HFL1501 OCTOBER 2022 EXAMINATION
NAME:
STUDENT NUMBER:
MODULE CODE: HFL1501
SUBJECT: HISTORICAL FOUNDATIONS OF SOUTH AFRICAN LAW
ASSESSMENT TYPE: PORTFOLIO/ TAKE HOME EXAMINATION
DUE DATE: 10 OCTOBER 2022
CONTENT PAGE
PART 1
The origins of South African law……………………………………………………..…..2-6
PART 2
Historical foundations and development of the law of property and obligations……6-12
PART 3
The role of the Constitution in South African legal development…………………… 13-15
Honesty declaration………………………………………………………………………15
Bibliography ………………………………………………………………………………16
Marking rubric………………………………………………………………………….…16
,PART 1 : The origins of South African law
QUESTION 1
1.1
1. Legislation.
2. Common law.
3. Custom.1
1.2. Netherlands.
QUESTION 2
2.1 The Black Administration Act 38 of 1927.2
2.2 yes. repugnancy proviso had outlived its usefulness and courts now apply
customary law subject to the Constitution and any legislation that specifically deals with
customary law. It was taken up in its entirety in the Magistrates’ Courts Act 32 of 1944
and eventually in the Law of Evidence Amendment Act 45 of 1988.
QUESTION 3
3.1
Daniels v Campbell NO and others
1
Department of jurisprudence, Historical Foundations of South African Law: Only Study Guide for
HFL1501 (Unisa Pretoria, 2019) 5.
2
Historical Foundations of South African Law 14.
, In the 2004 decision of Daniels v Campbell NO and others,3 the Constitutional Court
held
that the natural interpretation of the word “spouse” in the Intestate Succession Act 81 of
1987 and in the Maintenance of Surviving Spouses Act 27 of 1990 should include
partners in a monogamous Muslim marriage.
Hassam v Jacobs NO and others
In 2009, in the decision of Hassam v Jacobs NO and others,the Constitutional Court
declared that section 1 of the Intestate Succession Act 81 of 1987 was constitutionally
invalid, because it excluded widows in polygynous marriages from the benefits of the
Act. It held that this defect should be remedied by reading in the words “or spouses”
after each use of the word “spouse”. Spouses in a polygynous Muslim marriage should
be afforded the same benefits enjoyed by the surviving spouses in a de facto
monogamous Muslim marriage. Importantly, the Court held that for any estates that had
not been finally wound up, the declaration would have retrospective effect to 27 April
1994.
In summary one can state that, the court held that the exclusion of “spouses in
polygynous marriages” from the benefits of the Intestate Succession Act is inconsistent
with the foundational right to equality before the law and equal protection of the law.
This discrimination against women in polygynous marriages is unjustifiable and
amounts to a violation of their right to equality and human dignity.
3
Historical Foundations of South African Law 14.
NAME:
STUDENT NUMBER:
MODULE CODE: HFL1501
SUBJECT: HISTORICAL FOUNDATIONS OF SOUTH AFRICAN LAW
ASSESSMENT TYPE: PORTFOLIO/ TAKE HOME EXAMINATION
DUE DATE: 10 OCTOBER 2022
CONTENT PAGE
PART 1
The origins of South African law……………………………………………………..…..2-6
PART 2
Historical foundations and development of the law of property and obligations……6-12
PART 3
The role of the Constitution in South African legal development…………………… 13-15
Honesty declaration………………………………………………………………………15
Bibliography ………………………………………………………………………………16
Marking rubric………………………………………………………………………….…16
,PART 1 : The origins of South African law
QUESTION 1
1.1
1. Legislation.
2. Common law.
3. Custom.1
1.2. Netherlands.
QUESTION 2
2.1 The Black Administration Act 38 of 1927.2
2.2 yes. repugnancy proviso had outlived its usefulness and courts now apply
customary law subject to the Constitution and any legislation that specifically deals with
customary law. It was taken up in its entirety in the Magistrates’ Courts Act 32 of 1944
and eventually in the Law of Evidence Amendment Act 45 of 1988.
QUESTION 3
3.1
Daniels v Campbell NO and others
1
Department of jurisprudence, Historical Foundations of South African Law: Only Study Guide for
HFL1501 (Unisa Pretoria, 2019) 5.
2
Historical Foundations of South African Law 14.
, In the 2004 decision of Daniels v Campbell NO and others,3 the Constitutional Court
held
that the natural interpretation of the word “spouse” in the Intestate Succession Act 81 of
1987 and in the Maintenance of Surviving Spouses Act 27 of 1990 should include
partners in a monogamous Muslim marriage.
Hassam v Jacobs NO and others
In 2009, in the decision of Hassam v Jacobs NO and others,the Constitutional Court
declared that section 1 of the Intestate Succession Act 81 of 1987 was constitutionally
invalid, because it excluded widows in polygynous marriages from the benefits of the
Act. It held that this defect should be remedied by reading in the words “or spouses”
after each use of the word “spouse”. Spouses in a polygynous Muslim marriage should
be afforded the same benefits enjoyed by the surviving spouses in a de facto
monogamous Muslim marriage. Importantly, the Court held that for any estates that had
not been finally wound up, the declaration would have retrospective effect to 27 April
1994.
In summary one can state that, the court held that the exclusion of “spouses in
polygynous marriages” from the benefits of the Intestate Succession Act is inconsistent
with the foundational right to equality before the law and equal protection of the law.
This discrimination against women in polygynous marriages is unjustifiable and
amounts to a violation of their right to equality and human dignity.
3
Historical Foundations of South African Law 14.
