oa Fundamina : A Journal of Legal History - The superior courts and legal pluralism in the last decade of the nineteenth century



By the middle of the nineteenth century the various independent and autonomous territories in South Africa began regulating the application of African customary law, thus introducing State-law pluralism. However, recognition of that law invariably excluded some of its core institutions which were regarded, at least by Western or European standards, as uncivilised.

Initially, the superior courts did not have original jurisdiction in matters involving African customary law. In the Cape Colony the Supreme Court merely had appellate jurisdiction in civil appeals from the magistrate's courts in the Transkei, the latter courts having received original jurisdiction in cases involving customary law from the 1880s when the Transkei was annexed to the Cape. In Natal, the Supreme Court took over the jurisdiction of the special Native High Court only in 1896. Ironically, the concern of the ordinary courts that they did not have sufficient knowledge of African customary law, was met with the dismissive response of Harry Escombe, Attorney General of Natal, that "Native law can be judged without any knowledge of Native laws and customs".
During this period in South African legal history, the application of African customary law and the problems that resulted from the recognition of a legal system foreign to those who were in charge of the administration of justice at all levels, were secondary in importance to another, more pressing, issue which would continue after Union (1910) and late into the twentieth century: how to accommodate English law in the (Roman-Dutch) common law.


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