10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
Part 1: Learning Unit 1
Difference between external and internal legal history:
External history:
Sources and factors that have contributed directly or indirectly to the development of the legal
system. These relate to the political, constitutional, economic, sociological and religious factors
that have contributed to the development of the legal system. Refer to page 2 of your Study Guide
for examples.
Internal history:
Origins and development of the legal rules and principles themselves, under the influence of
external historical events. Refer to page 2 of your Study Guide for examples.
Different components of South African law:
Indigenous component:
• African law influence
Western component:
• Roman-Dutch and English law influence
Universal component:
• Human rights law
The sources of law: The relationship between the difference
components:
• Sources of law indicate where you can find the law
• South African law is not codified which means that there is not a comprehensive, written
version of the law that has the force of legislation
• Therefore the entire system must be looked at
• Main sources of law
o The Constitution
o Legislation
o Common law
o Custom
about:bl 1/
,10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
o Indigenous African law
Refer to par 1.3 of your Study Guide for a discussion on the sources of law
The reception phenomenon:
Reception:
• Willing absorption or adoption of the rules, principles and instructions of a legal system into
an existing legal system
Transplantation:
• Importation or introduction of a legal system into a territory that has no legal system
Imposition:
• Imposing a legal system on a territory that already has an existing legal system, against
the wishes of the local inhabitants
about:bl 2/
,10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
Part 1: Learning Unit 2
The importance of oral traditions in the study of pre-literate
history:
• Unwritten, verbal accounts of the past
• “Tradition” refers to communication that has been handed down from generation to
generation
• Oral information that is preserved by songs, poems and legends that are passed on from one
generation to the next
• Oral traditions form the main source of information on a pre-literate community’s past
• Disadvantages:
➢ Possibility that historical facts could be distorted
➢ Human memory alone is regarded as unreliable
➢ Uncertainty about what method to be used to process oral information in order to
reconstruct the history of pre-literate communities
The Black Administration Act:
• Promulgated to create a comprehensive system of black administration
• A separate court system was created for blacks
• Commissioner’s courts and courts of chief and headmen were established as special courts
of first instance where both parties were black
• Officials presiding in the special courts were under state control
Special Courts for Black Abolition Act:
• Unrealistic and unreasonable to restrict urban blacks to commissioners’ courts in the case of
civil litigation
• Separate criminal courts for separate groups of people were found to be unnecessary,
humiliating and repugnant
• This led to the promulgation of the Special Courts for Black Abolition Act
Effect of the Constitution on the recognition and application of
indigenous law:
• The Constitution recognises indigenous law as one of the sources of South African law
• Courts must apply customary law when it is applicable subject to the Constitution and any
legislation that specifically deals with customary law
• Bhe v Magistrate, Khayelitsha, the Constitutional court found the rule of male
primogeniture, as it applied in the indigenous law of succession, is unconstitutional because
it discriminates unfairly against women and extra marital children and should therefore be
abolished
about:bl 3/
, 10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
Reform of Customary Law of Succession and Regulation of Related
Matters Act:
• Promulgated due to the Constitutional court’s decision in the matter of Bhe v Magistrate,
Khayelitsha
• Purpose of the Act:
➢ Abolished the customary law of male primogeniture as far as it applies to the law of
succession, in order to bring indigenous law of succession in line with the
Constitution
➢ Give effect to the judgment in the Bhe case
Islamic law:
• Daniels v Campbell:
➢ Constitutional court held that the natural interpretation of the word “spouse” in the
Intestate Succession Act and in the Maintenance of Surviving Spouses Act should
include partners in monogamous Muslim marriages
• Hassam v Jacobs:
➢ Constitutional court held that the exclusion of spouses in polygynous marriages from
the benefits of the Intestate Succession Act is inconsistent with the right to equality
before the law and equal protection of the law
➢ This discrimination against women in polygynous marriages is unjustifiable and
amounts to violations of their rights to equality and human dignity
• Important: Islamic law is still not recognised as a source of South African law
about:bl 4/
AM good luck
Part 1: Learning Unit 1
Difference between external and internal legal history:
External history:
Sources and factors that have contributed directly or indirectly to the development of the legal
system. These relate to the political, constitutional, economic, sociological and religious factors
that have contributed to the development of the legal system. Refer to page 2 of your Study Guide
for examples.
Internal history:
Origins and development of the legal rules and principles themselves, under the influence of
external historical events. Refer to page 2 of your Study Guide for examples.
Different components of South African law:
Indigenous component:
• African law influence
Western component:
• Roman-Dutch and English law influence
Universal component:
• Human rights law
The sources of law: The relationship between the difference
components:
• Sources of law indicate where you can find the law
• South African law is not codified which means that there is not a comprehensive, written
version of the law that has the force of legislation
• Therefore the entire system must be looked at
• Main sources of law
o The Constitution
o Legislation
o Common law
o Custom
about:bl 1/
,10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
o Indigenous African law
Refer to par 1.3 of your Study Guide for a discussion on the sources of law
The reception phenomenon:
Reception:
• Willing absorption or adoption of the rules, principles and instructions of a legal system into
an existing legal system
Transplantation:
• Importation or introduction of a legal system into a territory that has no legal system
Imposition:
• Imposing a legal system on a territory that already has an existing legal system, against
the wishes of the local inhabitants
about:bl 2/
,10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
Part 1: Learning Unit 2
The importance of oral traditions in the study of pre-literate
history:
• Unwritten, verbal accounts of the past
• “Tradition” refers to communication that has been handed down from generation to
generation
• Oral information that is preserved by songs, poems and legends that are passed on from one
generation to the next
• Oral traditions form the main source of information on a pre-literate community’s past
• Disadvantages:
➢ Possibility that historical facts could be distorted
➢ Human memory alone is regarded as unreliable
➢ Uncertainty about what method to be used to process oral information in order to
reconstruct the history of pre-literate communities
The Black Administration Act:
• Promulgated to create a comprehensive system of black administration
• A separate court system was created for blacks
• Commissioner’s courts and courts of chief and headmen were established as special courts
of first instance where both parties were black
• Officials presiding in the special courts were under state control
Special Courts for Black Abolition Act:
• Unrealistic and unreasonable to restrict urban blacks to commissioners’ courts in the case of
civil litigation
• Separate criminal courts for separate groups of people were found to be unnecessary,
humiliating and repugnant
• This led to the promulgation of the Special Courts for Black Abolition Act
Effect of the Constitution on the recognition and application of
indigenous law:
• The Constitution recognises indigenous law as one of the sources of South African law
• Courts must apply customary law when it is applicable subject to the Constitution and any
legislation that specifically deals with customary law
• Bhe v Magistrate, Khayelitsha, the Constitutional court found the rule of male
primogeniture, as it applied in the indigenous law of succession, is unconstitutional because
it discriminates unfairly against women and extra marital children and should therefore be
abolished
about:bl 3/
, 10/16/24, 8:39 HFL summary 2022 its great for exam preparations
AM good luck
Reform of Customary Law of Succession and Regulation of Related
Matters Act:
• Promulgated due to the Constitutional court’s decision in the matter of Bhe v Magistrate,
Khayelitsha
• Purpose of the Act:
➢ Abolished the customary law of male primogeniture as far as it applies to the law of
succession, in order to bring indigenous law of succession in line with the
Constitution
➢ Give effect to the judgment in the Bhe case
Islamic law:
• Daniels v Campbell:
➢ Constitutional court held that the natural interpretation of the word “spouse” in the
Intestate Succession Act and in the Maintenance of Surviving Spouses Act should
include partners in monogamous Muslim marriages
• Hassam v Jacobs:
➢ Constitutional court held that the exclusion of spouses in polygynous marriages from
the benefits of the Intestate Succession Act is inconsistent with the right to equality
before the law and equal protection of the law
➢ This discrimination against women in polygynous marriages is unjustifiable and
amounts to violations of their rights to equality and human dignity
• Important: Islamic law is still not recognised as a source of South African law
about:bl 4/
