The Theory of the Judicial Practice of South Africa, Vol. 1
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| Hersteller: | Forgotten Books (Zyl, G. B. Van) |
| Stand: | 2015-08-04 03:50:33 |
Produktbeschreibung
Excerpt from The Theory of the Judicial Practice of South Africa, Vol. 1: With Suitable and Copious Practical Forms Subjoined to and Illustrating the Practice of the Several Subjects Treated 1. We have the Roman Dutch Law, as it was in Holland at the time of the Capitulation of this Colony to England in 1806, in force here, subject to changes made by us since, or to modifications introduced by local customs. In the case of Seaville vs. Colley (9 J., 39), De Villiers, C. J., said "... They" (the body of laws introduced from Holland before 1806) "are not all to be found in any code or authentic document, to which easy reference can be made, and it is often only through a judicial decision upon a disputed question of law that the Legislature becomes aware of the existence of a particular law. The conclusion at which I have arrived as to the obligatory nature of the body of laws in force in this Colony at tho date of the British Occupation in 1806 may be briefly stated. The presumption is that every one of these laws, if not repealed by the local Legislature, is still in force. This presumption will not, however, prevail in regard to any rule of law which is inconsistent with South African usages. The best proof of such usage is furnished by unoverruled judicial decisions. In the absence of such decisions, the Court may take judicial notice of any general custom, which is not only well established but reasonable in itself. Any Dutch law, which is inconsistent with such well-established and reasonable custom, and has not, although relating to matters of frequent occurrence, been distinctly recognized and acted upon by the Supreme Court, may fairly be held to have been abrogated by disuse... We have made comparatively few changes in the general principles of tho law, affecting Judicial Practice, and therefore the law of Holland on this subject still serves as our guide, not only in this Colony, but also in the neighbouring Colonies and Republics, and indeed throughout South Africa. 2. Though many excellent works on the Theory of the Judicial Practice have been published in Holland in the 16th, 17th and 18th centuries, there is not one of them which, when translated, could be used as a whole to advantage for present-day Colonial purposes; because, while some writers treat some subjects in full, they pass over other subjects by a very scanty reference, or at any rate with insufficient treatment; while again many subjects treated of by some of these writers have become obsolete, even in Holland, or were purely of local application. We have consequently to gather our information disjointedly from several writers. Having regard therefore to our local changes, either made expressly, or adopted in practice, which adoption again in some cases can be traced to the English law and practice, and to the decisions and practice from time to time of the Supreme Court on certain points; and also to the fact that no book on the subject has ever appeared in the English language, as far as I have been able to ascertain, though there are many Colonies and Countries where the Roman Dutch Law is practised, the time seems to have arrived for the compilation of a work, which shall present in an easily accessible form points of tho most constant practical recurrence in the profession, so as to facilitate the enquiry of the practitioner. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com
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