Name and Surname : Thato Peter Seemela

Student Number : 49786849

Course Name : LLB

Module Name : Historical Foundations of Law

Module Code : HFL1501

Assignment No :6

Date :24 May 2023

QUESTION 1

Answer the following questions regarding historic constitutions in South African legal history
mentioned in the Study Guide:

1.1 The two South African constitutions that were promulgated during the twentieth century that
entrenched only the formal testing powers of the courts are as follows:

1.1.1 The 1910 Constitution of the Union of South Africa

1.1.2 The 1961 Constitution of the Republic of South Africa

1.2 Which nineteenth-century constitution of an independent republic in South Africa was

influenced by the American Constitution?

1.2.1 The Orange Free State Constitution of 1854 was influenced by the American Constitution

1.3 The constitution of which independent nineteenth-century republic in South Africa made no
provision for the protection of human rights or the limitation of government power?

1.3.1 The constitution of the South African Republic, also known as the Transvaal Republic, made no
provision for the protection of human rights or the limitation of government power

QUESTION 2

Answer the following questions:

2.1 Indicate the correct way to cite in writing (reference) the following sources of South African law:

2.1.1 The Interim Constitution of the Republic of South Africa, Act No.200 of 1993.

2.1.2 The Constitution of the Republic of South Africa, Act No. 108 of 1996.

2.2 Name three Constitutional Court cases referred to in the HFL1501 Study Guide in which the Court
considered the supremacy of the Constitution.

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

2.2.2 S v Makwanyane and another 1995 (6) BCLR 665 (CC)

2.2.3 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

Answer the following questions regarding the relationship between the law of property

and the Constitution:

3.1 Consider the case of Daniels v Scribante and Another [2017] ZACC 13, as well as sections 25 and
26 of the Constitution and answer the following questions:

3.1.1 List two fundamental rights applicable in cases related to the security of tenure.

3.1.1.1 The right to adequate housing

3.1.1.2 The right to human dignity

3.1.2 The Constitutional Court respected and protected Ms Daniels’ rights in this matter. Discuss the
reasoning behind their judgment.

3.1.2.1 In the case of Ms. Daniels the Constitutional Court protected her rights in that it ruled that
evicting her without offering alternative housing or taking into account the impact on her right to
housing would be a violation of her rights. The Court emphasized that the Constitution requires a
careful balance of competing interests, notably those of property owners and vulnerable individuals
like Ms. Daniels. The Court considered the facts of the case, taking into account Ms. Daniels'
socioeconomic situation and vulnerabilities. It stressed the need of courts considering the
circumstances of eviction cases and taking a comprehensive approach that considers persons' human
dignity and well-being.

The Constitutional Court's decision in Daniels v. Scribante and Another is illustrative of its dedication
to upholding the Constitution in a way that safeguards the rights of citizens on matters linked to
security of tenure.

3.2 Consider the purpose of section 26 of the Constitution. Do you think that South African courts
have a duty to abolish the rei vindicatio? Provide reasons for your answer that are based in law and
on your understanding of Parts 2 and 3 of the Study Guide.

3.2.1 From Roman law comes the rei vindicatio, a legal remedy for recovering stolen or unlawfully held
property. The Constitution of the Republic of South Africa is the ultimate law of the land and offers a
framework for the interpretation and application of legal concepts, notwithstanding its historical roots
in South African law. South African courts are tasked with interpreting and applying the law in a way
that protects fundamental freedoms and democratic principles. When making their decisions, the
courts should keep in mind that Section 26 of the Constitution exists to safeguard the right to housing.

If the courts determine that enforcing the rei vindicatio will violate or impair the right to housing or
lead to arbitrary evictions, they must examine if there are any other appropriate remedies or ways to
limit its application. The obligation to do away with the rei vindicatio does not imply doing away with
the remedy altogether. This means that the courts are required to interpret and apply the law in a way
that is consistent with constitutional requirements, with due regard for the right to housing and the
values of fairness, equality, and social justice.

QUESTION 4

Read carefully and answer the following questions on ubuntu and South African law:

4.1 Two fundamental rights most closely associated with the principles of ubuntu. Also indicate
why you think these rights relate to the philosophy of ubuntu.

4.1.1. The right to human dignity: Section 10 of the Republic of South Africa's Constitution states that
everyone has inherent dignity and the right to have their dignity respected and protected. Human
dignity is a crucial principle in the Constitution's objective, normative value system and therefore the
principle of ubuntu is closely related to this right as ubuntu reminds us that to be human is to recognise
the humanity of others hence the close interconnected of the two.

4.1.2. The right to equality: The Constitution of South Africa mandates that the government uphold
and advance the rights of all its citizens. Since ubuntu places greater emphasis on the principles of
fairness, recognizing the inherent equality and worth of all individuals, the Bill of Rights is closely
associated with ubuntu because of the above statement. Chapter 2 of the Bill of Rights states that
everyone is equal before the law and has the right to equal protection and benefit from the law.

4.2 How the Constitutional Court has relied on the principles of ubuntu when adjudicating delictual
matters.

4.2.1 When adjudicating delictual disputes, the South African Constitutional Court has recognized and
relied on the concepts of ubuntu, particularly in cases involving interpersonal damages and ties to the
community. While ubuntu principles are not officially stated in the Constitution, the Court has used
them to build its jurisprudence and contribute to the establishment of a transformative and inclusive
judicial system.

The case of S v. Makwanyane established ubuntu as a constitutional concept and principle that should
be applied when interpreting the Bill of Rights and other legal provisions. In particular, a restorative
justice theme has emerged in the body of law that includes such areas as customary law, eviction,
defamation, and criminal law. The constitutional rulings in Makwanyane and PE Municipality indicate
two significant epochs in the evolution of ubuntu. The former shaped ubuntu's primary growth path,
while the latter initiated the concept's conceptual growth toward restorative justice.