Three of a Kind?: Positive Prescription in Sri Lanka, South Africa and Scotland

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Author: D L Carey Miller
• Pages: 209-230
• Date: 27 May 2019

209

THREE OF A KIND?: POSITIVE PRESCRIPTION

IN SRI LANKA, SOUTH AFRICA AND SCOTLAND

D L Carey Miller

BA LLB LLM PhD FRSE

Emeritus Professor of Property Law, University of Aberdeen

Senior Visiting Research Fellow, Institute of Advanced Legal Studies, London*

1 Introduction

Within the general category of “mixed syst ems” a special afnit y exists

between the laws of Scotland, Sri Lanka and South Africa. This relationship

will be considered by commenting rst, in Par t Two, on the general position,

followed, in Part Three, by a pa rticular ca se study of positive prescription

applicable to land. The mixed civil/common law system s of South Africa and

Scotland having been studied in recent projects,1 Part Two will pay most atten-

tion to the Sri Lankan system.2 This approach will continue i n Part Three,

with the focus on Sri Lanka and only brief comment on the Scottish and South

African systems of pr escription which have been a nalysed, explai ned and

compared in recent expe rt literature.3

2 General affinity

2 1 Related development chemistry

By ac cident of histor y, the leg al systems of Sri Lan ka and South

Africa have much in common. Events i n the mid-seventeenth and the late

eightee nth cent uries pro duced th is afn ity. In t he 1650s the Dutch, at the

height of their sea-power, ousted the Portuguese from Sri Lanka a nd occu-

pied the most southerly part of A frica. As part of a quest to control the

orient al spice trad e, norther n and souther n Indian Ocea n locations ca me to

be subject to the well developed Roman-Dutch legal system.4 Followi ng the

* The res earch fo r thi s paper was carr ied out on a st udy vi sit to the University of Colombo in lat e 2006 .

The aut hor acknowled ges fundi ng suppor t from the Car negie Trust for the Universities of Scotland which

made the visit possible. Grateful thanks are due to Dea n Selvakkumaran and Head of Law Dr Udagama for

their invitation and for making facilities available. The valuable a dvice and assistance of Professor Shar ya

Scharenguivel of Colombo and Anne Pope of Cape Town is acknowledged with gratitude; neither, however,

bear any resp onsibility for the p aper. Finally, I am gratef ul to the anonym ous referees for helpfu l comments.

1 Most notably so in t he publication of “ Southern Cross ” in Zimmer mann & Visser (eds) Southern Cross:

Civil Law and Common Law in South Africa (1996) followed by “Northern Cross” in Reid & Zimmermann

(eds) A History of Private Law in Scotland (200 0) and “Double Cross” in Zi mmermann , Visser & Re id

(eds) Mixed Legal Systems in Comparative Perspective (2004). In the la st mentioned work s ee generally

Zimmerm ann “‘Double Cross’: Compari ng Scots and South Af rican Law” 1.

2 This pa rt of the paper draws on an associat ed cont ribution, deriving from the same r esearch, which

explores the aff inity between t he thre e systems in a more general w ay; see Carey M iller “T hree of a

Kind?” in Hoc tor & Schwikkar d (eds) Essays in Honour of John Milton (2007) 139.

3 For reference to the modern l iterature and a com parative comment se e Carey Miller & Pope “Acquisition

of Owner ship” in Zim mermann, Visser & Re id (eds) Mixed Legal Systems in Comparative Perspective

(2004) 673 686-692.

4 See, respectively, Fagan “Roman- Dutch Law in its South Afr ican Historical Con text” in Zimmer mann &

Visser (eds) Southern Cr oss: Civil Law and Common Law in South Africa (1996) 33 and Van den H orst

(2008) 19 Stell LR 209

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Napoleonic Wars, the Dutch lost control to the British in bot h jurisdictions.

Although the new colonial power chose to leave Roman-Dutch law in place,

English law in uence commenced through the circumst ances of British

administ ration.5

A civil ian based common law, in uenced by Engl ish law, is the basis of

a p erception that Scots law completes a particular form of mixed systems’

triangle with South Africa and Sri Lan ka.6 The common law of Scotland,

while not an impor t from across the North Sea, developed as a p art of the ius

commune with considerable inuence from canon and civil law. Following the

post 1707 union – and possibly from the beginning – Scots law was subject to

inuence from her more developed, but essentially different ,7 southern neigh-

bou r.8 Perhaps only since the lat e twentieth centur y can it be said that Scots

law is no longer subject to the accidental inuence of Engl ish law th rough

factors of proxi mity and power rat her than as a nat ural consequence of the

formal United Kingdom relationsh ip position.

A close afnity i n structure and form g ives essential commona lity in legal

methodology between the systems of Sr i Lanka, South Africa and Scotland.

In all th ree, while legislation is supreme,9 the development of the law occurs

through simila r forms of judicial lawmaking.10

2 2 Sri Lankan importing from South Africa

It is trite that the relatively well developed South Africa n Roman-Dutch

private law has been i nuential in the development of the c ounterpa rt in its

The Roman Dutch Law in Sri Lanka (1985).

5 Over time, local fac tors caused the impact and inf luence of Englis h law to differ in Sr i Lanka and So uth

Africa in t he contexts of disti nct instances of t he development of Roman-D utch common law.

6 Recognition of c ommonality i s not new. Reid “T he Idea of Mi xed Legal Syst ems” 2003 (78) Tulane LR

5 9 shows how the syste ms were brou ght together, with codif ied Quebec, as a Commonwe alth study in

Amos “The Common Law and the Civil Law in the British Com monwealth of Nations” 1937 (50) Harvard

LR 1249. Reid’s paper inau gurated th e First Worldwide Con gress on Mixe d Jurisdicti ons in 2002 wh ich

brought into b eing The World Soc iety of Mixed Jurisdiction Jurist s http://ww w.mixedjurisdic tion.org

(accessed 17-04-200 8).

7 Many of the differences are ident ified in the Haml yn Lectures of Sir Thomas Smith, se e Smith Brit ish

Justice: the Scottish Contribution (1961); for a stimulating d iscussion of the topic see Bi rks “More Logic

and Less Exp erience” in Ca rey Miller & Zim mermann T he Civilian Tradi tio n and Scots La w: Aberdeen

Quincentenary Essays (1997) 167.

8 Views differ as to how the mi xed make-up of Scots law shou ld be characteri sed. It does not have defin ite

staging posts of inf luence in quite the same way as the two colonial jurisdict ions. The picture is piecemeal

rather tha n pattern; se e MacQueen “Scot s Law” in Smits (ed) Elgar Encyclopaedia of Comparative Law

(2006) 642, arguing that rather than bein g a conseque nce of overlayi ng, “the mi xture in some shape or

form see ms always t o have been present.” On this the me see als o especially Sellar “S cots Law: M ixed

from t he Very Beg inning? A Tale of Two Re ceptions” 2 000 (4) Edin LR 3 and Ör ücü “The Judge an d

Jurist in Scot land: On the Verge of a Second Renais sance” 2003 (78) Tulane LR 89. For a general bibliog-

raphy see MacQ ueen “Scots Law” in Co mparative Law 650-652.

9 Subject to constitutiona l limitat ions in South Afr ica and Sri Lank a, and to limit ation by t he ECHR in

Scotland.

10 It should be noted that, through a B ritish admi nistration of justice, the two colonial s ystems were mu ch

influe nced by the syste m and methodology of E nglish law in the d evelopment of their st ructure, p rocess

and metho d. In Scotla nd, however, a d istinct nat ive process a nd procedure developed, th ough this d oes

have greater af finity wit h Anglo American c ommon law than the c ivil law.

210 STELL LR 2008 2

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