HFL1501 ASSIGNMENT 1 MEMO - SEMESTER 2 - 2024 - UNISA - DUE : 21 AUGUST 2024 (DETAILED ANSWERS WITH FOOTNOTES - DISTINCTION GUARANTEED)
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Module
Historical foundations of South African law
Institution
University Of South Africa (Unisa)
HFL1501 ASSIGNMENT 1 MEMO - SEMESTER 2 - 2024 - UNISA - DUE : 21 AUGUST 2024 (DETAILED ANSWERS WITH FOOTNOTES - DISTINCTION GUARANTEED)
QUESTION 1
Answer the following questions regarding the nature of the South African legal
system:
1.1 Name a specific system of law mentioned in the HFL1501...
1.1 Name a specific system of law mentioned in the HFL1501 Study Guide that is
unofficially applied by certain communities, but that is not officially recognised in
South Africa. (1)
1.2 Does South Africa have a hybrid legal system? Motivate your answer. (2)
1.3 The universal component of the South African legal system has its origins in
two different philosophies. Name these two philosophies discussed in the HFL1501
Study Guide. (1) [4]
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Answer the following questions regarding the nature of the South African legal
system:
1.1 Name a specific system of law mentioned in the HFL1501 Study Guide that
is unofficially applied by certain communities, but that is not officially
recognised in South Africa. (1)
1.2 Does South Africa have a hybrid legal system? Motivate your answer. (2)
1.3 The universal component of the South African legal system has its origins
in two different philosophies. Name these two philosophies discussed in the
HFL1501 Study Guide. (1) [4]
QUESTION 2
2.1 The repugnancy clause limited the application of indigenous African law by
providing that indigenous law would only apply insofar as it was not contrary to
the Western notion of public policy and natural justice. Name one historical Act
mentioned in the HFL1501 Study Guide that has contained the repugnancy
clause. Please provide the full title, number and year of the Act. (1)
2.2 Does the repugnancy clause still apply in South African law today? In your
own words, motivate your answer in no more than 150 words. (3) [4]
QUESTION 3
,Consider what you have learned about the jurists of ancient Rome in the
HFL1501 Study Guide, and briefly compare their functions to that of modern
South African jurists by answering the following questions:
3.1. Name one way in which the functions and method of working of the jurists
of ancient Rome differed from that of modern South African jurists. (1)
3.2 Name one way in which the functions and method of working of the jurists
of ancient Rome were similar to that of modern South African jurists. (1) [2]
QUESTION 4
In your own words, explain why it is possible to make an argument for the
existence of a Southern African ius commune. Your answer should not be longer
than 200 words. [3]
QUESTION 5
5.1 In your own words, explain briefly how the natural-law theory of
philosophers, such as Thomas Aquinas, who lived during the thirteenth century,
differed from that of philosophers of the sixteenth and seventeenth centuries.
Your answer should not be longer than 150 words. (2)
5.2 Name the jurist of whom you have learned in the HFL1501 Study Guide who
is considered to have been the father of modern natural law. (1)
5.3 Name one of the works of the jurist mentioned in 5.2 above that you have
learned about in the HFL1501 Study Guide. (1) [4]
,QUESTION 6
Read the following description and extracts from the case of Van Jaarsveld v
Bridges [2010] JOL 25558 (SCA) and then answer the questions that follow. This
case is not discussed in the HFL1501 Study Guide. You do not have to find
and/or read the judgment. You do not need to do research or any additional
reading on this case or any legal principles applicable thereto. The questions
below only test your knowledge and understanding of Part 1 of the HFL1501
Study Guide and of the glossary of Latin terms included in the Study Guide.
Summary of the case: This was an appeal from a judgment delivered by the
North Gauteng High Court. Van Jaarsveld and Bridges had been engaged to be
married. A month before the wedding, Van Jaarsveld informed Bridges via text
message that he could no longer go through with the wedding and that he
wished to break off the engagement. Bridges then sued Van Jaarsveld for
damages arising from breach of promise to marry. The North Gauteng High
Court awarded damages to Bridges on two grounds, namely for iniuria and for
contractual damages. On appeal, the court considered the facts of the case,
including details not taken into account by the court a quo. The appeal court
applied the relevant legal rules and found that it did not agree with the High
Court’s ruling, and found that the claim should have been dismissed. The SCA
therefore granted the appeal and overturned the decision of the High Court.
6.1 In the case citation, what does the abbreviation “SCA” refer to? (1)
6.2 What does the legal term “iniuria” refer to? (1)
6.3 Read the following extract from the case and then answer the questions
below: In an obiter comment, the court of appeal considered whether the claim
for a breach of promise still has value in modern society and made the following
statement:1 Courts have not only the right but also the duty to develop the
common law, taking into account the interests of justice and at the same time to
promote the spirit, purport and objects of the Bill of Rights. In this regard courts
, have regard to the prevailing mores and public policy consideration. … I do
believe that the time has arrived to recognise that the historic approach to
engagements is outdated and does not recognise the mores of our time, and
that public policy considerations require that our courts must reassess the law
relating to breach of promise [to marry]. … The origin of [the interpretation of
this rule] is to be found in Canon Law and Germanic Law influences at a time
when churches controlled the lives of people, when a woman was deemed to be
of a lower status than a man, and when a party to a promise to marry could be
obliged to marry by an action for specific performance. The world has moved
on and morals have changed.
6.3.1 Is an obiter dictum comment made by a court binding on other courts? (1)
6.3.2 In the extract above, the court refers to the “common law”. In your own
words, explain the meaning of this term within the South African legal context.
(1)
6.3.3 Which section of the Constitution of the Republic of South Africa, 1996
compels the courts to develop the common law? (1)
6.3.4 Briefly explain why canon law and Germanic law influences are considered
to be part of South African law. Your answer should not be longer than 100
words. (2)
6.3.5 The court refers to the changing social values over a period of time. Is
changing social values an example of an internal or an external legal historical
event? (1) [8] TOTAL [25]
Question 1
1.1 Unofficial System of Law
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