THE TRANSPLANTATION OF ENGLISH LEGAL TRADITIONS INTO THE COLONY OF NATAL (1846-1910)

Peter Spiller

Introduction

In 1844, Natal was annexed by the British as a separate District of the Cape Colony, and, at the end of 1845, the new British administration arrived to take up its official duties. Natal remained a District of the Cape Colony until

1856, when a Charter established Natal as a separate Colony. Then followed over half a century of British colonial rule, until the incorporation of Natal into the Union of South Africa in 1910.°

At the time of British annexation, the population of Natal comprised a small community of whites who were mainly of Dutch origin and an overwhelming preponderance of blacks.* 1 In deference to the wishes of the Dutch settlers, an ordinance of 1845 declared Roman-Dutch law, as administered by the Cape courts, as the law of Natal.2 This remained the common law throughout Natal’s history, and

0 P Spiller, A History of the District and Supreme Courts of Natal (1846-1910) 1 (Butterworths 1986).

1 Id. at 2 and 10.2 Ordinance 12 of 1845 (Cape) s.l.

130

1990 TRANSPLANTATION OF ENGLISH LAW 131

it was ably applied by certain prominent figures on the Natal bench.4 However, the Roman-Dutch system had, by 1845, already incorporated elements of English law, notably in the areas of procedure and evidence. Furthermore, during the ensuing sixty-five years of Natal colonial rule, an extensive reception of English legal institutions took place. This process was prompted by the influx of British (mainly English) officials and settlers, who, by the 1850s, came to dominate white colonial affairs. The result was that the local legislature passed laws which introduced English notions and institutions into the law, and the local courts came to be peopled by many judges and lawyers who were trained only in the English common law.5

For the African majority, the Roman-Dutch/English legal institutions were generally of little relevance, as for the most part their legal interrelationships fell within the jurisdiction of “Native tribunals” administering “Native law”.6 However, dealings between blacks and other population groups, and serious inter-African crimes such as murder, culpable homicide, robbery and rape, were heard by the colonial court.

I shall now examine the impact which the reception of English legal traditions had in the Colony of Natal. First, I shall trace the way in which English laws infiltrated the Roman-Dutch legal system, and, secondly, I shall focus on the introduction of the revered English legal institution, trial by jury, in criminal cases.

Infilitration of English Laws into the Legal System

The ordinance that established Roman-Dutch law, as administered at the Cape, as the common law of Natal, had also allowed for this law to be “hereafter added to or altered... by any competent authority”.7 The statutes that

were introduced in Natal in subsequent years did bring about considerable “addition” and “alteration” in the direction of English law. Especially in the late nineteenth century, much important legislation was passed in England, at the behest of the local “leading lawyers and financial men”, and there was consid­erable pressure from Natal colonists to receive the benefit of this legislation.8

Certain statutes expressly stipulated that specified matters were to be regulated by the law of England. Ordinance 19 of 1845 declared that certain areas of the law of evidence, such as the credibility and competence of witnesses, were to be treated just as if the case in question “were depending in any of [the] Courts of Record at Westminster”.9 This required judges to make themselves “more fully acquainted

4 Notably Recorder Hendrik Cloete (Natal’s first and sole judge during the period 1846-1855) and Chief Justice Henry Connor (Chief Justice 1874-1890).

5 Spiller, supra note 1, at 83.6 During the period 1846-1875, Natal blacks were subject to “administrators of Native Law”, and

from 1875 a Native High Court was introduced (id. at 2-7).7 See supra note 3.8 1886 Legislative Council Debates 201.9 See e.g. s.48.

132 AUSTRALIAN JOURNAL OF LA W AND SOCIETY VOL 6

with the practice of the English courts in similar cases, as set forth [for example] in the standard work of Phillips on Evidence”.10 Law 17 of 1859 greatly extended the number of evidentiary matters where the existing English law was to be binding, and the Law was later amended to reflect subsequent changes in the English law of evidence.11 Thus, in Allison v. Allison, the Court noted that “how far an admission by a wife of adultery on her part, justifies [the grant of divorce] against her, seems to be regarded as a question of evidence, and English authorities, therefore, apply”.12 The ordinance which introduced trial by jury in civil cases provided that “all matters” not “expressly provided for” had to be determined according to “the law and usage of England”.13 This provision was confirmed and extended to criminal trials by Law 10 of 1871.14 Thus, in Van Deventer, the Court, “having regard to the authorities from the English Courts which are applicable to this case”, decided that a judge’s wrongful discharge of a jury before the requisite two hours did not prevent a second trial of the accused.15 Then, the Municipal Corporation Ordinance 1 of 1854, confirmed by Law 19 of 1872, provided that “every body corporate” established by the Act would be proceeded against for any act committed or omitted by it, “in the same manner as if the said Borough were situated within the realm of England”.16 In Corporation of Durban v. Marshall, the judge rejected a claim against a munici­pality for damages for injuries sustained because of an obstruction placed in a public roadway in Durban. He noted that the Law of 1872 made it unnecessary “to consider how our Common Law, the Roman-Dutch Law, would affect such cases, as the Roman-Dutch Law does not prevail in England”.17 Other statutes introduced English law for certain aspects of the acknowledgment of debts, winding-up of companies and ranking of creditors in insolvent estates, prompting judicial recourse to English cases and texts on these issues.18

Besides this explicit introduction of English law, numerous Natal statutes were introduced which were almost “exact transcripts” of English Acts.19 These applied mainly to areas of commercial law, such as the Bills of Exchange Law 8 of 1887 and the Insolvency Law 47 of 1887, and to matters not provided for by the Roman-Dutch law, as in the case of the Tramway Law 19 of 1880. But other areas,

10 Natal Witness (N.W.), 18 March 1853. See also Natal Star (N.S.) 19 October 1858 and N.W. 24 and 31 December 1858.

11 Law 5 of 1870. See Colonial Office 179/99 Keate to Kimberley 26 November 1870.12 1882 Natal Law Reports (N.L.R.) 4. See also 1863 Finnemore’s Notes and Digest (F.N.D.)

16,1864 F.N.D. 14,1869 N.L.R. 213, 1904 N.L.R. 231-2 and 1908 N.L.R. 543.13 Ordinance 7 of 1852 (Natal) s. 15.14 Section 56.15 1908 N.L.R. 609-618. See also Natal Mercury (N.M.) 13 October 1864,1861 F.N.D. 4-5,1868

N.L.R. 167,1872 N.L.R. 47,1887 N.L.R. 122,1892 N.L.R. 62 and 192-3,1895 N.L.R. 168-70 and 1902 N.L.R. 142.

16 Sections 89 and 130 respectively.17 1891 N.L.R. 37. See also N.M. 15 April 1859 and 1881 N.L.R. 105.18 Law 14 of 1861 s.7 (see 1888 N.L.R. 112-6 and 1906 N.L.R. 175), Law 19 of 1866 s.46 (see

N.W. 3 May 1867), and Ordinance 24 of 1346 (Cape) s.36 and Law 47 of 1887 s.41 (see 1892 N.L.R. 279).

19 1886 Legislative Council Debates 201.

1990 TRANSPLANTATION OF ENGLISH LAW 133

including family law and the law of property and succession, were affected as well.20 In implementing these statutes, the Natal Court applied not only the English-based provisions of the Acts, but also English decisions on the interpretation of their clauses. A policy which was adopted on numerous occasions by the Natal judges, was that “when the laws in this colony were similar to any English laws, we must avail ourselves of the doubts that have been raised and settled there in reference to them”.21 In Caldwell v. Inspector of Nuisances, Durban, the judge noted that the Natal Adulteration of Food Act corresponded with the English Act, and that there was an English case on the issue in question. He therefore held a master liable for the sale of adulterated (diluted) milk by his servant, by “adopting] the words used by these eminent [English] judges in deciding a similar case at home”.22 Natal judges did not always choose majority judgments. In Kiloh v. Colonial Government, the Chief Justice had to decide on the liability of the Natal Government Railways for the death of a shunter employed by them, under the English-based Employers’ Liability Act 12 of 1896. In considering “the opinions of English Judges upon precisely similar clauses”, he was “disposed to adopt” the dissenting view of Lord Esher in a relevant case.23 24 25

The British Parliament had the power to issue imperial legislation which was binding on all the dominions of the Empire, and occasionally the Natal Court was obliged to give effect to such legislation. In Jacobs v. Resident Magistrate of Durban, the Chief Justice gave judgment in terms of the Fugitive Offenders Act™ He noted that the object of this Imperial Act was “to weld together, in respect of the apprehension of supposed criminals, the various parts of the great British Empire into one whole”.23

The Court also recognised the right of the British Crown and its agencies to assert certain prerogatives in the colonies. In Colonial Treasurer v. Coetzer, the Court held that the Crown, represented by the Natal Government, was not bound by a local Prescription Act. The judge quoted Blackstone to the effect that “the most general words of a statute did not affect [the King] in the least, if tending to diminish his rights or interest”.26

Another source of English legal influence was the Privy Council. Because this tribunal was the final court of appeal from decisions of the Natal Court, the Natal judges, in principle, regarded all decisions of the Council as being conclusive and

20 See e.g. Law 15 of 1869 (= 5 Geo. IV c.83), Law 19 of 1880 (= 33 and 34 Vic. c.78), Law 4 of 1885 (= 46 and 47 Vic. c.37), Law 8 of 1887 (= 45 and 46 Vic. c.61), Act 24 of 1898 (= 52 and 53 Vic. c.49), and Act 45 of 1901 (= 38 and 39 Vic. c.63).

21 Times of Natal 9 July 1873. See also 1889 N.L.R. 31.22 1903 N.L.R. 182-3.Se* also 1868 N.L.R. 184,1884 N.L.R. 191,1892N.L.R. 155,1896 N.L.R.

82,1897N.L.R. 78,1901 N.L.R. 30,1903 N.L.R.6-13,1907 N.L.R. 106,1908 N.L.R. 112 and 1909 N.L.R. 317.

23 1909 N.L.R. 497-8.24 44 and 45 Vic. c.69.25 1 883 N.L.R. 130. See also N.W. 25 September 1863, 1866 F.N.D. 5-6, and 1908 N.L.R. 697.26 1872 N.L.R. 42.

134 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

binding on them.27 This logically applied to judgments in appeals from colonies which had Roman-Dutch law as their legal system, such as Natal, the Cape Colony and Ceylon. However, the Privy Council usually applied, at best, an Anglicised version of the “Civil law” to the cases in hand. In London and South Africa Bank v. Trustees Estate James, the Natal Court followed a Privy Council judgment on appeal from Ceylon, which was based on the Council’s view of Roman law and on an Admiralty court case, “contrary to the acknowledged acceptation of Voet”.2* The Natal Court also followed Privy Council decisions in appeals from colonies which did not have Roman-Dutch law, and this allowed greater scope for the influence of English law. In a series of Natal cases concerning the liability of carriers of goods by sea, the Natal Court said that it was bound by a Privy Council decision, on appeal from Mauritius, which had held that English law prevailed on this issue.29 Again, in Rutherford v. Lupkes, the Court said that the question of a shipmaster’s claim, to secure payment of a bill of lading, was “ruled” by two Privy Council decisions which had followed appeals from New South Wales and been decided on the basis of English cases.30

In broader terms, the Natal Bench had a ready receptivity to English legal influence. Most obviously, the many English imports to the Bench had a natural preference for the law in which they were trained. Phillips J. of the Middle Temple (judge 1858-1879) expressed scorn for the Roman-Dutch laws “not clearly laid down in decisions, but raked up out of books published one or two hundred years ago”, and pointedly relied upon the practices, precedents and statutes established “at home”.31 Williams J. of the Inner Temple (judge 1881-3) admitted that, as an English judge of Roman-Dutch law, he was like “the round man in the square hole”.32 Certain of the judges on the Natal bench had risen through the ranks of the local profession and lacked any formal training, and they tended to turn to English law as the most accessible legal system. They were heard to affirm the great importance they attached to the decisions of English Courts and the “great deference” they paid to diem.33 Even those few judges who were highly skilled in the Roman-Dutch law, were open to the guidance of English law. For example, Connor C.J. (Chief Justice 1874-1890), noted that “in England there had been such opportunities for defining [the] law and they had such detailed reports” that reference should be made to English law.34

27 1869 N.L.R. 157.28 1869 N.L.R. 133. Johannes Voet (1647-1713) was one of the most esteemed of the

Roman-Dutch jurists.29 1875 N.L.R. 16,1876 N.L.R. 20 and 1888 N.L.R. 228.30 1864 F.N.D. 22. See also 1866 F.N.D. 13 and 1881 N.L.R. 104.31 Spiller, supra note 1, at 43.32 Id. at 45. Wragg J. of the Inner Temple (Judge 1883-1898) affirmed the right of certain Natal

townsfolk to enjoy the common property in question by declaring that “one might as well say that boys should be interdicted from playing cricket on the commonage” (id. at 46).

33 1867 N.L.R. 60 and 1909 N.L.R. 60.34 1869 N.L.R. 151-2. Connor C.J. had kept terms at King’s Inns, Dublin and the Inner Temple,

and practised at the Irish bar. See also 1853 Supreme Court 1/5/33 327.

1990 TRANSPLANTATION OF ENGLISH LAW 135

The result was that the Natal Court applied English law even in areas where it was not required to do so. First, the statutory introduction of English law was confined not only to the specific legal issues mentioned in the statutes. English rules had a ripple effect, and were applied to matters relating generally to issues legislated upon. In the law of evidence, the ordinance of 1845, introducing English law for certain issues, was taken as the cue for a widespread use of English law in all aspects of evidence.35 In interpreting the Winding-up Law of 1866, the judge claimed that the Court was “well warranted in making liberal use” of the provisions allowing reference to the English law, because the Law involved “large questions of a commercial nature”.36 And in Cassim and Co v. Shaik Mohedeen, the Court relied upon English case law in interpreting the Insolvency Law of 1887, even though “the English law does not coincide with the particular section of our Law”, but “never­theless it applies to the other portions” of the Law.37

Secondly, English authorities were used where English law and Roman-Dutch law were seen to correspond. On occasions, the correspondence of general princi­ples was revealed by comparison of Roman-Dutch texts and English case law. It was then claimed that the principles were the same because they were in the nature of “universal laws”, because the English law had originated in Roman law, or because the English law had “come round” to the Roman-Dutch law approach.38 The use of English law was, in these circumstances, a highly useful medium for “fleshing out” and elucidating Roman-Dutch law principles in a more modem environment. In Corporation of Pietermaritzburg v. Lister, Connor C.J. canvassed the Roman and Roman-Dutch principles on the right of individuals to establish public markets. He then referred to Blackstone who argued that “probably part of the English law on the subject was taken from Roman Law”. Connor C.J. therefore held that “English decisions may be, to some extent, at times applicable”, and so quoted a judgment from a case “much like the present before the Court of [Queen’s Bench] in the year 1872”.39 A similar modernisation of the general principles of Natal law occurred in such areas as suretyship and issues affecting syndicates and the Stock Exchange.40 However, judges who had a poor grasp of Roman-Dutch law were sometimes prone to assuming that English law and Roman-Dutch law were the same, as a justification for resorting to the more accessible English Law. One such judge prefaced his examination of the English Cox Criminal Cases on bigamy by saying that “we are not aware of any substantial difference between the English Statute Law and our own Common Law as regards the crime of bigamy. We think, therefore, that English decisions apply to the present case”.41

35 N.W. 24 and 30 December 1858 and Law 17 of 1859, preamble.36 1869 N.L.R. 95.37 1907 N.L.R. 630-1. See also 1891 N.L.R. 83 and 1895 N.L.R. 169-70.38 1852 Supreme Court 1/5/28 288, 1883 N.L.R. 156, 1884 N.L.R. 43, 1888 N.L.R. 46, 1889

N.L.R. 118,1890 N.L.R. 166 and 1891 N.L.R. 361.39 1889 N.L.R. 40-2.40 1870 N.L.R. 157-8,1889 N.L.R. 55 and 1902 N.L.R. 230.41 1902 N.L.R. 255. See also 1901 N.L.R. 266,1904 N.L.R. 341,1905 N.L.R. 414,1907 N.L.R.

136 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

Thirdly, English law was sometimes preferred, even in opposition to Roman- Dutch law, where it had become an established part of the law practised in Natal or other Roman-Dutch jurisdictions. In Msolo and Gwana v. Rex, the Chief Justice said that he had “no alternative” but to follow an early Cape judgment on the liability of an heir, even though in this judgment English law had prevailed over the Roman-Dutch law.42

Fourthly, guidance would be sought from English law where the Court consid­ered the Roman-Dutch authorities insufficiently conclusive. Certain judges were circumspect in this regard. One stated that “where there is conflict among the civilians and one of the conflicting doctrines is the doctrine of the Courts of Law in England, the doctrine of our law which coincides with that of England is to be followed rather than that which contradicts”.43 But other judges resorted to English law far more readily. In James, the judge adjudged a perjury issue according to English law. He claimed that “the definitions of crimes under the Roman-Dutch Law are brief and indefinite and to a certain extent vague, and we are without decided cases to govern us, so that it has been found necessary, in almost all criminal cases, to fall back upon the English definitions and the English procedure”.44

Fifthly, where the Court concluded that the Roman-Dutch law was completely silent on an issue, it might allow the case to be decided entirely according to English law. The expressed policy was that “when our law is silent, we have to fall back on the Roman Law, and when that also affords no assistance, we should be guided by a consideration of general principles laid down in the rulings of English judges in similar cases, so far as they are not in actual conflict with our law”.45 But certain judges were sometimes too ready to conclude that Roman-Dutch law was silent. In Molyneux v. Natal Land and Colonisation Co. Ltd, the judgment of the Natal bench, concerning a contract made during insanity, was taken on appeal to the Privy Council. De Villiers C.J. (Chief Justice of the Cape Colony and a member of the Privy Council), in upholding the appeal, rejected the contention of the Natal judges that Roman-Dutch law was silent on the question, and remarked that “the authorities expressly say that [a contract made by an insane person] is absolutely void”.46

Finally, on regular occasions the Court went ahead and applied English law without any justification or reference to Roman-Dutch law. This applied especially in the spheres of contract, procedure, pleading and specifically English issues ranging from horse-jumping to matters affecting the Anglican Church. Judges would be “glad” to refer to English precedents of “justice and common sense” and to the clear and precise definitions of the English texts.47 In Barker v. Townsend,

372-3 and 1908 N.L.R. 197-8.42 1906 N.L.R. 420. See also 1906 N.L.R. 130,1909 N.L.R. 168 and 1909 N.L.R. 179.43 1906 N.L.R. 75.44 1909 N.L.R. 170-1.45 1903 N.L.R. 265 and 1904 N.L.R. 226.46 1905 N.L.R. 431. See also 1906 N.L.R. 70-1.47 1870 N.L.R. 5 and 39, 1880 N.L.R. 147, 1886 N.L.R. 216, 1897 N.L.R. 12 and 1901 N.L.R.

1990 TRANSPLANTATION OF ENGLISH LAW 137

concerning liability in a building contract, the Chief Justice noted a recent Queen’s Bench case “on all fours with the present one”, and said that the Natal case “clearly comes within the rule laid down” in the English decision.48 This approach was particularly evident where the English law emanated from high authority. In Umbambeni, the judge said that the case, concerning a question of criminal proce­dure, was “concluded” by a Queen’s Bench judgment of Sir Henry Hawkins. He noted that he felt “bound by an opinion so clearly expressed by a judge who is looked upon as the Nestor of criminal lawyers”.49

However, the widespread influence of English law did not dislodge the founda­tion of Roman-Dutch law as practised in Natal. Judges who were skilled in Roman-Dutch law (such as Cloete J. and Connor C.J.) were ready to reject those aspects of English law which were inapplicable in Natal. They rejected archaic English forms and pleadings, and Cloete J. on one occasion referred to “the tautological, diffuse and objectionable practice of Westminster”.50 Connor C.J. distinguished English cases which related to different social conditions or which depended on English statutes which did not apply in Natal.51 Later judges, while being generally disposed towards English law, would at times expressly prefer the prevailing common or statute law of Natal. This applied even in areas of evidence, procedure and contract, where the trend towards English law was most evident.52 One judge noted how “much broader and more reasonable” the local law of separation and divorce was, in comparison with the English law.53 On another occasion he rejected the English law of “interest” as it differed “so widely from our own that I do not think we are justified in importing an interpretation which is foreign to our law and not in harmony with it”.54 In the last decade of the Supreme Court, this re-assertion of the local law, above the claims of English law, was strengthened by reference to the decisions of De Villiers C.J. of the Cape, Innes C.J. of the Transvaal, and other respected exponents of Roman-Dutch law as practised in South Africa.55

324.48 1903 N.L.R. 146-7.49 1895 N.L.R. 63. See also (March) 1882 N.L.R. 14-16,1890 N.L.R. 224, 1891 N.L.R. 62 and

80,1892 N.L.R. 62,1903 N.L.R. 183 and 1905 N.L.R. 4.50 N.W. 28 November 1851. See also 1879 N.L.R. 26 and 1880 N.L.R. 110.51 1883 N.L.R. 56,1888 N.L.R. 66,108 and 265, and 1889 N.L.R. 58.52 1896 N.L.R. 124,1898 N.L.R. 116 and 185,1899 N.L.R. 51,58 and 141-2,1904 N.L.R. 49,98

and 346.53 1902 N.L.R. 376.54 1901 N.L.R. 415.55 1905 N.L.R. 614, 1907 N.L.R. 261 and 1909 N.L.R. 263. Note, an extension of the influence

of English law can be seen in the role played by American legal sources. See Spiller, The Role of American Authorities in the Early Development of South African Law, COMPARATIVE AND International Law Jnl. of Southern Africa 206-214 (1985).

138 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

Operation of Trial by Jury in Criminal Cases

Whereas English law played a generally constructive role in the develop­ment of the law and the conduct of civil disputes, the hallowed institution of trial by jury proved to be ill-adapted to the Natal context. There was the

general problem, which bedevilled civil and criminal cases alike, that Natal’s sparse and unsophisticated colonial community tended to produce jurors who were inept, grudging and narrowly prejudiced.56 But it was in criminal cases that the unfortunate effects of the jury system were most marked. Whereas in civil cases litigants and jurors all tended to be white, English-speaking colonials, and trial by jury was only a rarely-used option, serious criminal trials regularly involved black accused and in every criminal trial the guilt or innocence of the accused had to be established by a jury.57

Those eligible to serve as jurors were males between the ages of twenty-one and sixty years, possessing or renting immovable property of a certain value within Natal.58 Laws of 1871 and 1883 excluded unexempted Africans and Indian im­migrants without the franchise.5* The effect of these rules was to establish the English principle of trial by the (wealthier, more established) peers of their neighbourhood, for the white settlers of Natal. Not all of them relished this honour, particularly when it came to serving on juries. There were repeated occurrences of absentee jurors incurring fines, and, amongst those who appeared, their excuses were said to rival those of the people invited to the Biblical marriage feast.60 A heavy burden fell upon the sparse population of Natal’s outlying areas, and amongst town-dwellers there was the much-heard complaint that the “humble artisan” was more regularly summoned than the “prominent businessman”.61 For the blacks of Natal, the situation was entirely different. No black was found sufficiently qualified to be placed in the jury box: in 1892, The Natal Mercury reported that a “cullud gentleman” had been summoned but was challenged, and the newspaper asserted that he had “no earthly chance of being utilised”.62 The result was that blacks were invariably tried by the racially different, dominant class of their neighbourhood. This was problematic in that, as Connor J. stated, Natal juries did not understand “questions of Native language, customs, motives and feelings”.63 Furthermore,

56 Spiller, supra note 1, at 78-81.57 Rule 34 of Ordinance 32 of 1846 (Cape).58 Ordinance 6 of 1852 (Natal) and Law 10 of 1871. The value of property possessed was £50

until 1872, thereafter £100; and the annual value of property leased was £10 until 1872, thereafter £24. Certain classes of persons were excluded, for example, government and legal officials, advocates and attorneys, doctors, and those convicted of treason.

59 Law 10 of 1871, s.4 and Law 14 of 1883, s.l.60 N.M. 22 April 1873 and 24 August 1897.61 Times of Natal, 23 April 1873 and N.W. 15 August 1896. To try to motivate jurors to better

efforts, the Government increased jurors* expense allowances (Law 4 of 1892 and Law 15 of

62 N.M. 15 October 1892.63 Times of Natal, 29 June 1872.

1990 TRANSPLANTATION OF ENGLISH LAW 139

white jurors resented having their time taken up with African and Indian cases, and so they sometimes did not address their minds properly even to cases where their verdict carried the death sentence.64 And, as will be indicated below, there were cases of prejudiced verdicts where blacks were charged for crimes against whites and vice versa.65

Persons tried before a jury were entitled to the services of an advocate, and there were cases where an undefended prisoner demanded this and the Court ordered an advocate to act for him.66 Despite this, a large proportion of accused persons, especially blacks, were undefended.67 This worked to the disadvantage of blacks in particular, as the overwhelming majority of them did not understand the alien procedures conducted in an unfamiliar tongue. Misunderstandings emerged in pleading by blacks; the privilege of challenging jurors was almost invariably beyond their comprehension; and they had no effective means of urging factors in defence or in mitigation of sentence.68

After the evidence, arguments and addresses had been presented at the trial, the judge would “sum up the evidence to the jury”.69 Here the judge was meant to outline the salient facts of the case in a clear and dispassionate manner, and to present the legal principles relating to these facts. While the Natal judges claimed to observe the jury’s control over interpretation of facts, they often charged juries for or against prisoners and outlined their views on factual issues.70

The jury was then required to deliberate and give its verdict. Usually the jurors would retire, and they could take several hours for their deliberations and even then not reach a conclusive decision.71 The jury did not have to be unanimous in its verdict: prior to 1872, a majority of two-thirds was required, and thereafter not less than seven had to concur.72 Where the Court saw that there was no likelihood of the jury reaching a verdict by the required majority, it would discharge the jury, possibly grant bail to the accused, and set the matter down for re-trial at a future date.73

In the large majority of cases, juries returned verdicts of guilty.74 A complex range of factors influenced juries in arriving at their verdicts. These obviously included the facts and circumstances of each case, and the judge’s address (although there were regular reports of juries giving verdicts against the summing-up of the

64 N.M, 6 August 1891 and N.W. 16 September 1896.65 See e.g. 1859 Supreme Court 1/1/11: Botha.66 See e.g. N.W. 23 January 1866.67 Parker, Administration of Criminal Justice by the Durban Circuit Court (1878-9) 15 (LL.B.

thesis University of Natal 1985).68 N.M. 14 December 1867 and 15 April 1868.69 Rule 37.70 See e.g. N.W. 26 June 1863 and 22 February 1870, and 1883 N.L.R. 139.71 See e.g. N.M. 13 December 1900 and 8 April 1902.72 Law 10 of 1871 s.36 and Act 39 of 1896 s.40.73 1 867 N.L.R. 76 and N.W. 22 November 1872.74 Parker, supra note 67, at 20.

140 AUSTRALIAN JOURNAL OF LA W AND SOCIETY VOL 6

judge).75 The characters of the prisoner and the complainant could also play a role. In a trial held in Ladysmith, the jury was persuaded by the view of one of their members, an elder of the Dutch Reformed Church, that the accused was guilty of arson because he was drunk, because “when a man gets drunk the devil enters into him and so causes him to commit all kinds of evil”.76 Racial considerations also influenced jury verdicts. The Natal Herald reflected the views of many Natal colonists, in commenting on the performance of Durban jurors:

the civilised white man feels that the same law should not be meted out to him as to the black ... It is all very fine for people in England, who know not the contact of an over-abounding black population all around, who are not fretted with their stupidity, exasperated by their sensuality, or annoyed by their presumption and impertinence, to talk of equal laws to white and black, but see what is the consequence: the legislature may pass laws, but juries will rather forswear themselves than enforce them.77

The result of this attitude was that, while blacks were often convicted for serious offences against whites, the converse did not apply.78 A classic example was the case of Deane, where the accused was generally acknowledged to have killed his black servant, but the jury pronounced a verdict of not guilty. The Natal Witness presented the generally-held view of the trial as follows:

An indescribable feeling prevailed, that whatever the evidence might be, there would be no conviction. There was a sort of balancing of the account, between the value of a nigger’s life, and that of a white man. It might be a pity that a native had been shot, but it did not matter much; not so much as if a man had lost a favourite dog by accident. More than once it was remarked that Deaneought to have shot down all the b....y Kafirs, and then there would have beennone to give evidence against him. Those who held these views were believed to be quite eligible to take their seats on the jury79

As a result of racially-prejudiced verdicts such as the Deane decision, Natal received the comment that “there is certainly not a part of British South Africa where the Native is treated with more injustice, or with less sense of responsi­bility”.80

In a small number of cases, the jury pronounced a verdict of guilty, with a recommendation to mercy. Most of these recommendations were for whites, and they were made for a variety of reasons: lack of legal assistance, first prosecution for the offence, and the age and character of the prisoner.81 In the minority of cases where blacks were awarded this recommendation, reasons cited included witchcraft

75 N.W. 22 February 1870 and N.M. 13 October 1898.76 Natal Herald (N.H.), 5 November 1868.77 N.H. 26 November 1868.78 N.W. 23 February 1877. See N.M. 15 and 17 February 1877 and N.W. 26 August 1896.79 N.W. 22 October 1871. See Spiller, Sketch in a Colonial Supreme Court, SOUTH AFRICAN L.

Jnl. 542-550 (1981).80 1907 N.L.R. 133.81 Natal Colonist (N.C.), 27 February 1861 and N.M. 21 October 1875.

1990 TRANSPLANTATION OF ENGLISH LAW 141

and “the practice of arming Kafir constables with dangerous weapons”.82 The recommendation to mercy could be overruled by the presiding judge, but otherwise it could have a marked effect on the prisoner’s sentence.83

Overall, the performance of juries in colonial Natal was not a satisfactory one. There were regular instances of judges differing entirely from verdicts given.84 Gallwey C J. readily expressed his scepticism of unwarranted acquittals with comments such as “you [the acquitted] confessed yourself a thief, the jury have convicted you of being a liar”.85 There were clear examples of incompe­tence: a juryman was observed to be sitting on a case “drunk, and seemingly only capable of nodding assent to whatever was said”; and another admitted that he had not heard “a single word of what was said in court”, and gave the verdict he was told to give.86 And there were problems inherent in Natal’s own environment. One commentator mentioned the “absurdity” of locking up juries of Dutchmen and Englishmen without an interpreter and expecting a coherent verdict.87 The smallness of Natal’s colonial community meant that prejudice could easily “take a hold on the public mind”, and feeling could “run so high as to becloud the judgment”.88 And the recurrence of racially-inspired verdicts caused fair-minded persons to question if “the palladium of English rights” was becoming a sham and a travesty of justice.89

Yet, apart from legislation which strengthened the summary jurisdiction of magistrates over lesser offences,90 there was no move towards replacing trial by jury for serious offences with another form of trial. It was seen by some as the “Englishman’s school of law”: Connor C.J. spoke of the practice and experience the jury provided “in forming men who are good citizens for the well-being of a community”.91 Judges valued the “sound views” of “men accustomed to form opinions on ordinary matters in everyday life”.92 Colonists echoed this view, and suggested that the opinion of nine jurors was “preferable to the chances of defective judgment on the part of one judge, whose liver might happen to be out of order, or whose ‘judicial vision’ might chance to be obscured or distorted by some momentary derangement”.93 Liberals noted, albeit with declining faith, the jury’s value as the protector of individual liberty, that stood “between the unjust and partial judge and the injured suitor, or between the public and the individual; or between the

82 N.W. 22 April and 23 September 1873.83 N.M. 7 December 1888 and 6 June 1903.84 De Natalier 23 June 1846, Times of Natal, 23 October 1869, and N.M. 20 December 1878.85 N.M. 6 December 1890. See also N.W. 23 December 1897.86 Times of Natal, 21 November 1866 and N.M. 19 June 1877.87 Times of Natal, 30 October 1867.88 N.W. 1 March 1861.89 N.W. 1 and 18 September 1868 and 1907 N.L.R. 132.90 Laws 22 of 1889 and 25 of 1890. See 1894 N.L.R. 153-4.91 N.M. 19 October 1883 and 13 January 1860.92 N.W. 26 February 1864 and N.M. 13 October 1898.93 N.M. 12 July 1886 and N.W. 12 August 1880.

142 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6

government and the subject”.94 There were occasional precedents to support this view: in particular, in De Lange, a Dutch jury courageously returned a verdict of guilty against a fellow-colonist, for the murder of his black employee.95 At the same time, the racialistic colonists of Natal saw the jury as a useful tool against the blacks and their liberal white allies. The Natal Herald, in supporting certain acquittals of whites for assaults on blacks, noted how “very desirable” the jury’s intervention was “where the public feeling runs very strongly against [what] may be felt to be unreasonable or oppressive, or which is in any way opposed to the general feelings of the community”.96 By the end of the colonial era, the strongest factor supporting the retention of the jury system was the force of tradition. Local colonists, while acknowledging its clear defects, clung to it as a great and “time-honoured British institution, not to be lightly cast aside”.97

Conclusion

The transplantation of English legal institutions into the Colony of Natal proved to be a highly complex process in view of the established existence of Roman-Dutch law and the multi-faceted nature of the local population. While

Roman-Dutch law remained the common law of the colonial courts, English legal sources played a decisive influence in supplementing and modernising the law and shaping it in new directions. English law was, after all, the legal system in which Natal colonial judges and lawyers felt most comfortable: if Roman- Dutch law was the legal textbook, English law was the mother tongue. But it should be added that, alongside the Roman-Dutch/English amalgam, emerged an increasing body of local law in the form of statutes and precedents of Natal and other South African jurisdictions. The result was a hybrid system of law, signifying the growth of a new, distinctive identity: this was “a species half English, half Dutch,... a production of the African soil”.98

Certain of the English institutions transplanted into Natal proved to be entirely inappropriate in the local context. The importation of the criminal jury system into Natal, with its heterogeneous population and narrow selection of jurymen, was a telling example of the unthinking assumptions which seemed to underlie much colonial endeavour. Under any circumstances the concept of the jury is at risk from the prejudices and personal views of its untrained members. This inherent flaw was greatly intensified in a colonial society which felt itself under threat from the black populace, and which was prepared to resort to any means to ensure its own superiority. It was only in 1969 that trial by jury in criminal cases was abolished in

94 N.W. 21 August 1868.95 N.C. 27 February 1861. See also N.M. 16 June 1890 and 9 July 1908.96 N.H. 26 November 1868. See also N.W. 26 and 28 September 1871.97 N.M. 16 August 1898 and 5 June 1901.98 Natal Patriot, 19 November 1847.

1990 TRANSPLANTATION OF ENGLISH LAW 143

South Africa, although successive statutory amendments drastically reduced its scope of operation many years before then."

99 See Acts 27 of 1914.31 of 1917.46 of 1935. 21 of 1954 and 34 of 1969.