The contribution made by Mr Justice Michael McGregor Corbett to the South African law of succession

• Jurisdiction: South Africa
• Citation: 2014 Acta Juridica 1
• Author: Gys HofMeyr SC
• Published date: 15 August 2019
• Date: 15 August 2019
• Pages: 1-8

The contribution made by Mr Justice

Michael McGregor Corbett to the South

African law of succession

GYS HOFMEYR SC*

The view that judges expound the law but do not create law (iudicis est ius

dicere non facere), while embodying the broad principle of the division of

function between the legislature and the judiciary, no longer holds sway.

It is now generally acknowledged that one of the consequences of the

judicial process is the creation of new law. The common law in particular

frequently embodies principles which, although f‌irmly established, may

require extension, limitation or adaptation when applied to particular

facts. Nor are norms of conduct or policy considerations static.

1

Great

judges, in dealing with these and like situations, have unquestionably

contributed to the development of new law. The late Mr Justice Michael

McGregor Corbett was such a judge.

In 1963, and after having practised as a Silk for just over two years,

Corbett was appointed to the Cape Bench. From August 1970 to May

1971 he acted on the then Appellate Division and became a permanent

member of that court in 1974. He was appointed Chief Justice in 1989

and presided in that capacity until his retirement in 1996. He has been

honoured as a jurist and a great judge

2

and his scholarship has been widely

recognised.

3

His contribution to the jurisprudence of this country in

many f‌ields of the law during his lengthy tenure on the Bench has been

signif‌icant.

I have been asked to write about Mr Justice Corbett’s inf‌luence on one

aspect of our law – the law of succession.

4

In this regard two of the judge’s

* BA LLB. Former member of the Cape Bar.

1

See generally HR Hahlo and E Kahn The South African Legal System and its Background

(1968) chapter IX; WJ Hosten,AB Edwards, F Bosman et al Introduction to South African Law and

Legal Theory 2 ed (1995) 427 ff. In the former work at 305 Lord Denning is quoted as saying ‘the

judges lay down the law under the thinly veiled pretence that they are not making new law but

only expounding the law.’It is interesting too to note Mr Justice Corbett’s own reference in his

Oliver Schreiner Memorial Lecture (1986) recorded in (1987) 104 SALJ 52 to ‘the policy

decisions of our courts which shape, and at times, refashion the common law’.

2

See for example the tributes in E Kahn (ed) The Quest for Justice: Essays in Honour of Michael

McGregor Corbett (1995).

3

He was awarded doctorates (honoris causa) by the Universities of Cape Town, Pretoria,

Stellenbosch, Rhodes, the Orange Free State and the Witwatersrand.He was both an honorary

Bencher of Lincoln’sInn and an honorary Fellow of Trinity Hall.

4

Because of my respect for Mr Justice Corbett not only as a great judge but as a great

gentleman, I do so readily and, because I was privileged to know him personally,with nostalgia.

1

2014 Acta Juridica 1

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