Lesson 1: Part 1 Learning Unit 1

Lesson 1
In this lesson, we look at Part 1, Learning Unit 1 (pp 2-10) in the Study Guide. This learning unit is
actually really important as it gives you the framework for the rest of Part 1, and tells you a bit about the
external legal history of the South African legal system.

As with any new subject or field, you will need to get to know the terminology before you can continue
with the rest of this module. This learning unit therefore also introduces you to some important new
words and phrases that you must know. When reading Learning Unit 1, make sure that you take note of
and understand the following terms:

• the difference between external and internal legal history

• legal pluralism
• a mixed or hybrid legal system
• codification
• a civil-law legal system
• a common-law legal system
• the difference between a common-law legal system AND the South African common law
• reception
• transplantation
• imposition
• the difference between practical and scientific reception
• the three components of South African law

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One other aspect that you need to understand before continuing with this module, is how to refer to
centuries, and how to indicate a date on a time-line. Have a look at Activity 1.1 Question 4 on page 9 of
the Study Guide. Then compare your answer to the feedback at the bottom of page 9.

In our experience, students who have never studied history before, sometimes struggle with
understanding historical dates and time-lines. If you are one of them, have a look at this easy-to-
understand video below. It explains to you the meaning of the terms AD and BC, and also shows you
how to read dates on a time-line:

Do the time-lines now make more sense? Can you pinpoint a historical event on a time-line? And can
you put historical events in chronological order, saying which event happened first, which events
happened next, etc?

Read Learning Unit 1 carefully. Answer the questions in Activity 1.1 on pages 8-9. Then compare your
answers to those provided in the feedback on pages 9-10. Lastly, test your knowledge of this Learning
Unit by doing the self-assessment questions on page 10.
Lesson 2: Part 1 Learning Unit 2

In Learning Unit, 1 you learned that the South African legal system consists of three components,
namely the indigenous African component, the Western component and the universal component.
Learning Unit 2 takes a closer look at the external legal history of the indigenous component. (That is
why the phrases "Indigenous component" and "Indigenous African law" on the diagram on p 11 are in
bold.)

This learning unit briefly discusses the status and regulation of indigenous African law from the pre-
colonial era until today. It is important that you understand how the status and recognition of
indigenous African law have changed through the centuries. This learning unit also very briefly looks at
the status of Islamic law in South Africa.

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Keep in mind that although indigenous African law is now officially recognised by the Constitution as a
source of SA law, Islamic law does not enjoy the same recognition. However, recently, the SA courts
have indicated their willingness to recognise certain aspects of Islamic law. For this reason, we also take
a brief look at the development of Muslim marriage law.

An important point to remember is that although indigenous African law is officially recognised as a
source of South African law, it is still subject to the Constitution. This is because all law in South Africa is
subject to the Constitution and the Bill of Rights. If the courts find that a law or a rule is in conflict with
the values of the Constitution, that law or rule can be declared invalid by the Constitutional Court.

Also take note that the repugnancy clause further limits the application of indigenous African law. The
repugnancy clause is currently contained in section 1(1) of the Law of Evidence Amendment Act 45 of
1988. Have a a look at the extract below for the wording of that section:

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With regard to Islamic law: Keep in mind that Islamic law is NOT officially recognised as a source of
South African law. However, our courts have indicated their willingness to embrace a new approach to
the laws relating to Muslim marriages. In the Study Guide, we describe the legal development that took
place in this regard by explaining the decisions in four different judgments regarding the courts'
changing view on Muslim family law. Make sure that you know and understand what the courts said in
each of the four judgments discussed on pages 17 and 18 of the Study Guide. Please also take note of
the important recent decision of the Constitutional Court regarding the status of Muslim marriages.
This new decision changes the position of Muslim marriages within South African law. You do not have
to read the entire judgment; however, you must study the case summary that we provide and that is
available under Additional Resources by clicking here.

To be able to better understand the importance of these four judgments, also make sure that you
understand the difference between the following concepts:
 • monogamy: the practice where only one man and one woman are allowed to be married to
each other at the same time
• polygamy: the practice where a man or a woman may be married to more than one spouse at
the same time
• polygyny: the practice where a man is allowed to have more than one wife (in other words, a
form of polygamy)
• polyandry: the practice where a woman is allowed to have more than one husband (in other
words, a form of polygamy)

This list of terminology will come in handy when studying the four cases on pages 17 and 18 of the Study
Guide. Remember that whereas the Daniels v Campbell case referred to monogamous Muslim
marriages, the Hassam v Jacobs case referred to polygynous Muslim marriages. When answering
questions in the assessments, read the wording of the question carefully as it could give you clues about
the case referred to.

Now do Activity 2.1 on page 16, and Activity 2.2 on page 18. Then compare your answers to the
feedback provided there. Also do the self-assessment questions on page 19.

Lesson 3: Part 1 Learning Units 3 & 4

Lesson 3
In this lesson, we are working on Part 1 Learning Units 3 and 4 on pages 20 to 40 of the Study Guide.

Learning Units 3 and 4 deal with the Western component of the SA legal system. Remember that the
Western component consists of Roman-Dutch law (more on Roman-Dutch law in Learning Unit 4) and
English law. Look again at the diagram on page 20 of the Study Guide, where we indicate to you how the
various components make up the SA legal system.

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In Learning Unit 3, we take a brief look at the external historical development of Roman law. (Later this
semester, you will look at the internal historical development of Roman law when you study Part 2 of
the Study Guide).

Roman law started in 753 BC (that is the 8th century BC). Roman law developed over a period of more
than a thousand years, and was then codified in the Corpus Iuris Civilis by Emperor Justinian in the 6th
century AD (in other words, 15 centuries or 1 500 years after Roman law began). This codification is still
the go-to source of Roman law used worldwide, and is also still referred to by the SA courts today.

It is important that you can list and explain the internal and external legal historical factors that
contributed to the development of Roman law over the centuries. These factors include:

• The Twelve Tables (the first codification of Roman law)

 • The activities of the praetor (a Roman official - remember that this office was served by various
individuals over the centuries and doesn't refer to one person only)
• The contribution and activities of the jurists
• The impact of the Roman emperor on legal development
• Collections of imperial laws
• Collections and simplifications of classical writings
• The Statute of Citation of AD 426

Bear in mind that the impact of these factors changed over time, and as the political structure of the
Roman Empire changed from a kingdom, to a republic, to the Principate, and finally to the Dominate.
See the dates of these on page 22 of the Study Guide.

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The remarkable thing about Roman law is that it did not disappear after the fall of the Western Roman
Empire. No, Roman law continued to be applied in Western Europe in some form or another until it was
rediscovered again in the 12th century (but more about that in Learning Unit 4).

How did Roman law survive after the fall of the Western Roman Empire in AD 476? Before you can
answer this question, you must know the meaning of the following terms:

• the Germanic tribes or peoples (see, also, p 36)

• the personality principle
• the Leges Romanae Barbarorum (literally translated as the Roman laws of the Barbarians)

Read again pages 26 and 27 to make sure that you understand how each of these factors impacted on
the survival of Roman law.

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If, in twenty years' time, you don't remember anything else about the development of Roman law, it is
crucial that you at least remember the Corpus Iuris Civilis. Why? Because it is still cited by our courts and
by academics who work on developing the law today.

It is very important that you understand WHAT the Corpus Iuris Civilis was, what it CONSISTED of, and
WHY it is still considered important today. Read again pages 27 and 28 in the Study Guide.

Of course there have been various editions and translations of the Corpus Iuris Civilis over the centuries.
You can find a translation of it in almost any language today. However, below is a screenshot of the title
page of a 1794 edition that was published in Naples, Italy, which is uploaded here for interest sake. You
can find many more examples when you search online.
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Learning Unit 4 tells you more about how Roman law, which had survived for seven centuries (or 700
years) after the fall of the Western Roman Empire in AD 476, was rediscovered, revived and
incorporated into the legal systems of Western Europe from the 12th to the 19th centuries.

Why is this important for the development of South African law? Because Roman-Dutch law, which is
one element of the Western component of SA law, was part of the European ius commune. And what is
the European ius commune? It is the common law of Western Europe: the legal systems that formed
part of the European ius commune all showed similar influences, namely the impact of Roman law, the
impact of canon law (that is the law of the Church) and the Germanic customary law of that specific legal
system. In other words, Roman-Dutch law showed the influence of Roman law, canon law and Dutch
customary law, just like French law showed the influence of Roman law, canon law and French
customary law.

Read again pages 34 and 35 in the Study Guide.

In Learning Unit 5, you will see that the European ius commune also plays a role in the broad
interpretation of Roman-Dutch law (see p 41).

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This brings us to the end of this third lesson. Read again Learning Units 3 and 4. Do Activity 3.1 on page
28 and Activity 4.1 on page 39 of the Study Guide, and compare your answers to those provided in the
feedback. Also do the self-assessment questions on pages 29 and 40. If you have any questions, please
post them in the Forum for Part 1.

Lesson 4: Part 1 Learning Units 5 & 6

Lesson 4
In this lesson, we take a closer look at Part 1, Learning Units 5 & 6 on pages 41-58 of the Study
Guide. Both these learning units deal with external legal historical development in South Africa
before the constitutional period. In other words, before 1996.
You already know that South Africa was under Dutch rule (1652-1795 and 1803-1806), and
under British rule (1795-1803 and 1806-1961). During these periods, the legal systems of those
countries were applied in South Africa, and these influenced the development of South Africa.
Today, the Western component of South African law is still made up of Roman-Dutch law and
English law. See again the diagram on page 30 of the Study Guide.
In Learning Unit 5, you will come across some important aspects of the application of Roman-
Dutch law and English law in South Africa, and of a discussion about their ultimate influence on
the development of SA law as we know it today. You must read and study everything, but make
sure that you also understand these following concepts in particular:

• the narrow and broad interpretation of Roman-Dutch law

• the early administration of justice before 1795, and the first court, the Raad van Justitie
• the Charters of Justice of 1828 and 1834
• the way in which English law was received at the Cape
 • the factors that contributed to the reception of English law at the Cape
• the development of law in South African before Union (1910)
• the role of the Privy Council until 1950
• the impact of the Appellate Division on the legal development in SA
• the SA Law Reform Commission
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Learning Unit 6 looks at the contribution of the liberation movement to legal development in
South Africa. Remember that indigenous African law was only granted limited recognition before
1996 (read again Learning Unit 2). This was one of the consequences of apartheid. The
liberation movement resisted apartheid, segregation and racism.
In Learning Unit 6, you will come across various important documents, events and people that
had an influence on the development of SA law. For example, these include:

• the Sharpeville massacre

• the emergence of the Black Consciousness movement in the 1970s
• the Harare Declaration
• Chief Albert Luthuli
• Bishop Desmond Tutu
• Nelson Mandela
• The Africans' Claims
• The Freedom Charter
• The ANC's Constitutional Guidelines for a Democratic South Africa
Make sure that you understand the impact of all of these persons, events and documents on the
legal historical development in South Africa. Keep in mind that some of these did not
necessarily directly contribute to legal historical development, although they may have
influenced law development in an indirect way.
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Have a look at this image of the Freedom Charter. You do not need to know the content of the
document for assessment purposes; it is merely posted here for interest sake. Which principles
can you find in this document that is also present in our Constitution of the Republic of South
Africa, 1996? If you're not sure, also browse through Chapter 2 of the 1996 Constitution.
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This concludes the fourth lesson. Once you have worked through Learning Units 5 and 6, and
have completed Activities 5.1 on page 46 and Activity 6.1 on pages 57-58, and the self-
assessment questions on pages 47 and 58, please feel free to post your remaining queries in
the Forum for Part 1 where the lecturers will respond to your query.

Lesson 5: Part 1 Learning Unit 7

Lesson 5

By now you know that the South African legal system consists of three components. If you can't
remember, have a look at the diagram on page 4 of the Study Guide. We have already dealt
with the Indigenous component (Learning Unit 2) and the Western component (Learning Units
3, 4, 5 and 6). This lesson focuses on the Universal component.
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The first important aspect that you need to understand in this learning unit concerns the
principle of constitutionalism, which is based on the idea that the power of the state should be
limited.
How is the power of the state limited? By requiring the state to act in accordance with guidelines
laid down in the constitution of that country.
Why is this important? To allow for an open and free democracy, and to prevent abuse of
power.
You will learn more about the role of our Constitution in Part 3 of this module.
For now, make sure that you understand WHAT the principle of constitutionalism means, and
that you can describe
the three approaches to the principle of constitutionalism. These are:

• complete denial of constitutionalism

• partial recognition of constitutionalism
• full recognition of constitutionalism
Read again pages 59 and 60 where we explain all of this.
For an open and free democracy to flourish, separation of powers is required. This may sound
like a difficult term to understand, but all it means is that the government's powers are divided
(or separated) among different branches/institutions to prevent an abuse of powers. The
Constitution of the Republic of South Africa, 1996 embraces separation of powers. South Africa
therefore has a legislative authority (namely Parliament, which makes laws and promulgates
legislation), a judicial authority (the courts, which apply the existing law, and who also test the
existing and new law against the values of the Constitution) and an executive authority (the
President and the National Executive). You will learn more about these three authorities and the
separation of powers later in your LLB studies. If you are interested to know more about this,
have a look at chapters 4, 5 and 8 of the 1996 Constitution (available on the HFL1501 module
site under Additional Resources). For now, all that you need to understand is that the powers of
government may be limited by principles, such as the separation of powers and the three
approaches to the principle of constitutionalism.

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Now that you understand the principle of constitutionalism, try to apply each of these three
approaches to examples from South African legal history. You will find a discussion of a few
of these examples on pages 63 and 64 of the Study Guide. Read through that again.
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The second important aspect of this learning unit concerns the origins and development of the
idea of fundamental rights. Why is this important? Well, you just learned that where the principle
of constitutionalism is fully recognised, the courts may also test the CONTENT of law against
the values of the constitution. The 1996 Constitution encapsulates most of these values in its
Chapter 2, which contains the Bill of Rights. Have a look at your copy of the Constitution
(sections 7 to 39) and see which human rights you can identify there.
You will learn more about the Bill of Rights in other modules, such as Human Rights Law and
Constitutional Law.
In HFL1501 we merely indicate to you how and where the idea of fundamental rights (or
human rights) originated, and how it developed within the South African context.
Read again pages 60 to 62 of the Study Guide. It is important to keep in mind that, because the
South African legal system consists of three main components, we can trace the origins of the
idea of fundamental rights in the South African context to the Western component (in the form of
natural law) AND to the Indigenous component (in the form of ubuntu).
Make sure that you are able to describe the development of each of these two influences, and
that you can give the names of those individuals mentioned in the Study Guide whose
philosophies contributed to it.
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The third important aspect in Learning Unit 7 concerns the current position of human rights
in South Africa. This is discussed on page 64 of the Study Guide. Also make sure that you
understand the role of the Truth and Reconciliation Commission and that you can explain in
your own words what their report said about why it was possible for apartheid legislation to be
enacted before 1994.