The Origins of South African law
HFL1501
OCTOBER 2022
PORTFOLIO
Duration from 10h00AM on 4 October 2022 to 10h00AM on 10 October 2022
Written by
Camecia Cass
BUY ME TO VIEW THE REST OF THE ANSWER
,HFL1501 October 2022 exam questions
PART 1 (25 marks)
The origins of South African law
Answer the following questions by making use only of the study material in Part 1
of the Study Guide and on the module site:
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. (3)
Sources of Law1
a) Legislation,
b) Case law,
c) Common law and
d) Indigenous African law
1.2 Name any country of which you have learned in this module that has a
codified legal system.
Countries with a codified legal system2
1) Germany,
2) France,
3) The Netherlands,
4) Italy and
5) Spain
1
Only Study Guide for HFL1501, The Origins of South African Law (University of South Africa Pretoria
2018) (v).
2
Only Study Guide for HFL1501, 21.
, [4 marks]
Question 2
2.1 Which post-colonial era statute originally contained the repugnancy
clause? (1)
The Black Administration Act 38 of 19273
2.2 Does the repugnancy clause still apply in South Africa? Indicate yes or
no, and motivate your answer. (2)
Yes, the complete repugnancy clause was included in the Magistrates' Courts Act
32 of 1944 and later the Law of Evidence Amendment Act 45 of 1988. This latter
Act is still in effect, and it does not stipulate that black participants to a lawsuit
must be present before indigenous law may be applied. 4
[3 marks]
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. (4)
In the 2004 case Daniels v. Campbell NO and others 5, the Constitutional Court
ruled that participants in a monogamous Muslim marriage should be included in
the definition of "spouse" as used in the Intestate Succession Act 81 of 1987 and
the Maintenance of Surviving Spouses Act 27 of 1990.
The Constitutional Court ruled in 2009 that section 1 of the Intestate Succession
Act 81 of 1987 was unconstitutionally defective since it disqualified widows in
polygynous marriages from its benefits (Hassam v. Jacobs NO and others) 6. The
court ruled that this error should be corrected by inserting the phrase "or spouses"
3
Only Study Guide for HFL1501, 14.
4
Only Study Guide for HFL1501, 14.
5
Daniels v Campbell NO and others 2004 (7) BCLR 735 (CC).
6
Hassam v Jacobs NO and others 2009 (5) SA 572 (CC).
HFL1501
OCTOBER 2022
PORTFOLIO
Duration from 10h00AM on 4 October 2022 to 10h00AM on 10 October 2022
Written by
Camecia Cass
BUY ME TO VIEW THE REST OF THE ANSWER
,HFL1501 October 2022 exam questions
PART 1 (25 marks)
The origins of South African law
Answer the following questions by making use only of the study material in Part 1
of the Study Guide and on the module site:
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. (3)
Sources of Law1
a) Legislation,
b) Case law,
c) Common law and
d) Indigenous African law
1.2 Name any country of which you have learned in this module that has a
codified legal system.
Countries with a codified legal system2
1) Germany,
2) France,
3) The Netherlands,
4) Italy and
5) Spain
1
Only Study Guide for HFL1501, The Origins of South African Law (University of South Africa Pretoria
2018) (v).
2
Only Study Guide for HFL1501, 21.
, [4 marks]
Question 2
2.1 Which post-colonial era statute originally contained the repugnancy
clause? (1)
The Black Administration Act 38 of 19273
2.2 Does the repugnancy clause still apply in South Africa? Indicate yes or
no, and motivate your answer. (2)
Yes, the complete repugnancy clause was included in the Magistrates' Courts Act
32 of 1944 and later the Law of Evidence Amendment Act 45 of 1988. This latter
Act is still in effect, and it does not stipulate that black participants to a lawsuit
must be present before indigenous law may be applied. 4
[3 marks]
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. (4)
In the 2004 case Daniels v. Campbell NO and others 5, the Constitutional Court
ruled that participants in a monogamous Muslim marriage should be included in
the definition of "spouse" as used in the Intestate Succession Act 81 of 1987 and
the Maintenance of Surviving Spouses Act 27 of 1990.
The Constitutional Court ruled in 2009 that section 1 of the Intestate Succession
Act 81 of 1987 was unconstitutionally defective since it disqualified widows in
polygynous marriages from its benefits (Hassam v. Jacobs NO and others) 6. The
court ruled that this error should be corrected by inserting the phrase "or spouses"
3
Only Study Guide for HFL1501, 14.
4
Only Study Guide for HFL1501, 14.
5
Daniels v Campbell NO and others 2004 (7) BCLR 735 (CC).
6
Hassam v Jacobs NO and others 2009 (5) SA 572 (CC).
