HFL1501

Assessment 1
Shatadi mahlako Kathleen paile
Student no. 69764360

Question 1: answer
1.1 In a common law legal system previous legal incidents or judicial
decisions are used to determine current cases, noting that this
system is influenced by English law. Whereas in a civil law legal
system already codified statutes rule the country, noting that this
system is influenced by Roman law.
1.2 Having knowledge of these legal systems will aid in the ability to
work with other civil-law legal systems as well as in making
comparative legal research with unfamiliar civil-law systems easier.
Furthermore, taking note of the way these legal systems solved legal
issues will assist in applying their methods to address South African
issues.

Question 2: answer
2.1 In Women’s Legal Centre trust v President of the Republic of
South Africa and others, the court found the common-law definition
of marriage unconstitutional and invalid “to the extent that it
excludes Muslim marriages”.

2.2 The decision of this case now drastically changes this position as
it declares marriages terminated in terms of sharia law to be valid for
all purposes.
2.3 This judgement does not change the fact that Islamic law is still
not officially recognised as a source of law in south Africa, only the
legal position of Muslim marriages.
Question 3: answer
The praetor urbanus could only administer justice between roman
citizens, since the roman ius civil was only relevant to roman citizens.
However, the praetor peregrinus was liable for the administration of
justice in matters involving foreigners. It was his duty to construct a
body of legal rules that could be used in cases between foreigners
and roman citizens.

Question 4: answer
It is indeed possible to refer to southern African ius commune. In
Africa, countries like Namibia, South Africa, Lesotho and Botswana all
share a similar legal lineage. Their legal systems are founded on
indigenous law and roman-Dutch law, which was influenced by
English law. The fact there is a common historical foundation of this
kind in the laws of African countries was illustrated in the following
dictum in the Botswana decision in matumo v news company.

Question 5: answer
5.1 It was the Raad van justitie.
5.2 It was the Privy Council.
5.3 It was the Appellate Division of the Supreme Court

Question 6: answer
6.1 It was Mahatma Gandhi.
6.2 It was the Sharpeville massacre.
6.3 It was the Freedom Charter.

Question 7: answer
It is in my opinion that parliament was able to promote unjust laws
due to the Constitution of the land during that era. Seeing as in most
countries the constitution is the supreme law, anything stated to be
lawful or unlawful is practiced and promoted; thus the promotion of
the unjust laws of apartheid was the result.

Question 8: answer
The decisions in Le Roux and others v dey, the court noted that
“similar roots are to be found in African customary law, but their
interrelation with the Roman-Dutch remedies, and their melding into
the single system law under the constitution, requires mature
reflection and consideration”.
In Dikoko v Mokhatla the court stated “although Ubuntu-botho and
the amende honourable are expressed in different languages related
to separate legal cultures, they share the same underlying
philosophy and goal”.
In Paulsen and another v slip knot investments 777(pty) limited, the
court pointed out with regard to a decision of the supreme court of
appeal “the court was doing what appellate courts ought to do: it
was moulding the common law according to justice and good sense
in accordance with modern requirements.

Bibliography
HFL1501 study guide
https://www.diffen.com/difference/Civil_Law_vs_Common_Law#:~:t
ext=Legal%20systems%20around%20the%20world,and%20ordinanc
es%20rule%20the%20land.
Case summary womens legal centre decision 2022 pdf.