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SciELO - Scientific Electronic Library Online

Article References

MALHERBE, Vertrees C.. Family law and 'the great moral public interests' in Victorian Cape Town, c.1850-1902. Kronos (Bellville) [online]. 2010, vol.36, n.1, pp. 7-27. ISSN 0259-0190.

    1 G. Groenewald, '"A Mother Makes No Bastard": Family Law, Sexual Relations and Illegitimacy in Dutch Colonial Cape Town, c. 1652-1795', African Historical Review 39(2), Nov. 2007, 58-90; [ Links ]

    V.C. Malherbe, 'In Onegt Verwekt: Law, Custom and Illegitimacy in Cape Town, 1800-1840', Journal of Southern African Studies 31(1), 2005, 163-85; [ Links ]

    V.C. Malherbe, 'Born into Bastardy: The Out-of-Wedlock Child in Early Victorian Cape Town', Journal of Family History 32(1), 2007,21-44. [ Links ]


    2 N. Worden, E. van Heyningen and V. Bickford-Smith, Cape Town: The Making of a City. An Illustrated Social History (Cape Town, 1998), 216-27. [ Links ]


    3 J. van der Linden, Institutes of the Laws of Holland (London, 1828), 353. [ Links ]


    4 That campaign was compromised by irreconcilables respecting the law, as it pertained to slavery, and Christian precepts as they had been interpreted, see R. C.-H. Shell, Children of Bondage: A Social History of the Slave Society at the Cape of Good Hope, 1652-1838 (Johannesburg, 1994), 330-50. [ Links ]


    6 (Cape Times Ltd., 1951), 215-28. The ordinance was later extended to Cape Town. 6 V.C. Malherbe, 'Illegitimacy and Family Formation in Colonial Cape Town, to c. 1850', Journal of Social History, 39(4) (Summer 2006), 1156. [ Links ]


    7 Malherbe, 'In Onegt Verwekt', 175; V.C. Malherbe, 'Christian-Muslim Marriage and Cohabitation: An Aspect of Identity and Family Formation in Nineteenth-Century Cape Town', The Journal of Imperial and Commonwealth History, 36(1), March 2008, 6-7. [ Links ]


    9 'English law became more important simply because English ideas and institutions came to dominate life in the colony.' (J. Meierhenrich, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652-2000 (Cambridge University Press, 2008), 93-4). [ Links ]


    10 E. Fagan, 'Roman-Dutch Law in its South African Historical Context' in R. Zimmerman and D. Visser, eds, Southern Cross, Civil Law and Common Law in South Africa (Cape Town, 1996), 33-64; [ Links ]

    M. Chanock, 'Writing South African Legal History: A Prospectus', Journal of African History, 30, 1989, 269-70, 278. [ Links ]


    11 M.W. Searle, ed, Cases Decided in the Supreme Court of the Cape of Good Hope, 5 vols (Cape Town, 1884), 1, 229. [ Links ]


    12 Worden et al, Cape Town, 171-75, 177. [ Links ]


    13 J. Buchanan, ed, Cases Decided in the Supreme Court of the Cape of Good Hope as reported by the Hon. William Menzies Esq. [hereafter Menzies Reports], 3 vols (Cape Town, 1870-1903), 1, 143; [ Links ]

    Searle, ed, Cases Decided in the Supreme Court, 3, 393. [ Links ]


    14 H.R. Hahlo, 'The Law of Concubinage', South African Law Journal, 89, 1972, 330. [ Links ]


    15 U. Vogel, 'Whose Property? The Double Standard of Adultery in Nineteenth-century Law' in C. Smart, ed, Regulating Womanhood, Historical Essays on Marriage, Motherhood and Sexuality (London & New York, 1992), [ Links ]

    160; M.L. Shanley, Feminism, Marriage, and the Law in Victorian England, 1850-1895 (London, 1989), 9, 174-6, 182-3; [ Links ]

    B. Clark, 'History of the Roman-Dutch Law of Marriage from a Socio-Economic Perspective' in D.P. Visser, ed, Essays on the History of Law (Cape Town, 1989), n 162, 179 & n 184, 181; [ Links ]

    H.R. Hahlo, The South African Law of Husband and Wife, 5th ed (Cape Town, 1985), 12, n 75. [ Links ]


    16 Buchanan, ed, Menzies Reports, 1, 146; [ Links ]

    A.F.S. Maasdorp, C.A. Beck and O.H. Hoexter, eds, The Institutes of South African Law, being a Compendium of the Common Law, Decided Cases, and Statute Law of the Union of South Africa, 4 vols (Cape Town & Johannesburg, 1929), 1, 88-103. [ Links ]


    17 'A.J.F', 'Malicious Desertion' in R.B. Howes and T.G. Duncan, eds, South African Law Journal together with Index and Table of Cases (Cape Town, 1924), 41, 38-44; [ Links ]

    Clark, 'Roman-Dutch Law of Marriage', 180-1. [ Links ]


    18 Searle, ed, Cases Decided in the Supreme Court, 2, 14. [ Links ]


    19 J.M. Masson, R. Bailey-Harris & R.J. Probert, eds, Cretney Principles of Family Law, 8th edition (London: Sweet & Maxwell, 2008), 282; [ Links ]

    M. Freeman, Understanding Family Law (London, 2007), 113, 324. [ Links ]


    21 Searle, ed, Cases Decided in the Supreme Court, 1, 227-8; [ Links ]


    22 Searle, ed, Cases Decided in the Supreme Court, 1, 232. [ Links ]


    24 C.H. van Zyl, 'The Theory of the Judicial Practice: Divorce', in W.H.S. Bell, ed, The Cape Law Journal (Grahamstown, 1893), 7, 216. [ Links ]


    25 Farmer v F., Searle, ed, Cases Decided in the Supreme Court, 1, 232-4. [ Links ]


    28 Heathershaw v H., ibid., 5, 36; C.G. Hall, ed, 4 vols, Maasdorp's Institutes of South African Law, 9th edition, 1. The Law of Persons, 73. [ Links ]


    29 J.D. Petersen, 'Divorce Law Reform' in E. Kahn, ed, South African Law Journal (Cape Town, 1971), 88, 480. [ Links ]


    30 The Order-in-Council of 1838 had terminated forced marriage for breach of promise - already abandoned at the Cape in practice, H.R. Hahlo, The South African Law of Husband and Wife, 2nd ed (Cape Town: Juta & Co. Limited, 1963), 46-7, 562; [ Links ]

    K. McKenzie, 'Wollstonecraft's Models?: Female Honour and Sexuality in Middle-Class Settler Cape Town, 1800-1854', Kronos: Journal of Cape History, 23, 1996, 57-74. [ Links ]


    34 Bell, ed, Cape Law Journal, 3, 121-3. [ Links ]


    36 Queen v Lodewyk, 24 June 1884, J. Buchanan and E.J. Buchanan, eds, Cases Decided in the Court of Appeal of the Cape of Good Hope ... 1880 to 1884 (Johannesburg, 1973), 365-7. The Cape's Court of Appeal had a brief existence (1879-86), H. Corder, 'The Judicial Branch of Government: An Historical Overview', in Visser, ed, Essays on the History of Law, 62. [ Links ]


    37 Soetje Magmoet v Registrar of Deeds, 19 July 1887, H. Juta, ed, Reports of Cases Decided in the Supreme Court of the Cape of Good Hope (Johannesburg, 1973), 5, 179-80. [ Links ]


    39 Freeman, Understanding Family Law, 47; Hahlo, 'Law of Concubinage', South African Law Journal, 89, 321. [ Links ]


    40 Kramer v Findlay's Executors, E.J. Buchanan, ed, Cases Decided in the Supreme Court of the Cape of Good Hope during the Year 1878 (Johannesburg, 1973), 51-2. [ Links ]


    41 Legal adoption came with the Act of 1923. Prior to that, 'adoption' was a form of fostering. For an exception regarding the exclusion of bastards, see E. Bradlow, '"The Oldest Charitable Society in South Africa": One Hundred Years and More of the Ladies' Benevolent Society at the Cape of Good Hope', South African Historical Journal 25, 1991, 86. [ Links ]


    44 G. Richings, 'Charles Bell's Divorce: The Legal Aftermath', Quarterly Bulletin of the National Library of South Africa, 54(3), 2000, 110; [ Links ]

    P. Simons, Old Mutual, 1845-1995 (Cape Town, 1995), 29. [ Links ]


    48 For the Act's terms, see E.B. van Heyningen, 'The Social Evil in the Cape Colony 1868-1902: Prostitution and the Contagious Diseases Acts', Journal of Southern African Studies, 10(2), 1984, 171 and passim. [ Links ]


    49 S. Solomon, The Contagious Diseases Act: its operation at the Cape of Good Hope: four letters to the editors of the Cape Argus (Cape Town, 1870), 18, 19, 39. [ Links ]


    51 H.J. Self, Prostitution, Women and Misuse of the Law: The Fallen Daughters of Eve (London & Portland, Or., 2003), 25, 41, 53. [ Links ]


    53 V. Bickford-Smith, E. van Heyningen and N. Worden, Cape Town in the Twentieth Century: An Illustrated Social History (Cape Town, 1999), 25; [ Links ]


    55 E. Bradlow, 'Women at the Cape in the Mid-19th Century', South African Historical Journal, 19, 1987, 51-75; [ Links ]

    Van Heyningen, 'The Social Evil', 175-6; Worden, van Heyningen and Bickford-Smith, Cape Town, 202-4, 237. [ Links ]


    61 Van Zyl, 'Divorce', Cape Law Journal, 7, 206. [ Links ]


    64 M. Lenta and B. le Cordeur, eds, The Cape Diaries of Lady Anne Barnard, 1799-1800, 2 vols (Cape Town, 1999), 1, 35-6. [ Links ]


    69 C.G. Hall, ed, 4 vols, Maasdorp's Institutes of South African Law, 9th edition, 1. The Law of Persons, 75; [ Links ]

    Van Zyl, 'Divorce', Cape Law Journal, 7, 209 and 8, 13. [ Links ]


    73 Hahlo, Law of Husband and Wife, 5th ed, 17. [ Links ]


    77 Ex parte Patrick Murphy, 12 July 1894 in Bell, ed, Cape Law Journal, 12, 206; [ Links ]

    C. Leonard, 'Law Reform - Divorce', Cape Law Journal, 1, 80-3; [ Links ]


    80 Estate Heinemann and others v H., Maasdorp, Beck and Hoexter, eds, The Institutes of South African Law, 19. [ Links ]


    82 Such evasions were less likely to succeed with improvements in long-distance communications. (W. Stoney, 'Can a Deserted Spouse, without having obtained a divorce, apply to the court for leave to re-marry?', Cape Law Journal, 12, 176. [ Links ]


    85 Van Zyl, 'Divorce', Cape Law Journal, 7, 213; [ Links ]

    Daniel v D., 19 Dec. 1884, H. Juta, ed, Cases Decided in the Supreme Court of the Cape of Good Hope during the years 1884-5 (Johannesburg, 1973), 3, 234. [ Links ]


    86 Juta, ed, Cases Decided in the Supreme Court, 3, 232. [ Links ]


    88 Hahlo, South African Law of Husband and Wife, 5th ed, 12-19; [ Links ]

    H.R. Hahlo, 'The Sad Demise of the Family Maintenance Bill 1969' in Kahn, ed, South African Law Journal, 88, 201-4. [ Links ]


    89 'Crim. Con.', Cape Law Journal, 5, 191. [ Links ]


    90 Van Zyl, 'Divorce', Cape Law Journal, 8, 6-7; [ Links ]


    91 Cape Law Journal, 10, 285-6. [ Links ]


    92 W. Stoney, 'The Marital Power' in H.T. Tamplin, ed, Cape Law Journal, 13, 111; [ Links ]


    93 Van Zyl, 'Divorce', Cape Law Journal, 8, 11-12. [ Links ]


    94 Tuesday, 18 September 1849, The Cape of Good Hope Observer, 1, 38. [ Links ]


    95 A.B. Vanes, Report of the Select Committee on the Destitute Children Relief Bill, 62. [ Links ]


    96 Law of Inheritance Commission, viii, xiv-xv, xix; R. Probert, Cretney's Family Law, 5th edition (London: Sweet & Maxwell, 2003), 297. [ Links ]

    Those who entered into an ante-nuptial contract (a minority of Cape marriages) were also protected, M.J. de Waal, 'Law, Society and the Individual: The Limits of Testation', in Visser, ed, Essays on the History of Law, 314. [ Links ]


    99 Hahlo, 'The Sad Demise', South African Law Journal, 88, 201-4; [ Links ]

    Hahlo, 'Law of Concubinage', South African Law Journal, 89, 327-8; [ Links ]

    F. du Toit, 'Succession Law in South Africa - A Historical Perspective' in K.G.C. Reid, M.J. de Waal & R. Zimmerman, eds, Exploring the Law of Succession: Studies National, Historical and Comparative, Edinburgh Studies in Law Vol. 5 (Edinburgh University Press, 2007), 71-3. [ Links ]


    100 I. Pinchbeck and M. Hewitt, Children in English Society, Volume II, From the Eighteenth Century to the Children Act 1948 (London, 1973), 588 and passim. [ Links ]


    101 E. van Heyningen, 'Poverty, Self-Help and Community: The Survival of the Poor in Cape Town, 1880-1910', South African Historical Journal 24, 1991, 131-2. [ Links ]


    103 J. Kinghorn, 'Modernization and Apartheid: The Afrikaner Churches' in R. Elphick and R. Davenport, eds, Christianity in South Africa: A Political, Social & Cultural History (Cape Town, 1997), 136, 151. [ Links ]


    106 Freeman, Understanding Family Law, 178 and n. 23. [ Links ]


    109 Legitimation by subsequent marriage became British law with the Legitimacy Act of 1926. (R. Collier and S. Sheldon, Fragmenting Fatherhood: A Socio-Legal Study (Oxford & Portland, Oregon: Hart Publishing, 2008), 181). [ Links ]

    It has been 'controversial whether children who were legitimated by the subsequent marriage of their parents acquired their status ... from the date of marriage or retrospectively from the date of their birth'. (D.S.P. Cronjé and J. Heaton, The South African Law of Persons (Durban: Lexisnexis Butterworths, 2003), 76). [ Links ]


    112 Hahlo, Law of Husband and Wife, 5th ed, 37, [ Links ]


    120 Probert, Cretney's Family Law, 297; [ Links ]

    Juta, ed, Cases Decided in the Supreme Court ... 1884-5, 3, 1-3. [ Links ]


    121 Van der Linden, Institutes of the Laws of Holland, 335-7. [ Links ]


    122 In the nineteenth century, the authorities attempted to determine if an infant was alive at birth by placing the lungs in water, a crude version of the current hydrostatic test. See Cronjé and Heaton, The South African Law of Persons, 7, n. 5. [ Links ]


    123 Ordinance No. 10 of 1845 for Punishing the Concealment of the Birth of Children, H. Tennant & E.M. Jackson, eds, Statutes of the Cape of Good Hope, 1652-1895, 3 vols (Cape Town: J.C. Juta, 1895), 1, 372-3. [ Links ]


    124 P. Scully, 'Narratives of Infanticide in the Aftermath of Slave Emancipation in the Nineteenth- Century Cape Colony, South Africa', Canadian Journal of African Studies, 30(1), 1996, 102, n. 3. [ Links ]


    129 S. Burman and M. Naude, '"Bearing a Bastard": The Social Consequences of Illegitimacy in Cape Town, 1896-1939', Journal of Southern African Studies, 17(3), Sept. 1991, 376-8. [ Links ]


    136 T. Scanlon, Report on the General Infirmary, 11. [ Links ]


    142 V. Bickford-Smith, Ethnic Pride and Racial Prejudice in Victorian Cape Town: Group Identity and Social Practice, 1875-1902 (Cambridge, 1995). [ Links ]


    143 Niemand v N., 3 Aug. 1898, H.T. Tamplin, ed, The Cape Law Journal (Grahamstown, 1898), 15, 269-70. [ Links ]


    148 M.M. Corbett, H.R. Hahlo & G. Hofmeyr, The Law of Succession in South Africa (Cape Town: Juta & Co. Ltd., 1980), 33. [ Links ]


    150 C. Swaisland, Servants and Gentlewomen to the Golden Land (University of Natal Press, 1993), 27; [ Links ]


    151 Freeman, Understanding Family Law, 62. [ Links ]