HISTORICAL FOUNDATIONS OF SOUTH AFRICAN LAW

HFL1501

By

MEGAN-LEIGH POLLIAH
14873826

Submitted in partial fulfillment of the requirements for the degree

LLB

In the

DEPERTMENT OF JURISPRUDENCE

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: MS LIEZL WILDENBOER (MODULE LEADER)

(ASSIGNMENT NUMBER 06)

2023
QUESTION 1

1.1 1961 Constitution of the Republic of South Africa and 1983 Constitution of the
Republic of South Africa
1.2 The Orange Free State Constitution, 1854
1.3 The Constitution of the Union of South Africa, 1910

QUESTION 2

2.1
2.1.1 The Constitution of the Republic of South Africa Act 200 of 1993.
2.1.2 Constitution of the Republic of South Africa, 1996

2.2
Doctors for Life International v Speaker of the National Assembly and
others 2006 (6) SA 416 (CC)

Economic Freedom Fighters v Speaker of the National Assembly and

others; Democratic Alliance v
Speaker of the National Assembly and others 2016 (3) SA 580 (CC)

Pharmaceutical Manufacturers Association of South Africa and another: In

re Ex Parte President of
the Republic of South Africa and others 2000 (2) SA 674 (CC)

QUESTION 3

3.1
3.1.1 The Right to Housing and The Right to Human Dignity

3.1.2 In the matter of Daniels v Scribante and another [2017] ZACC 13, the
court found in favour of Ms Daniels. In making their decision the court took
into consideration the following:
1. That denying Ms Daniels permission to renovate the property offends her
right to human dignity.
2. The court pointed out that many individuals suffer injustices due to
historical events that occurred.
3. The court then decided to take previous cases with similarities into
account.
4. In supporting the first judgment they added the respondent’s duty to
protect the dignity of the occupier.

They concluded by stating Ms Daniels was well within her rights as a tenant in
accordance with Extension of Security and Tenure Act as well as section 26
of the Constitution to renovate the property and make it habitual for her family.
 3.2 In terms of section 26 of the constitution everyone (including tenants) has
the right of access to adequate housing. This is also confirmed in other
legislation for example the Prevention of Illegal Eviction Act.

The rei vindicatio is a remedy in common law which protects and gives rights
to owners to be able to reclaim their property in instances where they have
been wrongfully deprived possession of it.

I therefore disagree with the courts abolishing the rei vindicato. It is one of the
few remedies in common law that ensure property owners are protected from
being taken unfair advantage of by their tenants. Tenants have sufficient
protection afforded to them in terms of section 26 of the constitution as well as
the Prevention of Illegal Eviction Act and other legislation. Doing away with
the rei vindicatio would result in undue prejudice to owners of property to bono
fide owners of property.

QUESTION 4.

4.1 Human dignity and Freedom and Equality

The African philosophical approach of ubuntu is of great value in South

Africa’s present speakings on social justice, legal transformation and the
attempt to respect and protect the fundamental rights of all members of
society. The adoption of Ubuntu is to transcend the divisions and strife of the
past, which generated many violent conflicts and a legacy of hatred, fear, guilt
and revenge. These can now be addressed on the basis that there is no need
for vengeance but understanding, not for retaliation but for reparation, not for
victimisation but for Ubuntu. It is viewed as a philosophy encompassed by
many components. It is describe as a way of life of the African people which is
supported by certain components that make up its substantive content, and is
entrenched in every aspect of their everyday existence and interactions with
each other and the world at large.

4.2 The Constitutional Court of South Africa has not always directly referred to the
principles of Ubuntu when adjudicating delictual matters. However, it has
indirectly relied on these principles by approaching them in a way that prioritizes
the restoration of relationships and restorative justice rather than harsh
measures.We now know that human dignity is one of the fundamental principles
of the practice of Ubuntu. Dignity to the right to security of tenure and the right to
live in an environment that is habitable is one of the common delictual maters the
constitutional court has been dealing with, like Baron and others v Claytile (Pty)
Limited and another [2017] ZACC 24 and MEC for Education: KwaZulu-Natal and
Others v Phephani and Minister of Safety and Security v Van Duivenboden. The
principles of Ubuntu guided the Court to an impartial solution, which restored the
affected parties’ dignity by treating them humanely, was the result of enforcing
Ubuntu. The delict iniuria has, as a subcategory, injury to a person’s dignity. This
delict directly relates to the fundamental principles of Ubuntu and it is driven to
protect an individual who has suffered injury to their dignity. This is why the
Constitutional Court specifically referred to the insights obtained from Ubuntu as
seen in some of the cases where the practice of asking for forgiveness occurred,
like in Le Roux and others v Dey 2011 (3) SA 274 (CC)
 Bibliography

BOOK

- University of South Africa, Historical Foundations of South African law

UNISA, ‘Historical Foundations of South African law- only study guide for
HFL1501’ (HFL1501/12019-2021)

- “Constitution of the Republic of South Africa, 1996”