HFL1501 - Historical Foundation of South African Law

Assignment Task

1.i. What is the difference between a civil-law legal system and a common-law legal system? 

ii. Explain why the legal systems of France, Germany and the Netherlands may be useful to you as a South African lawyer, even though you may not be familiar with French, German or Dutch law itself. 

2.i. Name the recent judgment that you learned about in this module in which the Constitutional Court held certain provisions of the Divorce Act 70 of 1979 and the Marriage Act 25 of 1961 to be unconstitutional in that they “fail to recognise marriages solemnised in accordance with Sharia law … as valid marriages for all purposes in South Africa”.

ii. How does this judgment change the current legal position regarding Muslim marriages in South Africa?

iii. What is the impact of this judgment regarding the position of Islamic law as an official source of South African law? 

3. Name two main differences between the office of the praetor urbanus and the praetor peregrinus in Roman times.

4. Write a brief note of no more than seventy  words on why it is theoretically possible to refer to a Southern African ius commune. 

5. Answer the following questions regarding the historical courts of South Africa:

• Name the court established at the Cape in 1685 that was originally composed of laymen. 
• Name the court, situated in London, that remained the highest court of appeal in South Africa until 1950. 
• Name the court established in 1910 that played an important role in the unification and assimilation of South African law and in the development of the common law of South Africa.

6. Answer the following questions regarding external legal historical events that impacted on the development of South African law:

• Which world-renowned lawyer led a passive-resistance campaign against the pass laws by the Indian community in the Transvaal in 1906? 
• Which event took place on 21 March 1960, in which the police killed sixty-nine protesters participating in a non-violent demonstration against the pass laws?
• Which historical document, adopted on 26 June 1955 at Kliptown in Soweto, articulated democratic principles inspired by the Universal Declaration of Human Rights, and has been regarded as the blueprint for a democratic South Africa? 

7. From a legal perspective, explain in your own words why Parliament was able to promulgate unjust laws during the apartheid era.

8. Our common law, the historical component of the South African legal system, is currently recognised as an official source of South African law. However, the Constitution of the Republic of South Africa, 1996 compels the courts to continuously develop the common law in line with our constitutional values. Name any three judgments delivered after 1996 mentioned in Part 1 of the Study Guide that demonstrate the courts’ approach to the development of the common law to bring it in line with the Constitution and with the requirements of modern society.

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