HFL1501
HISTORICAL FOUNDATIONS OF
SOUTH AFRICAN LAW
OCT/NOV 2022
FINAL PORTFOLIO
PART 1 (25 marks)
The origins of South African law
Question 1
1.1 Sources of South African law:
a) Indigenous law
b) Common law
, c) Legislation or statutes
1.2 Germany
Question 2
2.1 The Black Administration Act 38 of 1927
2.2 Yes : The repugnancy clause still applies because the Law of Evidence
Amendment Act 45 of 1988, which contains this clause, is still valid/applicable.
Question 3
3.1 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 1 , the 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 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
4.1 Civil-law legal systems” refers to legal systems that are based on Roman
law and include the legal systems of Germany, France and the Netherlands.
1
Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (444/98) [1999] ZASCA 76; [1999] 4
All SA 421 (A) (29 September 1999)
HISTORICAL FOUNDATIONS OF
SOUTH AFRICAN LAW
OCT/NOV 2022
FINAL PORTFOLIO
PART 1 (25 marks)
The origins of South African law
Question 1
1.1 Sources of South African law:
a) Indigenous law
b) Common law
, c) Legislation or statutes
1.2 Germany
Question 2
2.1 The Black Administration Act 38 of 1927
2.2 Yes : The repugnancy clause still applies because the Law of Evidence
Amendment Act 45 of 1988, which contains this clause, is still valid/applicable.
Question 3
3.1 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 1 , the 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 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
4.1 Civil-law legal systems” refers to legal systems that are based on Roman
law and include the legal systems of Germany, France and the Netherlands.
1
Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (444/98) [1999] ZASCA 76; [1999] 4
All SA 421 (A) (29 September 1999)
