HISTORICAL FOUNDATIONS OF
SOUTH AFRICAN LAW (HFL1501)
ASSIGNMENT 1 SOLUTIONS
SEMESTER 2 2023
MEL
, Question 1
A lawyer in South Africa needs to consult various sources of law in order to establish
what the existing South African law says about a legal question because the legal
system in South Africa is a combination of different legal traditions. South Africa
follows a common law system, which is derived from English law, as well as a civil
law system, which is derived from Roman-Dutch law. Additionally, South Africa has a
constitutional framework, which includes the Constitution of the Republic of South
Africa, 1996. Each of these sources of law can provide guidance and legal principles
that may be applicable to a given legal question. By consulting these various
sources, a lawyer can ensure that they have a comprehensive understanding of the
law and can provide accurate advice and representation to their clients.
Question 2
2.1:
Section 211(3) of the Constitution of the Republic of South Africa, 1996 officially
recognizes indigenous African law as a source of South African law.
2.2:
The application of indigenous law is limited in terms of the Constitution of the
Republic of South Africa, 1996. While indigenous law is recognized as a source of
South African law, it is subject to the Constitution and cannot infringe upon the rights
guaranteed by the Constitution. This means that any customary law or practices that
are found to be inconsistent with the rights enshrined in the Constitution can be
declared unconstitutional and therefore void.
2.3:
One case mentioned in Part 1 of the Study Guide in which the Constitutional Court
found a rule of indigenous African law to be unconstitutional is the case of Bhe v
Magistrate, Khayelitsha. In this case, the Court declared that the rule of male
SOUTH AFRICAN LAW (HFL1501)
ASSIGNMENT 1 SOLUTIONS
SEMESTER 2 2023
MEL
, Question 1
A lawyer in South Africa needs to consult various sources of law in order to establish
what the existing South African law says about a legal question because the legal
system in South Africa is a combination of different legal traditions. South Africa
follows a common law system, which is derived from English law, as well as a civil
law system, which is derived from Roman-Dutch law. Additionally, South Africa has a
constitutional framework, which includes the Constitution of the Republic of South
Africa, 1996. Each of these sources of law can provide guidance and legal principles
that may be applicable to a given legal question. By consulting these various
sources, a lawyer can ensure that they have a comprehensive understanding of the
law and can provide accurate advice and representation to their clients.
Question 2
2.1:
Section 211(3) of the Constitution of the Republic of South Africa, 1996 officially
recognizes indigenous African law as a source of South African law.
2.2:
The application of indigenous law is limited in terms of the Constitution of the
Republic of South Africa, 1996. While indigenous law is recognized as a source of
South African law, it is subject to the Constitution and cannot infringe upon the rights
guaranteed by the Constitution. This means that any customary law or practices that
are found to be inconsistent with the rights enshrined in the Constitution can be
declared unconstitutional and therefore void.
2.3:
One case mentioned in Part 1 of the Study Guide in which the Constitutional Court
found a rule of indigenous African law to be unconstitutional is the case of Bhe v
Magistrate, Khayelitsha. In this case, the Court declared that the rule of male
