals, and things which cannot be alienated by 
this process. 1 

5. The transferee must have the intention of becoming, 
and must be competent to become, owner in consequence 
of the transfer. 2 

Transfer Thus far we have spoken of transfer in general, making 
of immov- no distinction between movables and immovables. Nor 

ables in 

Roman- was any sucli distinction known to the later Roman Law. 
Land and movables alike passed by delivery. 3 But in 
Roman-Dutch Law it was otherwise. Custom, in its many 
varieties, demanded something more to perfect a title to 
land. 4 In parts of Holland, as of Germany, 5 the con- 
veyance was required by local law to be passed before the 
Court of the district in which the land was situated. 6 This 
practice was made general and obligatory by a placaat of 

1 Res incorporates. Dig. 41. 1. 43, 1. 

2 Dig. 44. 7. 55: In omnibus rebus quae dominium transferunt, 
concurrat oportet affectus ex utraque parte contrahentium. Cf. 
Weeks v. Amalgamated Agencies Ltd. [1920] A.D. at p. 230. But 
it was not necessary that the transferee should intend to become 
owner by the causa, which was in the contemplation of the trans- 
feror. Dig. 41. 1. 36. The special rules of law relating to the transfer 
of ownership in things sold are considered in a later chapter. 

3 i.e. when traditio superseded mancipatio in sale of lands. 
But publicity was required and, in practice, a written instrument. 
Buckland, Textbook, p. 231. 

4 Fock. And., vol. i, pp. 192 ff. ; de Blecourt (5), pp. 225 ff. 
6 Gierke, Deutsches Privatrecht, ii. 271. 

8 Gr. 2. 5. 13; Voet, 41. 1. 38; V.d.K. 202; Rechts. Obs., pt. 3, 
no. 32. In the old law the person making cession of the land 
symbolized the transfer by handing over a sod or twig, later by 
handing over or throwing from him a straw (halm). Fock. And., 
vol. i, p. 192. The handing over of the title-deeds sometimes served 
the same purpose. Ibid. This process (called 'overdracht' or 
'transport') passed the property, though not followed by entry 
on the land. Ibid., p. 195, n. 1. The history of land transfer in 
R.-D. L. is considered by the Ceylon S.C. in Appuhamy v. Appu- 
hamy (1880) 3 S.C.C. 61. In this Colony: 'Traditio whether actual 
or symbolic is no longer necessary for the consummation of a sale 
of immovable property and has been replaced by the delivery 
of the deed' per Bertram C.J. in Gunatilleke v. Fernando (1919) 

21 N.L.R. at p. 265 ; confirmed in appeal to P.C. [1921] 2 A.C. 357 ; 

22 N.L.R. 385. 



HOW OWNERSHIP IS ACQUIRED 145 

the Emperor Charles V of May 10, 1529, 1 which enacts Placaatof 
that 'henceforth no one shall presume to sell, charge, ofMayio 
convey, alienate, or hypothecate any houses, lands, plots 1629. 
of ground, tithes, tijnsen (infra, p. 157), or other immov- 
able property except before the Judge and in the place 
where the goods are situated '. All sales, &c., which do not 
comply with this provision are to be null and of no effect. 
An exception is permitted in the case of feuds, which may 
be granted in the feudal Court according to ancient custom. 
Later placaats of the States of Holland imposed a duty of The duty 
the fortieth penny (2^ per cent.) on all transfers for value 2 ^^ e 
(half to be paid by the seller, half by the purchaser), and penny, 
the Political Ordinance of April 1, 1580 (Art. 37), further 
required registration in the land-book. 3 Failing com- Registra- 
pliance with either of these conditions, the transaction was tlon ' 
null and void. 4 This continued to be the law until the fall 
of the Dutch Republic, and it remains in its essential 
features the law of land-transfers at the present day. 5 In The Deeds 
South Africa the only important change that has taken ^f^uta 
place consists in the creation of a Deeds Registry, which Africa, 
supervises all transfers of land and exercises the functions 
formally vested in the Court. 6 

It should be noted that, though transfers which fail to 

1 1 G.P.B. 374; Gr. ubi sup.-, Gens. For. 1. 2. 7. 6; Voet, 41. 1. 
38-42. 2 1 G.P.B. 1953. 

3 1 G.P.B. 339. A similar provision is contained in the reissue 
of the Placaat of 1598, dated March 6, 1612, 1 G.P.B. 1957 and 
1961. Registration seems to have been first enjoined by a" Placaat 
of May 9, 1560 (2 G.P.B. 759 and 1402). 

4 Art. 13 of the Placaat (reissue of 6 March, 1612). 1 G.P.B. 
1957. 

8 British Guiana, together with other archaic usages, retained 
the practice of transfer coram judice. For Ceylon see Registration 
of Documents Ordinance, No. 23 of 1927, by sec. 7 of which an 
unregistered instrument is void as against all parties claiming an 
adverse interest thereto on valuable consideration by virtue of 
any subsequent instrument, which is duly registered. As to the 
effect of an unregistered deed see Ceylon Exports Ltd. v. Abey- 
sundere (1933) 35 N.L.R. at p. 430. 

6 For the law of South Africa herein see Harris v. Buissinne's 
Trustee (1840) 2 Menz. 105 ; Van Aardt v. Hartley's Trustees (1845) 
2 Menz. 135; Melck, Exor. of Burger v. David (1840) 3 Menz. 468; 
Wessels, History, pp. 498-9. 

4901 T . 



146 THE LAW OF PROPERTY 

Between comply with the provisions of the Placaats of 1529 and 
parties an 1598 are declared to be null and void, the transaction is 
informal j n f ac ^ on ly avoided as against third persons, whether 
holds purchasers or creditors. As between the parties them- 
good. selves the contract holds good, 1 and the risk passes to the 
purchaser, 2 but until the solemn conveyance takes place the 
ownership remains where it was. 3 In South Africa owner- 
ship passes ' at the moment that delivery of the property 
is given to [the purchaser], and that delivery occurs at the 
moment his name is entered on the register as the new 
dominus of the property'. 4 
Prescrip- y. Prescription. This means acquisition of ownership 

tion : in . . T -11 i 

the latest by long-continued possession. It will be remembered that 
Roman Justinian fused the civil law institution of usucapion and 
the provincial institution of long-time-possession or pre- 
scription, and provided that possession of movables for 
three years, of immovables for ten years inter praesentes, 
for twenty years inter absentes (this meant that so long as 
the parties were not resident in the same district the 
prescriptive period was doubled), if originating in just title 
and acquired in good faith made the possessor owner. The 
thing possessed must not have been stolen or possessed by 
violence. Possession for thirty years of movables or im- 
movables, if accompanied in its inception by good faith, 
though not originating in a just title, made the possessor 
owner, even of a res furtiva, but not of a res vi possessa. 
The commentators call this longissimi temporis praescriptio. 
in the i n the Netherlands the whole subject of prescription 

lands. was involved in the greatest uncertainty, according as 
local practice approached to or receded from the Roman 
Law. 5 The situation was further complicated by the 

1 Neostad, Supr. Cur. Decis., no. 70 ; 2 Maasdorp, p. 87. 

2 Neostad, Decis. van den Hove, no. 32. 

8 Bijnk, O.T. i. 764, 810; Harris v. Buissinne's Trustee, ubi 
sup. ; Lee, Commentary, p. 82. 

4 Breytenbach v. Van Wijk [1923] A.D. at p. 547. But registra- 
tion is not necessarily conclusive as to ownership, e.g. in case of 
marriage in community, or where a statute regulates the owner- 
ship of land. Collin v. Toffie [1944] A.D. at p. 463. 

6 Gr. 2. 7. 5; Fock. And., vol. ii, pp. 123 E. 



HOW OWNERSHIP IS ACQUIRED 147 

presence of two new terms of prescription, 1 a shorter 
period of a year and a day (which meant in practice a year 
and six weeks), 2 and a longer period of a third of a century 
(which meant in practice thirty-three years and four 
months and, as some add, three or four days). 3 

The first of these was of Germanic origin. 4 We shall The 

" *! f 

meet with it again in connexion with the possessory I* 5 " r 
remedy known as 'complainte'. 5 Independently of this it and a 
fell out of use after the middle of the seventeenth century. 6 ay ' 

The prescription of a third of a century in origin, it The 
would seem, merely a variant from the thirty years' pre- a thkd of 
scription of the Theodosian Code 7 came eventually to be a century 
the usual term of prescription, at all events for immovable movables. 
property. 8 The 'Great Privilege' granted by Mary of 
Burgundy of March 14, 1476 9 (Art. 47), fixes the period of 
prescription for immovables (leenen ende erffelijcke goeden) 
at a third of a century, 10 and the same term is met with 
in numerous documents of the sixteenth century side by 
side with the shorter and longer periods of the Roman Law. 
After Grotius pronounced in its favour it was generally ac- 
cepted as the proper term of prescription for immovables. 11 
With regard to movables Grotius expresses no final opinion. The 
Groenewegen, whose book was published in 1649, sa 
that the period of prescription is a third of a century for years for 
immovables, but thirty years for movables. 12 mova e8 ' 

At the Cape the period of prescription was thirty years Prescrip- 
alike for movable and immovable property, the first by g^JJ 1 
common law, the second by statute, and this is now Africa, 
general throughout the Union. 13 

1 Gr. 2. 7. 6 ff. 2 Voet, 44. 3. 4. 

3 Matthaeus, Paroemiae, no. 9, sec. 1. 

4 Fock. And., vol. ii, p. 124. B Infra, p. 163. 

6 Voet, 44. 3. 8 (ad fin.); V.d.K. 208. 

7 Cod. Theodos., lib. iv, tit. 14; Cod. 7. 39. 3 (A.D. 424) ; Van de 
Spiegel, Oor sprang en historic der Vaderlandsche Rechten, pp. 129- 
30. 

8 Gr. 2. 7. 8; Groen. de leg. abr. ad Cod. liv. vii, tit. 39; Van 
Leeuwen, 2. 8. 5; Cens. For. 1. 2. 10. 11. 9 2 G.P.B. 671. 

10 See Gr. 2. 7. 8. n V.d.K. 206. 

12 Groen. de leg. abr. ad Cod. 7. 39, sec. 3. 

13 Cape Act 7 of 1865, sec. 106 ; 2 Maasdorp, p. 93 ; Prescription 



148 THE LAW OF PROPERTY 

Good Some other points in the law of prescription are less 

just title doubtful. Contrary to the Roman Law the Roman-Dutch 
unneces- Law requires neither good faith nor just title. 1 All that is 
required is that the possession or quasi-possession of the 
person claiming by prescription shall be 'peaceable, open 
and as of right' (nee vi nee clam, nee precario), 2 and 
but uninterrupted. 2 Interruption (usurpatiof is either: (1) 

must S be n natura l> i- e - physical, or (2) judicial, i.e. by instituting 
undis- proceedings to enforce an adverse claim. 4 Physical inter- 
ruption, as negativing continued possession, is an absolute 
bar to prescription ; judicial interruption prevents its run- 
ning against the person who institutes the proceedings. 5 
In calculating the period of prescription, the possession of 
the predecessor in title, if adverse to the original owner, 
may be reckoned (conjunctio temporum) without any dis- 
Against tinction of good or bad faith in either party. 6 Prescription 
generally runs against the Crown, provided that the pro- 
perty claimed by this mode of acquisition is such as the 
Crown can alienate and a private person can own. 7 Time 
does not run against minors or madmen and other such 
persons, who are deemed to be minors and are subjected 
to guardianship ; nor against persons who are absent 

Act, 1943, sec. 2 (1); and in Southern Rhodesia (R.S. cap. 27, 
sec. 14). For Ceylon, see Ord. No. 22 of 1871, sec. 3, 'The effect 
of the Ordinance is to sweep away all the Roman-Dutch Law 
relating to the acquisition of immovable property by prescription 
except as regards the property of the Crown.' Pereira, p. 384. 

1 Voet, 44. 3. 9 ; Anton. Matthaeus, Paroemiae, no. 9, sees. 2-3 ; 
V.d.K. 207. 

2 Jones v. Town Council of Cape Town (1896) 13 S.C. at p. 50; 
Smith v. Martin's Exor. (1899) 16 S.C. at p. 151; Kareiga Baptist 
Church Trustees v. Webber (1903) 17 E.D.C. 105; De Beer v. Van 
der Merwe [1923] A.D. at p. 384. 

3 Van Schalkwyk v. Hugo (1880) Foord 89 ; De Klerk v. Pienaar 
(1899) 16 S.C. 370. 

4 Voet, 41. 3. 17. Extrajudicial demand is insufficient for the 
purpose. Ibid., sec. 20. 

6 Voet, 41. 3. 20: tantum in eorum cedit utilitatem qui litem 
movendo vigilarunt sibi ; cum res inter alios acta aliis nee prosit 
nee noceat. 6 Voet, 44. 3. 9. 

7 Voet, 44. 3. 11; Union Govt. v. Estate Whittaker [1916] A.D. 
194: Union Govt. v. Tonkin [1918] A.D. 533; Prescription Act, 
1943, sec. 13. 



HOW OWNERSHIP IS ACQUIRED 149 

because of war or on other public business j 1 nor against 
those who are disqualified from asserting their rights ; and 
therefore not against a fideicommissary whose right is 
suspended by a condition, if the fiduciary alienates the 
property which is the subject of the fideicommissum before 
the condition is fulfilled; 2 nor against a married woman 
whose husband has improperly alienated dotal property. 3 

The effect of prescription is to vest the ownership of Effect of 
the property in question in the possessor, so that he can ]^ cnp " 
vindicate it, if he subsequently loses possession, from the 
original owner as well as from third parties. 

From the acquisitive prescription above described the Extinc- 
reader must distinguish what is called extinctive prescrip- tlv ? P re " 

f scription 

tion, i.e. the rendering unenforceable of a right by the or limita- 
lapse of time, 4 in other words, limitation of actions. If an ^tkms 
owner seeks to recover his property, the possessor may 
contest his claim in limine by pleading that he has not 
brought his action in time. The time is the same as that 
required for acquisitive prescription (now thirty years) ; so 
that in relation to property the same period bars the 
remedy, and when the conditions of acquisitive prescrip- 
tion are present, transfers the right. 5 

The modes of extinction of ownership may be briefly HOW 
dismissed ; they correspond, in general, to the modes of p 
acquisition. Such are: 1. Dereliction or abandonment of 
possession ; loss of possession of an animal ferae naturae ; 6 

2. Accession (when it effects a transfer of ownership) ; 

3. Tradition; 4. Prescription: to which may be added 
5. Expropriation by competent authority, e.g. when land 
is taken for some public purpose ; 7 and 6. Forfeiture for 

1 Gr. 2.1.2; Voet, 44. 3. 9, citing Anton. Matthaeus, Paroemiae, 
no. 9, sees. 22-3; Schein v. Schein [1924] W.L.D. 283. 

2 See De Jager v. Scheepers (1880) Foord, 120. 

8 Voet, 44. 3. 11. The Prescription Act, 1943, like the Southern 
Rhodesia Act (R.S. cap. 27), has nothing to say on the subject 
of suspension of acquisitive prescription. 

4 Prescription Act, 1943, sec. 3(1). 

e For limitation of actions see below, pp. 281 ff. 

8 Gr. 2. 32. 3-4; V.d.L. 1. 7. 4. 

7 Gr. 2. 32. 7. 



150 THE LAW OF PROPERTY 

crime. In the time of Grotius property might be declared 
forfeit by judicial sentence. 1 But all forfeitures for crime 
were abolished in Holland by Resolution of the States of 
Holland of May 1, 1732, 2 and in the Colonies by Publica- 
tion of the States-General of August 10, 1778. 3 

1 Gr. 2. 32. 6. 

2 6 O.P.B. 577 ; Rechts. Obs., pt. 1, no. 50. 

3 9 G.P.B. 458 ; Cape Statutes, vol. i, p. 2. 



IV 
THE INCIDENTS AND KINDS OF OWNERSHIP 

WE have spoken of the nature of ownership, and of the Subject- 
distinction between full ownership and the limited rights ^g ter o 
carved out of another's ownership, which are commonly chapter, 
known as jura in re aliena. In the present chapter we 
speak of the incidents of ownership and more particularly 
of the kinds of ownership in land. 

SECTION I. THE INCIDENTS OF OWNERSHIP IN 
GENERAL 

It is a common saying that a man may do what he The 
will with his own. The proverb has an element of truth, 
Ownership comprises rights of possession, user, and aliena- ship in 
tion ; l and all these rights are limited only by the duty geni 
which the law imposes upon all to have due regard to the 
rights of each according to the maxim 'male jure nostro 
uti non debemus '. 

But what is ' male uti ', and what use of land is regarded What is 
in law as an injury to another ? It is not possible to give a ^ne^" s " 
general answer except that a landowner may do what he dut y to- 
pleases so long as he does nothing which can be referred to ne i g h- 
a recognized head of legal wrong. Thus, it may be very tour ? 
annoying to you that I should build a house with windows 
looking out over your garden, but apart from servitude you 
have no lawful ground of complaint or legal remedy. Again, 
if I sink a well in my field, the result may be that, owing to 
the interception of percolating underground water, the well 
in your field will run dry. But you are without redress. 2 

1 Supra, p. 125. 

2 Dig. 39. 2. 24, 12 ; Gr. 2. 34. 27 ; Voet, 8. 3. 6 ; Struben v. Cape 
Town Waterworks Co. (1892) 9 S.C. 68 ; Smith v. Smith [1914] A.D. 
257 ; Union Govt. v. Marais [1920] A.D. 240 ; provided that I acted 
sine animo nocendi vicino ? Dig. 39. 3. 1, 12 ; Voet, 39. 3. 4 ; Union 
Govt. v. Marais, ubi sup. at p. 247, where, however, the question 
was left 'entirely open'; Kirah v. Pincus [1927] T.P.D. 199. 



152 THE LAW OF PROPERTY 

It would be otherwise if I interfered with the flow of a 
defined underground stream. 1 

What then, apart from interruption of servitude, are the 
wrongs for which -a landowner may obtain redress from 
his neighbour ? or, to repeat the question in other words, 
what are the duties which one landowner owes to an ad- 
joining landowner ? They are mainly three : viz. (1) not to 
disturb his possession ; (2) not to interfere wrongfully with 
his enjoyment ; (3) not to cause a subsidence of his land or 
interrupt the accustomed flow of a stream. 

1. Not to (1)1 must not disturb my neighbour's possession. This 

his pos- I should do, for example, if I constructed a building on my 

session; land so that some part of it projected above his land, for 

this would be an interference with his right to build as 

high as he pleases upon his own land. 2 A like wrong is 

committed if I allow my trees to spread their branches over 

the boundary. 

' By the common law every one may build or plant trees on 
his own land, even though his neighbour's light or view may be 
obstructed thereby; but no one may by that law allow his 
trees to overhang the ground of a neighbour ; and the latter 
may cause whatever so overhangs his ground to be cut down, 3 
and if he does not do so, he is entitled to the fruits which hang 
over. ' 4 

1 2 Maasdorp, p. 120; Juta, Water Rights, pp. 5 ff. ; Breyten 
Collieries Ltd. v. Dennil [1913] T.P.D. at p. 269. 

2 Gr. 2. 1. 23 and 2. 34, sees. 4, 8, 11, 19, 23. 'Quia ejus est 
caelum cujus est solum', Schorer ad Gr. 2. 1. 23. 

3 Voet, lib. xliii, tit. 27. The same principle applies to intruding 
roots. Bingham v. Johannesburg City Council [1934] W.L.D. 180. 
As to the ownership of severed branches see De Villiers v. 0' Sullivan 
(1883) 2 S.C. 251. Action for damages caused by overhanging tree 
blown down by high wind does not lie without proof of negligence ; 
(Ceylon) Jinasena v. Engeltina (1919)21 N.L.R. 444. For nuisance 
caused by falling leaves see Kirsh v. Pincus, ubi sup. 

4 Gr. 2. 34. 21 ; Voet, lib. xliii, tit. 28. Secus jure civili; Groen. 
de leg. abr. ad Dig., lib. xliii, tit. 28. Neither Groenewegen nor Voet 
bears out the statement in the text that the neighbour may take 
hanging fruits. They both speak of fructus decidentes. Huber 
(2. 6. 20, 5. 6. 10), for Friesland, denies the right. 

In like manner I may not, apart from servitude, allow the drip 
from my eaves to fall on another's land (Gr. 2. 34. 11), nor dis- 
charge water over another's land, Gr. 2. 34. 16. 



INCIDENTS OF OWNERSHIP 153 

(2) I must not interfere wrongfully with my neighbour's 2. not to 
enjoyment. This is a topic to which the Roman and ^ng^ 
Roman-Dutch lawyers give little attention. In the modern faEy with 
law, which is largely derived from English precedents, the me nt^ 
Court will intervene by interdict to prohibit any dis- 
turbance of my neighbour's enjoyment which amounts to 

a nuisance. What this is, depends upon the circumstances 
and scarcely admits of definition. 1 The safest guide in such 
matters is to be found not in any attempted generalization 
of principle, but in the practice of the Courts in dealing with 
other cases similar in character. Another test is afforded 
by the law of servitudes. An interference with enjoyment 
which can be justified as a servitude will often, in the 
absence of servitude, be found to constitute a nuisance. 1 

(3) I must not cause a subsidence of my neighbour's 3. not to 
land or interrupt the accustomed flow of a stream 2 which ^nce'cr 
passes from my land to his. As regards the first of these interrupt 
duties, the law is that though I am free to dig in my own 

land I must not do so in such a way as to let down my 
neighbour's soil. In other words, he has a right to vertical 
and lateral support of his soil by mine. 3 This right exists 
jure naturae without any servitude. It extends to land 
which has been built upon and the buildings upon it. 4 

1 'Such an act is known as a nuisance, a term adopted from 
the English law, which in this respect is practically the same as 
our law', Wille, Principles, p. 156; McKerron, The Law of Delict, 
p. 215 ; infra, p. 328. In Roman Law the owner's remedy was the 
actio negatoria denying the servitude. Windscheid, i. 198, n. 8. 
As to the application of the principle of Rylands v. Fletcher (1868) 
L.R. 3. H.L. 330 to Roman-Dutch Law see below, p. 338, n. 4. 

2 Or of storm-water, Herzenberg Mullne Ltd. v. Cape Town 
Council [1926] C.P.D. 451. 

3 London & S. A. Exploration Co. v. Rouliot (1890) 8 S.C. 75; 
Johannesburg Muncipal Council v. Robinson Gold Mining Co. 
[1923] W.L.D. 99. 

* Phillips v. 8. A. Independent Order of Mechanics [1916] C.P.D. 
61. But, surely, some regard must be had to the character of the 
buildings and of the soil. Coronation Collieries Co. v. Malan [1911] 
T.P.D. at pp. 591-2. In United Building Soc. v. Lennon [1934] 
A.D. 149, damages were claimed in consequence of the demolition 
of a neighbouring building, but no right of support was asserted 
or proved. Right of support for buildings (semble) is not known 
in Ceylon. Pedris v. Batcha (1924) 26 N.L.R. 89. 



154 



THE LAW OF PROPERTY 



Water- 
rights. 



When 
a private 
stream 
becomes 
public. 



With respect to the flow of a stream whether above or 
under ground 1 the lower riparian proprietor is entitled to 
have the stream reach his land unimpaired in quality 
and in quantity, subject only to the upper proprietor's 
right of reasonable user and enjoyment. As to quality, he 
is entitled to an interdict against any material pollution 
of the stream. 2 As to quantity, the upper proprietor's 
right of use and enjoyment is construed in the sense that he 
may: (1) take as much water as is reasonably necessary for 
the support of animal life upon his property, and do so 
even, if need be, to the exhaustion of the stream (primary 
use) ; (2) take water for agricultural purposes, but only 
so far as he can do so with due regard to the rights of 
lower proprietors to do the same (secondary use) ; and 
(3) subject thereto and upon like conditions take water for 
mechanical and industrial purposes (tertiary use). 3 

These rules, it must be remembered, apply only to public 
streams. The owner of a private stream may arrest it on 
his own land and diminish its volume to any extent he 
pleases. The same may be said of rainwater. 4 But an 
owner may not divert it from its course to the prejudice of 
a lower proprietor. If he does so he may be sued in the 
actio aquae pluviae arcendae (the action 'for keeping off 
rainwater'). 5 The maxim dien water deert die water keert 
'if water hurts you, you may turn it away' 6 - must be 
understood subject to this important limitation. Indeed, 
the phrase is misleading, for it merely means that water 
may be allowed to take its natural course. 7 

If a stream rises in a man's land, it is in its inception 
private and may be dealt with as such ; but if it has con- 
tinued to flow in a defined channel for a considerable 

1 2 Maasdorp, p. 131. 

2 Salisbury Municipality v. Jooala [1911] A.D. at p. 185 per de 
Villiers C.J. See also Orangezicht Estates Ltd. v. Cape Town Town 
Council (1906) 23 S.C. 297 and Juta, Water Rights, pp. 179 ff. The 
extent of the lower proprietor's right to complain of contamination 
has not been exactly defined. 3 2 Maasdorp, pp. 136 ff. 

4 Gr. 2. 34. 14. 

6 Cape Town Council v. Penning [1917] A.D. 315. 

6 Gr. 2. 35. 17. 7 Dig. 39. 3. 1, 11. 



INCIDENTS OF OWNERSHIP 155 

length of time (which in South Africa is taken to be thirty 
years) over adjoining land, the stream becomes public and 
the usual incidents of public streams attach to it. 1 

Just as a lower proprietor has rights against an upper 
proprietor, so he owes him duties. He must receive such 
water as in the ordinary course of nature flows on to it 
from the upper level, 2 and must not by turning it off or in 
any other way injure the upper proprietor's user of his 
land. 

In the preceding paragraphs we have been speaking of The 
the limits which the law places upon an owner's rights 



of use and enjoyment. Another question of practical im- vindi- 
portance relates to the limits which the law places upon 
an owner's right of recovering his lost possession, his jus 
vindicandi. The first topic is principally concerned with 
the use of land. The second topic is principally, but not 
exclusively, concerned with the recovery of movables. It 
has been said above that the jus vindicandi is an incident 
of ownership. In the Roman Law the principle was general 
and applied alike to immovable and to movable property 
ubi rem meam invenio, ibi vindico. But as regards mov- 
ables, in the Netherlands the rule of the Roman Law came 
into sharp conflict with a contrary rule derived from the 
customary law of some of the German tribes, namely, that 
movable property cannot be followed into the hands of a 
third person : Hand muss Hand wahren mobilia non habent 
sequelam meubelen en hebben geen gevolg possession vaut 
titre. 3 In the law of Holland, according to the prevailing 

1 The Irrigation Act (8 of) 1912, sec. 8; Retief v. Louw (1855) 
[1874] Buch. 165; Silberbauer v. Van Breda (1866) 5 S. 231 ; Van 
Breda v. Silberbauer (1869) L.R. 3 P.O. 84; Municipality of 
Frenchhoek v. Hugo (1883) 2 S.C. 230; Commissioners of French 
Hoek v. Hugo (1885) 10 App. Ca. 336, 3. S.C. 346; Vermaak v. 
Palmer [1876] Buch. 25; Pretoria Municipality v. Bon Accord 
Irrigation Board [1923] T.P.D. 115; Juta, Water Rights, pp. 41 ff. ; 
2 Maasdorp, p. 130. 

2 De Villiers v. Galloway [1943] A.D. at p. 444. 

3 The proposition that the old Germanic law did not allow an 
owner, who had voluntarily parted with the possession, to reclaim 
his movable property from a third party has not passed unchal- 
lenged. de Btecourt (Kort Begrip (5), p. 207) concludes: Veiliger 



156 THE LAW OF PROPERTY 

opinion, the victory was on the side of the Roman doctrine, 
but subject to some qualifications and exceptions. In the 
modern law the owner's right of vindicating his property 
from a possessor who cannot show a good title as against 
the owner is in principle undoubted, 1 but again subject to 
exceptions, which, as might be expected, are not the same 
as in the law of Holland. Exceptions which in the old law 
were based upon a special statute or local custom find no 
place in the modern law. It was questioned whether sales 
in a public market fell under this head. On the other hand 
the rules of negotiability are better defined to-day than 
they were in the eighteenth century, and the circumstances 
in which an owner cannot assert a title against a bona 
fide holder for value are consequently better ascertained. 
Finally, notions derived from the rules of English equity 
have certainly in Ceylon, and almost certainly in South 
Africa, made an impression on the modern law. A fuller 
consideration of these important questions is reserved for 
an appendix. 2 

SECTION II. THE KINDS OF OWNERSHIP OF LAND 
In what In this section we speak of what is commonly called 
ways land l an( i tenure, i.e. of the different kinds of ownership of land 
may be recognized by law. In England all land is held by feudal 
tenure mediately or immediately of the King, who is 
'Sovereign Lord, or Lord Paramount, either mediate or 
immediate, of all and every parcel of land within the 
Feudal Realm'. 3 In Holland feuds (leen-goed) existed side by side 
alodial w ^h lands held allodially (eigen-goed). Feudal lands were 
owner- governed by the rules of the feudal law (leen-recht), which 
Holland. was administered by feudal Courts (leen-gerechteri). Allo- 
dial lands were owned according to the ordinary principles 

gaat men met te zeggen dat men in de germaansche landen zeer 
uiteenloopende regelingen aantrof. 

1 As to what must be proved by a plaintiff in a vindicatory 
action see Gruenewald v. Mathias [1925] S.W.A. 117. 

2 Appendix E. 

3 Co. Litt. 65, a; 2 Bl. Comm. 53. 'Every acre of land is techni- 
cally held of the Crown', Cheshire, The Modern Law of Real Pro- 
perty (4th ed.), p. 72. 



INCIDENTS OF OWNERSHIP 157 

of the common law and subject to the jurisdiction of 
the ordinary Courts. The principal difference between 
these two kinds of ownership is that feuds are always held 
by the landowner as tenant of another, while allodial 
property is owned, like movables, by an absolute and 
independent title. 

In Dutch law feuds (leenen) were always held on con- Leenen. 
dition of military service. 1 This continued in theory to 
be the case until the end of the Republic, except where 
the land had been allodialized. 2 There was nothing in 
Dutch law precisely corresponding to the English tenure in 
free and common socage. But there existed from ancient 
times an institution which in many respects approached 
to socage tenure, though it exhibited also analogies with 
copyhold and leasehold. This was variously known as 
tijnsrecht or cijnsrecht (census right) or erfpacht (hereditary Cijnsrecht 
lease), erfhuur (hereditary hire), and by other like names. 3 rent 
It was a grant of land for an indefinite or limited period tenure, 
subject to the payment of an annual rent (cyns census). 
Originally the grantor was regarded as owner of the land, 
the grantee merely as having a jus in re aliena. Later, the 
position was reversed. The grantee became the owner, 
with free rights of alienation inter vivos or by will, in de- 
fault of which the land passed to his heirs by intestate 
succession. 4 The grantor, on the other hand, was now con- 
sidered to have merely a rent-charge upon the land, which 
the grantee might, as a rule, redeem. On the other hand, 
the grantee must maintain the land, i.e. was liable for 
waste, and if the rent fell into arrear for a period which, 
under romanist influences, was often fixed at three years, 
or in case of other failure of duty, he incurred a forfeiture. 
This mode of land tenure was not identical with the 

1 Fock. And., vol. i, pp. 309-10. 

2 Ibid., pp. 309-10; Gr. 2. 43. 5. The duty of military service 
was, however, disused by the seventeenth century. Gr. 2. 41. 44; 
Van Leeuwen, 2. 14. 13. 

3 Fock. And., vol. i, p. 320. 

4 It tended to become, and in the sixteenth century usually was, 
hereditary and perpetual. Ibid., p. 325. Grotius (2. 40. 2) describes 
erfpacht-recht as 'erffelicke tocht'. 



158 



THE LAW OF PROPERTY 



Not the 
same as 
emphy- 
teusis. 



Villein 
tenure in 
Holland. 



Usufruct. 



Lease of 
land, 



in early 
law was 
merely 
contrac- 
tual. 

Koop 

breekt 

huur. 



But, later, 
conferred 
a real 
right. 



emphyteusis of the Roman Law, nor, it seems, derived 
from it. There can be no doubt, however, that it was 
influenced in its development by the rules of Roman Law. 
Even Grotius, 1 still more the distinctively romanist writers 
of the seventeenth and eighteenth centuries, fail to dis- 
tinguish between the native and the exotic institution. 2 

In addition to the above-mentioned modes of land- 
holding, villein tenure, which was always associated with 
villein status, played an important part in the old law. 
It did not survive the revolutionary influences of the end 
of the eighteenth century. 3 This institution, therefore, 
however interesting historically, need not detain us, since 
it has no counterpart in the modern law. 

The life-interest in land (lijf-tocht usufruct} will be con- 
sidered in a later chapter. 

It remains to speak of the contract of hire of land, so 
far as it affects the proprietary rights of the parties. In 
the Roman Law a lease of land was purely contractual in 
character, and gave no right against third parties. Thus, 
if the lessor sold the land, the purchaser, though aware of 
the lease, was not bound by it. This principle prevailed 
in some parts of Holland (at all events as regards short 
leases) and found expression in the proverb, Koop breekt 
huur (Sale breaks hire). 4 The reason was that leases, 
being mere contracts, required no solemnity and conse- 
quently did not transfer any proprietary interest or affect 
third parties. 5 Elsewhere and later the rule was reversed, 
Breekt koop geen huur (Sale breaks no hire), Huur gaat voor 
koop (Hire goes before sale) ; with the result that the hirer 

1 Gr. 2. 40. 2. a e.g. Van Leeuwen, 2. 10. 2. 

3 Fock. And., vol. i, p. 52. 4 Ibid., p. 345. 

5 Cf. Voet, 19. 2. 1. No general rule can be laid down as regards 
Holland and the other Provinces of the Netherlands. Custom 
varied both before and after the reception ; de Blecourt (5), p. 271. 
For Germany see Gierke, Deutsches Privatrecht, ii. 200, n. 55 ; 
iii. 512 ff. The maxim huur gaat voor koop does not apply to all 
contracts of letting and hiring. It is 'a concise statement of the 
effect of custom and legislation upon leases of lands and houses'. 
Graham v. Local and Overseas Investments (Ply] Ltd. [1942] A.D. at 
p. 110, per Watermeyer J.A. 



INCIDENTS OF OWNERSHIP 159 

could make good his right to the land against any third Huur gaat 

person to whom his landlord might have sold it. In this vc 

sense the law is laid down by Grotius, 1 with the qualifica- 

tion, however, that a lessee of land has no such right unless 

his lease is in writing, 2 passed before Schepenen (coram 

lege loci) or under the hand of the lessor. 3 Groenewegen 

goes further, for besides regarding writing as of the essence 

of all leases of lands 4 (but not of houses), 5 he requires that 

a lease ad longum tempus, i.e. for ten years and upwards, 

should be executed coram lege loci, if it is to prevail against 

a purchaser. 6 The reason is that a lease ad longum tempus 

is in effect an alienation and demands the same solem- 

nity of execution. 7 According to Groenewegen, then: (1) Groene- 

a short lease of land, if in writing, holds good against a 



purchaser; (2) a short lease of houses holds good against a of the law 
purchaser even without writing ; (3) a long lease of land 
or houses holds good against a purchaser if executed 
coram lege loci, otherwise not. 8 In South Africa, with 

1 Gr. 2. 44. 9 ; Van Leeuwen, 4. 21. 7 ; Voet, 19. 2. 17 ; De Wet v. 
Union Govt. [1934] A.D. 59. 2 Gr. ubi sup. and 3. 19. 3. 

1 'By publijcke instrumenten ofte d' eygen handt van den 
Eygenaar' is the language of the Pol. Ord. 1580 (Art. 31), which 
Grotius purports to follow. See next note. His own words (3. 19. 3) 
are: 'Zonder schepenkennisse ofte schrift by den eighenaer 
gheteickent.' 

4 Groen. de leg. abr. ad Cod. 4. 65. 24, sec. 1. As authorities for 
this proposition, reference is made to the Placaat of Philip Duke of 
Burgundy of June 11, 1452 (3 O.P.B. 586), the Placaat of Charles V 
of January 22, 1515 (1 G.P.B. 363), and the Pol. Ord. 1580, Art. 31 
(1 G.P.B. 337). These enactments, however, relate not to- original 
leases but to nahuyr. They are therefore no authority for the pro- 
position advanced in the text. See V.d.K. 672. 

5 Groen. ubi sup., sec. 2, non obstante Holl. Cons., vol. i, no. 262. 
Van der Keessel (Th. 670) agrees. Voet, however (19. 2. 2), and 
Decker (ad Van Leeuwen, 4. 21. 3) consider that the Edict of the 
States of Holland and West Friesland of April 3, 1677 (3 G.P.B. 
1037), settled the law in the sense that leases of both lands and 
houses must be in writing. Van der Linden (1. 15. 11), though 
relying on a later statute, agrees with this statement of the law. 

6 Ad Cod. 4. 65. 9. 

7 Groen., loc. cit. Voet (19. 2. 1) expresses with some hesitation 
the same opinion . Van Leeuwen (4.21.9) pronounces the other way. 

8 Groen. ad Gr. 3. 19. 9, where he says : 'It being well understood 
that in no case can immovable property be let for more than ten 
years unless the written lease (huurcedulle) is passed before the 



160 



THE LAW OF PROPERTY 



Leases in statutory exceptions, the validity of a lease as between 
Africa. the parties is independent of the presence or absence of 
writing, and a lease which is good between the parties is 
also good as against persons claiming through the lessor 
by lucrative title. 1 As regards purchasers and creditors 
the law is otherwise. A short lease is absolutely valid 
against them ; 2 a long lease only if registered against the 
title, or if the purchase was made or the credit given with 
knowledge of the lease. 3 Such is the general law, but there 
are statutory variations. In the Transvaal a lease of land 
for ten years or upwards has no effect even between the 
parties, unless notarially executed, 4 and the law is the same 
in the Free State except that the period has been held to 
be twenty-five years. 5 In Natal any contract to grant or 
take a lease or sublease of immovable property or of any 
interest therein for a period exceeding two years from the 
time of making such contract, or for the cession of any 
such lease or sublease having then more than two years 
to run, must, unless there has been part performance, be 
evidenced by writing. 6 Over the whole of South Africa 

Court of the place where the property is situated.' For Ceylon see 
Ord. No. 7 of 1840, sec. 2. 

1 Semble, Canavan & Rivas v. The New Transvaal Gold Farms 
Ltd, [1904] T.S. 136; Exor. Est. Komen v. De Heer (1907) 28 
N.L.R. 577 ; Komen v. De Heer (1908) 29 N.L.R. 237. 

2 Herbert v. Anderson (1839) 2 Menz. 166; Green v. Griffiths 
(1886) 4 S.C. 346; De Wet v. Union Govt. [1934] A.D. 59; whether 
the purchaser knew of the lease or not. Ibid, at p. 73. 

3 An unregistered lease in longum tempus holds good, in any 
event, up to ten years. Komen v. De Heer, ubi sup. 

4 Procl. No. 8 of 1902, sec. 29 (1). The reader should consult the 
section. See Cohen v. Van der Westhuizen [1912] A.D. 519. 

6 Ord. 12 of 1906, sec. 51 ; Fichardt v. Webb (1889) 6 C.L.J. 258. 
This term is taken from an Ordonnantie op het middel van den 
veertigsten penning of the States of Holland dated May 9, 1744 
(7 G.P.B. 1441). But this enactment has been held not to be in 
force at the Cape (Maynard v. Usher (1845) 2 Menz. 170); in the 
Transvaal (Canavan & Rivas v. The New Transvaal Gold Farms 
Ltd., ubi sup.) ; in Natal (Exor. Est. Komen v. De Heer, ubi sup.). 
Doubtless the rule is now general in South Africa that a lease in 
longum tempus means a lease for ten years or upwards. Compare 
the definition of immovable property in the Deeds Registries Act, 
1937 (supra, p. 132, n. 11). 

8 Law No. 12, 1884, sees. l(c) and 2; Cole v. Stuart [1940] A.D. 399. 



INCIDENTS OF OWNERSHIP 161 

no distinction exists as to requirements of form and of 
registration between leases of land and leases of houses. 

From what has been said it is plain that in the modern In the 
law, as in the later stages of the Roman-Dutch Law of ^ ra 
Holland, a lease creates not only contractual rights as lease is 
between the parties, but also proprietary rights, which tenure. 
the lessee can, within the limits above stated, make good 
against all the world. We are justified, therefore, in re- 
garding a lease as a species of ownership in land. 1 

It does not fall within the scope of this work to describe Land 
in detail the systems of land tenure existing at the present 
day. We will merely observe that in South Africa besides 
(1) freehold, and (2) leasehold, (3) perpetual quitrent 
tenure of lands held from Government was introduced 
into Cape Colony by Sir John Cradock's Proclamation of 
1813, and exists also in various forms in the other 
provinces. 2 Recent statutes have extinguished the liability 
to pay quitrent, while leaving the nature of the tenure 
unaffected. 3 

1 Green v. Griffiths (1886) 4 S'.C. at p. 350. In Johannesburg Muni- 
cipal Council*?. Rand Townships Registrar [1910] T.P.D. at p. 1320, 
Wessels J. said: 'The lessee, therefore, by the Roman-Dutch 
law acquired a jus in re aliena and also a jus in rem to the land 
leased ; but that jus in rem was not of the nature of ownership, 
for it only lasted so long as the lease existed.' Perhaps this is a 
question of words rather than of substance. A lease is at all events 
gebreckelicke eigendom. The 'effect [of a lease in longum tempus] 
is to dispose of a portion of the dominium\ Solomon J. in Breyten- 
bach v. Frankel [1913] A.D. at p. 402. 

2 See Van Niekerk and Union Govt. v. Carter, 1917 A.D. at 
p. 379. Quitrent tenure is not in use except in Government 
grants, and is regulated by statute. In the Transvaal and O.F.S. 
'the tenure is practically ownership subject to higher taxation' 
(Morice, Eng. & Roman-Dutch Law (2nd ed.), p. 47). The 
history of quitrent tenure at the Cape is traced in De Villiers v. 
Cape Divis. Council [1875] Buch. 50, and further elucidated in 
Cape Govt. v. Freer (1886) 4 S.C. 313, where the learned C.J. said 
'the grantee really became the owner of the land. ... The Crown 
ceased to have any proprietary rights. ' For O.F.S. see Webb v. 
Giddy (1878) 3 A.C. 908 ; for Natal, Odendaal v. Registrar of Deeds 
[1939] N.P.D. 327; for Ceylon, Podisingho v. Jaguhamy (1923) 
26 N.L.R. 87. 

3 Abolition of Quitrent Act, 1934; Abolition of Quitrent (Towns 
and Villages Act) 1937. In Southern Rhodesia quitrent was 
abolished by Act, No. 16 of 1935 with the same reservation. 

4901 




The WHATEVER theory of possession may have existed in the 
theory of na ti v e law of the Netherlands, the Roman-Dutch writers 

posses- 
sion, repeat the Roman Law doctrine as they understood it. 

The short chapter which Grotius devotes to the subject 
reflects merely the views of the civilians. 1 Since they are 
accessible from other sources it is unnecessary to recall 
them. But the case is different with the remedies which the 
Law of Holland afforded for the protection of possession. 
These, though they present some necessary analogies with 
the Roman interdicts, were remotely, if at all, connected 
with them. The text-book writers, none the less, commonly 
assign to them a Roman origin and distinguish them as 
directed to obtaining, retaining, and recovering possession, 
applying the Roman classification to which they do not 
readily lend themselves. In the modern law they have 
ceased to exist as separate institutions. Their historical 
importance, however, entitles them to some brief attention. 
Posses The Dutch Law afforded three principal remedies for the 

remedies protection of possession (with some others of less general 
application). These were Maintenue, Complainte, and 
Spolie. They came into Holland from France by way of 
Flanders under the influence of Burgundian jurists of the 
fifteenth century. 2 The process of the Court which the 
plaintiff invoked was called a mandament or writ, and the 
various remedies are distinguished as mandament van 
maintenue, mandament van complainte, and mandament 
van spolie. This last has a remoter origin in the actio 
spolii of the Canon Law. 3 We shall give a short account 
of each of these possessory actions. 4 

1 Gr. lib. ii, cap. ii. 2 de Blecourt, p. 200. 

8 Decretum Gratiani, c. 3, cap. 3, qu. 1 : redintegranda sunt omnia 
expoliatis vel ejectis episcopis. Hence the name 'redintegranda' 
by which this action was also known. 

4 For fuller discussion see Fock. And., vol. i, pp. 218 ff. ; de B16- 
court, pp. 200 ff. 



POSSESSION 163 

1. Maintenue. Any person disturbed in his possession Main- 
might address a petition either to the Hof or to the Hooge 
Raad praying for a mandament whereby he should be 
maintained, confirmed, and (so far as necessary) let into 

the possession or quasi-possession of the Lands and other 
Goods in question, and ordering the defendant to in- 
demnify him for all past disturbance and to abstain from 
the like in future. 1 In case of opposition suppliant asked 
for interim possession (rei credentia recredentie), which was 
granted in the discretion of the Court subject to his giving 
security to compensate the other party for mesne profits 
in the event of the case being ultimately decided in the 
other party's favour. 2 To entitle the suppliant to the 
mandament two conditions alone were necessary: (a) 
possession, (6) disturbance. 3 The defendant might defeat 
the plaintiff's case by showing that his possession was 
aut vi aut clam aut precario ab adversario (the plea of 
vicious possession). Proof of positive disturbance was 
not essential. The mandament would be granted even in 
case of apprehended disturbance propter metum oppo- 
sitionis habendae et turbationis faciendae. 4 In case of 
serious threats of violence proceeding from powerful per- 
sons a process was granted called the mandament van 
Sauvegarde. 5 But this was not so much a possessory 
remedy as a procedure with a criminal sanction designed 
for the protection of person or property against appre- 
hended violence. 

2. Complainte. This was a summary process designed to Com- 
afford provisional relief. The conditions of the writ were P lainte ' 
more stringent than in the case of maintenue. The suppliant 
must show: (a) that he had possessed, (6) quietly and 
peaceably, (c) for a year and a day, (d) ouster or distur- 
bance within the year next before action brought. Accord- 
ing to circumstances he prayed to be maintained in, or 

1 For the formula of request see Papegay, chap, xv (ed. 1740, 
vol. i, p. 113). 3 Bijnk, O.T. i. 276, 305. 

3 Fock. And., vol. i, p. 218 ; V.d.L. Judic. Pract., book ii, chap. xx. 

4 Bort, Tractaetvan Complaincte, tit. 1, sec. 32. 

5 Bort, loc. cit., sees. 26-30; V.d.L., op. cit., 4. 5. 21. 



164 THE LAW OF PROPERTY 

restored to possession. 1 The vitia possessions might be 
pleaded as a defence. 

The procedure took the form of an inquiry in loco con- 
ducted by one or two Judges delegated for the purpose. If 
they were satisfied that the plaintiff had established his 
case, they ordered restablissement, that is restoration of 
the status quo. If not so satisfied they made no order. 
This, properly speaking, concluded the procedure in com- 
plainte. If the defeated party carried the matter no 
further, the controversy was at an end. The further pro- 
ceedings, if any, were in maintenue. De Blecourt says that 
maintenue was the last stage in the procedure of com- 
plainte. 2 It would, perhaps, be more informative to say 
that complainte was a preliminary, but not a necessary 
preliminary, of proceedings in maintenue. It was a pre- 
lude to a drama. Often the performance ended with the 
prelude. More often the prelude was omitted. 

Spolie. 3. Spolie. This was a process directed to recovery of pos- 

session. The plaintiff had to prove: (a) possession, (6) dis- 
possession. The only defence was denial of the facts 
alleged, for spoliatus ante omnia restituendus est. 3 The 
plea of vicious possession was not admitted. The remedy 
asked for was restoration and compensation and to be 
reinstated in possession. 4 In spite of its apparent attrac- 
tiveness this remedy was seldom invoked, perhaps because 
it merely promised reinstatement and did not decide even 
provisionally the right to remain in possession. 

Iinmissie. There was another possessory remedy of more limited 
application. This was the mandament van immissie, by 
which an heir or legatee obtained possession of the whole 
or part of a deceased person's estate. The procedure was 
the same as in maintenue, with which it was commonly 
combined in a petition for maintenue and ' if need be ' for 

1 Fock. And., vol. i, p. 219 ; de Btecourt, p. 201 ; V.d.L., op. cit., 
book ii, chap. 21. 

2 de Blecourt, p. 203. 

8 Fock. And., vol. i, p. 218 ; de Blecourt, p. 201 ; V.d.L., op. cit., 
book ii, chap. 22. 

4 Papegay, chap, xiv (vol. i, p. 112). 



POSSESSION 165 

immissie. 1 In the lower Courts there was a similar pro- 
cedure termed inleiding* 

From what has been said it is apparent that maintenue Possession 
alone, or in combination with other remedies, occupied a movables. 
cardinal position in possessory procedure. In practice all 
these proceedings were confined to claims relating to the 
possession of land or the quasi-possession of rights appur- 
tenant to immovable property. They were not in general 
a means of getting or retaining possession of movables. 3 
Such questions were litigated in the lower Courts. 

The question remains, what was the character of the What 
possession which the law undertook to protect ? It is not 



clear whether possessory remedies were available to one is pro- 
who possessed nomine alieno, for example, as depositary, 
mandatory, or lessee. But it is certain that in some cases 
they were given to protect possession which did not satisfy 
the conditions of possession ad interdicta in the sense of 
the Roman Law. 

In the modern law of South Africa possession is secured The 
by interdict and by the so-called spoliation order, based 
upon the principle spoliatus ante omnia restituendus est, 
which, however, seems to have more analogy with maintenue 
than with spolie. It is given not merely to the possessor in 
the strictest sense, but to a trustee, 4 or lessee, 5 and to any 
other person who holds by lawful title ' with the intention 
of securing some benefit for himself as against the owner ', 6 
such as a borrower, and, perhaps, to any other person in 
actual control. 7 But in any case the Court will require 

1 V.d.L., op. cit., book ii, chap. 20. 

2 de Blecourt, p. 203. 

3 de Blecourt, p. 202, no. 1 ; Bijnk, O.T. ii. 1059. 

4 Abdul Azeez v. Abdul Rahiman [1911] A.C. 746. 

5 Swanepoel v. Van der Hoeven [1878] Buch. 4; Nino Bonino v. 
De Lange [1906] T.S. 120. So in Ceylon, Perera v. Sobana (1884) 
6 S.C.C. 61 ; Pereira, pp. 544 ff. 

6 Scholtz v. Faifer [1910] T.P.D. 243; Meyer v. Olendinning 
[1939] C.P.D. 84. Cf. Mandelkoom v. Strauss [1942] C.P.D. at 
p. 497. 

7 Thatsachliche Gewalt, B.O.B. 854, 860 ; maitrise effective, Code 
Civil Suisse, 919. In Meyer v. Glendinning, ubi sup., at p. 95, 
Davis, J., after referring to Savigny, who says (On Possession, 



166 THE LAW OF PROPERTY 

clear proof of possession. It is not enough to make out a 
prima facie case which might justify an interdict. 1 

In the alternative a plaintiff may bring an action to 
recover possession and damages or damages for distur- 
bance. 2 

Perry's translation, p. 409) that the true purpose of this summary 
remedy is ' to prevent breaches of the peace', and to Menochius 
(De Recup. Poss. Remed. Tit. 17, par. 21), continued: 'the author 
does not, as many of the moderns would appear to do, extend in 
this passage even this form of action to any and every detentor. 
As to whether they are right in so doing I particularly desire to 
decide nothing.' 

1 Mandelkoorn v. Strauss, ubi sup. 

2 Pentz v. Col. Govt. (1891) 8 S.C. 34; Koenigsberg & Co. v. 
Robinson G.M. Co. [1905] T.H. 90; Miller v. Harris [1912] C.P.D. 
203; Omar v. Sahib (1907) 28 N.L.R. 625. 



[Dr. T. W. Price of Trinity Hall has given me valuable assistance 
in revising this chapter, but, of course, I am solely responsible 
for what is said. It is to be hoped that his thesis on The Posses- 
sory Remedies in Roman-Dutch Law will soon be published.] 



VI 

SERVITUDES 

THE next class of jura in re are Servitudes. 1 A servitude Servi- 
is a real right enjoyed by one person over or in respect iv ea ' 
of the property of another, whereby the latter is required 
to suffer the former to do, or himself to abstain from 
doing, something upon such property for the former's 
advantage. The person for whose benefit such right is 
constituted may either enjoy it as incidental to and in- 
separable from immovable property of which he is owner, 
or may enjoy it personally and without reference to any 
property of which he is owner. In the first case the right 
is termed a real or praedial servitude ; in the second case it 
is termed a personal servitude. But all servitudes, real or 
personal, are real rights, which can be made good against 
all the world. 2 

In the case of real servitudes, the land in respect of which Real or 
the right is enjoyed is termed the praedium dominans, g^. a 
the land over which the right is exercised is termed the tudes. 
praedium serviens. Real or praedial servitudes exist for 
the benefit of lands and houses, and the burden of them 
is imposed on lands or houses. Personal servitudes exist 
for the benefit of persons, and are enjoyed in respect of 
movable as well as of immovable property. When the 
word servitude is used without qualification it is usually 
a real servitude that is meant. 

A real servitude is a fragment of the ownership of an 
immovable detached from the residue of ownership and 
vested in the owner of an adjoining immovable as acces- 
sory to such ownership and for the advantage of such 

1 For a fuller treatment of the subject of servitudes the recently 
published work of C. G. Hall and E. A. Kellaway, Juta & Co., 
Cape Town, may be consulted; and see the valuable note in 
Kotze, Van Leeuwen, vol. i, pp. 302 ff. 

a Ex parte Geldenhuys [1926] O.P.D. at p. 163; Qalant v. 
Mahonga [1922] E.D.L. at p. 79. 



168 THE LAW OF PROPERTY 

immovable. Though ownership is thus divided and vested 
in two persons, the detached fragment is, as a rule, rela- 
tively insignificant in comparison with what remains. It 
seems natural, therefore, to speak of the person to whom 
the residue belongs as owner of the land, while the person 
in whom the detached right is vested is said to have a 
jus in re aliena. 1 Personal servitudes of the usual type 
approach more nearly to ownership and have little in 
common with real servitudes except the name. For the 
present we confine our attention to real servitudes. 

Real servitudes are distinguished as rustic and urban. 
The distinction has regard to the character of the dominant 
tenement. Servitudes attached to land are rustic, servi- 
tudes attached to buildings are urban. 2 
Rustic The following are the principal rustic servitudes 3 (veld- 

aervi- i jT 

tudes. dienswaerheden). 

1. RIGHTS OF WAY: (a) for walking and riding (iter) 
which the Dutch writers subdivide into foot-path (voet- 
pad)* and bridle-path (rij-pad) ; 5 (6) for driving cattle as 
well as for going on foot and horse-back, and for light 
vehicles (actus dreef) ; 6 (c) for all kinds of traffic including 
laden wagons (via weg) ; 7 to which may be added (d) a 
way of necessity (nood-weg), i.e. a way to be used only 
for the harvest, for carrying a corpse to burial, or other 
necessary purpose, 8 or a way giving necessary access to a 
public road. 9 The right to use a trek-path over the land 

1 Gr. 2. 33. 1. 

2 Voet, 8. 1. 3-4; Girard, p. 387; Buckland, p. 262. Is a right 
of way attached to a house rustic or urban ? Opinions differ. See 
Lee, Elements of Roman Law, sec. 227. 

8 See Fock. And., vol. i, pp. 275 ff. 

4 Gr. 2. 35. 2; Van Leeuwen, 2. 21. 2. 

6 Gr. 2. 35. 3; Van Leeuwen, 2. 21. 3; Voet, 8. 3. 1. 

6 Gr. 2. 35. 4; Van Leeuwen, 2. 21. 4; Voet, 8. 3. 2; Breda's 
Exors. v. Mills (1883) 2 S.C. 189. 

7 Gr. 2. 35. 5; Van Leeuwen, 2. 21. 5; Voet, 8. 3. 3. 

8 Gr. 2. 35. 7 ; Voet, 8. 3. 4. 

9 Gr. 2. 35. 8 and 11; Van Leeuwen, 2. 21. 7; Voet, ubi sup. 
Peacock v. Hodges [1876] Buch. 65; Van Schalkwijk v. Du Plessis 
(1900) 17 S.C. 454; Neilsonv. Mahoud [1925] E.D.L. 26;Ramper- 
sad v. Goberdun [1929] N.P.D. 32 ; Wilhelm v. Norton [1935] E.D.L. 
143; (Ceylon) Fernando v. Fernando (1929) 31 N.L.R. 107. 



SERVITUDES 169 

of another is a larger right than any of the above and is 
peculiar to South Africa. 1 

All rights of way must be exercised so as to burden 
the servient property as little as possible, 2 and the owner 
of the dominant property must keep strictly within the 
terms of the servitude. 3 On the other hand the grant of a 
right of way (as of any other servitude) implies a grant of 
everything which is necessary for its reasonable exercise. 4 

The principles by which the direction of a way is to be 
determined have been stated as follows. When a servi- 
tude of way is constituted simpliciter, acil. without precise 
definition, 'the owner of the dominant tenement has (in 
the first instance) the election where to lay the line, which 
he must however exercise civiliter. 5 If he has once exer- 
cised his election, he cannot afterwards change. But the 
owner of the servient tenement has the right to do so, 
provided the new route is as convenient as the old one.' 
The case is otherwise when the servitude has been pre- 
cisely defined ah initio. In this case it can only be altered 
by mutual consent. 6 

2. WATER RIGHTS : viz. right of leading water over or 
out of another's land (aquae ductuswater-leiding) ; 7 right 
of discharging water on to another's land (water-lozing) ; 8 
right of drawing water from another's private stream, well, 
or cistern (aquae haustus water-haling) ; 9 right of watering 

1 Van Heerden v. Pretorius [1914] A.D. 69. For public ways 
(which are either via publica or via vicinalis) see Peacock v 
Hodges, ubi sup.; Eampersad v. Goberdun, ubi sup.; (Ceylon) 
Samarasinghe v. Chairman V.C. Matara (1932) 34 N.L.R. 39- 
Pe^ris v. Village Committee, Paluwa (1938) 40 N.L.R. 54. 

1 'Alle servituten van pad en weg moesten "te minster schade 
en te naaster lage" worden gebruikt.' Fock. And., vol. i p 276 
Gr. 2. 35. 6 ; Van Leeuwen, 2. 21. 6. 

3 Van Heerden v. Coetzee [1914] A.D. at p. 172. 

4 Voet 8. 4. lQ;Lategan v. Union Oovt. [1937] C.P.D at p 202 
Dig. 8. 1. 9. 

6 Gardens Estate Ltd. v. Lewis [1920] A.D. 144, per de Villiers 
A.J.A. at p. 150. Cf. Rubidge v. McCabe [1913] A.D 433 

7 Gr.2. 35. 14; Voet, 8. 3.6. 

Gr. 2. 35. 16; Van Leeuwen, 2. 21. 15. 

9 Gr. 2. 35. 13 ; Voet, 8. 3. 7. The person who enjoys such right 
may by usage be required to join in keeping the well, &c., in repair. 



170 THE LAW OF PROPERTY 

cattle (pecoris ad aquam appulsus) j 1 right of access to 
water over another's land (water -gang)? 

3. Right of taking sand out of another's soil or of taking 
lime and having a lime-kiln on another's land. 3 

4. Right of pasture. 4 

The above list is not exhaustive. Other real servitudes 
may be created in any of the recognized ways provided 
that they are of such a nature as to benefit the dominant 
estate, and in other respects satisfy the legal conditions 
of servitudes. 5 

The following are urban servitudes : 

Urban 1. My right to require my neighbour to support the 

tudes. weight of my house or wall ( jus oneris ferendi muurbe- 
zwaring). 6 A peculiarity of this servitude is that, contrary 
to the general rule, it entails an active duty of keeping in 
repair. But if the owner of the servient tenement abandons 
it, the duty of repair ceases. 

2. My right to drive timber, &c., into my neighbour's 
wall (jus tigni immittendi inbalcking ofte inanckering). 7 

3. My right to have a balcony or other thing projecting 
over my neighbour's land (jus tigni projiciendi vd prote- 
gendi). 8 This case differs from the last in respect of the 

1 Gr. 2. 35. 19; Van Leeuwen, 2. 21. 14; Voet, 8. 3. 11, and see 
Smit v. Riiasouw [1913] C.P.D. 847. Grotius adds "t recht om te 
varen door een anders water', which Maasdorp renders 'the right of 
ford' ; but it seems rather to be what Voet (loc. cit.) calls 'jus navi- 
gandi per alterius lacum perpetuum ad nostra praedia'. Dig. 
8. 3. 23, 1. See also Van Leeuwen, 2. 21. 17 ; and Gens. For. 1. 2. 
14. 41. 2 Van Leeuwen, 2. 21. 13. 

3 Jus arenae fodiendae, jus calcis coquendae, &c. Voet, 8. 3. 11. 

4 Voet, 8. 3. 10. As to the effect of a grant of free grazing 
(vrije vee-weide) see Volshenk v. Van den Berg [1917] T.P.D. 321 ; 
Badenhorst v. Jouhert [1920] T.P.D. 100. Free wood (vrije hout), 
Volshenk v. Van den Berg, ubi sup. 

6 Voet, 8. 3. 12. Such as a right to use a threshing floor (Ceylon) 
Weerasinghe v. Perera (1943) 43 N.L.R., 575. Restrictive covenants 
entered into by a purchaser of land may operate by way of servi- 
tude after registration. Alexander v.Johns [1912] A.D. 393; Flats 
Ltd. v. Transvaal Consolidated Land Co. [1920] T.P.D. 146; 
Tonkin v. Van Heerden [1935] N.P.D. 589. 

6 Gr. 2. 34. 3 ; Van Leeuwen, 2. 20. 2 ; Voet, 8. 2. 1. 

7 Gr. 2. 34. 7 ; Van Leeuwen, 2. 20. 6 ; Voet, 8. 2. 2. 

8 Van Leeuwen, 2. 20. 7 ; Voet, 8. 2. 3. 



SERVITUDES 171 

remedy if a servitude is exercised without right. In the 
former case the person whose land is encroached upon 
may remove the obstruction ; in the latter case he must 
proceed by way of action. 1 

4. My right to require you not to raise the height of 
your buildings (jus altius non tollendi belet van hoger 
timmering)? Scarcely distinguishable from this is my 
right that you shall not interfere with my lights (servitus 
ne luminibus officiatur vrij licht). s If we are to adhere in 
this matter to the Roman Law the last-named right merely 
goes to the length of prohibiting interference with access 
of light to upper windows. In this respect it is more 
limited in scope than the jus altius non tollendi. On the 
other hand, obstruction of light by trees would be an 
interference with the second right, but not with the first. 4 
Another allied right is the right of prospect 5 (vrij gezicht), 
which seems, in Roman Law, to have implied access of 
light not only to upper but to lower windows as well. 6 In 
this case, too, I am entitled to require that my light shall 
not be intercepted by trees. 

5. My right to discharge the water from my eaves or 

1 Dig. 9. 2. 29, 1 ; Voet, 8. 1. 4. 

2 Gr. 2. 34. 18 ; Van Leeuwen, 2. 20. 12 ; Voet, 8. 2. 8. The con- 
trary servitude altius tollendi is variously explained. See Voet, 
8. 2. 5-7. 

8 Gr. 2. 34. 20; Van Leeuwen, 2. 20. 13; Voet, 8. 2. 11. A 
general servitude of light according to Voet (loc. cit.) includes 
future lights as well as present lights. But whether this is so or not 
depends upon the terms of the grant. St. Leger v. Town Council of 
Cape Town (1895) 12 S.C. 249. 

4 A neighbour may cut overhanging branches. Gr. 2. 34. 21; 
supra, p. 152. 

6 Gr. 2. 34. 20; Van Leeuwen, 2. 20. 14; Voet, 8. 2. 12. Grotius 
adds (2. 34. 22) 'veinster-recht, i.e. 't recht om een veinster te 
hebben hangende ofte opgaende over eens anders grond ' ; or, as 
Voet (8. 2. 9) puts it, 'jus aperiendi fenestram pendulam supra 
aream alterius'. Gezichtverbod is my right to prohibit you from 
exercising a right of prospect over my land. Gr. 2. 34. 27. Jus 
luminum or jus luminis immittendi is my right to open lights or 
windows in your wall. Dig. 8. 2. 4 ; Voet, 8. 2. 9. Jus luminis non 
aperiendi is my right to require that you shall not open lights in 
your wall. Voet, 8. 2. 10. 

6 Latior pleniorque de prospectu quam de luminibus servitus. 
Voet, 8. 2. 12. 



172 THE LAW OF PROPERTY 

spout on to your land (jus stillicidii vel fluminis drop] -, 1 
or my contrary right to require you to discharge such water 
on to my land (drop-vang). z 

6. My right to have an artificial drain passing through or 
over your land (jus cloacae mittendae goot-recht). 3 
How We pass to the modes of acquiring servitudes. Grotius 

tudesare sa y s * na * servitudes are acquired by: (1) agreement 
acquired, followed by acquiescence on the part of the owner of the 
servient property ; 4 (2) last will ; 5 (3) prescription ; 6 (4) 
implied grant ; 7 and Voet adds (5) judicial decree. 8 

For the modern law it will be more convenient to dis- 
tinguish titles and modes of acquisition. A person may 
become entitled to a servitude : (a) by grant or contract ; 
(6) by last will; (c) by judicial decree. A servitude is 
acquired principally by registered grant or by prescription. 
I.Regis- I. Registered grant. When Grotius speaks of ' agreement 
erant followed by acquiescence' he evidently has in view the 
quasi-tradition of the later Roman Law. Traditio plane 
et patientia servitutium inducet officium praetoris 9 
'There is no doubt that delivery of servitudes and ac- 
quiescence in them will constitute sufficient ground for 
the aid of the praetor.' Consistently with this he advised 
in an opinion reported in the Hollandsche Consultatien 
that by the general usage of Holland servitudes were con- 
stituted underhand and not before the Court. 10 But later 
commentators on the Law of Holland maintained against 
Grotius that the constitution of a servitude required the 
same solemnities as a transfer of land, 11 and this is the 
modern law : 

1 Gr. 2. 3'4. 10 ; Van Leeuwen, 2. 20. 8. 

2 Gr. 2. 34. 13 ; Van Leeuwen, 2. 20. 9 ; Voet, 8. 2. 13. This sup- 
posed servitude seems to rest upon a misinterpretation of the 
texts of the Roman Law. 

3 Gr. 2. 34. 24 ; Goot-recht 't recht om een goot te hebben leg- 
ghende ofte uitkomende op eens anders grond. Voet, 8. 2. 14 ; Dig. 
8. 1. 7 ; Voet (loc. cit.) mentions many other servitudes of less fre- 
quent occurrence. 4 Gr. 2. 36. 2. 

5 Gr. 2. 36. 3. Gr. 2. 36. 4. 7 Gr. 2. 36. 6. 

8 Voet, 8. 4. 2. ' Dig. 8. 3. 1, 2. 10 Holl. Cons.iii. 316. 

11 Groen. ad Gr. 2. 36. 2; Voet, 8. 4. 1 ; Van Leeuwen, 2. 19. 2; 
V.d.K. 369. 



SERVITUDES 173 

'Now a servitude, like any other real right, may be acquired 
by agreement. Such an agreement, however, though binding 
on the contracting parties, does not by itself vest the legal 
title to the servitude in the beneficiary, any more than a con- 
tract of sale of land passes the dominium to the buyer. The 
right of the beneficiary is to claim performance of the contract 
by delivery of the servitude, which must be effected coram 
lege loci by an entry made in the Register and endorsed upon 
the title deeds of the servient property.' 1 

Another way in which a person may be entitled to a Right or 
servitude is under a last will. The will does not create the 
servitude but gives the beneficiary the right to require the 
executor to constitute a servitude in his favour. 2 

Perhaps the same may be said of a judicial decree. The 
Court having ascertained that a litigant is entitled to a 
servitude will usually order registration. It is the registra- 
tion which constitutes the servitude. 3 

Pending registration, the right of the beneficiary under 
the will in the first case or of the successful litigant in the 
second case, is inchoate, a jus ad rem, not a jus in re. 

Though, however, registration is necessary to constitute Unregis- 
a servitude, an unregistered title to a servitude is effective 
not merely between the parties immediately concerned, 
but also against any person who acquires the property or 
a right over it with knowledge of the unregistered title, 
or by lucrative title. 4 But knowledge must be clearly 
proved. It is not enough to show that the registered owner 
may have been put upon inquiry. It must be shown that 
in the circumstances it would be a fraud on his part to 
retain the property free of the servitude. 5 'The doctrine 
of constructive notice must be adopted, if at all, with very 
great caution.' 6 The Courts have been very properly 

1 Willoughby's Consolidated Co. v. CopthalVs Stores Ltd. [1918] 
A.D. at p. 16 per Innes, C.J. 

2 2 Maasd., p. 254. 3 Ibid. 253. 

4 Willoughby's Consolidated Co. V. CopthalVs Stores Ltd., ubi sup. ; 
Heidelberg Munic. v. Uys (1898) 15 S.C. 156; Ridler v. Gartner 
[1920] T.P.D. 249 ; Oliver v. Matzner [1942] T.P.D. at p. 330. 

6 Judd v. Fourie (1881) 2 E.D.C. 41 ; Ridler v. Gartner at p. 260 ; 
Snyman v. Mugglestone [1935] C.P.D. at p. 569. 

6 Erasmus v. Du Toit, [1910] T.P.D. 1037 per de Villiers, J.P. 



174 



THE LAW OF PROPERTY 



Grant of 
servitude ; 
how 
made. 



Crown 
grants. 



Servitudes 
in Ceylon. 



2. Pre- 
scription. 



reluctant to admit any derogation from the principle 
that real rights are created and transferred by registered 
deed. 

The same considerations apply to a judgment creditor 
proceeding to a sale in execution of the servient property. 
An unregistered servitude affords no protection, if the 
creditor has given credit to his debtor in ignorance of its 
existence. 1 

A grant of a servitude is effected by means of a deed 
executed by the owners of the dominant and servient 
tenements and attested by a notary public. 2 It may also 
be an incident of a transfer of land, when a servitude is 
imposed on 3 or in favour of the land transferred in favour 
of or on other land registered in the name of the trans- 
feror. 4 The registration against the title of the servient 
land constitutes the servitude. 

A Crown grant of a servitude is sui generis. Since Crown 
lands are not on the register it lies with the Crown to 
create a servitude over them in any way it pleases. 5 

In Ceylon a servitude is constituted by a notarial instru- 
ment which must be registered, but there is no provi- 
sion for registering the servitude against the title to the 
servient land. 6 

II. Prescription. A servitude may be acquired by un- 
contested open enjoyment adverse to the owner (nee vi, 
nee clam, nee precario) and continuous for the period 
defined by law. 

(1) Uncontested, i.e. without resistance or protest on the 
part of the owner (nee vi) ; (2) Open (nee clam). The owner 
need not have known that the servitude was being exer- 
cised against him, 7 but he must have had the means 

1 Voet, 8. 4. 1 ; Juddv. Fourie (1881) 2 E.D.C. 41. 

2 Deeds Registries Act, 1937, sec. 75 (1). 

3 This is the so-called deductio servitutis of Roman Law. 
Sohm, ed. Ledlie, p. 343, n. 1. 

4 Deeds Registries Act, 1937, sec. 76. 

6 Braunschweig V.M. Board v. Union Govt. [1917] E.D.L. 
186. 

8 Ords. No. 7 of 1840, sec. 2; No. 23 of 1927, sec. 16. 

7 Voet, 8. 4. 4; Seciis Vkmius, Select. Quaest. i. 31. 



SERVITUDES .> 175 

of knowing. A right of servitude to an underground drain 
cannot be acquired without proof of knowledge. 1 

(3) Adverse (nee precario). Clearly the enjoyment would 
not be adverse if exercised by permission. But, further, 
the enjoyment must from its nature be adverse. 2 Suppose 
you have for many years refrained from building on your 
land, and I have in consequence enjoyed an access of light. 
This gives me no right to demand that you shall not build. 
My enjoyment has been meraefacultatis matter of fact, not 
of law. You were free to build or not as you pleased. So, if 
for a number of years an upper riparian owner, having, as 
such, a right to reduce the volume of the stream within the 
limits and for the purposes permitted by law, has, in fact, 
allowed a lower proprietor to enjoy an uninterrupted flow of 
water, the lower proprietor has not thereby acquired any 
right that this state of things shall continue for his benefit. 3 
The position would be different in both these cases if the one 
proprietor had refrained from exercising his proprietary 
right in deference to the other's claim of right to have him 
do so, and had so refrained during the whole currency of the 
term of prescription. What is here said applies to negative 
servitudes only. An affirmative servitude is from its nature 
adverse to the proprietor over whose land it is exercised. 

(4) Continuous. The enjoyment of the servitude must 
be uninterrupted. Thus a claim to a servitude of grazing 
was held to fail when it appeared that it had been inter- 
rupted by vis major for a period of three months. 4 What 
constitutes an interruption depends upon the nature of 
the servitude. Some servitudes are in their nature inter- 
mittent and 'a break in the enjoyment may be merely the 
manner in which the servitude was being enjoyed'. 5 

1 Cf. Dalton v. Angus (1881) 6 App. Gas. at p. 827; Union 
Lighterage Co. v. London Graving Dock Co. [1902] 2 Ch. 557; 
Liverpool Corp. v. Coghill [1918] 1 Ch. 307; Halsbury, xi. 537. 

2 De Beer v. Van der Merwe [1923] A.D. at p. 384. 

3 Jordaan v. Winkelman [1879] Buch. 79. 

4 Boshoffv. Reinhold [1920] A.D. 29 ; De Beer v. Van der Merwe 
[1923] A.D. 378. 

6 Voet, 8. 4. 17 ; Boshoff v. Reinhold, ubi sup. at p. 33 ; Head v. 
Du Toit [1932] C.P.D. 287. 



176 THE LAW OF PROPERTY 

5. For the period defined by law. In the Dutch Law this 
was a third of a century. 1 A Cape Act (No. 7 of 1865, 
sec. 106) substituted thirty years, and this is now general 
throughout the Union. 2 

Though the full period of prescription is necessary to 
constitute a servitude, it does not follow that the Court 
will always order the removal of a structure which has 
been maintained for a shorter period in derogation of 
another's right. Thus, by the keuren of Delft and other 
towns a building which had stood for a year and a day 3 
without protest (onbeklaagt) was thereby sufficiently pre- 
scribed, i.e. its removal would not be decreed; but the 
owner of the land was entitled to compensation in 
damages. 4 In the modern law the Court will, in its discre- 
tion, order removal or require the encroaching party to 
take transfer of the encroached upon land and of so much 
more as may have been rendered useless to the owner 
by the encroachment and to pay a reasonable sum as 
damages. 5 

According to Voet, to make good a claim to a servitude 
by prescription, bona fides is necessary, though Justus 
titulus is not. 6 But the analogy of the general law of 
prescription suggests that neither the one nor the other is 
needed. 7 

Vetustas. Closely resembling prescription, but distinguishable from 
it is immemorial user (vetustas), which notwithstanding 
Maasdorp's statement to the contrary 8 may constitute 
a claim to a private servitude. For particulars reference 
may be made to the writer's edition of Grotius. 9 

1 Gr. 2. 36. 4. 

2 Prescription Act, 1943, sec. 2. 

3 i.e. for a year, six weeks and three days. Anton. Matthaeus, 
Paroem. No. ix, sec. 17. 

4 Gr. 2. 36. 5 and Groen. ad loc. ; Groen. de leg. abr. ad Cod. 
3. 34. 1-2. Bijnkershoek (O.T. ii. 1695) insists that such keuren 
do not make ./MS commune. 

6 Cape Town Munic. v. Fletcher [1936] C.P.D. at p. 352; 
(Ceylon) Gnanaprakasam v. Mariapillai (1937) 39 N.L.R. 406. 

6 Voet, 8. 4. 4. 

7 Cf. Anton. Matthaeus, Paroem. no. ix, sees. 2, 3. 

8 Vol. 2, p. 252. 9 Vol. ii, pp. 190 ff. 



SERVITUDES 177 

For the reasons given above we do not include last will 
and judicial decree in the list of modes of acquisition of 
servitudes. Be it added, for the sake of completeness, that 
servitudes may be created by statute. 1 

Another possibility is an implied grant. According to Implied 
Grotius, when the owner of two houses has used one of S^ 11 *- 
them in a way which, if the other house had not belonged 
to him, would have been in effect the exercise of a servi- 
tude and the ownership is thereafter severed, each house 
retains its privileges and burdens as before. 2 Voet does 
not admit this consequence, unless a servitude is consti- 
tuted, expressly or by the use of some formula which has 
the same effect, and this view has prevailed. 3 The con- 
troversy is as old as the glossators. A servitude of this 
character is said to be constituted destinations patris- 
familias. The phrase has passed into the French, and the 
principle into the Dutch, Code. 4 

A way of necessity, or at least the right to demand it, Way of 
may be said to arise by operation of law. If the parties necessit y- 
cannot come to an agreement it will be determined by the 
Court or other competent authority, as in Natal by the 
Road Board. 5 

In South Africa rights commonly described as public Public 
servitudes were formerly reserved in Government grants 
in favour of the public generally, or some portion of it. 
Such are rights of outspan, of cutting fuel, and of using 
trek-paths. They have been recognized in many cases as 
binding upon the grantee and his successors in title. 6 

1 Wille, Principles, p. 173. 2 Gr. 2. 36. 6. 

3 e.g. uti mine sunt, Voet, 19. 1. 6. See Bijnk. O.T. i. 482, and 
the exhaustive discussion of Kotze, J.P. (adopting Voet's view) in 
Salmon v. Lamb's Exor, [1906] E.D.C. 351. 

4 La destination du pere de famille vaut titre a 1'egard des servi- 
tudes continues et apparentes. C.C. Art. 692; B.W.B. Art. 747. 

5 Voet, 8. 3. 4; VanSchalkwyk v. DuPlessis (1900) 17 S.C. 454; 
Rampersad v. Goberdun [1929] N.P.D. 32; Wilhelm v. Norton 
[1935] E.D.L. 143; Mazista Slate Quarries Ltd. v. Oosthuizen 
[1943] T.P.D. 28. 

8 Meintjes v. Oberholzer (1859) 3 Searle 265; Van Niekerk v. 
Wimble [1878] Buch. 190 ; 2 Maasdorp, pp. 231 ff. ; Deeds Registries 
Act, 1937, sec. 65 (1). 

4901 



178 THE LAW OF PROPERTY 

Dedica- In English Law public rights of way may be created by 
public. dedication to the public. 1 This is probably unknown to the 
law of South Africa, 2 as it is to the law of Ceylon unless 
effected by deed of grant. 3 
How Praedial servitudes are lost by: 

servi- 18 1 - Merger, 4 when the servient and the dominant land 
tudesare meet in the same hand; in accordance with the maxim 
'nulli res sua servit'. 5 If the circumstances are such that 
the 'confusion' is permanent, the servitude is altogether 
gone ; if the union of ownership is merely temporary, as 
would be the case if the ownership of the two lands was 
not 'perdurable' (to borrow a phrase from English Law), 
the servitude would be in suspense. 6 

2. Release, 7 which may be either: (a) express; or (b) 
tacit ; as by acquiescing in some act of the owner of the 
servient land which is inconsistent with the continued 
existence of the servitude. 8 

3. Determination of the grantor's interest in the 
servient land. 9 

4. Non-user for the third of a hundred years. 10 

5. Sale of land by public auction in pursuance of a 
judicial sequestration. In such case persons claiming 
rights of servitude, &c., are given an opportunity of assert- 
ing them, and if they fail to do so cannot afterwards make 
them good against a purchaser. 11 

1 Halsbury, xvi. 217. 

2 London & 8. A. Exploration Co. v. Kimberley Town Council 
(1882) 1 H.C.G. 136; Lissack & Co. v. Sigma Building Co. (1897) 
4 O.K. 213; Tauber v. Venter [1938] E.D.L. 82. 

3 Sandrasegra v. Sinnatamby (1923) 25 N.L.R. 139. 

4 Dig. 8. 6. 1 ; Gr. 2. 37. 2 ; Van Leeuwen, 2. 22. 1 ; Voet, 8. 6. 2. 
8 Dig. 8. 2. 26 ; Secus B.G.B. 889 ; Swiss C.C. 733, 735. 

6 Schorer, ad Gr. 2. 36. 6; Voet, 8. 6. 3; 19. 1. 6; Salmon v. 
Lamb's Exor., ubi sup. 7 Gr. 2. 37. 3 ; Voet, 8. 6. 5. 

8 Gr. 2. 37. 4; Van Leeuwen, 2. 22. 3 ; Voet, ubi sup.', Edmeades 
v. Scheepers (1881) 1 S.C. 334; Vermeulen's Executrix v. Moolman 
[1911] A.D. at p. 409. 

9 Gr. 2. 37. 6 ; Van Leeuwen, 2. 22. 5 ; Voet, 8. 6. 13. 

10 Gr. 2. 37. 7 ; Van Leeuwen, 2. 28. 4 ; Voet, 8. 8. 7 ; in the Cape 
Province for thirty years. Ohlsson's Cape Breweries v. Thompson 
(1901) 11 C.T.R. 275; Brawn v. Powrie (1903) 13 C.T.R. 464. 

11 Voet, 8. 8. 14; Holl. Cons., ii, 6. 



SERVITUDES 179 

6. Destruction of the dominant or servient property, 
e.g. if either is swept away by the sea. But land is generally 
indestructible, and if buildings are rebuilt a servitude 
revives, even if the prescriptive period has meanwhile 
elapsed. 1 

Certain rules apply to all praedial servitudes : Rules of 

1. There can be no praedial servitude without a domi- appHca- 
nant and a servient land ; which last must be near enough tion to 
to the first to be useful to it, but not necessarily con- 



tiguous. 2 tudes - 

2. There cannot be a servitude over a servitude. 3 
'Servitus servitutis esse non potest.' 4 

3. The extent of the servitude may not exceed what is 
required for the convenience of the dominant land. 5 

4. The duty laid upon the owner of the servient land 
must, with the exception of the jus oneris ferendi, be a 
duty to forbear, not to do. 'Servitutium non ea natura 
est ut aliquid faciat quis, veluti viridia tollat aut amoen- 
iorem prospectum praestet, aut in hoc ut in suo pingat, sed 
ut aliquid patiatur aut non faciat.' 6 But modern codes 
depart from the principle in the sense that an active duty 
may be attached to the servitude. 7 

5. A servitude must be capable of perpetual duration. 
Therefore, a lessee of land (even if the lease is for a long 
term of years) cannot acquire a servitude by prescription. 
It can only be acquired by a dominus, or by an emphy- 
teuta or superficiarius, who, though not owners, have an 

1 Gr. 2. 37. 5 ; Van Leeuwen 2. 22. 6 ; Voet, 8. 6. 4. 

12 Voet, 8. 4. 19. 8 Voet, 8. 4. 7. 

4 Dig. 33. 2. 1. 

6 Voet, 8. 4. 13. Hence a real servitude cannot consist in a mere 
amenity or personal enjoyment. Dig. 8. 1. 8 pr. : Ut pomum 
decerpere liceat et ut spatiari et ut cenare in alieno possimus 
servitus imponi non potest. Cf. Voet, 8. 4. 15. 

6 Dig. 8. 1. 15, 1. 'It is not of the nature of servitudes that a 
man should [have to] do anything ; for instance remove shrubs so 
as to [read ut for aut] afford a more pleasing view, or, with the 
same object, paint something on his own ground ; but only that he 
should submit to something being done or abstain from doing 
something' (Monro's translation); Voet, 8. 4. 17. 

7 e.g. Code Civil Suisse, Art. 730. 



180 



THE LAW OF PROPERTY 



Personal 
tudes 



Place in 



arranged 
Grotius. 



interest which, if nothing occurs to destroy it, may last 
for ever, or by a bona fide possessor. 1 The allied rule that 
a servitude must have a perpetual cause is somewhat 
obscure. It seems to mean that the thing over which the 
right is claimed, as well as the right exercised, must from 
their nature be capable of perpetual continuance, and not 
depend merely upon the act of man. But the limits of the 
rule are ill defined; and it may be doubted whether it 
forms part of the modern law. 2 

PERSONAL SERVITUDES 

The principal personal servitudes in Roman Law were 
usufruct and use. The corresponding institutions in Dutch 
Law are lijftocht and bruick. To describe these as servi- 
tudes is, perhaps, to make too great a concession to Roman 
terminology. Grotius departs from the arrangement of 
*^ e R man Law. From full ownership he distinguishes 
proprietary rights less than ownership, which he describes 
comprehensively as 'gerechtigheden'. 3 These, again, are 
either connected with the ownership of land or not so 
connected. 4 To the first of these sub-classes alone he 
accords the name of servitudes (erfdienstbaerheden). 5 For 
the second sub -class he has no distinctive name. It 
includes such various rights as: (1) usufruct; 6 (2) use; 7 
(3) feuds ; 8 (4) hereditary leases ; 9 (5) tithes ; 10 (6) mort- 
gages ; n and some others. 12 Such an arrangement is, per- 
haps, better suited to a treatise on jurisprudence than to 
the exposition of a system of positive law. In this book 
we have already mentioned feuds and hereditary leases 

1 City Deep Ltd. v. McCalgan [1924] W.L.D. 276. 

2 Dig. 8. 2. 28: Omnes servitutes praediorum perpetuas causas 
habere debent. See illustrations given in the text ; and for the 
modern law Voet, 8. 4. 17; Groen., de leg. abr. ad Dig., ad loc. ; 
Windscheid, i, 209, n. 7. Even in the Roman Law the exercise of 
a servitude might be limited to certain times of the day or to 
alternate days. Dig. 8. 1. 4, 2 and 5, 1. 

8 Gr. 2. 33. 1-2, and see Table iv to lib. ii, cap. i. 
4 Erfaenhangig, onerfaenhangig. 5 Gr. 2. 33. 3. 

' Gr., lib. ii, cap. xxxix. 7 Cap. xliv. 

8 Capp. xli-xliii. * Cap. xl. 10 Cap. xlv. 

11 Cap. xlviii. " Capp. xlvi-xlvii. 



PERSONAL SERVITUDES 181 

under the head of ownership of land. Tithes we omit as 
having no place in the modern law. Mortgages form the 
subject of our next chapter. Of the above-mentioned 
rights, therefore, usufruct and use alone remain to be 
considered in this place. 

In Roman Law usufruct meant 'the right to enjoy the Usufruct, 
property of another and to take the fruits, but not to 
destroy it, or fundamentally alter its character'. 1 It was 
usually for the life of the person entitled, 2 sometimes for 
a fixed or ascertainable period terminable on death. 3 A 
usufruct may be constituted over immovable or movable 
property or both. 4 Things which are consumed in the use 
are not, properly speaking, the subject of usufruct, but 
may be the subject of a quasi-usufruct. 5 The same may 
be said of a usufruct of debts (nomina). The usufructuary 
may call in the debt, and use the money, but the capital 
sum must be made good when the usufruct expires. 6 A 
usufruct may be constituted of the whole of the grantor's 
estate. 7 In this event it is usually created by testament 
or antenuptial contract. 

The rights and powers of a usufructuary are : Eights 

1. As the name indicates, to use the property and to and 

* J powers 

take its fruits 8 as owner ; of the 

2. To possess the property and to recover possession 
from the dominus or from a third party ; 9 

3. To alienate the right of use and enjoyment, but only 

Inst. 2. 4 pr. ; Buckland, Textbook, p. 268. 

Gr. 2. 39. 1 ; Voet, 7. 4. 1. 3 Voet, 7. 1. 5; 7. 4. 13. 

Gr. 2. 39. 2 ; Voet, 7. 1. 14. 6 Inst. 2. 4. 2 ; Gr. 2. 39. 20. 

Dig. 7. 5. 3 ; Girard, p. 390. 7 Voet, ubi sup. 

Fructus are distinguished as natural, industrial, and civil ; 
and as pendentes (necdum a solo separati), exstantes (qui jam a solo 
separati asservantur), consumpti and percipiendi (qui licet percepti 
non sint, honeste tamen a diligente patrefamilias percipi potue- 
runt). Voet, 41. 1. 28. Fructus civiles, such as rents of houses 
which accrue from day to day, are apportioned between usufruc- 
tuary and dominus. Gr. 2. 39. 13 ; Voet, 7. 1. 30. 

9 Dig. 7. 1. 60 ; Voet, 7. 1. 32. The usufructuary had not posses- 
sion in the strict sense (Inst. 2. 9. 4) ; but generally, in so far as he 
'had rights to the enjoyment of the property as against the owner 
and all other men, he could use the same actions and interdicts 
as the owner'. Hunter, Roman Law (3rd ed.), p. 409. 



182 THE LAW OF PROPERTY 

for the term of the usufruct. 1 If, however, the property 
held in usufruct is let on hire to a third party, the lessee 
must be allowed a reasonable time after the determination 
of the usufruct to look out for other accommodation ; 2 

4. To give the property in pledge or mortgage and to 
suffer it to be taken in execution, but only to the extent 
of his usufructuary interest. 3 

In the absence of special circumstances a usufructuary 
is not entitled to claim compensation for improvements. 4 
Duties of The duties of the usufructuary are : 

the usu- i rj> o f rame an inventory of the property comprised in 
the usufruct. In Roman Law this was advisable, but not 
compulsory. 5 In Roman-Dutch Law it may be compelled ; 6 

2. To give security to the dominus: (a) for the use 
and cultivation of the property in a husbandlike manner ; 
(6) for its restoration in proper condition upon the ter- 
mination of the usufruct. 7 

The duty of giving security cannot be remitted to the 
usufructuary by the last will of the settlor; 8 though it 

1 Dig. 7. 1. 12, 2; Voet, loc. cit. This seems clear, though the 
text in the Institutes (2. 4. 3) 'nam extraneo cedendo nihil 
agitur ', has given unnecessary difficulty. Van Leeuwen says quite 
correctly (Gens. For. 1. 2. 15. 25): 'Sic ut usufructus cessione ex- 
traneo facta non tarn ipsum jus usufructus quam fructuum per- 
ceptionis commoditas translata videatur.' See Van der Merwe v. 
Van Wyk N.O. [1912] E.D.L. 298, and 40 S.A.L.J. (1923), p. 148. 

2 Voet, loc. cit. ; Holl. Cons. iv. 51. 3 Voet, loc. cit. 

* Brunsdon's Est. v. Brunsdon's Est. [1920] C.P.D. at p. 172, 
per Kotze, J., dissenting from Schorer ad Gr. 2. 39. 13. 

8 Dig. 7. 9. 1, 4. 6 Voet, 7. 9. 2. 

7 Gr. 2. 39. 3; Van Leeuwen, 2. 9. 10; V.d.L. 1. 11. 5; 1. 14. 10; 
Dig. 7. 9. 1 pr. ; Ex parte Newberry [1924] O.P.D. at p. 223. If a 
usufructuary has failed to give security, when called upon to do 
so, he is not entitled to the fruits, which in that case are imputed 
to capital. Neostad. Decis. Supr. Cur. no. 33 (in fin.); secus, if 
security has not been demanded. Decis. en Resolut. van den Hove, 
no. 354 ; Holl. Cons. vi. 326 ; V.d.K. Dictat. ad Gr. loc. cit. 

8 Gr., ubi sup. and Schorer's note (Dissent. Groen. de leg, abr. 
ad Cod. 3. 33. 4); Voet, ubi sup.; V.d.K. 371. Why not? The 
reasons given are irrelevant, or extremely feeble, as that the 
usufructuary may be tempted to waste the property (Gaill, ii. 
145, 2). In any event, parents are not bound to find security for 
property given to their children by last will or act inter vivos sub- 
ject to a usufruct in their favour. Voet, 7. 9. 7 ; Ex parte Pistorius 
1920] T.P.D. 297; Ex parte Newberry [1924] O.P.D. 219. 



PERSONAL SERVITUDES 183 

may be remitted by one who grants a usufruct by act inter 
vivos, and by the heir of a testator, who has constituted 
a usufruct by his will. 1 The security may be demanded 
by the dominus at any time during the currency of the 
usufruct ; 2 

3. To keep in repair at his own cost and to meet all 
ordinary expenses, but extraordinary expenses may be 
charged against the dominus ; 3 

4. To pay all usual taxes and outgoings charged on the 
land; 4 

5. Not to commit waste by felling timber, 5 destroying 
houses, 6 and the like. The permitted uses of timber are 
similar to those recognized by English Law. Undergrowth 
may be cut. Trees may be felled on timber estates in due 
course of husbandry, 7 wood may be taken for vine-posts 
or necessary repairs. If large trees are thrown down by 
the wind they belong not to the usufructuary but to the 
dominus ; 8 

6. Generally, to exercise all his rights with the care of a 
bonus paterfamilias. 9 

The duties and rights of the dominus are the counterpart The duties 
of the rights and duties of the usufructuary. Thus, on the *f th ghtS 

dominus. 
1 Voet, 7. 9. 9. 2 Voet, 7. 9. 11. 

3 Gr. 2. 39. 6; Van Leeuwen, 2. 9. 10; Voet, 7. 1. 36; Ex parte 
Est. Meintjes (1907) 17 C.T.R. at p. 453. 

4 Van Leeuwen, 2. 9. 11 ; Voet, 7. 1. 37. 

5 Gr. 2. 39. 7: Een lijffcochter mag geen boomen afhouden dan 
die houbaer zijn. Houbaer is a translation of caedua, i.e. quae 
succisa rursus ex stirpibus aut radicibus renascitur. Dig. 50. 16. 
30 pr. The usufructuary may work or open mines, but, as a rule, 
must restore to the dominus the value of the minerals taken 
and may be required to give security for such restoration. Van 
Leeuwen, 2. 9. 4; The Master v. African Mines Corp. Ltd. 
[1907] T.S. 925. In the Transvaal this right no longer exists in 
consequence of the Precious and Base Metals Act (35 of 1908) 
Ex parte Venter [1934] T.P.D. 69. Apparently it is not waste to 
change the course of husbandry. Voet, 7. 1. 24; Dig. 7. 1. 13, 5, 
and Gothofredus, ad loc. 

6 Voet, 7. 1.21. Ameliorating waste. Ibid. 

7 Schorer ad Gr., ubi sup. 

8 Voet, 7. 1. 22 ; and therefore the usufructuary was not bound 
to replace them. Dig. 7. 1. 59 pr. ; Voet, ibid. 

Voet, 7. 1. 41. 



184 



THE LAW OF PROPERTY 



one hand, he may not prevent, hinder, or diminish the 
right of use and enjoyment ; may not, for example, burden 
land held in usufruct with a real servitude without the con- 
sent of the usufructuary. 1 On the other hand, he retains 
all such rights as are properly incident to his reversion, 
such as the right of alienating the property, by sale or 
gift, subject, of course, to the usufruct. 2 

Howusu- Grotius says that usufruct is acquired by: (1) Agree- 
acquired m ent followed by acquiescence on the part of the dominus ; 3 
(2) last will; 4 (3) prescription of a third of a century; 6 
(4) judicial decree. 6 

For the first we should perhaps substitute delivery of 
movables and registration of immovables, for as Van der 
Keessel points out, there is no need here to have recourse 
to quasi-tradition (as in the case of praedial servitudes), 
for usufruct per se entitles the usufructuary to the actual 
possession of the subject-matter. 7 A last will does not vest 
the usufruct in the legatee, but entitles him to call for it. 8 
A usufruct may also be reserved in a deed of transfer of 
land. 9 

Usufruct is determined by: (1) death of the usufruc- 
tuary, 10 or during his life-time by the expiry of the time 
for which the usufruct was granted, or by a resolutive con- 
dition. 11 When the usufructuary is a corporation the event 
corresponding to natural death is the dissolution of the 
corporation, or the effluxion of one hundred years from 
the date of the inception of the usufruct. 12 The heirs of the 
usufructuary have no right to remove standing crops, but 

1 Voet, 7. 1. 20. But 'jure civili nee consentiente fructuario'. 

2 Voet, ubi sup. * Gr. 2. 39. 8; Voet, 7. 1. 7. 
4 Gr. 2. 39. 9. 

B Gr. 2. 39. 11; (Ceylon) Selohamy v. Ooonewardene (1928) 30 
N.L.R. 112. In South Africa now thirty years, Prescription Act, 
1943, sec. 2. 

6 Gr. 2. 39. 12. Jure civili also in certain cases (5) by operation 
of law. Voet, 7. 1. 6. 

7 V.d.K. Dictat. ad Gr. 2. 39. 8; Lee, Commentary, p. 199. 

8 Supra, p. 173. 9 Deeds Registries Act, 1937, sec. 67. 
10 Gr. 2. 39. 13; Voet, 7. 4. 1. " Voet, 7. 4. 11-13. 

12 Gr. 3. 39. 15 ; Voet, 7. 4. 1 ; Johannesburg Municipality v. 
Transvaal Cold Storage Co. [1907] T.S. at p. 729. 



How 
deter- 
mined. 



PERSONAL SERVITUDES 185 

are entitled to be re-imbursed the cost of sowing and 
cultivation. 1 Rents are apportioned between the heirs of 
the usufructuary (or the usufructuary) and the dominus ; 2 
(2) merger; when the usufructuary becomes owner (con- 
solidatio), or the usufruct reverts to the owner by cession, 
or abandonment*; 3 (3) non-user for one-third of a century 
or, as some say, thirty years ; 4 (4) complete, but not partial, 
destruction or change of form of the subject-matter of the 
usufruct. 5 

Usus or bruick is a lesser right than usufruct, but, like Usus. 
it, is usually a life interest. 6 Its incidents are the same as 
in the Roman Law. Closely akin to usus is habitatio (recht 
van bewoning over een huis), but, unlike usus, it includes 
the right of letting the house on hire. 7 

Grotius refers to the same legal category the right of 
grazing on common-lands and the hereditary right of 
fishing in another's water. 8 

Use, in general, is constituted and determined by the 
same modes as usufruct. 9 

In addition to the above there are what the commen- Anoma- 
tators call irregular or anomalous personal servitudes, 10 

1 Voet, 7. 1. 28 in fine. 

2 Gr. 2. 39. 13 ; Lee, Commentary, p. 200 ; Voet, 7. 1. 30. 

8 Inst. 2. 4. 3 ; Gr. 2. 39. 16, 17 ; Voet, 7. 4. 2. 3 ; Dig. 7. 1. 64 and 65. 

4 Gr. 2. 39, 18 ; Voet, 7. 4. 6. Usufruct is not lost by 'abuse ', the 
dominus being sufficiently protected by the cautio fructuaria. The 
Institutes indeed say (2. 4. 3) 'finitur usufructus non utendo per 
modum', which has given some difficulty to the commentators. 
Vinnius (ad loc., sec. 2) and Voet (7. 4. 5) admit this mode of 
determination in certain cases. Heineccius ad Vinn. (ubi sup.) 
explains it away. In English Law if a life-tenant purported to 
alienate the fee simple he forfeited his interest. There is no clear 
evidence of a corresponding rule in R.-D.L. Gens. For. 1. 2. 15. 25 ; 
Voet, 7. 4. 4. But see Groen. ad Gr. 2. 39. 16 and Van Leeuwen, 
2. 9. 14. 

8 Gr. 2. 39. 14; Voet, 7. 4. 8 and 9. But may revive: Voet, 
7. 4. 10. 

6 Gr. 2. 44. 6; Voet, 7. 8. 3; Potgieter v. Zietsman [1914] E.D.L. 32. 

7 Gr. 2. 44. 8; Galant v. Mahonga [1922] E.D.L. 69; Arend v. 
Est. Nakiba [1927] C.P.D. 8. These rights are seldom met with 
at the present day, 2 Maasdorp, p. 197. 

8 Gr. 2. 44. 7. 9 Gr. 2. 44. 10 ; Voet, 7. 8. 3. 

10 Gliick, ix. 19. They are not touched by the Deeds Registries 
Act, 1937, sec. 63 (1). 



186 THE LAW OF PROPERTY 

which are created when a right of way or other normally 
praedial servitude is granted to a person as such for life 
and not to the owner of adjoining property in perpetuity. 1 
Such rights are generally inalienable. But a grant of 
mineral rights 'constituted in favour of the beneficiary 
personally, and not in his capacity as owner of another 
property, would be in the nature of a personal servitude, 
but freely assignable and passing to his heirs'. 2 These 
rights ' are peculiar to the circumstances of the country, 
and do not readily fall under any of the classes of real 
rights discussed by the commentators'. 3 

1 Voet, 8. 1. 4; Willoughby's Consolidated Co. v. Copthall Stores 
[1913] A.D. at p. 281 ; Texas Co. (S. A.) Ltd. v. Cape Town Munic. 
[1926] A.D. 467. 

2 Van Vuren v. Registrar of Deeds [1907] T.S. at p. 294. 

3 Lazarus & Jackson v. Wessels [1903] T.S. at p. 510. As to the 
relation of the grantee of mineral rights to the owner of the 
surface see Nolte v. Johannesburg Consolidated Investment Co. Ltd. 
[1943] A.D. 295. 



VII 

MORTGAGE OR HYPOTHEC 
MORTGAGE 1 is defined by Grotius as a 'right over another's The 

natu 
mortgage. 



property which serves to secure an obligation'. 2 The per- nature of 



son who creates the mortgage is termed the mortgagor, 
the person in whose favour it is created is termed the 
mortgagee. 

The obligation intended to be secured may be either 
civil or natural, provided that it is not one which the civil 
law disapproves. 3 A person may create a mortgage to 
secure his own obligation or anyone else's, but there can 
be no mortgage where there is no principal obligation. 4 
Anything may be mortgaged which belongs to the mort- 
gagor whether in full or qualified ownership, 5 and whether 
such property be movable or immovable, corporeal or in- 
corporeal, in possession or consisting in a right of action. 6 
A mortgage of a specific thing imports a mortgage of the 
fruits 7 and other accessories. 8 Generally speaking, a man 
cannot mortgage what does not belong to him, 9 but a 

1 The term 'mortgage', derived from English law, is now in 
common use as a synonym for 'hypothec', though the tendency, 
perhaps, is to speak of express mortgages and of tacit hypothecs. 

2 Gr. 2. 48. 1 : gerechtigheid over eens anders zaeck dienende tot 
zeeckerheid van inschuld. By 'gerechtigheid' Grotius means a 
proprietary right less than ownership. Gr. 2. 33. 1. 

8 Voet, 20. 1. 18. Mortgages are frequently made to secure 
future advances as well as existing liabilities. A mortgage of this 
kind is known as a 'covering bond'. See Deeds Registries Act, 
1937, sec. 51, and Wille, Mortgage and Pledge in South Africa, p. 92 ; 
and for Ceylon, Ord. No. 21 of 1927, sec. 17. 

4 Kilburn v. Est. Kilburn [1931] A.D. 501. 

6 Gr. 2. 48. 2. Grotius (sec. 3), founding on the Roman Law, 
says that the mortgage of urban servitudes and of agricultural 
instruments is forbidden, but Schorer dissents. 

6 Voet, 20. 3. 1. See National Bank of S. A. v. Cohen's Trustee 
[191 1] A.D. at p. 250. A mortgage itself may be mortgaged by the 
mortgagee to secure a debt due from himself (sub -mortgage). Van 
Leeuwen, 4. 13. 6. 

7 Voet, 20. 1. 3; Barclay's Bank v. The Master [1934] C.P.D. 
413. 8 Voet, 20. 1. 4. 

9 Voet, 20. 3. 3. As between mortgagor and mortgagee the 



188 THE LAW OF PROPERTY 

husband by virtue of his marital administration, may 
mortgage the property of his wife, even though com- 
munity of goods has been excluded j 1 and pawnbrokers, 
according to some authorities, were not required to restore 
to the true owner things pawned with them by a non- 
owner, except on terms of payment of the debt for security 
of which the pawn was given. 2 Further, a thing may be 
effectually mortgaged by a non-owner if the owner con- 
sents or afterwards ratifies the transaction; or if the 
mortgagor afterwards becomes owner. 3 But this last de- 
parture from the rule has no application to a special 
mortgage of immovables. 4 

The immovable property of a minor may not be mort- 
gaged without a judicial decree. 5 

Classifies- Mortgages are either: (1) conventional (or express), or 
mart ^) ^S 9 ^ ( or tacit) ; 6 and each of these may be either 
gages. general or special, according as the mortgage attaches to 
all the mortgagor's property (immovable or movable or 
both), future as well as present, or to some specific thing 
or collection of things, as a flock of sheep or all the goods in 
a shop. 7 In this last case the mortgage covers the flock or 
stock in trade as it may from time to time be constituted. 
Conventional mortgages, as the name implies, are created 
by agreement. Tacit mortgages arise by operation of law. 
The phrase judicial mortgage (pignus praetorium vel 

transaction holds good, but not to the prejudice of the owner. 
V.d.K. 539. 

1 Voet, 20. 3. 7 ; Roll. Cons. i. 151. 

2 Voet, ubi sup. ; Schorer ad Gr. 2. 48. 2 ; Van Leeuwen, 4. 13. 4 ; 
Groen. de leg. abr. ad Cod. 8. 16. But see Muller v. Chadwick & Co. 
[1906] T.S. 30. 

3 Dig. 13. 7. 41; Voet, 20. 3. 4. For other cases see Voet, 
20. 3. 7. 

4 Voet, 20. 3. 6. In the modern law 'the mortgage of immovable 
property without the consent of the owner is rendered practically 
impossible by our system of registration'. Wille, Mortgage and 
Pledge, p. 56. 

6 Decker ad Van Leeuwen, 4. 12. 4; Administration of Estates 
Act, 1913, sec. 87; supra, p. 49. For other cases in which 
mortgage is not permitted see Decker's note. 

6 Gr. 2. 48. 7. 

7 Voet, 20. 1. 2. 



MORTGAGE OR HYPOTHEC 189 

judiciale) is also in use, meaning an attachment of goods in 
execution of a judgment. 1 

In Roman Law a mortgage was created by agreement Mortgage 
with or without transfer of possession. If, to secure a Law? man 
debt, a thing, movable or immovable, was transferred into 
the possession of the creditor, the transaction was a pledge 
(pignus). If a charge over property was created with- 
out transfer of possession, the transaction was properly 
described as a hypothec. But in common usage these 
terms were interchangeable. 2 No formal words were re- 
quired to create a mortgage. All that was needed was 
the agreement of the parties, which might be expressed 
verbally or in writing. In the later law an instrument 
executed publicly or subscribed by three witnesses was 
preferred to other mortgages. 3 

In the Roman-Dutch Law the matter was not so simple. Mortgage 
We must distinguish : (a) special mortgages of immovables ; p^* 811 " 
(6) special mortgages of movables accompanied by deli- Law. 
very (pledges) ; (c) general mortgages and special mortgages 
of movables unaccompanied by delivery ; (d) mortgages of 
rights (res incorporales). 

(a) Special mortgages of immovables were required by a Special 
Placaat of Charles V of May 10, 1529, to be executed by % &se 
solemn writing passed ' before the Judge and in the place movables. 
where the goods are situate'. 4 There was a duty of 2 per 
cent, of the amount of the loan (duty of the fortieth 
penny) ; 5 and the transaction had to be registered in the 
land-book. 6 All these conditions were indispensable, if the 

1 Kotze, Van Leeuwen, vol. ii, p. 656; Liquidators Union and 
Rhodesia Wholesale Ltd. v. Brown & Co. [1922] A.D. 549; Hum- 
phreys v. Pickles [1925] A.D. 471. 

2 Dig. 20. 1. 5, 1 (Marcianus): Inter pignus et hypothecam 
tantum nominis sonus differt. 

3 Cod. 8. 17 (18). 11, 1. 

4 1 G.P.B. 374; supra, p. 145. 

8 Placaat der 40 ste Penning, December 22, 1598, as reissued 
1632 (1 G.P.B. 1953). The duty was, however, imposed before 
that date, for it is already mentioned by Grotius (2. 48. 30), whose 
work was written in 1620 and published in 1631. See Boel ad 
Loen., p. 118. 

P.O., 1580, Art. 37 (1 G.P.B. 339). It should be noted that the 



190 THE LAW OF PROPERTY 

mortgage was to affect third parties, i.e. to bind the 
property. 1 It was immaterial whether possession was or 
was not transferred to the creditor. 2 

Pledge of (6) A special mortgage of movables accompanied by 
3 ' delivery, i.e. a pledge (pigmis pand ter minne) was 
effected by handing over the property to the creditor to 
hold as a security. 3 To the validity of a pledge transfer of 
possession was essential. 4 An agreement, therefore, which 
allowed the pledgor to retain the thing precario or as a 
loan or deposit, or on hire from the pledgee, rendered the 
pledge invalid, being looked upon as a fraud upon the law, 
which insists upon delivery as an essential element in the 
transaction. 5 

General (c) A general mortgage was constituted either by a 
general clause added to a special mortgage, or by a general 
bond. If the general bond related to immovables the law 
required it to be passed before a Judge, who might be any 
Judge in the Province of Holland. 6 

Mortgage A general bond of movables was generally executed 

ables V before a notary. The same applied to a special bond of 

without movables unaccompanied by delivery. 7 

(d) Mortgages of rights (res incorporales) were effected 

ofrights. by agreement, which might, or might not, be accompanied 
by cession of the right to the creditor. 8 

Mortgages In South Africa the law remains substantially the same. 

Africa* A special mortgage of immovables is constituted by a 

reference in that article is to the Placaat of May 9, 1560 (2 G.P.B. 
759 and 1402), not to the Placaat of 1529. 

1 Gr. 2. 48. 30. V.d.K. ad loc. (Lee, Commentary, p. 215) holds 
that omission of registration did not entail the penalty of nullity. 

2 Gr. 2. 48. 33. 

3 Gr. 2.48. 27; V.d.L. 1. 12. 3. 

4 But brevi manu traditio may be sufficient. O'Callaghan's 
Assignees v. Cavanagh (1882) 2 S.C. 122. 

8 Voet, 20. 1. l2;Holl. Cons. iii. 174, 470; V.d.K. 536; Goldin- 
ger's Trustee v. Whitelaw [1917] A.D. at pp. 79, 89 ; Goosen's Trus- 
tees v. Goosen (1884) 3 E.D.C. at p. 387. 

6 P.O. Art. 35 ; Gr. 2. 48. 23 ; Voet, 20. 1.10; V.d.K. 428. 

7 Gr. 2. 48. 23 and 28 ; V.d.K. ad loc. (Lee, Commentary, p. 212) ; 
Van Leeuwen, 4. 13. 20 and Kotze, ad loc. 

8 Voet, 20. 3. 1 ; 20. 1. 17 ; National Bank of S. A. Ltd. v. Cohen's 
Trustee [1911] A.D. at p. 250. 



MORTGAGE OR HYPOTHEC 191 

bond, known as a 'mortgage bond', 1 executed before, and 
attested by, the Registrar of Deeds, who has replaced the 
Judge for the purpose, and registered against the title 
deeds of the property. 2 General mortgages of immovables 
are no longer in use. Mortgages of movables (apart from 
pledge), special or general, are effected by notarial bond, 
and to give them a preference in insolvency must be 
registered. 3 A mortgage of a res incorporalis, such as a 
right of action, is effected by cession : 'An incorporeal right 
is by its nature not susceptible of physical delivery, but 
the pledger must do some act to show that he divests 
himself of that right and vests it in the pledgee for the 
purpose of holding it as a security.' 4 

In Ceylon conventional general mortgages have been in Ceylon, 
abolished by statute. 5 A special mortgage of immovables 
must be executed before a notary and two witnesses or a 
District Judge, &c., and be registered. 6 A special mortgage 
of movables must be effected by actual delivery or by 
writing duly registered (bill of sale). 7 

Before leaving this branch of our subject it is to be NO special 
remarked that no special form of words is necessary for the ^i a of 
creation of a mortgage. Whether the words used are apt required, 
to create a mortgage is a question of intention and con- 
struction. It sometimes happens that what in essence is a 
mortgage is disguised in terms appropriate to sale or some Disguised 
other contract. But the Courts will always go behind the m 
form to ascertain the essential nature of the transaction, 

1 Deeds Registries Act, 1937, sec. 102. 

2 Harris v. Buwinne's Trustee (1840) 2 Menz. at p. 108; Deeds 
Registries Act, 1937, sec. 50. 

3 Francis v. Savage & Hill (1882) 1 S.A.R. 33; Hare v. Heaths 
Trustee (1884) 3 S.C. 32 ; 2 Maasdorp, p. 281. 

4 Smith v. Family's Trustee [1904] T.S. at p. 955 ; National Bank 
of 8. A. Ltd. v. Cohen's Trustee [1911] A.D. at p. 251 ; Robert v. 
Ettlinger [1937] W.L.D. 28. As to what is necessary to constitute 
a cession of a right, see p. 247 infra. 

5 Ord. No. 8 of 1871, sec. 1; re-enacted, Ord. No. 21 of 1927, 
sec. 3. 

9 Ord. No. 7 of 1840, sec. 2 ; Ord. No. 17 of 1852, sec. 1. 

7 Ord. No. 21 of 1871 ; Ord. No. 23 of 1927, sec. 18 ; Mohamad v. 
Eastern Bank ( 1931 ) 33 N.L.R. 73. For the older law of Ceylon see 
Tatham v. Andree (1863) 1 Moo. P.C.C. (N.S.) 386. 



192 



THE LAW OF PROPERTY 



Contract 
to create 
a mort- 
gage in 
futuro. 



Tacit 
hypo- 
thecs. 



and, if this is found upon its true construction to be a 
mortgage, will pronounce it to be so. This is an appli- 
cation of the maxim Plus valet quod agitur quam quod 
simulate concipitur. 1 

An agreement to constitute a mortgage in futuro, e.g. to 
give a movable as a pledge to secure a present or future 
debt, bears the same relation to a mortgage as a contract 
to sell bears to a sale perfected by delivery. If such an 
agreement satisfies the requirements of the law as to form 
and in all other respects the Courts will give effect to it 
directly, by decreeing specific performance, or indirectly, 
by interdict, and in any event by an action for damages 
against the party in default. This is part of the general 
law of contract, and does not call for any further notice in 
this place. It must be remarked, however, that an alienee 
with notice is in no better position than if the mortgage 
had been actually implemented. 2 

We pass to tacit hypothecs. Many such are mentioned 
in the books, of which some were peculiar to the law of 
Holland, but most were a legacy from the Roman Law, 
which in the later Empire, and particularly under Justi- 
nian, multiplied these embarrassing clogs on property: 
some of these are inapplicable to modern conditions. Many 
were abolished by pre-Union legislation in one or other of 
the colonies, and to-day none of them except the land- 
lord's hypothec confers a preference in insolvency. This 
provision of the Insolvency Act 3 does not positively 
abolish tacit hypothecs in general, for the statute leaves 
untouched the hypothecary creditor's right (if it still 
exists) of following the property into third hands 4 and his 
right of preference where there is no insolvency, as in an 

1 Cod. 4. 22; Voet, 13. 7. 1 ; Zandberg v. van Zyl [1910] A.D. 
at p. 309; National Bank of S. A. v. Cohen's Trustee [1911] A.D. at 
p. 242 ; Anderson v. Kaplan [1931] C.P.D. 50; Bhaijee v. Khoja 
[1937] A.D. 246 ; Commrs. of Customs v. Randies Bros. [1941] A.D. 
369. 

2 Cato v. Alion & Helps [1922] N.P.D. 469 ; De Jager v. Sisana 
[1930] A.D. at p. 84. 

3 Insolvency Act, 1936, sec. 85 (1). 

4 Infra, p. 200. 



MORTGAGE OR HYPOTHEC 193 

Admiralty action in rem. 1 But in practice these hypothecs 
have little, if any value, except the landlord's hypothec, 
which calls for particular attention. 

In the later Roman Law a landlord, to secure the rent The land- 
due to him, had a tacit hypothec over movables brought 



on to the leased premises (invecta et illata) in the case of a 
house, and in the case of an agricultural tenancy over the 
fruits and crops. 2 The Roman-Dutch Law took this over, 
extending the tacit hypothec over invecta et illata to 
every description of tenancy. 3 This hypothec in principle 
requires two conditions: (1) the goods must be on the Two con- 
premises ; (2) they must be the property of the tenant. ' 
But each of these conditions admits of some qualification. 

1. As regards the first, the removal of the goods from the l. The 
premises usually extinguishes the hypothec. The only ^^ S jj e 
way to prevent this is for the landlord to obtain from the on the 
Court a judicial sequestration of the property while it is on pl 
the premises, or an arrest of the property in the very act 
of removal. The law as stated by Voet in the following 
passage still holds good : 

'We must remember that now with us and in many other 
countries the right of tacit pledge in the "invecta et illata" of 
a tenement, whether rural or urban, has no force unless they 
are sequestered (praecludantur) by public authority while they 
are still in the tenement ; or, unless, when the tenant removes 
them, they are seized (arresto detineantur) by a vigilant creditor 
in the very act of removal, in which case the things which had 
been begun to be transferred, but had not yet reached the 
place destined for their concealment, are to be taken back to 
the land ; . . . which sequestration (pmeclusio) by our usages 
not only confirms (firmat) the lessor's right of hypothec, but 
also gives him a preference, though by the Roman Law he 
seems to have been entitled only to a simple hypothec ; and by 
the law of Amsterdam only the rent for one year besides the 
current year has preference.' 4 

1 Crooks & Co. v. Agricultural Coop. Union [1922] A.D. 423. 

2 Dig. 2. 14. 4 pr. ; 20. 4. and 7 ; also for waste to a house si 
deteriorem habitationem fecerit culpa suainquilinus. Dig. 20. 2. 2. 

3 Gr. 2. 48. 17 ; Voet, 20. 2. 2-3 ; V.d.K. 423. 

4 Voet, 20. 2. 3 (Berwick's translation) ; (Ceylon) Perera v. Silva 
(1935) 37N.L.R. 157. 

O 



4901 



194 THE LAW OF PROPERTY 

In this passage Voet speaks of the possibility of seizure in 
the very act of removal ; and Grotius says that the lessor 
preserves his right if he proceeds against the property 
'immediately, while it is being removed from the ground'. 
The limits which the law puts upon this right were con- 
sidered in Webster v. Elison [1911] A.D. 73. The Natal 
Quick Court had developed a doctrine of so-called 'quick pur- 
pursuit. su it' 5 according to which 'if the landlord proceeds ex- 
peditiously, or with sufficient celerity, he is entitled to an 
order for the attachment and return of the goods to the 
leased premises'. But the Appellate Division refused to 
endorse this doctrine. By the law of South Africa the 
utmost indulgence allowed to the landlord is to arrest the 
goods 'in process of removal or while in transit to their new 
destination' (Innes J. at p. 90). If the tenant has removed 
the goods after an order of attachment, the Court will 
order him to return them to the premises for the purpose of 
giving effect to the attachment. 1 But even in this case (it 
seems) a bonafide purchaser wiU have acquired a good title. 2 
The land- it is not the case, however, according to modern prac- 
ference^ 6 tice, that the landlord's hypothec requires a judicial arrest 
to make it effectual over movables remaining upon the 
premises ; for over such property the landlord has a right 
of preference in the event of insolvency, which prevails 
even against a pignus praetorium issued before the land- 
lord has obtained an attachment or interdict in enforce- 
ment of his lien. 3 The hypothec is not lost by the removal 
of the goods from the leased premises under a writ of 
execution taken out by the landlord upon a judgment for 
arrears of rent. 4 

2. The 2. The hypothec in principle attaches to movables upon 

the premises belonging to the tenant ; or to a sub-tenant, 

(gener- but only to the extent of rent due from the sub-tenant to 

belong to n * s immediate landlord. 5 The property of third parties is 

1 Greeffv.Pretorius(1895) 12 S.C. 104. 

3 Voet, 20. 2. 3, in fine. 

8 In re Stilwell (1831) 1 Menz. 537 ; 2 Maasdorp, p. 313. 

4 Columbia Furnishing Co. v. Goldblatt [1929] A.D. 27. 

B Voet, 20. 2. 6, in fine; Smith v. Dierks (1884) 3 S.C. 142; 



MORTGAGE OR HYPOTHEC 195 

not bound unless it has been brought upon the premises the 
with the knowledge and consent, express or implied, of the tenant - 
owner for the permanent or indefinite use of the tenant 
and the landlord is unaware that the goods do not belong 
to the tenant. 1 Goods supplied under a hire-purcha.se 
agreement usually satisfy this condition. 2 Consent is 
implied if the owner being in a position to give notice of 
his ownership to the landlord has failed to do so. 3 So soon 
as the goods cease to belong to the tenant, e.g. by being 
sold and delivered to a bonafide purchaser, they cease to be 
affected by the hypothec even before their removal from 
the land. 4 On the other hand, if the goods have in fact 
been brought on to the premises for the permanent or 
indefinite use of the tenant, it is immaterial that the 
landlord did not know that they were there. 5 The land- 
lord's hypothec does not extend to goods placed in the 
hands of the tenant to be worked by him in the course of 
his trade. 6 It is not lost if the landlord has accepted a 
surety or a conventional mortgage to secure his rent, for 
no one should be prejudiced by excess of caution. 7 

The Insolvency Act, 1916, sec. 86 (as amended by Act 
No. 29 of 1926, sec. 29) provided that the landlord's 

Exparte Aegis Assurance Co. [1909] E.D.C. 363 ; Reinhold & Co.v. 
Van Oudtshoorn [1931] T.P.D. 382. Quaere whether this applies 
also to the produce of the land in the hands of a sub -tenant. 
Smith v. Dierks, ubi sup. ; Wille, Landlord and Tenant (3rd ed.), 
p. 184. 

1 Dig. 20. 2. 7; Groen. ad Gr. 2. 48. 17; Voet, 20. 2.5; Bloem- 
fontein Munic. v. Jackson's Ltd. [1929] A.D. at p. 276 ; Phillips v. 
Hearne & Co. [1937] C.P.D. 61 ; Van den Bergh v. Polliack & Co. 
[1940] T.P.D. 237. 

2 Bloemfontein Munic. v. Jackson's Ltd., ubi sup. 

3 Ibid, at p. 277 ; Sercombev. Colonial Motors (Natal) Ltd. [1929] 
N.P.D. 58 ; Rand Furnishing Co. v. Heydenrych [1929] T.P.D. 583 ; 
Fresh Meat Supply Co. v. Standard Trading Co. [1933] C.P.D. 
550. 

4 Webster v. Ellison [1911] A.D. at p. 84 per Lord De Villiers 
C.J. The same consequence follows if goods are attached on the 
leased premises at the instance of a judgment creditor of the 
lessee. Ibid. 

5 Mackay Bros. v. Eaglestone [1932] T.P.D. 301. 

6 Van Leeuwen, 4. 13. 12. 

7 Voet, 20. 6. 12 ; Schorer ad Gr. ubi sup. 



196 THE LAW OF PROPERTY 

hypothec should give a preference for all rent in respect of 
the period current with and up to the sequestration, and 
for arrear rent not exceeding three months in respect of the 
period immediately prior thereto. The latest Insolvency 
Act gives a preference for rent due in respect of any period 
immediately prior to and up to the date of sequestration 
for periods extending from three to fifteen months accord- 
ing as the rent is payable at longer or shorter intervals. 1 

A statu- The same Act by sec. 84 in case of a sale of goods under 

hypothec a 8US P ens i ve condition or of a hire-purchase agreement 
creates a statutory hypothec. The trustee of the debtor's 
insolvent estate may be required by the creditor to deliver 
the property to him, and thereupon the creditor is deemed 
to be holding the property as security for his claim. 

Other As explained above, there were many other tacit hypo- 

thecs which have little, if any, value at the present day. 

thecs. Some were special, affecting particular things, such as the 
hypothec of one who lent money or supplied materials for 
repairing a house or ship, or expended labour in doing so 
over the house or ship in question ; 2 or the hypothec of an 
agricultural tenant, who had quitted possession on the 
determination of his lease, over the leased property to 
cover his right to be compensated for structures set up 
with the landlord's consent. 3 Others were general, attach- 
ing to all the property of the debtor, such as the hypothec 
of the fiscus over the property of administrators and 
receivers of public funds 4 and of persons liable for taxes 

1 viz. three months if the rent is payable monthly or at shorter 
intervals ; six months if at intervals exceeding one month, but not 
exceeding three months ; nine months, if at intervals exceeding 
three months, but not exceeding six months ; and fifteen months if 
at any longer interval. Insolvency Act, 1936, sec. 85 (2). 

2 Gr. 2. 48. 13; Voet, 20. 2. 28-9; 20. 4. 19; Crooks & Co. v. 
Agricultural Coop. Union [1922] A.D. 423. 

3 Placaet van de Staten van Hollandt of 26 September, 1658, 
Art. 11 (2 G.P.B. 2515). For text and translation see Lee, Com- 
mentary, p. 93. 

4 Gr. 2. 48. 15; Voet, 20. 2. 8; V.d.K. 420; In re Insolvent Est. 
Buisinnc (1828) 1 Menz. 318; Chase v. Du Toit's Trustees (1858) 
3 Searle 78 ; (Ceylon) Attorney General v. Pana Adappa Chetty 
(1928) 29N.L.R. 431. 



MORTGAGE OR HYPOTHEC 197 

and dues, 1 of the ward over his guardian's estate, 2 of 
legatees and fideicommissaries over the estate of the de- 
ceased testator or intestate, 3 of the wife, when all com- 
munity of goods had been excluded, over her husband's 
estate, in security of her dos. 4 Many of these tacit hypo- 
thecs, as Professor Wille points out, 5 have been rendered 
unnecessary by the fact that the legislature has provided 
other ways of securing the same result. Others have 
degenerated into hens. Any reader who may wish to have 
more detailed information will find it in earlier editions 
of this book. 

A tacit hypothec is not the same as a lien. 6 This is a Liens, 
creditor's right to retain immovable or movable property, 
presently in his possession, until some claim is satisfied. 
The claim usually, but not necessarily, relates to the 
property retained. Tacit hypothecs and liens have this 
in common, that both arise by operation of law, and not 
by act of party. But liens last only so long as possession is 
retained 7 and are not assignable, whereas a tacit hypothec 
does not generally depend upon possession, and, like most 
other hypothecs, may be ceded to a third party together 
with the claim secured by it. In some respects a lien is 
more analogous to a pledge of a movable perfected by 
delivery. Thus, a right to hold a pledge as a security 
cannot be ceded without the consent of the debtor and so 
far resembles a lien. On the other hand the pledge gives 
a right of sale, which a lien does not. 8 

Liens fall into one of two classes, which have been Classifica- 
tion and 

1 Voet, ubi sup. ; V.d.K. 419 ; Cape Govt. v. Liquidators Balmoral legal 
Diamond Co. [1908] T.S. at p. 688. effect - 

2 Gr. 2. 48. 16 ; Voet, 20. 2. 11 ; V.d.K. 421. 

3 Gr. 2. 23. 19 ; Voet, 20. 2. 21 ; V.d.L. 1. 12. 2. 

4 Voet, 20. 2. 20; 23. 4. 52; Ruperti's Trustee v. Ruperti (1885) 
4 S.C. 22. 

6 Wille, Principles of South African Law, p. 187. 

8 Lien or jus retentionis is distinguished from pignus in Reed 
Bros. v. Ford [1923] T.P.D. 150. The former is a weapon of 
defence only (per Wessels J.P. at p. 154). 

7 United Building Soc. v. Smookler's Trustees [1906] T.S. at 
p. 627 ; Savory v. Baldochi [1907] T.S. 523. 

8 Deutschmann v. Mpeta [1917] C.P.D. 79. 



198 THE LAW OF PROPERTY 

distinguished as: (1) salvage and improvement liens ; (2) 
debtor and creditor liens. 1 The first of these classes of lien 
exists in favour of any person who has necessarily or use- 
fully incurred expense about property presently in his 
possession. The second is a consequence of contract, and 
covers all expenses duly incurred in terms of the agree- 
ment. The first is good against all the world, the second 
only against the other party to the contract and persons 
claiming through him, or acquiring the property with 
knowledge of the lien, 2 not against an owner who is not 
a party to the contract, unless it has been made by his 
authority express or implied, or relates to necessary or 
useful expenses. 3 Instances of the first are the rights of 
retention which the law gives to possessors and occupiers 
of land in respect of improvements, 4 and perhaps to a 
finder of lost property in respect of necessary expenses. 5 
Instances of the second are the rights of retention enjoyed 
by builders, 6 by artificers, e.g. when cloth has been 
delivered to a tailor to make up into clothes, 7 by livery 
stable keepers, 8 by carters and warehousemen. 9 By an 
extension of the same principle attorneys and other legal 
practitioners have a right to retain documents until paid 

1 United Building Soc. v. Smooklers Trustees, ubi sup. ; Colonial 
Manufacturing Co. v. Wild [1927] C.P.D. 198. 

2 Nieman v. Scrivenor N. O. [1922] O.P.D. 101 ; Levy v. Tyler 
[1933] C.P.D. 377. 

8 Ford v. Reed Bros. [1922] T.P.D. 266 at p. 278; Reed Bros. v. 
Ford [1923] T.P.D. 150; Colonial Cabinet Manufacturing Co. v. 
Wild, ubi sup. ; United Building Soc. v. Smookler's Trustees at 
p. 628. 4 Infra, p. 451. 

6 Killian v. Reilly (1908) 18 C.T.R. 159. 

8 United Building Society v. Smookler's Trustees, ubi sup. ; 
Scholtz v. Faifer [1910] T.P.D. 243; Phillips & Gordon v. Adams 
[1923] E.D.L. 104. 

7 Voet, 16. 2. 20; 20. 2. 28 (in fin.); Spurrier v. CoxwellN.O. 
[1914] C.P.D. at p. 88. 

8 Ford v. Reed Bros, ubi sup. ; Reed Bros. v. Ford ubi sup. 
By Roman-Dutch Law, differing herein from English law, expenses 
incidental to the maintenance of the lien, e.g. the feed and stabling 
of horses, may be charged against the debtor. Ibid. Contra, Long- 
pan Salt Co. Ltd. v. Blumenfeld & Co. [1922] N.P.D. 177. For 
agistor's lien see Land Bank v. Mans [1933] C.P.D. 16. 

9 Anderson & Co. v. Pienaar & Co. [1922] T.P.D. 435. 



MORTGAGE OR HYPOTHEC 199 

their charges in connexion with legal proceedings to which 
the documents relate. 1 The innkeeper's lien may perhaps 
be referred to the same general class. 2 

The Court reserves to itself the discretion, where equity 
demands it, to order a lien-holder to surrender the pro- 
perty against adequate security. 3 

It remains to speak of the effect of a mortgage in rela- How 
tion to third parties, i.e. how far it creates a real security, 



In Roman Law a mortgage, whether general or special, affords 
whether of movables or immovables, whether express or 
tacit, bound the mortgaged property, no matter into whose 
hands it might come. 4 In the Roman-Dutch Law the 
consequences are not so simple. We must distinguish the 
various kinds of mortgage and shall speak first of con- 
ventional mortgages. 

(a) A special mortgage of an immovable binds the pro- i. Con 
perty so long as it is registered against the mortgagor's 
title. 5 (6) A pledge of a movable depends in principle, gages. 
as in Roman Law, upon retention of possession by the 
pledgee. 6 Loss of possession destroys, or, at best, imperils 
the security. 7 (c) A general mortgage of movables affects 
the property so long as it remains in the possession of the 

1 Van Leeuwen, 4. 40. 2 ; Queen's Town Assurance Co. v. Wood's 
Trustee (1887) 5 S.C. 327. But this right of retention does not 
afford any security or preference in insolvency. Insolvency Act, 

1936, sec. 47. Has an attorney a right of retention over moneys 
in his hands for his costs ? The question was left open in Kayser & 
De Beer v. Est. Liebenberg [1926] A.D. at p. 98. Book-keepers' lien, 
Nieman v. Scrivenor N. O. [1922] O.P.D. 101 ; Wille, p. 157. 

2 Van Leeuwen, loc. cit. See Holmes Oarage Ltd. v. Levin [1924] 
G.W.L.D. 58, where the English Law is contrasted. 

3 Ford v. Reed Bros. [1922] T.P.D. at pp. 272-3. For the 
procedure in the event of the insolvency of the owner of property 
held by a creditor under claim of lien see Insolvency Act, 1936, 
sec. 33 ; Mars, Insolvency (3), p. 362. 

4 Voet, 20. 1. 14-15. 

6 For procedure in Registrar's Office see Registry of Deeds Act, 

1937, sees. 56, 57. 

8 Supra, p. 190; Voet, 20. 1. 13; Heydenrych v. Fourie (1896) 
13 S.C. 371. For a qualification of this principle see p. 201. 

7 Cf. Deutschmannv. A r peta [1917] C.P.D. 79. A German adage 
says : Mit der Hand stirbt das Pfand. 



200 THE LAW OF PROPERTY 

mortgagor. It is ineffectual against an alienee by onerous 
or lucrative title with or without notice, 1 or a subsequent 
pledgee, or a creditor who gets an execution against any 
part of the property. 2 A creditor who has a special 
mortgage of movables unaccompanied by delivery is in 
no better position 3 than one who has a general bond of 
movables, except that he can assert his right against a 
subsequent alienee or encumbrancer who has notice of 
his claim. 4 (d) The effect of the mortgage of a right would 
depend, it may be suggested, upon the nature of the right 
and the character of the cession. If the cession, though 
intended merely to be in securitatem debiti were absolute 
in its terms, the cessionary might give a good title to a 
purchaser or pledgee, who took the property in ignorance 
of the facts. 5 

(2) tacit. The effect of tacit hypothecs may be shortly stated. A 
tacit hypothec of immovables follows the property into 
the hands cujusvis possessoris, as in Roman Law. 6 A tacit 
hypothec of movables attaches to the property only so 
long as the debtor or creditor remains in possession. It 
is extinguished by transfer to a third party whether by 
onerous or by lucrative title ; and if a third party acquires 
a special hypothec accompanied by delivery, or a right 
of retention over goods included in the security he is 

1 Gr. 2. 48. 23 and 24; Voet, 20. 1. 14; 20. 6. 5; 2 Maasdorp (6), 
p. 321. 

2 Gr. 2. 48. 23 and 29; Voet, 20. 6. 6, ad fin.; 20. 1. 14; V.d.K. 
432 ; 2 Maasdorp, p. 319. 

3 In Natal a special hypothecation of movables by notarial bond 
had the same effect as if the movables had been delivered as a 
pledge. This is so no longer. The Notarial Bonds (Natal) Act, 
1932; Parak v. Reynhardt & Co. [1930] N.P.D. at p. 258; In re, 
Umlaas Wool Washing Co. [1934] N.P.D. 18. 

4 Coaton v. Alexander [1879] Buch. 17; Meyer v. Botha tfc 
Hergenroder (1882) 1 S.A.R. 47; Cato v. Alion & Helps [1922] 
N.P.D. 469 ; De Jager v. Sisana [1930] A.D. at p. 84. This does not 
apply to a general bond. 2 Maasdorp, p. 321. 

6 This may be inferred from the language of Lord De Villiers C. J. 
in Nat. Bk. of S. A. v. Cohen's Trustee [1911] A.D. at p. 244. 
' There is no question [here] as to third parties being misled by the 
form of the cession.' See Hartogh v. Nat. Bk. [1907] T.S. 1092; 
[1907] T.H. 207. 

6 Voet, 20. 1. 14. 



MORTGAGE OR HYPOTHEC 201 

preferred to the creditor under the earlier hypothec. 1 This 
is an illustration of the maxim mobilia non habent se- 
quelam meubelen en hebben geen gevolg or as the 
French Law puts it with reference to this specific case 
Les meubles n'ont pas de suite par hypotheque. 2 

From what has been said above it is apparent that a General 
general mortgage and a special mortgage of movables un- po ^ ag< 
accompanied by delivery afford a very imperfect security security. 
since the mortgagee's right is easily destroyed by aliena- 
tion. The mortgagee had one valuable right, namely pre- 
ference over unsecured creditors in the event of insolvency. 
But this has been taken from him by the Insolvency Acts, 3 
except in the case of a general bond of movables, which is 
the only general mortgage now in use. 4 

In one particular the law as stated above requires Qualifica- 
qualification. It was said that a pledge loses its effect if ^e that 
the pledgee ceases to possess. But this rule sometimes loss of 
yields to 'the exigencies of commercial transactions'. 5 



Thus, a merchant who was a dealer in wool and also a loss . f 
wool-washer pledged to a bank certain bales of wool, 
some of them in his own hands, others in the hands of a 
third party, and retained or received them back in his Exigen- 
capacity of wool-washer. Shortly afterwards he became ^ 
insolvent. It was held that there was a valid pledge to the merce. 
bank and that nothing had occurred to deprive the bank 
of its security. 6 Similarly, in a Scottish case, a pledgee with 
a power of sale employed the pledger as his broker to 
sell the goods on his behalf. It was held that he retained 
the benefit of the pledge against an execution levied upon 
the goods while in the possession of the pledger. 7 

1 Voet, loc. cit. Voet is speaking of general hypothecs, but the 
same rule would apply also to a special tacit hypothec. V.d.K. 
Dictat. ad Gr. 2. 49. 29 (Lee, Commentary, p. 214). 

2 C. C. 2119 ; Planiol-Ripert, ii. 2704. 

3 Insolvency Act, 1916, sec. 87 (i); 1936, sec. 86. 

4 Deeds Registries Act, 1937, sec. 53 (i); and see definitions of 
'mortgage bond', and 'notarial bond'. 

6 Heydenrydi v. Fourie (1896) 13 S.C. 371. 

6 Stratford's Trustees v. London & S. A. Bank (1874) 3 E.D.C. 
439. " North Western Bank v. Poynter [1895] A.C. 56. 



202 THE LAW OF PROPERTY 

Wrongful The principle that loss of possession entails loss of 
sion. 8 ' security must be further qualified in the sense that if a 
pledgee is wrongfully dispossessed, the law will help him to 
recover possession even from an innocent third party 1 and 
an alienee or subsequent pledgee with notice takes subject 
to the pledge. 2 

Priorities. It may happen that the same property is affected with 
more than one mortgage. In that event a question arises 
as to preference or priority between the various encum- 
brances upon the property. In principle all mortgages, 
however constituted, rank in order of time Praevalet 
jure qui praevenit tempore Qui prior est tempore potior 
est jure. 3 In the case of conventional mortgages this 
means from the date of execution, and in modern practice 
from the date of registration when registration is required 
by law. 4 Tacit hypothecs took effect from the moment 
when the circumstances existed which gave birth to them. 
Thus the minor's hypothec over his guardian's estate took 
effect from the moment at which the relationship of 
guardian and ward came into existence. 5 

Preferred But some securities from their nature are preferred to 
lecunties. Q^^g Thus a mortgage of movable property perfected 
by delivery (pledge) gives the creditor an inexpugnable 
right to retain the property against all rival claimants 
until his own claim is satisfied. 6 The same applies to liens 
or rights of retention, which, as explained above, are not 
mortgages, but in this respect confer the same advantage. 
The landlord's hypothec 7 and the pignus praetorium 8 

1 Theron v. Gerber [1918] E.D.L. 288. 

2 Coaton v. Alexander [1879] Buch. 17; Meyer v. Botha <Ss 
Hergenroder (1882) 1 S.A.R. 47. 

3 Cod. 8. 17 (18). 2; Gr. 2. 48. 34-6; Voet, 20. 4. 16. 

4 Voet, 20. 4. 29; Insolvency Act, 1916, sec. 87 (2) (abrogating 
the effect of Standard Bk. v. Heydenrych [1907] A.C. 336, 3 Buch. 
A.C. 145) ; Insolvency Act, 1936, sec. 87. 

8 Voet, 20. 2. 17 ; Schutte v. Meyer's Assignee [1927] C.P.D. 371. 

6 Voet, 20. 1. 12 ; 20. 4. 9 ; V.d.K. 437. 

7 Voet, 20. 4. 19 ; V.d.K. ubi sup. ; Pothier : Contrat de Lonage, 
252. 

8 In re Woeke (1832) 1 Menz. 554. But by the Insolvency Act, 
1936, sec. 98 (repeating the Act of 1916, sec. 84) the preference of 



MORTGAGE OR HYPOTHEC 203 

belong to the same class. Within this group no question 
of priority arises, for the simple question is who is in 
actual possession or control of the property. 1 Thus, if a 
creditor with a right of retention parts with the possession 
to the debtor, who subsequently pledges the property 
with a third party, the pledgee's right is paramount both 
against the prior creditor and also, so long as he retains 
possession, against a judgment creditor, who seeks to 
attach the property under an execution. 

By the Political Ordinance of 1580, Art. 35, general P.O. 
conventional mortgages of immovables were postponed 
to special conventional mortgages, though of later date. 2 
This did not apply to tacits, but vendors used to retain 
a charge upon the land for unpaid purchase money by a 
special mortgage executed contemporaneously with the 
transfer called a Kustingbrief. 3 This was preferred to any Kusting- 
general tacit, which might be lurking in the background 
ready to seize upon the property in the hands of the 
purchaser. It resembled the unpaid vendor's (so-called) 
hen in English Law, which, however, arises by operation of 
law without express agreement. 4 This institution changed 
its character hi the course of the nineteenth century, 5 and 
the disuse of general tacit hypothecs has deprived it of 
any importance. 

A mortgagee seems in principle to be entitled to posses- Bights of 
sion, not like the English mortgagee since the Law 
Property Act 1925, qua tenant, 6 but because the right to g fi g or - 
possess is a consequence of the right of hypothec. By the 

the execution creditor is limited to the taxed costs of execution. 
See Union and Rhodesia Wholesale Ltd, (in Liquidation) v. Brown 
& Co. [1922] A.D. 549. 

1 It seems, however, that such a question of priority may arise 
as between the landlord's hypothec and the statutory hypothec of 
the seller under a hire-purchase agreement. Supra, p. 196. 

2 1 O.P.B. 338; Gr. 2. 48. 34; Voet, 20. 1. 14; V.d.K. 436. 

8 Gr. 2. 48. 40; 3. 14. 25; Voet, 20. 4. 18; V.d.K. 437; In re 
Buisinne (1828) 1 Menz. 326; United Bldg. Soc. v. Smookler's 
Trustees [1906] T.S. 623 ; Est. Ghislin v. Fagan [1925] C.P.D. 206. 

4 Halsbury, vol. xx, sec. 715. 

8 The Kustingbrief by Mr. Geo. Denoon, 61 S.A.L.J. (1944), 
p. 277. 6 Cheshire (5), p. 607. 



204 THE LAW OF PROPERTY 

actio hypothecaria the mortgagee asserted his right to 
possess against the mortgagor and anyone else who could 
not show a better title. 1 But it is questionable whether 
this right is admitted in the modern law. 2 Not being 
owner the mortgagee cannot grant leases unless he is in 
possession on the terms of an antichresis, 3 which entitles 
him to take the profits of the land in lieu of interest. 

In principle there is no reason why a mortgagor should 
not deal with the mortgaged property as he pleases, sub- 
ject to the rights of the mortgagee. But in fact it is other- 
wise. In South Africa he cannot do so. For since transfer 
of land on which a mortgage is registered cannot take place 
without the consent of the mortgagee, without his consent 
the land cannot be alienated. 4 A mortgagor is not pro- 
hibited from granting a lease, subject to the mortgage. 5 
The imposition of a servitude, being plainly prejudicial 
to the mortgagee, is not permitted. 6 

Special Any covenants which are lawful and not contrary to 
contained* P^lic policy may be annexed to the contract, 7 e.g. (1) that 
in mort- the destruction of the pledge without fault on his part 
shall free the debtor ; (2) that the creditor shall take the 
profits in lieu of interest (antichresis) ; 8 (3) or in satisfac- 
tion of his claim ; (4) that the pledge shall not be redeemed 
for a certain time (invalid if annexed to antichresis ?) 9 
(5) that if the debt is not paid within a certain time the 
creditor may propria auctoritate enter into possession of 
the mortgaged land ; (6) that if the debt is not paid the 

1 Dig. 20. 1. 16, 3 ; Girard, p. 825. 

2 Roodepoort GM.Co.v. Du Toil N. O. [1928] A.D. at p. 71. As 
to the rights and duties of a mortgagee in possession see Judes v. 
8. A. Breweries Ltd. [1922] W.L.D. 1. 

8 Voet, 19. 2. 4. * Deeds Registries Act, 1937, sees. 56, 57. 

8 Watson v. McHattie (1885) 2 S.A.R. 28; Dreyer's Trustee v. 

Lutley (1884) 3 S.C. 59; Reed's Trustee v. Reed (1885) 5 E.D.C. 23. 

6 Stewart's Trustee v. Uniondale Municipality (1889) 7 S.C. 110. 

7 Voet, 20. 1. 21. 

8 Voet, 20. 1. 23; (Ceylon) Wijeysinghe v. Velohamy (1928) 
29 N.L.R. 349. 

9 Sande, Decis. Fris. 3. 12. 11; McCullough & Whitehead v. 
Whiteaway <fc Co. [1914] A.D. at p. 626 ; (Ceylon) Gabrial v. Adikaran 
(194 1)42 N.L.R. 146. 



MORTGAGE OR HYPOTHEC 205 

creditor (or a surety who pays) may buy the property at 
a fair price ; (7) that the creditor may sell the pledge. 1 

An agreement for forfeiture in the event of non-pay- 
ment (pactum commissorium lex commissoria) is not 
permitted. 2 

In the Roman Law a mortgagee ultimately acquired a Enforce- 
power of sale, which could not be excluded by express mortgage, 
agreement. This right, however, was enjoyed only by a 
first mortgagee. 3 He could also, in certain cases, obtain an 
order of foreclosure (impetratio dominii). 4 In the Roman- 
Dutch Law neither of these remedies is generally available. 
Foreclosure is unknown, and sale cannot be effected 
except with the consent of the debtor. The normal mode 
of realizing a mortgage is by obtaining a judgment of the 
Court and taking out a writ of execution. 5 In South Africa, 
if the mortgaged property is immovable, an order of Court 
is required declaring the property executable. 

The mortgaged property may be sold without an order 
of Court with the consent of the debtor ; but, according to 
Voet, an agreement for extra-judicial sale contained in 
the mortgage-deed will not be enforced if the debtor after- 
wards objects, or if a private sale would be prejudicial to 
other hypothecary creditors. 6 Judicial decisions in South 
Africa have recognized the validity of an agreement for 
extra-judicial sale (parate executie) of movables : Parate 

executie. 

' The conclusion at which I have arrived is that an agreement 
for the sale, by means of parate execution, of movables delivered 
to a creditor by his debtor is valid in law. It is, however, open 
to the debtor to seek the protection of the Court if, upon any 

1 Voet, 20. 1. 21. 

2 Cod. 8. 34 (35) 3 pr. ; Voet, 20. 1. 25 ; Mapenduka v. Ashington 
[1919] A.D. 343; Sun Life Insurance Co. of Canada v. Kuranda 
[1924] A.D. 20; (Ceylon) Saminathan Chetty v. Van der Poorten 
(1932) 34 N.L.R. 287; [1933] A.C. 178. For lex commissoria in 
contract see Cloete v. Union Corp. Ltd. [1929] T.P.D. 508. 

3 Cod. 8. 17 (18). 8; Girard, p. 830. 

4 Girard, p. 831. 

6 2 Maasdorp, p. 352. 

6 Voet, 20. 5. 6 ; Compendium, 20. 5. 8. V.d.K. (Th. 439) says 
that a pledgee may sell a pledge which has been delivered to him, 
if so agreed ab initio. 



206 THE LAW OF PROPERTY 

just ground, he can show that, in carrying out the agreement 
and effecting a sale, the creditor has acted in a manner which 
has prejudiced him in his rights.' 1 

It seems that parate executie is not allowed by the law of 
Ceylon. 2 

If the debtor is insolvent the mortgaged property is 
sold not by the mortgagee, but by the trustee of the in- 
solvent estate. 3 

In the Roman-Dutch Law, differing herein from the 
Roman Law, 4 a later mortgagee cannot 5 redeem or buy 
out an earlier mortgagee against his will so as to step into 
his place. 6 But he can do so indirectly, by suing the 
mortgagor and obtaining a sale in execution, in which 
event he will have the same right as anyone else 7 of making 
a bid for the purchase of the mortgaged property, 8 and 
is entitled to have his bond set off against the purchase 
price. 9 The sale in execution gives him a clean title to the 
property even though the price does not cover the amount 
of the bond. 10 But it is usual in the first instance to offer 
the property for sale at a reserve price. 
Extin- A mortgage may be extinguished in the following ways i 11 

euishment . i 
of mart- VIZ. by: 

gages. i Extinction of the principal debt or liability (book iii, 
part i, chap, iv). 12 But a mortgagee in possession may, 

I Kotz6 J. in Osry v. Hirsch, Loubser & Co. [1922] C.P.D. 
at p. 547. In Paruk v. Olendale Est. Co. [1924] N.P.D. 1 Tatham J. 
found no distinction between movables and immovables. But see 
L. E. Krause, The History of Parate Executie, 41 S.A.L.J. (1924), 
pp. 20, 185. 

8 Hong Kong and Shanghai Bk. v. Krishnapillai (1932) 33 N.L.R. 
249. * Maasdorp, ubi sup. 

4 Cod. 8. 17 (18). 1 et passim. 

6 Van der Keessel (Th. 441) merely says 'an possit, non sine 
caussa dubitari potest '. 

8 But he (or anyone else) may, by agreement, take an assign- 
ment of the mortgage. Gr. 2. 48. 43 ; Voet, 20. 4. 35. 

7 Secus, jure civili. Voet, 20. 5. 3. 8 2 Maasdorp, p. 326. 

9 Smiles' Trustee v. Smiles [1913] C.P.D. 739. 

10 Voet, 20. 5. 11 ; S. A. Association v. Van Staden (1892) 9.S.C. 
95; United Building Soc. v. Law [1910] T.P.D. 369. Secus in 
Ceylon, Kristnappa Chetty v. Horatala (1923) 25 N.L.R. 39. 

II Wille, Mortgage and Pledge in South Africa, chap, viii ; 2 Maas- 
dorp, chap. xxxv. 12 Voet, 20. 6. 2. 



MORTGAGE OR HYPOTHEC 207 

notwithstanding the discharge of the mortgage, re- 
tain the property until an unsecured debt due to 
him from the mortgagor has been satisfied ; J 

2. Renunciation of the mortgage (a) express ; 2 (6) implied, 

as by restoring a pledge or allowing the mortgagor 
to alienate the mortgaged property; 3 but know- 
ledge of or consent to sale of the property does 
not necessarily imply a remission of the mortgage. 
It is a question of intention ; 4 

3. Confusion or merger, i.e. when the titles of mortgagor 

and mortgagee meet in the same person ; 5 

4. Alienation of the mortgaged property by the mortgagor 

in the cases in which alienation passes the property 
free of the mortgage (supra, pp. 199-200) ; 

5. Complete destruction of the mortgaged property; 6 

6. Expiry of time or operation of condition when the 

mortgage was expressed to be temporary or con- 
ditional ; 7 

7. Extinction of the mortgagor's title, e.g. by death, if 

his interest was for his life ; or, in the case of a 
sub-mortgage (i.e. a mortgage of the mortgagee's 
interest), by the determination of the principal 
mortgage ; 8 

8. Prescription. Grotius adopts the Roman law periods 

of forty years, if the property is in the hands of 
the mortgagor or his heirs; of thirty years, if it 
has come into the hands of a third party by title 
adverse to the mortgagor, 9 or by no title at all. 
Others writers express a preference for the general 

1 Cod. 8. 26; V.d.K. 435; Lee, Commentary, p. 216; Smith v. 
Family's Trustee [1904] T.S. at p. 962; but against the debtor 
only, not against his creditors, ibid. 

2 Voet, 20. 6. 5, including novation of the mortgage by sub- 
stituting another right in its place. Wille, p. 290. 

3 Voet, 20. 6. 6-7. 

4 V.d.K. 442; Swanepoel v. Van Heerden [1928] A.D. 15. 

6 Voet, 20. 6. 1. o Voet, 20. 6. 4. 

7 Voet, 20. 6. 10. 

8 Voet, 20. 6. 2 (in fine). 

9 Gr. 2. 48. 44 ; V.d.K. 443 ; V.d.L. 1. 12. 6. 



208 



THE LAW OF PROPERTY 



Keeping 
first 

mortgage 
alive. 



common law term of a third of a century. 1 In South 
Africa the period is fixed by statute at thirty years ; 2 
9. Decree of the Court, when, e.g. the mortgage is set 
aside on the ground of mistake or fraud, or under 
the provisions of the Insolvency Act, 1936, sees. 26, 
29, and 30, as a disposition without value, or a 
voidable or undue preference ; 

10. Judicial sale, or sale in insolvency, of the mortgaged 
property. 

Where there is a first and a second mortgage on the same 
property and any event occurs which extinguishes the 
first mortgage without extinguishing the second, normally 
the second mortgage is promoted to higher rank. But if 
the first mortgagee has purchased the property from the 
mortgagor by private contract, he may, if he pleases, keep 
the first mortgage alive as against a second mortgagee, who 
is proceeding to a judicial sale of the property. 3 

1 Voet, 20. 4. 9; Matthaeus, Paroem. no. 9, sec. 6 (7). 

a Prescription Act, 1943, sec. 3. 

8 Cod. 8. 19 (20). 1; Voet, 20. 5. 10. The Germans call this 
Eigentiimerhypothek. See Ennecerus-Kipp-Wolff, Lehrbuch des 
Burgerlichen Rechts, iii. 530. 



BOOK III 
THE LAW OF OBLIGATIONS 



4901 



BOOK III 



The 

meaning 
of 9bli- 
gation. 



Obliga- 
tions are 
civil and 
natural. 



INTRODUCTION 

FROM the law of property, or real rights, we pass to the 
law of obligations or personal rights. A real right, as we 
have seen, constitutes a claim which the law will sustain 
against any and every invader. It is a right against all 
the world. A personal right, on the contrary, is a right 
against some specific person and against him alone. When 
one person is legally entitled to demand from another 
some specific act or forbearance, a relation exists between 
them which is termed an obligation. When we say that 
one person is legally entitled we imply that the other per- 
son is legally bound or obliged. Accordingly, Justinian 
defines obligatio as 'juris vinculum quo necessitate 
adstringimur alicujus solvendae rei secundum nostrae 
civitatis jura' 1 'An obligation is a legal fetter with 
which we are bound by the necessity of performing some 
matter in terms of the laws of our country.' Any giving, 
doing, or forbearing may be the subject of an obligation, 2 
provided only that it be something possible and not con- 
trary to law. 3 From legal or 'civil obligations', as they are 
specifically called, must be distinguished 'natural obliga- 
tions'. These are personal claims founded not in law, but 
in morality, 4 e.g. the claim of a father to receive services 
of duty and affection from his children. More precisely, 
in Roman law, the phrase ' natural obligation ' was limited 
to claims which, while not enforceable by action, were, 
nevertheless, available as a defence and had other conse- 
quences in the field of positive law. 5 This distinction is not 
without importance at the present day. Thus it is generally 
held that the unassisted contract of a minor creates a 
natural obligation and is a good foundation for a third 

1 Inst. 3. 13 pr. The term 'obligation' is not understood to 
include personal relations arising from status. 

8 Voet, 44. 7. 1. a Voet, 2. 14. 16. 

4 Voet, 44. 7. 3. B Voet, ubi sup. 



INTRODUCTION 211 

party's contract of suretyship. Another case is a statute- 
barred debt. The debtor is not bound to pay, but if he 
pays he cannot reclaim the money on the ground that it 
was not owed (condictio indebiti). 1 

A legal bond or obligation between two persons may How 
arise in different ways. These have been variously classi- ^g 
fied by the jurists. We adopt as most convenient the arise, 
arrangement chosen by Gaius in his book called Aurea or 
Golden Words? According to this, obligations arise: (1) 
from agreement; (2) from wrongdoing; (3) from various 
other causes. We shall discuss these severally under the 
three heads of Contractual, Delictual, and Miscellaneous or 
Quasi-contractual. 

1 Voet, 12. 6. 2; Wessels, i. 1271. Wessels examines some other 
(doubtful) cases of natural obligation. 

2 Obligationes aut ex contractu nascuntur aut ex maleficio aut 
proprio quodam jure ex variis causarum figuris. Dig. 44. 7. 1 pr. 



PART I 



The 

definition 
of con- 
tract. 



Contracts 

are: 

valid, 

void, 

voidable. 



There is 
no con- 
tract un- 
less the 
parties 
intend to 
contract. 



OBLIGATIONS ARISING FROM CONTRACT 

THE subject-matter of the law of contract is in all legal 
systems the same, viz. agreements and promises. What 
agreements, what promises, will the law enforce ? This is 
the problem to be solved, and it is solved by different 
systems of law in different ways. But the definition of 
contract in the abstract is always the same, viz. 'an agree- 
ment enforceable at law ' or, what comes to the same thing, 
' an agreement which creates a legal obligation between the 
parties to it'. An agreement which produces this effect is 
a contract ; an agreement which fails to produce this effect, 
however much it may be intended to do so, is a void con- 
tract, i.e. no contract at all. 1 Sometimes the agreement 
has in law the effect that it lies in the option of one of the 
parties whether he will be bound by it or not. In that case 
it is said to be voidable by such party. Agreements directed 
to illegal ends are usually void ; agreements procured by 
fraud are usually voidable. Instances will be given in the 
following pages. 

From what has been said it is apparent that the law of 
contract is concerned not with all agreements, but only 
with such agreements as are intended to create a legal 
obligation between the parties. If the parties do not wish 
to be bound the law will not bind them. 2 Therefore no 
legal consequence attaches to words spoken and under- 

1 Or we may, if we please, define contract as 'an agreement 
which creates or is intended to create a legal obligation between 
the parties to it' (Jenks, Digest of English Civil Law, Art. 196). This 
will permit us without abuse of language and in harmony with 
common usage to speak of a 'void contract', i.e. a contract which 
is intended to create, but does not create, a legal obligation between 
the parties. 

2 Pothier, Traite des Obligations, sec. 3. The generality of this 
statement must be qualified to the extent of admitting that a 
person may in certain cases have acted in such a way as to induce 
another to believe that he intended to contract with him, and may 
be estopped from denying that his apparent intention corresponded 
with his real intention. Infra, p. 220, n. 1. 



OBLIGATIONS ARISING FROM CONTRACT 213 

stood as a jest, 1 nor to agreements for the performance of 
something patently impossible, 2 for they cannot be sup- 
posed to have been seriously intended. 3 

In discussing the law of contract we shall consider : (a) Divisions 
the formation of contract, i.e. the conditions of its exis- con- 
tence ; (6) its operation or effect ; (c) its interpretation ; tract. 
(d) its determination. These topics form the subject of the 
following chapters. 

1 Vinnius ad Inst. 3. 14. 2, sec. 11 ; Van Leeuwen, 4. 1. 3. 

2 Gr. 3. 1. 19 and 42; Voet, 2. 14. 16; 45. 1. 5; V.d.L. 1. 14. 6. 

3 Voet, 28. 7. 16 ; Vinnius, ubi sup. 



FORMATION OF CONTRACT 

The To constitute a valid contract: (A) the parties must be 
elements agreed; (B) the parties must intend, or be deemed to 
contract, intend, to create a legal obligation ; (C) the object of the 
agreement must be physically and legally possible ; (D) the 
requisite forms or modes of agreement (if any) must be 
observed ; (E) the agreement must not be impeachable on 
the ground of fraud, fear, misrepresentation, undue in- 
fluence, or lesion ; (F) the agreement must not be directed 
to an illegal object ; (G) the parties must be competent to 
contract. 

SECTION A 
The parties must be agreed 

Agree- The nature of agreement is explained in many well- 

ment. known works. We are here concerned with the modes in 
agree- which agreements are concluded and with some circum- 
ments are stances in which agreement is absent. Agreement usually 
results from the acceptance of an offer, or from the reply 
to a question. Thus, if I say 'I offer to buy your horse for 
50', and you answer 'Agreed'; the contract is complete 
from the moment that your answer makes known to me 
your acceptance of the offer made to you. 1 So, if I say 
'Will you sell me your horse for 50 ? ', and you answer 'I 
will ' ; there is a contract completed by your answer, ex- 
pressing a willingness to sell, given in reply to my question 
expressing a willingness to buy. In Roman Law the 
contract known as the stipulation was normally expressed 
in the form of question and answer. In Roman-Dutch Law 

1 The general rule is as stated in the text. But in the case of 
acceptances through the post actual communication to the offerer 
is not indispensable (infra, p. 216); and the offer may in some 
cases, from its nature or by express terms, dispense with com- 
munication of acceptance. Rex v. Net [1921] A.D. at pp. 344, 
351 ft'. ; McKenzie v. Farmers' Co-op. Meat Industries Ltd. [1922] 
A.D. 16; Cullinan v. Union Govt. [1922] C.P.D. 33. 



FORMATION OF CONTRACT 215 

neither offer and acceptance nor question and answer are 
indispensable, but any expression of a common intention, 
whether conveyed by spoken or written words, or by x;on- 
duct, or partly by words and partly by conduct, will con- 
stitute an agreement which (other necessary conditions 
being satisfied) the law wiU enforce. 1 But without union of 
minds there can be no agreement. 2 Therefore, a mere 
declaration of intention not intended to be assented to, 3 
or not yet assented to, or a mere offer unaccepted, is desti- 
tute of legal consequences. 4 To such unilateral declara- 
tions of intention the Roman lawyers gave the name 
of 'pollicitation'. 5 Since an unaccepted offer does not 
bind the offerer until acceptance, before acceptance it 
may at any time be revoked. 6 Once accepted, it becomes 
irrevocable. An offer, if not accepted within the time, or 

1 Van Leeuwen, 4. 3. 1. 

2 Gr. 3. 3. 45; Joubert v. Enslin [1910] A.D. at p. 23; Jones v. 
Reynolds [1913] A.D. 366; Bloom v. American Swiss Watch Co. 
[1915] A.D. 100 (information given in ignorance of offered reward) ; 
Dobbs v. Verran [1923] E.D.L. 177 (one party thought that a ride 
in a motor-car was to be paid for, the other thought that it was 
gratuitous). 3 Gr. 3. 1. 11. 

4 Gr. 3. 1. 48 ; Van Leeuwen, 4. 1.3. Grotius says that a pollici- 
tation made in God's honour or ex praecedenti causa for public 
purposes is binding. This is taken from the Roman Law (Dig. 50. 
12. 1 and 2). But it scarcely holds good to-day. Suchapollicitation 
however, if accepted, might be binding as an actionable pact or 
contract. See Groen. de leg. abr., ad loc., in fine. 

6 Dig. 50. 12. 3 pr., Pactum est duorum consensus atque con- 
ventio, pollicitatio vero offerentis solius promissum. Grotius 
renders pollicitatio by 'belofte'. An offer intended to be -accepted 
is 'toezegging'. As to the effect of tender see Union Oovt. v. 
Vianini [1938] A.D. 560. 

6 Gr. 3. 3. 45. Since the decision in Conradie v. Eossouw [1919] 
A.D. 279 (infra, p. 226, n. 2) an option to purchase must be taken, at 
all events in certain cases, to constitute a binding contract, from 
which the person giving the option cannot withdraw without the 
consent of the person to whom the option was given. Boyd v. Nel 
[1922] A.D. 414. But an option may be a mere offer. A promise 
to give a 'voorkeur' may confer an option (Fourie v. De Bruyn 
[1914] A.D. 374), or merely a preference, in which case it may or 
may not give a legal right to the promisee. Van Pletsen v. Henning 
[1913] A.D. at p. 102; Robinson v. Randfontein Ests. G. M. Co. 
[1921] A.D. at pp. 188, 237 ; Edwards (Waaikraal) O. M. Co. Ltd. 
v. Mamogale [1927] T.P.D. at p. 295; Sher v. Allan [1929] O.P.D. 
137 ; Rainforth v. Brown [1937] S.R. 269. 



Contracts 
concluded 
through 
the post. 



The 
accep- 
tance of 
railway 
tickets, 
&c. 



Effect of 
agree- 
ment to 



216 THE LAW OF OBLIGATIONS 

in the manner, prescribed, for acceptance, 1 or, where no 
time is prescribed, within a reasonable time, lapses, and 
ipso jure determines in the event of the death of the 
offerer 2 or offeree before acceptance. A purported accep- 
tance subject to conditions, additions, restrictions, or 
alterations takes effect as a rejection of the original offer 
and as a new offer. 3 

In the case of negotiations through the post, or by other 
such medium of correspondence, it is often matter of 
importance to determine whether and when a contract 
has been concluded. Suppose, for instance, an offer made 
through the post and an acceptance posted which never 
reaches the ofiferor, or reaches him late. Can it be said that 
the offer has been accepted ? English Law is settled in the 
sense that the posting of a letter of acceptance concludes 
the contract, so that both parties are from that moment 
bound, 4 and the Appellate Division has pronounced in 
favour of this solution, provided of course, that the pur- 
ported acceptance is not inconsistent with the terms of the 
offer. 5 

The acceptance of railway tickets, cloak-room tickets, 
and the like has raised the same difficulties in modern 
Roman-Dutch Law as in English Law, and with similar 
results. A party is bound if he has had a reasonable 
opportunity of acquainting himself with the contents. 6 
Sometimes it is agreed between the parties that their 
contract shall be reduced to writing. Whether they are 

1 Laws v. Rutherfurd [1924] A.D. 261. 

2 Voet, 5. 1. 73. See Stofberg v. Est. Van Rooyen [1928] O.P.D. 
38 ; Buckland, Textbook, p. 413, n. 8. 

3 Jenks, Digest, Art. 211; Watermeyer v. Murray [1911] A.D. 
61 ; Houston v. Bletchly [1926] E.D.L. 305. 

4 Anson, Law of Contract, p. 25. 

6 Kerguelen Sealing and Whaling Co. v. Commrs. for Inland 
Revenue, [1939] A.D. 487, approving Kbtz6 J.P.'s decision in Cape 
Explosive Works Ltd. v. S. A. Oil and Fat Industries Ltd. [1921] 
C.P.D. 244. See also Woolmer v. Rees [1935] T.P.D. 319 (offer 
and acceptance by telephone) ; Yates v. Dalton [1938] E.D.L. 177 
(by telegram). 

Peard v. Rennie & Sons (1895) 16 N.L.R. 175; Central South 
African Railways v. McLaren [1903] T.S. 727; Dyer v. Melrose 
Steam Laundry [1912] T.P.D. 164; Wessels. i. 107 ff. 



FORMATION OF CONTRACT 217 

bound independently of the writing or not before the reduce 
contract has been written down is in each case a question to writing. 
of intention. 1 

There is no agreement if it is left to one of the parties No con- 
to perform or not as he chooses : ' nulla promissio potest 



consistere quae ex voluntate promittentis statum capit ' ; 2 agree- 
nor if the subject-matter of the negotiations is so vague va g ue 
that its meaning cannot be ascertained. 3 or un ; 

Without union of minds there is no agreement. Mistake Effect of 
may exclude agreement. 4 'Non videntur qui errant con- mistake. 
sentire.' 5 'Nulla voluntas errantis est.' 6 It is important to 
distinguish the different ways in which mistake may affect 
a contract. 

Mistake consists in a misapprehension as to the existence 
or non-existence of a fact or state of facts. All mistake 
is mistake of fact. But a mistaken belief that a rule of 
law exists or does not exist is distinguished from other 
mistakes of fact and is called specifically mistake of law. 7 Mistake 
With regard to this the maxim applies 'juris ignorantiam of law< 
cuique nocere ' ; 8 which means that no one can excuse 
himself from performance of a contract by alleging that 
he entered upon it under some mistaken belief as to the 

1 Gr. 3. 14. 26; Voet, ubi sup.-, OoUblatt v. Fremantle [1920] 
A.D. 123 ; Woods v. Walters [1921] A.D. 303 ; Cole v. Stuart [1940] 
A.D. 399. 

2 Dig. 45. 1. 108, 1 ; 44. 7. 8 ; Gr. 3. 3. 47 (ad fin.) ; Van Leeuwen, 
4. 3. 5 ; Voet, 44. 7. 1. Secus, if he is to perform when he chooses. 
Dig. 45. 1. 46, 2 ; Voet, 45. 1. 20 ; Wessels, i. 1314. 

3 Dig. 45. 1. 94; V.d.L. 1. 14. 6; Humphreys v. Cdssell [1923] 
T.P.D. 280; Beretta v. Beretta [1924] T.P.D. 60; Schneier & Lon- 
don Ltd. v. Bennett [1927] T.P.D. at p. 359. 

4 Gr. 3. 1. 19; 3. 14. 4; V.d.L. 1. 14. 2. 5 Dig. 50. 17. 116, 2. 
6 Dig. 39. 3. 20. 7 Voet, 22. 6. 1. 

8 Dig. 22. 6. 9 pr. : (Paulus) Regula est juris quidem ignorantiam 
cuique nocere, facti vero ignorantiam non nocere. An exception 
may perhaps be admitted when a law is of merely local application, 
in favour of a stranger to the locality. Voet, 22. 6. 2. Some indul- 
gence is allowed to minors and women. Voet, 22. 6. 3. The ques- 
tion has been much debated whether ignorant ia juris excludes the 
condictio indebiti. Voet ( 12. 6. 7) held that it does, dissenting from 
Vinnius (Select. Quaest. i. 47). Grotius (3. 30. 6) is of the same 
opinion as Vinnius, but his commentator Schorer agrees with Voet. 
Van der Keessel (Th. 796) follows Grotius. See Booth v. The State 
(1888) 2 S.A.R. 259, where all the authorities are collected in 



218 



THE LAW OF OBLIGATIONS 



Mistake 
of fact. 



Different 
kinds of 
mistake. 



existence or non-existence of a rule of law. 1 As distinct 
from mistake of law, mistake of fact often affects the 
formation or the operation of a contract, and that in 
various ways. In relation to the formation of contract, 
mistake, if it has any effect at all, prevents a contract from 
coming into existence. To constitute a contract there 
must be parties who agree and something agreed upon. 
If either of these elements is wanting there may indeed 
be the external indicia of a contract, but there is no 
consensus of minds. Therefore, in principle, there is no 
contract : 

1. If one of the parties to a supposed contract is under 

a misapprehension as to the person with whom he 
is contracting (error in persona) ; 2 

2. If there is a misunderstanding as to the nature of 

the transaction (error in negotio) ; 3 or 

3. As to the identity of the subject-matter of the con- 

tract (error in corpore) ; 4 or 

4. As to the quality of the subject-matter (error in 

substantia) ; 5 or 

5. Generally, as to the essential terms of the contract. 6 

No doubt every one of these propositions must be taken 
subject to qualifications which cannot be developed in 
an elementary treatise. A few points may be mentioned. 
First, according to a widely accepted view, it is not every 

Kotz6 C.J.'s learned judgment; Heydenrych v. Standard Bk. of 
S. A. [1924] C.P.D. 335; 33 S.A.LJ. (1916), p. 45. Error of fact 
and error of law distinguished. Sampson v. Union & Rhodesia 
Wholesale Ltd.. [1929] A.D. at p. 479. 

1 Whether mistake as to private rights is a mistake of law ? 
Booth v. The State, ubi sup., at p. 267 ; Umhlebi v. Umhlebi's Est. 
[1905] 19 E.D.C. 237 ; Est. Jonsson v. Est. Jonsson [1926] N.P.D. 
at p. 300. 

2 Pothier, Obligations, sec. 19 ; Beyers v. McKenzie (1880) Foord, 
125. 

3 Pothier, op. cit. ; Dobbs v. Verran [1923] E.D.L. 177. 

4 Maritz v. Pratley (1894) 11 S.C. 345; Anson, p. 160. 
8 Pothier, sec. 18. 

8 McAlpine v. Celliers [1921] E.D.L. 112. This was a case of 
mistake as to the meaning of a representation inducing the con- 
tract, but it illustrates the principle. 



FORMATION OF CONTRACT 219 

mistake as to persons which will be fatal to a contract; 
where the individuality of the party is not a material con- 
sideration the contract holds good notwithstanding the 
mistake. 1 Thus, where an order is sent to one tradesman 
and executed by another, in the absence of special circum- 
stances the goods must be paid for, though the purchaser 
may have been under a misapprehension as to the person 
who supplied them. But another view, which seems more 
in accordance with principle, is that if the goods are 
retained there is a quasi-contractual duty to pay for them. 2 
Next, as regards what may be called the material basis 
or subject-matter of the contract the crucial question to 
determine is what was the bargain between the parties. 
'Videamus quid inter ementem et vendentem actum sit', 
says Julian in the Digest. 3 Clearly, mistake which lies 
outside the orbit of the bargain cannot affect it in any 
way. Thus, in a Canadian case, where A offered ten boxes 
of matches for sale at $2.55 per box, and the offer was 
accepted, he could not escape from the contract on the 
plea that he meant to charge $4.25 per box, and had 
named the lower figure by mistake. 4 Similarly, where it 
is a question of quality, e.g. if the bargain is for the sale of 
'these candlesticks ' it is beside the mark that the purchaser 
thinks he is getting silver candlesticks, when in fact they 
are plated. The case would be different if the seller thought 
that the bargain was for the sale of 'these candlesticks', 
or 'these plated candlesticks', while the buyer, thought 
that the bargain was for the sale of 'these silver candle- 
sticks'. In that event there would be no union of minds 
between the parties, each being under a misapprehension 
as to the intention of the other. This is a case of mutual 
error. It must be distinguished from common error, i.e. 
when both parties labour under the same mistake. 5 

1 Pothier, sec. 19; Anson, p. 151 ; C.C. 1110. 

2 Wessels, i. 935 ff. 

3 Dig. 18. 1. 41 pr. 

4 Morisset v. Brochu (1883) 10 Quebec Law Reports, 104. 

6 Pothier, sec. 18; Prof. Cheshire in 60 L.Q.R. (1944), p. 175. 
Infra, p. 221. 



220 THE LAW OF OBLIGATIONS 

The Even where a material misapprehension exists, it does 

theory I>f no * necessarily follow that a party to an apparent contract 
contract, can escape liability by alleging his mistake. It is to some 
extent true that a contract has an objective existence 
independent of the volition of the parties. 1 In estimating 
the consequences of mistake the question which is asked 
is not so much what a person intends as what he says; 2 and 
not so much what he says as what expectation his words 
excite (or reasonably may excite) in another person's mind. 
Therefore, on the one hand, 'the promisor is bound to 
perform what his language justified the promisee in expect- 
ing ' ; 3 and, on the other hand, a promisee's expectation 
must be reasonable in the circumstances. Neither promisor 
nor promisee can take advantage of his mistake unless it 
was a reasonable mistake Justus et probabilis not im- 
putable to his own carelessness. 4 Thus if at a sale by 
auction a person bids for property A, intending to bid for 
property B, as a rule he must accept the consequences 
of his mistake ; 5 but the result will be different, if there 
was something in the circumstances to make the mistake 
excusable. 6 

We have spoken of cases in which mistake may have 

1 'Cases arise in which, although there is in fact no mutual 
assent, and accordingly no contract, one of the parties may be 
estopped by his statements or conduct from setting this up. In 
such cases there may be said to be a quasi-mutual assent.' Black- 
burn J. in Smith v. Hughes (1871) L.R. 6 Q.B. at p. 607, cited in 
Van Ryn Wine and Spirit Co. v. Chandos Bar [1928] T.P.D. at 
p. 422. 'Where a party has entered into a written agreement, he is 
not entitled to relief, because he understood the contract differently 
from what it is truly construed to mean. ' Hoffmann v. S. A. Con- 
servatorium of Music (1908) 25 S.C. at p. 30 per Maasdorp J. 

2 S. A. Rlwys. v. Nat. Bk. of S. A. [1924] A.D. at p. 716 per 
Wessels J.A. 

3 Pieters & Co. v. Salomon [1911] A.D. at p. 138 per Innes J. ; 
Pheasant v. Warrie [1922] A.D. at p. 487 ; Hodgson Bros. v.S.A. 
Rlwys. [1928] C.P.D. 257 ; Van Ryn Wine and Spirit Co. v. Chan- 
dos Bar, ubi sup.; Irvin & Johnson (S. A.) Ltd. v. Kapla [1940] 
C.P.D. 647. 

4 Voet, 12. 6. 7 ; 22. 6. 6 ; Logan v. Beit (1890) 7 S.C. at p. 216. 

6 Merrington v. Davidson [1905] 22 S.C. 148; De Villiers v. 
Parys Town Council [1910] O.P.D. 55. 

6 Maritz v. Pratley [1894] 11 S.C. 345; and see the English case 
ofScriven v. HindUy [1913] 3 K.B. 564; Anson, p. 157. 



FORMATION OF CONTRACT 221 

the effect of excluding agreement. There are other cases Mistake 
in which the parties are in fact agreed but entertain a ^^ n 
common error. Such is the case where the contract between parties. 
the parties is based upon a false assumption of fact ; e.g. 
where the parties have contracted for the purchase and 
sale of a thing which in fact does not exist, 1 or where there 
is a common error as to a substantial quality. 2 The con- 
tract collapses from its foundation. Another case of com- 
mon error is when the parties are in fact agreed, but 
the writing to which they have reduced their agreement 
fails to express their real intention. In such a case the Court 
will decree rectification of the instrument. 3 

From what has been said it is plain that the fact that a Error in 
party has been induced to contract by misapprehension ^^ r 
(as to a fact or state of things), for which the other party 
is not responsible and which is not of such a nature as to 
prevent the supposed contract from coming into existence, 
does not affect the liability of the mistaken party. It is 
no defence to an action on a contract to say 'If I had 
known the truth I would not have entered into it'. For 
as Lord Atkin said in Bell v. Lever Bros. Ltd. [1932] A.C. at 
p. 224: 'It seems immaterial that he could have got the 
same result in another way, or that if he had known the 
true facts he would not have entered into the bargain.' 
Salmond terms mistake of this kind, error in causa con- 
trahendi, which he contrasts with error in consensu, where 
there is no contract at all. 4 

A contract procured by the fraud of a third party is Mistake 

induced 

1 Gr. 3. 1. 42; Scrutton v. Ehrlich [1908] T.S. 300; and see by fraud. 
Theron Ltd. (In liquidation) v. Gross [1929] C.P.D. 345. 

2 Si aes pro auro veneat, non valet, Dig. 18. 1. 14 ; Moyle, Contract 
of Sale in the Civil Law, p. 55 ; de Zulueta, The Roman Law of Sale, 
p. 25. 

8 Port Elizabeth Harbour Board v. Mackie, Dunn & Co. (1897) 
14 S.C. per de Villiers C.J. at p. 479 ; Bushby v. Guardian Assurance 
Co. Ltd. [1916] A.D. 488 ; Weinerlein v. Goch Buildings Ltd. [1925] 
A.D. 282 ; Meyer v. Merchants Trust Ltd. [1942] A.D. 244 ; and on 
the question whether the error need be Justus see 44 S.A.L.J. 
(1927), p. 31, and Tshoba Colliery (Natal) Ltd. v. Tshoba Coal 
Syndicate Ltd. [1926] N.P.D. 526. 

4 Salmond, Contracts, ed. Winfield (1927), p. 190. 



222 



THE LAW OF OBLIGATIONS 



Property 
alienated 
under 
mistake. 



Decree of 
restitu- 
tion. 



void if the circumstances are such as to exclude consent. 
The same principle seems to apply to a contract procured 
by the fraud of one of the contracting parties ; e.g. when 
a man is deceived as to the nature of the transaction. 
Certainly, in such a case he would have no consenting 
mind. 

'If the defendants were induced by fraud to enter into a 
contract they never intended to enter into, in the absence of 
a contracting mind on their part, the contract would be 
wholly void, and not only voidable ; but the defence of fraud 
could not be set up by them against the bank, an innocent 
party, if they were guilty of negligence in signing the con- 
tracts.' 1 

The effect of mistake, where it operates, being to render 
the contract void, not voidable, property alienated under 
mistake can be recovered even from bona fide possessors. 
It is, however, not unusual to take active steps to pro- 
tect oneself against liability by applying to the Court for 
rescission of the contract, and this is particularly matter 
of prudence when the contract is expressed in writing. 

A decree of restitution on the ground of mistake implies 
that both parties must be replaced in their former position. 
For example, a purchaser of shares who seeks restitution 
on the ground that he reasonably and justifiably mistook 
the meaning of terms in the contract of sale must account 
for profit made by sale of such shares as were delivered to 
him. It is not enough to offer to return an equivalent 
number of shares. 2 



Intention 
to con- 
tract. 



SECTION B 

The parties must intend, or be deemed to intend, to create 
a legal obligation 

Since the foundation of contract is the intention of 
the parties to bind themselves, where this is absent their 

1 Standard Bank v. Du Plooy (1899) 16 S.C. at p. 172 per Maas- 
dorp J. ; Mackeurtan, Sale of Goods in South Africa, p. 130. It 
may be presumed that the South African Courts would not accept 
the reasoning in Carlisle Banking Co. v. Bragg [1911] 1 K.B. 489; 
Anson, p. 162. 8 Logan v. Beit (1890) 7 S.C. 197. 



FORMATION OF CONTRACT 223 

agreement does not create a legal obligation. 1 Whether 
such an intention exists or not is usually to be inferred 
from the circumstances, and particularly from what the 
parties said and did. The English Law regards the giving 
of consideration as evidence (and, in general, necessary 
evidence) of such intention. In the Roman-Dutch Law, 
which does not require consideration as a constituent 
element of a contract, 2 'it becomes all the more important 
that the evidence should establish clearly that the in- 
tention of the parties was to create a legal obligation'. 3 
If the transaction is of a usual business character this 
intention will be inferred to be present in the absence of 
clear evidence to the contrary. 4 

SECTION C 

The object of the agreement must be physically and legally 

possible 

The Courts will consider that an agreement is without Physical 
legal effect if according to the prevailing standard of know- a Q^ si legal 
ledge it is supposed to be impossible of performance. bility. 

The same may be said of an agreement designed to 
create a legal relation which the law does not recognize 
as possible ; e.g. if a person agrees to create a servitude 
in favour of himself over his own property contrary to the 
principle 'nulli res sua servit'. 

SECTION D 

The requisite forms or modes of agreement (if any) must 

be observed 

The historical development of the law of contract Require- 
follows substantially the same course in the various legal 

1 Van Leeuwen, 4. 1. 3 ; Vinnius ad Inst. 3. 14. 2, sec. 11. 

2 Infra, p. 226. 

3 Robinson v. Randfontein Q. M. Co. [1921] A.D. at p. 237 per 
Solomon J.A. 

4 The English case of Rose & Frank Co. v. Crompton [1923] 
2 K.B. (C.A.) 261 supplies a remarkable illustration of the effect 
of such contrary intention (reversed on appeal to the House of 
Lords, but not on this point [1925] A.C. at p. 454). Cf. Foster v. 
W heeler (1887) 36 Ch.D. 695 ; Balfour v. Balfour [1919] 2 K.B. 571. 



224 THE LAW OF OBLIGATIONS 

systems known to us. In a primitive society few promises 
are enforced by law, and only upon condition of their 
being accompanied by some solemnities of form or expres- 
sion, which serve to mark their serious character and to 
distinguish them from the mass of agreements and pro- 
mises of which the law in its initial stages fails to take 
account. 1 Later, the categories of actionable agreements 
are multiplied, or the conditions of enforceability made 
more simple. Lastly, a stage is reached in which all agree- 
ments intended to create legal relations, contracted by 
competent persons for lawful objects, are upheld by the 
courts. It may be, however, that the law still requires that 
all agreements indifferently should satisfy some condition 
which is taken to be the test of the serious intention of 
the parties. It may be, further, that for special reasons 
some kinds of agreement are required to be expressed in 
writing or in solemn written form. 

Contracts The Roman Law, as is well known, was far from en- 
m Roman f orcm g a n agreements. In Justinian's system only the 
following classes of agreement were actionable, viz.: (1) 
real contracts ; (2) stipulations ; (3) the four consensual 
contracts ; (4) the so-called innominate contracts ; (5) 
certain pacts, which at various times and in various ways 
had been clothed with actionability and thus became con- 
tracts in everything but name. 

Pacta All other agreements remained bare pacts (pacta mtda). 

They could not be enforced by action, but might be 
pleaded by way of exception. 2 'Nuda pactio obligationem 
non parit sed parit exceptionem.' 3 The stipulation in its 
latest stages was almost always reduced to writing, so that 
it is substantially true to say that in Justinian's law any 
agreement whatever would be enforced provided that it 
was expressed in a written instrument and was intended 
to create a legal obligation, but other agreements only if 
they fell within certain known classes, or if one party had 

1 Maine, Ancient Law, p. 327. 

2 Gr. 3. 1. 51. 

3 (Ulpian) Dig. 2. 14. 7, 4. 



FORMATION OF CONTRACT 225 

performed his part and was demanding performance from 
the other. 

The ancient Dutch Law has been partly made known to Contracts 
us by the researches of the late Professor Fockema Andreae 



and other scholars. It may be, as Grotius and others Dutch 
assert, that the Germans of old attached the highest im- 
portance to the duty of keeping faith, 1 but it was not the 
case that every promise was legally enforceable. Here, as 
elsewhere, the history of the law of contract is the history 
of a slow transition from form to formlessness. 2 

In the Roman-Dutch Law the system derived from inRoman- 
the two above-named sources the process of develop- 
ment, aided, without doubt, by the influence of the Canon 
Law, 3 has reached its furthest limit. By many of the old 
writers the phraseology of the Roman Law is retained, 
but it does not correspond with facts. There is no need All 
to refer an agreement to any specific head of contract or 
actionable pact, for by the Roman-Dutch Law all contracts sensual. 
are consensual, 4 and any pact whatever is enforceable, 5 
provided only that it is freely entered upon by competent 
persons for an object physically possible and legally per- 
missible. 'If I consult the law of our own fatherland,' Decker 
says Van Leeuwen's commentator, C. W. Decker, 6 in a essentials 
well-known passage, 'I merely consider: (1) whether the of con- 
persons were capable of binding themselves ; (2) whether 
the agreement was made deliberately and voluntarily ; (3) 
whether it has a physical and moral possibility or reason- 
able cause. If these essentials concur, I say with safety 
that a valid action for performance arises.' 7 

1 Gr. 3. 1. 52: Heineccius, Elem. Jur. Germ., lib. ii, sees. 330-1. 
8 Fock. And., vol. ii, pp. 1 ff . ; de Blecourt, p. 393 ; Gierke, 
Deutsches Privatrecht, vol. iii, p. 325. 

3 Vinnius, De pactis, cap. vii, sec. 6 ; Voet, 2. 14. 9. 

4 Heineccius, Elem. Jur. Germ., lib. ii, sec. 345 ; Decker ad Van 
Leeuwen, 4. 2. 1, n. 1. 

6 'Moribus hodiemis ex nudo pacto datur actio.' Groenewegen, 
de leg. abr. ad Inst. 3. 20 (19). 19 ; Gr. 3. 1. 52 ; Voet, ubi sup. 

6 Van Leeuwen, 4. 2. 1, n. 1 (Kotze's translation, vol. ii, 
p. 11). 

7 Decker, it will be observed, identifies reasonable cause with 
physical and moral possibility. But perhaps (strictly understood) 

4901 Q 



226 THE LAW OF OBLIGATIONS 

Roman- From the above description of the essential elements of 

L " w contract it is apparent that the Roman-Dutch Law pays 

requires no attention to the formal requirements of the Roman 

form Law. It is equally a stranger to the English requirement 

nor con- o f Form or Consideration. It may be asserted with con- 
sidera- 
tion, fidence that the doctrine of consideration did not form 

part of the Roman-Dutch Law of Holland. The late Lord 
de VUliers, indeed, on more than one occasion, judicially 
advanced the view that in the Roman-Dutch Law every 
contract must be based upon some reasonable cause (rede- 
The lijk oorzaak), and that reasonable cause, as understood 
of causa anc ^ applied by the Dutch lawyers, was in effect indis- 
or redelijk tinguishable from the ' quid pro quo ' which passes for 
consideration in English Law. 1 But this identification has 
now been rejected by the highest judicial authority. 2 It 
may, indeed, be doubted whether the doctrine of causa 
really occupied the important place in the Roman-Dutch 
Law which has been assigned to it in modern discussions. 
If, as seems probable (the identification of cause with 
consideration being rejected), to say that a promise or con- 
tract will be enforced if it has reasonable cause is under- 
stood to-day as meaning simply that it will be enforced if 
it is reasonable (and lawful) and if the parties intended to 
contract a legal obligation, the retention of the phrase 
'reasonable cause' may be justified as a compendious form 
of expression, but, on the other hand, its disuse would 
leave the substance of the law unimpaired. ' The require- 
ment of a reasonable cause does not add to or take away 
much from our idea of a contract.' 3 

The It was said above that even in a developed legal system 

form may sometimes be required in particular cases. Thus 

it corresponds rather with the second term in his series, viz. a 
serious and deliberate intention. See Appendix F. 

1 See in particular the Cape case of Mtembu v. Webster (1904) 
21 S.C. 323, and the Transvaal case of Rood v. Wallach [1904] 
T.S. 187. 

2 Jayawiclcreme v. Amasuriya [1918] A.C. 869; Conradie v. 
Rossouw [1919] A.D. 279 ; Robinson v. Randfontein Ests. Q. M. Co. 
[1921] A.D. at p. 236. 

3 Wessels, i. 72. 



FORMATION OF CONTRACT 227 

English Law requires sometimes a deed, sometimes that a some cases 
contract should be evidenced by writing. No such require- 



ment existed in the Roman-Dutch common law. Van der contracts 
Linden, 1 indeed, says that an antenuptial contract must b e ^ 
be in writing, but Van der Keessel 2 does not agree with writing. 
him. It was not necessary that contracts relating to land 
should be in writing; but in the modern law writing is 
generally required as a condition of validity or of proof. 3 
Further, as has been seen above, antenuptial contracts do 
not affect third parties unless registered in the office of 
the Registrar of Deeds. 4 Gifts in excess of 500, unless 
registered or (of movables) notarially executed, are invalid 
to the extent of the excess. 5 

SECTION E 

The agreement must not be impeachable on the ground of 

Fraud, Fear, Misrepresentation, Undue Influence, or 

Lesion 

All contracts derive their validity from the free consent Agree- 
of the contracting parties. Free consent is absent when a ug t ^ e 
contract has been procured by fraud or fear. free - 

Fraud is defined by Labeo as 'omnis calliditas, fallacia, Fraud. 
machinatio, ad circumveniendum, fallendum, decipien- 
dum alterum adhibita ' 6 ' any craft, deceit, or contrivance 

1 V.d.L. 1. 3. 3. 2 Supra, p. 73. 

3 By Transvaal Procl. No. 8 of 1902, sec. 30, 'No contract of 
sale of fixed property shall be of any force or effect unless it be in 
writing and signed by the parties thereto or by their agents duly 
authorised in writing.' Levy v. Phillips [1915] A.D. 139. Fixed 
property is defined in sec. 2. Similar provisions in O.F.S. (Ord. 12 
of 1906 (O.R.C.) sec. 49); Wilken v. Kohler [1913] A.D. 135. For 
Ceylon see Ord. No. 7 of 1840, sec. 2 ; for Natal, Law No. 12 of 1 884, 
sec. 1 (Royston v. Radebe [1914] A.D. 430; Cole v. Stuart [1940] 
A.D. 399), which follows more or less closely the English Statute 
of Frauds, sec. 4 (now the Law of Property Act 1925, sec. 40 (1)) ; 
see Anson, Contract (18th ed., p. 63). There is no such legislation 
in the Cape Province. 

4 Supra, p. 73. 6 Infra, p. 289. 

6 Dig. 4. 3. 1, 2. This definition, together with the English Law 
as interpreted in Derry v. Peek (1889) 14 App. Cas. 337, is discussed 
in Tait v. Wicht (1890) 7 S.C. 158. See also Roorda v. Cohn [1903] 
T.H. 279. 



228 THE LAW OF OBLIGATIONS 

employed with a view to circumvent, deceive, or ensnare 
another person'. 

In the Roman Law dolus produced (inter alia) the 
following effects: viz. (1) In stricti juris actions it might 
be the subject of a special plea (exceptio doli) ; (2) In rela- 
tion to bonae fidei contracts it might be alleged as ground 
of action or of defence (without special plea) in the action 
appropriate to the transaction in question, e.g. sale or 
deposit ; J (3) If no other remedy was available it grounded 
a special action called the actio doli. 

Remedies I* 1 Roman-Dutch Law the victim of fraud could : (a) set 
in case of U p the fraud as a defence ; 2 (6) sue for damages ; 3 (c) take 
Roman- steps to have the contract set aside. 4 This he did by 



applying to the Hooge Raad for a writ directing a Court of 
first instance to inquire into the truth of his allegations 
and, if they were well founded, to grant relief. 

In the modern law the procedure has been simplified, 
but the remedies are substantially the same. 5 

Dolus j^he old writers distinguish between fraud which causes 

^ ans a contract (dolus dans locum, vel causam, contractui) and 

contractui fraud incidental to a contract (dolus incidens in contractum). 

mcidens Fraud was said to cause a contract when a person who, 

in con- otherwise, had not the intention of contracting was in- 

duced to contract by, and would not have contracted but 

for, the fraud. Fraud was said to be incidental to a con- 

tract when a person freely contracted but was deceived in 

the terms of the contract (in modo contrahendi), e.g. in 

the price. 6 This distinction, which seems to have no solid 

foundation in Roman Law, 7 has been adopted in many 

1 Girard, p. 492. 

2 Gr. 3. 48. 7 ; Van Leeuwen, 5. 17. 13. 

8 Decker ad Van Leeuwen, 4. 2. 2 (Kotz^'s translation, vol. ii, 
p. 14). 

4 Gr. 3. 48. 5 ; Van Leeuwen, 4. 42. 2 and 4. 

8 Frost v. Leslie [1923] A.D. 276; Kleynhans Bros. v. Weasels 
Trustee [1927] A.D. at p. 277. 

6 Voet, 4. 3. 3 ; Vinnius, Select. Quoest. lib. i, cap. xii ; Van der 
Linden, Supplement, ad Pandect. 4. 3. 3. 

7 Girard, p. 493, n. 4 ; Cuq, Manuel des Institutions Juridiques 
des Romains, p. 392, n. 11. 



FORMATION OF CONTRACT 229 

modern codes, 1 though the more recent codes reject it. 
It is recognized in South Africa, but not precisely in the 
sense above stated. In the modern law the victim of 
deceit is not required to prove that he would not have 
contracted if he had not been deceived : 

'the person deceived may not be able to state with certainty 
that he would have refrained from entering into the contract 
if he had known the truth, but if the circumstances are such 
that the knowledge of the truth would have been calculated to 
induce a reasonable man acting with ordinary prudence and 
discretion not to enter into the contract, the Court, or jury, as 
the case might be, is justified in drawing the inference that the 
representation did in fact form an inducement to the contract.' 2 

This amounts to saying that the test to-day is objective 
and not subjective. 3 

What is the effect of fraud upon contract ? In the old Are con- 
books the question is much debated whether fraud which ^Tced by 
is the cause of a contract renders the contract void or fraudvoid 
merely voidable. Grotius in one passage says in absolute voidable ? 
terms that a person is not bound by anything he does 
when misled by fraud ; 4 but he is speaking, as the context 
shows, of the law of nature. When he comes to speak of 
the contract of sale, he says : 'If the whole sale was induced 
by the seller's fraud and otherwise would not have taken 
place the sale is annulled at the instance of the pur- 
chaser.' 5 This amounts to saying that the contract is not 
void, but voidable. There can be no doubt that this is the 
modern law. Sir John Kotze in his edition of VanXeeuwen 
says: 'It must be borne in mind that fraud does not 
necessarily render a contract void, but voidable at the 
election of the party sought to be defrauded.' 6 No doubt 

1 C.C. Art. 1116, Colin & Capitant (8), vol. 2, 44; B.W.B. 
Art. 1364. 

2 Woodstock, &c. Councils v. Smith [1909] 26 S.C. at p. 701 per 
De Villiers C.J. ; Schultz N. O. v. Myerson [1933] W.L.D. 199. A 
mere statement of opinion is not in itself a representation. Naude 
v. Harrison [1925] C.P.D. 84; Lamb v. Walters [1926] A.D. 358; 
Sampson v. Union & Rhodesia Wholesale Ltd. [1929] A.D. at p. 481. 

3 Mackeurtan (2), p. 129. 

4 Gr. 3. 1. 19. 6 Gr. 3. 17. 3. 

8 Kotz6, Van Leeuwen, vol. ii, p. 14. Cf. United Shoe Machinery 



230 THE LAW OF OBLIGATIONS 

if a person is induced by fraud to execute an instrument 
purporting to be a contract in entire ignorance of its 
nature, the absence of a contracting mind on his part 
would (apart from estoppel due to negligence) render the 
contract wholly void. 1 But a case of this kind may more 
properly be referred to the topic of mistake than of fraud. 2 
Impor- As between defrauded and defrauder the distinction 
thesis'- f v id and voidable is of no great importance ; except 
tinction. that in the latter case the victim of the fraud must be 
more alert to assert his rights, 3 but it affects the rights 
of innocent third persons to whom property obtained by 
fraud has passed. If the transaction is wholly void the 
third party has no title and the defrauded person can 
recover it from him by vindication. 4 If the transaction is 
merely voidable the innocent possessor is in the better 
position. 5 

Remedies Since a contract induced by fraud is voidable, not void, 

modern ^ G P ar ty defrauded may in his option either (a) abide by, 

law. or (6) repudiate, the contract. If he means to repudiate 

he must do so within a reasonable time, and may then 

either bring an action for rescission, or set up the fraud 

as a defence to an action on the contract. 

The defrauded party, whether he elects to abide by 
or to repudiate the contract, may, in any event, claim 
damages for the fraud, if he has suffered prejudice hi 
consequence of it, unless he has not only affirmed the con- 
tract, but also waived his claim for damages. 6 

Co. of Canada v. Brunei [1909] A.C. 330 (P.O. in appeal from 
Quebec). 

1 Standard Bank v. Du Plooy (1899) 16 S.C. at p. 172. 

2 Supra, p. 222. 

3 Wessels.i. 11 35 ft. 

4 Voet, 4. 3. 3. This is expressly stated also by Groenewegen ad 
Gr. 3. 48. 7 citing Neostad. Supr. Cur. Decis. no. 5. 

6 Wessels, i. 1141. In Beyers v. McKenzie (1880) Foord 125 
there was no contract at all, and the innocent purchaser acquired 
no title. Cf. Gundy v. Lindsay (1878) 3 App. Ca. 459; Philips v. 
Brooks [1919] 2 K.B. 243; Anson, p. 152. 

8 Bowditch v. Peel & Magill [1921] A.D. 561; Frost v. Leslie 
[1923] A.D. 276; Pathescope Union of S. A. v. Mallinick [1927] 
A.D. 292. 



FORMATION OF CONTRACT 231 

A person seeking to be relieved from a contract on the 
ground of fraud must as a rule tender to restore what he 
has received under the contract. 1 

It must be noted that dolus always implies an intention Inno- 
to deceive. In the Dutch Law innocent misrepresenta- 



tion inducing a contract gave no right of action nor claim tation. 
to relief. It was, however, available as a defence, for it 
is inequitable to sue upon such a contract. 2 

The modern law, influenced by English practice, allows 
a plaintiff to sue for rescission of a contract induced by 
innocent misrepresentation, but no more than the Dutch 
Law allows an action for damages. 3 

There are certain classes of contract known as contracts Duty of 
uberrimae fidei in which the law is not satisfied with the contracts 
absence of misrepresentation fraudulent or innocent, but uberrimae 
goes further and requires an active disclosure of material 
facts. Contracts of insurance belong to this class. 'In 
policies of insurance . . . there is an understanding that the 
contract is uberrima fides, that if you know any circum- 
stance at all that may influence the underwriter's opinion 
as to the risk he is incurring, and consequently as to 
whether he will take it ... you will state what you know. 
There is an obligation there to disclose what you know; 
and the concealment of a material circumstance known to 

1 Marks Ltd. v. Laughton [1920] A.D. 12. But this rule will 
not apply where the subject-matter of the contract has perished, 
without fault of the purchaser, in consequence of the defect which 
is alleged as the ground of rescission, e.g. eggs fraudulently 
represented as of good quality and after delivery destroyed by the 
local authority. Ibid. 

2 Van der Linden, Supplement, ad. Pandect. 4. 3. 1 (ad fin.). 
For South African Law see Viljoen v. Hillier [1904] T.S. 312 
(citing Redgrave v. Hurd (1881) 20 Ch. D. 1); Karoo & Eastern 
Board of Exors. v. Fair [1921] A.D. 413; Sampson v. Union & 
Rhodesia Wholesale Ltd. [1929] A.D. at p. 480. 

3 Steyn v. Davis & Darlow [1927] T.P.D. 651. Whether an 
action lies in delict ? Infra, p. 337. Note that misrepresentation of 
the legal effect of a written agreement which a party signs with 
full knowledge of its contents is not a ground for avoiding the 
agreement. This is because every man is supposed to know the 
legal effect of an instrument which he signs. Union & Rhodesia 
Wholesale Ltd. (In Liquidation) v. Sampson [1928] C.P.D. at p. 456 
per Gardiner J.P. citing English cases. 



232 THE LAW OF OBLIGATIONS 

you, whether you thought it material or not, avoids the 
policy'. 1 

Fear or Fear or Duress is another ground of invalidity in con- 
15881 tract. ' Quod metus causa gestum erit ratum non habebo,' 
said the Roman Praetor in his Edict. 2 Ulpian defines fear 
as 'a disturbance of mind caused by instant or appre- 
hended peril'. 3 Grotius describes it, 4 more largely, as 'a 
great terror as of death, dishonour, great pain, unlawful 
imprisonment of oneself or of one's belongings'. 5 It is an 
old controversy whether a contract procured by fear is 
void or voidable. No doubt, if a contract is procured by 
physical compulsion it is wholly void. 6 But in case of 
what is sometimes called moral violence or duress the 
view now generally accepted is that the contract is not 
void, but voidable. This accords with the well-known 
dictum of Paulus 'coactus volui', 7 to which the glossator 
adds the explanation 'voluntas coacta est voluntas'. Ac- 
cordingly a contract induced by fear remains good until 
repudiated or rescinded, 8 and may be ratified expressly or 
tacitly when the fear is removed. 9 It is not every kind 
of fear that affects the formation of a contract, but only 
a just or reasonable fear 'metus non vani hominis' 1( 
(regard being had, however, to the age, sex, and condition 
of the person intimidated), 11 and a fear of unlawful not of 

1 Fine v. General Assurance Corporation [1915] A.D. 213; 
Colonial Industries Ltd. v. Provincial Insurance Co. [1922] A.D. 33 
(where the passage in the text is cited and adopted from Lord 
Blackburn's judgment in Brownlie v. Campbell (1880) 5 A.C. at 
p. 954). For the duty of disclosure between partners see De Jager 
v. Olifant's Syndicate [1912] A.D. 505. 

2 Dig. 4. 2. 1 ; White Bros. v. Treasurer -General (1883) 2 S.C. at 
p. 350. 

3 Instantis vel futuri perjculi causa mentis trepidatio. Ibid. 

4 Gr. 3. 48. 6. 6 i.e. wife and children. Voet, 4. 2. 11. 

6 Wessels, i. 1168. It is not easy to imagine a case in which 
there is the semblance of a contract, but no volition. 

7 Dig. 4. 2. 21, 5 ; Gr. ubi sup. ; Voet, 4. 2. 1 ; Pothier, Traite des 
Obligations, sec. 22, with V.d.L.'s note in the Dutch translation; 
Van der Linden, Supplement, ad Pandect. 4. 2. 2. 

8 Voet, 4. 2. 2. 9 Voet, 4. 2. 16. 

10 Dig. 4. 2. 6; Voet, 4. 2. 11 ; V.d.L. 1. 14. 2; C.C. Art. 1112. 

11 Voet, ubi sup. 



FORMATION OF CONTRACT 233 

lawful violence. 1 Mere threats are not enough, unless they 
are of a serious character and are likely to take effect. 2 
The action ' quod metus causa ' lies against the intimidator, 
and against any other person into whose hands the pro- 
ceeds of the intimidation 3 have come, or who has otherwise 
benefited by it, 4 at the expense of the plaintiff. 5 But a 
person seeking to avoid a contract or conveyance on the 
ground of metus can only do so on condition of restoring 
the defendant to his former position. 6 This applies equally 
to the intimidator and to third parties, so that the position 
of a third party, whether he be a bona fide or a mala fide 
possessor, is better in a case of metus than in a case of 
error. An action to set aside a transaction on the ground 
of intimidation is prescribed in thirty years. 7 

The topic of undue influence, as distinct from metus, Undue 
is not developed in the Roman-Dutch writers, 8 though the m uence - 
books contain hints which might have been worked out by 
judicial decisions without the aid of English precedents. 9 
In South Africa the law on this subject has been inspired 
by the decisions of English Courts of Equity, 10 and the 

1 Voet, 4. 2. 10. 2 Voet, 4. 2. 13. 

3 Voet, 4. 2. 4. 4 Voet, 4. 2. 5-6. 

6 In the Roman Law the action lay intra annum for four-fold 
damages in case of failure to restore (Dig. 4. 2. 14, 1); but in 
R.-D.L. the action was always in simplum. Voet, 4. 2. 18. 

6 Voet, 4. 1. 22; 4. 2.9. 

7 Gr. 3. 48. 13 ; Gens. For. 1. 4. 41. 8 ; Voet, 4. 2. 18. If it is to be 
regarded as a proceeding at common law for restitution in integrum 
the period of prescription is now three years. Prescription Act, 
1943, sec. 3 (2). 

1 'Roman -Dutch authority upon the question of undue in- 
fluence as distinguished from metus would appear to be somewhat 
scanty' (Van Pletsen v. Henning [1913] A.D. at p. 94 (per 
Innes J.) and see MacKeurtan, Sale of goods in South Africa, 
pp. 134 ff.). For 'duress of goods' as a ground of restitutio in 
integrum or condictio indebiti see White Bros. v. Treasurer- 
General (1883) 2 S.C. 322; Benning v. Union Government [1914] 
A.D. 420; Union Government v. Gowar [1915] A.D. 426; Lilienfeld 
v. Bourke [1921] T.P.D. at p. 370. The topic seems to fall under 
the head of undue influence rather than of metus properly so 
called. 

9 Voet, 2. 14. 19; 4. 2. 11; V.d.L. 1. 15. 1 (gift by patient to 
medical attendant). 

10 Wessels, i. 208; Armstrong v. Magid [1937] A.D. 260. 



234 THE LAW OF OBLIGATIONS 

English law of undue influence has become part of the law 
of Ceylon. 1 

Lesion (prejudice) may be invoked by minors as a 
ground of relief against contracts entered into by them 
with the authority of their parents or guardians, or entered 
into by parents or guardians on their behalf, 2 and by 
persons of full age in case of laesio enormis, where this 
institution remains in force. 3 

SECTION F 
The agreement must not be directed to an illegal object 

Legality The next requisite of a valid contract is that it should 
of object. k e Directed to a lawful object. An object is unlawful if it is 
condemned by common law or by statute. 4 In all mature 
legal systems the principal heads of illegality are much the 
same. But since social progress brings with it new condi- 
tions and fresh abuses, the illegalities of one age will not 
be identical with the illegalities of another. Accordingly, 
the categories of unlawfulness in contract are not in the 

1 Perera v. Tissera (1933) 35 N.L.R. 257. 

2 Supra, 48, 114; infra, Appendix B. 

3 The rule that a vendor of land for less than half its real value 
might get back his land on returning the price, unless the buyer 
preferred to pay the full value, is attributed in Justinian's Code 
(4. 44. 2 and 8) to constitutions of Diocletian and Maximian 
(A.D. 285 and 293), but perhaps was of later origin. Girard, 
p. 575. In the Dutch Law a similar indulgence was allowed to a 
purchaser who had paid more than double value (Kingsley v. 
African Land Corporation [1914] T.P.D. 666), and the principle 
was extended to other contracts besides sale. Gr. 3. 17. 5 ; 3. 52. 2, 
and Schorer, ad loc. Van Leeuwen, 4. 20. 5; Voet, 18. 5. 13. Did 
the rule extend to movables as well as to land ? Girard, p. 576. 
Does it apply to sales in execution ? Schorer, loc. cit. Laesio 
enormis has been abolished at the Cape by the General Law 
Amendment Act No. 8 of 1879. sec. 8 (Southern Rhodesia follows 
the Cape), and in the Free State by Ord. No. 5. of 1902, sec. 6. It 
still obtains in the Transvaal, McOee v. Mignon [1903] T.S. 89; 
Kingsley v. African Land Corp. Ltd. [1914] T.P.D. 666 ; Roff & Co. 
v. Mosely [1925] T.P.D. 101; Hoffman v. Prinsloo & Hoffman 
[1928] T.P.D. 621 ; in Natal, Mfunda v. Brammage [1913] N.P.D. 
477; Briggs v. Hughes [1933] N.P.D. 618 (general principles dis- 
cussed) ; and in Ceylon, Gooneratne v. Don Philip (1899) 5 N.L.R. 
268; Wijesiriwardene v. Ounasekera (1917) 20 N.L.R. 92 (lease). 

4 Gr. 3. 1. 42-3; Voet, 2. 14. 16. 



FORMATION OF CONTRACT 235 

modern law quite the same as they were in the Roman Law 
or in the Dutch Law of the eighteenth century. 

Unlawful contracts are regarded by Roman Law as Effect of 
civilly impossible. 1 For this reason Decker speaks in the ega 1 y ' 
same breath of physical and of moral possibility (i.e. 
legality) as together making one of the essentials of con- 
tract. 2 It is, however, more in accordance with modern 
usage to keep these topics distinct. Unlawful contracts 
are null and void. 3 No action can be grounded upon them. 
On the other hand, money paid in pursuance of an unlaw- 
ful contract cannot be recovered back, for, as was said by 
an English Judge: 'Whoever is a party to an unlawful 
contract, if he hath once paid the money stipulated to be 
paid in pursuance thereof, he shall not have the help of 
a court to fetch it back again. You shall not have a right 
of action, when you come into a court of justice in this 
unclean manner to recover it back.' 4 The same doctrine 
is expressed in the Roman Law maxim, 'in pari delicto 
potior est conditio defendentis'. 5 This rule excludes cases 
in which the defendant alone is guilty. For if an innocent 
party has paid money or transferred property for a pur- 
pose in fact unlawful, he may get it back (together with 
fruits and accessions), or the value, by the process which 
in Roman Law was known as the condictio ob turpem Condictio 
causam ; 6 and the principle has been extended to the case 
of a plaintiff guilty, but not equally guilty with the defen- 
dant, as for instance if he entered upon the transaction 

1 Voet, ubi sup. 2 Supra, p. 225. 

3 Gr. 3. 1, sees. 42 and 43; V.d.L. 1. 14. 6. Under unlawful 
contracts are included contracts subject to a suspensive condition 
which is unlawful. Gr. 3. 14. 29. 

4 Wilmot C.J. in Collins v. Blantern (1767) Smith's Leading 
Cases (13th ed.), vol. i, at p. 411. 

6 Aliter, In delicto pari potior est possessor. Dig. 12. 7. 5 pr. ; 
Gr. 3. 1. 43; Brandt v. Bergstedt [1917] C.P.D. 344; (Ceylon) 
Silva v. Ratnayake (1935) 37 N.L.R. 245. 

6 Voet, 12. 5. 1, condictio ob turpem causam est actio personalis 
stricti juris, qua repetitur quod datum est ob factum continens 
turpitudinem ex parte accipientis, ita ut condicens turpitudinis 
expers sit, licet jam turpe factum subsecutum sit. Sandeman v. 
Solomon (1907) 28 N.L.R. 140. 



236 THE LAW OF OBLIGATIONS 

under the influence of compulsion or menace, and to 
cases in which the contract remains substantially unper- 
formed. But in every case the Court will grant or withhold 
relief with regard to the paramount consideration of 
public policy and justice between the parties. 1 
Partial When a contract contains several agreements and is in 
severance" P ar * l aw ful> i n P^rt unlawful, the Court will sometimes 
sever the lawful agreement from the unlawful agreement, 
giving effect to the first and not to the second. 2 It has 
been said that 'whatever the Roman Law may have 
been, our South African Courts have followed the English 
decisions in this branch of the law of contract'. 3 But the 
limits within which severance is admissible are still not 
very precisely defined. 4 

Collateral It is not always easy to determine how far the taint of 
actions, illegality extends. Contracts may have some connexion 
with an illegal transaction without necessarily being in 
themselves illegal. The general rule applicable to such 
cases is that if a plaintiff can make out a cause of action 
without alleging the illegal transaction as part of his case 
he is entitled to judgment in his favour. 5 This does not 
mean that a plaintiff can evade the stigma of illegality by 
ingenuity in stating his case. 

'The true principle seems to me to be that the plaintiff 
is only entitled to recover upon an obligation connected with 
an immoral [or illegal] transaction, if upon a consideration of 
all the facts of the case and of the real objects of the parties 
whatever form may have been adopted to express their arrange- 
ments and not merely upon the plaintiff's presentation of 

1 See Wells v. Du Preez (1906) 23 S.C. 284 ; R. v. Seebloem [1912] 
T.P.D. at p. 34 ; Jajbhay v. Cassim [1939] A.D. 537 ; Petersen v. 
Jajbhay [1940] T.P.D. 182. Since these last cases the authority of 
earlier decisions may be open to question. 

2 Eastwood v. Shepstone [1902] T.S. at p. 303. 

3 Wessels, i. 609. 

4 Anson, p. 239. For a recent discussion see Brooks & Wyriberg 
v. New United Yeast Distributors Ltd. [1936] T.P.D. 296. 

6 Silke v. Goode [1911] T.P.D. 989; Fisher & Son v. Voges 
[1925] C.P.D. 370; Heilman v. Vorbeck [1925] T.P.D. 790. But 
see Schuster v. Guether [1933] S.W.A. 19, and Kennedy v. Steen- 
kamp [1936]C.P.D. 113. 



FORMATION OF CONTRACT 237 

them, the obligation sought to be enforced is separable from 
the immoral [or illegal] transaction and is not itself tainted with 
illegality.' 1 

A contract is not illegal, merely because to the knowledge 
of the parties it is entered upon in breach of a contract sub- 
sisting between one of the parties and some other person. 2 

The principal categories of illegality in contract are the What 

f 11 contracts 

following: are 

illegal : 

I. Contracts made in breach of statute 

If a contract is prohibited by law, or is directed to an Contracts 
object condemned by a statute, expressly or by implica- bmich^f 
tion, there can be no question that the whole transaction statute, 
is illegal and void. But whether a contract to which a 
statutory penalty attaches is thereby rendered : (a) illegal, 
or (6) void, or (c) merely expensive to the parties, is in 
each case matter of construction. 3 This last will usually 
be the consequence when the protection of the revenue 
is the object of the statute. 4 Likewise, apart from any 
question of penalty, a contract may be rendered void by 
law without being therefore necessarily illegal. 5 

II. Contracts prohibited by the common law 
Such are : 1 . Agreements to commit a crime or civil Contracts 

6 j xu r prohibited 

wrong ; b promises inducing the commission of a crime by the 
or civil wrong ; promises made as an inducement to the ommon 
promisee to abstain from such wrongful acts. 7 

2. Agreements which tend to pervert the course of 

1 Vuurman v. Universal Enterprises Ltd. [1924] T.P.D. at p. 496 
per Mason J.P. 2 Isaacman v. Miller [1922] T.P.D. 56. 

3 McLoughlin N. 0. v. Turner [1921] A.D. at p. 549; Schier- 
hout v. Minister of Justice [1926] A.D. at p. 109. See e.g. cases 
decided under the Sunday Trading Acts, such as Cape Dairy and 
General Livestock Auctioneers v. Sim [1924] A.D. 167 ; Fisher & Son 
v. Vosges [1926] C.P.D. 370; Lubbe v. Trollip [1926] E.D.L. 239. 

4 Williams v. Rondebosch Fountain Oarage Co. [1929] C.P.D. 
439 ; Voet, 1. 3. 16 ; Standard Bk. v. Est. van Rhyn [1925] A.D. 266 ; 
Worthington v. Shagam [1937] N.P.D. 376. 

5 Anson, Contract, p. 243. 

6 Inst. 3. 19. 24; Gr. 3. 1. 42; Voet, 2. 14. 16. 

7 Dig. 12. 5. 2 pr. 



238 THE LAW OF OBLIGATIONS 

justice, e.g. to stifle a prosecution, 1 to condone the com- 
mission of a future crime, 2 to prevent a person seeking 
redress in a court of justice for a future injury or wrong, 3 
to pay a witness a fee for attendance larger than the amount 
fixed by law ; 4 agreements purporting to authorize one of 
the contracting parties to take the law into his own hands. 5 
To the same class may be referred such agreements as in 
English Law are known by the names of maintenance 
and champerty, viz. agreements to promote and maintain 
legal proceedings in which the promisor has no direct 
concern, and in particular to do so with a view to sharing 
with a plaintiff the proceeds of a suit. 6 Voet mentions in 
this connexion an agreement de quota litis between lawyer 
and client, an agreement that a lawyer is not to be paid 
unless the suit is successful, an improper agreement for the 
assignment of another's right of action. 7 Cession of actions 
is, however, in general, free from objection, unless of a 
speculative character, or for other reasons contrary to the 
policy of the law ; and it is not unlawful bonafide and pro- 
perly to assist a litigant to defend or establish his rights, 
even though the person so assisting may derive some 
benefit from the subject-matter of the action. 8 

3. Agreements for the sale or procurement of public 
offices or otherwise tending to injure the public service. 9 

1 V.d.K. 520; Hotz v. Standard Bank (1907) 3 Buch. A. C. 
53; Bezuidenhout v. Strydom (1884) 4 E.D.C. 224; Vuurman v. 
Universal Enterprises Ltd. [1924] T.P.D. 488; Smite v.^ Pienaar 
[1928] T.P.D. 450. 2 Gr. 3. 1. 42 ; Voet, ubi sup. 

3 Schierhout v. Minister of Justice [1925] A.D. at p. 424 per 
Kotze J. ; Wells v. S. African Alumenite Co. [1927] A.D. at p. 72. 

4 Knox v. Koch (1883) 2 S.C. 382. 

6 Blomsonv. Boshoff [1905] T.S. 429; Nino Bonino v. De Lange 
[1906] T.S. 120 (clause in a lease permitting the lessor, in the 
event of breach of condition, to expel the lessee and re-enter on the 
premises without legal process). 

6 Gr. 3. 1. 41 ; Incorporated Law Soc. v. Reid (1908) 25 S.C. 612 ; 
Campbell v. Welverdiend Diamonds Ltd. [1930] T.P.D. 287. 

7 Gr. 3. 1. 41 ; and Schorer ad loc. ; Voet, 2. 14. 18; e.g. assign- 
ment to the attorney in a case of all plaintiff's right and interest, 
East London Munic. v. Halberd (1884) 3 S.C. 140. 

8 Patz v. Salzburg [1907] T.S. at p. 527 per Innes C.J. Cf. 
Fellows-Smith v. Shanks [1925] N.P.D. 168. 

9 Van Leeuwen, 4. 14. 6 ; V.d.K. Dictat. ad Gr. 3. 1. 42. 



FORMATION OF CONTRACT 239 

4. Agreements tending to injure the State in its foreign 
relations, including agreements with alien enemies. 1 

5. Agreements directed to a fraud upon the public. 2 

6. Agreements tending to sexual immorality. 3 

7. Agreements in restraint of marriage, 4 or otherwise 
contrary to the policy of the law in the matter of 
marriage ; e.g. an arrangement between two persons that 
whichever of the two marries first shall pay a sum of 
money to the other; 5 agreement between husband and 
wife for future voluntary separation; 6 agreement to live 
apart made at the time of marriage ; 7 agreement to pay a 
sum of money to a person, if a divorce is granted on 
evidence procured by that person ; 8 promise by a married 
man (or woman) to marry (generally or when his (or her) 
existing marriage shall have been dissolved by death or 
divorce). 9 But agreements to procure marriage for reward 
(marriage brocage contracts) are not illegal by Roman- 
Dutch Law, as they are by English Law. 10 

8. Agreements in undue restraint of trade. 11 

9. Agreements in fraud. of creditors. 12 

1 Janson v. Driefontein Consolidated Mines [1902] A.C. 484. 

2 St. Marc v. Harvey (1893) 10 S.C. 267 ; Robinson v. Randfon- 
tein Ests. G. M. Co. [1925] A.D. 173. 

3 Voet, 12. 5. 6; Louisa v. Van den Berg (1830) 1 Menz. 471; 
Aburrow v. Wallis (1893) 10 S.C. 214. 

4 Voet, 2. 14. 21 ; Holl. Cons. v. 23. 5 Voet, loc. cit. 

6 Braude v. Braude (1899) 16 S.C. 565. 

7 Van Oosten v. Van Oosten [1923] C.P.D. 409. 

8 Kieley v. Dreyer [1916] C.P.D. 603. 

9 Staples v. Marquard [1919] C.P.D. 181; Friedman v. Harris 
[1928] C.P.D. 43; Fender v. St. John-Mildmay [1938] A.C. 1; 
Viljoen v. Viljoen [1944] C.P.D. 137. 

10 Wessels, i. 530. In King v. Gray (1907) 24 S.C. 554, however, 
the Court adopted the decision in the English case of Hermann v. 
Charlesworth [1905] 2 K.B. 123, and this was followed in Hurwitz v. 
Taylor [1926] T.P.D. 81. In Livera v. Gonsalves (1913) 17 N.L.R. 
5 the Ceylon Court followed King v. Gray. See also De Silva v. 
Juan Appu (1928) 29 N.L.R. 417. 

11 Wessels, i. 538 ff. and cases cited. 

12 Gr. 3. 1. 27; Cohen v. Herman & Canard (1904) 21 S.C. 621 ; 
Wiener v. Est. McKenzie [1923] C.P.D. at p. 582. Alienations in 
fraud of creditors may be avoided by the actio pauliana ( Wiener v. 
Est. McKenzie ubi sup. at p. 579; supra, p. 143, n. 6); as well 
as under the Insolvency Act. 



240 THE LAW OF OBLIGATIONS 

10. Agreements in fraud of a statute (infraudem legis). 1 

11. Knock-out agreements at a sale by auction. 2 

12. Agreements relating to a future right of succession 
or limiting freedom of testation. 3 

This is a head of illegality derived from the Roman Law. 
As expounded by Voet the law reprobates any agree- 
ment relating to the succession of an ascertained person 
still alive, even though made with such person's consent. 
Such agreements are contrary to public policy as involving 
a dangerous speculation on a person's death and tend- 
ing to restrict the freedom of testamentary disposition. 4 
Consequently, a person cannot contract to make another 
his heir ; 5 nor can two person's mutually agree that they 
shall succeed to one another. 6 But if two persons contract 
as to the succession to a third, and such third person 
assents and does not subsequently revoke his assent, the 
contract is allowed to be good. 7 

The general rule extends to legacies, so that a promise to 
leave money by will cannot be enforced against a deceased 
person's estate, nor found an action for damages. 8 An 
agreement, however, relating to the estate of an uncertain 

1 Dadoo Ltd. v. Krugersdorp Municipal Council [1920] A.D. 
530; Colonial Banking & Trust Co. v. Hill's Trustee [1927] A.D. 
488; Rex v. Gillett [1929] A.D. 364; Comm. of Customs v. Randies 
Bros. [1941] A.D. 369. 

2 Neugebauer <fc Co. v. Hermann [1923] A.D. 564. In England 
this head of illegality is statutory. Auctions (Bidding Agreements) 
Act 1927. 

3 Dig. 45. 1. 61; Cod. 2. 3. 15; 8. 38 (39). 4; Gr. 3. 1. 41; Lee, 
Commentary, ad loc. ; V.d.K. 479 ; Voet, 2. 14. 16 ; Gens. For. 1. 4. 
3. 15; Bijnk. O.T. i. 295, 360; unless such agreement is contained 
in an antenuptial contract. V.d.K. 235 ff. For South Africa see 
Jones v. Goldschmidt (1881) 1 S.C. 109; Eksteen v. Eksteen [1920] 
O.P.D. 195; Niewenhuis v. Schoeman's Est. [1927] E.D.L. 266. 
But in Van Jaarsveld v. Van Jaarsveld's Est. [1938] T.P.D. 343 
Greenberg J.P. and Schreiner J. held that a promise to leave 
property by will, though unenforceable, is not illegal or contra 
bonos mores. Contra, James v. James'' Est. [1941] E.D.L. 67. 

4 Cod. 2. 3. 30 ; Voet, ubi sup. 

6 Holl. Cons. iv. 30. 

8 Voet, ubi sup. But see Schorer ad Gr. 3. 14. 11. Mutual wills 
are free from objection, because wills are not contracts. 

7 Cod. ubi sup. ; Voet, ubi sup. 

8 Voet, loc. cit., ad fin. ; Niewenhuis v. Schoeman's Est., ubi sup. 



FORMATION OF CONTRACT 241 

person still alive, or of a deceased person, is free from 
objection. 1 Agreements in antenuptial contracts relating 
to the succession of the spouses inter se, or of the spouses 
to a third party, or of a third party to the spouses, 2 and 
agreements for the division of an inheritance amongst 
co -heirs (de familia erciscunda) are permitted. 

Agreements which burden the obligor without benefit- 
ing the obligee, 3 and promises which are merely silly and 
foolish, 4 though not illegal in the sense of being contrary 
to law, are devoid of legal effect. 5 

Gaming and wagering contracts occupy a peculiar posi- Gaming 
tion, for, though not positively illegal, it is the policy ^g er ing 
of the law to discourage them. 6 Whether by the Roman- contracts. 
Dutch common law wagers were or were not illegal or 
invalid is a question which, in view of the great variety of 
opinion expressed by different writers, must be considered 
to be quite unsettled. 7 In the modern law the tendency of 
judicial opinion has been against their enforcement. Thus, 
in a case decided in the Transvaal Supreme Court in 1905, 
Innes C.J. said: 'I think, having regard to the general 
current of legal decision in South Africa, that the Court 
should not enforce contracts in the nature of wagers.' 8 
On the other hand, money paid under a wager cannot be 
recovered by the loser, and a new promise by the loser to 
pay the amount of a lost bet is enforceable. 9 One who has 
deposited money or any other thing to abide the result 
of a wager or contest may reclaim it from the stakeholder 

1 Voet, 2. 14. 17. 

2 Voet, 2. 14. 16; V.d.K. 235 seq. 

3 Voet, 2. 14. 20. " Voet, 2. 14. 16. 

5 Grotius adds: Contracts relating to res extra commercium. 
The sale of a res litigiosa is not forbidden. Gr. 3. 14. 10 ; V.d.K. 
630; Hall v. Howe [1929] T.P.D. 591 ; Walker v. Matterson [1936] 
N.P.D. 495. Secus in Ceylon ? Ibrahim Saibo v. Pallaku Lebbe 
(1928) 29N.L.R. 347. 

6 Est. Wege v. Straws [1932] A.D. 76. 

7 See Gr. 3. 3. 49 ; Van Leeuwen, 4. 14. 5 ; V.d.K. 514. 

8 Dodd v. Hadley [1905] T.S. at p. 442. In Ceylon the view has 
prevailed that wagers are unlawful as contrary to public policy. 
Tarrant v. Marikar (1934) 36 N.L.R. 145. 

9 Rudolph v. Lyons [1930] T.P.D. 85. 

4901 R 



242 THE LAW OF OBLIGATIONS 

before or after the determination of the event before it 
has been paid over to the winner 1 and, if the stakeholder 
nevertheless hands it over to the winner, may maintain 
an action for its value. 2 A person who has made bets for 
me as my agent must hand over the winnings ; 3 and money 
lent to make 4 or to pay 5 bets can be recovered. A person 
to whom a negotiable instrument has been given in respect 
of a gaming or wagering transaction cannot recover upon 
it, but a bona fide holder for value would probably not be 
under the same disability. 

Statute At the Cape Act No. 36 of 1902, reproducing the pro- 
South 1 visions of the English Gaming Act of 1845 (8 and 9 Vic. 
Africa. c. 109), by sec. 11 enacts: 

'All contracts [or] agreements, whether verbal or in writing, 
by way of gaming or wagering, shall be null and void, and no 
suit shall be brought or maintained in any court of law for 
recovering any sum of money or valuable thing alleged to be 
won upon any wager, or which has been deposited in the hands 
of any person to abide the event on which any wager has been 
made: Provided always that nothing in this section shall be 
deemed to apply to any subscription or contribution or agree- 
ment to subscribe or contribute for or towards any plate, prize, 
or sum of money to be awarded to the winner of any lawful 
game, sport, pastime, or exercise.' 

1 Even if the wager or contest is illegal. Voet, 11. 5. 9 ; Clarke v. 
Bruning [1905] T.S. 295. 

2 Sloman v. Berkovitz (1891) 12 N.L.R. 216 ; Voet, loc. cit. 

3 Dodd v. Hadley, ubi sup. 

4 Voet, 11. 5. 4. Contra Van Leeuwen, 4. 14. 5. In Biljoen v. 
Petersen [1922] N.P.D. 63 money lent to be used as stakes in a game 
of poker was held to be recoverable. The ratio decidendi was that 
poker is not a game of chance prohibited by Law No. 25 of 1878. 
'The case, of course, is very different if by statute the particular 
kind of wagering is made illegal and criminal ' (per Dove Wilson 
J.P.). This seems to distinguish the case from Sandeman v. 
Solomon (1907) 28 N.L.R. 140, in which money lent for the purpose 
of discharging a cheque given in payment of a gambling debt was 
held to be irrecoverable. In Glaser v. Blotnick [1941] C.P.D. 403 
Sutton J. following Voet, 11. 5. 5 held that money lent by a 
winning player to the loser for the purpose of the game could not 
be recovered. 

5 This may be inferred from Dodd v. Hadley and Biljoen v. 
Petersen. The point does not seem to be absolutely covered by 
decision. 



FORMATION OF CONTRACT 243 

SECTION G 
The parties must be competent to contract 

Incapacity to contract attaches in greater or less degree Capacity 
to the following classes of persons : 

1. Minors. 2. Married Women. 3. Insane Persons. 
4. Prodigals. 5. Juristic or Artificial Persons. 6. In- 
solvents. 

Most of these cases have been considered under the 
head of the Law of Persons. With regard to insolvents 
the law of South Africa has been stated in the following 
terms : 

'Although insolvency imposes many disabilities upon the 
debtor he is not deprived of his contractual capacity. Such 
capacity is, however, limited in several respects and is some- 
times made subject to conditions and obligations. . . . Generally 
speaking, the insolvent may make a valid contract if he does 
not purport thereby to dispose of any property of his insolvent 
estate.' 1 

1 Mars, The Law of Insolvency in South Africa (3), p. 291 ; 
Fairlie v. Raubenheimer [1935] A.D. 135; Priest v. Charles [1935] 
A.D. 147 ; George v. Lewe [1935] A.D. 249. 



II 

OPERATION OF CONTRACT 

IN this chapter we shall consider : 

I. The persons affected by a contract. 
II. The duty of performance. 
III. The consequences of non-performance. 

SECTION I 

The Persons affected by a Contract 

The A contract primarily affects the parties to it and none 

p ff rs ^H ^ ner - I n other words, no one can be bound or benefited 
by a by a contract to which he is not a party. Such was the 
contract. p> oman Law expressed in the maxims 'Nemo promittere 

potest pro altero' ; 'Alteri stipulari nemo potest'. 1 
Nemo Nemo promittere potest pro altero. This means that a 

P o^t pro P rom i se ma( ie by A cannot impose a burden on B, for 
altero. no one can be bound by another man's contract. 2 

In the Roman Law the rule was carried so far that 
a promise by A that B would do something was destitute 
of legal effect, 3 not binding A because it was not intended 
that it should, not binding B because it was not his 
promise. However, such a promise would now generally 
be construed as a promise by A that he would procure B 
to do the thing in question. 4 It must be noted further, 
that the rule nowadays has no application to the relation 
of principal and agent. A servant or agent, acting within 
his authority, contracts for his principal and binds his 
principal by his contract. 5 Moreover, there are certain 
legal relations other than that of principal and agent 
which give to one person in greater or less measure the 

1 V.d.L. 1. 14. 3. 

3 Certissimum enim est ex alterius contractu neminem obligari. 
Cod 4. 12. 3 ; Gr. 3. 1. 28 ; Van Leeuwen, 4. 2. 4. 

3 Inst. 3. 19. 3 ; Vinnius, ad loc. ; Dig. 45. 1. 83 pr. 

4 Gr. 3. 3. 3 ; Van Leeuwen, 4. 2. 5 ; Groen. de leg. abr. ad Inst. 
3. 19 (20). 3; Voet, 45. 1. 5;Aronowitz v. Atkinson [1936] S.R. 45. 

6 Van Leeuwen, 4. 2. 6-7. 



OPERATION OF CONTRACT 245 

power of binding another by contract. Thus a husband 
may bind his wife, 1 a tutor his ward, 2 a father his child, 3 
and a master of a ship the ship-owner ; 4 but this seems only 
to mean that they can enter into contracts incidental to 
their powers of administration. This is no real exception 
from the rule. 

Alteri stipulari nemo potest. 5 This rule is the converse Alteri 
of the one stated above. It means that just as a person ^no" 
cannot be burdened by a contract to which he is not a potest. 
party, so neither can he be benefited by it. 6 

Like the other, this maxim is qualified in the modern 
law by the rule which permits an agent to acquire a con- 
tractual right on behalf of his principal 7 and is also modi- 
fied in favour of wife, 8 ward, 9 parent, 10 and child, 11 who 
may be benefited by the contracts respectively of husband, 
guardian, child, or parent, made on their behalf. 

But does the rule itself hold good in the Roman-Dutch Is this 
Law ? The contrary is asserted inter olios by Voet, 12 Groe- present 
newegen, 13 and Decker, 14 and this view was adopted by da y ? 
Sir Henry De ViUiers, in the case of Tradesmen's Benefit 
Society v. Du Preez, 15 subject, however, to the qualification 

1 Gr. 1. 5. 22; Rodenburg, De jure conjugum, 2. 1. 3; Fock. 
And. Bijdragen, ii. 115. a Gr. 3. 1. 30, supra, p. 113. 

3 Gr. 3. 1. 28. V.d.K. says (Dictat. ad loc.) that a father who 
has sons in his power may bind them to perform anything which 
a person sui juris might undertake by contract ; e.g. he may let 
out their services on hire. This is certainly not law to-day. A 
minor may enter into a contract of apprenticeship, but he does so 
in his own name, assisted by his parent or guardian. 

4 Gr. 3. 1. 32. 5 Inst. 3. 19. 19; Dig. 45. 1. 38, 17. 

6 Gr. 3. 1. 36; 3. 3. 38. 

7 V.d.K. 478; V.d.L. 1. 14. 3 (ad fin.). 

8 Gr. 3. 1. 38 ; Dekenah v. Linton [1920] C.P.D. 579. 

9 Gr. 1. 8. 8 ; 3. 1. 38. 10 Gr. 3. 1. 38 ; 3. 3. 36. 

11 Gr. 3 3. 36. Grotius says that if a parent stipulates or accepts 
on behalf of a child in power, the benefit of the contract accrues to 
the parent. But this is not so in the modern law. See Schorer, ad 
loc. and V.d.K. 509 and cf. Slabber's Trustee v. Neezer's Exor. 
(1895) 12 S.C. 163. 12 Voet, 2. 14. 12 (ad fin.); 45. 1. 3. 

18 Groen, de leg. abr. ad Inst. 3. 20 (19). 19; see also Vinnius ad 
Inst. 3. 20 (19). 4, sec. 3, and Tract, de Pactis, cap. xv. 

14 Decker ad Van Leeuwen, 4. 2. 5 (Kotz6's translation, vol. ii, 
p. 17). 1S (1887) 5 S.C. 269. 



246 THE LAW OF OBLIGATIONS 

that there must be some consideration moving from the 
original promisee. But this qualification must be rejected, 
since consideration in the English sense of the word does 
not form part of the law of South Africa. 1 Apart from this 
the principle that a third party may take the benefit of a 
stipulation made in his favour, if it was the intention of 
the contracting parties that he should do so, 2 is now 
firmly established by judicial decision. 3 The juridical basis 
of the relations thereby created has been much debated 
in the legal literature of other countries, but has hitherto 
received little attention from the South African Courts. 
Some questions of interest remain for future discussion. 4 
Cession Cession and Transmission of Actions. It has been said 

j * 

trans- above that a contract primarily affects the parties to it 
mission of and none others. But persons not originally parties may 
become so, either by agreement (cession of actions) or by 
operation of law (transmission of actions). 

By agreement, contractual rights and duties may be 

transferred so as to substitute another person in place of 

the original party. But there is a great difference between 

assignment of duties and assignment of rights. 

Assign- Contractual duties cannot be transferred except in 

contrac- consequence of a substituted contract (novation), which 

tual requires the consent of the original parties and of the 

substituted debtor. The effect is to discharge the original 

debtor from further liability, the substituted debtor taking 

his place. 

Contractual rights are now, with some exceptions, freely 
transferable by cession of actions. Such is the result of a 
tractual long process of legal development. The Roman Law never, 
hfthe ft seems, quite reached this point. For though in its latest 
Roman period an assignee was 'allowed: (1) to secure to himself 

Law; 

1 Supra, p. 226. 

8 Wessels, i. 1755; Baikie v. Pretoria Munic. [1921JT.P.D. 376; 
Qoldfoot v. Myerson [1926] T.P.D. 242. 

8 English Law seems to be moving in the same direction. Law 
Revision Committee, Sixth Interim Report (1937) Cmd. 5449. 

4 See Appendix G. For Ceylon see Jinadasa v. Silva (1932) 
34 N.L.R. 344. 



ment of 
con- 



OPERATION OF CONTRACT 247 

the benefit of the obligation, even before bringing an 
action, by giving the debtor notice of the assignment 
(Cod. 8. 41. 3) ; and (2) to sue not in the assignor's name, 
but in his own by actio utilis ' ; yet, ' it is disputed whether 
the effect of the change was to make the assignee sole 
creditor, or whether, in relation to the debtor, he did not 
still legally continue a mere agent, enforcing by action in 
his own name the right of another ; in other words, whether 
a genuine assignment by which the assignee simply and 
actually stepped into the shoes of the assignor, who simul- 
taneously dropped altogether out of the matter, was 
recognized at any time in Roman Law'. 1 

This doubt does not exist in the modern law, for now : 

Roman- 

1. Contractual rights and rights arising from breach of Dutch 
contract, exceptions apart, may be ceded without the aw ' 
consent and against the will of the debtor. 2 

2. The cession can generally be effected by bare agree- 
ment without formality, 3 and without notice to the debtor ; 4 
but the law requires that the intention to effect the 
cession should be clear and beyond doubt, and that no 
further act on the part of the cedent should be necessary 
to make the cession complete; i.e. he must have done 
everything in his power to divest himself of his right of 
action. 5 

1 Moyle, Institutes of Justinian, pp. 482-3. 

2 Sande, De actionum cessione, cap. ix, sec. 5 ; Peterson's Exors. 
v. Webster, Steel & Co. (1881) 1 S.C. at p. 355 per De Villiers C.J. 
Can a portion of a debt be ceded ? 54 S.A.L.J. (1937), p.. 40 ; yes, 
Bezuidenhout v. Van Groan [1938] T.P.D. 331; no, Spies v. 
Hansford [1940] T.P.D. 1 ; and see Hiddingh v. Commissioner for 
Inland Revenue [1941] A.D. at p. 120. 

3 Sande, cap. ii, sec. 1 ; Wright & Co. v. Colonial Oovt. (1891) 8 
S.C. at p. 269; Cutting v. Van der Hoven [1903] T.H. at p. 117; 
Ex parte Narunsky [1922] O.P.D. 32; Est. Greenberg v. Rosenberg 
& Greenberg [1925] T.P.D. at p. 929; Jeffery v. Pollak [1938] 
A.D. at p. 22. 

4 Voet, 18. 4. 5; Jacobsohn's Trustee v. Standard Bank (1899) 
16 S.C. at p. 203 ; Lovell v. Paxinos [1937] W.L.D. 84. 

5 Mills & Sons v. Benjamin Bros.' Trustees [1876] Buch. 115; 
Wright & Co. v. Colonial Government, ubi sup. ; McGregor's 
Trustees v. Silberbauer (1891) 9 S.C. 36; Van de Merwe v. Franck 
(1885) 2 S.A.R. 26; Graaf-Reinet Board of Exors. v. Est. Erlank 
[1933] C.P.D. 41 ; Jeffery v. Pollak, ubi sup. at p. 24. 



248 THE LAW OF OBLIGATIONS 

' Where a right of action exists independently of any written 
instrument, the cession of such right may be effected without 
corporeal delivery of any document. Where, however, the sole 
proof of a debt is the instrument which records it, the cession 
of the debt is not complete until the instrument is delivered to 
the cessionary. ... I am not prepared to say that circumstances 
may not arise under which a cession of action may be completed 
without delivery of the instrument which constitutes the proof 
of the debt. The document may, for instance, be lost, and, in 
such a case, if the cedent has done everything in his power 
to divest himself of his right of action, there is no reason why 
the cession should not be held to be complete. But among the 
things required, under such circumstances, to be done by the 
cedent would certainly be the notification of the cession to 
the debtor.' (De Villiers C.J. in Jacobsohris Trustee v. Standard 
Bank, 16 S.C. at pp. 203-4.) 

3. The effect of cession is to substitute the cessionary 
in place of the cedent as creditor in respect of the obliga- 
tion ceded, 1 and to vest in the cessionary all the cedent's 
rights against the debtor. 2 

4. Therefore, the debtor after cession is no longer liable 
to the cedent and cannot be required by him to perform the 
contract, nor be sued by him in case of non-performance. 3 
After notice or knowledge of the cession, the debtor must 

1 Pick v. Bierman (1882) 2 S.C. at p. 34. By the constitution 
Per diversas (Cod. 4. 35. 22), commonly known as the lex Ana- 
stasiana, enacted by the Emperor Anastasius (A.D. 506) and con- 
firmed by Justinian (Cod. 4. 35. 23), a cessionary of a debt could 
not recover from the debtor a sum in excess of that for which he 
had acquired the debt from the cedent. Gr. 3. 16. 14; Voet, 18. 4. 
18. The lex Anastasiana has been declared to be obsolete in 
South Africa. Seaville v. Colley (1891) 9 S.C. 39 (Cape) ; Machattie 
v. Filmer (1894) 1 O.K. 305 (Transvaal). It seems doubtful whether 
and how far it obtains in Ceylon. Pereira, p. 654. 

2 Sande, cap. ix, sec. 1. The intention, however, may be not to 
transfer the debt, but merely to indicate a source from which the 
creditor of the so-called assignor may receive payment. The 
civilians call this assignatio. It must be distinguished on the one 
hand from delegatio, which is a species of novation (infra, p. 278), 
and on the other hand from cession of a right of action, which is 
the case dealt with in the text. Assignatio does not discharge the 
assignans nor render the asaignatus liable. Gr. 3. 44. 5; V.d.K. 
837-8. 

3 Voet, 18. 4. 15; Pick v. Biertnan, ubi sup. 



OPERATION OF CONTRACT 249 

satisfy the cessionary and not the cedent, 1 whose right of 
action is extinguished by the cession. 2 If after notice, or 
knowledge, 3 of the cession, the debtor chooses to pay the 
cedent, he does so at his risk. 

5. If, however, the debtor, in ignorance of the cession, 
satisfies, or is released from, 4 the claim of the cedent, his 
liability is at an end. 5 For this reason, at all events, it 
is matter of prudence for the cessionary at the earliest 
possible moment to acquaint the debtor with the fact of 
the cession. 

6. Whether, in the event of the creditor ceding the 
same debt to successive cessionaries, a second cessionary 
who had anticipated a first cessionary in giving notice to 
the debtor would be preferred to the first cessionary was 
a disputed question. Opinion now inclines to a negative 
answer; viz. that priorities are determined not by date 
of notice but by date of cession. 6 But a debtor who has 
in good faith satisfied a claim of which he had notice 
is not liable to a prior assignee of whose right he was 
ignorant. 

1 V.d.L. 1. 18. 1. Knowledge is enough without notice. Van 
der Heever's Est. v. Greyling (1907) 24 S.C. 414. 

2 Keeler v. Butcher & Sons (1907) 28 N.L.R. at p. 48. 

3 Van der Heever's Est. v. Greyling, ubi sup. 

4 Bijnk, O.T., I. 51. 

8 Voet, ubi sup. ; Morkel v. Holm (1882) 2 S.C. at p. 65 ; Keeler 
v. Butcher & Sons, ubi sup. at p. 49. The same result follows, 
according to Voet, if the debtor satisfies the debt by bonafide pay- 
ment to the cedent even with knowledge of the cession, but before 
notice from the cessionary. The reason given by Voet is not entirely 
satisfactory 'cum utique ei sol vat cui obligatus fuit, nee ipsi fac- 
tum tertii obesse queat quamdiu denunciatio haud intercessit'. 
But he has said immediately above : ' Plane nostris moribus circa 
cessas actiones magis placuit jus omne cedentis cessione extinctum 
esse. ' 

6 This is the opinion of Voet (18. 4. 17) dissenting from Sande, 
de act. cess., cap. xii, sec. 8. See Morkel v. Holm (1882) 2 S.C. 57; 
Wright & Co. v. Colonial Government (1891) 8 S.C. 260. In Hanau 
& Wicke v. The Standard Bank (1891) 4 S.A.R. 130 the Court pre- 
ferred Sande to Voet. This was a case between two claimants to 
certain syndicate shares. No question arose as between either 
party and the debtor. In Mackenzie v. Bilhrough [1906] T.H. at 
p. 125, Wessels J. expressed a preference for the principle laid 
down by Voet. 



250 THE LAW OF OBLIGATIONS 

7. A cessionary cannot, generally, be in a better position 
than his cedent. 1 Therefore all defences which might have 
been pleaded against the cedent at the date of cession may 
equally be pleaded against the cessionary. 2 

8. Generally speaking, any right may be ceded which 
is transmitted by the death of the party entitled. This rule 
excludes penal actions ex delicto, in particular the actio 
injuriarum, but there is no rule that actions ex delicto in 
general are not assignable. 3 It excludes cases in which the 
debtor's duty of performance does not extend beyond the 
person of the creditor, and the debtor, therefore, may 
decline to recognize as entitled any other than the creditor 
in person (delectus personae).* A creditor may disable him- 
self by the terms of the contract from ceding his right 
(pactum de non cedendo), so that 'the right which the 
creditor obtains, being circumscribed by the terms of his 
agreement with the debtor, becomes by the agreement 
between the parties a strictly personal right, and cannot 
be ceded'. 5 Nor can a right to aliments, i.e. an allow- 
ance for maintenance and support, be ceded. 6 With these 

1 Anderson's Assignee v. Anderson's Exors. (1894) 11 S.C. at 
p. 440; Voet, 18. 4. 13; Biggs v. Molefe [1910] C.P.D. 242; Yates 
v. Aukland Park Sporting Club efc Roberts [1915] W.L.D. 55; 
Sampson v. Union and Rhodesia Wholesale Ltd. [1929] A.D. at 
p. 482. 

2 Sande, cap. xiii. At all events 'exceptiones in rem' may be so 
pleaded (sec. 2), such as 'compensation'. Smith v. Howse (1835) 
2 Menz. 163 ; Walker v. Syfret N.O. [1911] A.D. at pp. 160 and 162. 
The case of National Bank v. Marks & Aaronson [1923] T.P.D. 69 
is not inconsistent with this, for the debt was illiquid and there- 
fore there was no compensation. 

3 Sande, cap. v, sees. 1, 2, and 11. Personal servitudes cannot 
be ceded. Eastern Rand Exploration Co. v. Nel [1903] T.S. at p. 51 ; 
Willoughby''s Consolidated Co. v. Copthall Stores [1913] A.D. at 
pp. 282-3 per Innes J. 

4 Cullinan v. Pistorius [1903] O.R.C. at p. 38; Deutschmann v. 
Mpeta [1917] C.P.D. at p. 81. 

6 Paiges v. Van Ryn Gold Mines Estates Ltd. [1920] A.D. at 
p. 616. In this case the Court held that an agreement, whereby an 
employee undertook not to cede or assign wages due to him with- 
out the consent of his employer, could be raised by the employer 
as a defence to an action by a cessionary to recover the amount of 
wages ceded to him by the employee. 

8 Schierhout v. Union Qovt. [1926] A.D. at p. 291. 



OPERATION OF CONTRACT 251 

exceptions, it seems that all contractual rights may be 
ceded whether before or after breach, whether arising out 
of liquid or illiquid claims, whether obligations to give 
or obligations to do. Contrary to the Roman Law, the 
Roman-Dutch Law permits the transfer of a thing in 
litigation (res litigiosa). 1 

9. A cession may be absolute or by way of charge. If 
a cession is intended to take effect merely in securitatem 
debiti, it will be so construed, though in terms absolute, 
and dominium will remain with the cedent. 2 

It has been said that, exceptions apart, a cession 
action can be effected by bare agreement. The prin- required 
cipal exceptions are: (1) negotiable instruments (which are "* some 
transferred by delivery, or, if not payable to bearer, by 
delivery and endorsement) ; and (2) the transfer of shares 
in companies which are commonly regulated by statute. 

By operation of law, contractual rights are transmitted Trans- 
on insolvency and death. 3 The effect of sequestration of 
the estate of an insolvent is 'to divest the insolvent of his 
estate and to vest it in the Master until a trustee has been 
appointed, and upon the appointment of a trustee to vest 
the estate in him ' ; 4 and every satisfaction in whole or in 
part of any obligation the fulfilment whereof was due or 
the cause of which arose before the sequestration of the 
debtor's estate, if made to the insolvent after such 
sequestration, is void, unless the debtor proves that it 
was made in good faith and without knowledge of the 
sequestration. 5 With regard to the effect of death on 
contract, it may be said that all contractual rights and 
duties, unless they be of a purely personal character, pass 
upon death to the representatives of a deceased person, 
who may sue or be sued in respect of them. In the modern 
law their liability in no case exceeds the assets of the 
estate. -J^s 

1 Supra, p. 241, n. 5. 

2 National Bank of S. A. v. Cohen's Trustee [1911] A.D. 235. 

8 Also by marriage in community, for which see above, p. 70. 
4 Insolvency Act, 1936, sec. 20 (1) (a). 
6 Ibid., sec. 22. 



252 THE LAW OF OBLIGATIONS 

SECTION II 

The Duty of Performance 

' Stare ^ The duty of a party to a contract is faithfully to per- 
form his part with the care and diligence proper in the 
circumstances, and with due regard to any rules of law 
or lawful customs by which the character of the perform- 
ance due from him is determined. 

Generally Generally speaking, the parties to a contract may in- 
makef eS corporate in it any terms they please, and each is bound 
their own to the other to do what he has undertaken. When the 
parties have expressly agreed, and the object contem- 
plated is not unlawful, the function of the Court is limited 
to interpreting the terms expressed. The rules of inter- 
pretation form the subject of a later chapter. 

But the Generally, the Court will not make a contract for the 
impose^ P ar ^ies. They must make up their minds what they 
terms, mean, and they should express their meaning clearly and 
fully. But within limits law and usage operate to deter- 
mine the content of the contract and therefore the duties 
of the parties. 

abso- If a rule of law is imperative the parties must conform 

lutely, j. Q ^ They cannot contract themselves out of an express 

legal duty. But if, as often happens, the law merely lays 

down rules which are to govern a particular transaction 

in the absence of agreement to the contrary, it is open to 

the parties to modify or to depart from the rule at their 

or in the discretion, for ' conventio vincit legem '. The same remark 

contrary applies to customs, whether local or relating to some 

agree- particular trade or business. They bind only so far as the 

parties have not seen fit to exclude their operation. 

In this chapter we shall speak of various rules of law 
by which the duty of performance is determined where the 
parties have not departed from them by express agreement. 
All contracts are commonly referred to one or other of 
two classes: viz. (a) contracts to give, (6) contracts to do 
or to abstain from doing. 1 But it is evident that both of 

1 Gr. 3. 39. 8; V.d.L. 1. 14. 6; Pothier, Traitd des Obligations, 
sec. 53. 



OPERATION OF CONTRACT 253 

these duties may be incumbent upon the same person 
under the same contract. Thus, if I agree to make a 
cabinet according to specifications and to deliver it when 
made to a purchaser, I incur an obligation first to do and 
then to give. The distinction is of no great importance. 
The substantial thing is that, whatever the nature of the 
contract, I must carry it out according to its terms. 1 

In the Latin texts of the Roman and of the Roman- Perform- 
Dutch Law the words 'solvere' 'solutio' are used in an ance- 
extended sense to express the performance of any con- 
tractual duty. ' Solvere dicimus eum qui fecit quod facere 
promisit.' 2 The use of the Dutch 'betaling' 3 and of the 
English 'payment' in the same wide sense can only be 
justified as a permitted abuse of language. We shall, so 
far as possible, limit the word 'payment' to a payment of 
money. The principles applicable to a money payment 
will, however, in many cases be found to be no less 
applicable to any other performance of a contractual duty. 

Performance may be made either by the debtor in By whom 
person or by his agent acting within the scope of his ancemay 
authority. Indeed, performance may be made by an be made, 
independent third party in the name of the debtor, even 
without his knowledge and against his will, with the result 
that the debtor will be discharged from liability, unless the 
performance is of such a personal character that it cannot 
be effectually made except by the debtor in person. 4 This 
means, in effect, that performance of this character is 
permitted when the debtor's obligation consists in giving, 
but seldom when it consists in doing. 5 A person under Persons 
disability cannot discharge a legal debt without his tutor's 

1 Voet, 46. 3. 8. 

2 Dig. 50. 16. 176: Solutio est naturalis praestatio ejus quod 
debetur. Voet, 46. 3. 1. 

3 V.d.L. 1. 18. 1: Betaaling, dat is de dadelijke vervulling van 
het geen men zig verpligt heeft te geven of te doen. 

4 Gr. 3. 39. 10 ; Voet, 46. 3. 1 ; Rolfes Nebel & Co. v. Zweigerihajt 
[1903] T.S. at p. 195; or unless the transaction is, in effect, not 
intended as a discharge of the debt, but as a purchase of the 
creditor's right of action. Mitchell Cotts & Co. v. Commissioner of 
Railways [1905] T.S. 349. B V.d.L. ubi sup. 



254 THE LAW OF OBLIGATIONS 

or curator's authority. If he does so, the sum of money or 
other thing alienated can be recovered by vindication, if 
still extant ; if it has been consumed, the debt is deemed to 
be discharged. 1 This only applies, however, if the debt in 
minors, question springs from a valid civil obligation. If a minor 
has contracted without his tutor's authority, the thing 
married delivered, or its value, can always be recovered. 2 A married 
woman, being in law a minor and unable to contract 3 
without her husband's authority, is also unable to make 
a valid payment. Consequently, money paid by her may 
be recovered by the husband stante matrimonio, or by 
herself after its dissolution. She may even recover money 
paid after the dissolution of the marriage in respect of a 
debt contracted during its continuance, provided that she 
made the payment in ignorance of her rights and under 
the mistaken idea that she was effectively bound. 4 
To whom Payment may be made to the creditor or his nominee 
ancemay or * anv P erson * whom payment is agreed to be made, 
be made, such person being regarded as the creditor's mandatary 
to receive payment. 5 Payment may in any case be made 
to the creditor's agent, if to receive payment falls within 
the scope of his authority, or fell within it and the debtor 
has not received notice that the authority is revoked. 6 
Payment made to a person who has no authority to re- 
ceive payment on behalf of the creditor will become good 
ex post facto if the creditor ratifies the transaction or if the 
money paid is applied to his use. 7 Payment to servants is 
valid, if it is within their authority to receive it. 8 Pay- 
ment of a debt due to a minor is validly made to his 
guardian, unless the debt is of large amount, in which 
case an order of Court is desirable. 9 If the minor's father 

1 Gr. 3. 39. 11 ; Voet, 4. 4. 21 and 46. 3. 1. 2 Voet, loc. cit. 

3 This is the general rule. For exceptions see supra, pp. 65 ff. 
and infra, Appendix D. 4 Voet, 12. 6. 19. 

8 Gr. 3. 39. 13 ; Voet, 46. 3. 2 ; V.d.L. ubi sup. Such a person is 
said to be solutionis causa adjectus. Dig. 45. 1. 56, 2. Cf. Mutual 
Life Insurance Co. of New York v. Hotz [1911] A.D. at p. 566. 

8 Voet, 46. 3. 3. 7 V.d.L. ubi sup. 8 Voet, 46. 3. 4. 

9 Gr. 3. 39. 14; Voet, 4. 4. 22 (ad fin.); Holl. Cons. i. 167; 
vi. 127. 



OPERATION OF CONTRACT 255 

is alive, payment to him as natural guardian may be made 
without having him first confirmed as guardian by the 
Court. 1 Payment to a married woman of a debt due to 
her or to her husband, made without his knowledge or 
against his will, is invalid, unless it has been applied to 
his use, or unless it is of small amount and may be sup- 
posed to have been applied by the wife to the purposes of 
the household. 2 Payment may safely be made to a fidu- 
ciary pending the condition of a fideicommissum. 3 In the 
event of the creditor's death payment must be made to 
(his heirs 4 and now to) his personal representatives. When 
two persons claim payment of the same debt, payment 
cannot safely be made to either. The debtor should 
deposit the money in Court, or if he pays to one of the 
rival claimants, take from him security against the claim 
of the other. 5 Payment to a creditor's creditor, apart from 
express authority, can only be justified, if at all, on the 
ground of negotiorum gestio. But a sublessee may pay 
a head lessor to avoid an execution upon his own goods. 
Payment made in good faith to an invading enemy under 
pressure of vis major effects a discharge. 6 

When a debtor is bound by contract to deliver a thing Obligatio 
of a certain genus, he must deliver a thing of the kind of geni 
average quality. 7 

When a sum to be paid under a contract is stated in 
foreign currency, in the absence of provision to the con- 
trary, payment may (must ?) be made in the currency of 

1 See Van Rooyen v. Werner (1892) 9 S.C. at p. 430; supra, 
p. 37. 

2 Groen, ad Gr. 3. 39. 14; Voet, 23. 2. 50 and 46. 3. 5; Neo- 
stadius, Supr. Cur. Decis., no. 88. Of course, if the marital power 
is excluded, a married woman is competent to receive payment of a 
debt due to herself. 3 Voet, 36. 1. 63 and 46. 3. 5. 

4 V.d.L. ubi sup. 

5 Voet (46. 3. 6) says 'consignandum ac deponendum in usum 
victoris'. Interpleader with payment into Court is the modern 
equivalent. 6 Voet, 46. 3. 7. 

7 Voet, 46. 3. 9 (ad fin.) ; Groen. de leg. abr. ad Dig. 17. 1. 52. But 
Brunneman, ad loc., says: 'In obligatione generis liberatur quis 
praestando vilissimum. Groenewegen hanc legem putat abolitam, 
sed nullo fundamento.' 



256 



THE LAW OF OBLIGATIONS 



Part per- 
formance. 



Alterna- 
tive per- 
form- 
ances. 

Sub- 
stituted 
perform- 
ance. 

Effect of 
perform- 



Proof of 
payment. 



the locus solutionis at the rate of exchange ruling when 
payment falls due. 1 

The creditor may, if he chooses, demand, but the debtor 
is not compellable to render, nor the creditor to accept, 
part performance. 2 Part performance, if accepted, pro 
tanto extinguishes the debt and in the case of a money 
debt prevents pro tanto the further accrual of interest. 3 

When one of two performances is agreed to be rendered 
in the alternative, the choice rests with the debtor, unless 
it has been expressly given to the creditor. 4 

Substituted performance may be made with the consent 
of the creditor, but not otherwise. 5 It has the same effect 
as performance of the thing originally agreed to be done. 

The effect of performance is to discharge from further 
liability the principal debtor, his co-debtors, if any, and 
all personal sureties and real securities for performance. 6 
But if one of several co-debtors, or a surety, pays the 
debt, he may demand from the creditor a cession of actions 
against other parties liable and thus keep the debt alive. 7 
If the thing given in payment, or one of several things 
given in payment, is recovered from the creditor by a 
third party (eviction), the payment is rendered void, and 
all former rights revive, unless the creditor prefers to sue 
the debtor for damages on the ground of eviction. The 
same result follows if the debtor has fraudulently mis- 
represented the value of the property given in settlement. 8 

Payment may be proved by any lawful evidence and, 

1 Barry Colne & Co. v. Jackson's Ltd. [1922] C.P.D. 372; 
Bassa Ltd. v. East Asiatic (S. A.) Co. Ltd. [1932] N.P.D. 386; 
Joffe v. African Life Assurance Ltd. [1933] T.P.D. 189. May pay- 
ment be made in the foreign currency ? Barry Colne & Co. v. 
Jackson's Ltd. leaves the question open. See Dicey (5), Rule 181. 
Legal tender in South Africa is defined by Act No. 31 of 1922, 
sec. 3, and in Southern Rhodesia by Act No. 32 of 1938, sees. 13, 15. 

2 Gr. 3. 39. 9 ; Voet, 46. 3. 11 ; V.d.L. ubi sup. 
8 V.d.L. 1. 18. 1. 

4 Dig. 18. 1. 25 pr. ; 23. 3. 10. 6 ; Voet, 45. 1. 22 ; V.d.L. 1. 14. 9. 
May the person who has made his election recall it ? Voet, loc. cit. 
6 Gr. 3. 42. 4-5 ; Voet, 46. 3. 10. 

6 Voet, 46. 3. 13 ; V.d.L. 1. 18. 1. 7 V.d.L. ubi sup. 

8 Voet, ubi sup. 



OPERATION OF CONTRACT 257 

in particular, by producing a receipt for the money, signed 
by the creditor or his agent. 1 A creditor is bound to give 
a receipt, and a debtor is not otherwise compellable to 
pay. 2 When yearly or half-yearly (or other periodic) pay- 
ments are due from the debtor, three several receipts, for 
the last three payments, furnish presumptive evidence 
that earlier payments have been duly made. 3 

When several distinct debts are due from the same Appro- 
debtor to the same creditor, questions may arise as to the payments 
appropriation of payments. The rules relating to this 
subject are stated by Voet 4 as follows : (1) The debtor may, 
in general, appropriate the payment to any debt he chooses, 
but not to capital before interest, because capital and 
interest constitute a single debt and (unless so agreed) a 
creditor cannot be required to accept payment by instal- 
ments. 5 Failing appropriation by the debtor (2) the 
creditor appropriates; 6 but he must do so as he would 
were he himself the debtor, 7 and therefore not to : (a) a 
disputed debt ; (6) a debt not yet accrued due ; (c) a debt 
due naturally and not civilly; (d) a debt for which the 
debtor is surety in preference to a debt due from him as 
principal. 8 Appropriation must be made in re praesenti, 9 
i.e. at the moment of payment, so as to give an opportunity 
to the creditor to refuse to accept, or to the debtor to 
refuse to pay. 10 

If a payment is made to a person who has a claim in 
his own name and also in the name of another, in the 

1 Welch v. Harris [1925] E.D.L. 298 ; Voet, 46. 3. 15. 

2 Voet, ubi sup.; Van Noorden v. De Jongh (1892) 9 S.C. 296; 
Liebenberg v. Loubser [1938] T.P.D. 414; Secus, English Law, 
Jenks, Art. 256. 

8 Voet, 46. 3. 14. 

4 Voet, 46. 3. 16; Gr. 3. 39. 15; V.d.L. 1. 18. 1 (ad fin.); Wessels, 
i. 2284 ft. 5 Wessels, i. 2290. 

6 Stiglingh v. French (1892) 9 S.C. 386; Macrae v. National 
Bank of S. A. [1927] A.D. 62. The best evidence of appropriation 
by the creditor is a statement to that effect in the receipt. Scott v. 
Sytner (1891) 9 S.C. 50 per de Villiers C.J. 

7 Dig. 46. 3. 1-2. 8 Gr. ubi sup. 

9 Statim atque solutum est, seu dum solvitur. Voet, ubi sup. 
10 Dig. 46. 3. 2 ; Cod. 8. 42 (43). 1 ; Stiglingh v. French, ubi sup. 

4901 a 



258 THE LAW OF OBLIGATIONS 

absence of expression to the contrary the payee is sup- 
posed to apply the payment to his own claim, for charity 
begins at home ' dum ordinata charitas a se ipsa incipit ' j 1 
(3) Failing appropriation by debtor or creditor, the law 
appropriates the payment as follows: viz. (a) to interest 
before principal; (6) to the debt which the debtor at the 
time of payment is legally compellable to pay rather than 
to a merely natural obligation ; and if more than one debt 
is of this nature, then (c) to the debt which lays the 
heaviest burden on the debtor, i.e. to that debt which it 
is most in his interest to discharge ; 2 and subject thereto 

(d) to a debt due from him as principal in preference 
to a debt due from him as surety; and subject thereto 

(e) to the debt which is earlier in time; 3 and in case of 
debts of equal date, finally (/) to all such debts propor- 
tionately to their amount. 4 

Interest. The subject of payment suggests the subject of interest. 
This may be either agreed between the parties, or allowed 
by the law as damages if one or other party is in default 
(damage-interest). As regards the legal rate of interest, 
Grotius says that ordinary citizens were allowed to stipu- 
late for one-sixteenth, i.e. 6J per cent, per annum. 5 Mer- 
chants, by the Perpetual Edict of 1540 (Art. 8), enjoyed 
the privilege of stipulating for interest up to twelve per 
cent. 6 

In South Africa it was formerly held that there was no 
general legal rate of interest and that no agreed rate of 
interest could be pronounced usurious, except in view of 
the circumstances of the particular case ; 7 but now the 

1 Voet, ubi sup. 

2 Watermeyer's Exors. v. Watermeyer's Exor. [1870] Buch. 69; 
Wilhelm's Trustee v. Shepstone (1878) 6 N.L.B. (O.S.) 1 ; Van Wyk 
v. Leo [1909] T.S. at p. 795. 

3 Voet, ubi sup. ; Scott v. Sytner (1891) 9 S.C. 50. 

4 Gr. 3. 39. 15 ; Voet, ubi sup. 

6 Gr. 3. 10. 10 (ad fin.); Loen. Decis. Gas. 21; Voet, 22. 1. 3; 
V.d.K. 545. 

6 1 Q.P.B. 317. Van der Keessel (Th. 547) says that this 
privilege was disused so early as 1590. 

7 Dyason v. Ruthven (1860) 3 S. 282 ; Reuter v. Yates [1904] T.S. 
855; Cloete v. Roberts (1903) 20 S.C. 413. The law is the same in 



OPERATION OF CONTRACT 259 

Usury Act, 1926, defines the permitted rates of interest 
on loans of money and the sum recoverable upon any 
such contract. The rule of the Roman-Dutch Law pro- 
hibiting compound interest 1 is no longer in force ; 2 but it Corn- 
is still law that the amount of interest recoverable in any 
one action (simul et semel) cannot under any circumstances 
exceed the amount of the principal. 3 

In the absence of agreement, no interest can be claimed No 
except when the law allows interest by way of damages. 4 
Where interest has been agreed to be paid, but no specific except by 
rate of interest has been fixed, the current rate of interest men fc. 
is payable. This is determined, Voet says, prima facie, by 
the lex loci contractus. 5 The mere payment of interest 
for several years without any previous agreement in that 
behalf does not confer any right to have such payment 
continued. 6 A continued payment of less than the agreed 
interest may be construed as a tacit agreement for the 
lesser amount, but non-payment is not evidence of an 
agreement not to pay. 7 

The obligation to pay interest is determined: (1) by How the 
release ; 8 (2) by payment of the principal debt (but without P ay 10 

Ceylon. Pulle v. Candoe (1875) Ramanathan, 1872-6, p. 189 ; Peria 
Carpen v. Herft (1886) 7 S.C.C. 182. 

1 Gr. 3. 10. 10 (ad fin.) ; Voet, 22. 1. 20. 

2 Natal Bk. v. Rwanda [1907] T.H. 155; Ryan & Burton v. 
Thornton [1912] E.D.L. at p. 173. In a recent case the Supreme 
Court of Ceylon arrived at the same conclusion by a majority of 
three to two. Marikarv. Supramanian Chelliar ( 1943) 43 N.L.R. 409. 

3 Voet, 22. 1. 19; V.d.K. 549; Roberts v. Booy (1884) 4 E.D.C. 
22; Van Diggelen v. Triggs [1911] S.R. 154. See now the Union 
Usury Act 1926, sec. 2, for Southern Rhodesia, R.S. cap. 228, 
and for Ceylon, R.S. capp. 66, 67. In Union Qovt. v. Jordaan's 
Exor. [1916] T.P.D. 411 it was said that no interest runs after 
the amount is equivalent to the amount of the capital. See also 
Solomon v. Jearey [1921] C.P.D. 108. Sed quaere. Groen., de leg. 
abr. ad Cod. 4. 32. 27. 1 ; Voet, ubi sup. ; V.d.K., Dictat. ad Gr. 
3. 10. 10. 

4 Havemann v. Oldacre Bros. (1905) 26 N.L.R. 56. 

5 Voet, 22. 1. 8: ad earn quantitatem obligatio usurarum 
contracta intelligitur, quae ex more regionis in qua conventio 
celebrata praestari solet. 

6 Voet, 22. 1. 13. 7 Voet, 22. 1. 14. 

8 Voet, 22. 1. 15. By the Roman -Dutch common law rent is ipso 
jure remitted in case of hostile incursion and other calamities, but 



260 



THE LAW OF OBLIGATIONS 



interest is 
deter- 
mined. 



Tender. 



Rules of 
law as to: 
(a) place 
of pay- 
ment; 



prejudice to the right to recover interest already accrued 
due) ;* (3) by judgment. A claim for damage-interest is 
merged in the judgment, but according to Voet this does 
not apply to interest stipulated for in a contract. 2 

'Tender' is an offer of payment, which, to be effective, 
'must be made to a person who is competent and author- 
ized to receive payment and must be in strict conformity 
with the terms of the original contract'. 3 Voet says that a 
mere tender of principal and interest does not prevent 
interest continuing to run unless accompanied by con- 
signation and deposit. 4 In the modern law consignation 
is not in use. The same effect now results from simple 
tender, if regularly made, and a fortiori from payment 
into Court. 5 

The law lays down special rules as to place and time of 
payment by which, in the absence of contrary expression, 
the parties are bound. As regards place, performance 
must prima facie be made where the obligation was con- 
tracted, unless another place of performance has been 
expressly or impliedly agreed. 6 But, where a thing is in 
question, the debtor is not as a rule bound to bring it to 
the house of the creditor. Such at least is the opinion of 
Voet, who says that others think differently. 7 It follows 
that in the absence of agreement or clear proof of custom 
to the contrary it is incumbent on the creditor, even when 
the parties are living in the same place, to seek out the 
debtor for payment, 8 and the place for delivery of goods 

the law does not, as a rule, give a similar indulgence in the matter 
of interest. 1 Gens. For. 1. 4. 4. 30. 

2 Voet, 22. 1. 16. 

3 4 Maasdorp, p. 171 ; Wessels, i. 2332 ff. ; infra, p. 273. 

4 Voet, 22. 1. 17. For consignation vide infra, p. 274. 
6 Infra, p. 273. 

6 Gr. 3. 39. 9, and Schorer ad loc. ; Voet, 46. 3. 12 ; Windscheid, 
ii. 282; Collet v. Eva [1926] C.P.D. 187; Walker v. Taylor [1934] 
W.L.D. at p. 114; Hazis v. Transvaal & Delagoa Bay Investment 
Co. [1939] A.D. at p. 391 (per Stratford C.J.); (Ceylon) Haniffa v. 
Ocean Accident Corp. (1933) 35 N.L.R. 216. 

7 Voet, ubi sup. See also Schorer ad Grot. loc. cit., and Van 
Leeuwen, 4. 40. 6; Cens. For. 1. 4. 32. 14-15; Segal v. Mazzur 
[1920] C.P.D. at p. 640. 

8 Shapiro v. Kotler & Rabinoivitz [1935] W.L.D. 60. But see 



OPERATION OF CONTRACT 261 

sold is the place where they were when sold, 1 and if goods 
are to be manufactured is the place of manufacture. 2 In 
the absence of agreement to the contrary services must be 
paid for in the place in which they are rendered. 3 

Next as regards time : if no time for performance is (6) time 
expressly or impliedly agreed, performance falls due imme- 
diately, 4 i.e. after a reasonable time. 5 If the contract is 
expressed to take effect from a certain day or subject to a 
suspensive condition, performance is not due until the day 
arrives or the condition is satisfied. 6 When a day is named 
for performance the debtor is not in default until the day is 
wholly past, for he has the whole day for performance 7 
(within business hours ?) 8 The same principle applies when 
a thing is to be done in a named month or year. 9 Some- 

Northmore v. Scala Cinemas (Pty) Ltd. [1936] T.P.D. 280. The 
books are much divided on the question whether it is the duty 
of the debtor to seek out the creditor or vice versa. 

1 Gilson v. Payn (1899) 16 S.C. 286. 

2 Richards, Slater & Co. v. Fuller & Co. (1880) 1 E.D.C. 1; 
OoUblatt v. Merwe (1902) 19 S.C. 373. 

3 Hornev. Williams & Co. [1940] T.P.D. 106. 

4 Dig. 45. 1. 41, 1 ; Gr. 3. 3. 51 ; Voet, 45. 1. 19 ; 46. 3. 8 ; V.d.L. 
1. 14. 9. 

6 Dig. 46. 3. 105: quod dicimus . . . debere statim solvere, cum 
aliquo scilicet temperamento temporis intellegendum est ; nee 
enim cum sacco adire debet. Federal Tobacco Works v. Barron 
& Co. [1904] T.S. at p. 485; Meyeroivitz v. Annetts [1937] N.P.D. 
140 ; and ordinarily it rests on the debtor to advance the reasons 
for the granting of delay. Fluxman v. Brittain [1941] A.D. at 
p. 296 per Tindall J.A. 

6 Voet, 46. 3. 12. 

7 Gr. 3. 3. 50; Voet, 45. 1. 19 (ad init.). 

8 Dames v. Lawlor [1941] E.D.L. at p. 132. 

9 Dig. 45. 1. 42. When a contract provides that something is to 
be done, or take place, within e.g. fourteen days from date, the 
day of date is included in making the computation, unless a con- 
trary intention is to be inferred from the circumstances of the case 
or from the language of the contract. Joubert v. Enslin [1910] 
A.D. 6; National Bank of S. A. v. Leon Levson Studios [1913] 
A.D. 213; Feigenbaum v. Mills [1929] N.P.D. 235. Thus where 
there was a policy of insurance on a schooner for a period of 
twelve months from January 14, 1857, to January 14, 1858, and 
the schooner was lost at 10 p.m. on January 14, 1858, it was held 
that the loss was not covered by the policy. Cock v. Cape of Good 
Hope Marine Assurance Co. ( 1 858 ) 3 Searle 114. But in interpreting 
Acts of Parliament, &c., the first day is excluded. Interpretation 
Act, 1910, sec. 5. 



262 



THE LAW OF OBLIGATIONS 



May per- 
formance 
be made 
before it 
is due ? 



times a stipulation as to time is implied from an agree- 
ment as to place ;* for if a place is named for performance 
enough time is understood to be allowed to enable the 
promisor conveniently to reach the place destined for per- 
formance, 2 unless it appears that the matter has been 
previously arranged so as to allow of performance taking 
place by means of agents at the place intended. 3 Even 
when a contract fixes a definite time for performance the 
Court will consider, in view of the circumstances of each 
particular case, whether the true intention of the parties 
at the time of contracting was to fix a reasonable time or to 
make time of the essence of the contract. 4 This second 
alternative is usually intended in mercantile contracts. 5 

Just as a debtor cannot be compelled to perform before 
performance falls due, 6 so it would seem reasonable that 
a creditor should not be compellable to accept performance 
before the time agreed. But there is a text in the Digest 7 
which seems to imply the contrary, for Venuleius says: 
'quod in diem debetur ante solvi potest, licet peti non 
potest'. Voet suggests that this dictum should be limited 
to the case where postponement of payment has been 
agreed upon for the exclusive benefit of the debtor. 8 It 
would not apply, for instance, where money had been lent 
at interest for a fixed period. 9 Schorer 10 admits prepay- 
ment in this case also, but it must include payment of 
future interest as well as of interest already accrued due. 
Where there is an agreement for payment by instalments 

1 Gr. 3. 3. 53. 2 Dig. 45. 1. 73 pr. 

8 Dig. 45. 1. 141, 4; Voet, 45. 1. 19. 

4 Bergl & Co. v. Trott Bros. (1903) 24 N.L.R. at p. 518 per 
Bale C.J.; Crook v. Pedersen Ltd. [1927] W.L.D. at pp. 76 ff . ; 
Olivier v. Paschke [1928] S.W.A. 116 ; Wessels, i. 2247 ff. 

6 Algoa Milling Co. v. Arkell & Douglas [1918] A.D. at p. 167 ; 
Lewis & Co. v. Malkin [1926] T.P.D. 665; Blatt v. Swakopmunder 
Bankverein [1929] S.W.A. 90. 6 Voet, 46. 3. 12. 

7 Dig. 45. 1. 137. 2 (ad fin.) ; Sande, Decis. Fris. 3. 16. 1. 

8 Dig. 50. 17. 17: in stipulationibus promissoris gratia tempus 
adicitur. So V.d.L. (1. 14. 9). 

9 Voet, 12. 1. 20 ; Van Leeuwen, 4. 40. 5 ; Gens. For. 1. 4. 32. 16 ; 
V.d.K. 542; Kelly v. Holmes Bros. Ltd. [1927] O.P.D. 29 ; McCabe 
v. Burisch [1930] T.P.D. at p. 265. 

10 Ad Grot. 3. 39. 



OPERATION OF CONTRACT 263 

a purchaser is not entitled to make premature payments 
unless, possibly, together with interest on future instal- 
ments. 1 



The Consequences of Non-performance 

In the last section we discussed the duty of performance. In what 
We are now to consider what happens if that duty is not failure to 
carried out. If a party fails to perform or fails in perform- perform ia 
ing what he has undertaken, either he can justify his 
failure or he can not. If he can, he incurs no liability. 
If he cannot, he has broken his contract and must suffer 
the consequences. 

The grounds on which non-performance is justified 
scarcely, perhaps, admit of formal classification. They 
include every case in which a defendant can plead that 
the contract on which action is brought is void or void- 
able ; void (e.g.) on the ground of mistake, impossibility of 
performance, 2 illegality; voidable (e.g.) on the ground of 
fraud, or minority. Another case is the operation of a 
suspensive condition. If a person has undertaken to per- 
form in a certain event, it is plain that, unless and until 
that event happens, performance cannot be demanded. 3 

1 Bernitz v. Euvrard [1943] A.D. 595. 

2 Impossibilium nulla obligatio est, Dig. 50. 17. 185. Impossi- 
bility cannot be assigned to any one place in the theory of con- 
tract. It may be of such a character as to negative any serious 
intention to contract (supra, pp. 213, 223); or may operate to 
make the contract void ab initio (supra, p. 223); or may arise 
subsequently to the contract, in which case it will sometimes 
discharge the promisor from liability (infra, p. 221). When per- 
formance is impossible ab initio, the general rule is that if 
the impossibility is absolute (i.e. impossible for everybody) the 
promisor incurs no liability ; if it is relative (impossible for the 
promisor, not for everybody) he will be bound. Dig. 45. 1. 137, 5: 
ei ab eo stipulatus sim, qui efficere non possit, cum alio possibile 
sit, jure factam obligationem Sabinus scribit. But even in the 
first case the promisor will be bound, if he has contracted in terms 
which import a warranty that performance is possible. See on 
the whole subject Moyle, Institutes of Justinian (5th ed.), p. 411 ; 
Windscheid, ii. 264. 

8 Unless he himself deliberately and in bad faith prevents the 
fulfilment of the condition. Dig. 45. 1. 85, 7: Quicumque sub 



264 THE LAW OF OBLIGATIONS 

Finally, there is the question, often difficult, of the effect 
of default on the part of the other contracting party. 
Where performances are due from both parties to a con- 
tract, the duty of performance by one is usually condi- 
tional upon performance by the other. It may be that 
one is to perform before the other, or that both are to 
perform concurrently. In the first case performance on 
the one side is said to be a condition precedent of the duty 
of performance on the other. In the second case each per- 
formance is a concurrent condition of the other. Thus, if 
I am to buy your house provided that you first put it in 
repair, if you fail to repair I am not bound to buy. Again, 
in an ordinary contract of sale, in the absence of agreement 
to the contrary, payment and delivery are concurrent 
conditions. I need not deliver, unless you are ready and 
willing to pay. You need not pay, unless I am ready and 
willing to deliver. 1 If the one party sues for delivery 
without tendering payment, or for payment without 
tendering delivery, the other party is under no liability 
to perform. Once more : I am not bound to continue ready 
and willing to perform, if you on your side make it plain 
that you do not intend to do your part. Therefore, if you 
refuse to perform, or disable yourself or me from per- 
forming, or announce your intention not to perform, I on 
my side am released from the duty of performance. 2 If 
you do not wholly decline to perform, but perform badly 
or incompletely, it is a question of fact in each case whether 

condicione obligatus curaverit ne condicio existeret nihilo minus 
obligator. Bowern v. Oowan [1924] A.D. 550; Macduff & Co. v. 
Johannesburg Consolidated Investment Co. [1924] A.D. 573 ; Mowlem 
v. Morris [1930] E.D.L. at p. 97 ; Lorenz v. RaUnowitz [1933] C.P.D. 
at p. 148 ; Koenig v. Johnson & Co. [1935] A.D. 262. 

1 Trichardt v. Mutter [1915] T.P.D. at p. 178; cf. Wolpert v. 
Steenkamp [1917] A.D. 493; Landau v. City Auction Mart [1940] 
A.D. 284. But in South Africa the general principle is tempered by 
the equitable doctrine that no one may be unjustly enriched at 
another's expense. Hauman v. Nortje [1914] A.D. 293 ; Ambrose & 
Aitken v. Johnson & Fletcher [1917] A.D. at p. 343; Spencer v. 
Gostelow [1920] A.D. 617; Viljoen v. Visser [1929] C.P.D. 473; 
Kam N. O. v. Udurn [1939] W.L.D. 339; [1940] W.L.D. 137. 

2 Bergl & Co. v. Trott Bros. (1903) 24 N.L.R. at p. 515 ; McCabe 
v. Burisch [1930] T.P.D. 261. Repudiation before performance 



OPERATION OF CONTRACT 265 

your failure in performance will justify me in refusing to 
perform. As a rule I am not released from my duty of 
performance unless your failure in performance amounts 
in effect to a repudiation by you of your duty under the 
contract, or is a failure to perform a vital term of the 
agreement ; l or, to use the language of English Law (not 
unknown to the Law of South Africa), unless the breach of 
contract is a breach of a condition, not merely a breach of 
warranty. 2 

In the absence of any of the above excuses for non- Breach 
performance a party who fails to perform or who fails in tracTand 
performance has broken his contract and incurs the its con- 
consequences which the law attaches to his default. 

The consequences to the defaulting party of breach of 
contract are principally two: (1) He is liable to pay 
damages ; (2) He may, in a fit case, be compelled to carry 
out his contract (specific performance). We deal with 
these in order. 

1. Damages. 3 A person who has broken his contract Damages, 
is liable to make compensation to the injured party. The 
law relating to this subject is treated in modern books 
under the head of 'the measure of damages '. The Roman- 
Dutch writers have not very much to say about it. Voet, 
however, lays down three rules which are of general 
application, viz. : 

(a) Under the head of damages, account is taken of 
advantage lost and damage sustained (utilitas 
amissa damnum acceptum) ; 

falls due is sometimes called an 'anticipatory breach of contract', 
as in the English case ofHochtster v. De la Tour ( 1853) 2 E. & B. 678 ; 
Heyman v. Darwins Ltd. [1942] A.C. at p. 379 ; Wessels, ii. 2939. 

1 Strachan v. Prinsloo [1925] T.P.D. 709. 

2 Foster v. Hillman Bros. [1932] W.L.D. 222. For other cases 
see Wessels, ii. 2930, 2939. 

3 For the Roman Law see Windscheid, ii. 258; Girard, p. 687. 
Justinian's solution in Cod. 7, tit. 47, leaves things as uncertain as 
before. Did this lex find a place in R.-D. L. ? See Voet, 45. 1. 10 ; 
Pothier, Obligations, sec. 164, and Van der Linden's note to his 
translation of this work (p. 179). On the whole subject consult 
Nathan and Schlosberg, The Law of Damages in South Africa 
(Johannesburg, 1930). 



266 THE LAW OF OBLIGATIONS 

(6) Damages must not be too remote j 1 

(c) The standard is a commercial standard. The plain- 
tiff's affections and feelings are not taken into 
account. 2 

For the rest, the law of damages in the modern Roman- 
Dutch Law is substantially the same as in English Law. 
It is necessary in each case to inquire whether the law 
lays down a special rule as to the measure of damages 
in the class of contracts in question. Thus, in a contract 
of sale, when the purchaser refuses to take delivery and 
the property is resold at a loss, the measure of damages 
recoverable from the original purchaser is the difference 
between the contract price and the amount realized on 
the resale. 

The following passage from the judgment of Innes C. J. 
in Victoria Falls and Transvaal Power Co. v. Consolidated 
Langlaagte Mines Ltd. 3 contains a useful summary of the 
law relating to the measure of damages : 

' The agreement was not one for the sale of goods or of a 
commodity procurable elsewhere. So that we must apply the 
general principles which govern the investigation of that most 
difficult question of fact the assessment of compensation for 
breach of contract. The sufferer by such a breach should be 
placed in the position he would have occupied had the con- 
tract been performed, so far as that can be done by the pay- 
ment of money, and without undue hardship to the defaulting 
party. The reinstatement cannot invariably be complete, for 
it would be inequitable and unfair to make the defaulter liable 
for special consequences which could not have been in his 
contemplation when he entered into the contract. The laws 
of Holland and England are in substantial agreement on this 
point. Such damages only are awarded as flow naturally from 
the breach, or as may reasonably be supposed to have been 
in the contemplation of the contracting parties as likely to 
result therefrom (see Voet, 45. 1. 9; Pothier, Oblig. sec. 160; 
HadUy v. Baxendale, 9 Exch., p. 341 ; Elmslie v. African 

1 Kotze v. Johnson [1928] A.D. 313. 

1 Voet, 45. 1. 9 ; Meyer v. Jockie P.H. 1944 (2) J. 14 [E.D.L.]. 

J [1915] A.D. at p. 22. 



OPERATION OF CONTRACT 267 

Merchants, Ltd., 1908, E.D.C., p. 82, &C.). 1 Moreover, it is 
the duty of the complainant to take all legal steps to mitigate 
the loss consequent on the breach (see British Westinghouse 
Coy v. Underground Railway Coy., 1912, A.C., p. 689). It 
follows that damages for loss of profits can only be awarded 
when such loss is the direct, natural, or contemplated result 
of non-performance.' 

If the cause of action is a breach of promise to pay 
a fixed sum of money, a plaintiff cannot recover anything 
beyond the amount of the debt with interest. A claim 
for general damages is not allowed. 2 

It may happen that a plaintiff proves a breach of con- Nominal 
tract, but fails to prove that he has sustained any damage 
or to establish the amount of the damage sustained. The 
question then arises whether he is entitled, at all events, to 
nominal damages. In some cases the South African Courts 
have awarded damages for a merely technical breach of 
contract. 3 In others, they have refused to entertain the 
action except on proof of actual damage. 4 This seems to 
be more in accordance with the principles of the Roman- 
Dutch Law. A plaintiff must furnish reasonably sufficient 
proof that he has suffered some damage. It is often ex- 
ceedingly difficult to value the damage in terms of money, 
' but that does not relieve the Court of the duty of doing 
so upon the evidence placed before it'; 5 and 'when a 
plaintiff is in a position to lead evidence which will enable 
the Court to assess the figure he should do so, and not 
leave the Court to guess at the amount'. 6 

If the parties to a contract have agreed for a penalty Penalty 

1 See also Lavery & Co. v. Jungheinrich [1931] A.D. 156. 

2 Becker v. Stusser [1910] C.P.D. at p. 294; Koch v. Panovska 
[1934] N.P.D. 776. 

3 Sauerinann v. English and Scottish Law Life Assurance Associa- 
tion (1898) 15 S.C. at p. 88 ; Lord v. Gillwald [1907] E.D.C. 64. 

4 Steenkamp v. Juriaanse [1907] T.S. 980; Blumbergv. Buys & 
Malkin [1908] T.S. at p. 1181 ; Silbereisen Bros. v. Lamont [1927] 
T.P.D. 382. 

6 Sandier v. Wholesale Coal Suppliers Ltd. [1941] A.D. at p. 198. 

6 Klopper v. Maloko [1930] T.P.D. at p. 865 per Tindall J. 
Apparently damages are more readily granted when they are 
claimed merely as an alternative to specific performance. Farmers' 
Co-op. Soc. v. Berry [1912] A.D. at pp. 351-2. 



268 THE LAW OF OBLIGATIONS 

and in the event of non-performance, the penalty is incurred 
^ by the party in default. Such at least was the rule in 

UcHllCtyCO. ** A / 

the Dutch Law, with the qualification that if the 
penalty was much larger than the actual loss it was 
within the competence of the Court to reduce it; 1 on 
the other hand, if the penalty proved insufficient to cover 
the damages the aggrieved party might fall back on his 
original cause of action. 2 The modern law has taken over 
the English distinction between Penalties and Liquidated 
Damages. 3 

Specific 2. Specific Performance. In Roman Law, during the 
perform- f ormu i ar y period, condemnation was always pecuniary. 

(a) Roman A decree of Court ordering a defendant to carry out a con- 

tract specifically or to hand over property to the plaintiff 
was unknown, though specific performance was in certain 
cases procured indirectly by means of the formula arbi- 
traria. 4 In the period of the extraordinaria cognitio this 
was changed, and the Court would in certain cases order 
that an act should be done and employ the armed force 
at its disposal to see that its orders were obeyed. 5 Such is 
the account of the matter which is generally accepted 

(b) Dutch at the present day. But the old Dutch writers were 

divided in opinion on the question whether the law per- 
mitted a decree of specific performance except in the case of 
a promise to marry. To say that it does not do so amounts 

1 Groen, de leg. abr. ad Cod. 7. 47, 10; Voet, 45. 1. 13 (in fine) 
and see Bijnkershoek, Q.J.P., lib. ii, cap. xiv. See (Ceylon) 
Fernando v. Fernando (1899) 4 N.L.R. 285. When a penal rate 
of interest is stipulated for, the amount recoverable may not 
exceed the amount of the principal. V.d.K. 481 and Dictat. ad 
Gr. 3. 1. 42. 2 Voet, 46. 2. 4. 

3 (South Africa) Pearl Assurance Co. v. Union Govt. [1933] 
A.D. 277 ; Pearl Assurance Co. v. Govt. of the Union of South Africa 
[1934] A.C. 570; [1934] A.D. 560; Durban Corp. v. McNeil [1940] 
A.D. 66 ; Wessels, ii. 974 (editor's note) ; (Ceylon) Webster v. 
Bosanquet [1912] A.C. 394. The forfeiture clause in a contract 
of sale (lex commissoria), e.g. of instalments in the event of failure 
to complete, belongs to a different category, and the question 
whether it is in the nature of penalty or liquidated damages is 
irrelevant. Arbor Properties v. Bailey [1937] W.L.D. 116. 

4 Girard, p. 1085. 
6 Girard, p. 1145. 



OPERATION OF CONTRACT 269 

to saying that it lies in the option of a party to a contract 
either to carry out his undertaking or to pay damages 
instead ; and this is in fact the view of Grotius, who says : x 
' But although by natural law a person who has promised 
to do something is bound to do it if it is in his power, he 
may nevertheless by civil law release himself by paying 
the other contracting party the value of his interest, or 
the penalty if any has been agreed upon in case of failure 
to perform. ' 2 However, Groenewegen in his note on this 
passage writes: 'But at the present day he cannot so re- 
lieve himself, but may be compelled by civil imprison- 
ment to the strict fulfilment of what he has promised.' This 
view is endorsed by Schorer and Van der Keessel, 3 and 
Van der Linden admits, reluctantly, that it was in accord- 
ance with the practice of his time. 4 So far as the law of 
South Africa is concerned the remedy by way of decree of 
specific performance is firmly established. In Farmers' (c)Modera 
Co-operative Society v. Berry* Innes J.A. said : w< 

'Prima facie every party to a binding agreement who is 
ready to carry out his own obligation under it has a right to 
demand from the other party, so far as it is possible, a per- 
formance of his undertaking in terms of the contract. As 
remarked by Kotze C.J. in Thompson v. Pullinger (1 O.R. at 
p. 301) "the right of a plaintiff to the specific performance of 
a contract where the defendant is in a position to do so is 
beyond all doubt". It is true that Courts will exercise a dis- 
cretion in determining whether or not decrees of specific per- 
formance should be made. They will not, of course, be issued 
where it is impossible for the defendant to comply with them. 
And there are many cases in which justice between the parties 
can be fully and conveniently done by an award of damages. 

1 Gr. 3. 3. 41. 

2 In 3. 15. 6 Grotius departs from his rule and says that if a 
vendor is in mora to deliver, the purchaser may demand delivery 
or damages at his option. Cohen v. Shires, McHattie & King (1882) 
1 S.A.R. 41 ; Silverton Estates Co. v. Bellevue Syndicate [1904] 
T.S. at p. 467. * Th. 512. 4 V.d.L. 1. 14. 7. 

5 [1912] A.D. at p. 350. See also Moffat v. Touyz & Co. [1918] 
E.D.L. 316 ; Woods v. Walters [1921] A.D. at p. 309. The earlier 
South African cases are collected by Bale C.J. in Bergl & Co. v. 
Trott Bros. (1903) 24 N.L.R., pp. 512 fi. 



270 THE LAW OF OBLIGATIONS 

But that is a different thing from saying that a defendant who 
has broken his undertaking has the option to purge his default 
by the payment of money. For in the words of Story (Equity 
Jurisprudence, sec. 717 (a)) "it is against conscience that a 
party should have a right of election whether he would perform 
his contract or only pay damages for the breach of it". The 
election is rather with the injured party subject to the dis- 
cretion of the Court.' 

Com- From the above passage we shall, perhaps, be justified 

with m concluding that the theory of specific performance is not 



English the same in South African as in Engb'sh Law. In South 
Africa a plaintiff has a right to claim this remedy, subject 
to the discretion of the Court to refuse it. In England he 
has no right to this remedy except so far as the Court may 
see fit to grant it in accordance with the settled principles 
by which this equitable jurisdiction is exercised. Where 
damages are an adequate remedy, specific performance 
will not be granted. 1 Perhaps the practical result is not 
very different in the two systems, but it is interesting to 
note the difference of approach. In either system the most 
frequent case for a decree of specific performance is a con- 
tract for the sale or lease of land. 2 

1 Ryan v. Mutual Tontine Association [1893] 1 Ch. (C.A.) at 
p. 126. The reason, of course, lies in the supplementary nature of 
the equitable remedy of specific performance. The common law 
courts originally gave damages only. 

2 See Appendix I, where the subject is developed in greater 
detail. 



Ill 

INTERPRETATION OF CONTRACT 

IF an action is brought upon a contract, the plaintiff must p roo f of 
prove its terms, and identify the defendant as the party contract - 
liable. The proof of contract is part of the law of evidence 
and lies outside the scope of this work. Let it suffice to 
point to the general rule that in every case the best evi- 
dence must be produced. In the case of a written contract 
this means the original instrument together with so much 
parol evidence as is necessary to explain the circumstances 
of the contract and the nature of the liability alleged. 
When the written contract has been produced, the next inter- 
step is for the Court to interpret its meaning, i.e. to con- P etatlon 
strue its language and to determine its legal effect. To contract, 
assist the judge in this task the law lays down certain rules 
of construction, which, however, must be regarded not as 
rules of law from which there is no escape, but rather as 
finger-posts or indicia, whereby the Court may arrive at 
the intention of the author of the instrument. It is true 
that a man must be taken to mean what he says, and, as a 
rule, if he uses technical phrases he will be understood to 
have used them in their technical meaning. None the less 
(within limits), the parties are their own interpreters, and 
a rule of construction, however respectable, will not be 
allowed to override a reasonable inference of intention, to 
be collected from an examination of the whole and of every 
part of the instrument in question, and even sometimes 
from the conduct of the parties, showing the construction 
which they agreed to place upon it. 1 

The following rules of construction are taken from Van R u i es O f 
der Linden's Institutes? construe- 

tion. 

1 Breed v. Van den Berg [1932] A.D. at p. 292; Skill v. Milner 
[1937] A.D. at p. 110. Cf. Greer L.J. in W. T. Lamb & Sons v. 
Goring Brick Co. [1932] 1 K.B. at p. 721. 

8 V.d.L. 1. 14. 4. (Juta's translation). These rules are almost 
identical with the language of the French Code (Arts. 1156-64), 
which the Dutch Code follows (Arts. 1379-87). 



272 THE LAW OF OBLIGATIONS 

1. In agreements we should consider what was the 
general intention of the contracting parties rather than 
follow the literal meaning of the words. 

2. When a stipulation is capable of two meanings it should 
rather be construed in that sense in which it can have 
some operation than in that in which it cannot have any. 1 

3. Whenever the words of a contract are capable of two 
meanings they should be construed in that sense which is 
most consonant with the nature of the agreement. 2 

4. That which appears ambiguous in a contract should 
be construed according to the usage of the place where the 
contract was made. 3 

5. Usage has such weight in the construction of agree- 
ments that the usual stipulations are understood to be 
included in them, although not expressly mentioned. 

6. A stipulation must be construed by the aid of the 
other stipulations contained in the contract, whether they 
precede or follow it. 

7. In cases of ambiguity a stipulation must be construed 
against the party who has stipulated for anything, and in 
favour of the release of the party who has contracted the 
obligation. 4 

8. However general the expressions may be in which an 
agreement is framed, they only include the matters in 
respect of which it appears that the contracting parties 
intended to contract and not those which they did not 
contemplate. 5 

9. Under a general term are comprehended all the 
specific matters which constitute this generality, even 
those of which the parties had no knowledge. 

1 Kotze v. Frenkel & Co. [1929] A.D. 418 ; Annamma v. Moodley 
[1943] A.D. at p. 539. 

2 West Rand Estates Ltd. v. New Zealand Insurance Co. [1925] 
A.D. at p. 261. s Dig. 50. 17. 34. 

4 Dig. 45. 1. 38, 18 ; 45. 1. 99 pr. ; Gr. 3. 3. 54; Poynton v. Cran 
[1910] A.D. at p. 213; Coronation Collieries Co. v. Malan [1911] 
A.D. at p. 612; Van Pletsen v. Henning [1913] A.D. at p. 102; 
Bon Accord Irrigation Board v. Braine [1923] A.D. at p. 486; 
Cohen v. Rapidol Ltd. [1934] A.D. 137. 

5 Est. Sharp v. Scheepers [1919] C.P.D. 26; Lanfear v. Du Toit 
[1943] A.D. 59. 



IV 
DETERMINATION OF CONTRACT 

A CONTRACT may be determined in any one of the following How 
ways: viz. by (1) performance and its equivalents; (2) aredeter- 
release ; (3) novation ; (4) impossibility of performance ; mined. 
(5) condition subsequent ; (6) prescription. We deal with 
these in order. 

1. Performance and its equivalents. The subject of i. Per- 
performance and of substituted performance has been con- a^its * 
sidered in a previous chapter. We speak here of various equiva- 
processes which in certain cases have the same legal con- 
sequences as if the contract had been actually carried out. 

Tender is an offer of performance. If the debtor's duty Tender, 
consists in something to be done or given, it is not his fault 
if he duly offers performance and the creditor refuses to 
accept it. In such an event the debtor may usually treat 
the contract as determined by the creditor's refusal. He 
is not required to waste his time in soliciting an acceptance, 
which may never be given. But if the performance due 
from the debtor consists in making a money payment, the 
case is different. Mere tender does not, as a rule, discharge 
the debt. The debtor, tender notwithstanding, must con- 
tinue ready and willing to pay, and if sued for the money 
must plead the tender and pay the money into Court. He 
will then be entitled to his costs in the action. 

The effects of valid tender are : l (1) to relieve the debtor Effects of 
from liability in case of accidental destruction of the thing tender - 
to be given ; (2) to discharge a penalty agreed to be paid in 
the event of non-performance ; (3) to arrest the accrual of 
interest, and to prevent mora interest from arising. 2 This 
third consequence followed in some cases in the Roman 
Law and follows in all cases in the modern law. In the 
Roman-Dutch Law of Holland tender did not arrest the 

1 Voet, 46. 3. 28. 

2 Voet, 22. 1. 17; Groen. de leg. abr. ad Cod. 4. 32. 6; Wessels, 
i. 3340. As to mora and its consequences see Appendix H. 

4901 m 



274 



THE LAW OF OBLIGATIONS 



tion and 
deposit. 



Con- 
fusion or 
Merger. 



course of interest unless it took the form of consignation 
and deposit. 1 

Consigna- Consignation and deposit was an institution, no longer 
in use, 2 which permitted a debtor with the approval of the 
Court to seal and deposit a specific thing or sum of money 
with some third person to hold for the benefit of the 
creditor and at his risk. Such deposit validly made, and 
not revoked by the debtor, had the same legal effect as 
payment. 3 

Confusion or 'merger' 4 takes place when by succeeding 
to the claim or liability of another, a person who owes to 
that other a duty or has against that other a claim 
becomes in his own person both creditor and debtor in 
respect of the same performance, with the result that the 
obligation is extinguished. This usually happened when, 
without benefit of inventory, the creditor succeeded as heir 
to the debtor, or vice versa. 5 Since universal succession is 
unknown in the modern law, confusion of this kind no 
longer occurs as a direct consequence of death. 6 But it is 
still possible in the case of a residuary legatee, who has a 
claim against the estate ; for if the estate is solvent he may 
not think it worth his while to anticipate the distribution 
of assets by demanding payment from the executor of the 
deceased. Another case of confusion occurs when a prin- 
cipal debtor becomes surety, or a surety becomes principal 

1 Grotius (3. 40. 2-3) calls it onderrecht -legging. Quaere whether 
tender made in court prevented mora interest from running. Voet, 
ubi sup.; Van Leeuwen, 4. 11. 3; Odendaal v. Du Plessis [1918] 
A.D. at p. 476. 

2 Wessels, i. 2335. In the Dutch Law tender was first made 
through an officer of the Court or a notary with two witnesses 'met 
opene beurse en klinkende gelde'. Boey, Woorden-tolk, sub voce 
Consignatie. The nature and effect of tender in the modern 
law is discussed in Odendaal v. Du Plessis, ubi sup. ; and see 
Harris v. Pieters [1920] A.D. 644; Leviseur v. Scott [1922] O.P.D. 
138; Ayob & Co. v. Clouts [1925] W.L.D. 199; Neville v. Flasket 
[1935] C.P.D. 115. 3 Gr. 3. 40. 3; Voet, 46. 3. 29. 

4 Vermenging, Schuldvermenging. Gr. 3. 40. 4 ; Voet, 46. 3. 
18-27; V.d.L. 1. 18. 5; Boey, Woorden-tolk, sub voce Confusie; 
Pothier, sees. 641 ff. 8 Gr. 3. 40. 5 ; Voet, 46. 3. 27. 

8 4 Maasdorp, p. 234; (Ceylon) Dias v. Silva (1937) 39 N.L.R. 
358. 



DETERMINATION OF CONTRACT 275 

debtor, in respect of the same debt, with the result that the 
accessory obligation is extinguished. 1 

Compensation or set-off 2 takes place when a debtor Corn 
has a counter-claim against his creditor. If the creditor 
sues his debtor and the debtor pleads compensation, the 
creditor's claim is deemed to have been extinguished or 
reduced by the amount of the counter-claim from the 
moment when the right to enforce the counter-claim by 
action vested in the debtor. 3 Compensation is only allowed 
where both claim and counter-claim are liquid, i.e. capable 
of speedy and easy proof, 4 unconditional, and presently 
enforceable, 5 and relate to fungible things ejusdem generis. 6 
Thus, money may be set off against money or wine against 
wine, but not wine of one quality against wine of another. 
A natural debt is available as a set-off 7 except in cases 
where the law forbids it. In certain cases compensation is 
disallowed on grounds of public policy. Thus, a person who 
has got possession of property by theft or other wrongful 
act may not plead a set-off against the owner's claim to 
recover what belongs to him ; nor is this defence available 
to one who is indebted to the State or to a local govern- 
ment for taxes or rates ; 8 and there can be no compensation 
in insolvency proceedings unless mutuality between the 
opposing claims existed at the date of sequestration. 9 

1 Voet, 46. 3. 20; not if secured by mortgage. Dig. 46. 3. 38, 5. 

2 Vergelyking, compensatie, schuld-vereffening. Gr. 3. 40 6 ff . ; 
Voet, 16. 2. 1; V.d.L. 1. 18. 4; Schierhout v. Union Govt. [1926] 
A.D. 286; Whelan v. Oosthuizen [1937] T.P.D. 304. (Ceylon) 
Muttunayagam v. Senathiraja (1926) 28 N.L.R. 353. 

3 Voet, 16. 2. 2. A counter-claim is ineffectual as compensation 
unless it is available against a plaintiff in the capacity in which he 
is suing. De Villiers v. Commaile (1846) 3 Menz. 544. 

4 Nat. Bank v. Marks & Aaronson [1923] T.P.D. 69; Baskin & 
Barnett v. Barnard [1928] C.P.D. 58 ; Petersen Ltd. v. Inag African 
Industrial Co. [1934] C.P.D. 141. 

5 Cod. 4. 31. 14. 1 ; Gr. 3. 40. 8; Van Leeuwen, Gens. For. 1. 4. 
36. 3; Voet, 16. 2. 17. 6 Voet, 16. 2. 18. 

7 Voet, 16. 2. 13 ; as to prescribed debts see below, p. 281. 

8 Gr. 3. 40. 11 ; Voet, 2. 16. 16. In the Roman Law compensa- 
tion could not be pleaded to an actio depositi directa. This does 
not hold good in the modern law. 4 Maasdorp, p. 226. 

9 National Bank ofS. A. v. Cohen's Triistee [1911] A.D. at p. 254. 



276 THE LAW OF OBLIGATIONS 

Effect of The effect of compensation (which, however, must be 
lion? * specially pleaded 1 ) is to extinguish the creditor's claim in 
whole or in part, 2 and in the same measure to arrest the 
accrual of interest, to set free sureties and real securities, 
and to relieve the defendant from a penalty to which he 
would otherwise be liable, provided that the right of com- 
pensation has vested before the date when payment would, 
but for the compensation, have fallen due. 3 Further, if a 
debtor has paid his creditor without claiming compensa- 
tion he may get his money back to the extent of the com- 
pensation by the condictio indebiti. 4 Where a right of 
action has been ceded, the debtor may set up against the 
cessionary any compensation available to him against the 
cedent ; for since compensation, if pleaded, takes effect 
ipso jure, the amount of the debt is mechanically reduced 
by the amount of the set-off from the moment when the 
right to assert it first vested in the debtor. 5 But a debtor 
cannot compensate against the cessionary a claim which 
has vested in him after notice of the cession. In other 
words compensation implies the coexistence of mutual 
debts. 6 

2. Release. 2. Release. 7 A debt may be released by way of gift, 8 
i.e. as an act of liberality on the part of the creditor, or in 
exchange for some advantage. 9 In the absence of proof to 

1 Gr. 3. 40. 7 ; Van Leeuwen, 4. 40. 2; Voet, 16. 2. 2; V.d.L. 1. 
18. 4; Still v. Norton (1838) 2 Menz. 209 ; 4 Maasdorp, p. 232. 

2 Gr. 3. 40. 7; Voet, ibid. Van der Keessel (Th. 827) cites a 
decision to the effect that compensation may be set up, after 
sentence, against execution of a judgment. Cf. Voet, ubi sup. 

3 Voet, ubi sup. 

4 Dig. 16. 2. 10. 1 ; Voet, ubi sup. ; V.d.L. ubi sup. ; unless the 
payment was made in obedience to a judicial decree. 

6 Voet, 16. 2. 4. The principle that compensation takes effect 
ipso jure, though formally accepted by the French and Dutch 
Codes (C.C. 1290, B.W.B. 1462) is inexact. It would be more 
correct to say that, if pleaded, it has retro-active effect. Wessels, 
i. 2493. Cf. Dig. 16. 2. 2: Unusquisque creditorem suum eundem- 
que debitorem petentem summovet, si paratus est compensare. 

9 Smith v. Howse (1835) 2 Menz. 163 ; Oudtshoorn Town Council 
v. Smith [1911] C.P.D. 558; Consolidated Finance Co. v. Reuvid 
[1912JT.P.D. 1019. 

7 Quijtschelding Acceptilatio Liberatio. Wessels, i. 2342 ff. 

8 Gr. 3. 41. 5. 8 Voet, 46. 4, 1. 



DETERMINATION OF CONTRACT 277 

the contrary a release is presumed to be gratuitous. 1 No 
form of words is required. 2 It is enough that the creditor 
by words or conduct 3 declares his intention to abandon 
his right, and that this is accepted by the debtor or by 
some one on his behalf. It is indifferent that the law 
required writing to establish the contract. 4 No one can 
release a debt who is not competent to alienate his pro- 
perty. 5 A promise not to sue 6 operates as a release unless it Promise 
is merely personal in its incidence, e.g. a promise not to not 
sue A does not necessarily release his representatives after 
his death. 7 With this reservation a promise not to sue 
releases co-debtors and sureties ; 8 but a promise not to sue 
a surety does not release his principal, unless it was clearly 
intended to have that effect. 9 If an instrument of debt is 
returned to the debtor, the debt is presumed to be dis- 
charged. 10 

In case of reciprocal promises each party may by agree- Mutual 
ment release the other from performance, each returning re 
to the other any advantage he may have derived from the 
contract. 11 

3. Novation. 12 The parties to a contract may, if they 3. Nova- 
tion. 

1 Gr. 3. 41. 6. 2 Secus, jure civili, Inst. 3. 29. 1. 

3 Gr. 3. 41. 7 ; V.d.L. 1. 18. 3. 4 Wessels, i. 2346. 

6 Gr. 3. 41. 8; nor persons charged with the administration of 
another's property without power of alienation. Ibid. 

6 Pactum de non petendo. Van Leeuwen, 4. 40. 7, and Decker, 
ad loc. 7 Gr. 3. 41. 9. 

8 Gr. ubi sup. ; Voet, 46. 4. 4 ; V.d.K. 828 ; V.d.L. 1. 18. 3 ; C.C. 
1285, 1287. Pothier, however, Traite des Obligations (sec. 617), 
says that a release of one co -debtor only releases the other to the 
extent to which the second is prejudiced by the release of the 
first by being deprived of the opportunity of claiming contribution 
from him. This view was adopted by the Transvaal Supreme 
Court in Dwyer v. Goldseller [1906] T.S. 126. 

9 Voet, 2. 14. 12; V.d.L. ubi sup. Grotius and Voet (46. 4. 4) 
say that a discharge of a surety discharges the principal, founding, 
however, on technicalities of Roman Law. It is all a question of 
intention. 10 Gr. 3. 41. 10; V.d.L. ubi sup. 

11 Handelbraeck Recessio a contractu. Gr. 3. 42. 2; V.d.K. 
833. 

12 Schuldvernieuwing Novatie. Gr. 3. 43. 1; Voet, 46. 2. 1; 
V.d.L. 1. 18. 2; Wessels, i. 2365 ff . ; Caney, A Treatise on the 
Law relating to Novation (Juta & Co. 1938); Electric Process 
Engraving Co. v. Irwin [1940] A.D. 220. 



278 THE LAW OF OBLIGATIONS 

please, enter into a new contract, putting an end to an 
original liability, and substituting a new liability in its 
place. This is called novation. It may assume one of 
three forms, viz. an agreement : ( 1) to extinguish an existing 
debt and to substitute a new debt in its place ; (2) to substi- 
tute a new debtor; (3) to substitute a new creditor. 1 Any 
agreement in that behalf express or tacit is sufficient ; 2 
but in case of doubt an intention to novate is not presumed. 3 
Thus a creditor is not held to novate his debt merely by 
allowing his debtor an extension of time for payment. 
Such an allowance, therefore, does not set free sureties or 
discharge a mortgage. 4 Novation fails to take effect if the 
second contract is ipso jure void ; or conditional and the 
condition is not implemented ; or if the thing which forms 
the subject of the novating contract has perished 5 while 
the condition is still pending. 

Any debt may be novated, as well natural as civil and 
whether arising from contract or delict or judgment. 6 The 
effect of novation is to discharge the old liabilities with all 
their incidents, such as interest, real and personal securi- 
ties, and to purge any previous mora. 7 Novation may 
consist, as mentioned above, not only in the substitution of 
Delega- one debt for another, but also in the substitution of one 
debtor for another. This was known in Roman Law as 
delegation. 8 The consent of all three parties is required ; 9 
for though the law allows the assignment of a claim with- 
out the consent of the debtor, so that a new creditor takes 
the place of an old one, the law does not allow the debtor 
to make over his liability to a third party, unless the 
creditor, and, of course, the third party, 10 agree. In this 

1 Wessels, i. 2375. 

2 Gr. 3. 43. 3 ; Voet, 46. 2. 2-3 ; 4 Maasdorp, p. 201. 

* Gr. 3. 43. 4; V.d.K. 835; Brenner v. Hart [1913] T.P.D. at 
p. 616 ; Bhana Nana v. Patel [1929] W.L.D. 234. 

4 Gr. 3. 43. 4 ; V.d.K. 836 ; nor does a subsequent stipulation 
for a penalty (Voet, 46. 2. 4), or for payment in kind and not in 
money, or for interest, or for a higher rate of interest (Voet, 
46. 2. 5). B Voet, 46. 2. 7. 6 Voet, 46. 2. 9-10. 

7 Voet, 46. 2. 10; HolL Cons. ii. 126. 

8 Overzetting Delegatie. Gr. 3. 44. 2. 

9 Voet, 46. 2. 11. 10 Gr. 3. 44. 3. 



DETERMINATION OF CONTRACT 279 

case, as in the first, the intention to novate must clearly 
appear. The mere assignment by a debtor to his creditor 
of the debtor's claim against a third party, even though the 
third party consents, does not in itself effect a novation. 
The substitution by novation of a new creditor (the third 
kind of novation mentioned above) will seldom be neces- 
sary, for, generally, assignment, which does not require the 
consent of the debtor, serves the same purpose. 

The above are all cases of 'voluntary novation'. An- Novatio 
other case of novation, to which the commentators have n< na " 
given the name of 'necessary novation', was incidental to 
judicial proceedings 1 and took place at the moment of litis 
contestatio. This, though admitted by Grotius, 2 did not 
entail the usual consequences of novation, 3 and may there- 
fore be left out of account. 

From delegation properly so called must be distinguished Assigna- 
assignation, 4 which takes place when A requests B to pay tlon> 
C, or refers C to B for payment. If A is C's debtor, his 
debt to C is discharged, if, and only if, C is paid by B, 5 
unless, of course, C agrees to accept the assignation in full 
discharge. 6 In other words, assignation is, as a rule, a 
conditional delegation. In the modern law the same result 
usually follows if a debtor gives his creditor a cheque 
drawn on his banker or other such instrument in payment 
of a pre-existing debt. 7 

4. Impossibility of Performance. If a contract, 4. i mpos . 



possible when made, subsequently becomes impossible of sib ^y f 

- perform- 

periormance, the parties are sometimes discharged from ance. 
future liability. Whether this will be so or not depends 
upon the nature of the contract and the circumstances 
of each particular case. 8 The English law on this subject 

1 Gaius, iii. 180 ; Dig. 46. 2. 29. a Gr. 3. 43. 3. 

3 Voet, 46. 2. 1. 

4 Aenwijzing Assignatie. Gr. 3. 45. 1 ; Brenner v. Hart [1913] 
T.P.D. at p. 612. 

5 Gr. 3. 44. 5. 

6 Van Leeuwen, 4. 40. 10; Voet, 46. 2. 13. 

7 Kaplan v. Schulman [1933] C.P.D. 544; Milner v. Webster 
[1938] T.P.D. 598. 

8 Hersman v. Shapiro & Co. [1926] T.P.D. 367. 



280 THE LAW OF OBLIGATIONS 

was stated by Blackburn, J. in terms which are equally 
applicable to the Roman-Dutch Law: 

' Where there is a positive contract to do a thing, not in itself 
unlawful, the contractor must perform it or pay damages for 
not doing it, although in consequence of unforeseen accidents 
the performance of his contract has become unexpectedly 
burthensome or even impossible. But this rule is only appli- 
cable when the contract is positive and absolute and not sub- 
ject to any condition either express or implied.' 1 

Such a condition exempting a party from liability, when 
through no fault of his own a contract has become im- 
possible of performance, has been taken to be implied in 
the event of the destruction of some specific thing which 
in terms of the contract he was bound to deliver ; 2 or when 
the parties contemplated as the foundation of their con- 
tract some condition or state of things which has since 
ceased to exist or has not been realized (frustration of 
contract) : 3 or when a party is disabled by illness, or pre- 
vented by vis major or casus fortuitus. 4 Mere difficulty 
of performance furnishes no excuse for non-performance. 5 
But a contract is discharged if performance becomes legally 
impossible (e.g. if the thing to be given passes extra com- 
mercium), 6 or illegal. 

5. Condi- 5. Condition Subsequent. A contract may include, 
tionsub- expressly or by implication, a provision for its 



sequent. 



1 Taylor v. Caldwell (1863) 3 B. & S. at p. 833, adopted by 
Maasdorp J.A. in Algoa Milling Co. v. Arkell & Douglas [1918] 
A.D. at p. 171. 

2 Dig. 45. 1. 23 and 33; Gr. 3. 47. 1. In these cases the dis- 
tinction between absolute and relative impossibility (supra, p. 263, 
n. 2) does not apply. Moyle, p. 411 ; Windscheid, ii. 264. 

8 African Realty Trust v. Holmes [1922] A.D. at p. 400; 
Constantine (Joseph) Steamship Line Ld. v. Imperial Smelting 
Corporation Ld. [1942] A.C. 154; Denny, Mott & Dickson Ld. v. 
James B. Fraser & Co. Ld. [1944] A.C. 265. 

4 Peters, Flamman & Co. v. Kokstad Municipality [1919] A.D. 
427; Schlengemann v. Meyer, Bridgens & Co. [1920] C.P.D. 494. 
For the effect of mora see Appendix H. 

6 Dig. 45. 1. 2. 2. (ad Jin.): Non facit inutilem stipulationem 
difficultas praestationis ; Algoa Milling Co. v. Arkell & Douglas, 
ubi sup. at pp. 170-1. 

6 Gr. 3. 47. 1 and 4. 



DETERMINATION OF CONTRACT 281 

determination after the lapse of a certain time or upon the 
happening of a specified event. Upon the expiry of the 
time or the happening of the event, the parties are dis- 
charged from their obligations and the contract is at an 
end. Pothier gives in illustration a contract of suretyship 
whereby the surety undertakes to be answerable for the 
repayment of a loan for a period of three years only, or 
until the return of a certain ship. If the creditor has not 
put his debtor in mora by demanding payment before the 
term has expired or the ship returned, the liability of the 
surety is at an end. But if there has been default on 
the part of the borrower before the accomplishment of the 
term or the happening of the event, the surety must make 
it good, for he is now bound unconditionally to answer for 
the principal debtor's default. 1 

6. Prescription. Grotius treats prescription as a release 6. Pre- 
of a debt effected by operation of law in consequence of scn P tlon - 
the lapse of a certain period of time. 2 His opinion, which 
is also that of Voet, is that the effect of prescription is not Does it 
merely to bar the remedy, but to extinguish the right. 3 the'rSht 
But Van der Keessel says that this view is not free from or merely 
difficulty, 4 and in South Africa it was said that ' the more r 
correct view is that prescription merely affords a ground 
of defence or exception to an action, and does not act as an 
extinguishment of the obligation ipso jure'. 5 The late Sir 
John Wessels wrote : ' Prescription is said to be one of the 
methods by which an obligation is extinguished. This is 
probably true with regard to the prescription of a third 
of a century or of thirty years (praescriptio longissimi 
temporis), but it is not true of that form of prescription 
which is equivalent to a limitation of actions. The latter 
form of prescription does not extinguish the debt, it 
only bars the remedy.' 6 Substantially this is the view 
endorsed by the Prescription Act, 1943. For, if on the one 
hand ' a debt prescribed by extinctive prescription (i) may 

1 Pothier, sees. 224-5, 672. 

2 Quijtschelding door verjarung. Gr. 3. 46. 1. 

8 Gr. 3. 46. 2 ; Voet, 44. 3. 10. 4 V.d.K. 874. 

6 4 Maasdorp, p. 194. 6 Wessels, i. 2748. 



282 THE LAW OF OBLIGATIONS 

be set off against a debt which came into existence after 
the lapse of the period of prescription j 1 and (ii) is suffi- 
cient to support a contract of suretyship', nevertheless 
'after the lapse of thirty years from the date on which 
the right of action in respect thereof first came into 
existence ' it no longer has these effects. 2 

The periods of prescription (or limitation) of actions fixed 
by the Roman and the Roman-Dutch Law varied greatly. 3 
In the latter, in the absence of provision to the contrary, 
the term of prescription was a third of a century or, as 
some said, thirty years. The second alternative is now 
statutory, but usually the terms are much shorter. Thus, 
to select a few instances from the South African statute, 
actions for defamation, the actio redhibitoria and the actio 
quanti minoris are prescribed in one year, oral contracts in 
three years, written contracts, including bills of exchange, 
in six. 4 

When the creditor is a person under disability (minors, 
persons under curatorship, &c.) prescription does not 
begin to run until the date on which disability ceases, and 
when the debtor is absent from the Union not until the 
date of his return. 5 Prescription is suspended during dis- 
ability of the creditor, absence of the debtor from the 
Union for a period exceeding six months, and in some other 
cases. 6 Prescription is interrupted, that is to say the time 
which has already run is blotted out, by acknowledgment 
of the debt, service on the debtor of any process by which 
action is instituted, and in some other cases. 7 Interruption 
against a principal debtor is deemed to be an interruption 
as against a surety. 8 When a principal debt is prescribed, 
interest on the debt is prescribed with it. 9 

1 Abrogating Swanepoel v. Van der Westhuizen [1930] T.P.D. 
806; and Pentecost v. Cape Meat Supply Co. [1933] C.P.D. 472. 

a Prescription Act, 1943, sec. 3 (5). 8 Voet, 44. 3. 5-7. 

4 Prescription Act, 1943, sec. 3. For Ceylon see Ord. No. 22 of 
1871 and Cadija Umma v. S. Don Manis Appu [1939] A.C. 136. 

8 Voet, 44. 3. 9 (ad fin.) ; Prescription Act, sees. 9, 10. 

8 Prescription Act, sec. 7. 

7 Voet, ubi sup. (in med.) ; Prescription Act, sec. 6. 8 Ibid. 

Voet, 22.1.16; Eat. Obermeyer v. Eat. Wolhuter [ 1 928] C.P.D. 32. 



DETERMINATION OF CONTRACT 283 

A two years' term of prescription for certain claims 
was ordained by Art. 16 of the Perpetual Edict of 1540. 1 
Though already in the seventeenth century Van Leeuwen 
thought that this article was abolished by disuse, 2 it 
remained to embarrass the law of South Africa. Repealed 
in Cape Colony in 186 1 3 and withdrawn from operation in 
the Transvaal in 1908 4 it has been finally eliminated by the 
Prescription Act, 1943. 5 

1 1 G.P.B. 319; Gr. 3. 46. 7; Loteryman & Co. v. Cowie [1904] 
T.S. 599. A translation will be found in earlier editions of this 
book. 

2 Van Leeuwen, 2. 8. 11. 

3 Act No. 6 of 1861, sec. 4. 

4 Act No. 26. 
B Sec. 15. 



PLURALITY OF CREDITORS AND DEBTORS 

Co- THE parties to a contract are entitled or liable as co- 

md cc creditors or co-debtors (correi stipulandi vel credendi cor- 
debtors. rei promittendi vel debendi) when two or more stipulate 
or promise as principals and not as sureties at the same 
time in respect of the same performance with the inten- 
tion of becoming thereby entitled or liable severally in 
respect of the whole performance (singuli in solidum) and 
not merely pro rota parted 

Plurality The position of a co-debtor must be distinguished from 
ofdebtors. t ^at of a surety. Each co-debtor is liable as principal. 
The liability of the surety, as such, is merely accessory and 
secondary. To constitute the relation of co-creditor or co- 
debtor, as above defined, it is not enough that two or more 
persons should stipulate for or promise the same thing at 
the same time, unless they do so with the intention of 
becoming each entitled or each liable in respect of the 
whole debt. In the absence of evidence of such intention, 
the parties, even in the earlier civil law, were not correi but 
were each entitled or liable only in respect of his rateable 
share. 2 In the Roman-Dutch Law, following herein the 
latest Roman Law, a co-debtor cannot as a rule be made 
liable in solidum unless there is a special agreement to that 
effect. 3 Thus if William, Thomas, and James jointly con- 
tract to pay a hundred aurei to Jludolph, in the absence of 
special agreement, each of them is liable only for one-third 

1 Voet, 45. 2. 1, and Compendium, 45. 2. 1. 

2 Dig. 45. 2. 11. 1-2 (Papinian). 

8 Authent. ad Cod. 8. 39 (40). 2. Hoc ita si pactum fuerit 
specials unumquemque teneri in solidum. . . . Sin autem non con- 
venerint specialiter, ex aequo sustinebunt onus. Sed et si convene- 
rint, ut uterque eorum sit obligatus: si ambo praesentes sint et 
idonei, simul cogendi sunt ad solutionem. See Groenewegen, ad 
loc. The authentica is taken from Nov. 99 c. 1 (A.D. 539), which 
only refers to sureties, but is nevertheless, according to the 
general opinion and common consent, extended to two or more 
joint principal debtors. Van Leeuwen, 4. 4. 1 ; V.d.K. 494 ; Tucker 
v. Carruthers [1941] A.D. at p. 254. 



PLURALITY OF CREDITORS AND DEBTORS 285 

of the total. 1 Apart from agreement, there are cases in 
which the law creates, or presumes, a solidary liability, 
where no contrary intention is expressed. Such is the case 
of partners in business contracting in relation thereto ; 2 
and persons who become joint parties to a bill of exchange 
or promissory note, whether as drawers (makers), accep- 
tors, or indorsers, are similarly liable. Where a solidary 
obligation is validly created, whether by act of party or 
by operation of law, one co-debtor who is sued for the 
whole debt may still claim the benefit of division if he has 
not renounced it, provided that the other co -debtors are 
solvent and within the jurisdiction. 3 

The principle stated above with regard to co-debtors Plurality 
applies also in case of plurality of creditors, so that in ^ors! 
the absence of express agreement to the contrary each is 
entitled, and may sue, only in respect of his rateable share 
of the performance which forms the subject-matter of the 
contract. 4 

If the contract contemplates that several co-debtors Excepted 
shall be liable in solidum without benefit of division, or ca 
that several co-creditors shall be entitled in solidum, the 
rules of the Civil Law apply. In case of plurality of creditors 
each one may sue for the whole debt, and payment or its 
equivalent, or novation, made to, or with, one creditor, 

1 Neostad. Decis. Supr. Cur. No. 97; Gr. 3. 3. 8-11; Van 
Leeuwen, ubi sup. ; Voet, 45. 2. 4 (in fine), and Compendium, 45. 
2. 5. So in the case of joint-purchasers, Barnet v. Glanz (1908) 
25 S.C. 967 ; Wirths v. Albow Bros. & Van Zyl [1922] S.W.A. 
127; Lydenburg Estates v. Palm & Schutte [1923] T.P.D. 278; 
co-lessees, Miller v. De Bussy [1904] T.S. 655 ; co-lessors, Kistan v. 
Komarasamy [1940] N.P.D. 56. 

2 V.d.L. 1. 14. 9. 

3 But co -debtors are taken to have renounced the benefit of 
division if they bind themselves 'each one for all and the one for 
the other', or 'each for all as principal debtors', or to like effect; 
Gr. 3. 3. 29 and Lee, Commentary, ad loc. ; Van Leeuwen, 4. 4. 1 ; 
V.d.K. 494; Wessels, i. 1517. With regard to partners the rule in 
South Africa is that all the partners must be joined as defendants 
to an action, but a judgment obtained against the partnership 
may be enforced by execution against any partner in solidum. 
Theunissen v. Fleischer, Wheeldon and Munnik (1883) 3 E.D.C. 
291. 

4 De Pass v. Colonial Government (1886) 4 S.C. at p. 390. 



286 THE LAW OF OBLIGATIONS 

discharges the whole liability, 1 for 'in utraque obligations 
una res vertitur ; et vel alter debitum accipiendo vel alter 
solvendo omnium perimit obligationem et omnes liberat'. 2 
But an agreement not to sue one of several debtors, being 
merely personal in its incidence, has no effect upon the 
liability of the others, 3 except that their liability is pro- 
portionately reduced, i.e. to the extent to which they have 
lost their right to claim contribution from the debtor 
released. 4 The debtor, on his side, until, but not after, 
action brought, may pay any co-creditor that he pleases. 
In case of plurality of debtors the creditor may proceed 
against any one of them for the whole or any part of the 
debt; and his election to sue one does not preclude him 
from going against another, since it is not his election, but 
only payment or its equivalent, or novation, which dis- 
charges the liability of the other co-contractors. If one 
co-debtor has voluntarily paid part, but not the whole, of 
the debt, the creditor is not precluded from suing him for 
the balance, unless he has expressly or tacitly agreed to 
that effect. The case is different if the creditor has taken 
proceedings against one co-debtor in respect of his rateable 
share of the debt ; for by so doing he precludes himself 
from taking fresh proceedings against him for the balance. 
Contribu- If one co-creditor recovers the whole debt, or if one co- 
between debtor pays the whole debt, the other co-creditors in the 
co- one case may sue, and the other co-debtors in the other 

j . . V 

and co- 18 case may be sued, in respect of their rateable share of the 



debtors, benefits or loss. Such is the modern law. In the Roman 
Law no action for contribution lay except between part- 
ners and in some other cases. 5 

1 Voet, 45. 2. 4. 2 Inst. 3. 16. 1. 

3 Gr. 3. 3. 8. A judicial demand by one co-creditor or against one 
co -debtor interrupts prescription in favour of every co -creditor 
or against every co-debtor. Voet, 45. 2. 6. By the Prescription 
Act, 1943, sec. 8: 'Prescription shall not be affected in respect 
of one joint debtor by any fact which would affect prescription 
in respect of any other joint debtor, except in the case of debtors 
liable in solidum.' Joint creditors ? 

4 Dwyer v. Goldseller [1906] T.S. at p. 129; De Charmoy & St. 
Polv. Dhookoo [1924] N.P.D. 254; Wessels, i. 1527. 

6 Gr. 3. 3. 8 ; Voet, 45. 2. 7 ; Wessels, i. 1581. 



VI 
SPECIAL CONTRACTS 

To undertake a detailed statement of the law appli- in 
cable to the various kinds of contract into which men may 
enter lies outside the scope of an elementary treatise. As Law all 
observed above, in Roman-Dutch Law all contracts are are con- 8 
consensual. The differences of the Roman Law between sensual, 
contracts re, verbis, litteris, and consensu have in a great 
measure lost their significance ; and the ancient distinction 
between contracts and nude pacts is equally a thing of the 
past. It follows that the principles which have been stated 
with regard to contracts in general apply to every kind of 
contract, except so far as the parties have chosen to depart 
from them, or the law attaches special rules to contracts of 
the kind in question. All contracts partake of the same 
nature, and all take a special colour from the subject- 
matter with which they deal. If we select some contracts 
for special treatment it is because they concern certain 
relations of mankind which are of such frequent occurrence 
that every reasonably equipped lawyer must be prepared 
to deal with them. 

In this chapter we describe in brief outline some of these Special 
contracts of frequent occurrence. We shall speak of: contTacts - 

(I) Donation or Gift; (2) Sale; (3) Exchange; (4) Hire; 
(5) Mandate or Agency; (6) Partnership; (7) Loan for 
Consumption ; (8) Loan for use ; (9) Deposit ; (10) Pledge ; 

(II) Suretyship or Guarantee ; (12) Carriage by water and 
by land. It must be remembered that, in general, the 
rules given bind the parties only so far as they have not 
seen fit to depart from them by express agreement. 

1 . Donation or Gift 1 is regarded in Roman-Dutch Law l. Dona- 
as a contract. A distinction is drawn, as in the case of sale, J^ 01 
between the contract, which binds the parties, and the 

1 (Donatio Schencking) Gr. 3. 2. 1 ; Van Leeuwen, lib. iv, cap. 
xxx ; Voet, 39. 5. 1 ; V.d.L. 1. 15. 1 ; 3 Maasdorp, chap. 7. 



288 THE LAW OF OBLIGATIONS 

handing over, which passes the property. 1 Any promise 
to give is enforceable, provided that it is made with a 
serious and deliberate mind. 2 As in other contracts, no 
obligation arises until acceptance by the donee, or by some 
person qualified to accept on his behalf. 3 It is a general 
rule that a donation is not presumed, but must be proved 
by the person who relies upon it. 4 The capacity of parties 
is the same, generally, as in other contracts. Thus, minors 
cannot make a gift, nor can guardians in their name. 5 
According to Grotius, parents cannot make gifts to their 
unemancipated children, 6 but this proposition does not 
hold good at the present day. In the Roman Law gifts 
between husband and wife were invalid 7 until confirmed by 

1 Gr. 3. 2. 14. Donation is an act of liberality which may 
assume a great variety of forms. In this chapter we speak only of 
the normal case, gift of a corporeal thing. 

2 Grotius says (3. 2. 11) that a gift inter vivos of all one's goods 
present as well as future is bad 'om dat het maecken van de 
uiterste wille daer door werd belet '. So also Van Leeuwen, 4. 30. 6. 
Contra, Voet, 39. 5. 10. Van der Keessel says (Th. 487): Jure 
Romano quidem ex saniori doctrina omnium bonorum donatio non 
fuit prohibita: sed cum contraria sententia olim juri civili magis 
consentanea haberetur, eadem a plerisque in foro recepta et nostris 
quoque probata videtur. In Meyer v. Rudolph [1917] N.P.D. at 
p. 177 Broome J., delivering the judgment of the Court, said: 'In 
my opinion, the weight of authority is in favour of permitting a 
donation of this kind and the reasons given for forbidding it have 
ceased to operate.' In this case there was a gift mortis causa of all 
the donor's estate. 

3 Gr. 3. 2. 12. A father may accept on behalf of his minor son. 
Barrett v. 'Neil's Exors. (1879) Kotze at p. 108. 

4 Meyer v. Rudolph's Exors. [1918] A.D. at p. 76; Timony & 
King v. King [1920] A.D. 133; Smith's Trustee v. Smith [1927] 
A.D. 482 (gift of husband to wife). 6 Gr. 3. 2. 7. 

6 Dig. 41. 6. 1. 1 ; Gr. 3. 2. 8. In South Africa a parent, being 
solvent, may make a valid gift to a child, who, if above the age of 
puberty, may accept on his own behalf. If he is below that age the 
father accepts on his behalf by doing some act which puts it out 
of his power to revoke the gift. See Slabber's Trustee v. Neezer's 
Exor. (1895) 12 S.C. 163. For Ceylon see Wellappu v. Mudalihami 
(1903) 6 N.L.R. 233; Silva v. Silva (1908) 11 N.L.R. 161 ; Babai- 
hamyv. Marcinahamy (1908) 11 N.L.R. 232. 

7 Moderate gifts of jewellery, &c., are excepted from the rule. 
Voet, 24. 1. 11. There are other exceptions. Wagenaar v. Wage- 
naar [1928] W.L.D. 306; Lee, Commentary, p. 233. The Roman- 
Dutch writers experienced difficulty in deciding whether a gift to 
a concubine was valid. See de Haas ad Cens. For; 1. 3. 4. 41. 



SPECIAL CONTRACTS 289 

death. 1 This rule was received in the Roman-Dutch Law, 2 
which also, as we have seen above, rendered wholly void 
gifts, whether antenuptial or postnuptial, made by a minor, 
who contracted marriage without the necessary consents, 
in favour of the other spouse. 3 

As a general rule the contract of donation requires no Registra- 
special form; but the constitution of Justinian, 4 which, 
subject to some exceptions, required registration of gifts 
exceeding 500 aurei in value, was admitted into the Roman- 
Dutch Law, 5 and has been recognized as in force in South 
Africa, the aureus being taken as equivalent to the pound 
sterling. 6 Unregistered gifts in excess of the permitted 
value are void to the extent of the excess. 7 In the case of a 
donation of immovable property transfer of the property in 
the Deeds Office satisfies the requirements of registration. 
In the case of any donation other than a donation of 
immovable property, or of a promise to give immovable 
property if the property has not been transferred to the 
donee, it is sufficient for the donation to be embodied in a 
deed notarially executed. 8 . Reciprocal and remuneratory 
gifts do not fall within the rule, 9 provided, says Voet, that 
in the latter case the gift does not exceed the value of the 
service rendered by more than 500 . 10 But this has been 

For S.A. see Louisa & Protector of Slaves v. Van den Berg (1830) 
1 Menz. 471 ; Aburrowv. Wallis (1893) 10 S.C. 214; (Ceylon) Wani- 
garatnev. Selohamy (1941) 42 N.L.R. 353 (valid). 

1 Dig. 24. 1. 32. 2; Girard, p. 1000; Est. Phillips v. Commr. for 
Inland Revenue [1942] A.D. 35; Potter and Potter v. Rand Town- 
ships Registrar P.H. 1945 (1). B. 7 [A.D.]. 

a Supra, p. 96. 3 Gr. 3. 2. 10 ; supra, p. 57. 

4 Cod. 8. 53 (54) 36. 3; Inst. 2. 7. 2. 

6 Voet, 39. 5. 18. But Grotius says (3. 2. 15): waer van ick in 
onzes lands wetten niet en vinde, misschien om dat de mildheid 
hier niet te groot en is geweest. See Lee, Commentary, ad loc. 

6 Thorpe's Exors. v. Thorpe's Tutor (1886) 4 S.C. 488; Coronel's 
Curator v. Est. Coronet [1941] A.D. at p. 340. 

7 Cod. 8. 53 (54). 34, 1 ; Est. Phillips v. Commr. for Inland 
Revenue, ubi sup. at p. 47. 

8 Commr. for Inland Revenue v. Est. Graaff [1935] A.D. 210 ; Est. 
Phillips v. Commr. for Inland Revenue, at p. 47. 

9 Fichardt Ltd. v. Faustmann [1910] A.D. 168 (promise to pay 
a pension); Avis v. Verseput [1943] A.D. 331. 

10 Voet, 39. 5. 17. 



290 THE LAW OF OBLIGATIONS 

described as an 'impracticable suggestion', 1 and it is not easy 
to say when gifts can properly be described as remuneratory. 
Apparently they may be so described whenever 'they are not 
inspired solely by a disinterested benevolence, but are, as a 
rule, made in recognition of, or in recompense for, benefits or 
services received, and therefore are akin to an exchange or 
discharge of a moral obligation '. 2 It is said that registration 
is required when several gifts are made by the same person 
at the same time to different persons, which in the aggregate 
exceed the limit below which registration is unnecessary. 3 
Removing doubts raised by some earlier cases the 
Appellate Division has decided that the rule requiring 
registration exists for the protection not merely of credi- 
tors, but also, or principally, of the donor, so that : (a) it 
holds good between donor and donee, and (6) applies to a 
gift of movables perfected by delivery. 4 An unregistered 
gift between husband and wife is not confirmed by death. 5 
No im- A gift being gratuitous, there is no implied guarantee 
plied against eviction or against latent defects. 6 If the property 
tees. given does not belong to the giver, the gift is void. 7 
In what Gifts as a rule are irrevocable. 8 Therefore, if a donor fails 
cases gifts O h an( j over property promised by way of gift he may be 
revoked, sued for breach of contract; 9 and if property has been 
handed over by the donor, he cannot reclaim it. But both 
these statements admit of some qualification. In the first 
case, the donor may defend an action on the ground of 
want of means (beneficium competentiae), and the claims 
of creditors by onerous title are preferred to the claim of 
the donee. 10 In the second case the gift may be revoked 

1 Avis v. Verseput, ubi sup. at p. 352 per Watermeyer A.C.J. 

2 Ibid, at p. 353. 
8 Voet, 39. 5. 16. 

4 Coronel's Curator v. Est. Coronel [1941] A.D. at p. 342. 

8 flames' Exor. v. Haines [1917] E.D.L. 40. 

6 Voet, 39. 5. 10. 7 Dig. 39. 5. 9, 3 ; Gr. 3. 2. 5. 

8 Gr. 3. 2. 16. 

9 Stephens v. Liebner [1938] W.L.D. 95. The measure of 
damages is (as in the case of sale) the value of the property on the 
day when delivery should have been made. Ibid. 

10 Dig. 39. 5. 12: Qui ex donatione se obligavit, ex rescripto divi 
Pii in quantum facere potest convenitur. Sed enim id quod credi- 



SPECIAL CONTRACTS 291 

and the property reclaimed i 1 (1) if the donee fails to give 
effect to a direction as to its application (donatio sub modo) ; 2 
(2) on the ground of the donee's gross ingratitude ; 3 (3) if 
at the time of the gift the donor was childless, and after- 
wards became the father of a legitimate child by birth or 
legitimation. 4 In the Roman Law this ground of revocation 
was limited to the case of gifts made by patrons to freed- 
men. 5 In the Roman-Dutch Law, according to the pre- 
vailing opinion, it was available to all donors, 6 but not to 
the donor's children or heirs. 7 

These two last grounds of revocation do not apply to 
remuneratory gifts, nor to gifts in marriage settlements. 8 

A special kind of gift is the donatio mortis causa, 9 Donatio 

which partakes of the nature both of contract and of mortis 
A causa. 

legacy. Like the ordinary contract of donation it is per- 



toribus debetur erit detrahendum ; haec vero, de quibus ex eadem 
causa [scil. donationis] quis obstrictus est, non debebit detrahere. 
Voet, 35. 9. 19. 

1 No doubt the grounds of revocation would be equally available 
as a defence to an action on the contract. 

2 Cod. 4. 6. 8 ; Girard, p. 1002. In Ex parte Trustees of the Pre- 
toria Hebrew Congregation [1922] T.P.D. 296 the Court declared 
that it had no jurisdiction to release a donee from a condition 
attached to a gift. V.d.K. (Th. 488) admits a personal action only, 
not a vindication. See Buckland, Textbook, p. 254. Under some 
modern Codes (e.g. B.G.B. Art. 527) the donor is not entitled to 
revoke the gift, but may claim from the donee the amount by which 
he has been unjustly enriched by his failure to give effect to the 
modus. For a modus imposed by will see Ex parte The Dutch 
Reformed Church of Dewetsdorp [1938] O.P.D. 136. 

3 What amounts to ingratitude is specified in Cod. 8. 55 (56). 10. 
See Gr. 3. 2. 17 ; Van Leeuwen, 4. 30. 7 ; Voet, 39. 5. 22 ; V.d.L. 
ubi sup.; Mulligan v. Mulligan [1925] W.L.D. at p. 182. For 
Ceylon see Sivarasipillai v. Anthonypillai (1937) 39 N.L.R. 47. 

4 Voet, 39. 5. 27. 

5 Cod. 8. 55 (56). 8. 

6 Gr. 3. 2. 18 ; Lee, Commentary, ad loc. ; Voet, 39. 5. 26 (ad fin.) ; 
(Ceylon) Guneratne v. Yapa (1926) 28 N.L.R. 397. 

7 Voet, 39. 5. 31 ; V.d.K. 490. 

8 Voet, 39. 5. 25 and 34; Avis v. Verseput [1943] A.D. 331. 

9 Gr. 3. 2. 22 ff . ; Voet, lib. 39, tit. 6 ; V.d.K. 492-3 ; 1 Maasdorp, 
chap. 31 ; (Ceylon) Parampalam v. Arunachalam (1927) 29 N.L.R. 
289. Buckland (Textbook, p. 257) describes it as 'a gift made in 
expectation of death, either general or on a certain event, to be 
absolute only if and when the expected death occurred'. 



292 THE LAW OF OBLIGATIONS 

intends to give, the other to accept what is given j 1 and, as 
in the case of ordinary contracts, the property does not 
pass until delivery. 2 

On the other hand a gift mortis causa resembles a legacy 
in that it takes effect on death, is revocable during the 
donor's lifetime, is ipso jure revoked by the death of the 
donee before the donor and is postponed to the claims of 
all creditors of the deceased. 3 In form too it must comply 
with the requirements of testamentary disposition, 4 which 
in the modern law usually implies execution by the donor 
in the presence of at least two witnesses. 5 This require- 
ment must be understood of a promise to give. It does not 
exclude any appropriate method of transferring the pro- 
perty which forms the subject of the gift. 

The distinction between a gift mortis causa and a gift 
inter vivos is often difficult to draw. A gift mortis causa 
is not necessarily made by a dying man or even by a man 
who is in immediate danger of death provided that it is 
made in contemplation of death, 6 nor is a gift made by a 
dying man necessarily a gift mortis causa. 7 It is a question 
of intention. In case of doubt the presumption is in favour 
of a gift inter vivos. If a man says ' I give after my death ' 
without more, it is a gift inter vivos to take effect on death. 8 

A gift mortis causa may consist either in a promise to 
give accepted by the donee, which, of course, leaves the 
property in the donor ; or in actual delivery to the donee, 9 

1 Voet, 39. 6. 6 ; Exor. Est. Komen v. De Heer (1908) 29 N.L.R. 
487 ; Meyer v. Rudolph's Exors. [1918] A.D. at p. 77 per Innes C.J. 

2 So says Voet, but under Justinian's legislation a donatio 
mortis causa executed before five witnesses (the form required 
for codicils) took effect on death like a legacy without transfer of 
possession. Buckland, p. 258. 

3 Voet, 39. 6. 4. Brink's Trustees v. Median (1864) 1 Roscoe at 
p. 212. * Voet, ibid. 

6 Meyer v. Rudolph's Exors. ubi sup., pp. 84 ff.per Solomon J.A. ; 
Wiley v. The Master [1926] C.P.D. at p. 103. 

* Voet, 39. 6. 1 ; Voet adds : 'ac necesse videtur ut aliqua in 
donando mortalitatis aut redhibitionis mentio fiat.' 

7 Dig. 39. 6. 42. 1 (in fine), Papinianus: respondi . . . eum qui 
absolute donaret non tarn mortis causa quam morientem donare. 

Voet, 39. 5. 4; 39. 6. 2. 

' Gr. 3. 2. 22; Komen's Exor. v. De Heer (1908), ubi sup. 



SPECIAL CONTRACTS 293 

in which case the gift is subject either to (a) a suspensive 
condition, so that, actually, there is no vesting of owner- 
ship in the donee unless the gift remains unrevoked and 
the donee survives the donor ; or, (6) a resolutive condition 
so that the property revests in the donor if he revokes the 
gift or if the donee predeceases him. 

There is some difference of opinion in the books as to 
capacity to make a gift mortis causa. According to Voet 
it is a question of testamentary capacity, which qualifies 
a married woman and a minor; 1 according to Grotius 
neither of these is competent. 2 It may be that the dis- 
tinction turns upon the question whether the gift is merely 
promissory or purports to effect an alienation of property. 3 

A gift mortis causa is rendered inoperative: 4 (1) by 
express revocation ; (2) cessante periculo, e.g. if the gift 
was made in contemplation of death from a particular 
illness, and the donor recovers ; (3) if the donee pre- 
deceases the donor ; 5 (4) if the donor becomes insolvent. If 
there is not enough money in the estate to meet all the 
gifts mortis causa they abate rateably like legacies, with- 
out regard to priority of creation. 6 

2. Sale. 7 The Roman-Dutch Law on this subject is 2. Sale. 
fundamentally Roman Law varied at some points by 
Dutch custom. In South Africa the law, which remains 
uncodified, has been influenced by English case law. In 
Ceylon, Ordinance No. 11 of 1896 (E.S. cap. 70) follows 
the English Sale of Goods Act, 1893. 

1 Voet, 39. 6. 5. 

2 Gr. 3. 2. 23; 1.5.23. 

3 Sande, Decis. Fris. (2. 4. 4), agrees that a married woman is 
incapable; contra, Schorer ad Gr. 3. 2. 23, and V.d.K. 100, 'si rei 
donatae post mortem demum transferatur dominium'. 

4 Gr. 3. 2. 23 ; Voet, 39. 6. 7. 

5 If they die simultaneously and the property has passed, the 
gift stands. Dig. 39. 6. 26. 6 Voet, loc. cit. 

7 Emptio venditio- Koop ende verkooping. Gr. lib. iii, cap. 
xiv ; Van Leeuwen, lib. iv, cap. xvii ; Voet, lib. xviii, tit. 1 ; V.d.L. 
1. 15. 8 ; 3 Maasdorp, chaps. 11-16 ; Wille & Millin, Mercantile Law 
of South Africa, chap. 2 ; Morice, Sale in Roman-Dutch Law 
( 1919) ; Norman, Purchase and Sale in South Africa (2nd ed. 1939) ; 
Mackeurtan, The Sale of Goods in South Africa; Wessels, vol. ii, 
chaps, xxvii ff . 



294 THE LAW OF OBLIGATIONS 

When the The contract of sale is complete so soon as the parties 

contract j ,1 i .1 

of sale is are agreed as to the price, i.e. so soon as the price is 
complete, certain or readily ascertainable. In English Law, when 
no price is fixed, there is a presumption that the parties 
intended to contract for a reasonable price. In the Roman- 
Dutch Law such a contract would not, perhaps, satisfy 
the requirements of the definition of sale. 2 But this is a 
question of words. The Courts would give effect to it as 
an innominate contract or actionable pact. 

When the The property in things sold passes, as a rule, upon 
passes? 7 delivery. But: (a) if the sale is made subject to a sus- 
pensive condition the property does not pass until the 
condition is satisfied; and (6) where credit has not been 
given the property does not pass until payment of the 
purchase price. 3 It follows that an unpaid vendor, who 
has reason to fear that he will not get his money from the 
purchaser, may reclaim the property even in the hands of a 
third person to whom the purchaser has resold it, or to 
whom the vendor may have consigned it at the pur- 
chaser's request. 4 But he must do so within a reasonable 
time, 5 which is usually, but not necessarily, understood to 
be ten days. This is the period which is allowed by the 
Insolvency Act in the parallel case of the unpaid vendor 
under a contract for payment against delivery, reclaiming 
his property in the event of the purchaser's insolvency. 6 
It must be noted that a sale may be a cash sale though 
not expressly stated to be so, and the mere delivery 

1 Inst. 3. 23 pr. : Emptio et venditio contrahitur simul atque de 
pretio convenerit. The parties must also be at one as to the res. 
As to auction sales see Marcus v. Stamper & Zoutendijk [1910] 
A.D. 58; Demerara Turf Club Ltd. v. Wight [1918] A.C. 605, and 
Neugebauer & Co. v. Hermann [1923] A.D. 564. 

2 Gr. 3. 14. 1 and 23. 

3 Inst. 2. 1. 41; Gr. 2. 5. 14; Voet, 19. 1. 11; Newmark Ltd. v. 
Cereal Manufacturing Co. Ltd. [1921] C.P.D. 52. 

4 Van Leeuwen, 2. 7. 3; 4. 17. 3; Laing v. S. A. Milling Co. 
[1921] A.D. 387. 

Groen. ad Gr. 2. 5. 14; V.d.L. 1. 7. 2 ; Daniels v. Cooper (1880) 
1 E.D.C. 174 ; Sadie v. Standard Bk. (1889) 7 S.C. 87 ; Mackeurtan, 
p. 262. 

6 Insolvency Act, 1936, sec. 36. 



SPECIAL CONTRACTS 295 

of goods raises no presumption that credit has been 
given. 1 

Property sold is at the purchaser's risk from the moment When the 
that 'the sale is perfect'. Generally this means, when the risk 
contract is concluded so as to bind the parties. 2 But this 
is not necessarily so. The contract may have been con- 
cluded subject to a suspensive condition, or something 
may remain to be done to determine the price or what is 
sold ; for instance, if the price is to be fixed by a third 
person and the third person has not fixed it, or bales are 
sold at so much per bale and the bales have not been 
counted, or a hundred bales are sold from the stock in a 
warehouse and the bales have not been appropriated to 
the contract. These requirements are summed up in a 
passage in the Digest where Paulus says : 

It is necessary that we should know when a sale is perfect, 
for then we shall know whose is the risk, for when the sale is 
perfect the risk will attach to the purchaser. Should it appear 
what is sold, of what quality and in what quantity, and the 
price is fixed, and the sale is unconditional, the sale is perfect. 3 

So long as any one of these requirements is not satisfied, 
the sale is 'imperfect' and the risk does not pass. 'The 
contract may be quite complete for the purpose of pro- 
ducing the obligations which ordinarily result from it, and 
yet not "perfect" for the purpose of transferring the risk 
from the vendor to the purchaser.' 4 The right to the fruits 
and other advantages of the property, including rents 
accruing due under an existing lease, 5 accompanies the 
risk. 6 

1 V.d.K. 203 ; Sadie v. Standard Bank (1889) 7 S.C. 87. 

2 Inst. 3. 23. 3; Voet, 18. 6. 1; V.d.K. 639; Home v. Hutt 
[1915] C.P.D. 331. 

3 Dig. 18. 6. 8 pr. : Necessario sciendum est, quando perfecta 
sit emptio : tune enim sciemus, cujus periculum sit : nam perfecta 
emptione periculum ad emptorem respiciet. et si id quod venierit 
appareat quid quale quantum sit, sit et pretium, et pure venit, 
perfecta est emptio. 

4 Moyle, Contract of Sale in the Civil Law, p. 76. 

5 De Kock v. Fincham (1902) 19 S.C. 136; Walker v. Wales 
[1922] C.P.D. 49; Kidney v. Garner [1929] C.P.D. at p. 169. 

6 Gr. 3. 14. 34; 3. 15.6. 



296 THE LAW OF OBLIGATIONS 

Warranty It is not an implied condition in the contract of sale 
eviction. * na * a vendor should make a good title. 1 A man may 
contract to sell res aliena no less than res sua. 2 But he 
must give vacant possession to the purchaser. 3 If he fails 
to do so, or if after delivery the purchaser is evicted by 
superior title, the vendor is liable in damages. However, 
a sale by a vendor of what, to his knowledge, does not 
belong to him to a purchaser who is ignorant of the fact, 
is regarded as a fraud upon the purchaser, who may at 
once maintain an action on the contract without waiting 
for eviction. 4 

Remedies In case of eviction the purchaser may claim a refund 
eviction^ ^ *^ e P r ^ ce ' or damages (if the price has not been paid, 
damages only) measured by the value of the property at 
the date of eviction, 5 less any compensation which the 
purchaser as bona fide possessor may be entitled and able 
to recover from the true owner. 6 Mackeurtan in his book 
The Sale of Goods in South Africa adds a further qualifica- 
tion. The property may have increased in value owing to 
a fortuitous event, e.g. in the case of the sale of land if 
gold has been discovered upon it, or a railway brought to 
it. It would be unfair to charge the vendor with this 
increase in value. Damages, therefore, should be limited 
to such damage as would necessarily flow from the breach 
irrespective of accidental circumstances. This excludes 
an increase in value which the seller did not contemplate 
or could not reasonably have contemplated at the time of 
the sale. 7 If the purchaser has knowingly bought a thing 
which did not belong to the vendor (res aliena) in the absence 

1 Mackeurtan, pp. 2, 193. 2 Gr. 3. 14. 9. 

3 Theron v. Schoombie (1897) 14 S.C. 192; Lourenson v. Swart 
[1928] C.P.D. 402; Sauerlander v. Townsend [1930] C.P.D. 55. 

4 Dig. 19. 1. 30, 1 ; Kleynhans Bros. v. Wessels' Trustee [1927] 
A.D. at p. 290. 

8 If the price has not been paid and the value has fallen the 
damages will be nil. 

6 Gr. 3. 15. 4 ; Mackeurtan, p. 377. 

7 Mackeurtan's opinion is based upon Dig. 19. 1. 43 (in fine): 
plane si in tantum pretium excedisse proponas, ut non sit cogita- 
tum a venditore de tanta summa . . . iniquum videtur in magnam 
quantitatem obligari venditorem. 



SPECIAL CONTRACTS 297 

of an express warranty against eviction, he cannot claim 
damages or even a refund of the price. 1 

There is no implied warranty against eviction if a Selling 
purchaser sells a thing 'good or bad for what it is worth ', vc 
'as it stands', 'with all its faults', or, according to the 
common phrase, voetstoots? It seems that in this case too 
the purchaser cannot recover the price. 3 

A vendor cannot, generally, give to an innocent pur- Nemo dat 
chaser a better title than his own. In Holland, a purchaser habet" 
who had no notice of his vendor's defect of title might 
sometimes retain the goods against the true owner, unless 
the latter paid him the price which he had given for them. 
The principal case is sale in a 'free market'. 4 But this has 
no equivalent in the modern law. 5 

In the absence of contrary agreement (which would be Warranty 
another case of voetstoots] the vendor is understood to Defects 
warrant the purchaser against any defect in the thing sold 
unfitting it for its ordinary use, or for any special purpose 
communicated to the vendor, or for which he warrants or 
represents it to be fit. 6 .Thus, where food is sold for 
human consumption it is an implied condition that it is 
reasonably fit for the purpose. 7 The warranty does not 
extend to defects which a purchaser who has inspected the 
property saw or should have seen. 8 If the defect is such 
that a purchaser 9 with knowledge of it would not have 

1 V.d.K. 641 ; Lee, Commentary, p. 299. 

2 Gr. 3. 14. 12: zoo goed ende quaet als 't is, zonder daef voor in 
te staen, 't welck men noemt met de voet stoten. The idea is that 
the vendor kicks the thing from him. 

3 V.d.K. Dictat. ad Gr. 3. 14. 12 ; Lee, Commentary, ad loc. 

4 Gr. 2. 3. 6. A free market was one which enjoyed special 
privileges, e.g. those resorting to it were free from arrest for debt. 
It was by no means the case that every public market was a free 
market. B Appendix E ; Lee, Commentary, p. 72. 

6 Bosman Bros. v. Van Niekerk [1928] C.P.D. 67; Cohen & 
Klein v. Duncan Gray & Co. [1936] C.P.D. 490; Mackeurtan, 
pp. 213, 218. 7 Kroomer v. Hess & Co. [1919] A.D. 204. 

8 Mackeurtan, pp. 211, 212. With this qualification the war- 
ranty extends to all defects latent or patent. Ibid. 

9 A purchaser, not the purchaser. In the modern law 'the test 
is not the purchaser's view at all, but that of the reasonable 
man'. Mackeurtan, p. 303. 



298 THE LAW OF OBLIGATIONS 

The aedi- concluded the contract, he may, by the actio redhibitoria, 
actions, rescind the sale restoring the property and recover the 
purchase money with interest from the date of payment 1 
and any expenses necessarily incurred about the thing 
sold, 2 but not damages for loss of profit. 3 Defects which 
are serious enough to give rise to this remedy are termed 
redhibitory defects. In the alternative the purchaser may 
sue for reduction of the price in the actio aestimatoria or 
quanti minoris. These actions are known as the aedilitian 
actions because they came into the Roman Law through 
the edict of the curule aediles. 

Restitu- The aedilitian actions were restitutory, not compen- 

compen- satory, in character, and were supplementary to the pur- 

satory. chaser's civil law remedy, the actio empti or ex empto. 

This lay for damages for breach of the contract, but gave 

no damages for defects in the thing sold unless the seller 

When either: (1) knew of the defect, or at least had reasonable 

may be ground for suspecting it, and did not make it known to 

claimed, ^he purchaser ; 4 or (2) expressly warranted the absence of 

defects. 5 In these two cases, besides requiring the vendor 

to take back the thing and refund the price, the purchaser 

could sue for consequential damages. In other cases he 

could not. In Erasmus v. Russell's Exor. which came before 

the Transvaal Supreme Court in 1904, it was held that a 

purchaser with an express warranty was in no better 

position than one who had bought without warranty. The 

argument was that the express warranty gave him no 

more than was already given him by the warranty implied 

by law. Consequently, when a purchaser bought cattle 

with an express warranty against disease and the beasts 

1 Voet, 21. 1. 4; Jones v. Cotta & Co. (1902) 23 N.L.R. 269 
(defective rickshaw tyres) ; Cohen & Klein v. Duncan, Gray & Co., 
ubi sup. (cash register machine which frequently jammed). 

2 Nourse v. Malan [1909] T.S. at p. 205; Kirsten v. Niland 
[1920] E.D.L. 87 ; Mackeurtan, p. 321. 

J Seggie v. Philip Bros. [1915] C.P.D. 292. 

4 Dig. 19. 1. 13 pr. ; Pothier, Contrat de Vente, sec. 213; Eras- 
mils v. Russell's Exor. [1904] T.S. at p. 373. 

6 Dig. 19. 1. 6, 4; Evans & Plows v. Willis & Co. [1923] C.P.D. 
496. 



SPECIAL CONTRACTS 299 

were in fact infected with tick-fever, which was com- 
municated to the rest of the purchaser's herd with heavy 
consequential loss, it was held that he was entitled to a 
refund of what he had paid, but not to damages. 1 But this 
does not represent the present state of the law. ' Erasmus's 
case must now be taken to be bad law in so far as it deals 
with the measure of damages on breach of an express 
warranty.' 2 

On the other hand there are particular circumstances in 
which damages may be recovered for breach of an implied 
warranty ; viz. when the seller is the manufacturer of the 
defective article, 3 or is a merchant selling goods in which 
he makes it his business to deal. 4 Thus a provision-dealer 
was held liable for the sale of a defective tongue in a tin 
which he sold to a customer in the state in which he had 
received it from the manufacturer. 5 

The aedilitian actions are limited by short periods of Periods of 
prescription. By the Dutch Law the actio redhibitoria must tl^n?" 
be brought within six months of the date of the sale, 
the actio quanti minoris within twelve months, unless in 
either case the Court saw fit to prolong the term. 6 The 
period is now one year for both actions. 7 The purchaser 
may plead an exceptio quanti minoris in answer to the 
vendor's action for the price. This is not subject to the 
short prescription which bars the action. 8 

The question may be asked what is the measure of The actio 
reduction in the actio quanti minoris. The Roman texts <l^ ant ? 

minoris. 

speak indifferently of the less price the purchaser would 
have given (quanto minoris empturus fuerit) 9 and the less 

Erasmus v. Russell's Exor. [1904] T.S. 365. 

Mackeurtan, p. 217, n. 80. 

Seggie v. Philip Bros. [1915] C.P.D. at p. 306. 

Pothier, Contratde Vente, sec. 214; Mackeurtan, pp. 321, 324; 
Marais v. Commercial General Agency Ltd. [1922] T.P.D. at p. 444. 

Young's Provision Stores v. Van Ryneveld [1936] C.P.D. 87. 

Voet, 21. 1. 6; Nourse v. Malan [1909] T.S. 203. 

Prescription Act, 1943, sec. 3 (2) following Transvaal Act 26 of 
1908, sec. 3. Under this Act it was held that the Court had no 
discretion to allow an extension. Cluley v. Mutter [1924] T.P.D. 720. 

8 McDaid v. De Villiers [1942] C.P.D. 220. 

9 Dig. 19. 1. 13 pr. ; 21. 2. 32, 1. 



300 THE LAW OF OBLIGATIONS 

value (quanti minoris res fuerit). 1 South African practice 
has adopted another standard, viz. the difference between 
the purchase price and the value of the thing in its defective 
condition at the date of sale (or delivery ?). 2 

In Holland, by general custom, the Count had a right 

Pre- of pre-emption over feuds ; and, by local custom, relatives 
and others had a similar right over other immovable 
property. This right was called naasting or jus retractus. 3 
It has no equivalent in the modern law, but a right of 
pre-emption may be the subject of express stipulation 
(conventional retractus). 4 

Laesio The subject of laesio enormis (which in the Roman- 

a18 ' Dutch Law is not limited to the contract of sale) has been 
mentioned in an earlier chapter. 5 

3. Ex- 3. Exchange. 6 The rules applicable to the contract of 

sale are in general applicable to the contract of exchange. 
In the Roman Law, exchange was a real contract, i.e. 
no obligation arose until one party had delivered property 
to the other. In the modern law, an agreement to exchange 
is actionable per se. 1 In the Roman Law the property 
exchanged must be res sua, not res aliena, and in this 
respect exchange differed from sale. 8 In the modern law, 
there seems no reason why, if you agree to give me the 
horse of Titius in exchange for my ox, you should not be 
bound by your agreement. 

4. Hire. 4. Hire. 9 In the Roman Law, the contract locatio 

1 Dig. 21. 1. 38 pr. and 13. 

2 S. A. Oil & Fat Industries v. Park Eynie Whaling Co. [1916] 
A.D. at p. 413 ; Mackeurtan, pp. 338, 382. 

3 Gr. lib. iii, cap. xvi; Voet, 18. 3. 9 ff. 

4 3 Maasdorp, p. 148 ; Robinson v. Randfontein Eats. O. M. Co. 
[1921] A.D. at p. 188 ; Sher v. Allan [1929] O.P.D. 137. 

6 Supra, p. 234. 

6 Permutatio Ruiling. Gr. 3. 31. 6; Voet, lib. xix, tit. 4. 

7 Worcester Municipality v. Colonial Oovt. (1909) 3 Buch. App. 
Cas. at p. 553. 8 Voet, 19. 4. 2. 

9 Locatio conductio Huir ende Verhuiring. Gr. lib. iii, cap. 
xix ; Van Leeuwen, lib. iv, capp. xxi-xxii ; Voet, lib. xix, tit. 2 ; 
V.d.L. 1. 15. 11 ; 3 Maasdorp, chaps. 17-21 ; Wille & Millin, chap. 
3; Wille, Landlord and Tenant in South Africa (2nd ed., 1927). 
For hire -purchase see the Hire -Purchase Act, 1942 and M. A. Die- 
mont, The Law of Hire-Purchase in South Africa (Juta & Co. Ltd.). 



SPECIAL CONTRACTS 301 

conductio has a wide extension. It covers not only the 
hire of things (locatio conductio rei), but also the hire of 
services (locatio conductio operarum), and the putting out 
of a piece of work on contract (locatio conductio operis). 1 
Under the first head are included the hire of movables, 
such as a horse or carriage, and the hire of land, or what 
is nowadays commonly known as a lease. The term 'hire 
of services ' covers contracts between master and servant, 
and all other contracts of employment for reward. In the 
modern law, it includes also contracts for professional 
services, which, having originally been in theory, if not in 
fact, honorary in character, were referred by the Roman 
Law to the head not of hire, but of mandate. 2 

In the Roman-Dutch Law the rules relating to the hire 
of movables and the hire of services correspond closely 
with the Roman Law, and need not detain us. 

The contract of hire of land calls for separate treatment. Hire of 
The rules which we shall state with regard to it are in many land: 
respects applicable to the hire of movables as well. 

In an earlier chapter we have considered the hire ofinrela- 
land in relation to the law of property, and have inquired {^ilw O f 
how far a lease creates a right in rem. 3 property; 

As regards form, we have seen that sometimes, to pro- as regards 
duce this result, the lease must be effected by a judicial form> 
act or by a notarial deed duly registered, and that in 
some jurisdictions the law requires that leases for shorter 
periods should be in writing. 4 

The landlord's lien has been mentioned in the chapter Land- 
on Mortgage or Hypothec. 5 lord ' 8 Uen< 

In its purely contractual aspect, the contract of hire of Hire of 
land (lease) involves the consideration of the rights and Ration 
duties which, in the absence of contrary agreement, the to the 
law confers and imposes upon lessor and lessee, the rights contract. 
of the one being the counterpart of the duties of the other. 

The lease (so-called) of mineral rights in the form usual in 3. A. is a 
contract sui generis. Edwards (Waaikraal) G. M. Co. v. Mamogale 
[1927] T.P.D. 288. 1 Lee, Elements of Roman Law, p. 314. 

11 Girard, p. 607. 3 Supra, p. 161. 

4 Ibid. 6 Supra, pp. 193ff. 



302 THE LAW OF OBLIGATIONS 

Duties of The duties of the lessor are: (1) to deliver the subject 
of the lease to the lessee ; x (2) after delivery to abstain 
from interfering with the lessee's occupation and enjoy- 
ment, and to guarantee him against justifiable interfer- 
ence by others; 2 (3) to deliver and maintain the subject 
of the lease in such a state of repair that it may be con- 
veniently used by the lessee for the purpose contemplated 
by the lease. 3 When a landlord refuses to execute those 
reasonable repairs which the common law requires him to 
do, the tenant may effect such repairs himself and deduct 
the necessary cost from the rent ; 4 (4) to see that the sub- 
ject of the lease is free from such defects as will prevent 
its being properly and beneficially used for the purpose 
for which it was leased; 5 (5) to pay all taxes imposed 
upon the property. 6 

Duties of The duties of the lessee are: (1) to pay the agreed rent 
in terms of the contract ; 7 (2) to take proper care of the 
property leased thus, not to injure or destroy it ; 8 (3) not 
to use it for any purpose other than that for which it was 
leased; 9 (4) to retain the leased property until the lease 
expires ; 10 (5) to restore it to the lessor in a proper state of 
repair on the expiry of the lease. 11 

1 Voet, 19. 2. 26; V.d.L. 1. 15. 12. 

3 V.d.L. ibid. ; Wille, Landlord & Tenant, pp. 132 ff. 

3 Gr. 3. 19. 12; Voet, 19. 2. 14; V.d.L. ubi sup.; Poynton v. 
Cran [1910] A.D. at p. 221 ; Henning v. LeRoux [1921] C.P.D. 587 ; 
Cape Town Munic. v. Paine [1923] A.D. atp. 218 ; Amin v. Ebrahim 
[1926] N.P.D. 1. 

4 Gr. ubi sup. ; Poynton v. Cran, ubi sup. 

5 Hannay v. Parfitt [1927] T.P.D. 111. 

6 Gr. 3. 19. 15. Secus if charged upon the fruits. Van Leeuwen, 
4. 21. 5. 

7 Voet, 19. 2. 22. Strictly speaking, where no rent is agreed 
there is no contract of letting and hiring, but the owner of the 
property is entitled to compensation for 'use and occupation'. 
Murphy v. London & S. A. Exploration Co. (1887) 5 S.C. 259; 
Pereira, p. 667. Cf. Voet, 19. 2. 7 (ad fin.). 

8 Gr. 3. 19. 11 ; Voet, 19. 2. 29. He may not (e.g.) convert pas- 
ture into arable land, Van Leeuwen, 4. 21. 4; V.d.K. 680 (mis- 
translated by Lorenz). 9 V.d.L. ubi sup. 

10 Gr. 3. 19. 11 (in fin.). Is the lessee bound to take possession ? 
Not in French or German law. For Roman Law there is no 
authority. Lee, Elements of Roman Law, p. 317, n. 34. 

11 Voet, 19. 2. 32. 



SPECIAL CONTRACTS 303 

Generally speaking, neither party to the contract is No 
liable unless he has been guilty of dolus or culpa. Thus the w tthout 
lessor of a house is not answerable for accidental destruc- dolu8 or 
tion by fire and is not bound to rebuild. 1 Similarly a lessor Ci 
is not in principle answerable for undisclosed defects of 
which he neither knew nor ought to have known ; but if 
the thing is in such a state that it does not serve for the 
ordinary uses of such things, the lessor is responsible, 'not 
on the ground of negligence, but for not supplying what 
he contracted to supply'. 2 

As regards the lessee's liability for injury to the property, 
apart from minor cases of disrepair, such as arise ordinarily 
from the fault of the lessees, of their families, or of persons 
whom they introduce into the house and which do not 
arise from the age or bad quality of the deteriorated 
articles, a lessee will not be answerable, unless the dis- 
repair is shown to be the result of his wrongful act or 
negligence. 3 

If a lessee remains in possession after expiry of the Tacit relo- 
lease, without objection on the part of the lessor, there is catlon - 
held to be a renewal of the lease for a period, which varies 
with the terms of the original hiring and other circum- 
stances (tacit relocation). 4 In the case of a yearly tenancy 
of a rustic tenement the renewal will usually be for a year. 5 
As regards urban tenements: 'In the Cape Province . . . 
it has been repeatedly held that where the original lease 
provides for a monthly rent, the relocation becomes a 

1 Windscheid, ii. 400, n. 5. 

2 Voet, 19. 2. 14 in fine; Buckl., p. 500, citing Dig. 19. 1. 6, 4. 
8 A. B. Reid & Co. v. Federal Supply Co. (1907) 24 S.C. 102 

(broken plate glass window no inference of negligence) ; Bresky v. 
Vivier [1928] C.P.D. 202. If the lessee has covenanted to repair, 
'the ordinary rule is ... that the buildings must be left in the state 
of repair in which they were delivered to the lessee. De Beers 
Consolidated Mines v. London & S. A. Exploration Co. (1893) 
10 S.C. at p. 373 ; Poynton v. Cran [1910] A.D. at p. 238. 

4 Voet, 19. 2. 9; Tiopaizi v. Bulawayo Munic. [1923] A.D. at 
p. 325 ; Tshabalala v. Van der Merwe [1926] N.P.D. at p. 79. 

5 Semble, Dig. 19. 2. 13, 11; Gr. 3. 19. 8; Voet, 19. 2. 10; 
Japhtha v. Mill's Exors. [1910] E.D.C. at p. 155; Lee, Com- 
mentary, pp. 303-4. 



304 THE LAW OF OBLIGATIONS 

monthly tenancy terminable on a month's notice, whether 
the original lease was for a year, three years, six years, or 
some other period.' 1 

When The lessee may in certain cases claim a reduction or 

claim may remission of rent. These are: (1) if the lessor fails to 
remission deliver the whole of the property agreed to be leased ; 2 
(2) if the lessee is evicted, 3 or if his use or enjoyment is 
interfered with, either by the lessor, 4 or by some third 
person 5 in the exercise of a legal right ; 6 (3) if the lessor 
fails to keep in repair ; 7 (4) if the lessor fails to see that the 
thing leased is free from defects; 8 (5) if the property 
leased has been destroyed completely, 9 or to such an 
extent as to be useless for the purpose for which it was 
let; (6) if the lessee has abandoned possession for just 
cause, 10 or if his enjoyment of the property has been 
seriously interrupted by fire, flood, or foe or other causes 

1 Wille, p. 50. 

2 Voet, 19. 2. 26. The same principle applies to the hire of 
services. An employee who fails owing to illness to render the full 
service which he has undertaken to perform can recover the agreed 
salary only pro rata parte. There is some mitigation of this rule in 
favour of domestic servants. Voet, 19. 2. 27 ; Boyd v. Stuttaford 
[1910] A.D. 101. 

8 Voet, 19. 2. 26 ; Donniger v. Thorpe [1930] T.P.D. 839. 

4 Baum v. Rode [1905] T.S. 66. 

6 Voet (19. 2. 23) gives as an instance the case of the lessor 
alienating the property before the lease has expired. But this 
would only hold at the present day in cases in which koop gaat voor 
huur (V.d.L. 1. 15. 12). Another case is si non commodus sit 
praestitus rei usus e.g. if a lessee's lights are wholly obscured by a 
neighbour (Voet, 19. 2. 23) ; but slight interference does not entitle 
the lessee to relief. Dig. 19. 2. 27 pr. ; Voet, 19. 2. 18. It may be 
necessary for the lessor to deprive the lessee of possession for the 
purpose of effecting repairs. The lessee while so out of possession 
pays no rent, Voet, 19. 2. 16; Shapiro v. Yutar [1930] C.P.D. 92; 
unless he entered into the lease with knowledge of the circum- 
stances rendering repairs necessary. Larkin v. Jacobs [1929] 
T.P.D. 693; Orsmond v. Van Heerden [1930] T.P.D. 723. 

6 Rex v. Stamp (1878) 1 Kotze, 63. 

7 Gr. 3. 19, 12; Voet, 19. 2. 23. 

8 Dig. 19. 2. 19, 1 ; Voet, 19. 2. 14 (ad fin.). 

9 Dig. 19. 2. 9, 1 ; V.d.L. 1. 15. 12; North Western Hotel Co. v. 
Rolfes, Nebel & Co. [1902] T.S. at p. 331. 

10 Such as ghosts spectra in aedibus dominantia (Rex v. 
Zillah [1911] C.P.D. at p. 647) ; or if the house becomes ruinous or 
dangerous. Voet, 19. 2. 23. 



SPECIAL CONTRACTS 305 

beyond his control (vis major-casus fortuitus) j 1 (7) if there 
has been an extraordinary failure of crops, due to tempest 
or any of the above mentioned causes. 2 

Most of these grounds of remission rest upon the broad 
principle that the duties of lessee and lessor are reciprocal. 
If the latter fails in his duty the former need not pay his 
rent. But for the last two grounds of remission the lessor 
is no more to blame than the lessee. Accordingly at the state of 
Cape the General Law Amendment Act, No. 8 of 1870,^^^ 
provides (sec. 7) that the rent accruing under a lease shall Province, 
not 'be incapable of being recovered on the ground that the 
property leased has, through inundation, tempest, or such 
like unavoidable misfortune, produced nothing (or on the 
ground that the lessor himself has absolute need of the 
land) '. 3 By judicial interpretation the phrase ' unavoidable 
misfortune ' has been extended to acts of war. 4 There is a 
similar provision in the Free State. 5 

In the Roman Law a lessee was entitled to compensation Compen- 
for necessary and useful expenses, 6 being in this respect ^** T 
assimilated to the bona fide possessor. 7 Grotius, following ments. 
the Roman Law, makes no distinction between the two 
cases. 8 But, after his time, a Placaat of September 26, 
1658, contained provisions very inimical to lessees. 9 By 
this enactment a lessee is entitled to compensation for 

1 Zweigenhaft v. Rolfes, Nebel & Co. [1903] T.H. 242; Sheffield 
v. Hart [1903] T.H. 469; Hansen, Schroder & Co. v. Kopelowitz 
[1903] T.S. 707 (lessee of licensed premises). There must be a 
direct relation of cause and effect between the vis major, &c., and 
the loss of enjoyment. Ibid. 

2 Gr. 3. 19. 12; Van Leeuwen, 4. 40. 7; Voet, 19. 2. 24-5. May 
the lessor require the lessee to set off extraordinary gain in one 
year against extraordinary loss in another (sec. 24) ? What is 
extraordinary loss (sec. 25) ? 

3 See below, p. 310, n. 6. 4 3 Maasdorp, p. 245. 

5 The corresponding clause in O.R.C. Ord. No. 5 of 1902, sec. 5, 
before the words ' through inundation ' inserts the words ' through 
war or insurrection or'. For Ceylon see Wijesiriwardene v. Guna- 
sekera (1917) 20 N.L.R. 92. 6 Dig. 19. 2. 55. 1. 

7 See Appendix J. 8 Gr. 2. 10. 8. 

9 Placaet van de Staten van Hollandt tegens de Pachters ende 
Bruyckers van de Landen (2 G.P.B. 2515), re-enacted by Placaat 
of February 24, 1696 (4 G.P.B. 465). For text and translation see 
Lee, Commentary, pp. 92, 93. 

4901 . 



306 THE LAW OF OBLIGATIONS 

structures (getimmer) annexed to the land with the lessor's 
consent, and for ploughing, tilling, sowing, and seed-corn. 1 
His claim to compensation, after vacating possession, is 
enforceable by action and is secured by a statutory hypo- 
thec upon the land. He has no right to retain possession 
until his claim is satisfied. 2 

Compensation is assessed on a singularly ungenerous 
scale. The law provides that 'account shall be taken only 
of the bare materials, without sand, lime, and workmen's 
wages, such as they shall actually be worth at the time 
of the said assessment, just as if they were removed from 
the ground'. 3 In other words, the lessee gets what the 
materials would be worth to a housebreaker after destruc- 
tion and removal. He is entitled to no compensation 
whatever if a structure was erected without the landlord's 
consent or if an improvement cannot be brought under the 
description of a structure. He may remove any fixture 
annexed to the land with or without consent 4 before, but 
not after, the determination of the lease. This is limited 
to cases in which removal can be effected without serious 
injury to the premises, 5 and subject to the duty of restoring 
them to their original condition. 6 When it is said that the 
right of removal cannot be exercised after the determina- 
tion of the lease this must be understood of fixtures which 
have become immovable by annexation to the soil. If they 
remain movable, they may be removed before or after the 
determination of the tenancy. 7 

1 Placaat, Art. 10. Though the text of the Placaat speaks of 
'structure', an agricultural tenant's right to compensation is not 
confined to structures in the nature of buildings, but extends to 
other structures or improvements, as wire fences, bridges, dams, 
&c. Von Holdt v. Brewer [1918] C.P.D. 163. 

a Placaat, Arts. 10 and 11. 

8 Placaat, Art. 1 1 ; De Beers Consolidated Mines v. London & 
S. A. Exploration Co. (1893) 10 S.C. at p. 368 ; Steinbach v. Schmidt 
[1930] S.W.A. 8. 

4 De Beers at pp. 370-3. Has the landlord the option to retain 
it paying compensation ? Windscheid, ii. 400 ; Barnard v. Col. 
Oovt. (1887) 5 S.C. 122. 5 De Beers, loc. cit. 

8 Dig. 19. 2. 19, 4. 

7 Abrahams v. Isaacs & Co. (1887) 5 S.C. 183; Mclntyre v. 
Johnston (1895) 2 Off. Rep. 202 ; Wille, p. 263. 



SPECIAL CONTRACTS 307 

The above considerations do not apply to necessary im- 
provements, as to which the Placaat is silent. In this case 
the common law applies and the lessee is entitled to com- 
pensation 1 on the same basis as a bona fide possessor, and 
has, perhaps, a right of retaining possession until his claim 
is satisfied, but no right of removal. It seems that com- 
pensation is due whether such improvements were made 
with or without the landlord's consent. The measure of 
compensation for improvements 'depends not upon the 
cost of erection, nor upon the value of the materials 
annexed, but upon the extent to which the value of the 
land has been enhanced'. 2 

The weight of judicial opinion is in favour of the view 
that the provisions of the Placaat are to be taken to apply 
to houses as well as to agricultural property. 3 

The lessee is not entitled to compensation for trees Compen- 
planted by him unless he can prove that he planted them l^ 1 for 
at the lessor's instance (last ende bevel), and even in that planted 
case is entitled to be compensated only for the cost of the y 
trees at the time of planting 4 and for the labour of plant- 
ing. 5 Once planted the trees" accede to the soil and may 
not be removed or cut down. 6 

1 De Beers at p. 369. 

2 Willoughby's Consold. Co. v. Copthall Stores [1918] A.D. at p. 20. 

3 De Beers (1893) 10 S.C. 359, affirmed in appeal to P.O. 
12S.C. 107; [1895] A.C. 451 ; Rubin v. Botha [1911] A.D. at p. 579 
(per Innes J.) ; contra, Burrows v. McEvoy [1921] C.P.D. at p. 234 
per Kotze J.P. 

4 Placaat, Art. 13 ; Oosthuizen v. Oosthuizen's Est. [1903] T.S. at 
pp. 692-3 ; Lee, Commentary, p. 95. 

5 Eos v. Vermeulen [1927] O.P.D. 5. 

6 De Beers at p. 369. But a lessee may cut silva caedua, i.e. 
trees which sprout anew from the roots, such as blue gum trees, 
Houghton Est. Co. v. McHattie & Barrat ( 1 894) 1 Off. Rep. at p. 103 ; 
unless planted for ornament, Brice v. Zurcher [1908] T.S. 1082; 
and in Burrows v. McEvoy, ubi sup., Kotze J.P. held that the 
lessee of an urban tenement may during his tenancy and on its 
determination, but not after, remove garden flowers and vege- 
tables. By Art. 14 of the Placaat, fruit trees and timber trees 
(vruchtbare Boomen ofte opgaende Hout) are not to be lopped or 
cut down without the landlord's written consent (opgaende hout, 
hoc est arbores procerse. Christinaeus, ad legg. Mechl. xv. 4. 8). 
Van der Keessel says in general terms (Th. 215): Plantatae in 



308 THE LAW OF OBLIGATIONS 

Assign- The interests of the lessor and lessee respectively are 
sublease, assignable by act of party. 1 The effect of assignment by 
a lessee is to substitute the assignee (cessionary) in the 
place of the original lessee, who thereupon ceases to be 
bound or entitled under the contract. 2 A sublease has no 
such effect. It is a contract whereby the original lessee lets 
the property to a third party for the whole 3 or for a part of 
the unexpired term of the original lease. As between lessee 
and sublessee there is a cession of the lessee's rights of use 
and enjoyment ; but the lessee does not cease to be liable 
to the lessor, 4 nor does the sublessee become liable to, or 
acquire any rights against, the lessor. As between lessor 
and sublessee there is no privity of contract. 5 
Is the Since, then, assignment has the effect of discharging 

the original lessee from his liabilities under the lease, it 



necessary is in accordance with principle to hold that it can only 

assign! take place with the landlord's consent, and that this is 

ment, equally the case whether the subject-matter of the lease 

is a house or land (urban or rural property). The law of 

South Africa may now be taken to be settled in this 

sense. 6 But if the lease is expressed to be made with 

fundo conducto arbores solo cedunt nee earum pretium dominus 
qui plantari non jussit restituit. 

1 If the lessor assigns, the lessee must pay the rent to the as- 
signee even though he may have paid the lessor in advance. Voet, 
19. 2. 19. But see De Wet v. Union Oovt. [1934] A.D. 59 and 
Wille (3), p. 166. 

2 Reeders & Wepener v. Johannesburg Town Council [1907] T.S. 
at pp. 652, 654; Jassat v. Lewis [1924] T.P.D. 11. The term 
'assignment' is an importation from English Law, which has 
established itself in South African usage. The word 'cession' is 
used in the same sense. 

3 Secus in English Law. Wharton's Law Lexicon sub voce 
Under -lease. 

4 Dunman v. Trautman (1891) 9 S.C. at p. 17 per de Villiers C.J. 
6 Voet, 19. 2. 21; Green v. Griffiths (1886) 4 S.C. 346; Wille, 

p. 103. 

6 Bolfes, Nebel & Co. v. Zweigenhaft [1903] T.S. 185; Jassat v. 
Lewis, ubi sup. There seems to be no sufficient reason for dis- 
tinguishing in this respect between short leases and long leases. 
Wessels, however, does so (i. 1739) ; nor between rural and urban 
tenements. De Villiers C.J.. however, does so. Green v. Griffiths, 
ubi sup. at p. 350. 



SPECIAL CONTRACTS 309 

the lessor 'and his assigns' the lessor's consent is not 
required. 1 

Different considerations apply to a sublease. The right or sub- 
to sublet may be restricted by covenant, but in the absence 
of such agreement the lessee of a praedium urbanum is 
free to sublet without the consent of the lessor. Whether 
the lessee of a praedium rusticum may do the same has 
long been a vexed question. The Cape Courts have held 
consent in writing to be necessary. 2 The Courts of the 
Transvaal have held consent to be unnecessary. 3 

The effect of assignment by the lessor has received little How the 
attention from the Courts. Does a sale of the property 



relieve him from further responsibility to the lessee ? 4 deter- 

The contract of letting and hiring is determined: (1) by 
expiration of the term fixed or implied for its duration, 5 
and in the case of a lease at will by a declaration of inten- 
tion by, or by the death of, either party ; 6 (2) by the deter- 
mination of the lessor's interest, 7 e.g. if he is merely a 

1 Reeders & Wepener v. Johannesburg Town Council, ubi sup. 

2 De Vries v. Alexander (1880) Foord 43 ; Friedlander v. Croxford 
(1867) 5 S. 395; Nieuwoudt v. 'Slavin (1896) 13 S.C. at p. 63; Du 
Preez v. M'Kwambi [1929] E.D.L. at p. 92. The law is the same 
(semble) in O.F.S. (Cullinan v. Pistorius [1903] O.R.C. 33). But 
see Besterv. Taylor [1912] O.P.D. 60. 

3 Eckhardt v. Nolle (1885) 2 S.A.R. 48. Prof. Wille (p. 107) 
considers the first view to be 'distinctly preferable'. There is a 
somewhat ill-defined rule that a lessor may object to a sublocation 
which he deems to be prejudicial to his interest, e.g. if the sub- 
lessee is likely to use the premises in a way unsatisfactory to him. 
Voet, 19. 2. 5: Si conductor secundusejus conditionis sit ut magis 
utendo nociturus sit rebus conductis quam primus, aut aliis usibus 
rem locatam destinaturus. See Rolfes, Nebel & Co. v. Zweigenhaft 
[1903] T.S. 185. But why cannot the lessor, if he apprehends any- 
thing of the kind, protect himself by express stipulation? Consult 
on the whole subject Wille, Landlord and Tenant in South Africa, 
chap, viii, Subletting and Assignment ; Morice, English and Roman- 
Dutch Law, Dutch Law, p. 172. 

4 Boshoffv. Theron [1940] T.P.D. 299. 5 V.d.L. 1. 15. 12. 

8 Gr. 3. 19. 9 ; Voet, 19. 2. 9. But a lease may be validly made 
'for as long as the lessee pleases '. In such case the landlord is not 
entitled to determine the lease by notice. Friedman v. Friedman 
[1917] C.P.D. 268. 

7 In this and such other cases, however, the lessee must have 
a reasonable time to turn round. He must not be bundled out 
'velut Jovis ignibus ictus'. Voet. 19. 2. 18. 



310 THE LAW OF OBLIGATIONS 

usufructuary 1 or fiduciary; (3) by destruction of the 
subject-matter ; (4) by merger of the titles of lessor and 
lessee in one person; 2 (5) by mutual agreement; (6) by 
renunciation by either party for just cause ; in which case 
the party renouncing may, if he thinks fit, apply to the 
Court for cancellation of the lease. 3 A just cause exists if 
the conduct of either party amounts to a repudiation by 
him of his duties under the contract. Such would be an 
entire failure to keep in repair by the party liable for 
repairs, 4 or, on the part of the lessee 5 acts of waste or a 
contumacious refusal of rent. 6 It is safer, however, instead 
of leaving the law to determine whether a cause of for- 
feiture has occurred, to provide for the event by express 
agreement. 7 But in no case may the lessor (or any other 
person who wishes to eject the lessee) take the law into his 
own hands. He must apply to the Court to declare the 
lease forfeited, and to replace him in possession. 8 It has 
No relief been held that a South African Court has no equitable 
forfeiture jurisdiction to relieve against a cancellation stipulated for 
in the lease, but the Court will be guided by considerations 
of equity in determining whether a breach entitling a party 

1 Voet, 19. 2. 17. 

2 V.d.L. ubi sup. ; Grootchwaing Salt Works Ltd. v. Van Tonder 
[1920] A.D. 492. 

8 3 Maasdorp, p. 270. 

4 Gr. 3. 19. 12; Bliden v. Carasov [1927] C.P.D. 2; Shapiro v. 
Fwtar [1930] C.P.D. 92. 

6 Voet, 19. 2. 16-18. 

8 Grotius (3. 9. 11) and Decker ad Van Leeuwen, ubi sup., say, 
'if the rent is more than two years in arrear '. Dig. 19. 2. 54, 1 ; 56 ; 
but see Solomon v. Van Zijl (1908) 25 S.C. 974. In the 
Roman and Dutch Law a lessor might also resume the property in 
case of pressing need, if he showed that it was necessary for his own 
use. Cod. 4. 65. 3; Gr. 3. 19. 11 (ad fin.); Van Leeuwen, 4. 21. 7; 
Voet, 19. 2. 16. Van der Keessel (Th. 675) doubts. In any event 
this is no longer law in the Cape Province since the General Law 
Amendment Act of 1879, sec. 7, nor in the O. F. S., Ord. 5 of 1902, 
sec. 5. 

7 See, e.g. Voet, 19. 2. 5 (clause for forfeiture in the event of sub- 
letting without leave). But forfeiture may be enforced even in the 
absence of such clause in case of breach of covenant not to sublet 
or assign without the previous consent in writing of the lessor. 
Abdulla & Co. v. Kramer Bros. [1928] C.P.D. 423. 

8 Voet, 19. 2. 18. 



SPECIAL CONTRACTS 311 

to cancellation has or has not in fact been committed. 1 
A lessee who has been evicted may sue for cancellation, 
but a mere apprehension that he may be evicted does not 
justify a repudiation of the lease. 2 

The effect of the insolvency of lessor or lessee according insol- 
to Van der Keessel, who cites a number of local keuren, 
was to bring the lease to an end at the next ensuing date lessee. 
at which people commonly changed house. 3 In South 
Africa a lease is not determined by the lessor's insolvency. 
If the lessee becomes insolvent the trustee may determine 
the lease (by notice in writing), and is deemed to have 
done so at the end of three months from his appointment, 
if in the interval he has not notified the lessor of his 
intention to keep it alive on behalf of the estate. 4 A 
stipulation in a lease that the lease shall terminate or be 
varied upon the sequestration of the estate of either party 
to the lease is null and void. 5 

5. Mandate or Agency. 6 The Roman-Dutch writers 5. Man- 
reflect the inadequate treatment of agency met with in agency, 
the Roman Law and typified in the fact that the word 
'mandate' points principally to the relation between 
principal and agent, while the word ' agency ' points rather 
to the juristic relation established by the agent between 
his principal and third parties. 7 In this state of things, in 
all jurisdictions where the Roman-Dutch law is adminis- 
tered at the present day, the English law of agency has 

1 Est. Thomas v. Kerr (1903) 20 S.C. 354; Human v.'Rieseberg 
[1922] T.P.D. 157 ; Gluckman v. Qoodworths Ltd. [1928] E.D.L. 95; 
O. A. FichardtLtd. v. Brand [1928] O.P.D. 56. 

2 Donnigerv. Thorpe [1930] T.P.D. 839. 

8 V.d.K. 676. 4 Insolvency Act, 1936, sec. 37. 

8 Ibid., sec. 37 (5). 

8 Mandatum Lastgeving. Gr. lib. iii, cap. xii ; Van Leeuwen, 
lib. iv, cap. xxvi; Voet, lib. xvii, tit. 1 ; V.d.L. 1. 15. 14; 3 Maas- 
dorp, chaps. 23-5; Wille & Millin, chap. 9; De Villiers and 
Macintosh, The Law of Agency in South Africa ( Juta & Co., 1933). 

7 The Roman -Dutch Law, however, was tending to or had 
reached the same result as the English Law. For some remarks on 
the historical development of the law of agency see Blower v. Van 
Noorden [1909] T.S. 890. The same case considers and adopts 
the action for the breach of an implied warranty of authority 
(Collen v. Wright (1857) 8 E. & B. 647) . See V.d.K. 478, 672. 



312 



THE LAW OF OBLIGATIONS 



6. Part- 
nership. 



Compari- 
son of 
English 
and 

Roman- 
Dutch 
partner- 
ship law. 



Kinds of 
partner- 



been substantially adopted and followed. 1 Such differences 
as exist between the two systems belong to the theory of 
contract in general or are matter of detail, upon which we 
have not space to enter. 

6. Partnership. 2 In Ceylon the English law of part- 
nership for the time being in force has been introduced by 
statute. 3 In South Africa the law of partnership depends 
partly on the Roman-Dutch common law, partly on statute. 
But it is very far from being the case that the partnership 
law of South Africa differs entirely from the partnership 
law of England. 'Developed from a common source, viz. 
the mercantile custom of Europe, the two systems exhibit 
a great similarity, together with some notable differences. 
Further, the influence of English case law has tended 
towards assimilation. The English rules have stood the 
test of practice, while much of the Roman-Dutch Law on 
this subject is purely theoretical. The channel of "recep- 
tion" for the English Law is mercantile custom, which in 
the matter of partnership is much the same in South 
Africa as in England.' 4 

The law of South Africa recognizes various kinds of 
partnership, in addition to joint-stock companies, which 

1 In Ceylon Ord. No. 22 of 1866 introduces the English law of 
principals and agents for the time being in force. 

2 Societas Societeit Compagnieschap Maetschap Ven- 
noodschap. Gr. lib. iii, cap. xxi ; Van Leeuwen, lib. iv, cap. xxiii ; 
Voet, lib. xvii, tit. 2 ; V.d.K. 698 ff. ; V.d.L. 4.1. 11 ; 3 Maasdorp, 
chaps. 26-8 ; Wille & Millin, chap. 8. The essentials of a partnership 
are considered in Joubert v. Tarry & Co. [1915] T.P.D. 277; 
Wulfsohn v. Taylor [1928] T.P.D. 99; Rhodesia Rlwys. v. Comm. 
of Taxes [1925] A.D. at p. 465. A colonus partiarius is not a 
partner (Blumberg & Sulski v. Brown & Freitas [1922] T.P.D. 130; 
Cossets v. Love [1924] E.D.L. 128), but a lessee. Du Preez v. 
Steenkamp [1926] T.P.D. 362. 

3 Ord. No. 22 of 1866. By Ord. No. 7 of 1840, sec. 21, writing and 
signature of the parties are required for establishing a partnership 
when the capital exceeds 100. Pate v. Pate [1915] A.C. 1100. 

4 The Commercial Laws of the World (South Africa), vol. xv, 
part ii, pp. 84-5. In an early Ceylon case, Boyd v. Stables (1821) 
Ramanathan, 1820-33, at p. 21, Giffard C.J. observed upon the 
affinity of the commercial law of England with that of Holland, 
and added: 'We look upon every decision of the Courts of West- 
minster upon commercial subjects as a commentary upon the 
Dutch Commercial Law, the law which we are bound to observe.' 



SPECIAL CONTRACTS 313 

are regulated by special statutes and do not fall within ship in 
the scope of this chapter. 1 Partnerships proper are either Africa: 
ordinary or extraordinary. The law of ordinary partner- ( a ) Ordi- 
ships corresponds in most particulars with the law of nary; 
England. The principal difference is that in English Law 
the liability of partners for partnership debts is joint, while 
in Roman-Dutch Law it is joint and several. 2 But in 
South Africa, as in England, actions arising out of partner- 
ship transactions must be directed against the firm, not 
against individual partners, and all the partners must, as 
a rule, be joined as defendants. 3 The creditor's remedy is 
to obtain judgment against the partnership property; if 
the writ is not satisfied he may levy execution upon the 
private assets of the individual partners. 4 In the Transvaal 
actions may be brought by or against a registered partner- 
ship in the registered business style of the partnership 
without setting forth the names of the individual partners. 5 

Extraordinary partnerships are : (a) anonymous partner- (6) Extra- 
ships ; (6) partnerships en commandite ; 6 and (c) in the Cape ordmar y- 
Province and Natal, statutory limited partnerships created 
by Cape Act No. 24 of 1861 and Natal Law No. 1 of 
1865. The common element in all three cases is that 
certain non-active partners incur a limited liability, or no 
liability at all, to creditors of the firm. In the last two 
cases, but not in the first, the liability to active co-partners 
is limited to the amount of the capital contributed. In 
the first case it is unlimited. 7 In the first two cases, but 
not in the last, there are partners in the background, 
whose names are not made public. In the last a certificate 
must be registered in the office of the Registrar of Deeds 

1 See the Companies Act No. 46 of 1926 as amended by Act 
No. 23 of 1939, and for Ceylon The Companies Ordinance No. 51 
of 1938 amended by Ords. Nos. 6 of 1939 and 19 of 1942. 

2 V.d.K. 703. 

8 Commercial Laws of the World, vol. xv, ubi sup. ; Morice, 2nd 
ed., p. 199. 

4 Olifanfs Vlei Gold Mining Co. v. Wolff (1898) 15 S.C. 344; 
Wille & Millin (9) , p. 342. Note also the provisions of the Magistrates 
Courts Acts (ibid.). B Act No. 36 of 1909, sec. 8 (1). 

V.d.K. 704. 7 Morice, p. 193. 



314 THE LAW OF OBLIGATIONS 

containing (inter alia) the names and residences of all the 
general and special partners. A non-active partner may 
not, in any event, compete with the creditors of the firm 
in respect of debts due to him from the other partners. 1 
7, 8. Loan 7 & 8. Loan for Consumption 2 Loan for Use. 3 All 
smnption * n i s i s Roman law. Some matters connected with money- 
Loan loans and the permitted rate of interest have been con- 
sidered in the chapter on Operation of Contract. 4 
9. De- 9. Deposit. 5 This too is essentially Roman Law. But 

the double penalty in case of depositum miserabile is no 
longer in use. 6 A so-called deposit with a bank is not 
deposit but loan. 7 

lO.Pledge. 10. Pledge. 8 The contract of pledge, which defines 
the personal relations between pledger and pledgee, is 

1 Watermeyer v. KerdeVs Trustees (1834) 3 Menz. 424; Sellar 
Bros. v. Clark (1893) 10 S.C. 168. 

2 Mutuum Verbruickleening. Gr. lib. iii, cap. x ; Van Leeuwen, 
lib. iv, cap. vi ; V.d.L. 1. 15. 2 ; 3 Maasdorp, chap. 10. 

3 Commodatum Bruickleening. Gr. lib. iii, cap. ix; Van 
Leeuwen, lib. iv. cap. x; Voet, lib. xiii, tit. 6; V.d.L. 1. 15. 4; 
Doubellv. Tipper (1892) 11 S.C. 23 ; Gonstanav. Ludidi Duna (1892) 
7E.D.C. 60; Enslin v. Meyer [1925] O.P.D. 125; 3 Maasdorp, chap. 9. 

4 Supra, p. 258. The S.C. Macedonianum of the reign of Ves- 
pasian forbade loans of money to filiifamilias. The f.f. might 
renounce the benefit of the S.C. after full age. It has been doubted 
whether, and how far, the S.C. has place in the modern law. It is, 
of course, not applicable to a f.f. of full age. But in case of minority 
there is a general inclination to hold that it may sometimes be 
usefully pleaded. Groen. de leg. abr. ad Cod. lib. iv, tit. 28 ; Voet, 
14. 6. 5 (ad fin.); and Compendium, 14. 6. 5; Gens. For. 1. 4. 3. 12; 
V.d.K. 475, and Dictat. ad Gr. 3. 1. 26. 

6 Depositum Bewaergeving. Gr. lib. iii, cap. vii ; Van Leeuwen, 
lib. iv, cap. xi; V.d.L. 1. 15. 5; Sakazi v. Gurr [1906] T.S. 303; 
Rama Narotam v. Natha Dullabh [1914] N.P.D. 227; 3 Maas- 
dorp, chap. 8. Depositum sequestre and consignation (supra, 
p. 274) are varieties of deposit. Gr. 3. 7. 12; V.d.L. 1. 15. 6, 
loc. cit. ; Thornton v. Priest's Trustee [1932] C.P.D. 296. 

6 Groen. de leg. abr. ad Dig. 16. 3. 1 ; Voet, 16. 3. 11. 

7 Dig. 42. 5. 24. 2: Aliud est enim credere, aliud deponere. Cf. 
Voet, 20. 4. 14; 46. 2. 5. These passages speak expressly of a 
deposit with a bank which bears interest. But (semble) in the 
modern law if the money is to be used by the bank the contract is 
in every case a mere loan. 3 Maasdorp, p. 110. 

8 Pignus Pandgeving ofte Verzetting Onderzetting. Gr. lib. 
iii, cap. viii ; Van Leeuwen, lib. iv, cap. xii ; Voet, lib. xiii, tit. 7 ; 
V.d.L. 1. 15. 7; 2 Maasdorp, chap. 29; Wille & Millin, chap. 5; 
Wille, Mortgage and Pledge in South Africa. 



SPECIAL CONTRACTS 315 

governed by the rules of Roman Law. The real rights 
created by pledge have been discussed in Book II. 1 

11. Suretyship or Guarantee. 2 A contract of surety- n. Surety- 
ship is a contract whereby one person undertakes a 
secondary or collateral liability for the debt 3 or delict 4 of 
another person who is primarily liable. The principal debt 
may be civil or natural, but must not be void or illegal. 5 
Any male person capable of contracting may conclude a 
contract of suretyship. 6 But by the well-known enact- 
ments, Senatusconsultum Velleianum and Authentica si 
qua mulier, women are prohibited from binding them- 
selves as sureties, and, in particular, married women are Special 
prohibited from binding themselves as sureties for their 



husbands. 7 The policy of the law extends to the case of a sureties. 
woman binding herself as principal debtor for another or 
taking another's debt upon her as her own. 8 The effect of 
these laws is so far-reaching that money paid by a woman 
under a contract of suretyship may be recovered back if 
she was ignorant of the benefit conferred by them, 9 and 
even sub -sureties, i.e. persons who have bound themselves 
as sureties for the female surety, may plead them as a 
defence. 10 There are, however, some exceptions from the 

1 Supra, pp. 190, 199. 

2 Fidejussio Borgtogt. Gr. lib. iii, cap. iii; Van Leeuwen, lib. 
iv, cap. iv; Voet, lib. xlvi, tit. 1; V.d.L. 1. 14. 10; 3 Maasdorp, 
chaps. 30-2 ; Wille & Millin, chap. 7 ; Wessels, ii, chap, xxi ff . ; 
Caney, The Law of Suretyship in South Africa. 

3 Gr. 3. 3. 12. 4 Gr. 3. 3. 21 ; Voet, 46. 1. 7. 
8 Gr. 3. 3. 22; Voet, 46. 1. 10-11. 

6 Even minors with the authority of their guardians. Voet, 46. 1. 5. 

7 The Senatusconsultum was passed in the consulship of Marcus 
Silanus and Velleius Tutor (A.D. 46), Dig. 16. 1. 2. The authentica 
is a gloss on Cod. 4. 29. 22, giving the effect of Nov. 134, c. 8 
(A.D. 556). (The supposedly official collection of the Novels was 
known as the Authenticum. Hence the name Authentica (scil. lex 
or constitutio) given to these summaries.) The rule that a married 
woman might not 'intercede' for her husband was older than 
the Senatusconsultum. Justinian re-enacted it in the Novel. See 
Kotze, Van Leeuwen, vol. ii, p. 616. 

8 Van Leeuwen, ubi sup. ; i.e. it includes both cumulative 
intercessio and privative intercessio (Buckland, Textbook, p. 448), 
and some other cases as well. Standard Building Socy. v. Keller- 
mann [1930] T.P.D. 796. Voet, 16. 1. 12. 

10 Voet, 16. 1. 2. 



316 THE LAW OF OBLIGATIONS 

rule of non-liability. These are principally the following : 

(1) if the woman has acted fraudulently, and in particular 
if she has professed herself to be a co-principal debtor ; l 

(2) if she has benefited by the principal contract, 2 or if she 
has gone surety for her creditor ; 3 (3) if, after the lapse of 
two years, she has confirmed her suretyship by a new 
agreement ; 4 (4) if, being a public trader, she has become 
surety in relation to her business; 5 (5) if, expressly and 
with full knowledge of what she was doing, she has re- 
nounced the benefits of the senatusconsultum and of the 
authentica. 6 A woman who has renounced the benefit of 
the first will not be held by implication to have renounced 
the benefit of the second. There must be a separate and 
distinct renunciation of each if a married woman is to be 
held liable for her husband's debts. 7 

These benefits have been abolished in Ceylon 8 and in the 
opinion of the late Sir John Wessels C.J. it is high time 
that they were abolished in South Africa. 9 'Women are 
regarded at present as the equals of men, and we may very 

1 Gr. 3. 3. 15; Voet, 16. 1. 11. 

2 e.g. if she has received consideration for becoming surety. 
Voet, ubi sup. and 46. 1. 32 ; Richter v. Transvaal Oovt. [1906] T.S. 
146; Pettersen v. Yates [1928] N.P.D. 453; African Guarantee Co. 
v. Rabinowitz [1934] W.L.D. 151 ; Southern Life Association of 
African. Wright [1943] C.P.D. 15. 3 Gr. 3. 3. 16. 

4 Cod. 4. 29. 22. 1; Gr. 3. 3. 17; Voet, 16. 1. 11. 
6 Voet, ubi sup. ; Schorer ad Gr. 3. 3. 18 ; Oak v. Lumsden (1884) 
3 S.C. at p. 148. 

6 Gr. 3. 3. 18 ; Voet, 16. 1.9; V.d.L. ubi sup. Mackellar v. Bond 
(1884) 9 App. Gas. 715 (in appeal from Natal) ; Knocker v. Standard 
Bk. [1933] A.D. 128; Southern Life Associations. Wright, ubi sup. 
It was, and possibly still is, an unsettled question whether the 
renunciation must be notarially executed. See V.d.K. 496 and 
translator's note, ad loc. ; Kotz6, Van Leeuwen, vol. ii, p. 617, 
where all the authorities are collected. In Natal Law 40, 1884 pro- 
vides a form of renunciation. Caney says (p. 125): 'there seems no 
question that outside of Natal an underhand renunciation suffices '. 

7 Gr. 3. 3. 19; Voet, 16. 1. 10. 

8 Ord. No. 18 of 1923, sec. 29. 

9 Wessels, ii. 3872. By the Bills of Exchange Acts (e.g. Cape 
Act 19 of 1893, sec. 54) renunciation of the benefits is not requisite 
to the validity of a bill accepted or endorsed by a woman. But 
this does not apply when a woman signs an 'aval' (Moti & Co. v. 
Cassim's Trustee [1924] A.D. 720) or expressly as surety. National 
Acceptance Co. v. Robertson [1938] C.P.D. 175. 



SPECIAL CONTRACTS 317 

well do what Henry IV did in France in 1606 abolish 
the benefits both of the senatus consultum Vdleianum and 
the authentica si qua. They hinder trade, interfere with 
credit, and are often the source of trickery.' It may be 
added that all modern codes reject them. 

By the Roman-Dutch common law a contract of surety- in Ceylon 
ship need not be in writing. But in Ceylon 1 no contract c ntra t8 
for charging any person with the debt, default, or mis- ship must 
carriage of another will be of force or avail in law unless 
it be in writing and signed by the party making the same, 
or by some person thereto lawfully authorized. In Natal 
no action is maintainable on a contract of suretyship, 
' unless and save so far as such contract shall be evidenced 
by some writing'. 2 This does not mean that the writing 
must contain all the terms of the contract. 3 

In the Roman Law up to the time of Justinian a surety The 
might be sued before the principal debtor. 4 Justinian, how- 
ever, required the creditor to excuss the principal before to sure- 
pursuing the surety. 5 If he failed to do so, in case the ies: 
principal debtor was solvent and within the jurisdiction, 
the surety might plead in his defence the beneftcium benefi- 
ordinis sive excussionis. 6 In the Roman-Dutch, differing C1 . u ordl " 

nis sivc ex- 

from the Roman Law, the surety has the further advantage cussionis; 
that he may require the creditor to realize any real security 
which he may have for his debt before seeking to render 
the surety liable upon his personal obligation. 7 In the 

1 Ord. No. 7 of 1840, sec. 21. 

2 Law 12 of 1884; supra, p. 227, n. 3. 

3 Amod v. Parsotham [1929] N.P.D. 163. 

4 Girard, pp. 802-3. 

6 Nov. 4, cap. i (A.D. 535) ; Van Leeuwen, 4. 4. 7. 

6 Gr. 3. 3. 27; Voet, 46. 1. 14; V.d.L. 1. 14. 10. Wolfson v. 
Crowe [1904] T.S. 682; Worthington v. Wilson [1918] T.P.D. 104. 

7 Placaat of Philip II, February 21, 1564 (1. G.P.B. 379); Gr. 
3. 3. 32; V.d.K. 507. Lee, Commentary, p. 255 ; Serrurier v. Lange- 
veld (1828) 1 Menz. 316. (But the benefit of the Placaat cannot 
be set up by a surety who has expressly renounced the beneficium 
ordinis sive excussionis. Ibid.) In Roman Law the rule was just 
the other way ; viz. the creditor must excuss the surety personally 
before pursuing the hypothecated goods of the debtor in the hands 
of third parties. Nov. 4, cap. ii (A.D. 535). 



318 



THE LAW OF OBLIGATIONS 



benefi- 
cium divi- 
sionis ; 
benefi- 
cium ce- 
dendarum 
actionum. 



How 
surety- 
ship is 
dis- 
charged. 



Roman-Dutch Law, as in the Roman, sureties may also 
invoke the beneficium divisionis 1 and the beneficium 
cedendarum actionum. 2 All these benefits may be re- 
nounced. 3 In the modern law, one of several joint sureties 
who has paid the whole debt, and perhaps who has paid 
more than a rateable share of the debt, is entitled to go 
against his co-sureties for contribution without cession of 
actions. 4 He may also, in the absence of agreement to 
the contrary, equally without cession of action, claim 
reimbursement from the principal debtor, but he is not 
obliged to go against the principal debtor before taking 
proceedings against the co-surety. 5 

A contract of suretyship is discharged not to speak of 
incidents which affect any contract such as a time limit or 
a resolutive condition by any event which extinguishes 
the principal debt and by any material variation of the 
principal contract. 6 If a creditor has released one of 
several sureties the rest are discharged to the extent to 
which they are thereby precluded from recovering contri- 
bution from the released surety. 7 

1 Gr. 3. 3. 28; Voet, 46. 1. 21 ; V.d.L. 1. 14. 10. 

2 Gr. 3. 3. 31 ; Voet, 46. 1. 27 ; V.d.K. 506 ; including any claims 
which the creditor may have against a third party in respect of 
the debt or default to which the suretyship relates. Yorkshire 
Insurance Co. v. Barclay's Bank [1928] W.L.D. at p. 210; African 
Guarantee Co. v. Thorpe [1933] A.D. 330. 

8 Gr. 3. 3. 29 ; V.d.K. 502 ; and, in some places, says Van der 
Keessel (Th. 503), are taken to have renounced them, if the 
sureties bind themselves ' each for all ', or ' each as principal debtor '. 
Cf. Gr. loc. cit. and Van der Vyver v. De Wayer (1861) 4 Searle 
27. For del credere contracts see V.d.K. 504. 

4 This is statutory in Natal (Law No. 9 of 1885), but the law is 
the same in the other Provinces. Kroon v. Enschede [1909] T.S. 
374; Nosworthy v. Yorke [1921] C.P.D. 404; Est. Steer v. Steer 
[1923] C.P.D. 354; Pearce v. De Jager [1924] C.P.D. 455; Lever v. 
Buhrmann [1925] T.P.D. 254; Moosa v. Mahomed [1939] T.P.D. 
271. 

6 Est. Steer v. Steer, ubi sup. ; Rutouritz's Flour Milh v. The 
Master [1934] T.P.D. 163. 

6 Brinkman v. McGill [1931] A.D. 303; Irwin v. Davies [1937] 
C.P.D. 442. As to the effect of an extension of time given by the 
creditor to the debtor see Est. Liebenberg v. Standard Bk. [1927] 
A.D. 502. 

7 Moosa v. Mahomed, ubi sup., at p. 285. 



SPECIAL CONTRACTS 319 

12. Carriage by land and by water. 1 In the Roman 12. Car- 
Law the section of the praetor's edict de nautis, stabu- [anTand 
lariis et cauponibus made carriers by water, along with by water, 
stable-keepers and innkeepers, the insurers of goods en- 
trusted to them. 2 Except in case of damnum fatale or of 
vis major their liability was absolute. 3 The language of 
the edict does not in terms cover the case of carriers by 
land, but in the modern law they must be taken to be 
included within its scope. 4 If it were not so they would be 
liable as conductores operis to show the highest diligence, 
but not answerable in damages except on proof of culpa. 5 
Carriers, stable-keepers, innkeepers, and keepers of 
boarding-houses may retain the goods of their customers 
until their reasonable charges are satisfied. 6 

1 Gr. 3. 38. 9; Van Leeuwen, 4. 2. 9; Voet, lib. iv, tit. 9; 
3 Maasdorp, chap. 22; Wille & Millin, chap. 11. 

2 Dig. 4. 9. 1 pr. Ait praetor nautae caupones stabularii quod 
cuj usque salvum fore receperint nisi restituant in eos judicium 
dabo. 

3 Dig. 4. 9. 3, 1 . As to vis major see New Heriot G. M. Co. v. Union 
Qovt. [1916] A.D. 415. As to contracting out, Burger v. Central 
S. A. Rlwys. [1903] T.S. 571 ; S. A. Rlwys. v. Conradie [1922] A.D. 
137. A notice posted up in an hotel purporting to limit the pro- 
prietor's liability has no effect without proof that the client agreed 
thereto. Davis v. Lockstone [1921] A.D. 153. In South Africa the 
Praetors' Edict has been applied to the case of an hotel proprietor 
in Davis v. Lockstone, ubi sup. See also Glover v. Finch [1921] 
C.P.D. 358; Toy v. Blake [1923] C.P.D. 98; Koenig v. Godbold 
[1923] C.P.D. 526. 

4 Tregidga & Co. v. Sivewright N.O. (1897) 14 S.C. 86 per de 
Villiers C.J. and Buchanan J., dissentiente Maasdorp J. This is 
also the opinion of Mr. T. E. Donges in his careful study,- The Lia- 
bility for Safe Carriage of Goods in Roman-Dutch Law (Juta & Co., 
1928). The South Africa Railway Administration is liable to the 
extent above-mentioned. Act No. 22 of 1916, sec. 18 (1). 

5 Postmaster General v. Van Niekerk [1918] C.P.D. 378. In 
Ceylon by Ord. No. 22 of 1866 the law of England for the time 
being is made applicable to all questions relating to carriers by 
land. For innkeepers see Hotel Keepers' Liability Ord. No. 19 of 
1916; for Carriage of Goods by Sea, Ord. No. 18 of 1926. 

8 Van Leeuwen, 4. 40. 2, and Cens. For. 1. 4. 37. 8 and 9; 
Anderson & Co. v. Pienaar & Co. [1922] T.P.D. 435 (cartage con- 
tractors) ; Reed Bros. v. Ford [1923] T.P.D. 150 (livery-stable 
keeper) ; Marais v. Andrews [1914] T.P.D. 290 (innkeeper board- 
ing-house keeper); Holmes Garage Ltd. v. Levin [1924] G.W.L. 58 
(innkeeper) ; S. A. Philips (Pty) Ltd. v. Vermouth [1932] C.P.D. 377 
(boarding-house keeper). 



PART II 
OBLIGATIONS ARISING FROM DELICT 

The law THE second principal class of obligations is that which 

is f( rin- t8 ai> ises fr m delict. A delict is a wrongful act which 

cipally grounds an action in favour of the person injured. In this 

origin. 11 n branch of law, as in others, the jus civile was received in 

Holland. In the pages of Grotius and occasionally of Voet 

we detect indications of a different order of ideas derived 

from Teutonic sources. But the Roman Law drove the 

native law out of the field. In the textbook writers, and 

probably also in the practice of the Courts, of the eighteenth 

century the Roman-Dutch law of delicts was based upon 

the Roman Law expounded in the Institutes and the 

Digest. 

The The Roman law of delict, derived from the XII Tables 

toeonTof anc ^ fr m a still more primitive customary law, came in 

delict. time, thanks to the directing influence of jurists and of 

praetors, to express a comprehensive theory of civil 

liability. A few simple principles covered the whole 

ground, and, adopted in modern codes, have been found 

sufficient to provide for the complexities of modern life. 

Dolus A man must see that he does not wilfully invade another's 

and culpa. right, or, in breach of a duty, wilfully or carelessly cause 

him pecuniary loss. If he does either of these things he is 

Excep- answerable in damages. There may also be cases, resting 

caseffof u P on a more archaic principle, in which he is answerable 

absolute absolutely for damage which he has caused, though without 

y ' intention and without negligence. Such in a few words is 

the Roman theory of delictual liability. 

Defective In one respect the Roman law of delicts has suffered 
termmo- fj-Qflj ^ ne simplicity of its principles, namely, in its vocabu- 
lary. It is convenient to distinguish by different names 
the various groups of circumstances which give rise to 
liability. The English Law poor in principle, rich in 
detail does so. It distinguishes various heads of lia- 
bility under the names of assault, trespass, libel, slander, 



OBLIGATIONS ARISING FROM DELICT 321 

malicious prosecution, and the rest. The Roman Law has 
no such distinctions or corresponding terminology. 

In South Africa and Ceylon the English law of torts has influence 
imposed itself upon the Roman-Dutch law of delict much Sf **??, 
as the Roman law of delict imposed itself upon the native law of 
law of Holland. The adoption of English nomenclature *^ 8 H 
has accompanied the adoption of much of the substance of colonies. 
the English Law. The process has gone further in some 
jurisdictions than in others, but in all the influence of 
English Law has been very great. The Union of South 
Africa, here as elsewhere, is most retentive of the Roman- 
Dutch common law. In Ceylon the reception of the English 
Law has gone further. 

The course of events briefly described in the foregoing Difficulty 
paragraphs makes it a matter of some difficulty to apply 



to the law of delict the method of treatment applied in presenta- 
this volume to other departments of the Roman-Dutch 
Law. In writing of the law of persons, of things, and of 
contract, we have tried to build upon the foundations laid 
in the seventeenth century .by Grotius, Van Leeuwen, and 
Voet and in the eighteenth and early nineteenth centuries 
by Bynkershoek, Van der Keessel, and Van der Linden. 
For the law of delict the foundations are wanting or must 
be sought in the pure Roman Law (which we suppose to 
be known to our readers), while the superstructure, as 
observed above, is largely English in character. In this Method 
chapter we shall state shortly the principles of the Roman- op e 
Dutch law of delict so far as it is at all applicable to the 
conditions of modern life, and indicate how far these 
principles are still in force. The example of modern codes 
may be pleaded in justification of this summary treatment 
of the law of delict in general. 1 For the convenience of 
students the law of defamation will be considered rather 
more in detail. 

1 The law of delict occupies in the French Code five articles 
(1382-6), in the Dutch sixteen (1401-16), in the German thirty-one 
(823-53) ; in the Swiss Code des Obligations twenty -one (41-61). In 
the Digest of English Civil Law (ed. E. Jenks) it has been found pos- 
sible to compress the law of torts into about three hundred articles. 

4901 v 



322 THE LAW OE OBLIGATIONS 

Any wrongful act or omission which grounds an action, 
i.e. any act or omission which is wrongful in law, is known 
The in Roman Law as an injury. 'Generaliter injuria dicitur 
meaning omne quod non jure fit.' 1 An injury may or may not cause 
of injuria. pecuniary loss (damnum), but every injury gives rise to a 
claim for pecuniary compensation (id quod interest schade 
en interessen damages). In some cases there is no injury 
and right of action unless pecuniary loss is proved; in 
Injuria other cases there is an injury and right of action, whether 
damno. pecuniary loss is proved or not (injuria sine damno) ; in 
Damnum others pecuniary loss may be proved, and yet no action 
injuria. lies (damnum sine injuria), because the law does not con- 
demn either the act in itself or the act together with the 
consequent loss as constituting a legal wrong. 2 
Classifica- The classification of delicts is a matter of some difficulty. 
deUcts- ^ n *ke R man Law the principal delicts were four in 
in Roman number: viz. (1) furtum; (2) rapina; (3) damnum injuria 
datum ; (4) injuria (specifically so-called). Since rapina was 
merely an aggravated form of furtum, the principal heads 
of delict may be reduced to three. This classification, 
however, is by no means exhaustive. There were other 
grounds of liability such as dolus, and there were certain 
quasi-delicts which differed from true delicts in little but 
in name. 

inGrotius, In writing of delicts proper Grotius and Van Leeuwen 

Leeuwen adopt a different arrangement. 3 In their system delict 

(misdaad) is directed: (1) against life; (2) against the 

person ; (3) against freedom ; (4) against honour ; and (5) 

against property. Both these writers treat the subject of 

wrongs principally from the point of view of crime. Van 

and Van der Linden 4 follows their lead except that he includes 

den. m 'wrongs against freedom 'under the head of wrongs against 

honour, thus making four classes in place of five. 

1 Inst. 4. 4 pr. 

2 Thus in Oreyvensteyn v. Hattingh [1911] A.C. 355; [1911] A.D. 
358 it was held that no action lay against an adjoining owner who 
hindered locusts from settling on his own land with the result that 
they settled on the land of the appellant. 

3 Gr. 3. 33. 1 ; Van Leeuwen, 4. 32. 9. * V.d.L. 1. 16. 1. 



OBLIGATIONS ARISING FROM DELICT 323 
Neither the Roman nor the Dutch arrangement is com- Classifi- 
pletely satisfactory. In this chapter we shall speak of: adopted 

1. Wrongs against the person ; chapter. 

2. Wrongs against property ; 

3. Wrongs against reputation ; 

4. Wrongs against the domestic relations ; 

5. Breach of a statutory or common law duty ; 

6. Wrongs other than the above mentioned. 

But first a few words must be said about the theory of General 
delictual liability in general, which is essentially the same delicts in 
as in Roman Law. Roman- 

In the modern law the Roman terminology serves as a Law. 
general touchstone of liability. The underlying principles 
of injuria and damnum injuria datum are applicable to all 
kinds of delict. Today all delictual liabilities (with few D O I U S an( j 
exceptions) are referable to one or other of these two culpa. 
heads. I am answerable for wilful aggression on another's 
right (injuria), though it may not cause pecuniary loss. I 
am answerable for wilful or careless aggression on another's 
right which causes pecuniary loss (damnum injuria datum). 
In the first case I am liable for 'sentimental damages', Damages 
i.e. I must compensate the plaintiff for the affront upon 



his person, dignity, or reputation, 1 the assessment of the and patri- 
damages being in the discretion of the Court. In the m 
second case I am liable for 'patrimonial damages', i.e. I 
must compensate the plaintiff for the reduced value of his 
patrimony (or estate) consequent upon my wrongful act, 
whether this consists in positive loss direct or indirect 
(damnum emergens) or in loss of prospective gain (lucrum 
cessans). In addition to this, the Dutch Law, differing from 
the Roman Law, allowed a plaintiff under the head of 
damnum to claim compensation for physical pain andiiis- 
figurement. 2 From this it is evident that a wilful wrong 
may give rise to a claim under both heads of liability, and 

1 Omnemque injuriam [Labeo ait] aut in corpus inferri aut ad 
dignitatem aut ad infamiam pertinere. Dig. 47. 10. 1. 2. 

a Gr. 3. 34. 2; Union Govt. v. Warneke [1911] A.D. at p. 665. 



324 THE LAW OF OBLIGATIONS 

by the modern practice claims under both heads may be 
asserted in the same action. 1 

Ante- It is common to both heads of liability that there must 

cedent have been an antecedent duty owed by the defendant to 
the plaintiff, for where there is no duty there is no right, 
and there can be no invasion of a right. If the wrong is 
intentional there is little difficulty, because the list of 
intentional wrongs is fairly accurately defined. But there 
is more difficulty in determining the scope of the duty to 
take care. Attempts to find a positive formula have not 
proved very successful. 2 The degree of care which a man 
is called upon to exercise varies with the circumstances, 
and is the care which in the circumstances would be 
exercised by the reasonable man. 

' Legal negligence consists in a failure to exercise that degree 
of care which, under the circumstances, it was the duty of the 
the person concerned to use towards another. . . . Such a duty 
may arise in various ways. It may be specially imposed, as by 
a statute; but, speaking generally, it either springs from a 
privity of relationship (contractual or other) between the 
parties concerned, or it is created by the circumstances of 
the case.' 3 

'It has repeatedly been laid down in this Court that account- 
ability for unintentional injury depends upon culpa the 
failure to observe that degree of care which a reasonable man 
would have observed. I use the term reasonable man to denote 
the diligens paterfamilias of Roman Law the average prudent 
person. . . . Once it is clear that the danger would have 
been foreseen and guarded against by the diligens paterfamilias, 
the duty to take care is established, and it only remains to 
ascertain whether it has been discharged.' 4 

English I* nas been said that the duty to take care is wider in 
and Roman-Dutch Law than in English Law. The difference, 

Dutch so far as there is any, consists not in the principle to be 
Law - applied, for the bonus paterfamilias is hardly distinguish- 

1 Matthews v. Young [1922] A.D. at p. 505. 

2 McKerron, p. 39. 

3 Union Oovt. v. National Bk. ofS. A. [1921] A.D. at p. 128 per 
Innes C.J. 

4 Cape Town Municipality v. Paine [1923] A.D. at pp. 216-17 
per Innes C.J. ; Stride v. Reddin N.O., 1944 (1) P.H., O. 1 [A.D.]. 



OBLIGATIONS ARISING FROM DELICT 325 

able from 'the reasonable man', 1 but in the consequences 
derived from it. The South African Courts, for example, 
have not followed the English Law in distinguishing 
sharply the duty which an occupier owes to the invitee, 
the licensee, and the trespasser, and in such cases, as well 
as in others, have been inclined to go further than the 
English courts in recognizing a duty of taking care. 2 

It must be observed that mere omission does not in Mere 
general constitute culpa, but where there is prior conduct ^ 
of such a kind as gives rise to a duty to do an act, the culpa. 
omission to do that act may ground an action for negli- 
gence. 3 Thus a surgeon need not operate, but if he does, he 
must take reasonable steps to secure the well-being of his 
patient. 4 In South Africa a municipality is not bound to 
repair the roads within its area, but if it does it must not 
introduce a new source of danger into the street without 
taking proper precautions to prevent consequent injury 
to the public. 5 

The burden of proving negligence falls, of course, on the Res ipsa 
person who alleges it. But there are cases in which the lo v uitur - 
facts speak for themselves (res ipsa loquitur), as when a 
barrel of flour fell from an upper floor of a warehouse 
and injured a person passing in the street. 6 In such cir- 
cumstances the mere fact of the accident is relevant evi- 
dence of negligence on the part of the person in control, 
which the defendant is called upon to rebut ' by giving an 

1 Buckland and McNair, Roman Law and Common Law, p. 287 ; 
Macintosh, Negligence in Delict (2), p. 13. 

2 Cape Town Municipality v. Paine [1923] A.D. at p. 216; 
Perlman v. Zoutendyk [1934] C.P.D. at p. 158. (Contrast Le Lievre 
v. Gould (1893) 1 Q.B.D. 491, but see McKerron's comment, The 
Law of Delict, p. 209.) 

3 Voet, 9. 2. 3 ; Halliwell v. Johannesburg Munic. Council [1912] 
A.D. at p. 670; Union Govt. v. Nat. Bk. of S. A. [1921] A.D. at 
p. 134; S. A. Rlwys. v. Est. Saunders [1931] A.D. 276. 

4 Dig. 9. 2. 8 pr. 6 McKerron, p. 23. 

6 Byrne v. Boodle (1863) 2 H. & C. 722; Jenks, sec. 1060. 
Mitchell v. Maison Libson [1937] T.P.D. 13; Fisher v. Coleman 
[1937] T.P.D. 261 ; Naude N. 0. v. Transv. Boot & Shoe Co. [1938] 
A.D. 379. The majority judgment in Hamilton v. MacKinnon 
[1935] A.D. 114, 346, has been much criticized. See Mr. Ian 
Murray's article in 53 S.A.L.J., p. 8, and McKerron, p. 50. 



326 THE LAW OF OBLIGATIONS 

explanation of the accident, which either excludes negli- 
gence on his part or is equally consistent with negligence, 
or no negligence'. 1 But, as has often been pointed out, 
there is no shifting of the burden of proof. It is always 
incumbent on the plaintiff to make out his case. 
Contri- The most frequent defence in actions for negligence is 
negU^ * na * * ne damage was due wholly or in part to the plaintiff's 
gence. O wn negligence. This is what is called the plea of contri- 
butory negligence ; and the law which has grown up with 
regard to it is known as the doctrine of contributory 
negligence. To-day it has few, if any, friends, and should 
be superseded by the Admiralty rule of apportioned respon- 
sibility. 2 It is unfortunate that this doctrine has been 
admitted into the law of South Africa. 3 

Excep- So far we have considered the general principles of 
from the delictual liability in Roman-Dutch Law, which are derived 
general from the delicts injuria and damnum injuria datum and 
ofliabi- the corresponding actions. Between them they cover 
Mt y- nearly the whole field of delict. But, as will be seen, there 
are cases in which both dolus and damnum must be 
present in order to constitute legal liability and there are 
a few cases of absolute liability. We now proceed to con- 
sider specific delicts as classified above. 

Specific 1. Wrongs against the person. To this head may be 

delicts. referred the wrongs which in English Law are known as 

againft 8 assault, battery, false imprisonment, malicious arrest. If 

the the wrongful act is an intentional aggression the plaintiff 

recovers damages measured in the discretion of the Court 

by the nature of the outrage. If the act is unintentional 

but careless the plaintiff is entitled to compensation for 

1 McKerron, p. 47. 

2 This has in effect been done for England and Scotland by the 
Law Reform (Contributory Negligence) Act, 1945. 

3 McKerron, pp. 59-75. The following recent cases may be 
consulted : Sutherland v. Banwell [1938] A.D. 476 ; Bower v. Hearn 
[1938] N.P.D. 399 (contributory negligence of child of tender 
years) ; Pretorius v. African Gate & Fence Works Ltd. [1939] A.D. 
571 ; Franco v. Klug [1940] A.D. 126; Bona Pierce v. Hau Mon 
1944 (1) P.H., O. 10 [A.D.]; and see 'Causation and Legal Re- 
sponsibility', by Aquarius, 62 S.A.LJ. (1945), p. 126. 



OBLIGATIONS ARISING FROM DELICT 327 

actual damage, if proved. In this case the action is usually 
termed an action for negligence. 

In principle, then, there is no liability without dolus or 
culpa. But in South Africa it will be no defence to an action 
for false imprisonment to plead that the defendant acted in 
good faith and without negligence. 1 This is a departure 
from principle due to the fact that this action, like the 
action for malicious arrest and the action for malicious 
prosecution (of which we shall speak hereafter) is derived 
from English Law and governed by English precedents. 

The action for seduction (defloratie) may be conveniently Action for 
mentioned under the head of wrongs against the person. lon ' 
It is an action derived from the Canon Law by which a 
man who seduced a virgin was required to give her a 
dower and to marry her dotabit earn et habebit uxorem. 
By the law of many parts of Germany and of Holland the 
seducer was given the alternative. Aut was substituted 
for et. 2 By the Dutch Law a virgin who had been seduced 
might bring an action requiring the defendant to marry 
her, or, if he would not do so, to compensate her for the loss 
of her virginity, and if she were with child also for her 
lying-in expenses (kraam-kosteri) . 3 'The man was bound 
aut ducere aut dotare, the option of choice being his alone.' 4 
In the modern law the action lies for damages only. 5 This 
action has no resemblance to the English action for seduc- 
tion which a father can bring for the pretended loss of his 
daughter's services. But the father may sue for, lying-in 
expenses if he has defrayed or made himself liable for 
them. 6 

Voet says that the action for seduction does not lie if the 

1 McKerron, p. 124. 

2 Stobbe, Deutsches Privatrecht, iii. 530. 

3 Gr. 3. 35. 8 ; Voet, 48. 5. 3 ; Botha v. Peach [1939] W.L.D. 153. 

4 Bensimon v. Barton [1919] A.D. at p. 17. 

6 As to what may be claimed under the head of damages see 
M'Guni v. M'twali [1923] T.P.D. 368; Els v. Mills [1926] E.D.L. 
346. As to the term of prescription in the action for seduction see 
Carelse v. Estate De Vries (1906) 23 S.C. at p. 539. The term is 
now three years. Prescription Act, 1943, sec. 3 (2), c. (vi). 

6 Webb v. Langai (1884) 4 E.D.C. 68. 



328 



THE LAW OF OBLIGATIONS 



Wrongs 
against 
property. 



woman knew that the man was married, or declined to 
marry him, or could never lawfully marry him, or had 
married someone else. 1 In South Africa the Appellate 
Division has held by a majority that the fact that the 
plaintiff knew at the time of her seduction that her seducer 
was a married man is no bar to the action. 2 The seducer 
is liable in any event for lying-in expenses, for reasonable 
maintenance for the child, and for funeral expenses, if 
the child dies. 3 But this liability is a consequence not of 
seduction but of paternity. 4 

2. Wrongs against property. Any wrongful inva- 
sion of another's right to own, to possess, or to detain, is 
actionable. 5 

The corresponding actions in English law are conver- 
sion, detinue, trespass to land and to goods. 

Damage to property falls under the same head. In this 
case, if the act which caused the damage was unintentional 
but negligent, the action is usually termed an action for 
negligence. 

The law of nuisance has been borrowed from, or coin- 
cides with, the English law. 6 

1 Voet, 48. 5. 4. 

2 Bensimon v. Barton [1919] A.D. 13. The opposite view was 
taken by the Ceylon S.C. in Meenadchipillai v. Sanmugam (1916) 
19 N.L.R. 209. It has been held in two cases (Mulholland v. 
Smith (1910) 10 H.C.G. 333 ; Delport v. Ah Yee [1913] E.D.L. 374) 
that the Marriage Order in Council having abolished the action 
to compel marriage, an offer of marriage on the part of the defen- 
dant is no longer a defence to plaintiff's action for damages. On 
this point Innes C. J. reserved his opinion. Bensimon v. Barton at 
p. 23. 

8 Voet, 48. 5. 6; V.d.L. 1. 16. 4; Kalamie v. Armadien [1929] 
C.P.D. 490. * Jacobs v. Lorenzi [1942] C.P.D. 394. 

6 Gr. 3. 37. 5; Voet, 9. 2. 10; Maraisburg Dims. Council v. 
Waagenaar [1923] C.P.D. 94. A person in possession of a car under 
a hire-purchase agreement has sufficient title to sue for damage 
to the car. Sulaiman v. Amardien [1931] C.P.D. 509. 

6 See for instance Demerara Electric Co. Ltd. v. White [1907] 
A.C. 330 (Brit. Gui.) ; Bloemfontein Town Council v. Richter [1938] 
A.D. at p. 229; McKerron, p. 215. But the liability of an owner 
of land in respect of excavations near a public road which may 
be a source of danger is determined by the law of culpa, not, as 
in English Law, by the law of nuisance. Transv. & Rhodesian 
Estates Ltd. v. Golding [1917] A.D. per Innes C.J. at p. 28. 



OBLIGATIONS ARISING FROM DELICT 329 

In regard to trespass to land the modern Roman-Dutch Trespass 
Law retains its original character. An action will not lie to 
unless the trespass was 'injurious' or caused damage. 1 A 
trespass is injurious when it is committed in defiance or 
denial of another's right or accompanied by circumstances 
of insult or contumely. This is but one illustration of the 
principle, now generally accepted, that actual damage is 
a necessary ingredient of any claim for damages based on 
delict, unless (a) the action, though in form one for damages, 
is brought to establish a right challenged by the defendant, 
or (6) the act complained of was done in circumstances 
amounting to contumelia. 2 

It may seem out of place to mention offences against Action for 
life under the head of wrongs against property, but the J, S y Sed bv 
action which the law gives to the dependent relatives of a death, 
deceased person is in fact referable to this title. Such 
persons if they have suffered pecuniary loss by the death 
may maintain an action for damages against the person by 
whom the death was intentionally or negligently caused. 3 
Thus, children may sue on account of the death of parents, 4 
or parents on account of the death of children. 5 A husband 
may recover patrimonial damages for his wife's death, but 
not compensation as solatium for the loss of his wife's 
society. 6 

Where an action lies to recover damages for fatal in- Or for 
juries, it may also be brought for injuries which are not s rtices 
fatal, if the plaintiff has suffered pecuniary loss through or main- 
being deprived of services or maintenance to which he had 
a legal claim. Thus, a father may sue for the loss of the 

1 Edwards v. Hyde [1903] T.S. at p. 387 per Solomon J. ; Rich- 
mond v. Chadwick [1927] N.P.D. 92; De Villiers v. Barlow [1929] 
O.P.D. at p. 57; Vanston v. Frost [1930] N.P.D. 121. 

2 Richmond v. Chadwick, ubi sup. 

3 Gr. 3. 32. 16; 3. 33. 2; Van Leeuwen, 4. 34. 15; Voet, 9. 2. 11. 
See, for a discussion of this action, Union Oovernment v. Warneke 
[1911] A.D. 657, and Union Qovt. v. Lee [1927] A.D. 202. 

4 Jameson's Minors v. C.S.A.R. [1908] T.S. 575 (father) ; Young 
v. Button [1918] W.L.D. 90 (mother). 

6 Oosthuizen v. Stanley [1938] A.D. 322. 

6 Steenkamp v. Juriaanse [1907] T.S. 980; Union Govt. v. 
Warneke, ubi sup. 



330 THE LAW OF OBLIGATIONS 

services of his minor child, 1 and a husband for the loss of 
the services of his wife. 2 But it has been held that a wife 
has no corresponding right of action in respect of injuries 
sustained by her husband, the ground of the decision being 
that the husband can recover compensation for his dimi- 
nished earning capacity and the wife would be no worse 
off than she was before. 3 In all these cases it must appear 
that the person killed or injured owed a legal duty to 
furnish maintenance or services, 4 and the plaintiff must 
allege in his declaration that he was unable to support 
himself and that there was thus a necessity for the main- 
tenance alleged to be lost. 5 The measure of damages is 
the amount by which the resources of the plaintiff, actual 
and prospective, have been diminished in consequence of 
the death or injury, 6 or the cost of replacing the services 
of which he has been deprived. 7 Where death is the cause 
of action it is no defence to show that the negligence of the 
deceased was a contributory cause of the fatal accident. 8 
(It seems that this does not apply to non-fatal injuries.) 9 
Nor is it any defence that the deceased before his death 
accepted a sum of money in full satisfaction of his claim 
for damages. 10 

Wrongs 3. Wrongs against Reputation. All the authorities 

reputa- agree that an action lies for written or spoken defamation. 

tion. Grotius devotes a short chapter to lastering or misdaed 

jegens eer which he describes as an outrage upon 'the 

1 Gr. 3. 34. 3; Voet, 9. 2. 11 ; Abbott v. Bergman [1922] A.D. at 
p. 56. 

2 Abbott v. Bergman, ubi sup. 

3 De Waal v. Messing [1938] T.P.D. 34. 

4 Union Qovt. v. Warneke, ubi sup. at p. 666 per Innes J.A. 
In the same case (p. 672) De Villiers J.P. said that a duty ex pietate 
would be enough, but this view has not prevailed. 

6 Waterson v. Mayberry [1934] T.P.D. 210 ; Oosthuizen v. Stanley 
[1936] W.L.D. 110. 

8 Voet, 9. 2. 11; Jameson's Minors v. C.S.A.R., ubi sup.; 
Hulley v. Cox [1923] A.D. 234; Smart v. 8. A. Rlwys. [1928] 
N.P.D. 361. 

7 Union Qovt. v. Warneke, ubi sup. at p. 669. 

8 Union Qovt. v. Lee, ubi sup. 

9 De Waal v. Messing, ubi sup. 

10 Ex parte Oliphant [1940] C.P.D. 537. 



OBLIGATIONS ARISING FROM DELICT 331 

good opinion which others have of us '- 1 Van Leeuwen, in 
his corresponding chapter speaks of outrage upon a man's 
'honour and good name'. 2 Both these writers evidently 
regard defamation as a species of injuria, which, as we 
read in the Digest, is a wrong directed against a man's 
person or affecting his dignity or reputation. 3 If this 
identification is correct the animus injuriandi is of the 
essence of the delict. This, however, is not the law ; for, The 
if the language complained of is clearly defamatory in 
character, the intention to injure will be presumed, 4 and 
proof that a defamatory statement concerning the plain- 
tiff was made with no intention of injuring him is no defence 
to an action for defamation. 5 'The Court cannot dive into 
the mind of a defendant ; it can only interpret his lan- 
guage as it would be understood by reasonable men ; he is 
assumed to have meant what his language thus interpreted 
would convey.' 6 In short, the injurious mind, required by 
the modern Roman-Dutch Law, in cases of defamation 
amounts to little, if to anything, more than the implied 
malice of English Law. The essential thing is publication, 
and ' the wrong of defamation consists in the publication 
of defamatory matter concerning another without lawful 
justification'. 7 In other respects too, the English Law is 
followed closely, or with variations. But in two important 
particulars there is a difference between the two systems : 
(1) the Roman-Dutch Law does not distinguish between 
spoken and written defamation. Where words are defama- 
tory they are prima facie actionable and it is unnecessary, 
whether they be spoken or written, to give proof of special 

1 Gr. 3. 36. 1. 

2 Lib. iv, cap. xxxvii. For defamation of the dead and conse- 
quent actions see Voet, 4. 10. 5 ; Spendiff v. East London Daily 
Despatch Ltd. [1929] E.D.L. 113; and Dr. F. P. Walton in Journ. 
Comp. Leg. (1927), vol. ix, pt. i. 8 Supra, p. 323. 

4 Voet, 47. 10. 20. 6 Tothill v. Foster [1925] T.P.D. 857. 

6 Suiter v. Brown [1926] A.D. at p. 163 per Innes C.J. The 
question whether Hulton v. Jones [1910] A.C. 20 can be reconciled 
with the law of South Africa (McKerron, p. 175) has been re- 
opened by Newstead v. London Express Newspaper Ltd. [1940] 
1 K.B. 377. 

7 McKerron, p. 165. 



332 THE LAW OF OBLIGATIONS 

damage j 1 and (2) the truth of a defamatory statement is 

not (it seems) per se a defence in an action for defamation. 2 

Defences The principal defences to an action for defamation are 
for^efa" t ^ ie same as * n English Law ; viz. Justification, 3 Privilege, 4 
mation. and Fair 5 Comment. But there are differences of detail. 

1. Justification. It is generally held that truth in 
itself is not a justification. It must be shown that the 
publication of the truth was for the public benefit. 6 The 
law of South Africa may perhaps be taken to be settled 
in this sense, 7 though it has been said that 'technically 
it is still an open question whether "public benefit" is a 
necessary part of a defence of justification'. 8 But the 
truth of a defamatory statement may be pleaded in miti- 
gation of damages. 9 In Ceylon the question seems to 
be not merely ' technically ' open, for in a case appealed to 
the Privy Council, Lord Alness, speaking for the Board 
said, 'The existing law would appear from the argument 
which their Lordships heard to be far from clear and on it 
their Lordships offer no opinion'. 10 

2. Privilege. The only case of absolute privilege cer- 
tainly admitted by the law of South Africa is the statutory 
protection extended to speeches in Parliament and to 
papers published by authority of Parliament and its com- 
mittees. 11 Other cases are cases of qualified privilege, i.e. 

I 4 Maasdorp, p. 136; (Ceylon) Wickremanayake v. The Times 
of Ceylon (1937) 39 N.L.R. 547. 2 McKerron, p. 165. 

3 Johnson v. Rand Daily Mails [1928] A.D. 190. 

4 De Waal v. Ziervogel [1938] A.D. 112. 
6 Moolman v. Cull [1939] A.D. 213. 

6 Gr. 3. 36. 2 ; Voet, 47. 10. 9. Secus, V.d.K. 803 (Lee, Commen- 
tary, p. 342) ; and see Kotze, Van Leeuwen, vol. 2, p. 296. 

7 Botha v. Brink [1878] Buch. at p. 123 ; Ceylon law is the same. 
Chelliah v. Fernando (1937) 39 N.L.R. 130. 

8 Toerien v. Duncan [1932] O.P.D. at p. 145 per de Villiers J.P. 
* Leibenguthv. Van Straaten [1910] T.P.D. 1203; Willoughby v. 

McWade [1932] C.P.D. 66. 
10 Sabapathi v. Huntley (1937) 39 Ceylon N.L.R., 396. 

II Powers and Privileges of Parliament Act, 1911, sees. 2, 8, 29. 
There may be other cases. ' If the duty to communicate a third 
party's statement to another is absolute, then it seems to me, the 
privilege must be absolute.' Sather v. Orr [1938] A.D. at p. 439 
per Stratford C. J. 



OBLIGATIONS ARISING FROM DELICT 333 

they afford a prima facie defence which may be displaced 
by proof of a positive animus injuriandi, 1 the so-called 
express malice of English Law. Thus, neither advocates, 2 
nor attorneys, 3 nor witnesses, 4 nor, it seems, judges 5 enjoy 
more than a qualified privilege. It must further be noted 
that qualified privilege is not available as a defence to 
a person who has published defamatory matter beyond 
what was reasonably required by the exigency of the occa- 
sion. 6 In such case it is not incumbent on the plaintiff to 
give proof of an animus injuriandi. 

3. Fair Comment. The defence of fair comment is the 
v same in South African as in English Law. 7 

There are some other defences of less frequent occur- 
rence, such as rixa (quarrel). 8 This is the plea that the 
words were spoken in sudden anger without premeditation 
and in reasonable retaliation for provocation from the side 
of the plaintiff, and were not persisted in. This seems to 
come very near to what English lawyers call ' vulgar abuse '. 9 

1 Kleynhans v. Usmar [1-929] A.D. at p. 126; Hazaree v. 
Kamaludin [1934] A.D. 108; Gluckman v. Schneider [1936] A.D. 
151; Young v. Kemsley [1940] A.D. 258; Molepo v. Achterberg 
[1943] A.D. at p. 111. 

2 Preston v. Luyt [1911] E.D.L. 298; Findlay v. Knight [1935] 
A.D. 58. 

3 Gluckman v. Schneider, ubi sup. ; Solomon v. Van Leggelo [1938] 
T.P.D. 75. 

4 Dippenaar v. Hauman [1878] Buch. at p. 140; Goldseller v. 
Kuranda [1906] T.H. 185; MacGregor v. Sayles [1909] T.S. 553; 
Van Rensburg v. Snyman [1927] O.P.D. 123. Secus in Ceylon. 
Silva v. Balasuriya (1911) 14 N.L.R. 452; Leisa v. Siyatuhamy 
(1925) 27 N.L.R. 318. 

6 Gr. 3. 37. 9 (Lee, Commentary, ad loc.); Voet, 47. 10. 2; 
Preston v. Luyt, ubi sup. at p. 311 ; Norden v. Oppenheim (1846) 
3 Menz. at p. 54; Cooper v. The Government [1906] T.S. 436; 
Matthews v. Young [1922] A.D. at p. 493 (authorities cited by 
counsel). 

6 McKerron, p. 192, citing Adam v. Ward [1917] A.C. at p. 321 ; 
Molepo v. Achterberg [1943] A.D. 85 ; (Ceylon) Chelliah v. Fernando 
(1937) 39 N.L.R. 130. 

7 Moolman v. Cull [1939] A.D. 213; McKerron, p. 192. 

8 Glass v. Perl [1928] T.P.D. 264; Kirkpatrick v. Bezuidenhout 
[1934] T.P.D. 155. 

9 Gatley, Libel and Slander (3) pp. 56, 141 ; Alia v. Thaba [1939] 
N.P.D. 231. 



334 THE LAW OF OBLIGATIONS 

Other defences hardly, if at all, distinguishable from 
rixa are retorsion or self-defence, 1 and compensation, 
which rests upon the principle of ' tit for tat ' paria de- 
licta mutua compensatione tolluntur. 2 But the essence 
of the thing is that words spoken in anger are not taken 
seriously by impartial hearers any more than words 
spoken in jest. 3 

Publica- The question has been raised whether publication is 
necessary to ground an action for defamation and has been 



defama- answered affirmatively. 4 But the question rests upon a 
misconception. Defamation is an injury to reputation, 
which necessarily implies publication. I may also have an 
action for injury to my feelings, but that is another matter 
to be considered below. 

The law of From what has been said it will be apparent that if the 
tion foundation of the South African law of defamation is to be 
largely sought in the Roman-Dutch Law, the superstructure con- 
in 118 sists in very large measure of material taken from the Law 

character. o f England. 5 

o 

Malicious Malicious prosecution is akin to defamation and should 
be governed by the same rules. In Holland private prose- 
cutions for crime were infrequent, and the books speak on 
this topic with uncertain voice. The writers of the seven- 
teenth century give some indications that any prosecutor 
who failed to secure a conviction exposed himself to an 
action for damages. In the eighteenth century it seems 
probable that he would not have been liable in the absence 
of affirmative proof of injurious intent. However this may 
be, the question is merely of historical interest, for the 
modern Roman-Dutch Law has adopted the English law 

1 Wilkinson v. Trevett [1922] C.P.D. 393; Tietze v. Woschnitzok 
[1929] S.W.A. 39. 

2 Holl. Cons. v. 81 ; Lachter v. Glaser [1914] T.P.D. 461 ; Harris 
v. A. C. White Co. Ltd. [1926] O.P.D. 104. 

3 McKerron, p. 198. 

4 Hall v. Zietsman (1899) 16 S.C. 213; Van Vliefs Collection 
Agency v. Schreuder [1939] T.P.D. 265. 

8 Some more cases relating to special aspects of the law of 
defamation are collected in an Appendix to this chapter. 



OBLIGATIONS ARISING FROM DELICT 335 

of malicious prosecution, which requires the plaintiff to 
establish not merely the element of malicious intention but 
also the absence of reasonable cause. 1 The same principles 
apply to other abuses of legal process such as maliciously 
instituting civil proceedings. 2 

In Holland and Germany actions for injury were brought 
very frequently and upon the slightest occasion. By his 
statement of claim the plaintiff asked for 'amende honora- 
bel' and 'amende profitabel'. 3 The first was an apology Amende 
from the defendant. The second consisted in a sum of 1 ^ e 
money to be paid to the plaintiff or applied to the use of tabel. 
the poor. In the modern law the amende honorabel is no 
longer in use ; the action for damages remains. 

The action for defamation is only one aspect of the actio Affront, 
injuriarum, which lay also for an outrage upon a person's 
dignity. This is injuria in the specific sense of contumelia 
(Dutch hoon). 4 The gist of the action is the affront. In 
the modern law the action for defamation has pushed the 
action for affront into the background or out of sight. But 
it unquestionably exists 5 as in Scots Law, 6 though it is 
not an action which one would wish to see encouraged. 

In the Roman Law an injury to wife, child, or servant Injuries 
was construed as an injury to the husband, parent, or 
master. 7 There are South African cases in which an insult 
to, or defamation of, a wife has been held to give the 
husband a cause of action. 8 

1 Corea v. Peiris [1909] A.C. 549; McKerron, p. 246. " 

2 Boshoff v. Van Zyl [1938] C.P.D. 415; Cole's Est. v. Oliver 
[1938] C.P.D. 464; (Ceylon) Cooray v. Fernando (1941) 42 N.L.R. 
329. 

3 Gr. 3. 35. 2; 3. 36. 3; Voet, 47. 10. 17; V.d.L. 1. 16. 4. 

4 Grotius distinguishes hoon and lastering (Gr. 3. 35 and 36), 
Van Leeuwen (4. 37. 1) does not. 

5 Whittington v. Bowles [1934] E.D.L. 142; Mulock-Bentley v. 
Curtoys [1935] O.P.D. 8; Walker v. Van Wezel [1940] W.L.D. 66. 

6 Mackay v. McCankie, 1883, 10 R. 537. 

7 Inst. 4. 4. 2 ; and see Gr. 3. 35. 6 and Voet, 47. 10. 6. 

8 Banks v. Ayres (1888) 9 N.L.R. 34; Jacobs v. Macdonald 
[1909] T.S. 442. In the Ceylon case of Appuhami v. Kirihami 
(1895) 1 N.L.R. 83 it was said that a father is not entitled to sue 
for words defamatory of his daughter, although he may have felt 
pained and distressed. See also Miller v. Abrahams [1918]C. P. D. 50. 



336 



THE LAW OF OBLIGATIONS 



Wrongs 

against 

the 

domestic 

relations. 



Breach of 
statutory 
or com- 
mon law 
duty. 



4. Wrongs against the domestic relations. An 

action for damages lies against an adulterer, which is 
usually, but not necessarily, combined with the action for 
divorce against the guilty spouse, 1 but no action for 
damages lies against a guilty wife or husband. 2 In the 
action against the adulterer the husband may claim not 
only sentimental, but also patrimonial, damages ; the first 
'on the ground of the injury or contumdia inflicted' upon 
him, the second 'on the ground of the loss of the comfort, 
society, and services of his wife'. If he condones his wife's 
adultery and continues to live with her, the second ground 
of damage falls away, but not necessarily the first. The 
measure of damages (if any) recoverable under this head 
depends upon the circumstances. 3 Whether an injured wife 
can maintain an action for damages against a female co-re- 
spondent remains uncertain. The decisions are conflicting. 4 
Apart from adultery a husband has an action against one 
who in bad faith deprives him of the consortium of his wife 
(abduction harbouring). 5 Whether a wife has an action 
for the loss of the society of her husband must be regarded 
as an open question. 6 A father (semble) has an action 
against one who in bad faith takes from him his child. 7 

5. Breach of a Statutory or Common Law Duty. In 
either case the person committing the delict is liable to 
an action at the suit of any one of the public who has 
sustained special damage in consequence. 8 Thus it is the 
duty of a gaoler to keep safely every prisoner lawfully 
confined. If he illegally allows his prisoner to escape he is 

1 Gr. 3. 35. 9; Norton v. Spooner (1854) 9 Moo. P.C.C. 103; 
Sutcliffe v. Sutcliffe [1913] T.P.D. 686; Viviers v. Kilian [1927] 
A.D. 449. 2 Exparte A.B. [1910] T.S. 1332. 

3 Viviers v. Kilian, ubi sup. * McKerron, p. 161. 

6 Union Govt. v. Warneke [1911] A.D. at p. 667; (Ceylon) De 
Silva v. De Silva (1925) 27 N.L.R. 289. 

' McKerron, p. 164; recently decided affirmatively by Black- 
well J. in Rosenbaumv.Margolis, 1944 (1) P.H., B. 33 [W.L.D.]. 

7 The theft of a filius or of a slave constituted the crime of 
plagium which was severely punished. Voet, 48. 15. There is a 
strange want of authority for a civil action. 

8 Begemann v. Cirota [1923] T.P.D. 270 (action by shopkeeper 
against hawker for illegal trading in breach of statute). 



OBLIGATIONS ARISING FROM DELICT 337 

answerable in damages. 1 The harm in respect of which an 
action is brought for breach of a statutory duty must be 
of the kind which the statute was intended to prevent, 2 and 
must be the immediate result of the breach of the statute. 3 
If a statute creates a special obligation and prescribes a 
special remedy, as a rule no other remedy is available. 4 

6. Miscellaneous wrongs. There are many wrongs Miscei- 
which do not come within any of the above-mentioned 
classes. In Roman Law the actio doli lay in any case in 
which the plaintiff had been cheated by the defendant, and 
had no other remedy, but nowadays the action for deceit is 
governed by the same principles as in English Law. 5 The 
question remains open whether an action lies for negligent 
statements which cause damage. 6 For the rest, it is obvious 
that the Roman-Dutch Law is inadequate to resolve all 
the complex situations of modern life. The old writers may 
suggest an argument, but hardly supply an answer. The 
Courts in the absence of legislation will be guided, or aided, 
more by British and American decisions than by text- 
writers of the seventeenth and eighteenth centuries. 7 

There is a wrong to which Salmond gives the name of Injurious 
'injurious falsehood', of which slander of title and slander 
of goods may be regarded as varieties. This consists in the 
malicious publication of a false statement concerning a 
man's trade or business, which causes damage. Neither 
injuria alone, nor damnum alone is sufficient to ground 
the action. Both must be proved. 8 By injuria must be 

1 Sandilands v. Tompkins [1912] A.D. 171. 

2 Chandler v. Middelbierg Munic. [1924] T.P.D. 450. 

3 Bellstedt v. S. A. Rlwys. [1936] C.P.D. at p. 411. 

4 Madrassa v. Johannesburg Munic. [1917] A.D. 718. 
8 McKerron, p. 199. 

8 Van Zyl v. African Theatres Ltd. [1931] C.P.D. at p. 66; 
McKerron, p. 207 ; answered affirmatively in Western Alarm 
System (Pty) Ltd. v. Coini & Co., 1944 (1) P.H., J. 9 [C.P.D.]. 

7 Trade competition, &c.,4Maasdorp, pp. 43ff. Inducing another 
to break his contract with a third party, Solomon v. Du Preez 
[1920] C.P.D. 401 ; Isaacman v. Miller [1922] T.P.D. at p. 61. 
Passing off, Policansky Bros. v. Policansky [1935] A.D. 89. 

8 Salmond's Law of Torts (10), ed. Stallybrass, p. 590; 
McKerron, p. 203. 

4901 r, 



338 



THE LAW OF OBLIGATIONS 



Doubtful 
cases of 
absolute 
liability. 



understood not contumelia, but wrongful intention, as in 
the actio legis Aquiliae. 1 Like the action for malicious 
prosecution it is an importation from English Law. It is 
not an actio injuriarum. 2 

It has been said above that a man is liable for intended 
wrongs, and for negligence which causes damage. Are 
there also cases in which his liability must be stated higher, 
viz. as an absolute duty not to cause injury even in cir- 
cumstances which exclude dolus and culpa ? A man's lia- 
bility for mischief done by his animals is of this character. 
If my dog bites you, you may obtain damages without 
proof of scienter or of negligence. 3 It is doubtful whether 
there is any other case of absolute liability. 4 There are 
cases in which the duty of taking care is very high and the 
liability for carelessness proportionately great. But these 
fall under the head of negligence and conform as a rule 
to English Law. 5 

1 G. A. Fichardt Ltd. v. The Friend Newspapers Ltd. [1916] 
A.D. 1 ; Van Zyl v. African Theatres Ltd. [1931] C.P.D. 61. 

2 Bredell v. Pienaar [1924] C.P.D. 203. 

3 O'Callaghan N. O. v. Chaplin [1927] A.D. 310; 8. A. Rlwys. 
and Harbours v. Edwards [1930] A.D. 3; Greydt-Ridgeway v. 
Hoppert T.P.D. (1930) 15 P.H.J. 14; Mehnert v. Morrison [1935] 
T.P.D. 144; Smith v. de Smidt [1937] T.P.D. 8; Brown v. Laing 
[1940] E.D.L. 75; Batchoo v. Crick [1941] N.P.D. 19 (noxa caput 
sequitur unknown to the modern law). For the Roman Law see Lee, 
Elements of Roman Law, sec. 626. Note that in Mowbray v. Syfret 
[1935] A.D. 199 the cause of action was negligence, not pauperies. 

4 The actio de pastu pecorum (Voet, 9. 1. 1) may have implied 
culpa. In any case it has been superseded in South Africa by the 
Pounds Acts. McKerron, p. 243 ; Kock v. Klein [1933] C.P.D. 194. 
The Judicial Committee can scarcely be supposed to have incor- 
porated the rule in Rylands v. Fletcher into the law of South Africa 
by Eastern & S. A. Telegraph Co. Ltd. v. Cape Town Tramways 
Co. Ltd. [1902] A.C. 381. See Union Govt. v. Sykes [1913] A.D. 
at pp. 161, 169. In Binghamv. Johannesburg City Council [1934] 
T.P.D. 301 Solomon J. regarded Rylands v. Fletcher as a case of 
nuisance. But nuisance and Rylands v. Fletcher are distinguish- 
able. Salmond, p. 602; Winfield, Torts (2), p. 538. The rule in 
Rylands v. Fletcher has been held to be in force in Ceylon. Subaida 
Umma v. Wadood (1927) 29 N.L.R. 330. 

6 Natal Act, No. 3 of 1905, in the case of an action for damages 
sustained from fire occasioned by a railway engine, throws upon 
the defendant the onus of disproving negligence. For the general 
law as to damage by fire see Gr. 3. 38. 2 and Lee, Commentary, 



OBLIGATIONS ARISING FROM DELICT 339 
Who are liable for delicts. Any person is answerable for Who are 
his wrongful acts if he had intelligence to understand that delicts. 
he was doing wrong. This excludes insane persons and 
young children. 1 All persons who have in any way author- 
ized, instigated, or assisted in the commission of a wrongful 
act are liable. 2 Masters and principals are answerable for 
the wrongful acts of their servants or agents authorized 
by them or committed in the course of their service or 
employment. 3 This applies whether the master or em- 
ployer is an individual or a corporation. 4 But an employer 
is not, as a rule, liable for the delicts of 'an independent 
contractor'. 5 Ratification of the act of a subordinate is 
equivalent to a prior command. 6 Fathers are not, as such, 
answerable for the delicts of their children, 7 nor husbands 
for the delicts of their wives. 8 

ad loc. ; Voet, 9. 2. 19-21; McLaugUin v. Koenig [1928] C.P.D. 
102; Van Reenen v. Glenlily [1936] C.P.D. 315. Stringent precau- 
tions are called for in regard to fire-arms. Roddy v. Ohlsson's 
Breweries Ltd. [1907] T.S. 125. 

1 Gr. 3. 32. 19; Voet, 9. 2. 29; 47. 10. 1. As to the effect of 
drunkenness see Voet, ibid. Minors who have reached years of 
discretion are liable. Collinet v. Leslie (1907) 17 C.T.R. 110. 

2 Gr. 3. 32. 11; McKenzie v. Van der Merwe [1917] A.D. 41; 
Mouton v. Becket [1918] A.D. at p. 190. 

3 Mkize v. Martens [1914] A.D. 382; Est. van der Byl v. 
Swanepoel [1927] A.D. 141 ; Union Govt. v. Hawkins, 1944 (2) P.H., 
J. 10 [A.D.]. 

4 Houldsworth v. City of Glasgow Bk. (1880) 5 A.C. at p. 326 
per Lord Selborne, who adds the words 'provided that the act 
done is within the scope of the corporate powers'. This raises a 
controverted question, viz. whether a corporation can be held 
liable for a delict committed by one of its servants in the course 
of an undertaking which is ultra vires the corporation. See Tram- 
way Workers Union v. Heading [1938] A.D. 47; South African 
Bazaars Ltd. v. National Union of Distributive Workers [1939] 
N.P.D. 79; McKerron, p. 116. 

5 Colonial Mutual Life Assurance v. Macdonald [1931] A.D. 
412; Dukes v. Marthinusen [1937] A.D. 12. 

6 Whittaker v. Boos efc Bateman [1912] A.D. at p. 113. 

7 Gr. 3. 1. 34 ; Voet, 9. 4. 10 ; V.d.K. 476. But note the applica- 
tion of the principle ' qui prohibere potest, tenetur ' ; Philpott v. 
Whittal, Elston, and Crosby & Co. [1907] E.D.C. at p. 207; and 
a father may be liable if a relation of master and servant existed 
between father and son. Andrews v. Levy [1930] S.R. 101. 

8 V.d.K. 225 ; Pretoria Municipality v. Esterhuizen [1928] T.P.D. 
at p. 682; (Ceylon) Ord. No. 18 of 1923, sec. 5 (2). 



340 THE LAW OF OBLIGATIONS 

Every co-delinquent is liable in solidum, 1 but if one 
makes satisfaction the others are discharged 2 and cannot 
be called upon to contribute. 3 An unsatisfied judgment 
against one is no bar to an action against another. 4 
Who may Who may sue. In general, any person who is injured 
by a delict may maintain an action for damages, but in 
cases of nuisance which cause inconvenience or discomfort 
merely without pecuniary damage, the only remedy is 
by way of interdict. 5 Corporations may sue for wrongs 
against property and for defamatory statements which 
affect them in their trade, business, or property. 6 No 
action for delict lies between husband and wife married 
in community; whether between spouses not so married 
is not free from doubt. 7 

Personal In litigation insane persons are represented by their 
mcapa- curators ; minors and married women (when the marital 

city. 

power is not excluded) are represented or assisted by their 
guardians or husbands. 8 

Trans- An action in delict directed to patrimonial damages 

acdons f * 8 ac ti ve ty and passively transmissible to (heirs or) per- 
sonal representatives. 9 An action directed to sentimental 
damages is not transmissible actively or passively, until 

1 Gr. 3. 32. 15; Naude and Du Plessis v. Mercier [1917] A.D. 
at p. 38. But when a plaintiff in an action for injuria claims 
sentimental, not patrimonial, damages, it may be that different 
damages will be assessed by the Court according to the blame T 
worthiness of the various co-delinquents. Gray v. Poutsma [1914] 
T.P.D. 203. 

2 Gr. 3. 32. 15; Voet, 9. 2. 12; Grek v. Jankelowitz [1918] 
C.P.D. 140. Voet limits his statement to actio rei persecutoria 
and this seems to accord with modern practice. Cf. Toerien v. 
Duncan [1932] O.P.D. at p. 203. 

3 Voet, 9. 2. 20 (ad fin.); Gray v. Poutsma, ubi sup. at p. 215; 
Naude and Du Plessis v. Mercier [1917] A.D. 32 ; (Ceylon) Wahidu 
Marikar v. Sahidu Marikar (1930) 32 N.L.R. 111. 

4 Natal Trading Co. v. Inglis [1925] T.P.D. 724. 

5 McKerron, p. 221. 

8 G. A. Fichardt v. The Friend Newspapers Ltd. [1916] A.D. at 
p. 5 ; Hoogendoorn v. Fouche [1933] C.P.D. 560 ; McKerron, p. 169. 

7 Mann v. Mann [1918] C.P.D. 89; McKerron, p. 97. 

8 McKerron, pp. 96, 97; Harms v. Malherbe [1935] C.P.D. 167 
(married women). 

9 Gr. 3. 32. 10; Voet, 9. 2. 12. 



OBLIGATIONS ARISING FROM DELICT 341 

it has reached the stage of litis contestatio, 1 which in 
modern practice is reached when the pleadings are closed 
and matters are at issue between the parties. 2 The action 
for seduction is not an action for injuria, but sui generis? 
It is questionable whether it is transmitted either way 
before litis contestatio, 4 but the seducer's estate has been 
held liable for lying-in expenses, for reasonable mainten- 
ance of the child born of the seduction, and for the cost 
of its funeral. 5 

General exceptions from liability. No one is liable for General 
inevitable accident, 6 or for acts done in the lawful exercise 
of a right 7 or performance of a duty. 8 No action lies 
against a judge for acts done or words spoken in honest 
exercise of his judicial office. If he acts in bad faith or with 
injurious intention he will, perhaps, be liable. 9 No action 
lies, as a rule, if the plaintiff consented to the alleged 

1 Gr. 3. 35. 4; Voet, 47. 10. 22; Sande, Decis. Fris. 5. 8. 4. 
Grotius says (3. 35. 5) that the action is not passively transmitted 
'unless carried through to judgment', but wrongly. 

2 Meyer's Exors. v. Gericke (1880) Foord at p. 18 per De Vil- 
liers C.J. 3 Spies Exors. v. Beyers [1908] T.S. 473. 

4 McKerron, pp. 160, 161. 

5 Spies Exors. v. Beyers, ubi sup. 

8 Gr. 3. 34. 4 ; Voet, 9. 2. 21 and 29 ; McKenzie v. Bloemfontein 
Town Council [1904] O.R.C. 83 (abnormal flood); Moffat v. Raw- 
storne [1927] T.P.D. 435 (lightning). These are cases of casus 
fortuitus. Vis major, if distinguishable at all, is related to casus 
fortuitus as species to genus. But the terms casus fortuitus, vis 
major, and damnum fatale are used indifferently. Donges, p. 44. 

7 e.g. defence of one's person, Gr. 3. 33. 9 ; 3. 34. 4 ; Voet, 9. 2. 
22 defence of one's property, Dig. 43. 24. 7. 4 ; Voet," 9. 2. 28 ; 
Schoeman v. Olivier (1907) 24 S.C. 759; Du Plessis v. Aswegen 
[1931] T.P.D. 332 parendi necessitas, Voet, 47. 10. 3 error, 
Voet, 47. 10. 20 provocation, ibid. statutory authority : 'Speak- 
ing generally, no man can be sued for doing what Parliament has 
declared to be a lawful act. To that principle, however, there is 
a well-established exception, and that is, that the act sanctioned 
must not be done negligently, Union Government v. Sykes [1913] 
A.D. at p. 169 ; Johannesburg Munic. v. African Realty Trust Ltd. 
[1927] A.D. 163 ; Ready v. Durban Corpn. [1939] A.D. 293 ; Johan- 
nesburg City Council v. Viccinovich [1940] A.D. 365 quasi-judicial 
capacity, Matthews v. Young [1922] A.D. at p. 509; acts done 
under the sanction of and within the limits of the authority con- 
ferred by judicial process. Hart v. Cohen (1899) 16 S.C. 363. 

8 e.g. intervention to stop a breach of the peace. Voet, 9. 2. 29. 

9 Supra, p. 333. 



342 THE LAW OF OBLIGATIONS 

wrong, or accepted a risk with knowledge and appreciation 
of the circumstances. 1 

Measure of damages. The distinction between senti- 
mental and patrimonial damages has been explained 
above. Exceptionally, the damages awarded are exem- 
plary or nominal. Exemplary damages are sentimental 
damages enhanced to punish the defendant for particu- 
larly injurious misconduct. Nominal damages are damages 
awarded where a right has been infringed but no actual 
damage incurred. The South African courts have shown 
a marked disinclination to give nominal damages except 
when the plaintiff's right is challenged by the defendant 
and the action, though in form one for damages, is actu- 
ally brought to establish a right. 2 In all cases in which 
actual damage is the gist of the action it is essential that 
the damages (or, more precisely, the damage) should not 
be too remote, 3 i.e. that the loss to the plaintiff which 
forms the basis of the assessment should be connected not 
too remotely with the wrongful act or omission alleged. 
Whether the test of remoteness is ' foreseeability ' or ' direct 
consequence ' remains for the present an open question. 4 

We have seen that in case of injury to the person 
physical pain and disfigurement are taken into account 
in assessing the damages, but no allowance is made for 
mental suffering and anguish unless it affects the victim's 
health. 5 This is in substantial conformity with English Law. 

1 'Volenti non fit injuria.' Dig. 47. 10. 1, 5; Voet, 47. 10. 2; 
Waring & Gillow Ltd. v. Sherborne [1904] T.S. 340 ; National Meat 
Suppliers (Pty)Ltd. v. Cape Town City Council [1938] C.P.D. at p. 504. 

2 Edwards v. Hyde [1903] T.S. at p. 387 ; Richmond v. Chadwick 
[1927] N.P.D. at p. 94 ; Eampersad v. Goberdun [1929] N.P.D. 32. 

3 Voet, 9. 2. 16 ff. ; Luyt v. Morgan [1915] E.D.L. 142 ; Anderson 
v. Van der Merwe [1921] C.P.D. 342. 

4 Transv. Provincial Administration v. Coley [1925] A.D. at 
p. 26 per Innes C. J. ; Venter v. Smit [1927] C.P.D. 30; Foster v. 
Moss and Dell [1927] E.D.L. at p. 217 ; Coetzee v. S. A. Rlujy*. 
[1933] C.P.D. at p. 574. The implications of In re Polemis [1921] 
3 K.B. 560 have not yet left their mark on the law of South 
Africa. See the cases last cited and McKerron, p. 131. 

8 For recent English cases see Salmond (10), p. 344, and for an 
interesting Australian case, Chester v. Munic. Council of Waverley, 
see 55 L.Q.R. (1939), p. 495. 



OBLIGATIONS ARISING FROM DELICT 343 

Quasi-delicts. 1 Under the title of obligationes quasi ex Quasi- 
delicto the Institutes of Justinian mentions the following delicts - 
cases of liability: (1) the occupier of a house or room from 
which anything is thrown or poured down on a way in 
common use so as to do damage to a person passing or 
standing beneath (actio de effusis vel dejectis) ; 2 (2) the 
occupier of a house who keeps something placed or sus- 
pended which may fall on someone passing or standing 
on the road beneath (actio positi aut suspensi) ; 3 (3) the 
keeper of a ship, tavern, or stable on whose premises a 
theft is committed or damage done by persons in his 
employ (actio de damno in nave aut caupona aut stabulo 
facto). 4 These may be regarded as cases of absolute liabi- 
lity or (which comes to the same thing) as cases in which 
the law draws an irrebuttable inference of culpa and of 
consequent liability. 5 

Actions of this class are actively, but not passively, 
transmissible. 6 

Limitation of Actions. Actions arising out of delict were Limita- 
usually prescribed by the lapse of thirty years, but actions 
for verbal or written injuries 7 by the lapse of one year 
from the time when the injured party had knowledge of 
the wrong. The law as to limitation of actions now 

1 Gr. lib. iii, cap. xxxviii ; Van Leeuwen, lib. iv, cap. xxxix. 

2 Inst. 4. 5. 1 ; Dig. 9. 3. 1 ; 44. 7. 5. 5 ; Transvaal and Rhodesian 
Estates Ltd. v. Golding [1917] A.D. at p. 28; cf. Colman v. Dunbar 
[1933] A.D. 141. 

3 Inst. loc. cit. ; Gr. 3. 38. 5; V.d.K. 810; and see Rechts. Obs., 
pt. i, no. 98. Contrary to the Roman Law, R.-D.L. only gave 
an action in case of actual injury. 

4 Inst. 4. 5. 3 ; Gr. 3. 38. 9 ; V.d.K. 811. In the case of inns the 
liability extended to the acts of permanent residents. Dig. 47. 
5. 1, 6. For all practical purposes the ground is covered by the 
contractual liability mentioned above, p. 319. Donges, The Lia- 
bility for safe carriage of Goods in Roman-Dutch Law, pp. 26-6, 
considers the differences between the two actions. 

6 Buckland, Textbook, p. 598, n. 22. Another case of quasi- 
delict was 'si judex litem suam fecerit'. Inst. 4. 5 pr. The subject 
of judicial liability in the modern law has been touched on above. 

6 Inst. 4. 5. 3 (ad fin.). 

7 Gr. 3. 35. 3 (and Groen. ad loc.); 3. 36. 4; Voet, 47. 10. 17 
(ad fin.) and 21 ; Van Leeuwen, 4. 37. 3, and Kotze"'s note ; Beukes 
v. Coetzee (1883) 1 S.A.R. 71. 



344 THE LAW OF OBLIGATIONS 

depends for the most part upon statute. By the (Union) 
Prescription Act, 1943, actions for defamation are pre- 
scribed by a period of one year, and actions for damages 
other than those for which another period is laid down 
in the Act by a period of three years. 1 

APPENDIX 

ADDITIONAL CASES ON THE LAW OF DEFAMATION 

Privilege. McLean v. Murray [1923] A.D. 406 (communica- 
tion of Town Councillor to Council) ; King v. Neale [1936] 
E.D.L. 236 (Town Councillor) ; Van Leggelo v. Argus Printing 
Co. [1935] T.P.D. 230 (newspaper report of judicial proceed- 
ings) ; Hearson v. Natal Witness Ltd. [1935] N.P.D. 603 (report 
of speeches in Parliament) ; Molepo v. Achterberg [1943] A.D. 
85 (common interest). 

Abuse of privilege. Middler v. Hamilton [1923] T.P.D. 441 ; 
Rose v. Brewer [1933] C.P.D. 49 ; Finn v. Joubert [1940] C.P.D. 
130. 

Justification public interest. Lyon v. Steyn [1931] T.P.D. 
247 ; Bayer v. Bayer [1937] S.W.A. 73. 

Rixa. Conway v. Westwood [1936] N.P.D. 245. 

Retorsion. Read v. Pyper [1935] S.W.A. 16. 

Assessment of damages. Salzmann v. Holmes [1914] A.D. 471. 

Mitigation of damages. Cressey v. African Life Assurance 
Soc. Ltd. [1917] A.D. 605; Nathan and Schlosberg, Law of 
Damages, p. 155. 

The provinces of judge and jury (or of judge deciding issues 
of fact). Richter v. Mack [1917] A.D. 201 ; Middellandsche 
Nationale Pers v. Stahl [1917] A.D. 630. 

Words defamatory per se. Holdt v. Meisel [1927] S.W.A. 45 ; 
Glass v. Perl [1928] T.P.D. 264 ; Yates v. MacRae [1929] T.P.D. 
480. Helps v. Natal Witness Ltd. [1937] A.D. 45; Brill v. 
Madeley [1937] T.P.D. 106 ; Smith v. Elmore [1938] T.P.D. 18 ; 
Whitlock v. Smith [1943] C.P.D. 321 ('you are a liar') ; Moosa v. 
Duma, 1944 (1) P.H., J. 4 [T.P.D.] ('bastard'). 

Words not defamatory per se. Richter v. Mack, ubi sup.; 
Hardaker v. Tjabring [1927] N.P.D. 145; Wallaces Ltd. v. 

1 Sec. 3 (2). 



OBLIGATIONS ARISING FROM DELICT 345 

Marsh [1928] T.P.D. 531 ; Smith v. Lawrence [1929] N.P.D. 
132; Haacke v. Deutsche Presse Ltd. [1934] T.P.D. 191; 
Welgemoed v. Cohen [1937] T.P.D. 134 ; Kay v. Argus Printing 
Co. [1937] N.P.D. 119; Unie Volkpers Bpk. v. Eossouw [1943] 
A.D. 519. 

Newsvendor, dissemination in ordinary course of business. 
Trimble v. Central News [1934] A.D. 43; Masters v. Central 
News [1936] C.P.D. 388. 

Publication by reference to other published matter. African 
Life Assurance Socy. v. Robinson <fc Co. [1938] N.P.D. 277 ; 
African Realty Trust Ltd. v. Robinson & Co. [1939] T.P.D. 155. 

Defamation of a class of persons. Nasionale Pers Bpkt. v. 
Long [1930] A.D. 87 ; Knupffer v. London Express Newspaper 
Ld. [1944] A.D. 116. 



PART III 

OBLIGATIONS ARISING FROM SOURCES OTHER 
THAN CONTRACT AND DELICT 

Obliga- WE have spoken of obligations arising from contract and 
cmasi ^ obligations arising from delict. It remains to refer to a 
ex con- residuary group of obligations which it is customary to 
describe as quasi-contractual. This embraces a variety of 
cases in which the law, in order to secure fair dealing 
between persons who are brought into relation with one 
another, makes one the creditor of the other in respect of 
a specific act or forbearance, thereby creating a vinculum 
juris between them. We must not, perhaps, extend the 
phrase 'quasi-contractual obligation', so as to include ties 
arising out of the domestic relations, such as those existing 
between husband and wife or parent and child, so far as 
they are capable of legal enforcement. 1 But apart from 
these there are many relations between persons which give 
rise to obligations created not by agreement or by wrong 
but by operation of law. Thus, where one person has been 
inequitably enriched at the expense of another the law 
imposes a duty of making compensation. Nam hoc natura 
aequum est neminem cum alterius detrimento fieri locu- 
pletiorem. 2 In accordance with this principle enrichment 
without cause, or from an unjust cause, constitutes a fre- 
quent source of quasi-contractual obligation. Thus, where 
money has been paid under reasonable error of fact to a 
person not entitled, 3 or under protest as a means of 
obtaining possession of property or the recognition of a 

1 See Sohm's Institutes of Roman Law, translated by J. C. Ledlie, 
3rd ed., p. 308, n. 1, and pp. 358-9. 

2 Dig. 12. 6. 14; supra, p. 47; Van Rensburg v. Straughan 
[1914] A.D. at p. 329; Uriel v. Jacobs [1920] C.P.D. at p. 493; 
Pretorius v. Van Zyl [1927] O.P.D. 226 ; Gorfinkel v. Miller [1931] 
C.P.D. 251. See The Doctrine of Unjustified Enrichment, Gutteridge 
and David, Cambridge Law Journal, 1934, p. 204 ; Unjustified En- 
richment, Mr. Justice A. J. McGregor, 55 S.A.L.J. (1938) pp. 4, 167. 

3 Inst. 3. 27. 6 ; Gr. 3. 30. 4 ; Voet, lib. xii, tit. 6 ; Union Govt. v. 
Nat. Bank of S. A. [1921] A.D. 121 ; 3 Maasdorp, chap. 34. 



OBLIGATIONS ARISING FROM OTHER SOURCES 347 

right 1 (indebiti solutio), an action (condictio indebiti) lies 
for its recovery, and there are many other cases, which can 
be referred to the same general head. 2 Another case in 
which an obligation is said to arise quasi ex contractu is 
negotiorum gestio, 3 which occurs when a person without 
previous mandate has managed another's affairs, or 
rendered him some other service, not merely as an act of 
kindness, but in circumstances apt to create a legal rela- 
tion. 4 In such case the volunteer (negotiorum gestor) is 
bound: (a) to manage the affairs of his principal with 
exacta diligentia, 5 and (6) to render account of his adminis- 
tration ; the principal (dominus negotiorum dominus rei 
gestae) is bound to indemnify the agent in respect of ex- 
penses and liabilities usefully incurred. Other cases of 
quasi-contractual obligation are such as exist between 
co-owners, coheirs, heir and legatee, executor and legatee, 
guardian and ward, fiduciary and fideicommissary ; and the 
duty of a surviving spouse, party to a mutual will under 
which such spouse has accepted a benefit, to recognize and 
give effect to the will of the first-dying spouse has been 
assigned to the same class of obligation. 6 

1 Union Govt. v. Oowar [1915] A.D. 426; Wilken v. Holloway 
[1915] C.P.D. 418. 

2 For the action to recover money paid upon a consideration 
which has failed (condictio causa data, causa non secuta), in Scots 
Law, see Cantiare San Eocco S. A. v. Clyde Shipbuilding and 
Engineering Co. [1924] A.C. 226, and now in English Law the Law 
Reform (Frustrated Contracts) Act, 1943 (6 & 7 Geo. 6, c. 40). 

3 Grot. lib. 3, cap. 27; Voet, lib. iii, tit. 5, V.d.L. 1. 15. 15; 
Buckland, Textbook, p. 537 ; 3 Maasdorp, chap. 33 ; Klug v. 
Penkin [1932] C.P.D. 401 ; Williams' Est. v. Molenschoot [1939] 
C.P.D. 360; (Ceylon) Thangamma v. Ponnambalam (1943) 43 
N.L.R. 265. 

4 Dig. 10. 3. 14, 1. 

B Inst. 3. 27. 1. But Van Leeuwen (Gens. For. 1. 4. 26. 3) thinks 
that the degree of diligentia which can be demanded of the gestor 
varies with the circumstances. Lawrie v. Union Govt. [1930] 
T.P.D. 402. 

6 Rosenberg v. Dry's Exors. [1911] A.D. at p. 695; Receiver of 
Revenue, Pretoria v. Hancke [1915] A.D. at p. 74. 



BOOK IV 
THE LAW OF SUCCESSION 



BOOK IV 
THE LAW OF SUCCESSION 

IN this book we shall speak of the devolution of property 
upon death, under the two titles of testamentary and 
intestate succession. But first it will be convenient to 
preface some remarks on succession in general. 



SUCCESSION IN GENERAL 

The IT is familiar knowledge that, according to the principles 

of the n f R man Law, the heir, whether testamentary or in- 

heir in testate, until the time of Justinian was, and under that 

L aw emperor's legislation might be, the universal successor of 

the deceased. 1 As such, he assumed the dead man's rights 

and liabilities, the latter in full and without reference to 

the sufficiency of the assets. Hence the phrase 'damnosa 

hereditas', meaning a succession which involved more loss 

Heres than gain to the acceptor. Further, in the early law, the 

family-heir, if the paterfamilias had not excluded him by 

testament, could not refuse the inheritance, which vested 

in him immediately upon the death of his ancestor. For 

this reason he was known as 'heres suus et necessarius'. 

His liability in this regard was the same, whether he was 

instituted heir in his ancestor's will, or left to succeed upon 

an intestacy. 2 In the maturity of Roman Law, however, he 

might abstain from the inheritance (beneficiumabstinendi), 3 

and so avoid liability. But if he intermeddled with the 

estate, he 'sustained the person' of the deceased, and 

succeeded not only to the benefits of the inheritance, but 

also, without limit, to its burdens. 4 

Heres ^j^ 'extraneus heres ', that is, anyone who was not suus 

extraneus. 

1 Dig. 50. 17. 62: (Julianus) Hereditas nihil aliud est quam suc- 
cessio in universum jus quod defunctus habuerit. 

2 Girard, p. 843. Inst. 2. 19. 2; Dig. 29. 2. 57. 
4 Inst. 2. 19. 6; Cod. 6. 30. 22, 14. 



SUCCESSION IN GENERAL 351 

et necessarius, was, originally, in a better position. So 
soon as the testator died, the inheritance was said to be 
'delated' to the heir, 1 but he need not accept unless he 
pleased. If he neither accepted nor acted as heir (pro 
herede gerere), he incurred no liability. If he accepted or 
acted as heir, he was said to 'enter upon' the inheritance 
(adire hereditatem), and from that moment was in the posi- 
tion of a universal successor. It might happen that the 
heir hesitated to enter, apprehensive that the inheritance 
might prove 'damnosa'. In such case the creditors of the 
estate or the heir himself would apply to the praetor to fix 
a 'spatium deliberandi', 2 a period within which he must 
accept, if he meant to do so. If at the end of the time fixed 
he had failed to accept, he was treated by the praetor as 
having refused the inheritance, which was then offered or 
delated to the person (if any) next entitled. Such was the Changed 
law until the time of Justinian. But that emperor's legis- * ^ on 
lation gave the heir the choice of alternatives. 3 (1) He heir in 
might enter at once, subject to the benefit of inventory i a ^' s m ~ 
(beneficium inventarii). If he did so, he was liable not as system, 
universal successor, but only to the extent of the assets. 
This was a change of far-reaching consequence. 'It was', 
as Dr. Hunter observes, 'a bold and successful stroke to 
convert the heir into a mere official, designated by the 
deceased for the purpose of winding up his affairs and dis- 
tributing his property. The heir was now a mere executor, 
with the privilege of being residuary legatee.' 4 (2) If he did 
not choose to take advantage of the procedure by inven- 
tory, he might, as under the old law, claim the spatium 
deliberandi. In that event, under Justinian's system, if 
he did not expressly repudiate the inheritance within the 
time allowed, he was deemed to have accepted. An accep- 
tance or repudiation, once made, was irrevocable except by 

1 i.e. if instituted immediately and unconditionally. Dig. 50. 16. 
151: Delata hereditas intellegitur quam quis possit adeundo consequi. 

2 i.e. to give the heir the option of asking for it, or of allowing the 
creditors to realize the estate. Gaius. 2. 167 ; Dig. 28. 8. 5 pr. 

3 Inst. 2. 19. 5 and 6 ; Cod. 6. 30. 22, 14 a (gemini tramites). 

4 Hunter, Roman Law (3rd ed.), p. 755. 



352 THE LAW OF SUCCESSION 

a minor, who might obtain from the praetor restitutio in 
integrum. 

The heir The Dutch Law followed the Roman Law with modifica- 

Dutch tions. There was ho necessary heir and consequently no 

Law. need to invoke the beneficium abstinendi. 1 The benefit of 

inventory and the spatium deliberandi were retained, at 

least in name. 2 In the modern law of South Africa and 

Ceylon these institutions are wholly disused. 3 

The No department of the Roman-Dutch Law is more 

Lawof thoroughly penetrated by the Roman tradition than that 

testa- of testamentary succession. The institution was unknown 

to early Germanic Law. 4 The whole law of testaments, 

therefore, is derived from foreign, namely from Roman, 

sources, and principally through the channel of the Canon 

Law. As to the intestate heir though ascertained in 

accordance with rules of customary, not of Roman, origin 

once determined, he is in the same position as the heir 

instituted by testament. In the later stages of the Dutch 

Law, as in the Roman Law, both the one and the other were 

universal successors of the deceased. 5 In all continental 

systems of law the heir is still a universal successor. In 

English Law the universal successor is unknown. In his 

place we find an executor or administrator charged with 

the duty of applying the dead man's personalty (now his 

whole estate) in payment of debts and of making over the 

surplus to the persons entitled under the will or upon 

intestacy. 

The testa- Testamentary executors were not unknown to the law of 
executor Holland, but their functions were confined within narrow 
in Roman- limits. They were, in fact, as Van der Keessel 6 observes, 
'procurators appointed by the testator to manage his 
funeral, to recover what is due to him, to pay legacies and 

1 Groen. de leg. abr. ad Inst. 2. 19. 2. 

a The Acte van Beraad differed materially from the spatium 
deliberandi. V.d.L. 1. 9. 9. 

8 Fischer v. liquidators Union Bk. (1890) 8 S.C. at p. 53. 

4 Tacitus, Germania, cap. 20; Fockema Andreae, Het Oud- 
Nederlandsch Burgerlijk Recht, vol. ii, pp. 313 ff. ; Gr. 2. 14. 2. 

6 Gr. 2. 14. 7. 

6 V.d.K. 323; V.d.L. 1. 9. 10. 



SUCCESSION IN GENERAL 353 

debts, and to administer his property until a division 
thereof can be effected '. But they ' cannot debar the heirs 
from the inheritance, unless the testator has directed other- 
wise, nor alienate the property without their consent'. It 
would seem from this that the appointment of executors 
did not affect the position of the heir as universal suc- 
cessor 1 (in every case where he had not obtained benefit of 
inventory), 2 nor prevent him from suing or being sued in 
respect of debts due to or by the deceased. An office so in the 
alien from English ideas of the function of an executor has ^ ei 
not held its ground against the competing analogy of the 
English Law. 3 Executors and administrators of the English 
type have superseded at once the executor and the univer- 
sal successor of the old law. To-day ' an inheritance is the 
net balance of the estate of a deceased person which is left 
after the debts and legacies [if any] have been paid, and 
which has to be handed over by the executor to the heir'. 
A testamentary heir is merely a residuary legatee. 4 If 
the deceased dies intestate the estate is liquidated by an 
executor dative (corresponding to the English adminis- 

1 Gr. 2. 21. 7; Gens. For. 1. 3. 1. 3; Fock. And., vol. ii, p. 348. 

2 In Holland the benefit of inventory was not granted as of 
course. Voet, 28. 8.11. Application must be made to the Sovereign 
or, in Holland, to the Hooge Raad. Gr. 2. 21. 8ff., with Schorer's 
note. 

8 The older conception of the executor's office is reflected in the 
P.C. cases, De Montfort v. Broers (1887) 13 App. Gas. 149 (Cape), 
and Farnum v. Administrator-General of British Guiana (1889) 14 
App. Cas. 651, and still, to some extent, obtains in Ceylon. Qopal- 
samy v. Ramasamy Pulle (1911) 14 N.L.R. 238; Muttiah Chetty v. 
Ukkurala (1925) 27 N.L.R. 336. For the history of the office of 
executor see Ferguson v. Hucknell [1903] T.H. at p. 227; The 
Master v. Edgecombe's Exors. [1910] T.S. at p. 268 ; Krige v. Scoble 
[1912] T.P.D. at p. 817; Goosen v. Bosch [1917] C.P.D. 189. 

4 1 Maasdorp, p. 132. For the history of the law and the posi- 
tion of the heir in South Africa see Oosthuysen v. Oosthuysen [1868] 
Buch. 51; Fischer v. Union Bank Liquidators (1890) 8 S.C. 46; 
Vermaak's Exor. v. Vermaak's Heirs [1909] T.S. at p. 682; Sny- 
man v. Basson N.O. [1915] T.P.D. 368. It may still be material 
for certain purposes to determine whether a beneficiary takes as 
heir or legatee. Juta J.A. in Est. Cato v. Est. Cato [1915] A.D. at 
p. 309. But see argument of counsel in Winstanley v. Barrow 
[1937] A.D. 75. For Ceylon see Pulle v. Pulle (1893) 2 S.C.R. at 
p. 106. 



4901 



A a 



354 THE LAW OF SUCCESSION 

trator) appointed by the Master of the Supreme Court, 1 
and the heir ah intestate is in the same position as if he had 
been appointed legatee by will. The Master also appoints 
an executor dative, if the testator has omitted to nominate 
an executor (the administrator cum testamento annexo of 
English Law), or if for any reason the nominated executor 
does not act. The estate of the deceased does not vest in 
the heir, as in Roman Law, but in the executor, testa- 
mentary or dative. 2 Administrators are not unknown to the 
law of South Africa. Their functions are to some extent 
those of the English trustee. 3 Since the administrators (if 
any) appointed by a will are usually also the executors, it 
may be a matter of some difficulty to draw the dividing 
line between their distinct functions. 4 

The heir, having been reduced in the modern law to this 
entirely secondary position, it is matter of indifference 
whether a testator does or does not institute an heir by his 
will. The institution of the heir, which was once ' caput et 
fundamentum testamenti ', is no longer a necessary forma- 
lity. 5 Consistently with this, again contrary to the Roman 
Law, a man may die partly testate, partly intestate. 6 
What he fails to dispose of by will goes to his intestate 
successor. 7 In Roman Law it would have gone to the 
instituted heir by accrual. 8 But there is a presumption 

1 Administration of Estates Act, 1913, sec. 34. 

2 Fischer v. Union Bank Liquidators (1890) 8 S.C. 46; Krige v. 
Scoble [1912] T.S. 814. 

3 Hiddingh v. Denyssen (1885) 3 S.C. at p. 441. 

4 For the distinct functions of executors and administrators see 
Administration of Estates Act, 1913, sec. 61 ; Registrar of Deeds 
(Natal) v. Est. Shaw [1928] A.D. 425 ; The Master v. Ocean Accident 
Corp. Ltd. [1937] C.P.D. 302. 

6 V.d.K. 290. This is expressly enacted for Natal by Law, No. 2 
of 1868, sec. 4. 

8 Voet, 28. 1. 1 ; 28. 5. 26. 7 V.d.K. 309, 322. 

8 Voet, 29. 2. 40: Jus accrescendi, quatenus Romani juris sub- 
tilitatibus nititur, inter coheredes locum non habet. See, how- 
ever, this passage. Grotius (2. 24. 19 and 2. 26. 4) merely follows 
the Roman Law. Van der Linden says (1. 9. 6) that the jus 
accrescendi applies, unless each of the heirs is appointed to a 
separate portion. Voet (ubi sup.) and Schorer ad Gr. 2. 26. 4 make 
the question depend upon the intention of the testator. See also 
Van Leeuwen, 3. 4. 4 (and Decker ad loc.) and 3. 6. 8; V.d.K. 



SUCCESSION IN GENERAL 355 

against intestacy, and if a man makes a will disposing of 
his property, the presumption is that he intends to dispose 
of all his property. 1 If he disposes of a usufruct of property 
but not of the corpus there is a presumption that the 
legatee of the usufruct is also legatee of the corpus. 2 

It is common to testamentary and to intestate succes- Collatio 
sion that a child or grandchild of the deceased claiming to 
share in the estate may only do so on condition of bringing 
into account property received from the deceased during 
his lifetime 'for the advancement of their marriage, 
business or merchandise'. 3 The Romans call this process of 
accounting collatio bonorum. The Dutch call it inbreng. 4 
But the beneficiary was under no obligation to account. 
If he elected not to claim, he was entitled to retain what 
he had received. Collation was made for the benefit of the 
other heirs and of a surviving spouse married in commu- 
nity. 5 If strangers had been instituted along with descen- 
dants they neither made collation nor benefited by a 
collation made by others, i.e. they took what the will 
gave them, neither less nor more. 6 According to Voet, 
whose view has been adopted by the Appellate Division, 
the Roman-Dutch Law (contrary to the Roman Law) re- 
quires also collation of debts which are of such a nature as 
to 'involve an actual depletion of the ancestral estate in 
favour of a descendant'. 7 

326 ; Parker v. Est. Fletcher [1932] C.P.D. 202 ; Reid v. Admors. Est. 
Reid [1932] W.L.D. 30; Winstanley v. Barrow [1937] A.D. 75; 
Winn N. O. v. Oppenheimer [1937] T.S. 91. 

1 Havemann's Assignee v. Havemann's Exor. [1927] A.D. at 
p. 476. 2 Van Cotter v. Henny [1929] C.P.D. 244. 

3 P.O. Art. 29 ( 1 Q.P.B. 336) ; Gr. 2. 1 1. 13 ; 2. 28. 14 ; Voet, 37. 6 ; 
Van Leeuwen, lib. iii, cap. xvi ; Jooste v. Jooste's Exors. ( 1891 ) 8 S.C. 
288; (Ceylon) Sellasamy v. Kaliamma (1944) 46 N.L.R. 76; 61 
T.L.R. 99 (P.C.) ; Saram v Thiruchelvam (1945) 46 N.L.R. 145. 

4 Supra, p. 71, n. 5. In English Law this is called 'bringing 
into hotchpot '. It only applies ipsojure in the event of intestacy. 

6 Gr. ubi sup. a Voet, 37. 6. 6-8. 

7 Est. VanNoordenv.Est. Van Noorden [1916] A.D. 175. There 
was a difference of opinion amongst the Dutch jurists. E. M. 
Meyers in Tydskrif, 1939, p. 130. The French Code (Art. 829) 
retains the collation of debts (rapport des dettes). The Dutch Code 
does not. Veegens-Oppenheim, vol. ii, p. 446. 



II 

TESTAMENTARY SUCCESSION 

Contents IN this chapter we shall consider: (1) how wills are made ; 

chapter (^) wna t may be disposed of by will ; (3) who may make a 
will ; (4) who may take under a will ; (5) who may witness 
a will ; (6) restrictions on freedom of testation ; (7) institu- 
tion and substitution of heirs; (8) legacies; (9) codicils; 
(10) how wills and legacies are revoked ; ( 1 1 ) fideicommissa ; 
(12) trusts ; (13) mutual wills. 

The 1 . How wills are made . In the latest period of Roman 

Law the will commonly in use was the testamentum triper- 



wfllin titum, so called because derived from three sources, the 

Law: civil law, the praetor's edict, and imperial constitutions. 1 

(a)written, The testator ' subscribed ' it in the presence of seven com- 

petent witnesses, who, then, themselves subscribed it and 

afterwards affixed their seals. 2 Alternatively, but only, 

perhaps, in case of emergency, he might declare his will 

orally in the presence of the same number of witnesses. 

(6) nun- This was the nuncupative will. 3 

cupative. ^ observed above, wills were not an original Germanic 
institution, but from the Frankish period onwards con- 
trivances were in use, whereby acts inter vivos were made 
to serve the purpose of a disposition mortis causa. The 
testament properly so-called developed in the Middle Ages 
under the influence of the Canon Law. 4 

How wills The writers on the Roman-Dutch Law tell us that it 

^HoT- was no * forbidden to make a will in Roman form, 5 but it 

land. was usual to employ one or other of the two forms of will 

prescribed by native custom, viz. wills executed either: 

1 Inst. 2. 10. 3. 

2 Girard, p. 863 ; Buckland, p. 286. 
8 Inst. 2. 10. 14 ; Buckland, p. 287. 

4 Gr. 2. 14. 2 ; Fock. And. O.N.B.R., vol. ii, pp. 313 ff. ; Wessels, 
History of the Roman-Dutch Law, Part II, chap. viii. 

5 Gr. 2. 17. 16; Voet, 28. 1. 20; V.d.K. 293; V.d.L. 1. 9. 1. 
The Roman will was an alternative by the common law of South 
Africa. De Smidt v. Hoets (1852) 1 Searle at p. 279. 



TESTAMENTARY SUCCESSION 357 

(1) before two schepenen (local magistrates) and the secre- 
tary of the Court, or (2) before a notary and two witnesses. 1 

The second of these survived in the law of South Africa, 
where it continued to exist together with a statutory will 
of the English type, executed in the presence of two 
witnesses. 

The notarial will depends for its effect upon the solemnity The 
of its execution and the public character of the notary's 
office. The notary must know the testator, 2 or, failing that, 
must know the witnesses, who must know the testator; 
and in the last event the fact of knowledge must be re- 
corded in the instrument. 3 The witnesses must be males 
of full age and good repute. 4 The ancient writers discuss 
the question whether the notarial will is more properly 
described as oral (nuncupative) or as written. Voet says 
that it is mixti generis or intermediate in character. 5 In 
fact, the mode of execution was not always the same. 
Sometimes the will verbally pronounced by the testator 
was reduced to writing by the notary. 6 Sometimes the 
notary drew it up in writing from instructions privately 
communicated by the testator. 7 The practice was for the 
notary to read over to the testator in the presence of wit- 
nesses the completed will, after which he asked him if he 
understood it and acknowledged it as his last will. 8 If the 
testator assented, the will was valid even without the signa- 
ture of testator and witnesses. 9 The completed will, which 

1 Gr. 2. 17. 17-18 ; Van Leeuwen, 3. 2. 6 ff. ; V.d.L. 1. 9. 1. 

2 Perpetual Edict of Charles V of October 4, 1540, Art. 14; 
1 Q.P.B. 319; Gr. 2. 17. 22; Voet, 28. 1. 24. 

3 A will is not void which fails to express this fact, says Voet 
(28. 1. 24). But see Resolutie van de Staten van Hollandt ende West- 
Vrieslandt of March 18, 1671; 3 G.P.B. 487. 

4 Luyden van eeren, weerdich van gheloove. Perpetual Edict, 
ubi sup.; Gr. 2. 17. 21. 5 Voet, 28. 1. 23. 

6 Gr. 2. 17. 23 ; Van Leeuwen, 3. 2. 3. This process, which seems 
to have been very common, is neatly described by Neostadius, 
Decis. van den Hove, no. 1 (ad fin.): Notarius excipit viva voce 
mentem testatoris et deinde, ad probationem, redigit ejus volunta- 
tem, nuncupative prolatam, in scriptis et registro suo inserit. 

7 Voet, ubi sup. 8 Van Leeuwen, 3. 2. 3. 

9 Voet, 28. 1. 23, citing Groenewegen, de leg. abr. ad Inst. 2. 10. 3 ; 
V.d.K. 296; V.d.L. 1. 9. 1. By Cape Act No. 3 of 1878, sec. 1; 



358 THE LAW OF SUCCESSION 

the notary retains in his protocol, is termed 'the minute'. 
The fair copy supplied, if desired, to the testator, or after 
his death to his representatives, is termed 'the grosse'. 1 
Wills of the kind described above are known as 'open 
wills'. 2 

The A special kind of notarial will is the ' closed will ' (besloten 

^j testament}? This is an instrument written by the testator, 

or by another by his direction, 4 and signed by him, which 
he produces to a notary and two competent witnesses, 
declaring it to be his last will. The notary then encloses 
the will in a wrapper, seals the wrapper on the outside, 
and adds a note of the testator's declaration, which is sub- 
scribed by the testator 5 and the witnesses (acte van super- 
scriptie). 6 

A notarial testament, Voet says, must be dated ; other- 
wise it will be held void, unless the circumstances exclude 
the risk of fraud. 7 
The The statutory, or 'under-hand will', as it is called, is the 

modem creation of statutes, which are not textually identical in 

statutory 

will. the several Provinces. It is made with the ceremonies pre- 
scribed by the English Wills Acts, 1837. 8 

Transvaal Ord. No. 14 of 1903, sec. 5; and O.F.S. Ord. No. 11 of 
1904, sec. 5 : No notarial will shall be taken to be invalid by reason 
that the same was not read over by the notary or by any other 
person to the testator in the presence of the subscribing witnesses. 
The Cape Act was passed in consequence of the decision in Meiring 
v. Meiring's Exors. [1878] Buch. 27, 3 Roscoe 6, that a will of this 
kind, which had not been read by the notary to the testator in the 
presence of the witnesses, was invalid. 

1 See W. H. Somerset Bell, South African Legal Dictionary, 
sub verbis Grosse, Prothocol. 2 V.d.L. ubi sup. 

3 In South Africa also called a 'close will'. Van Leeuwen, 
3. 2. 5; Voet, 28. 1. 26; Bijnk. O.T. i. 100; De Smidt v. Hoets 
(1852) 1 Searle at p. 281 ; V.d.L. ubi sup. 

4 Provided such other takes no benefit under the will. V.d.L. 
ubi sup. 6 Voet, ubi sup. 

6 When the will was opened it was usual for the notary and 
witnesses to be present. Gr. 2. 17. 26; Decker ad Van Leeuwen, 
ubi sup. The fact was placed on record by the notary (acte van 
opening). V.d.L., ubi sup. 

7 Voet, 28. 1. 25 ; Holl. Cons. iii. 328. But see Bijnk. O.T. i. 420. 

8 Cape Ord. No. 15 of 1845, sec. 3; Natal Law 2 of 1868, sec. 
1 ; Transvaal Ord. No. 14 of 1903, sec. 1 ; O.R.C. Ord. No. 1 1 of 1904, 
sec. 1. It should be noted that the Cape Act requires that the 



TESTAMENTARY SUCCESSION 359 

In addition to the wills of the normal types described Privileged 
above (known to the commentators as 'solemn' wills, w 
written and nuncupative) the Roman Law admitted in 
special circumstances the use of exceptional or 'privileged' 
wills, so called because the testator was dispensed partly 
or entirely from observance of the usual solemnities. Such 
were : (a) will made in time of pestilence testamentum 
tempore pestis conditum (witnesses need not be present 
at the same time) j 1 (6) will made in the country testa- 
mentum ruri conditum (five witnesses sufficient) ; 2 (c) will 
by which a parent disposed of his property among his 
children testamentum parentis inter liberos (no wit- 
nesses necessary, if the win was holograph, i.e. written 
wholly in the testator's own hand); 3 (d) soldier's will 
testamentum militare (no formalities required, any in- 
dication of testamentary intention sufficient). 4 

To these the Canon Law added : (e) will made for pious 
causes (churches and charitable institutions) testamentum 
ad pias causas (this, too, by the Canon Law was relieved 
from all requirements of form). 

Of these privileged wills the Dutch Law admitted (c) 
and (d), 5 and they persist in the law of South Africa. 6 The Testa- 
testament whereby an ascendant disposes of property 



amongst his or her children or remoter descendants, if inter 
written out in full in the testator's own handwriting, 

testator and witnesses should sign at least one side of every leaf 
upon which the will is written. The Transvaal and O.F.S. Ordi- 
nances require them to sign 'every sheet '. Robb v. Medley 's Exor. 
(1899) 16 S.C. 133; Ex parte Miller [1922] W.L.D. 105. There is 
no such provision in the Natal Act. 

1 Cod. 6. 23. 8. 1. 2 Cod. 6. 23. 31. 3. 

3 Nov. 107 cap. i (A.D. 541). * Inst. lib. ii. tit. 11. 

8 Gr. 2. 17. 28. 29. 

6 The Cape Act by implication, the Transvaal and O.F.S. Ordi- 
nances in express terms preserve the privileged will. The test. 
parent, inter lib. is not recognized in Natal, In re Est. Lalla [1922] 
N.P.D. 18. Other cases of privilege are questionable (Gr. 2. 17. 
30-1). The testamentum ad pias causas is fully considered by 
Van der Keessel in Dictat. ad Gr. 2. 17. 31, Lee, Commentary, 
p. 152, and was mentioned in Sim v. The Master [1913] C.P.D. 
187. The test. temp. pest. cond. has re-emerged in O.F.S. Ex 
parte De Wet [1919] O.P.D. 61 ; Smith v. Mathey [1926] O.P.D. 31. 



360 THE LAW OF SUCCESSION 

requires no witness. 1 It may even be nuncupative (minus 
sollemne nuncupativum), but must, in that case, be proved 
by two witnesses. 2 The testator may distribute the pro- 
perty among his children in any proportion he pleases. 
' Children ' means legitimate children, at all events if the 
father is the testator ; 3 in the case of a mother, perhaps 
illegitimate children may be considered to be on the same 
footing as legitimate issue. 4 Children alone come within 
the privilege. Other people cannot benefit under a will 
which is not executed with the usual solemnities. 5 It is 
essential that the document put forward as a holograph 
will should really be a declaration of the testator's last 
wishes, and not merely a draft or memorandum of a will 
to be executed afterwards. Further, every child must be 
named, and no one of them may be disinherited. 6 All the 
cases that have been cited show that where a privileged 
will of a parent has been supported, it has been where the 
property has been distributed amongst all the children, 
not necessarily equally, but amongst all ( Van der Watt v. 
Van der Wall's Exors. (1896) 13 S.C. at p. 321 per Buchanan 
A.C.J.). The question has been raised whether a child 
should not receive at least 'a substantial share', if a will 
is to be privileged as a testamentum parentis inter liberos. 7 
Testa- The military testament, i.e. one made by a soldier or 

mentum sa ii O r 8 in expeditione, requires no solemnities whatever. It 

1 Nov. 107, cap. i (A.D. 541); Voet, 28. 1. 15; Van Leeuwen, 
3. 2. 13 ; Gens. For. 1. 3. 2. 19. Voet says that if the will is written 
by another person by testator's direction it requires two witnesses. 
Van Leeuwen merely says that he must subscribe it himself. So 
Grotius (2. 17. 28). In South Africa such a will is not privileged 
unless wholly in testator's handwriting. In re McCalgan (1893) 
10 S.C. 277. It is essential that it should be dated. Nurok v. 
Nurok's Exors. [1916] W.L.D. 125. Contra, Bijnk. O.T. i. 420. 

2 Gr. 2. 17. 28 ; Voet, ubi sup.; Gens. For., ubi sup. ; Windscheid, 
iii. 544. The witnesses may be male or female. Groenewegen, 
de leg. abr. ad Inst. 2. 10. 6; de Haas ad Cens. For., ubi sup. 

3 Wilkinson's Est. v. Wilkinson (1907) 24 S.C. 602. 
Voet, 28. 1. 16. 

Ex parte Tippett [1942] C.P.D. 68. 

Voet, 28. 1. 17. 

In re Ebrahim's Est. [1936] T.P.D. 60. 

Holl. Cons. iv. 209 ; Vervolg op de Holl. Cons. ii. 64. 



TESTAMENTARY SUCCESSION 361 

may be written or oral. 1 Voet, following Grotius, permits 
the same informal mode of testamentary disposition to 
ambassadors and their suites residing abroad in the course 
of duty. 2 

In the modern law, it is not required that a will should 
be framed in any particular form of words. Even an in- 
stitution of heirs is unnecessary. Of course, the law lays 
down certain rules of construction of words and phrases, 3 
which in the absence of evidence of a contrary intention 
on the part of the testator the Courts will follow. But we 
must not allow them to detain us. Here it will be enough 
to mention two particular clauses inserted in wills, which 
were known in the Dutch Law as the ' clausule reservatoir ' 
and the ' clausule derogatoir ', each of which requires a few 
words of explanation. 

The clausule reservatoir 4 is a clause in which the testa- Clausule 

rcscrvfii" 

tor reserves to himself the right of adding to, or subtracting toir 
from, the dispositions of the will and ratifies by anticipa- 
tion any further dispositions which he may make under 
his hand, such dispositions to have the same effect as if 
inserted in the testament. Voet expresses a strong opinion 
against this practice, but hesitates to declare it illegal. 5 
In South Africa the reservatory clause is admitted by the 
law of the Cape Province, 6 probably in the Transvaal and 

1 Inst. lib. ii, tit. 11 ; Gr. 2. 17. 29 ; Voet, 29. 1.11; Van Leeuwen, 
3. 2. 14; In re Leedham (1901) 18 S.C. 450; Ex parte Scheuble 
[1918] T.P.D. 158. Such a will holds good for one year after the 
soldier's honourable discharge from service, not, as Grotius says, 
for one year after the end of the expedition (V.d.K. 299). 

2 Voet, 28. 1. 14; Grotius in Holl. Cons. iii. 341. 

3 See Gr. lib. ii, cap. xxii. 

4 Gens. For. 1. 3. 11. 10; Holl. Cons, i, 125; Bynkershoek, 
Quaest. Jur. Priv., lib. iii, capp. iv-v; V.d.K. 337; V.d.L. 1. 9. 2. 

6 Voet, 28. 1. 29. 

6 See Precedents of Wills, pp. 411 ff. Cape Ord. No. 15 of 1845 
retains the reservatory clause, expressly in the case of the notarial 
will, and by implication in the case of the underhand will. In re 
Sir John Wylde's will(1859) [1873] Buch. 113 ; Erasmus v. Erasmus' 
Guardians [1903] T.S. 843; Joseph v. Est. Joseph (1907) 24 S.C. 
76. May a reservatory clause in a mutual will, by apt words, 
confer power upon the survivor to depart from its terms ? Est. 
Ebden v. Ebden [1910] A.D. 321. 



362 THE LAW OF SUCCESSION 

the Free State, 1 but not in Natal. 2 In more than one case 
it has been required that a codicil should purport to be 
executed ' under and by virtue of the reservatory clause in 
the will ', 3 and Lybreghts, in his book on Notarial Practice, 
gives a form which contains such an express reference. 4 In 
a recent case the need of an express reference to the 
reservatory clause was questioned. 5 The validity of a 
codicil executed under a reservatory clause depends upon 
the existence of a valid will containing the clause. The 
codicil cannot revoke the will upon which it depends for 
its effect. 6 A codicil executed under the reservatory clause 
must be signed by the testator. It need not be in his 
handwriting. 7 

Clausule The clausule derogatoir (no longer in use) was one in 
de.roga- which the testator purported to disable himself by anti- 
cipation from departing from the tenor of his will, either 
by any subsequent disposition whatever, or by any dis- 
position not expressed in a particular form of words or the 
like. 8 Voet justly observes that such a clause contains 
merely a signification of intention and no derogation from 
a testator's power of changing his will. 9 Whether he does 
so or not depends upon the true construction of his subse- 
quent testamentary dispositions. 
Summary From what has been said it appears that the law of 

of the law 

of South South Africa admits the following types of will or codicil, 
Africa, y j z . ^jj iji^g no t ar i a i w ju (open and closed); (2) the 

1 Ex parte Van Biljon [1934] O.P.D. 104. 

2 Steyn, The Law of Wills in South Africa, p. 8. In Southern 
Rhodesia only in a notarial will. R.S. cap. 49. 

3 Nelson v. Currey (1886) 4 S.C. 355; Erasmus v. Erasmus' 
Guardians, ubi sup. 

* Redenerende Praetycq over 't Notaris Ampt (1759), p. 189. 
6 Ex parte Pieterse N.O. [1933] S.W.A. 4. 

6 Van Reenen v. Board of Exors. [1875] Buch. 44; Ex parte 
Webber's Exor. (1902) 19 S.C. 427. 

7 Hart v. The Master [1923] C.P.D. 78. 

8 Gr. 2. 24. 8 ; e.g. containing the words 'arma virumque cano' 
(Voet, 28. 3. 10), or the whole of the credo (Holl. Cons. v. 42), or 
the words 'Heaven be my portion' (V.d.L. 1. 9. 11), or 'Our soul 
waits upon the Lord. He is our help and shield' (Bynkershoek, 
Quaest. Jur. Priv., lib. iii, cap. vii). Voet, 28. 3. 10. 



363 

statutory or underhand will; (3) the privileged will; (4) 
the codicil executed by virtue of the reservatory clause. 
But the first of these is no longer in use. 

In Ceylon a will must be executed either in the presence of Ceylon. 
of a notary and two witnesses, or in the presence of five 
witnesses 1 if a notary is not present. 2 The vast majority 
of wills are notarially executed. 

2. What may be disposed of by will. Anything may What 
be disposed of by will which is capable of ownership, 3 ^fl^y 6 
whether corporeal or incorporeal, 4 whether the property will, 
of testator 5 or of his heir 6 or of any one else ; 7 for the 
Roman-Dutch Law, following the Roman Law, permits 

a bequest of a res aliena no less than of a res sua. 8 

3. Who may make a will. All persons may make a Active 
will except : (a) minors under the age of puberty ; 9 (6) ^g^tarv 
persons mentally incapable ; 10 (c) interdicted prodigals capacity. 
(hofs- ofte stads-kinderen) ; u but the wills of these last are 
upheld so far as their dispositions are just and equitable. 12 

1 Ord. No. 7 of 1840, sec. 3. There is a saving in favour of the 
wills of 'any soldier being in actual military service, or any mariner 
or seaman being at sea ', who ' may dispose of his personal estate as 
he might have done before the making of this Ordinance ' (sec. 13). 

2 i.e. if a notary is not present acting in his notarial capacity. 
Perera v. Perera [1901] A.C. 354. 

3 Gr. 2. 22. 7. 4 Gr. 2. 22. 9. 

5 Gr. 2. 22. 32. 6 Gr. 2. 22. 35. 7 Gr. 2. 22. 38. 

8 Receiver of Revenue, Pretoria v. Hancke [1915] A.D. at p. 77. 

9 Gr. 2. 15. 3; V.d.L. 1. 9. 3. In this case 'ultimus impuberis 
aetatis dies coeptus pro completo habetur'. Voet, 28. 1. 31. In 
Ceylon : No will made by any male under the age of twenty -one 
years or by any female under the age of eighteen years shall be 
valid unless such person shall have obtained letters of venia 
aetatis or unless such person shall have been lawfully married. 
Ord. No. 21 of 1844, sec. 2. In Natal: No will or codicil shall be 
valid unless the testator shall at time of execution or re -execution 
thereof have attained the age of twenty-one years, or have other- 
wise become entitled to the privileges of majority by emancipation 
from paternal power by venia aetatis, or otherwise. Law 2 of 1868, 
sec. 6. 

10 Gr. 2. 15. 4; Voet, 28. 1. 34. As to insane delusions see Rapson 
v. Putterill [1913] A.D. 417 ; drunkenness, Voet, 28. 1. 35. As to 
what constitutes mental incapacity see Tregea v. Qodart [1939] 
A.D. 16. u Gr. 2. 15. 5 ; Van Leeuwen, 3. 3. 2 ; Voet, 28. 1. 34. 

12 V.d.K. 281; Lee, Commentary, p. 135; Ex parte F. [1914] 
W.L.D. 27. 



364 THE LAW OF SUCCESSION 

There seems no reason why a deaf-mute, though born so, 
if of sufficient understanding, should not make a will at the 
present day. 1 Married women and minors may make wills 
without the authority of their husbands 2 and parents or 
guardians 3 respectively. If a deceased spouse, married in 
community, has left something to the survivor and at 
the same time directed how the common property shall 
devolve after the survivor's death, acceptance by the sur- 
vivor of the benefit in question deprives him or her of the 
power of disposition over his or her share of the joint- 
estate. 4 We return to this subject later. 5 

Passive 4. Who may take under a will. Except as hereafter 
testamen- grated any person whether native or foreigner, 6 individual 
capacity, or corporate, born or unborn, 7 may take under a will, pro- 
vided such be ascertained or ascertainable. 8 Exceptions 
were or are: (1) spiritual persons and houses (geestelicke 
luiden ende huizen) prohibited from taking immovable or 
movable property; 9 (2) the curators and tutors or ad- 
ministrators of minors, and their children, as well as the 
godparents and concubines of such minors prohibited 
from taking under the will of such minors any immovable 
property or interest therein ; 10 (3) a person who has con- 

1 Grotius (2. 15. 6) and Voet (28. 1. 36) say that, if a dumb man 
cannot write, he should obtain a licence from the Sovereign (land- 
overheid Princeps), and Van der Linden recommends this course 
in the case of persons who become thus afflicted after birth. See 
Rechts. Obs., pt. ii, no. 38. A blind man jure civili must make his 
will before a notary or other eighth witness. Cod. 6. 22. 8. 

2 Voet, 28. 1. 38. 3 Gr. 1. 8. 2; Voet, 28. 1. 43. 
4 Gr. 2. 15. 9. 5 Infra, p. 392. 

6 Gr. 2. 16. 1 ; but not outlaws (woestballingen), or those who 
adhere to the enemy. Van Leeuwen, 3.3.9; Voet, 28. 5. 5. 

7 Voet, 28. 5. 12. 8 Gr. 2. 16. 2 ; Voet, 28. 5. 2. 

9 Gr. 2. 16. 3 ; or by gift inter vivos. Placaat of March 20, 1524 
(1 G.P.B. 1588). The prohibition, so far as regards title by succes- 
sion, was extended to movable property by Placaat of October 1 6, 
1531 (2 G.P.B. 2973; Bynkershoek, Quaest. Jur. Priv., lib. iii, 
cap. i). In South Africa these disabilities exist no longer (Cape Act 
No. 11 of 1868 ; Nathan, vol. iii, sec. 1764), and there is no general 
law of mortmain. 

10 Perpet. Edict of October 4, 1540, Art. 12 (1 G.P.B. 318); Gr. 
2. 16. 4; Voet, 28. 5. 8; Bijnk. O.T. i. 163; V.d.K. 285-6; Lee, 
Commentary, p. 140 ; V.d.L. 1. 9. 4. It has been suggested that the 
reference to godparents is attributable to a mistranslation of a 



TESTAMENTARY SUCCESSION 365 

tracted a betrothal or marriage with a minor without the 
necessary consents of parents, relatives, or of the Court, 
prohibited from taking any benefit under the will of such 
minor ; l (4) adulterine and incestuous bastards prohibited 
from taking directly or indirectly under the will of either 
parent more than is sufficient for their necessary main- 
tenance ; 2 other illegitimate children, however, may be 
benefited without restriction, unless the testator has at 
the same time legitimate children, in which case the 
bastard issue may not take more than one twelfth of his 
estate ; 3 (5) persons who have committed adultery or in- 
cest together prohibited from taking under each other's 
will ; 4 (6) a surviving spouse prohibited from taking under 
the will of a deceased spouse (who was previously married) 
more than the smallest share left by the deceased spouse 
to any child of his or her previous marriage ; 5 (7) a woman 
who marries within the annus luctus prohibited from taking 
anything under the will of her deceased husband ; 6 (8) a 

French draft of the P.E., paratre and maratre (= vitricus- 
noverca) being confounded with parrain and marraine. (Bijnk., 
Quaest. Jur. Priv. lib. iii, cap. iii.) It seems clear that by 'concu- 
bines ' is meant concubines of the minors, though Van Leeuwen 
(3. 3. 12) takes it to mean concubines of the tutors, &c. 

1 Perpet. Edict of 1540, Art. 17 (1 G.P.B. 319); Gr. 2. 16. 5; 
Van Leeuwen, 3. 3. 16 ; Voet, 28. 5. 7. The Placaat of February 25, 
1751, extends the prohibition to persons of any age (having parents 
or guardians) who have eloped together. 

a Gr. 2. 16. 6 ; Van Leeuwen, 1.7.4 and 3. 3. 10 ; Voet, 28. 2. 14 ; 
V.d.L. 1. 9. 4. This is still law in France, C.C. 908. In South 
Africa an adulterine child can take under the will of the mother. 
Green v. Fitzgerald [1914] A.D. 88. In Ceylon it has been held that 
an adulterine bastard may take a legacy from the father. Jaya- 
shamy v. Abeysuriya (1912) 15 N.L.R. 348. 

3 Nov. 89. 12. 2 (A.D. 539); Voet, 28. 2. 13; Schorer ad Gr., ubi 
sup. ; V.d.K. 287. 

4 Voet, 28. 5. 6. So far as adultery is concerned this is no longer 
law in South Africa. Est. Heinamann v. Heinamann [1919] A.D. 
99. Semble a testamentary gift to a concubine holds good. Voet, 
loc. cit. ; de Haas ad Gens. For. 1. 3. 4. 41; Bijnk. O.T. i. 414; 
ii. 1846. 

5 Cod. 5. 9. 6 (lex hac edictali) ; Gr. 2. 16. 7 ; this is no longer law. 
Supra, p. 98, n. 5. 

8 Cod. 5. 9. 1. But the penalties of remarriage within the annus 
luctus are stated by Van Leeuwen to be obsolete. Cens. For. 
1. 1. 13. 27. 



366 THE LAW OF SUCCESSION 

notary prohibited from taking any benefit under a will 
written by himself. 1 (9) A like disqualification attaches to 
any other person who writes a will for another and inserts 
therein a disposition for his own benefit, unless the testator 
has added a clause confirming the will (dictavi et recognovi) 
or in some other way confirmed the disposition. 2 The 
prohibition extends to the mutual will of spouses 3 and 
even (in Roman Law) to the privileged will of soldiers. 4 
This rule is derived from a senatusconsultum Libonianum 
of A.D. 16. 5 It is an unhappy survival, which might well 
be abrogated. (10) Finally, in imitation of English Law, 
modern statutes disqualify an attesting witness to whom 
or to whose wife or husband a benefit is given by the will. 6 
It has been held that an appointment as executor is a 
benefit within the meaning of the law. 7 Of the disqualifica- 
tions in this list numbered 1-7 some are certainly, others 
probably, obsolete. A gift to a person incapable of taking 
a benefit under a will is taken pro non scripto. 8 

1 Lybreghts, Redenerend Vertoog over 't Notaris Ampt (4th ed.), 
vol. i, p. 377. Holl. Cons, vi (part 2), 43 ; Est. Brown v. Elliott 
Bros. [1923] C.P.D. 325. Quaere, does the prohibition extend to 
the wife or relations of the Notary ? Serfontein v. Rodrick [1903] 
O.R.C. 51 ; Nathan, vol. iii, pp. 1811 ff. If the notary were insti- 
tuted heir the will would at common law have wholly failed, the 
heir being an incompetent witness. 

3 Voet, 34. 8. 3; V.d.K. 292; Benischowitz v. The Master [1921] 
A.D. 589; Hellish v. The Master [1940] T.P.D. 271; (Ceylon) 
Arulampikai v. Thambu (1944) 45 N.L.R. 457. 

3 Thienhans v. The Master [1938] C.P.D. 69. 

4 Dig. 29. 1. 15. 3. 6 Dig. 34. 8; 48. 10; Cod. 9. 23. 

8 Cape Act No. 22 of 1876, sec. 3; Natal, Law No. 2 of 1868, 
sec. 7 ; Transvaal, Ord. No. 14 of 1903, sec. 3 ; O.F.S., Ord. No. 11 
of 1904, sec. 3; Ceylon Ord. No. 7 of 1840, sec. 10. 

7 Smith v. Clarkson [1925] A.D. 501. 

8 Grotius (2. 24. 22) says that if the gift is clandestine it is 
forfeited to the fiscus; but Van der Keessel (Th. 333) following 
Bynkershoek (Quaest. Jur. Priv., lib. iii, cap. ix) excludes the fisc 
in favour of the legit imi heredes. Nowadays the lapsed gift would 
go to the substituted heir or fall into residue. Grotius adds 
(sec. 23) that gifts to persons adhering to the enemy or to outlaws 
(woestballingen) are forfeited to the Count. So also Van Leeuwen 
(3. 3. 9). Groenewegen (ad loc.) dissents. If a beneficiary under 
a will has: (a) caused testator's death; (6) failed to discover the 
author of his death ; (c) disputed the will ; (d) slandered the memory 
of the deceased ; (e) after the execution of the will entertained a 



TESTAMENTARY SUCCESSION 367 

5. Who may witness a will. In the Roman Law 'those Who may 
persons only can be witnesses who are legally capable of a w jn : 
witnessing a testament. Women, persons below the age of in Roman 
puberty, slaves, persons deaf or dumb, 1 lunatics, and those Law> 
who have been interdicted from the management of their 
property or whom the law declares worthless and unfitted 
to perform this office, cannot witness a will.' 2 Persons 
connected by potestas were incompetent to witness one 
another's wills ; 3 so was the heir and those connected with 
him by potestas, but legatees and fideicommissaries were 
under no such disability. 4 

Generally speaking, the Dutch Law followed the Roman in the 
Law as regards the capacity and qualification of witnesses. 5 
But in some respects it departed from it. Thus: (1) It 
was unnecessary that the witnesses should be specially 
requested to witness the will. It was enough that they 
knew that they were doing so ; 6 (2) A legatee was not a 
competent witness to an open will 7 notarially executed, 
but to a closed will he was. 8 On the other hand, the 
Dutch Law followed the Roman Law: (a) in requiring 
capacity in the witnesses only at the date of the will ; 9 
and (b) in considering a woman an incompetent witness 

deadly enmity against the testator; (/) defiled his wife; (g) 
plundered the inheritance ; (h) in the testator's lifetime contracted 
with regard to the inheritance with a third party by the Roman 
Law he forfeited the benefit to the fiscus, but Grotius (2. 24. 24) 
says that an innocent substitute direct or fideicommissary is pre- 
ferred to the Count. Groenewegen (ad loc.) says that, even where 
there is no substitute, in all these cases an innocent heir is preferred 
to the fisc. Van der Keessel (Th. 334) comments on the first of the 
above-mentioned cases alone, and says that, though the guilty 
party could not take, his children might. Ereption for indignitas 
is recognized in the modern law. Taylor v. Pirn (1903) 24 N.L.R. 
484. 1 Or blind. Voet, 28. 1. 7. 

2 Inst. 2. 10. 6; Dig. 28. 1. 20. 3 Inst. 2. 10. 9. 

4 Inst. 2. 10. 11. 6 Van Leeuwen, 3. 2. 8. 

6 Voet, 28. 1. 22. 7 Voet, ubi sup. ; V.d.L. 1. 9. 1. 

8 Voet, 28. 1. 26. Voet refers to the view expressed in Holl. 
Cons. i. 103, that (as in English Law) a legatee -witness disqualifies 
only himself, and says that it is altogether erroneous. Van der 
Keessel, however, adopts it (Th. 291), and it is now statutory in 
South Africa and in Ceylon (supra, p. 366). 

9 Voet, 28. 1. 22. 



368 THE LAW OF SUCCESSION 

to a will, 1 as also the heir. 2 Further (herein exhibiting 
a greater stringency than the Roman Law), it excluded 
as witnesses persons too nearly related to the heir or 
testator by blood or affinity. 3 But in the modern law it 
may be said to be a general rule that every person above 
the age of fourteen years who is competent to give evi- 
dence in a court of law is competent to attest the execu- 
tion of a will or other testamentary instrument. 4 
Restric- 6. Restrictions on Freedom of Testation. (A) THE 
testamen- LEGiTiM. The Roman Law accorded the querela inofficiosi 
tary dis- testament! to three classes of persons : (1) descendants ; (2) 

position. 

A. The ascendants ; (3) brothers or sisters passed over in favour 
legitim. o turpes personae. 5 In the latest law descendants were 
entitled to one third of their intestate share if the deceased 
left four children or less, to one half if he left more than 
four ; 6 ascendants and brothers and sisters were entitled to 
one fourth; 7 unless in each case they were justly disin- 
herited. The portion to which these classes were succes- 
sively entitled was known as the statutory portion 
legitima portio or, as we say, the legitim. 

1 Voet, ibid. ; Groenewegen, de leg. abr. ad Inst. 2. 10. 6 ; but not 
to a codicil executed before five witnesses jure Romano ; Gr. 2. 25. 
2; Voet, 29. 7. 1; Dwyer v. O'Flinn's Exor. (1857) 3 Searle 16. 
Codicils notarially executed required male witnesses. Voet, 29. 7. 5. 

2 Gr. 2. 17. 12; Joubert v. Exor. of Russouw [1877] Buch. 21. 

3 Voet, 28. 1. 22. The restriction applied to notarial wills only, 
not to underhand wills. Semble in the case of underhand wills the 
Roman Law excluding domesticum testimonium (Inst. 2. 10. 9) was 
in force in Holland. Voet, 28. 1. 8. 

4 Cape Act. No. 22 of 1876, sec. 2. Similar provisions in Trans- 
vaal (Ord. 14 of 1903, sec. 2), O.F.S. (Ord. 11 of 1904, sec. 2), 
Southern Rhodesia (RS. cap. 49), but not in Natal. Momololo's 
Exor. v. Upini [1919] A.D. 58. The Ceylon Law contains no general 
provision as to the competency of attesting witnesses, with the 
exception of Ord. No. 7 of 1840, sec. 9, to the effect that: 'If any 
person who shall attest the execution of any will, testament or 
codicil shall at the time of the execution thereof or at any time 
afterwards be incompetent to be admitted a witness to prove the 
execution thereof, such will, testament or codicil shall not on that 
account be invalid.' B Inst. lib. ii, tit. 18; Girard, p. 915. 

6 Nov. 18, cap. i (A.D. 536). 

7 Girard seems to be of this opinion. Others think that Justinian 
intended that parents and brothers and sisters should take a third 
instead of a fourth. Windscheid, iii. 580. 



TESTAMENTARY SUCCESSION 369 

The law of legitim was received in Holland, 1 but is Abolished 
unknown to the modern law having been abrogated by 
statute or disuse. 2 law. 

(B) QUARTA FALCIDIA. In Dutch, as in Roman, law, B. The 
the heir was entitled to retain, as against legatees, a clear 
fourth of the estate or of the share in which he was insti- 
tuted after payment of funeral and other expenses and 
debts ; the legacies were, if necessary, reduced pro rota. 

(C) QUARTA TREBELLIANA. The principle of the Lex C. The 
Falcidia was applied by later Roman legislation to the re- portion!" 1 
lation of fiduciary and fideicommissary. This also passed 

into the law of Holland. 

The Falcidian and the Trebellian portions have been 
abolished in South Africa 3 and are disused in Ceylon. 

7. Institution and Substitution of Heirs. It is un- institu- 
necessary to linger over the rules relating to this topic, 



which Grotius 4 and other writers have taken over in detail tio . n of 
from the Roman Law. As observed above, the institution 
of an heir is no longer necessary to the validity of a testa- 
ment. 5 Vulgar substitution is the same as in the Roman 
Law. 6 Pupillary and exemplary substitution in the Roman 
sense are not in use, 7 the same result being sufficiently 
obtained by fideicommissa (so called fideicommissary sub- 
stitution). In the Roman-Dutch Law, unlike the Roman 

1 Gr. 2. 18. 5. 

2 Cape Act No. 23 of 1874, sec. 2 ; Natal, Law 22 of 1863, sec. 3 
(A) and Law 7 of 1885, sec. 1 ; O.F.S. Law Book of 1901, cap. 
xcii, sec. 3; Transv. Procl. No. 28 of 1902, sec. 128. There is no 
express abolition in Ceylon, as pointed out by the late Mr. Justice 
Thomson (Institutes of the Laws of Ceylon, vol. ii, p. 208) ; but see 
Ord. No. 21 of 1844, sec. 1. 

3 Cape Act 26 of 1873, sec. 1 ; Natal, Law 22 of 1863, sec. 3 A, 
and Law 7 of 1885, sec. 2 ; Transv. Procl. No. 28 of 1902, sec. 126 ; 
O.F.S. Law Book of 1901, cap. xcii, sec. 2. As to Ceylon there may 
be (or was) some doubt. Thomson, Institutes, vol. ii, p. 225. 

4 Gr. lib. ii, capp. xviii and xix. 

5 Supra, p. 354. 

6 V.d.L. 1. 9. 7. 

7 Gr. 2. 19. 9 ; Voet, Compendium, 28. 6. 16 ; Van Leeuwen, 3. 7. 
5 ; V.d.K. 106. But Van der Keessel (Th. 312) and Van der Linden 
(1. 9. 7) admit exemplary or quasi -pupillary substitution. See 
Rechts. Obs., pt. i, no. 41. 

4901 



370 



THE LAW OF SUCCESSION 



Law, an institution a die or in diem is good, the effect 
being to shift the property from the intestate heir (insti- 
tutio a die) or to. the intestate heir or substituted heir 
named by the testator (institutio in diem). 1 

Legacies. 8. Legacies. In regard to the creation and interpreta- 
tion of legacies, the rules of the Roman Law are closely 
followed. We may be content on this topic to refer to 
the usual sources of information. 2 It may be noted that 
if the assets are insufficient to discharge the debts, all 
legacies of whatever nature, abate proportionately. 3 

Codicils. 9. Codicils. In Roman Law, codicils were originally 
informal documents in the nature of notes or memoranda 
containing directions from the deceased to his heir testa- 
mentary or intestate. In Justinian's legislation they were 
generally executed in writing by the maker, in the presence 
of at least five witnesses, male or female, who 'subscribed' 
the instrument. Though as regards form, therefore, they 
fell little short of regular wills, in several respects they 
differed from them. Thus : (a) they could not dispose of the 
inheritance, and therefore could not institute or substitute 
an heir directly nor contain a clause of disherison. On the 
other hand, (6) their validity did not depend upon the 
existence of a will ; if there was a will the codicil was usually 
construed as part of it, and if the will failed the codicil 
failed too ; but in the absence of a will a codicil validly 
executed might impose a fideicommissum upon the in- 
testate's heir ; (c) though a man could only leave behind 
him one valid will, he might leave any number of valid 
codicils. 4 

1 Gr. 2. 18. 21 ; Lee, Commentary, ad loc. ; V.d.K. 311. See Est. 
Cato v. Est. Goto [1915] A.D. at p. 300; where Innes C.J. points 
out that Voet (28. 5. 12) takes a different view of the effect of such 
an institution; and cites Black v. Black's Exors. (1904) 21 S.C. at 
p. 563. In Van der Merwe v. Van der Merwe's Executrix [1921] 
T.P.D. 9 Gregorowski J. followed Voet, but there was no argument. 
See also In re Cooper's Est. [1939] C.P.D. 309 and Commr. for 
Inland Revenue v. Est. Crewe [1943] A.D. at p. 678. 

2 Gr. lib. i, capp. xxii and xxiii; Van Leeuwen, lib. iii, cap. ix; 
1 Maasdorp, chap, xxv ; Steyn, The Law of Wills in South Africa, 
chap. vii. 8 Ex parte Tarr [1941] C.P.D. at p. 111. 

4 Inst. 2. 25. 3 ; Moyle, ad loc. 



TESTAMENTARY SUCCESSION 371 

Anyone might make or take under a codicil who could 
make or take under a will. 1 

Owing to the greater elasticity of the codicil, and the 
liability to failure of the formal will, it became usual 
among the Romans to insert in every will a clause pro- 
viding that if the instrument failed to take effect as a will 
it should take effect as a codicil. 2 This was called the 
clausula codicillaris. It cured defects of form but not of 
substance, and even the first only if the form satisfied 
the requirements of the law in the case of codicils. 3 

The Dutch jurists discuss at some length whether there 
was any longer any difference between wills and codicils. 
Groenewegen says there is none. 4 Decker argues with much 
force that the Roman law of codicils is entirely foreign to 
the law of Holland. 5 Voet says, 'the law of codicils has 
been very nearly assimilated to that of testaments'. 6 Van 
der Keessel detects some then existing differences. 7 But 
today, as in English law, the difference between wills and 
codicils is one of name merely not of substance, 8 except 
that : ' In the ordinary course a codicil is employed merely 
for the purpose of supplementing and making alterations 
in a will, and it is usually read as an annexure to the main 
document.' [Therefore] 'where you have a distinct dis- 
position made by will, that disposition cannot be revoked 
by a codicil except through the medium and use of words 
equally clear and distinct'. 9 

10. How wills and legacies are revoked. 10 A will, 

1 Dig. 29. 7. 6. 3 ; Voet, 29. 7. 2 ; Girard, p. 847. 

2 Ut vim etiam codicillorurn scriptura debeat obtinere. Cod. 
3. 36. 8. 1. 

3 Gr. 2. 24. 7. Grotius says also that a will in which an heir is 
not instituted takes effect as a codicil by virtue of the codicillary 
clause. But even in the absence of such a clause the will held good. 
Van Leeuwen, 3. 2. 2, and Decker, ad loc. 

4 de leg. abr. ad Inst. 2. 25. 6 ad Van Leeuwen, 3. 2. 2. 
6 29. 7. 5. 7 Th. 289. 

8 Est. Ebden v. Ebden [1910] A.D. at p. 332; (Ceylon) Ooone- 
wardene v. Ooonewardene (1929) 31 N.L.R. at p. 15. 

9 Kleyn v. Est. Kleyn [1915] A.D. at p. 537 per Solomon J.A. 

10 For Ceylon, see Ord. No. 7 of 1840, sec. 5. For Natal see 
Law 2 of 1868, sees. 8-10. In the other provinces there is no 
statutory provision. 



372 THE LAW OF SUCCESSION 

How wills validly made, may be revoked: (1) by a subsequent will, 
feeacies rev kmg the earlier will expressly or by implication, 
are In the Roman Law a later will necessarily revoked an 

revo ' earlier will. But in the modern law it is a question of 
construction. Voet says, correctly, that there must be an 
express revocation of the earlier will, otherwise effect will 
be given, so far as they are not irreconcilable, to both. 1 
Grotius, 2 following the Roman Law, 3 says that a testa- 
mentum parentis inter liberos cannot be revoked except by 
a later will executed in solemn form and with express 
mention that the later will is intended to revoke the former. 
But, today, a second privileged will no less than a will 
executed with the usual formalities will revoke an earlier 
privileged will, if it bears that construction; 4 (2) by 
declaration of intention to revoke in an instrument exe- 
cuted with the formalities proper to a will. This is in 
effect a subsequent will, declaring the testator's desire that 
his estate should be distributed as in the case of intestacy. 
In the Roman Law it would have been invalid for want of 
the institution of an heir ; 5 (3) by destruction animo revo- 
candi. 6 If the will has been executed in duplicate, destruc- 
tion of one duplicate animo revocandi invalidates the 
other. 7 But it seems that the destruction of the grosse or 
copy of a notarial will leaves the will intact, 8 at all events 
unless a contrary intention is proved. If a will executed 
by a testator was last seen in his possession and cannot be 
found on his death, there is a (rebuttable) presumption that 

1 Voet, 28. 3. 8; Re Eat. Whiting [1910] T.P.D. 527; Ex parte 
Scheuble [1918] T.P.D. 158; Ex parte Tarr [1941] C.P.D. 104. 

2 Gr. 2. 24. 18. * Nov. 107, cap. 2. 

* Vimpany v. Attridge [1927] C.P.D. 113; Lee, Commentary, 
p. 175. 

6 Gr. 2. 24. 16 ; Voet, 28. 3. 1. ; V.d.L. 1. 9. 11 ; Lee, Commentary, 
p. 174. 

6 Gr. 2. 24. 15; Voet, 28. 4. 1. 

7 Nelson v. Currey (1886) 4 S.C. 355. 

8 Groen. ad Gr., ubi sup. ; Voet, ubi sup. ; V.d.L., ubi sup. 
Dissentit Schorer ad Gr., loc. cit. V.d.K. (Th. 330) says that the 
will is not revoked, unless it is shown that the testator destroyed 
the grosse with the intention of dying intestate. Cf. In re H err on, 
Ex parte Waters (1840) 2 Menz. 423. 



TESTAMENTARY SUCCESSION 373 

the will was destroyed by him animo revocandi. 1 Partial 
destruction of a will, if intentional, prima facie revokes 
only the part destroyed ; 2 (4) Van der Linden says that a 
will is revoked by subsequent marriage followed by birth 
of issue. 3 But the statement wants authority, and it does 
not appear that in the modern law, in the absence of 
statutory provision, a will is revoked either by marriage 
alone or by marriage followed by birth of issue. 4 In Natal 
a will is generally revoked by marriage, unless expressed 
to be made in view of a contemplated marriage, or made in 
exercise of a power of appointment which does not affect 
the interest of the heirs ab intestato. But no joint will is 
revoked by the marriage of the surviving spouse. 5 (5) 
Grotius, following the Roman Law, says that a will is 
revoked by a declaration to the Court (inter acta), or made 
before three witnesses, that the testator does not desire 
his will to stand, provided that ten years have elapsed 
since the date of its execution. 6 This finds no place in the 
modern law. (6) By the Roman Law a will was always 
liable to fail owing to non-acceptance of the inheritance. 
But since in the modern law it is not necessary to institute 
an heir, it is obvious that failure to accept on the part of 
an instituted heir leaves the other provisions of the will 
unaffected. 7 The same consequence follows if a testator 
has erased the names of the heirs without intending there- 
by to revoke the whole will. 8 (7) Legacies in particular are 

1 Exparte Slade [1922] T.P.D. 220. 

2 Voet, 28. 4. 3 ; Gow v. The Master [1936] C.P.D. 296. 

3 V.d.L. ubi sup. 

4 Shearer v. Shearer's Exors. [1911] C.P.D. at p. 821. 

5 Natal Law 2 of 1868, sec. 8; Lorenzo v. Rakagiatis [1938] 
N.P.D. 68. In Southern Rhodesia a will executed before marriage 
is usually avoided by marriage unless endorsed after marriage 
with the formalities required for the execution of a will. De- 
ceased Estates Succession Act, 1929 (R.S. cap. 51). In Ceylon 
(Ord. No. 7 of 1840, sec. 5) a will is revoked by marriage. For 
English Law see Wills Act, 1837, sec. 18; Law of Property Act, 
1925, sec. 177 (1); Sallis v. Jones [1936] P. 43. 

6 Gr. 2. 24. 14; Cod. 6. 23. 27. 

7 Voet (28. 3. 14) and Schorer (ad Gr. 2. 24. 19) attribute this 
consequence to the codicillary clause, but this is certainly not 
necessary to-day. 8 Voet, 28. 4. 3. 



374 THE LAW OF SUCCESSION 

extinguished : (a) by express revocation by will or codicil j 1 
(6) by implied revocation, which takes place if the subject- 
matter of the legacy is given away or except under stress 
of necessity sold ; 2 (c) if the legatee dies before the testator, 
or before the condition (if any) of the legacy has been 
implemented ; 3 (d) by erasure, &c. in the will animo revo- 
candi* 

Revival of A will which has been revoked by a later will may be 
^1. revived by another will showing a clear intention to revive 
it. 5 If the revoking will is destroyed animo revocandi or 
otherwise revoked, the earlier will is revived if this is 
clearly shown to have been the testator's intention. 6 
Fideicom- H. Fideicommissa. The student who derives his 
Roman knowledge of Roman Law at first or second hand from the 



in 



Law Institutes of Gaius and Justinian may be supposed to be 
familiar with the origin and history of fideicommissa, as 
made known to us in those works. He has learnt that 
the fideicommissum owed its beginning to the cumbersome 
technicalities of the Roman system of testamentary suc- 
cession, and, in particular, to the fact that none but 
Roman citizens 7 could be validly instituted heirs. But 
he may sometimes have wondered why the fideicommis- 
sum retained its importance in a later age, when the codicil 
(which was the usual vehicle of the fideicommissum) so far 
as form went was little less technical than the formal 

1 Gr. 2. 24. 27 ; Voet, 34. 4. 3. 

2 Gr. 2. 24. 28 ; Voet, 34. 4. 5-6. Grotius, following Dig. 34. 4. 3. 
11 and lex 4, adds 'serious enmity between testator and legatee'. 
Groenewegen doubts (de leg. abr. ad Dig. lib. xxxiv, tit. 4). Voet 
(34. 4. 5) affirms and extends the principle. According to Grotius 
(2. 24. 27) a legacy may be revoked by a declaration before two 
witnesses sed quaere. Van der Keessel says (Th. 335) that a 
legacy may be revoked by a marginal note in the grosse or copy 
of a notarial will signed by the testator. See Holl. Cons. v. 45. 

8 Gr. 2. 24. 29 ; and Schorer, ad loc. ; Voet, 34. 4. 9. 
4 Gr. 2. 24. 27. 

6 Re Eat. Marks [1921] T.P.D. 180; Wood v. Eat. Fawcus [1935] 
C.P.D. 350; Exparte Gillespie [1943] C.P.D. 58. 

8 Nelson v. Currey (1886) 4 S.C. 355; Wynne v. Wynne's Eat. 
(1908) 25 S.C. 951. 

7 And Latins. Girard, p. 121. Peregrini poterant fideicommissa 
capere: et fere haec fuit origo fideicommissorum, Gaius, ii. 285. 



TESTAMENTARY SUCCESSION 375 

testament; and when, as a rule, the classes disqualified 
from taking by will were equally disqualified from taking 
by fideicommissum. 1 It is possible that it may hardly have 
occurred to him that the great part which the fideicom- 
missum played in the Roman Law was due, not merely, 
and perhaps not principally, to the fact that it afforded 
an escape from the fetters of form, but much more to the 
fact that it supplied an easily adaptable method of tying 
up property through successive generations. The fidei- 
commissum of the jus civile was in fact the equivalent of employed 
what English lawyers call a settlement. 2 When, therefore, 
we read the well-known formula : ' Be Titius my heir, and 
let him restore the inheritance to Maevius', we must re- 
member that, to aid our comprehension, the situation is 
presented, as it were, in vacuo. In practice it is highly 
probable that the direction would be that Titius should 
hand over the estate at his death, or, perhaps, after the 
lapse of a fixed time or on the occurrence of some certain 
or uncertain future event. 

It is not unusual to describe fideicommissa as testa- Fidei- 
mentary trusts. 3 Passing by the objection that they were mi 
frequently intended to take effect upon an intestacy, we trusts. 
may remark that to apply the terms of art proper to one 
system of law to another system in which they are not 
at home is always dangerous and often misleading. The 
differences between the trust and the fideicommissum are 
fundamental. Thus: (1) The distinction between the legal 
and the equitable estate is of the essence of the trust ; the 
idea is foreign to the fideicommissum ; (2) In the trust the 
legal ownership of the trustee and the equitable ownership 
of the beneficiary are concurrent, and often co-extensive ; 
in the fideicommissum the ownership of the fideicom- 
missary begins when the ownership of the fiduciary ends ; 
(3) In the trust the interest of the beneficiary, though 
described as an equitable ownership, is properly 'jus neque 

1 Girard, p. 977. 

2 See examples in Hunter, Roman Law, p. 823. 

3 e.g. Hunter, p. 809. 



VIVOS. 



376 THE LAW OF SUCCESSION 

in re neque ad rem ',* against the bona fide alienee of the 

legal estate it is paralysed and ineffectual; in the fidei- 

commissum the fideicommissary, once his interest has 

vested, has a right which he can make good against all the 

world, a right which the fiduciary cannot destroy or burden 

by alienation or by charge. 2 (4) A further difference, more 

familiar perhaps but not more important than the others 

already mentioned, is that while a trust is created as often 

In the by act inter vivos as by last will, in the Roman Law a 

La^ladei- fideicommissum always, or almost always, took effect 

commissa mortis causa by virtue of a testament or codicil. Voet, 3 

created by indeed, and other writers say that a fideicommissum could 

will or a i s o be created by act inter vivos; but the passages from 

but in ' the Corpus Juris cited in support of this view are neither 

the Dutch numerous nor convincing. 4 In the law of Holland it was 

Law also 

by act otherwise. Though the books have little to say on the 
subject, it is clear that fideicommissa were often created 
by antenuptial settlement or other act inter vivos. 5 As to 
the modern law there can be no question. The doubt 

1 Chudleigh's case (1589) 1 Co. Rep. at 121 b. 

2 Cod. 6. 43. 3. 3; Voet, 6. 1. 6; 18. 1. 15; 36. 1. 64; V.d.L. 1. 
9. 8. ; infra, p. 383. See Lange v. Liesching (1880) Foord at p. 59. 

3 Voet, 36. 1. 9 ; Vinnius, Tract, depact., cap. xv, nos. 11 and 12. 

4 Dig. 16. 3. 26 pr. ; Dig. lib. xxxii, lex 37. 3 ; Cod. 8. 54 (55). 3 ; 
Dig. lib. xxx, lex 77. But such a f.c. falls short of a f.c. in the full 
sense, if Voet and Vinnius are right in saying that it gave rise to a 
personal action merely, not to a vindication. 

8 It seems that they were recognized to have the same effect as 
fideicommissa arising mortis causa. By a Placaat of the States of 
Holland and West Friesland of July 30, 1624 (1 O.P.B. 375), all 
fideicommissa or prohibitions of alienation affecting immovable 
property were to be destitute of effect unless registered. But this 
Placaat, as Voet tells us (36. 1. 12), was never introduced into 
practice and so became obsolete. Rechte. Obs., pt. i, no. 42 ; V.d.K. 
319. For an early case, in the modern law, of fideicommissum 
created by antenuptial contract see Buissinne v. Mulder (1835) 
1 Menz. 162. See also Du Plessis v. Estate Meyer [1913] C.P.D. 
1006, and Brit. S. A. Co. v. Bulawayo Munic. [1919] A.D. 84. A 
f.c. in respect of immovable property duly registered confers a 
jus in rem. Ibid, at p. 97, Ex parte Net [1929] N.P.D. 240. 
Fideicommissa created by act inter vivos are even more strictly 
construed than fideicommissa created by testament. Holl. Cons. 
iii. 111. They are irrevocable after acceptance by the fideicommis- 
sary without his cons~ent. Ex parte Orlandini [1931] O.P.D. 141. 



TESTAMENTARY SUCCESSION 377 

remains, however, whether we are to regard the trusts, 
which, made familiar by settlements framed upon English 
models, have invaded the Courts and even the statute Fidei- 
book, as a development of the native institution, or frankly 
accept them as a useful importation from a foreign system, in the 
We return to this subject later. ^ ei 

Since all the text-books of the Roman-Dutch Law follow Method 
the Roman Law in their treatment of fideicommissa, it f treat - 
will be convenient to pursue the same method, and to 
regard the fideicommissum primarily as a mode of testa- 
mentary substitution which derives its importance from 
its utility as a means of tying up property through suc- 
cessive generations. The student will find no difficulty 
in applying the rules which we shall proceed to state to 
dispositions inter vivos as well. 

No particular form of words is needed for the creation No form 
of a fideicommissum. All that is required is that the ^e^red 
testator's meaning should be clearly expressed or implied, 1 to create a 
for the law is unfriendly to fideicommissa and will not m jssu^! 
lightly presume in their favour. 2 An express fideicom- Fidei- 
missum is created by such words as these : ' I make mv commissa 

* are: 

wife my heir, but when she comes to die I desire that she (a) ex- 
will let the property go to those who shall be then nearest press ' 
to me in blood' or to certain named persons. 3 An implied (6) im- 
fideicommissum is created in many ways, for example, by p 
prohibition of alienation 4 general or to specified persons, 5 Effect of 
provided that there is some clear indication of a person or tio'nof" 
class of persons for whose advantage the prohibition is alienation. 
imposed. 6 Where there is such an indication, the prohibi- 

1 Van Leeuwen, 3. 8. 4; V.d.L. 1. 9. 8. 

2 Voet, 36. 1. 72; Huber, op. cit. 2. 19. 75-7; Union Govt. v. 
Olivier [1916] A.D. at p. 81 ; Moolman v. Est. Moolman [1927] A.D. 
at p. 140. 

3 Huber, 2. 19. 37. 

4 Van Leeuwen, 3. 8. 6; Huber, 2. 19. 53. 

5 Sande, de prohib. rer. alienat. 3. 1. 7; Bijnk. O.T. i. 50. 

8 Gr. 2. 20. 11 ; Voet, 36. 1. 27 ; Huber, 2. 19. 54. Ex parte Short 
[1928] T.P.D. 155; Ex parte Martens [1928] N.P.D. 323; Ex 
parte Nel [1929] N.L.R. 240. For Ceylon see Ord. No. 11 of 1876 
sec. 3 ; and Salonchi v. Jayatu (1926) 27 N.L.R. 366 ; Meiya Nona 
v. Davith Vedarala (1928) 31 N.L.R. 104. 



378 THE LAW OF SUCCESSION 

tion takes effect as a fideicommissum in favour of the 
person or class of persons indicated. 1 Where there is no 
such indication, the prohibition is 'nude' and wholly in- 
operative. 2 If the heir is forbidden to alienate the property 
out of the family the law raises a conditional fideicom- 
missum in favour of the intestate heirs, 3 so that the heir 
is not free to dispose of the property out of the family 
either by act inter vivos or by will. 4 Such was the effect 
in Holland generally ; but in Amsterdam a proviso of this 
nature was almost destitute of effect, for it was construed 
as merely prescribing the course of descent in respect of 
so much of the property as the heir had not alienated inter 
vivos or disposed of by his testament. 5 
Fideicom- Nearly, but not quite, the same freedom of alienation 
^ s enjoyed by the heir who is given power to diminish or 

1 Holl. Cons. i. 19; vi (pt. 2). 131 ; Ex parte Van Eeden [1905] 
T.S. 151 ; In re Est. Kleinhans [1927] C.P.D. 73. 

2 Ex parte Fulton [1912] C.P.D. 868; Ex parte Laos [1923] 
N.P.D. 104; Nelson v. Nelson's Est. [1932] C.P.D. 395; Ex parte 
Badenhorst [1937] T.P.D. 174; (Ceylon) Kithiratne v. Salgado 
(1932) 34 N.L.R. at p. 77; Amarasekere v. Podi Menika (1932) 
34 N.L.R. 82. 

3 i.e. of the last possessor (usually), not of the settlor. Huber, 
2. 19. 68. This is called a fideicommissum familiae. 

4 Gr. 2. 20. 12 ; Voet, 36. 1. 27 ff. ; the f.c. is conditional, because 
it takes effect only in the event of a prohibited alienation taking 
place. Not only is such alienation void, but the interest of the 
alienor is forthwith determined and the interest of the heirs 
immediately vests in possession. So the law is stated by Sande 
(de prohib. rer. alienat. 3. 4. 7 seq.) . (As regards the effect of a 
judicial sale see below, p. 434.) In Josef v. Mulder [1903] A.C. 190, 
20 S.C. 144 the P.C. held that a direction that the property should 
'never be sold or parted with in favour of a stranger' was not 
infringed by a mortgage. But see Cod. 4. 51. 7, and Huber, 
Heedensdaegs. Rechtsg. 2. 19. 58 ; Ex parte De Jager [1926] N.P.D. 
413. As to leases ad longum tempus see Sande, op. cit. 1. 1. 45. 
Huber (sec. 59) says that if the direction is that the property is 
not to be alienated out of the family the fiduciary may leave it by 
will to anyone of the family near or remote. Secus, if the property 
is left to the family (gemaekt aen het geslachte). Ex parte Eat. 
Odendoal [1933] O.P.D. 122. For the distinction between a f.c. 
familiae 'verbis in rem conceptis' and 'verbis in personam con- 
ceptis', see Voet, 36. 1. 28; Union Govt. v. Olivier [1916] A.D. 74; 
Moolman v. Eat. Moolman [1927] A.D. 133; (Ceylon) Sopinona v. 
Abeywardene (1928) 30 N.L.R. 295; Palipane v. Taldena (1929) 
31 N.L.R. 196. 6 Gr. ubi sup. ; Voet, 36. 1. 5. See V.d.K. 318. 



TESTAMENTARY SUCCESSION 379 

waste the property, with a direction to make over the 
residue to some person named by the testator (fideicom- 
missum residui). 1 In this case the heir may freely dispose 
of three quarters 2 of the estate otherwise than by fraudu- 
lent donation or last will, 3 leaving one quarter only to the 
fideicommissary, for which the fiduciary unless absolved 
by the testator must give security ; 4 if he has alienated 
more than three quarters, the goods last alienated may be 
followed in the hands of the alienee. 5 

Very often the fideicommissum depends upon a con- Condi 
dition, as where a wife is appointed heir with a gift over 
in the event of re-marriage: e.g. 'I appoint my wife Jane missa 
my heir ; but, if she marries again, I desire her to make 
over the property to my brother Henry' ; or when a son 
is appointed heir with a gift over in the event of his dying 
under the age of five-and-twenty. 6 But the commonest 
condition is that which provides that the goods are to go 
over if the first taker dies without children. The formula 

1 Nov. 108, cap. 1 ; Gr. 2. 20. 13 ; Van Leeuwen, 3. 8. 9 ; Huber, 
2. 19. 103; V.d.K. 320. McCarthy v. Newton (1861) 4 Searle 64; 
Est. Moorrees v. Board of Exors., Cape Town [1939] A.D. 410 : Est. 
Smith v. Est. Follett [1942] A.D. 364 ; (Ceylon) Veerapillaiv. Kantar 
(1928) 30 N.L.R. 121; Fernando v. Alwis (1935) 37 N.L.R. 201. 
The same result follows when a usufruct with a power of alienation 
has been left subject to a condition that the property should be re- 
stored after death. V.d.K. 372. 

2 Grotius says one fourth ; but this is a slip corrected in Groene- 
wegen's and later editions. In certain cases he might dispose of 
the whole, viz. ex causa dotis seu propter nuptias donationis seu 
captivorum redemptionis vel si non habeat unde faciat expensas. 
Nov. 108 (A.D. 541) ; Authentica ad Cod. 6. 49. 6 ; Gr. loc. cit. 

3 Voet, 36. 1. 54; Van Leeuwen, 3. 8. 9; V.d.K. Dictat. ad Gr. 
2. 20. 13 and Th. 320; Lee, Commentary, ad loc. 

4 Ex parte Berrange [1938] W.L.D. 39. 

6 Distinguish the case of a mutual will by which the spouses 
reciprocally institute each other heirs with power of alienation and 
direct that whatever is left of the massed estate shall be divided 
between the heirs of the spouses. In this case the surviving spouse 
is free to alienate the whole estate by act inter vivos, even by 
donation if not made in fraud of the heirs. Voet, 36. 1. 56 ; Coren, 
Obs. xi, p. 43 ; Holl. Cons., iv. 278 ; Bijnk. O.T. i. 981 ; Brown v. 
Rickard (1883) 2 S.C. 314 ; In re Jordaan's Est. (1907) 24 S.C. 84 ; 
Botha v. Van der Vyver (1908), 25 S.C. 760. Exparte Venter [1920] 
O.P.D. 153; Kemsley v. Kemsley [1936] C.P.D. 518. 

6 Huber, 2. 19. 44. 



380 THE LAW OF SUCCESSION 

is something of this kind : ' If my heir dies without children 
I will that he shall let the property which comes to him 
from me go to my nearest of kin then in being.' The effect 
is that the gift over is only realized in case the heir leaves 
no legitimate children surviving him at the date of his 
death. 1 

The If the clause si sine liberis decesserit was expressly 

inserted as the condition of a gift over taking effect and 



si sine 



liberis de- the first taker had children who survived him, the gift 
' over would certainly fail ; but whether a fideicommissum 
would be implied in favour of the children was disputed. 
Grotius says that a negative answer is commonly given 
unless the testator was an ancestor, or the children are 
themselves charged with a fideicommissum, or from other 
circumstances it appears that the testator intended that 
they should benefit under his will. 2 

If however the testator was an ancestor, not only does 
the above-mentioned clause create a fideicommissum in 
favour of the children, but even if the clause has been 
omitted it will be read into the will with the same result. 3 
For if an ascendant confers a benefit by his will upon a 
descendant who was childless at the date of the will, with 
an unqualified gift over in the event of such descendant's 
death, none the less, if, at the date of his death, such 
descendant leaves children surviving him, a fideicom- 
missum will be implied in their favour in derogation of 

1 Voet, 36. 1. 13 fit.; Huber, 2. 19. 45-6. 

2 Gr. 2. 20. 5; Huber, 2. 19. 30. I institute my brother; if he 
dies without children, the property to go over to my nephew. This 
does not create a f.c. in favour of the brother's children. Ibid, 
sec. 55. Voet (39. 5. 44) observes: Nititur scilicet tota quaestionis 
hujus definitio ex determinatione controversiae, an positi in con- 
ditione censeantur etiam positi in dispositione. See also Neostad. 
Decis. van den Hove, No. 22; Van Leeuwen, 3. 8. 12; Voet, 28. 
2. 10; Bijnk. O.T. i. 1032; Steenkamp v. Marais (1908) 25 S.C. 
483; Ex parte Odendaal [1926] O.P.D. 223; Reese v. Registrar of 
Deeds [1938] C.P.D. 459. 

3 This may perhaps, in view of Ex parte Odendaal, seem to be 
stated too absolutely. But if descendants 'positi in conditione' 
are to be taken to be ' positi in dispositione ', it is correct. It cannot 
make any difference whether the condition is express or implied. 
Cf. Voet, 36. 1. 17. in fin. 



TESTAMENTARY SUCCESSION 381 

the express fideicommissum contained in the testator's 
will. 1 

In the Roman Law it was the duty of the fiduciary The effect 
to 'restore' the property to the fideicommissarius either ommis- 
forthwith or upon the vesting of the fideicommissum. sum as 
The texts of the Corpus Juris leave us in some uncertainty the'owner- 
as to what was required to constitute restitution. Prima ship of 
facie the property in question vests in the first instance in subject 
the fiduciary, as heir or legatee, by title of inheritance or to xt - 
legacy ; and it would appear that some act of restitution 
delivery or its equivalent was, as a rule, necessary to 
vest the property in the fideicommissary. 2 But Justinian 
put fideicommissa and legacies on an equal footing, and 
gave to all legatees the real action which, before his time, 
had been limited to legatees by vindication. 3 As regards 
res singulares, at all events, the effect would be to vest the 
property in the fideicommissary eo instanti that the fidei- 
commissum matured. In the modern law it would seem 
reasonable to infer the same result in every case of fideicom- 
missum. If this be so, the. true parallel in English Law to Parallel 
the fideicommissum is not the trust but the old grant to L aw ng S 

1 Voet, 36. 1. 17 ; Huber, 2. 19. 49. See Galliers v. Rycroft [1901] 
A.C. 130, 17 S.C. 569. It was held in this case that in Roman- 
Dutch Law, differing in this respect from Scots Law, the clause 
'si sine liberis decesserit' is implied in case of fideicommissary 
substitution only, and not also in case of direct substitution. 
Query whether the presumption mentioned in the text ought to 
operate when the fiduciary heir to the knowledge of the testator 
has children of whom no mention is made ? Est . Cato v. Est. Cato 
[1915] A.D. at p. 303 per Innes C.J. citing Voet, 36. 1. 17 (read 18). 
In the absence of proof of contrary intention 'children' means 
descendants of the first degree only. Voet, 36. 1. 22; Galliers v. 
Rycroft, ubi sup. But see Est. Welsford v. Est. Welsford [1930] 
O.P.D. 162. 

The question of 'The vesting and divesting of rights under a 
will in Roman-Dutch Law ' suggested by a dictum of De Villiers, 
Sir Henry De Villiers in Galliers v. Rycroft, is discussed in an article 
so entitled in L.Q.R. vol. xxvi, p. 126, by A. J. McGregor ; and see 
Tredgold v. Est. Arderne [1926] C.P.D. 25. 

2 Dig. 36. 1. 38 (37) pr. ; Voet, 36. 1. 34; Huber, 2. 19. 108; 
Sande, Decis. Fris. 4. 5. 13, where it is laid down that before 
'restitution' a fideicommissary cannot, as a rule, maintain an 
action against a third party in possession. 

8 Inst. 2. 20. 2; Cod. 6. 43. 1. 1. 



382 THE LAW OF SUCCESSION 

uses. If the fideicommissum is expressed to take effect 
at once, the fiduciary will be a conduit-pipe to convey the 
property to the beneficiary. If, on the other hand, the 
vesting of the fideicommissum is postponed, the fiduciary 
will be in the position of an owner in fee simple subject to 
an executory limitation over to another. Upon the hap- 
pening of the contemplated event the ownership will shift 
over to the fideicommissary. If the terms of the fideicom- 
missum involved active duties in relation to the property, 
the case would, no doubt, be different. In such a case 
an actual conveyance would be necessary to transfer the 
property to the fideicommissary owner. 1 

Fidei- Let us now confine our attention to the most usual case 

sum" 118 " of fideicommissum, viz. where the fiduciary is intended to 
taking take a life interest and to ' restore ' the property upon his 
(ofon death. What is his position ? In the first place, unless 
death; the testator has directed otherwise, 2 he must give security 
for the restoration of the property, undiminished in 
amount and value, to the person entitled to succeed him. 3 
In the interval he is dominus, and may exercise all rights 
of dominion not inconsistent with the rights of his suc- 
cessor. 4 Like the usufructuary, he may transfer his right 
of enjoyment to another, remaining liable, however, to the 
fideicommissary for the acts and defaults of the transferee. 
(6) during Next, put the case of a fideicommissum expressed to 
time of take effect upon the happening of a contemplated event 
thefidu- during the lifetime of the fiduciary, which event has 
happened. Has he ipso jure ceased to be dominus ? It 

1 What is stated in the text is true in the modern law in so far 
as a fideicommissarius whose title has matured has a right of 
action to vindicate the property (2 Maasdorp, p. 39). But by the 
law of South Africa his title will be incomplete (and perhaps in- 
secure) until he has obtained transfer. 'It is the transfer which 
gives the dominium.' Op. cit. p. 82 ; supra, p. 146. 

a Huber, 2. 19. 134; V.d.K. 511 (mistranslated by Lorenz), non 
obstante Voet, 36. 3. 6. (ad fin.). See also Van Leeuwen, 3. 8. 18. 

3 Huber, 2. 19. 83 and 131. He must also make an inventory. 
From this duty he cannot be excused even by the testator himself. 
Voet, 36. 1. 36; Neostad, Supr. Cur. Decis. No. 91; Bijnk. O.T. 
i. 694, and Quaest. Jur. Priv. Lib. iii. cap. 10. 

4 Van der Walt v. Registrar of Deeds [1935] C.P.D. 463. 



TESTAMENTARY SUCCESSION 383 

seems that he has. At all events, he cannot deal with the Can the 
burdened property, so as to give a good title to an inno- 



cent purchaser. This is expressly enacted in Cod. 6. 43. 3 good title 
to the following effect: purchaser 



' If a legacy or fideicommissum be left to any one with a 

condition of substitution or restitution, either in an uncertain T ,, 

.In Koman 

event or in a certain event but at an indefinite time, he will do Law ; 
better if in these cases he refrains from selling or mortgaging 
the property, lest he should expose himself to still greater 
burdens under a claim of eviction. But if in his lust for wealth 
he should hastily proceed to a sale or mortgage hi the hope that 
the conditions will not take effect : let him know that, upon the 
fulfilment of the condition, the transaction will be treated as 
of no effect from the beginning, so that prescription will not 
run against the legatee or fideicommissary. And this rule will, 
in our opinion, equally obtain whether the legacy has been left 
unconditionally or to take effect at some certain or uncertain 
future time, or in an uncertain event. But in all these cases let 
the fullest liberty be given to the legatee or fideicommissary to 
claim the property as his own, and let no obstacle be placed in 
his way by those who detain the property.' 1 

That the principles set forth in this law were accepted inRoman- 
as part of the law of Holland admits of no doubt. It will 
be observed that here