Everybody Knows, Part 12: Saluting Wilfred Seymour

Dr William Russell Massingham Pridgeon (right) being driven to the Brisbane Watchhouse Photo: (AAP: Darren England), from ABC News under the heading “Doctor accused of masterminding child-stealing syndicate…”

by Mary W Maxwell, LLB

In the legal profession, we always enjoy saluting a past — or occasionally a present — master of the art. On entering the main building of Harvard Law School, for example, you are greeted by a huge painted portrait of Justice Oliver Wendell Holmes, Jr (1841-1935).

I have only recently discovered the work of Wilfred Massingham Seymour whose main law textbook preceded World War I. Not that I came by it randomly — it was called to my attention by the grandson of the master. The book is entitled:

“Native law and custom; being a compendium of the recognised native customs in force in the native territories of the colony of the Cape of Good Hope, together with legislative amendments, and reports of some of the more important decisions of the native appeal court of Griqualand East, 1901-1909”

It is about the native law of the people of South Africa, and has sparked my interest to find a similar work on the native law of indigenous people in North America, Australia, Philippines, or anywhere. With regard to the Philippines, I’d be curious to find what principles of law were on the books before the unruly takeover by American military forces in 1898, when the territory changed hands as a result of the Spanish-American war.

I confess my racism insofar as I did not know that the customs of South African tribes were as fussy as those of “white man.” As displayed below, there were provisions, such as breach of contract, if a woman did not go through with a promised marriage. Similarly with the Mabo case in Australia, I have only ever thought of it in terms of white-court activity, featuring our laws of terra nullius. How could I have been so stupid.

Now back to Wilfred Seymour’s grandson, who is the cause of the recent Gumshoe series “Everybody Knows.” Namely, Russell Pridgeon. I am unabashedly asking the Aussie legal eagles to tread lightly on this man, Russell, who is currently accused of “conspiracy to defeat the course of justice.”  Oh please it will be such a disgrace to Oz if word gets out that a person DEFEATS the course of justice by trying ardently to UPHOLD the course of justice. Or establish it, or revive it, or honor it, whatever.

For those who haven’t been following the case of The King versus Pridgeon and O’Dea, it boils down to decent men helping two mother cats protect their kittens. I mean human mums and human children, but what’s the diff? And does it really help The King to be seen to act against the kittens?

Well, that’s all I have to say: the said Russell comes from a good family.  I read in an African Internet article that when Russell’s older bro, Geoffrey Pidgeon, also a doctor, met an untimely death in 2017, “people of all races and religions came from far and wide to pay respects” at his memorial in Zimbabwe.

In a criminal trial, the convicted person (and I’m not saying Pridgeon will be convicted) gets a chance to speak up at his sentencing. He can bring character witnesses. (I am thinking of Jahar Tsarnaev’s trial where his schoolteachers said Jahar was — to use an Australian word — lovely.)

Are you allowed to say “His late grandfather was a bonzer guy”? I don’t really know, but just in case, I am now going to run, below,  a chapter of Wilfred Massingham Seymour’s book on Native Law, complete with the Dedication page and Preface. OK, Your Honor?

Here are a couple of paragraphs from Russell Pridgeon’s 2023 book, “Everybody Knows: Orchestrating the Theft of Innocence”

“During the Boer War, my maternal grandfather, Wilfred Massingham Seymour, worked for the law firm of “Coghlan and Welsh”, as a law clerk, to provide compensation for Boer prisoners of war, sequestered in the British concentration camps in the Cape. He entered the camps and later wrote of what he saw.

“My Grandfather codified traditional native law, so that it became integrated with the Roman Dutch Law used in South African courts. Every Law Student in South Africa from the 1930’s to the present time has studied from my Grandfather’s text book, Seymour’s “Native Law in South Africa”, much edited now of course.  I learned to have a profound respect for the law from my grandfather and my uncles.”

---

And now for the selected chapter from Seymour’s 1911 book. This comes to us by the miracle of Archive.org, where all sorts of treasures lie waiting for your touch of a button.

NATIVE LAW AND

CUSTOM

BY  WILFRED MASSINGHAM SEYMOUR

ATTORNEY AND NOTARY OF THE

SUPREME COURT OF SOUTH AFRICA

PUBLISHKD BY J. C. JUTA & CO., CAPE TOWN. 1911.

[Dedicated] TO

SENATOR, COLONEL, THE HONOURABLE

WALTER ERNEST MORTIMER STANFORD, C.B., C.M.G.

AS A TRIBUTE TO HIS LONG AND EMINENT SERVICES TO THE  INHABITANTS OF THE NATIVE TERRITORIES

OF CAPE COLONY, WHILE SECRETARY TO THE NATIVE AFFAIRS DEPARTMENT,

AND AS A TESTIMONY TO THE IMPARTIALITY, JUDICIAL DIGNITY AND INSIGHT INTO NATIVE CUSTOMS

WHICH HE DISPLAYED WHILE CHIEF MAGISTRATE OF GRIQUALAND EAST,

THIS BOOK is (BY PERMISSION)  RESPECTFULLY DEDICATED

BY THE AUTHOR. [“Grandpa’]

PREFACE.   {Note: ‘kraal’ means village.]

The object of this work is to lay before those interested therein the recognised Native customs at present obtaining in the Native Territories of Cape Colony. Legislative enactments and Colonial law are referred to, but only in so far as they affect Native customs.

There is an idea prevailing that the natives in these Terri- tories are not subject to Colonial law, and that cases between them are always decided by the Courts there according to Native customs ; but this is not the case.

Colonial law is applied to every case which can be met under it, and it is only in those cases where the obligations be- tween the parties arise out of customs foreign to, and which cannot be dealt with under, Colonial law, that recourse is had to Native law.

Practically the only actions between natives which are now tried under Native law are those arising out of marriage by Native forms, dowry contracts, adulteries, seductions, kraal- head liability, inheritance and the like, the Native customs in respect of which have always been adhered to.

Customs have only to a certain extent been recognised by the Courts, as it has been found that some of them are tainted with slavery, or are adverse to the interests of morality, whilst others are in direct conflict with Proclamations.

For instance, the natives consider that a woman’s services to her husband’s kraal after his death are one of the considerations for which her dowry is paid, and, according to true or “raw” custom, return of her dowry could be demanded by her deceased husband’s people should she leave their kraal; but the courts have refused to allow dowry to be reclaimed on that ground, holding this cus- tom to be detrimental to the welfare of widows. Further, by Proclamation every female native of twenty-one years is a major, and freed from tutelage, and this now prevents these claims for return of dowry being brought.

Knowledge of pure Native law is therefore not of such great importance to the practical lawyer as hitherto. Likewise, the earlier decisions of the courts are of little practical use, and are now often overruled, for they were given at a time when pure Native customs were more or less strictly adhered to, and when the tactful authorities probably deemed it advisable not rigidly to introduce European ideas and improvements into Native cus- toms, as is now being done.

Bearing in mind these facts, the writer has based this book mainly on the more recent decisions of the Native Appeal Courts. Up to the present there is no work of this kind in existence, and the writer, who for some years practised in the Territories, has himself felt the want of a book of reference such as this work aims to supply.

The knowledge of Native customs which the writer has acquired in dealing professionally with Native litigants has proved invaluable in the compilation of this work; but this book is not written as representing his own interpretation of the laws and customs pertaining to the Natives in the Territories. It is throughout based on decisions of the Supreme Court, and of the Eastern Districts Court (mostly at the time when these Courts had appellate jurisdiction over the Territories), and of the Native Appeal Courts of the Transkei, Tembuland, and East Griqua- land (from 1895 to 1909). Statutes, Proclamations, and MacLean’s ” Compendium of Kaffir Laws and Customs ” are also referred to.

The decisions of the Native Appeal Courts referred to in this book will, with some exceptions, be found reported in Hen- kel’s “Native Appeal Courts Reports,” or Warner’s “Native Appeals,” or at the end of this book. It will be seen, from a study of this work, that, speaking generally, the same customs are common to all native tribes.

Nevertheless, the name of the tribe, or tribes, to which litigants belonged has been given in all instances where this was indicated in the report of the case. Where a custom is peculiar to one orv more tribes the tribal name has been given.

The Author desires to offer his thanks to Mr. A. H. Payn, attorney, of Cape Town, for his advice and help in the revision and arrangement of this work, and to Mr. R. B. Stevenson for reading through, and correcting, the manuscript.

1. M. SEYMOUR.

CAPE TOWN,

July, 1910.

[The following sample chapter is 2770 words. I did not “correct” anything. — MM]

CHAPTER II. PRELIMINARIES TO MARRIAGE; BREACH OF CONTRACT;

EARNEST CATTLE.

Part I. Preliminaries to Marriage : Payment of Earnest Cattle and Fines.

A native chooses his own wife, although influence may be brought to bear upon him by his father or guardian, more especially in regard to his first wife. It is customary amongst some tribes for negotiations to come from the woman’s people, who take their daughters under the ” ukugana ” custom to the kraals of eligible and selected men in the hope of marriages being arranged.
1 Having chosen his wife, the intended bridegroom in some instances carries her away, or elopes (A) with her, to his people’s kraal, where he not unusually seduces her ; (B) she is then followed up by her own people, and returned to them with a certain number of cattle. Sometimes one beast is given, and sometimes more. 2 One of these cattle is named a ” reporting beasit “3 or “elopement beast” (“nkata beast”). The woman’s guardian is thereupon approached, and his consent obtained to a marriage.

The cattle are kept by him as an advance payment of the dowry he is to receive on the marriage, and as an earnest that marriage is intended.’*

1. J. C. Warner’s notes in MacLean’s Compendium, p. 71. Nqwala vs.

Sutiko (Bacas), K., 1909; H., p. 232.

1. Kakana vs. Qorane (Hlubis), K., 1905; H. p. 94. Dodo vs.

Maqaiya, U. 1898; H. p. 23. Ntwapantsi vs. Mazeka, K., 1905.*

1. Ntwapantsi vs. Mazeka, K., 1905.*
2. Kakana vs. Qorane (Hlubis), K., 1905; H., p. 94.

(A) Notwithstanding Native custom, abduction is a crime in the

Native Territories under Sec. 269 of the Penal Code (Rex vs. Njovo, 1906,

E.D.C.,.p. 71 ; Ncedani vs. Rex, 1908, E.D.C., p. 243).

(B) Small stock is generally slaughtered to welcome the abducted woman on her arrival at the Kraal of her future husband’s people. This custom of ” twala,” as it is called, is practised by the Hlangwenis,s Pondos, 6 and other (tribes in the Native Territories.

There are instances where a man carries off (” twalas “) a woman, but where he and his people are unable to pay dowry. In such cases the woman is returned to her father with a “beast” (a horse, cow, or such-like), which is paid as an apology for the action.? Under such circumstances the ” elopement beast,” or ” reporting beast,” (c) as it is some- times called, can be claimed in law, for the woman’s father or guardian is entitled to it as damages. Further, he will generally insist upon its payment before he will discuss any negotiations for a marriage ; but the fine cannot be claimed in the courts when marriage is agreed upon and negotiations are going on, for, while this is happening, any action for a fine for elopement must be left in abeyance. 8

Amongst the Pondos it is customary for a man who has eloped with a woman, and finds himself unable to pay dowry, to pay a beast (called “bopo”) in order to bind her to him in the meanwhile. 9

Sometimes negotiations are broken off at a later stage by the intended husband, in which case he loses the right- to reclaim the beast paid as damages for ” twala.” I0

If the woman is deflowered or made pregnant during the elopement or engagement to marry, her guardian generally makes further calls upon her intended husband to pay more stock to cover the additional damage sustained In all these cases, when marriage takes place, fines paid are reckoned as forming part of the dowry, and not as damages in addition to it. 11

1. Mzamduli vs. Bukwane, K., 1903.*
2. Xomdenge vs. Xontani, U., 1908 ; H., p. 186.
3. Kakana vs. Qorane (Hlubis\ K., 1905; H., p. 94
4. Mbambcla vs. Mes, K., 1901.*
5. Nomdenge vs. Xontani, U, 1908; H., p. 186.
6. Kakana vs. Qorane (Hlubis) K. 1905, H. p. 94.
7. Ntwapantsi vs. Mazeka, K., 1905.* Gxonono vs. Skuni, F., 1907; H.,
8. 154. Pumlomo vs. Mbusi (Gcalekas), B., 1908; H., p. 179. Ngwaleni
9. Lingezweni, K., 1905.*

(c) This animal is not claimable amongst some tribes, (including the Pondos). See Ramba vs. Dwe (U. 1907; H., p. 161), where the Court remarked : ” According to Native custom, no damages are awarded for ordinary abduction where the girl is returned intact.” But see Pumlomo

1. Mbusi (B. 1908; H., p. i/oK and Mpakanyiswa vs. Xtshangase (Fingos)

(K., 1897; H. p. 17).

However, to this rule there are two exceptions. The fine for abduction against Fingos, 12 and the ” nqutu ” and ” nqobo ” beasts, 13 never merge into dowry.

Sometimes no elopement takes place, but after the proposed marriage is arranged the intended bride is taken to the kraal of her intended husband’s people and deflowered there, after which she is returned to her father. ‘* This action does not constitute an elopement, and in such a case, on marriage falling through, the claim against the intended husband is merely one for damages for deflowering the woman (if no pregnancy follows), for which one head of horned cattle (or a horse) is claimable.  15

This mode of carrying off is usually done by the friends of the intended husband. 16
However, it is not customary to adopt this procedure when a Christian marriage is agreed upon. 17

It is also the custom amongst the Bacas and Ponclomisi tribes for an eligible woman to be taken by her people to the kraal of a man with a view to her marrying him eventually.

Sometimes dowry is advanced in anticipation of marriage. Should the woman refuse to marry, or negotiations not come to a head, the dowry cattle are returned, along with their increase (if any). 18

Should negotiations be successful, the woman is formally handed to the man as his wife, full dowry being then payable. Until this done, the woman is not his wife. 19

It is not uncommon amongst the Tembus, even after a girl has been asked for in marriage, to send her to the kraal of the man with whom marriage is contemplated, where she remains unmolested until dowry, or a portion thereof, is paid. If no agreement is come to, she is returned to her guardian’s kraal in the same condition as when she left it; if she is accepted, dowry is paid and the marriage consummated ; but until this latter event happens she is not considered the wife of the man to whom she was sent. 20

1. Pumlomo vs. Mbusi, B., 1908; H., p. 179.
2. See Chapter viii.
3. Manyela vs. Yakumina, K., 1903. *
4. Ibid.
5. Mapukata vs. Boke, K., 1908.
6. Ibid.
7. Nqwala vs. Sutiko (Bacas), K., 1909; H., p. 234.
8. Ibid.
9. Mlungisi rs. Dlayedwa (Tembus), U., 1901; H., p. 44.

Part II. Ownership and Lien: Earnest Cattle.

The advance of dowry by an intended husband to the guardian of his prospective bride remains the property of the payer, 21 who is liable for any natural loss occurring to it. 22

Consequently, if the intended marriage falls through, he is entitled to the return of the actual cattle paid, 23 and also to any increase of the stock. 2 * Such progeny is usually reckoned as further stock paid on account of the dowry due. If any earnest cattle die, the intended husband has to supply others in their placets

The ownership never leaves the payer until marriage takes place, 26 and, as the stock is merely paid as earnest of the intended marriage, 27 the receiver cannot sell or in any way dispose of it ; 28 but he cannot charge for herding, as he has the use of the stock.

Earnest cattle cannot be attached for the receiver’s debts to third parties, and, if they are seized, the payer, or someone on . his behalf, may interplead for them. 29

On the other hand, such stock cannot be attached by the creditors of the payee, 30 even though the cattle are the second dowry received for the woman, and her first dowry has not been returned (provided the first marriage has been dissolved) ; 31 this is so because the receiver has a real right (lien) in the property.

Thus, while the engagement to marry still exists, the dowry paid on account cannot be attached by the creditors of the .woman’s guardian or of her intended husband.

Although the loss of any earnest cattle is borne by .the payer, still it is apparently necessary that their death must be at

1. Baduli vs. Main, B.W., p. 9.
2. Ibid.
3. Mali vs. Busakwe, B., 1908; H.-, p. 177.
4. Marizene vs. Stepula, K., 1906. Nqwala. vs. Sutiko, K., 1909; H.,
5. 232.
6. Baduli vs. Main, B.W., p. 9. The decision in Ndatambi vs.

Ntozake in 1895, U., H., p. 3, is therefore overruled.

1. Baduli vs. Main, B.W., p. 9. Love vs. Futela, C.T.R. 16, p.251 (1906).

1. Kakana vs. Qorane, K., 1905 ; H., p. 94.
2. Baduli vs. Main, B.W., p. 9. Love vs. Futela, C.T.R. 16, p.251 (1906).

1. Mhlahlalwa vs. Mkovonkovo, K., 1905.
2. Xabanisa vs. Dwayi, K., 1906. Mills vs. Bidli, C.T.R. 15, p. 742 (1005;.

1. Xabanisa vs. Dwayi, supra.

once reported to him or to the people of his kraal, to allow of investigation ; otherwise the woman’s guardian will be liable. 32

When dowry stock has been paid over, and has been sold or otherwise made away with by the woman’s guardian, before mar- riage, the intended husband can recover the original stock from third parties in possession. -53

It has been held that the payer, where no marriage has been consummated, has no claim to the increase of his dowry stock

1. the hands of third parties, 3 “* and, further, that he has only a personal action against his intended father-in-law for such increase as may have accrued before the original stock left his

(the father-in-law’s) kraal/ ) 3s

Part III. Termination of Contracts to Marry : Earnest Cattle and Fines.

Marriages although arranged do not always take place. Sometimes the engagement or contract to marry is broken off by the intended husband, sometimes by the woman or her people, and in other cases by mutual consent.

The position of the earnest cattle is governed by the circum- stances surrounding the breaking off of the engagement, and the rules and decisions relating thereto are set forth hereunder.

When neither party is at fault in breaking the contract to marry, 36 or when either of the contracting parties dies. 37 or when the engagement is terminated by mutual consent, 38 all the earnest cattle must be returned to the intended husband. The increase of such stock must also be handed back with them. 351

In the same way, all dowry and increase have to be re- turned when the w r oman or her guardian breaks off the engage- ment, 40 or if, after receiving the earnest cattle, the guardian

1. Ngwaleni vs. Lingezweni, K., 1905.*
2. Baduli vs. Main, B.W., p. 9. Peacock vs. Ben Rango, J. 19, p. 322.
3. Nontangana vs. Manyosi, K., 1904. 35- Ibid.

1. Nkonto vs. Mayenje, K., 1907.
2. Malusi vs. Dandi, U. 1908; H., p. 169. Manzeni vs. Stepula, K.,
3. Dlamalala vs. Sigaqana, K., 1903.
4. Kolman vs. Utlaka, K., 1906.
5. Manzeni vs. Stepula, K., 1906. Dlamalala vs. Sigaqana, K., 1903.
6. Lande vs. Qangule, K., 1903. Mlahliwe vs. Gobozana, B.W., p. 10.

(D) This decision seems to be in conflict with the generally accepted principles of ownership as laid down in other decisions. claims too large a number of stock as dowry. 41 In the last case the Court did not allow the woman’s father to claim an elopement beast, although the judgment shewed there was an elopement.

When the intended wife dies, it is sometimes arranged between all parties concerned that a sister shall take her place, and the return of the dowry deposit is thus avoided.-* 2

The guardian of the intended bride, before returning the earnest cattle, has the right to deduct any damages, by way of fines, due to him for the defloration or pregnancy of his ward caused by her intended husband, – ” but he is not entitled to retain a beast as a fine for elopement where the intended bridegroom is not the defaulting party, notwithstanding that a Christian marriage may have been agreed upon after the elopement. 44

On the other hand, if the intended husband or his people break off the engagement, such elopement beast may be claimed. 4 * However, the guardian must not deduct too large a number of stock for fines owing to him, neither should the intended hus- band, in suing for return of his earnest cattle, fail to allow the guardian the cattle due to him, otherwise they may not get their costs, 46 because the granting or withholding of costs is a matter of discretion, and need not necessarily be governed by strict rules of tender.

If the woman dies before marriage, but after having been made pregnant by her intended husband, her guardian may deduct a fine from the earnest cattle on hand for the seduction, 4 ? provided her condition is reported to the seducer prior to her demise. (E) In the first case quoted the guardian was allowed to retain two cattle and six goats. In the second case the fine was fixed at three head of cattle.

In the same way, the death of the intended bridegroom, even before notification of pregnancy has been given, does not debar

1. Moki vs. Mpangwa. K.. 1906.*
2. Mkatulela i’S. Lucuku, K., 1907.*
3. Mqutshwa vs. Mgqaqwana, K., 1903. Dodo vs. Maqaiya, U., 1898;

H., p. 23. Maqenga vs. Jiji, K, 1904. Nkonto vs. Mayenje, K.. 1907. Moki

1. Mpangwa, K., 1906.*
2. Moki vs. Mpangwa, K., 1906.* Nonjiko vs. Ndleleni, K., 1906.
3. Makasi vs. Rarabi, K,, 1904.
4. Maqenga vs. Jiji, K., 1904.
5. Bavu vs. Mpofana, K., 1905.* Mfayize vs. Mqukuse, B., 1906; If..
6. 127.

(K) See Chapter viii, Part iii. the intended wife’s guardian from claiming damages under Native law. However, the fact that the deceased man was not notified would be a strong feature in determining whether he really caused the pregnancy.* 8

On reading the report of the case of Bavu vs. Mpofana (supra), it will be seen that probably, had it been proved that the woman’s death occurred in childbirth, the intended husband would not have been allowed to claim back any of the earnest cattle; especially when it is remembered that death from child- birth after marriage is attributed to the husband, who, in conse- quence, is not entitled to the return of dowry .49

Should the earnest deposit not be sufficient to cover the fines due, when the engagement is broken off, the woman’s guardian may sue for the balance he considers due to him. In such cases he sometimes makes an alternative claim for the balance of dowry, tendering the woman in the hope that the. marriage may yet be brought about. s

The measure of damages for which a seducer is liable will be found discussed in the Chapter on Seduction It is the duty of the woman’s guardian to return the advance of dowry when it is due, as, for instance, where a second dowry is received by him for the same girl ; if he fails to do so, he is liable for any loss by death of the cattle after their return has been demanded. 5 ‘

Actions arising out of breach of contract to marry, wherein earnest cattle are in dispute, are practically always brought between the woman’s guardian and her intended husband. Under

Native law there is no specification for damages for breach of promise. Such damages are arranged for when the repayment of dowry is under consideration. The principles governing this matter under Native law are, briefly, ‘that, should the intended bridegroom break off the proposed marriage, he is- not entitled to recover his earnest cattle; 52 but otherwise he is.