Gideon Matthews

Student number 36962325

Historical Foundations of South African Law (HFL1501)

PORTFOLIO EXAMINATION

Unique number 763160

Due date 23 October 2019

 Table of Contents
Page

PART 1: The origins of South African law 3

PART 2: Historical foundations and development of the law of property and
obligations 5
PART 3: The role of the Constitution in South African legal development 11

1
PART 1: The origins of South African law

Question 1

(a) True

(b) True

Question 2

(a) False. The common law is a living law, which is still applied by our courts and
which can adapt to the changing values of our society. Courts have shown
that where the needs arises, they are prepared to adapt or abolish the
common law to suit the needs of a developed society and to conform to
present – day constitutional principles’

(b) True. The Constitution recognises the common law as a source of South
African law and, in several provisions, compels the courts to develop the
common law. The common law is regarded as the historical component of our
law. The academic writing of Roman-Dutch law is regarded as common law,
and its rules, precepts and principles are looked upon as basis of the South
African legal system.

2
Question 3

3.1 c

Question 4

4.1 The Ultramontani French law school of Orlѐans

4.2 The glossators

4.3 The Ultramontani

4.4 The glossators

Question 5

5.1 Hugo De Groot (Grotius)

5.2 Van der Linden’s Handboek

5.3

Question 6

6.1 a

3
 Question 7

7.1 a

Question 8

All law derives from the Constitution, the Constitution is the supreme unit of
the judicial system. Where there is an inconsistency within the law, the
constitution will be referred to as a “banana republic” meaning that any law is
applicable and that create a space for a lawless society.

4
PART 2: Historical foundations and development of the law of property and
obligations

Question 9

Firstly, law creates and maintains peace and order in society by balancing the
interests of the individual and those of the larger community or the state. In South
Africa the protection of citizens (and noncitizens) is controlled by the Constitution.
Section 7 of the Constitution states:

This Bill of Rights is the cornerstone of democracy in South Africa. It

enshrines the rights of all people in our country and the democratic
values of human dignity, equality and freedom.

Thus, it is evident that the members of society have a common government to which
by social contract (in this instance, the Constitution) they have entrusted the
responsibility to protect them and maintain peace. The Constitution through the Bill
of Rights guarantees the human rights of every citizen of South Africa against
arbitrary violation by the state and other individuals. Social contract refers to a
situation where citizens have willingly come together and agreed to a set of
rules in terms of which their lives will be organised, and thus create a sense of
order, certainty and protection.

Question 10

10.1 A real right is a right in respect of a thing, it is enforced by real actions. It can
be enforced against any person who infringes on a person’s right to a thing.
As to protection of a real right the owner can claim his things by means of the rei
vindicatio (a real action which protects his real right in his property) which
means by justify himself with means of proof or evidence. An example of a
real right is ownership.

5
10.2 Legal object is a thing. People with influence over the judicial system during the
area of slaves and masters, regarded slaves as legal objects. The slaves have had
no rights, was highly regarded as a thing that can change ownership from one
master to another.

A legal object has no real right and the owner can decide what ever he/she is going
to do with it. The owner also has the rights to the fruits of that legal object. Slave
masters could hire slaves out to another slave master and whatever labour the slave
has produce benefited his original master.

10.3 (i) Restriction by personal rights: If the owner of a house leases a house to a
lessee, the owner obviously cannot live in that house any longer. Therefore,
the owner’s use and enjoyment is limited by the agreement between the
lessee and the lessor.

(ii) Restriction by provision of law: The Twelve Tables made provision for
restriction on owners, based on public interest. It imposed restrictions
intended to prevent a person from exercising her ownership over immovable
property in a manner detrimental to her neighbours. It was possible for a property
owner to require his neighbour to remove the overhanging branches from a
tree. Neighbour law is merely one example of how an owner’s rights can be
restricted by law.

10.4(a) Appropriation(occupation)

(b) The creation of a new thing from existing material(specificato)

(c) Appropriation(occupation)

6
10.5(a) Daniёls v Scribante and another

(b) Occupiers of Erven 87 & 88 Berea v Christiaan Frederick De Wet NO⁶⁹

10.6 Looking at the facts on how the case was treated from the beginning, the
unlawful occupants where given on three occasions, alternative accommodation, and
regardless of what they were offered they constantly rejected the City’s offer. Like
the Court I also asked myself when they will really be satisfied with that which is
offered to them. In society the needs and wants of members are not all the same,
and you will never be able to satisfy everyone in society, thus the Court see that the
City met the demands of the unlawful occupants, it is the unlawful occupants that did
not agree with or outlined what they needed.

Question 11

11.1 (a) Yes both Andile and Marcus agreed on the contract, meaning they both
reached consensus (consensus ad idem, agreement on the same thing) in
this instance the sale of Marcus house. In the absence of agreement, and if it is
impossible to establish their intentions during the sale of the house there will
be no contract. Their contract is recorded in writing and both signed it as well.

(b) On condition that Andile’s uncle granted him a loan

(c) He can hold Marcus accountable for performance in terms of their contract,
also there is the contractual liability clause that can he can use to hold
Marcus liable.

7
11.2 Bonita is not entitled to demand a payment from Renay, the sewing machine
was stolen during a burglary at her house. Casus fortuitus in Roman law is
referred to as inevitable accidents (unavoidable) and forms thereof include
theft, death and disease.

It is unforeseeable for Renay to perform the duty of payment towards Bonita

for an item that she did not receive.

11.3 (a) Commodatum (loan for use) an imperfectly bilateral contract

(b) Real contract Mutuum (loan for consumption) a unilateral contract

(c) Depositum (deposit) an imperfectly bilateral contract

11.4 (a) False

(b) False

(c) True

11.5 Ubuntu in the African essence describe the duty of each serving the other with
sincerity and still in society not all people deal in good faith when it comes to
the law of contracts. A few citizens uphold the principles of ubuntu during
conclusions of contracts.

8
 Others are not consensual and do not perform the contract duties, other
intentionally commit themselves to fraud in contract obligations. Ubuntu still
must develop more in terms of the law of contracts.

Question 12

12.1 (a) True

(b) True

(c) False

(d) True

(e) False

(f) True

12.2 Tshepo committed the delict of Conduct and, delict of damage to property
damnum iniura datum) and delict of wrongfulness as well as delict of
fault (mens rea). Tshepo’s intentions of accusing Mpho due to his own
negligence, resulted the delict of fault, he further damage Mpho’s property.

Both Tshepo and Mpho committed a delict of conduct and iniuria against each
other by intentional injuring each other’s dignity or reputation. Tshepo
committing a delict of wrongfulness by forcing Mpho to remove her shoes at

9
 knife point. Holding Mpho at knife point is also a delict of fault (mens rea) he
does it intentionally or deliberately.

12.3 The Constitutional Court provided clarity in the matter. In the interest of
justice, and in line with the convictions of the South African society, the Court
decided to interpret and apply the rules on negligence in a way that will, in
future, hold private security companies liable for the losses of their clients, if they
could have prevented the losses. The Court expanded our understanding of these
principles, thereby developing the common law on delict in order to protect
citizens and their property.

10
PART 3: The role of the Constitution in South African legal development

Question 13

13.1 Constitutional checks and balances referring to the system the Constitution
Court use to ensure that the law or judicial system is implemented equally, the
law derive from one Supreme unit and the rest of the judicial system must
incline and abide by that ruling. If the other unit of the judicial system use
another law that unit is not complying to order.

13.2 Yes it does. The Constitution is the supreme unit of law and all law derives
from it. There is no separation of powers between the legislature, executive and
judiciary, checks and balances is to ensure accountability, responsiveness
and openness

13.3 Yes, beside that it ensures accountability, it ensure that judiciary has power to
safeguard and enforce the Constitution and all fundamental rights.

Question 14

The notion of apologising for an insulting action or behaviour is not foreign

under customary law either. Ubuntu forms the basis of African customary law
and the principles that underlie it. Ubuntu has been described as denoting
“humaneness and personhood” and as describing “a humane, kind-hearted
person”. If a defamatory act is viewed from this perspective, it is clear that
restoring relationships is important. The African notion of justice is
fundamentally restorative, and an apology would therefore have the potential
to restore a relationship and soothe the hurt feelings of the person who has been
injured. Not all individuals regard money as equally important and the
payment of a sum of money as damages does not allow for justice to take on
any other form.

11
 The Court’s decision to order an apology, and not just the payment of
monetary damages, is based on the overlapping underlying principles of justice
and fairness found in both Roman-Dutch and African customary law principles.
There are instances where legal and communal principles and remedies are
similar or driven by the same values of justice and fairness; the Le Roux case
illustrates this.

Looking at all the interesting things that happened in this case. For the sake of
our discussion on iniuria, it is important to see that the Court ordered
restitution in a different form than we usually see in courts, namely as an apology
(accompanying a payment of satisfaction). The Court based its decision on
both the Roman-Dutch-based common law and the underlying principles of African
customary law. This is another powerful example of how the influence of the
Constitutions is shaping our idea of justice.

Question 15

15.1 It is important to study legal history, it gives clear traces to the sources and
factors that have contributed directly or indirectly to the development of a legal
system. These relate to the political, constitutional, economic, sociological and
religious factors that have influenced the development of the legal system. It
cannot be pinpointed exactly if there was any law in existence before 17 th and
18th century. The impact that the law had on South African’s is still visible as
to the fact that it benefited the law makers.

These legal system of the 17th and 18th century was an imposing legal system,
against the wishes of the local inhabitants. Dutch East India Company’s
judicial administration of the Cape during this period was not well ordered.
Courts were staffed by laymen. As a result, the administration of justice in the
interior and the application of indigenous law were not high on their agenda. As
early as 1905, the Inter-Colonial Native Affairs Commission recommended that
territorial segregation was necessary to safeguard white interest.

12
 Segregation guaranteed white political and economic control and was a shield
against black majority rule. Which was aimed at keeping blacks in a position
of subordination and which had an impact on the development of indigenous
law.

15.2 Historical foundations and development of law of property and obligations the
subject of: The law of property. It states that this unit of law has virtues and
flaws, also it’s a wider concept. More importantly there is also gaps in the law
system and indicating the need for improvement and further development in
line with the principles of the Constitution. Firstly, one must distinguish
between the two concepts of Legal subject (an individual who has certain rights
and duties, because a certain set of legal rules apply to him); and legal objects
(are things that legal subjects can have rights to).

With legal subjects and legal objects derives a special relationship, herewith
we look at the issue on slavery, where people be seen or regarded as a property.
The Romans believed that some people had the right to own other human
beings. Slaves were therefore legal objects and not legal subjects. Over time,
various laws were passes to improve the working conditions of slaves and
improve their rights under the law. However, they were still regarded as
property. That all is in the past, today many steps have been taken to protect
the human rights of all people around the world. This is an example of the law
developing to protect all legal subjects as equal.

15.3 Yes, visuals can be deceptive, thinking the law would treat all citizens just and
fair, yet a lot of legal subjects still suffers due to as people state “the legal
system failure”, there is still a huge gap when it comes to rights of legal
subjects, poor people’s cases are not fairly handled as that of rich people.

Even at Constitutional level the justice system had dealt a bad faith on
citizens of this country. Baron and others v Claytile (Pty) Limited and other, the
Land Claims court and the Constitutional Court confirmed that the eviction order

13
was valid and lawful. Looking into the criticism against the judgement, civil society
indicate the injustice done by the Court, in approving the eviction order.
Stating that the Court ignored the spirit of ESTA (Extension of Security of
Tenure Act) and importance of providing secure land tenure to occupants on the
farm.

15.4 The Law of Delict describe the issue of negligence and accountability much
better on the case: Damnum iniuria datum and Loureiro and others v iMvula
Quality Protection (Pty) Ltd. Never has the law been so clear as to services
render and considering the responsibility of the service provider.

In this concept on law of Property the Court expanded our understanding of

these principles, thereby developing the common law on delict in order to
protect citizens and their property. Thus, it shows that the Court also focus
through the law of delict on the rights and needs of our society how it had
developed.

15.5 I have enjoyed the Module in the first part it gives a clear distinctive view
where South African law originated from. The impact of Apartheid and how it
failed society, yet the law does not deal in good faith to all. The fact that it takes
prominent men and women to fight for their rights, equal treatment to all
citizens of this Country and ensure that the law of the country speak with one
voice to its citizens.

In part two the law of property gives a clear direction how people should
conclude contracts, when and how one can become the property
holder/owner. What the law states on obligations when one is concluded in a
contract and what legal remedies can be use if there are any discrepancies within
the contract. For the third part I believe if South Africa could have drafted its own
Constitution than it can also as a country draft its own laws that speak
towards the injustices its citizens suffer daily. Even the principle of ubuntu does
not equally benefitted all South Africans. For a country that is leading its nation
25years into democracy, the citizens should have by now enjoyed the fruits of

14
 the so-called democratic dispensation. There is still a lot of development that
must take place within the justice system.

Marking rubric

MARKING RUBRIC: Technical aspects of the portfolio examination

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

Presentation neat and according to CLAW Formal Requirements

Inclusion of completed academic-honesty declaration

Bibliography included and types of sources indicated by separate headings

References included in footnotes

Footnotes and bibliography according to CLAW Prescribed Style

15
Bibliography

Constitution of South Africa: Chapter 2, Section 25; Chapter 1; Section 39(2)

David Letsaolo: Skills Course for Law Students: Only Study Guide for SCL1501
(Unisa Pretoria 2016-2018)
Oxford Concise English Dictionary
Historical Foundations of South African Law: Only Study Guide for HFL1501
(Unisa Pretoria 2019-2021)
Jacobs A, Ferreira-Snyman MP et al Introduction to Law: Only Study Guide for
ILW1036 (Unisa Pretoria 2009)

16
Academic honesty declaration

Declaration

1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.

2. I declare that this portfolio is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

5. I am aware that marks can be deducted for poor/no referencing in this

examination.

NAME: Gideon Matthews

ID NUMBER / PASSPORT NUMBER: 7803115138083

STUDENT NUMBER: 36962325

DATE: 22/10/2019

17