Photo: Russell, London.
As regards the capacity of adults to enter into and be bound by contract, the most striking difference between the English and Roman Dutch systems is the survival, under the latter, of a modified form of the Roman Interdiction of the Prodigal. Under certain circumstances, on application of friends or relatives, such an order can issue. Again, contracts of service made out of South Africa are not binding unless entered into again before a public official in South Africa.
In respect to the tenure of property, more especially of property in land, the differences which exist are all in favour of Roman Dutch Law. An admirable system of registering titles to land, whether of ownership or mortgage, exists in South Africa, as on the Continent of Europe, where that most valuable legacy from the Roman Empire has remained unchanged in principle to our day. No tedious scrutiny of documents attesting title to land is necessary, as it is in England. The official register is sufficient proof of ownership. Transfer is rapid and inexpensive. Again, unavoidable calamity, amounting to a condition of impossibility of beneficial occupation, excuses from the necessity of payment of rent of land. Such excuse is not known to the Law of England.
Unlike the Law of England, but like the Law of Scotland, desertion by either party to a marriage furnishes ground for absolute divorce, with right of re-marriage. The system, flowing directly from the Roman Law, both in Scotland and South Africa, is understood to work satisfactorily, comparatively few divorces being sought for.
II.—THE MODERN LAW OF SOUTH AFRICA
Leaving the general principles of the law affecting personal status, family relations, and property rights, the difference between the Law of England and that of South Africa practically disappears as regards Europeans in social relations. In the whole field of Commercial Law, and in that of the Law of Crimes and Punishments, the Law of England has practically been adopted in all the States and Colonies. The origin of this state of the law is, of course, to be found in the fact that the Roman Law conceptions were out of harmony with modern commercial conditions and the competition of the World Market; and also that their code of Crimes and Punishments has become inappropriate to the later forms of European civilisation.
Several features of South African legislation require more special notice. The Transvaal Law may be taken as typical of that of the other States, and political and economical conditions make the law of the late Republics of most importance and interest to the British public. The most salient topics are those dealt with by the Law of Mines, the law as to the natives, and the Law of Universal Military Service.
The law as to minerals, including not alone gold and silver, but all precious metals and precious stones, is based on State ownership. It is expressly declared: “The right of mining for and disposal of all precious stones and precious metals belongs to the State.”