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EXAM PORTFOILIO

12888311

Department of Jurisprudence, UNISA

HFL1501: Historical Foundations of South
African Law

Due Date: 10 October 2022

Email: 12888311@mylife.unisa.ac.za
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TABLE OF CONTENTS

ITEM DESCRIPTION PAGE

NUMBER

PART I
The Origins of South African Law

1. Question 1 4

2. Question 2 4

3. Question 3 4-5

4. Question 4 5

5. Question 5 5–6

6. Question 6 6

7. Question 7 6

8. Question 8 6–7

PART II
Historical Foundations & developments of
the law of property and obligations

9. Question 9 7

10. Question 10 7–8

11. Question 11 8–9

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12. Question 12 9 – 10

PART III
The role of the Constitution in South African
Legal development

13. Question 13 10 – 11

14. Bibliography 12

15. Academic Honesty Declaration 13

16. Marking Rubric 14

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Part A; The Origins of South African Law

Question 1

1.1. South Africa is not codified and because of that we as South Africans rely on
different sources to find the law. One of our main sources of law is The Constitution
of the Republic of South Africa, 1996 1. Another source of law in South Africa is
Indigenous African Law, which is simply refers to law that has been practised within
our different communities2. Legislation is another source of law in South Africa,
which refers to law that has been passed down by Government.

1.2. United States of America has a codified legal system.

Question 2

2.1 The Black Administration Act 38 of 1927, was the first post-colonial era statute
that contained the repugnancy clause.

2.2 Yes it does. Although the Black Administration Act was Repealed by the Blacks
Administrations Act and Amendment of Certain Laws3 in 2005, it still ensures that the
repugnancy clause is still applied. Another act that ensures repugnancy is the Law of
Evidence Amendment Act 45 of 19884.

Question 3

3.1 The personal laws of Muslims were previously not recognised in South Africa, and
this was because Muslims marriages could potentially be polygynous marriages in
nature. However, in 2003 the Law Reform Commission5 proposed a Bill that
recognized Islamic marriages and further recommended that polygynous marriages
(whether Muslims or African) should be recognized in South African law. In the case

1
HFL1501 Study Guide; Learning Unit 1.
2
Bhe v Magistrate Khayelitsha [2005] 1 SA 580 (CC) at para 152.
3
Act 28 of 2005.
4
Subsection 1(1) of the Act.
5
South African Law Reform Commission
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of Daniels v Campbell NO an others6 the court stated that natural interpretation of the
word spouse in legislation should include partners in a monogamous Muslim marriage,
which therefore only catered protection for surviving spouses in monogamous
relationships only, which as a result still excluded spouses in polygynous marriages,
while the court in the case of Hassam v Jacobs NO and others7 had a different
approach and stated that certain sections of the Intestate Succession Act 81 of 1987
were not inclusive as it excluded widows who were married under [other]personal
Muslims laws, and therefore ordered that the word spouse should include ‘spouses’
which then afforded polygynous spouses the same protection and benefits as those in
monogamous marriages.

3.2 In the case of the Women’s Legal Centre Trust v President of the Republic of South
Africa and others8, the court declared all marriages concluded in terms of Sharia law
as being valid for all purposes in South Africa.

Question 4

3.1 This refers to when countries (mostly European) who have/follow a codified
system, also have their laws based on Roman Laws.

3.2 Its very important to have knowledge of the civilian roots of our legal system and
other legal systems because this will help one work within other civil-law legal systems
and further ensure that one can answer any legal question which might relate to civil-
law.

Question 5

5.1 The three elements that form the historical foundation of ius commune are Roman
Law, Canon Law and Germanic Customary Law.

5.2 France is included in a Southern African ius commune.

6
2004 (7) BCLR 735 (CC)
7
2009 (5) SA 572 (CC)
8
CCT 24/21 [2022] ZACC 23
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Question 6

The new legal system of administration brought different changes, one of those
changes being advocates had to come from either England, Ireland or Scotland to be
considered as advocate and if you didn’t come from these countries, you were required
to have graduated with a doctor’s degree(in law) from either the university of Oxford,
university of Cambridge and/or the university of Dublin. Another change that came
about was that the newly appointed Judges had to be chosen amongst the advocates
who came from the previously three mentioned countries. Another change in which
the First Character brought was that the Jury system was to be followed.

Question 7

7.1 After President Franklin Roosevelt signed the Atlantic Charter, the African National
Congress decided to have its own charter, which was then called The Africans’ Claims.

7.2 The Africans’ claims charter is important because it contained a section called Bill
of Rights for the black men and provided the type of society the liberation movement
had envisioned for South Africa. This charter is also important because it has been
incorporated into our Freedom Charter, which also embodies the principles of the
liberation struggle, and which further principles underlie in our South African
Constitution.

Question 8

16.1 Natural Law Theory.

16.2 S v Makwanyane and other 1995 (6) BCLR 665 (CC)
16.3 Ubuntu has no set definition but it’s a rather known African concept
which means ‘Motho ke motho ka batho’ which loosely translates as us being
one and needing each other, therefore ubuntu relates to “the value of human
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dignity irrespective of a person’s usefulness”9, which is the basic form of human

rights.

PART B; Historical Foundations & developments

of the law of property and obligations

Question 9

Transformative constitutionalism as Professor Karl Klare defined it, as a concept that

can be used to bring about change within our society and to better the society by
transforming10. Transformative constitutionalism includes bringing change to all sorts
of issues that are faced by the community, be it economical, environmental, political,
and/or educational, these changes can only occur through specific laws being
implemented to address these issues, and because our Constitution is the supreme
law of our land11, all laws should be in line with it and all laws flows through the
constitution, making it an important tool we can use to transform our societies by
passing new laws. It is through the constitution that we can then change the
imbalances of the past and bring about unity within our communities which in essence
is the key goal of the transformative constitutional project.

Question 10

10.1.1 Property/House
10.1.2 Slaves

10.2 The right to use the thing (ius utendi), the right to have ownership of the fruits the
thing bared (ius fruendi) and the right to destroy the thing (ius abutendi).

9
HFL1501; Study Guide, Learning unit 7; The universal component: The history of human rights in South Africa.
10
Klare K “Legal culture and transformative constitutionalism” 1998 S AJHR 150.
11
S 2 of the Constitution of the Republic of South Africa, 1996.
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10.3 A real right is the right to and of a thing and whereby you are the owner of the
thing which can be enforced by a real action and can be enforced against any other
person, while a limited real right refers to the rights one has over another person’s
thing without having ownership of that thing.

10.4 The actio negatoria is the legal remedy available to the owner of land over which
another person incorrectly and illegally claimed to have a servitude.

10.5 Tenure is the right an occupier has to occupy someone else’s property legally 12.
The majority judgment in this case made reference to the historical of South Africa
which have led the black men to live in poor conditions and because of our past and
as well as our constitution trying to rectify those imbalances by ensuring that everyone
lives in dignified conditions. The mentioned that our lives as people are often ordered
around where we live, which has a direct link to dignity.

10.6 I do not agree with the criticism against the judgement because the dwellers of
the land got into agreement with the employer stating that they could only live there
for as long as they are employed by him, and because the City had provided these
dwellers with two different housing, the court did not ignore the spirit of ESTA as the
city tried to provide them with proper housing but they refused.

Question 11

11.1 Contracts can be formed through many ways, the first being contracts that are
formed through mutual agreement and writing down these agreements/terms of the
contract. Another way is through consensual agreement between the two parties, as
well as contracts that can be formed through agreement between the parties including
delivery of the thing and lastly contracts that could be formed through verbal
agreement.

11.2.1 Duress as Bonnie is intimidating Andane into concluding the contract.

11.2.2 Error in nominee, which is a mistake regarding the name of the object.

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Tenure Act 62 of 1997.
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11.2.3 Dolus (fraud) as Francois intended to mislead the other party.

11.3 Contracts creates two obligations between the two parties involved while a
unilateral contract is one sided therefore only one obligation is created by the contract,
an example of such a contract is an insurance contract.

11.4 The purpose of the Consumer Protection Act is to address unfair contracts as
well as protect consumers. The CPA was created to help transform our society by
changing the unequalness between ‘the little guy’ and ‘the big guy’. Another reason
and/or purpose of this act is to protect poor people from being subjected and/or
manipulated by other possible powerful parties13. This act was created to further
prevent and/or protect the most vulnerable people within our societies and by doing
so, it promotes the transformative constitutional project14.

Question 12

12.1 Damage refers to a wrongful act and/or harm that a victim has been subjected
too while damages refer to an amount of money such a victim would be entitled too.
Satisfaction refers to ‘comfort money’ which is meant to soothe the victim’s feelings
and make amends.

12.2 Intention has to be present.

12.3 During Roman times, the amende honourable was a remedy that could be used
against acts of defamation, which simply meant making amends between the parties.
In modern day age, this concept can somewhat be said to be replaced by the concept
of Ubuntu as it has the same principles and is based on human kindness which
supports the notion of making amends through an apology to restore relationships.
The courts have noticed that people are different and not everyone will accept money
as making amends therefore making the defendants apologize for their actions has
become another way to make these amends, as in the Le Roux and others case15.

13
Bauling and Nagetegaal 2015 De Jure 151.
14
Section 4(2)(b)(i) of The Consumer Protection Act 29 of 1993.
15
Le Roux v Dey 2011 (3) SA 274 (CC).
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12.4.1 The parties decided to settle out of court. Applicants could then bring forward
claims as per each case which claims ranged between R700 000 and R250 000.

12.4.2 I do believe that the outcome reflects respect for the victims, because instead
of the defendants avoiding this matter and dragging in for years on end at court, they
decided to settle as per needs of each applicant.

PART C; The role of the constitution in South

African legal development.

Question 13

13.1 The Constitution is the supreme law of our country because all laws must flow
through it and therefore must be aligned with the constitution, which would mean that
it trumps any other law that isn’t. The constitution ensures that government does not
violate it, nor its core principles and values as the constitution is superior even to
parliament.

13.2 The Constitution ensures government accountability by limiting the powers of

government, through the separation of powers and as well as through the Bill of Rights
that are binding on all three spheres of government. The constitution ensures
accountability through its principles of openness and responsiveness. All of this is
done through the judiciary as it is impartial and independent and tasked with
safeguarding as well as enforcing the constitution.

13.3 The Constitution captures the common values of our society through making
these values the founding provisions of the constitution as stipulated after our
preamble.

13.4 I do not agree with this statement, as I view the constitution as a tool that has
always been used to bring about transformation within our societies and that it’s the
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courts responsibility to enforce this transformation as the Constitutional court had

stated in the Doctor for Life International v Speaker of the National Assembly and
others16.Our former Constitutional Court Deputy Chief Justice Moseneke also agrees
that our Constitution can bring transformation, and that the entire purpose of our
constitution is to transform our society, and that the only way it could be done is
through the people as we are the ones responsible for bringing this change17.

13.5 I agree with Gumede, as the writers of the constitution had a clear-cut vision as
to how they could write down a law that would ensure transformation and equality
within the societies, and a law that will try correcting the mistakes of the past.
Therefore, the constitutions sole purpose is to bring about change within Africa, and it
is created by Africans who were subjected to inequality for Africans for the greater
good of the country, which would then mean the constitution does have a solution for
any problem faced by Africans.

16
2006 (6) SA 416 (CC)
17
Moseneke D “The Fourth Bram Fischer Lecture: Transformative adjudication” 2022 SAJHR 314.
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Bibliography

1. Administrations Act and Amendment of Certain Laws Act 28 of 2005.

2. Bauling and Nagetegaal 2015 De Jure 151.

3. Bhe v Magistrate Khayelitsha [2005] 1 SA 580 (CC).

4. Daniels v Campbell NO and others 2004 (7) BCLR 735 (CC).

5. Doctor for Life International v Speaker of the National Assembly and others

2006 (6) SA 416 (CC).

6. Evidence Amendment Act 45 of 1988

7. Hassam v Jacobs NO and others 2009 (5) SA 572 (CC).

8. HFL1501 2022 Study Guide. University of South African

9. Klare K “Legal culture and transformative constitutionalism” 1998 S AJHR 150.

10. Le Roux v Dey 2011 (3) SA 274 (CC).

11. Moseneke D “The Fourth Bram Fischer Lecture: Transformative adjudication”

2022 SAJHR 314.

12. Tenure Act 62 of 1997.

13. The Constitution of the Republic of South Africa,1996.

14. The Consumer Protection Act 29 of 1993.

15. Women’s Legal Centre Trust v President of the Republic of South Africa and

others CCT 24/21 [2022] ZACC 23.

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Academic Honesty Declaration:

1. I know that plagiarism means taking and using the ideas, writings, works or
inventions of another as if they were one’s own. I know that plagiarism not only
includes verbatim copying, but also the extensive use of another person’s ideas
without proper acknowledgement (which includes the proper use of quotation marks).
I know that plagiarism covers the use of material found in textual sources and from the
Internet.
2. I acknowledge and understand that plagiarism is wrong.
3. I understand that my research proposal must be accurately referenced.
4. This research proposal is my own work. I acknowledge that copying someone else’s
research, or part of it, is wrong, and that submitting identical work to others constitutes
a form of plagiarism.
5. I have not allowed, nor will I in the future allow anyone to copy my work with the
intention of passing it off as their own work.
6. I confirm that I have read and understood UNISA’s Policy for Copyright and
Plagiarism- https://www.unisa.ac.za/sites/corporate/default/Apply-for-
admission/Master%27s-&-doctoral-degrees/Policies,-procedures-&-forms

Full Name: Keamogetswe Lethabo Motloba

Student No: 12888311
 MARKING RUBRIC (5 marks)

Please include this marking rubric on the last page of your portfolio submission:

MARKING RUBRIC: Technical aspects of the portfolio examination

It is possible to obtain one mark for each of the following criteria:

Cover page and table of contents included

Presentation neat and according to CLAW formal requirements, as
provided in Tutorial Letter 301
Acceptable language usage and spelling
Bibliography included and aligned with OSCOLA style, as provided in
Tutorial Letter 302
Footnotes included and aligned with OSCOLA style, as provided in
Tutorial Letter 302

[Total Marking rubric: 5]

PART 1: 25
PART 2: 40
PART 3: 10
MARKING RUBRIC: 5

GRAND TOTAL: 80

© UNISA 2022

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