Question 1
1.1. South Africa does not have a codified legal system, in other words,
there is no comprehensive, written version of our law that has the force
of legislation. Instead, to find the legal position appropriate to any
situation or set of facts, a South African lawyer must consult the various
sources of law. Name any three sources of South African law that a law
student or practising jurist must be able to find and consult.
• Common law
• Indigenous African law
• Case law
1.2. Name any country of which you have learned in this module that has a
codified legal system.
Germany, France, the Netherlands, Italy and Spain
Question 2
2.1. Which post-colonial era statute originally contained the repugnancy
clause?
The Black Administration Act 38 of 1927
2.2. Does the repugnancy clause still apply in South Africa? Indicate yes or no,
and motivate your answer.
Yes, it still applies in South Africa today S211 (3) of the Constitution: provides that all
courts must apply indigenous law where applicable courts no longer have a
discretion whether to apply indigenous law or not
Question 3
3.1. Explain how the Constitutional Court developed the law relating to Muslim
marriages in South Africa between 2000 and 2010. In your answer, you must
name the two relevant decisions of which you have learned in this module and
briefly describe how these two decisions differed from each other.
, in 2003, the South African Law Reform Commission, in a proposed Bill on the
recognition of Islamic Marriages, has recommended that Muslim marriages
(including polygynous marriages) be recognised.
The Bill makes provision for, among others, the status and capacity of the spouses
and the dissolution of Muslim marriages. Parliament has not yet approved the Bill.
In the seminal decision of Ismail v Ismail, for example, the Appellate Division found
potentially polygynous Muslim marriages immoral and against accepted customs and
usages. Ironically, the Court held that non-recognition of Muslim marriages would not
result in actual suffering.
In Ryland v Edros and Amod v Multilateral Motor Vehicle Accidents Fundcase, 1the
Supreme Court of Appeal for the first time recognised a Muslim widow’s claim for
loss of support following the unlawful death of her husband.
3.2. Name the recent Constitutional Court decision in which the Court declared
all marriages concluded in terms of Sharia law to be valid for all purposes in
terms of South African law.
Women’s legal centre trust v president of the republic of south africa and others
cct24/21
On 28 June 2022 at 12h00, the Constitutional Court handed down judgment in an
application by the Women’s Legal Centre Trust (WLCT) to confirm an order of the
Supreme Court of Appeal. The order declared the Marriage Act 25 of 1961 (Marriage
Act),
The Divorce Act 70 of 1979 (Divorce Act) and certain provisions of the Divorce Act
to be inconsistent with sections 9, 10, 28 and 34 of the Constitution, in that they fail
to recognise marriages solemnised in accordance with Sharia law (Muslim
marriages) as being valid for all purposes in South Africa, and to regulate the
consequences of such recognition
.
Question 4
1Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (444/98) [1999] ZASCA 76; [1999] 4 All SA 421
(A) (29 September 1999).
1.1. South Africa does not have a codified legal system, in other words,
there is no comprehensive, written version of our law that has the force
of legislation. Instead, to find the legal position appropriate to any
situation or set of facts, a South African lawyer must consult the various
sources of law. Name any three sources of South African law that a law
student or practising jurist must be able to find and consult.
• Common law
• Indigenous African law
• Case law
1.2. Name any country of which you have learned in this module that has a
codified legal system.
Germany, France, the Netherlands, Italy and Spain
Question 2
2.1. Which post-colonial era statute originally contained the repugnancy
clause?
The Black Administration Act 38 of 1927
2.2. Does the repugnancy clause still apply in South Africa? Indicate yes or no,
and motivate your answer.
Yes, it still applies in South Africa today S211 (3) of the Constitution: provides that all
courts must apply indigenous law where applicable courts no longer have a
discretion whether to apply indigenous law or not
Question 3
3.1. Explain how the Constitutional Court developed the law relating to Muslim
marriages in South Africa between 2000 and 2010. In your answer, you must
name the two relevant decisions of which you have learned in this module and
briefly describe how these two decisions differed from each other.
, in 2003, the South African Law Reform Commission, in a proposed Bill on the
recognition of Islamic Marriages, has recommended that Muslim marriages
(including polygynous marriages) be recognised.
The Bill makes provision for, among others, the status and capacity of the spouses
and the dissolution of Muslim marriages. Parliament has not yet approved the Bill.
In the seminal decision of Ismail v Ismail, for example, the Appellate Division found
potentially polygynous Muslim marriages immoral and against accepted customs and
usages. Ironically, the Court held that non-recognition of Muslim marriages would not
result in actual suffering.
In Ryland v Edros and Amod v Multilateral Motor Vehicle Accidents Fundcase, 1the
Supreme Court of Appeal for the first time recognised a Muslim widow’s claim for
loss of support following the unlawful death of her husband.
3.2. Name the recent Constitutional Court decision in which the Court declared
all marriages concluded in terms of Sharia law to be valid for all purposes in
terms of South African law.
Women’s legal centre trust v president of the republic of south africa and others
cct24/21
On 28 June 2022 at 12h00, the Constitutional Court handed down judgment in an
application by the Women’s Legal Centre Trust (WLCT) to confirm an order of the
Supreme Court of Appeal. The order declared the Marriage Act 25 of 1961 (Marriage
Act),
The Divorce Act 70 of 1979 (Divorce Act) and certain provisions of the Divorce Act
to be inconsistent with sections 9, 10, 28 and 34 of the Constitution, in that they fail
to recognise marriages solemnised in accordance with Sharia law (Muslim
marriages) as being valid for all purposes in South Africa, and to regulate the
consequences of such recognition
.
Question 4
1Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (444/98) [1999] ZASCA 76; [1999] 4 All SA 421
(A) (29 September 1999).
