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Van Breda v Jacobs 1921 AD 330 FactsCase concerns a dispute arising between two groups of fisherman in Simons town, Western Cape. Shoal of fish was observed by both parties – the defendant’s boat was delayed therefore plaintiffs arrived first & laid their line waiting for the fish. Defendants arrived subsequently, however laid their line in front of the plaintiff’s & in the direction the fish were coming Defendants arrived subsequently, however laid their line in front ofthe plaintiff’s & in the direction the fish were coming. Defendants arrived subsequently, however laid their line in front of the plaintiff’s & in the direction the fish were coming Custom in question- Plaintiff’s claim was based on a local custom which is alleged to exist among fisherman carrying on their business in the area: “Once on a free beach (a beach where no boats are permanently stationed), and fishermen have set their line for purposes 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.”Legal questionWhat are the legal requirements to prove a valid custom, and whether said requirements have been satisfied in the present matter?Ratio decidendiRequirements for valid custom in common law:1. Must be “immemorial” / have existed for a long time.2. Must be reasonable.3. Must have continued without exception since its immemorial origin / generally observed by the community to which it applies.4. Must be clear and certain.• The court then proceeded to apply these (common law) requirements to establishwhether the impugned custom is valid 1. Has the custom been in existence for a time immemorial?Various witnesses with experience of at least 45 years indicate existence of custom All agree that “first come first serve” custom applies in the context of a free beach2. Is the custom reasonable?The purpose is to prevent disputes among persons engaged in the fishery business The custom is in fact fair and does not result in injustice 3. Is the custom generally observed by the fishing community?Evidence that custom has been observed for 45 years+Evidence of previous occasions where custom was successfully applied 4. Was the custom clear and certain?Custom is definite and clearly regulates the rights of fishermenThe only difficulty that the court identified was in respect of what constitutes a “reasonable distance from the first line laid”, however stated that it is impossible to fix the distance as it would have to be determined on a case-by-case basisCourt found that in the present matter, the defendants laid their line so close that the plaintiffs were unable to even shoot their netDecision Outcome= all 4 requirements satisfied therefore it was customary law and the plaintiff application was upheld