Van Breda and Others v Jacobs and Others

Thirteen fishermen (plaintiffs) operating jointly on a share basis at Simonstown observed a shoal of fish travelling toward Glencairn on 9 September 1919. Both the plaintiffs and fourteen defendants launched their boats to intercept the fish. After an unsuccessful attempt at Klein Fish Hoek, the plaintiffs reached Kamartje beach first and laid their fishing line ashore, waiting for the shoal. The defendants' boat had been delayed by wire from the stranded steamer 'Clan Stuart'. When the defendants arrived, they laid their line directly in front of the plaintiffs' line, so close that the boat oars overlapped and the plaintiffs could not even deploy their net. The defendants intercepted and caught the entire shoal. The plaintiffs claimed £32 4s. as compensation, relying on a local custom among fishermen that once a party has set their lines on a free beach (a beach where no boats are permanently stationed) to catch 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.

• Whether a valid local custom existed among fishermen operating between Cape Point and Fish Hoek
• Whether the alleged custom met the four legal requirements for validity: ancient origin, reasonableness, uniform observation, and certainty
• Whether breach of a valid custom entitles the aggrieved party to recover damages
• Whether a 'negative custom' (one that restricts common-law rights) requires proof of enforcement through restraint to be valid

Appeal dismissed with costs. The Resident Magistrate's judgment awarding the plaintiffs £32 4s. (the value of the intercepted catch) was affirmed by the Appellate Division, all judges concurring.

1. A valid custom requires clear proof on four grounds: ancient origin, reasonableness, uniform observation, and certainty — requirements substantially identical in Roman-Dutch and English law. 2. A local custom among Cape coast fishermen establishing 'first come, first pull' rights on free beaches constitutes a valid custom when proven by credible witnesses with lengthy experience of consistent observance. 3. Proof of a negative custom (one restricting common-law rights) does not require evidence of enforcement through restraint; rather, consistent long-term observance itself demonstrates validity. 4. Breach of a validly established custom creates liability for damages resulting from the breach.

1. On the number of witnesses required to prove a custom, Solomon JA declined to establish a fixed rule. While some Roman-Dutch authorities required a 'turba' (approximately ten witnesses), the number may vary with the character of the witnesses and the nature of the custom. However, it is preferable 'to err on the side of calling too many rather than too few witnesses'. 2. Regarding English law requirements for immemorial custom, while English law technically requires proof dating back to 1189, courts presume ancient origin from 'continuous user as of right as far back as living testimony can go'. 3. The analogy between negative customs and negative servitudes was discussed and rejected; they operate on different principles despite both restricting common-law rights.

This is one of the leading South African cases on the requirements for proving a valid custom as a source of law. It established comprehensive jurisprudence on custom proof and validation, clarifying that four elements must be demonstrated: ancient origin, reasonableness, uniform observation, and certainty. The judgment is significant for its systematic comparative analysis of Roman-Dutch and English authorities on custom, finding no substantial difference between the two legal traditions. It also advanced the important proposition that long-standing, reasonable, uniformly observed practices deserve legal protection even though they restrict common-law rights, and that proof of enforcement is not required to establish a negative custom. The case remains a standard reference in South African law courses when discussing sources of law and the role of custom in the legal system.