SciELO - Scientific Electronic Library Online

 
vol.19 issue1A conspectus of South African legal periodicals: past to presentOld Babylonian family division agreement from a deceased estate - analysis of its practical and theoretical mechanisms author indexsubject indexarticles search
Home Pagealphabetic serial listing  

Services on Demand

Article

Indicators

Related links

  • On index processCited by Google
  • On index processSimilars in Google

Share


Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Fundamina (Pretoria) vol.19 n.1 Pretoria Jan. 2013

 

An introduction to South African law reports and reporters, 1828 to 1910

 

 

JP van Niekerk

Professor, Department of Mercantile Law, School of Law, University of South Africa

 

 


ABSTRACT

As a source of law, judicial decisions stand central in any legal system that applies the doctrine of precedents. South African law is such a system. This article traces the publication of the pre-Union decisions of the various courts functioning in the region. The published reports were unofficial and the result of private initiatives. Some biographical information is also provided of those who compiled these reports, South Africa's early law reporters.


 

 

1 Background

Judicial decisions, as any first year law student knows, are one of the fundamental sources of our law. Yet court decisions can only effectively be a source of law if they are accessible, if not to the public at large, then at least to the members of the legal profession.

Without accessible records of court decisions, and, of course, an established hierarchy of courts, the doctrine of stare decisis or judicial precedent, even in the somewhat watered down and flexible version that applies in South African law,1 would not function properly, if it did so at all.2 The main advantages of the doctrine - legal certainty, predictability of the outcome of litigation, the protection of vested rights, and uniformity and equality in the application of legal principles - would consequently be lost.

How, then, are judicial decisions best made accessible?

They are disseminated by publication. And historically the primary form of publication has been the law report, in which are collected the reasoned judicial decisions of the various courts.3 So, it has been said, the law is "found written and recorded in the law reports ... [and the] law reports ... are the public record" of the use and practice of legal principles, "having recorded the decisions, actions and opinions of those most extensively involved on a daily basis with all segments of it".4 Today law reports have become an indispensable element in the dissemination of our case law.5

Law reports are, of course, well known in English law, and their format in that system has been largely adopted in South Africa as it has in other legal systems influenced by the common law.6

The practice of law reporting in English law dates from at least the thirteenth century,7 when the reports were mainly tools for the training of lawyers. At first in the form of manuscript collections of decisions taken down by apprentice lawyers or scribes, known as Year Books,8 the reports later, from the sixteenth century onwards, increasingly took the form of private collections of reports by individual law reporters published on their own initiative. These nominate or named reports, currently taken up in the massive 178-volume series entitled English Reports9 and also available online, display the rudiments of the format (headnotes, summarised arguments) with which we are familiar. However, these reports varied in quality and reliability and often caused problems of legal certainty.10

After years of agitation, a single set of Law Reports, under the auspices of the independent Incorporated Council of Law Reporting representing the legal profession, was published from 1865 onwards. In this way law reporting became "authorised", and a uniform standard came to be established, with professional law reporters, input from the judiciary and regular publication greatly enhancing the standard and authority of the reports themselves.

It has been argued that it was only upon the establishment of a hierarchy of English courts and the formalisation of law reporting in the latter part of the nineteenth century, that the modern doctrine of precedent could develop.11

However, let us not forget that reports of judicial decisions were known in our Roman-Dutch common law, too - there are several collections of such privately produced "reports",12 although not in the form we know today. And that indeed goes for civil law generally.13 But, of course, the value of such reports was and is quite different to its value in the largely uncodified common-law systems: the role of precedent is less pronounced, the judgments less analytical and reasoned, and law reporting is therefore of a lesser or at least a different import and value.14

Nevertheless, although ours is a mixed system, the "English style of law reporting was, indeed, so strong that it even influenced and eventually converted judicial writing in such strongholds of Civil Law as Scotland, Dutch South Africa, and Quebec".15 And, it may be surmised, one of the principal reasons for this was that the judges initially appointed to the various local benches and the lawyers practising before them were with very few exceptions trained in England.16

 

2 Pre-Union South African law reports and law reporters

Prior to 1910 and the unification of the various provinces and independent territories in the Union of South Africa, there were several independent systems of superior courts: those in the Cape Colony (being the Cape Supreme Court, the Eastern Districts Court and the High Court of Griqualand), in Natal, in the Orange Free State, and in the South African Republic or Transvaal.

Each of these courts was served by a series or several series of law reports. These were generally the result of private initiative and not officially sanctioned by either the relevant government or the particular court. They were not specialised, but covered decisions on all areas of the law. Needless to say, there was no uniformity in either the method or the standard of reporting,17 which was a matter of some concern.18 Also, the reports were not always continuous, so that there were overlapping reports of decisions handed down during certain periods and no coverage during other periods.

In short, the law reporting scene pre-Union consists of a patchwork of reports of varying quality, presenting a navigational nightmare for those unfamiliar with general and legal history or local geography.

In this article I shall attempt to provide the uninitiated with some further guidance to the various law reports.19 I shall do so by region, that is by province or territory, in no particular order. Then I shall list the reports under each relevant court chronologically, according to years covered. It makes little sense to list the reports chronologically according to the date of publication as not all were published contemporaneously and as some went through reprints or were translated subsequently.20 By way of illustration, I have included reproductions of the title pages of some of these reports.21

However, the article also serves another purpose: to cast some light on the law reporters themselves.22 Our law reporters, unlike those in other jurisdictions, have for the most part not received the recognition they surely deserve for their endeavours in that capacity.

I shall therefore add to the lists of the various reports the names and some biographical detail of the reporters responsible for compiling and editing them. In this regard, too, I have had to be succinct, focusing on the South African legal careers of particular reporters and only adding such further detail as might make for interesting reading.23

As will appear from the details given, most of the law reporters were, when they took up law reporting, young advocates, waiting for work but wishing to keep busy and to make themselves known. A few of them left little or no trace of their subsequent legal careers, died young, or became law teachers. However, as may be expected of lawyers showing such enterprise, by far the majority went on to achieve greater heights,24 becoming leading advocates of their time, or being appointed to the Bench. Of these a few went even further, becoming a judge president, or judge of appeal, or even chief justice. And some even went into politics, becoming a minister of justice or, alas, a prime minister.

As this article covers only the period up to 1910, I must point out that many of the reporters subsequently continued law reporting, a continuity not readily apparent from my discourse. And not surprisingly, either, given the period with which I am concerned here, a great many of them were English-trained lawyers,25 and therefore no doubt familiar with the English method of law reporting.

 

3 The Cape Supreme Court

The Cape Supreme Court was established in 1828, taking the place of the old Raad van Justitie. It continued in existence until 1910, when it became the Cape Provincial Division of the Supreme Court of South Africa.

3 1 Menzies' Reports

Menzies' Reports26 cover the decisions of the various Cape courts, including the Cape Supreme Court, from 1828 to 1849.

 

 

They were edited from the manuscripts of Judge William Menzies (1795-1850) who served on the Cape Bench from 1828 to 185027 and who during his tenure prepared his compilation of judgments for possible publication. In that format they were often referred to in his time by the Court as well as in argument before it. His wish that they be published after his death remained unfulfilled for many years.

After an early attempt,28 it was to be almost twenty years after Menzies' death before his manuscript reports were eventually published in full, in three volumes, in 1868, 1869, and 1871 respectively,29 as Cases Decided in the Supreme Court of the Cape of Good Hope, as reported by the Late Hon William Menzies, Esquire. The introductory note in volume 1 explains that the reports are in accordance with the plan and system devised by Judge Menzies. Decisions are therefore reported - sometimes so briefly that they do not amount to anything more than a cryptic statement of what was decided30 not chronologically, but according to subject matter.

 

 

The editorial task was undertaken by James Buchanan,31 later also the compiler of his own reports. Given the method of their arrangement, indexes to the Menzies 'Reports soon appeared. The first, Alphabetical Index and Table of Cases to Menzies' Reports of Cases Decided in the Supreme Court of the Cape of Good Hope, by CW Hutton, a notary public from Bedford in the Eastern Cape and later Treasurer of the Cape Colony, appeared in 1869, thus even before the full publication of all the Buchanan editions. Buchanan's own index, entitled Index and Digest of Cases Decided in the Supreme Court of the Cape of Good Hope, reported by the late Hon William Menzies, Esquire, appeared in three volumes in 1877.

3 2 Searle's Reports

 

 

Searle's Reports32 contain decisions of the Cape Supreme Court from 1850 to 1867.

They were published between 1884 and 189433 in five volumes: volume 1 (18501852); volume 2 (1853-1856); volume 3 (1857-1860); volume 4 (1861-1863); and volume 5 (1864-1867).

The reports were compiled by MW Searle34 and appeared under the title Cases Decided in the Supreme Court of the Cape of Good Hope, during the years ... . In the preface to the first volume, Searle explained that he had compiled the decisions given more than thirty years earlier from court records, reports in contemporary newspapers, and the notebooks of Judge John Wylde, Chief Justice of the Cape Supreme Court 1828 to 1855.35

Malcolm William Searle (1855-1926) was a member of the Cape Bar from 1882 to 1910 and then a Judge of the Cape Provincial Division from 1910 to 1922, and Judge President of that court from 1922 to 1926, when he died tragically in a railway accident.36

At the time when he prepared his Reports, Searle was a "talented young Colonist", practising as a junior advocate but receiving very few briefs.37 At the same time he was also involved, with a colleague, JA Joubert, in translating books 7 and 16 of Voet's Commentarius ad Pandectas, which appeared in 1887. The Reports were received without great enthusiasm, and were described as a "compilation" rather than as true reports, as incomplete (no doubt because of gaps in the source material), and as containing opinionated headnotes.38

Subsequently, though, Searle's law-reporting endeavours were acknowledged as involving "an extremely difficult task" given the obscure sources on which he had to rely, and as "a task which only persistence and patience could have accomplished".39 Searle continued his involvement with the law reports by producing in 1885 a Digest of Reported Cases in the Courts of the Cape of Good Hope, from 1850. Covering decisions from 1850 to 1883, the Digest was a continuation, albeit in less elaborate form, of Menzies'Index and Digest. It was periodically updated in subsequent years,40 and these volumes were until shortly before Union the only available source through which the precedents of all the Cape courts could be traced.

3 3 Watermeyer's Reports

 

 </