Van Breda and Others Appellants v Jacobs and Others Respondents

1921 AD 330
Appellate Division, BLOEMFONTEIN.

1921. March 15, 17.

INNES, C.J.; SOLOMON, J.A.; MAASDORP, J.A.; JUTA, J.A., and J. E. R. DE VILLIERS, A.J.A.

Flynote

Custom. --- Requisites of valid custom. --- Breach of. --- Custom amongst fishermen.

Headnote

The existence of a custom must be clearly proved and the onus of proving such existence lies upon
the person alleging it.

Though the number of witnesses necessary to prove the existence of a custom may vary with their
character and with the nature of the custom which is set up, the Court must be satisfied beyond
any reasonable doubt that the alleged custom does, in fact, exist.

As to what is necessary to be proved in order to establish a valid custom there is no substantial

difference between the English and the Roman-Dutch law, namely, that it must be long
established, reasonable, have been uniformly observed, and certain.

A local custom amongst fishermen carrying on their business off a portion of the Cape coast that
once on a free beach, namely, a beach where no boats are permanently stationed, fishermen have
set their lines for the purpose of catching a shoal of fish seen travelling along the coast, no other
fishermen are entitled to set a line in front of theirs within a reasonable distance therefrom.

Held, to be duly established by the evidence as a valid custom and to entitle plaintiffs to recover
from defendants the value of a catch of fish intercepted by defendants in breach thereof.

The decision of the Cape Provincial Division in Van Breda and Others v Jacob & and
Others, confirmed.

1921 AD at Page 331

Case Information

Appeal from a decision of the Cape Provincial Division (KOTZE, J.G., and GARDINER, J.) sitting as
a Court of Appeal from a decision of the Resident Magistrate, Simonstown.

Plaintiffs sued defendants in the magistrate's court for £32 4s. the value of a catch of fish
intercepted by defendants as alleged by plaintiffs, in breach of a local custom amongst fishermen.
The magistrate gave judgment for the plaintiffs as prayed and on appeal to the Cape Provincial
Division this decision was sustained.

Defendants now appealed after obtaining leave.

H.F. Blaine, K.C. (with him O.H. Hoexter), for the appellants I submit that the custom was not
properly proved by reason (1) of the character of the evidence adduced; (2) of the conflicting
nature of the evidence, and (3) the lack of uniformity as to the existence of the custom and as to
what it consists of. As to proof of custom see Voet 1, 3, 29, 31 and 35. As the custom is of a
negative character, I submit that the same principles are applicable as in the proof of the
registration of a negative servitude by prescription and consequently that it was necessary to
prove adverse acts. See Jordaan and Others v Winkelman and Others and the Colonial
Government (1879, Buch at p. 86). The adverse acts should have consisted of the frustration of
attempts to exercise common law rights. The strongest evidence is required to prove a custom
which derogates from the common law. See Voet 1,3,32.

G.G. Sutton (with him P.M. Clouts), for the respondents: The evidence is quite clear as to the
custom and shows the custom to be "first come, first pull." Some witnesses express the custom in
different words, but what they say really comes to that. This is not a negative custom; and there is
no analogy between the, custom that we allege and a negative servitude. However, if it were
necessary for us to prove adverse acts and to show the frustration of attempts to exercise
common law rights, there is evidence on the record to that effect. The law with regard to custom

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as laid down by Voet seems clear, and I do not intend to dispute it. The custom must be
reasonable, must be properly proved and must have existed for some time. The length of time that
should have elapsed must be left to the estimation of a prudent judge. Voet, 1.3.28.29.31.34.35.
See also Van der Linden, 1.1.7; Van der Keessel, Thesis 5; Van Leeuwen, Roman-Dutch
Law (Kotze's Translation), Vol. I., p. 30, footnote K.;

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Grotius, Introduction to Roman-Dutch Law, Schorer's Note 6, p. 359 of Maasdorp's Translation;

Maasdorp's Institutes of Cape Law, vol. 2, p. 39; Merula, Manier van Procederen, 1.1.5.1.4. As to
English law, see Halsbury's Laws of England,vol. 10, p. 218 et sequitur, sec. 418 et sequitur, also
p. 283. Where a custom is reasonable, the Court will only require slight proof of
it ;Johnson, v Clark (1908, 1 Ch. 303, at p. 309). The only customs analogous to this that we have
been able to find are in regard to whale fisheries. Halsbury, vol. 14, p.
636; Fennings v Grenville (1 Taunton 241); Aberdeen. Arctic Co. v Sutter (6 LT
229); Langley v Miller (3 Men. 584). Farnham on Waters and Water Rights, Vol. II., p. 1418, sec.
394, says that in some places a custom such as we allege is extant. For a custom of fishermen to
dry their nets on someone's land, see Mercer v Denne (1905, 2 Ch. 538).

Blaine, K.C., replied.

Cur. adv. vult.

Postea (March 17.)

Judgment

SOLOMON, J.A. The plaintiffs in this action, 13 in number, are fishermen at Simonstown, carrying
on their business jointly on the share principle, and the defendants, 14 in number, are similarly
occupied at Simonstown. The plaintiffs claimed the value of a catch of fish made by the defendants
at the Kamartje beach on the 9th September, 1919. On that day a shoal of fish was observed by
both parties travelling from Simonstown in the direction of Glencairn, whereupon they launched
their respective boats for the purpose of intercepting and catching the fish. An unsuccessful
attempt was first made at Klein Fish Hoek, but the shoal was too far out, and the two boats
thereupon pulled away towards the Kamartje beach. On the way the defendants' boat was delayed
by wire from the stranded steamer "Clan Stuart," so that the plaintiffs reached Kamartje some
time before they did, and laid their line ashore waiting for the fish. Thereafter the defendants
came up and laid their line close to that of the plaintiffs and in front of it, i.e., between it and the
direction in which the fish were coming. The result was that the defendants intercepted the fish
before they reached the plaintiffs and caught

1921 AD at Page 333

the whole shoal. It is common cause that but for the intervention of the defendants the plaintiffs
would have secured the catch, and they claimed in the action the value of the fish caught, viz.,
8,050 at 8s. per 100, that is £32 4s.

Now the right of fishing in the open sea is common to all, and prima facie the defendants were
entitled to the benefit of the fish which they had caught in their net. But the plaintiffs' claim is
based not upon the common law but upon a local custom which is alleged to exist amongst
fishermen carrying on their business between Cape Point and Fish Hoek. The custom set up is this
that, when once on a free beach, i.e., a beach where no boats are permanently stationed
fishermen have set their line for the purpose of catching a shoal of fish seen travelling along the
coast, no other fishermen are entitled to set a line in front of theirs within a reasonable distance
therefrom.

Now it is scarcely necessary to point out that the onus of establishing the existence of such a
custom lies upon the plaintiffs and that it must be clearly proved. There was a difference amongst
the Roman-Dutch authorities as to the number of witnesses required to prove a custom. Some
thought that two were sufficient, others were of opinion that there should be a turba of witnesses,
not fewer than ten. Voet, 1.3.34, thinks that the latter is the better opinion, remarking that if a
custom is in existence there can be no difficulty in securing a large number of witnesses to depose
to it. I think we should refrain from laying down any fixed rule on the subject, as the requisite
number of witnesses might very well vary with their character and with the nature of the custom
which is set up. Much must in every case be left to the discretion of the Court, which, however,

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must be satisfied beyond any reasonable doubt that the alleged custom does in fact exist. It is
desirable, however, to add that it is better for him who sets up a custom to err on the side of
calling too many rather than too few witnesses.

In the present case no exception can be taken to the number of witnesses called on behalf of the
plaintiffs, there being eleven in all, a number sufficient to constitute the turba which is considered
necessary by some of the authorities. That being so I proceed to consider what is necessary to be
proved in order to establish a valid custom. Now on this point there is a marked)

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agreement between the Roman-Dutch and the English law. In Halsbury (vol. 10, par. 423), it is
laid down that a custom to be valid must have four essentials, --- first it must be immemorial,
secondly it must be reasonable, thirdly it must have continued without exception since its
immemorial origin, and fourthly it must be certain. These are substantially the same
characteristics as those set forth in Voet, 1.3.27-35, where it is stated that a custom to be valid
must be an ancient or long-established one, must be reasonable, must have been uniformly
observed, and that the witnesses who speak to it must not "vary in regard to the relative
circumstances of the act in regard to time, thing and place," which I take it is only another way of
saying that the custom must be proved to be certain. It is true that there is this difference
between the English and the Roman-Dutch law, that the latter merely requires that the custom
should be an old one, whereas under the former it is necessary to show that the custom has been
in existence from a time preceding the memory of man, a date which has been fixed at the year
1189, the commencement of the reign of Richard I. In practice, however, there is no substantial
difference between the two systems. For in the English Courts "evidence showing continuous user
as of right as far back as living testimony can go is regarded as raising the presumption that the
custom existed at that remote date." Further "if proof of facts be given from which it can be
inferred that user corresponding to the alleged custom in fact existed at some time post, the
existence of the custom from the remoter era will be inferred" (Halsbury, par. 424, vol 10).
According to Voet (1.3.29), it was necessary to prove a long lapse of time, which is variously
expressed by the terms "ancient use," "old age," "long custom," "custom observed for many
years," &c. And he observes that as the number of years is nowhere definitely stated, it must be
left to the discretion of a prudent judge. In this view Merula (Manier van Procederen), vol.
1.1.1.5.1 and 4, agrees, and there, I think, we may be content to leave the question of age, as
regards which there appears to be no substantial difference between the English and the Roman-
Dutch law.

These then being the requisites which have to be established, it remains to he considered whether
they have been proved in the

1921 AD at Page 335

present case. Now there certainly is a very strong body of evidence as to the existence of this
custom at the present time. No fewer than eleven witnesses were called on behalf of the plaintiffs
in proof thereof, and their evidence on the subject is very clear and definite. Some of these no
doubt were interested parties, but there are others who, as far as it is possible to judge, have no
interest in the case. It is true that various witnesses use somewhat different language in
describing the custom, but in reality they all agree that on a free beach it was a case of " first
come, first pull," and that when once a boat has laid its line, no other boat is entitled to lay its line
within a reasonable distance in front of the one already laid. On the other hand the witnesses for
the defendant deny the existence of any such custom, but their evidence was rejected by the
magistrate, who was of opinion that most of those denying the custom do know of it but will not
admit it. And certainly their evidence on the face of it is in certain respects unsatisfactory. Take
Adam del Carme, one of the defendants, who denies any knowledge of such a custom, we find that
in a case of Wentwich v Van Breda heard before the magistrate of Simonstown in 1914, he gave
the following evidence: "Everywhere else except on this beach at Breda's the first arrival would
have the first trek." And Van Breda, another defendant who denied the existence of the custom,
said in the same case: "The custom has been that when boats were in the position that our boats
were, was for my boat to have had first cast, and he should have cast his net behind mine to catch
the fish that escaped from my net." So that it appears that in that case heard in 1914 these two
defendants virtually set, up the same custom which is now relied upon by the plaintiffs. It is not
surprising, therefore, that their evidence should have been discredited by the magistrate. And it is
rather significant on this point that when on the day in question an attempt was made at Klein Fish
Hoek to intercept this shoal of fish, it was the defendants who first laid their line, and that the

3
plaintiffs laid theirs behind and not in front of that of the defendants. On the whole, therefore, on
this question of fact on which there was a direct conflict of evidence I do not think that there
would be any justification for us not to accept the finding of the magistrate that the custom set up
by the plaintiffs does exist on free beaches between Cape Point and Fish Hoek at the present time.

1921 AD at Page 336

Then is the custom an ancient or long-established one? Now on this point we have the evidence of
several witnesses whose experience extends back for 45 years at least, who testify that this
custom has prevailed continuously during the whole of that time. That evidence was accepted by
the magistrate, and it is in my opinion sufficient to prove that the custom is an ancient or long-
established one, so as to satisfy the requirements of the law upon this point.

Then if that be so, has the custom been uniformly observed Here again the evidence of the
witnesses for the plaintiffs is clear, and was believed by the magistrate. Mr. Blaine contends that it
is not sufficient for the witnesses merely to allege the existence and observance of this rule for a
long time, but that inasmuch as it is a negative custom preventing persons from exercising their
common law rights, it is necessary to go further, and, as in the case of a negative servitude, to
prove that persons who had attempted to break the rule had been restrained from so doing. Now if
such evidence were required it is not altogether absent in this case. For example, the witness
William Wandwitch states that he had a case with one of the plaintiffs Jacobs eleven years ago,
because he had pulled in front of him, and he says that he won the case, as the Court held
that Jacobs was wrong and made him give up the fish. Again George Cotton states that about ten
years ago at the free beach between the "Clan Stuart" and Kamartje Breda's boat came in front of
him, and that upon his protesting they pulled up their line and went away. But apart from this
evidence I cannot think that there is any analogy between the case of a custom such as this and a
negative servitude. What has to be proved here is the existence and regular observance of a
custom which must have had its origin in the tacit consent of the persons concerned
(Voet, 1.3.34). If it is proved that all such persons have strictly observed, for 45 years and more,
a rule which obviously must at times have interfered with their common law rights, that surely is
sufficient without requiring evidence that at times one or more of them have been restrained from
breaking it. For if that were necessary it would follow that the more loyally the rule had been
observed the more difficult of proof it would be.

And that brings me to consider whether the custom set up by

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the plaintiffs is a reasonable one. On that point there cannot, I think, be much doubt. Its object
clearly was to prevent disputes and quarrels amongst persons engaged in the fishery business. As
was said by LORD MANSFIELD in a case as to the validity of a certain custom in the whaling trade:
"Were it not for such a rule there would be a sort of warfare perpetually subsisting between
persons engaged in whaling." The rule in question here is an eminently fair one to till parties and
works no injustice to anyone. I entirely concur, therefore, in the opinion expressed in both the
courts below that the custom is a reasonable one.

Then as regards the lost requisite, the rule in my opinion is a definite and certain one and clearly
regulates the rights of the persons concerned. The only difficulty that can possibly arise in its
application is as regards what is a reasonable distance from the line first laid. It would be
impossible, however, to fix the distance in yards or feet, as it must necessarily vary with the
circumstances. In practice, however, I do not anticipate that any real difficulty would arise in
determining whether in any particular case the rule had been observed or not. In the present case
there can be no possible doubt that it has been transgressed, as the evidence is clear that the
defendants laid their line within only a few yards of that of the plaintiffs. So close, indeed, did they
come that in passing the oars of the one boat overlapped those of the other, and the defendants'
boat lay so near to that of the plaintiffs that the latter were unable to shoot their net.

It only remains now to consider whether by reason of the custom existing, amongst fishermen on
free beaches between Cape Point and Fish Hoek, the defendants are liable to the plaintiffs for the
value of the fish caught. No argument was addressed to us on this part of the case on behalf of the
appellants. It is admitted that through the defendants' breach of the custom the plaintiffs lost the
catch of fish which they would otherwise have secured, and it is only right that the defendants who
have been guilty of a wrongful act should make good to the plaintiffs the loss which they have
sustained thereby.

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In the result the appeal in my opinion fails and should be dismissed with costs.

1921 AD at Page 338

INNES, C.J., MAASDORP, J.A., JUTA, J.A., and J.E.R. DE VILLIERS, A.J.A., concurred.

Appeal accordingly dismissed.

Appellants' Attorney: J. Ayliff, Cape Town; Respondents' Attorneys: Garland & Menkin, Cape Town.

1921 AD at Page 339

April --- June, 1921