Where is the Map to Guide Common-Law Development?

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 3-14
• Date: 16 August 2019
• Author: DM Davis
• Citation: (2014) 25 Stell LR 3

3

Where is the map to guide common-laW

development?

DM Davis

Judge President of the Competition Appeal Court; Honorary Professor in the Faculty of

Law, UCT*

1 Introduction

In 1921, at the age of 45, Morti Malherbe succeede d HHA Fagan (later

to become Chief Justice of South Afr ica) as Professor in the Law Faculty

of the University of Stellenbosch, which had been est ablished only one year

previously and which was then t he rst law facult y in which the medium of

instruct ion was Afrikaans. Malherb e continued to teach until the end of 1954

when he was 80.

Writing in 1964,1 one of Malherbe’s students, Professor Wouter de Vos

(who was also my teacher) paid tribute to the contr ibution that Malherbe had

made to the law faculty at Stellenbos ch. In particula r, he emphasised that

Malherbe’s approach was not primari ly designed to produce pract itioners

possessed with ready pr actical knowledge but was rather to t rain juri sts who

would be armed with clear legal pr inciples and capable of analytical thought.

His inspirational t eaching encouraged a remarka ble number of talented people

to continue i n the eld of higher research, which resea rch unquestionably

developed South African private law. This was con rmed in a tribute pa id to

Professor Malherbe by Judge J de Vos, an ex-student, who wrote thus:

“Sy benadering van begrippe en regsbeelde van vele lande en tye, aangepas vir ons eie vaderland

en eeu, maar veral van ons Romeinse-Hollandse Reg as instrument vir gebruik in die hedendaagse

wêreld, het in die geheue bly steek as lewenslange metgesel wat bewus of onbewus as toetssteen

gebruik word vir die oplossing van die mengeling van vraagstukke op al die terreine waar die reg

hom laat geld.”2

The view of Roman-Dutch private law as a syst em of universal application

was taken forward by anot her great Stellenbosch academ ic, Professor JC de

Wet. In 1948, Professor de Wet tackled the question as to whet her our private

law should be codied. In r ejecting thi s suggestion, he turned his at tention to

whether our common law was out of date. He arg ued that there was always a

need for the law to develop to respond to contempora ry development. But that

development was less about the creation of new legal principles as oppose d

to the application of existing pri nciples to fresh contexts. Accordi ngly,

he suggested that Roman law, as the bedrock of our c ommon law “het tog

* This lectu re was delivered on th e occasion of the Stellen bosch Faculty of Law Mort i Malherbe Memor ial

Lecture h eld on 11 October 2013 The Faculty ackn owledges with gratitude t he sponsorship of Cluver

Markotter I nc for this event

1 W de Vos “William Mor timer Roberts on Malherbe In Memor iam” (1964) Acta Juridica vii ix

2 J de Vos “Waardering” (1964) Acta Juridica xii

(2014) 25 Stell LR 3

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