This chapter has two parts: the first is a reprise of the major themes in the state's relationship with African law, while the second illustrates briefly the doctrinal directions taken by the native courts after the passing of the Native Administration Act in 1927. In creating a separate court system for Africans, the 1927 Act adopted the Transkei formula which gave to magistrates in the native courts discretion as to whether to apply African law. Section 11(1) of the Act provided that

But the Act did not make clear how this discretion was to be exercised. Did it mean that the Roman-Dutch common law was to be considered to be the law that usually applied to African civil cases, except in matters peculiar to tribal life and custom, for which there was no common-law provision? Or was it to be taken to mean that African law would usually apply to civil cases between Africans, the only exceptions being those circumstances in which it was impossible to apply the concepts of African law? Unsurprisingly the different divisions of the new native courts initially took different views.