Whereas the reception and operation of English law in West and East Africa have been the subject of much study over the last few years, the introduction and application of Roman-Dutch law in Southern Africa (apart from South Africa itself) have received scant treatment.1 This article deals only with the position in Lesotho and attempts to show the extent to which Lesotho's legal system is tied to that of the Republic of South Africa, and thus strengthens the geographical and economic bonds which link the two countries.

In this paper, we shall not use the term “equity” in the technical sense it bears in the common law countries, where for historical reasons peculiar to England “equity” has come to denote a special body of rules for which there is no equivalent in Ethiopia. We give “equity” the straightforward meaning of a justice that is “natural”, that is, results from a conscientious judge's discretionary appreciation of what is fair in the circumstances of a case. Since appreciations of what is “fair” vary with the man on the bench, a necessary corollary of equity is incertitude of result.

“A disposition of land belonging to a native in favour of a non-native or conferring on a non-native any rights over the land of a native shall not be operative unless it is in writing and unless and until it is approved by the Minister.” [Land (Law of Property and Conveyancing) Ordinance, s. 11(i).]

On 24th February, 1966, with the overthrow of Kwame Nkrumah and his régime by the Armed Forces with the cooperation of the Police Service of Ghana, Ghana entered a new phase in her national development. By a Proclamation of 22nd February, 1966, the new military régime (the National Liberation Council [N.L.C.]) suspended the Constitution and its subsequent amendments, dissolved the National Assembly and banned the Convention People's Party, i.e., the former ruling party. It also confirmed the tenure of judicial and other public offices; and, until changes were made, the courts and existing laws were to continue in existence.2 The N.L.C. was declared to be the government of Ghana, pending the promulgation of a new Constitution and the formation of a new government under such Constitution,3 with full power to legislate by Decree.4

The military revolution of 15 January, 1966 brought with it ideas about striking reform of customary court systems in Nigeria.

The most notable of the reforms actually effected is the reform of customary court systems in the Northern States, where legal and judicial reforms in the pre-revolution era had always taken special care of the position of Emirs and Chiefs who wielded great powers in the administration of justice, thus playing the dual role of judges and rulers of their community.

In 1829, George Millis, a member of the Established Church of Ireland, married Hester Graham before a Presbyterian Minister in accord with Presbyterian rites at the home of the Minister in Ireland. George and Hester lived together for a time as husband and wife, but in 1836, and with Hester still alive, George married Jane Kennedy in a parish church in England.

The next chapter in the history of the Gold Coast and Nigerian marriage ordinances is encountered a few years later in documents concerning the law of marriage in Ceylon.2

On May, 30th, 1863, Governor MacCarthy wrote to the Duke of Newcastle, then Secretary of State for the Colonies, a lengthy despatch concerning the history of marriage in Ceylon and expressing his views on the need for a new ordinance.

From the evidence of the minute paper which preceded the drafting of the first African reception statute, it may be asserted that the intendment of the Colonial Office officials was:

(1) that the limiting date in the statute was to apply as well to the common law and the doctrines of equity as to the statutes of general application;

(2) that the phrase “Imperial Laws”, refers as well to the common law and doctrines of equity as to the statutes of general application, so that the West African courts were granted a plenitude of power to determine the applicability to local conditions of judge-made law as well as legislation.

It is difficult, however, to determine the intendent of the phrase, “statutes of general application”, in the premises.

In Ghana most land cases are determined according to Ghanaian customary law. One question, however, has since early colonial times always been decided by common-law principles: the question whether a party is estopped by previous litigation from making a claim.2 Thus a court often applies common law to determine whether an issue may be raised, and then, having given an affirmative answer, applies customary law to determine its validity. The courts have never stated any legal justification for this application of common-law rules in essentially customary-law cases. The early colonial judges, perhaps because they were British lawyers, seem to have regarded the matter as self-evident. Later judges followed the earlier decisions, and since 1960 statute law has for convenience confirmed the practice.3