HFL1501 - Historical Foundations Of South African Law (HFL1501)
Institución
University Of South Africa (Unisa)
HFL1501 Assignment 1 Semester 2 2023 (ANSWERS)
Questions asked:
QUESTION 1
Explain why a lawyer has to consult various sources of law when trying to establish
what the existing South African law says about a legal question. Base your answer on
your understanding of the nature of the Sou...
HFL1501 - Historical Foundations Of South African Law (HFL1501)
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, QUESTION 1: Why a Lawyer Consults Various Sources of Law in South Africa
In the South African legal system, a lawyer needs to consult various sources of law when
trying to establish what the existing South African law says about a legal question. This is
due to the nature of the legal framework in South Africa, which is characterized by a mix of
different sources of law, including:
1. Constitution: The Constitution of the Republic of South Africa, 1996, is the
supreme law of the country. It provides the foundational principles and establishes
the structure of government. It also sets out fundamental rights and freedoms that
individuals are entitled to. Lawyers need to consult the Constitution to understand
the overarching legal principles that guide the interpretation and application of other
laws.
2. Legislation: Laws passed by the South African Parliament, known as acts or
statutes, are a significant source of law. These laws cover a wide range of areas,
from criminal law to commercial law to family law. Lawyers need to consult relevant
statutes to understand the specific legal provisions applicable to a given situation.
3. Common Law: South Africa's legal system has a strong basis in English common
law, which consists of principles developed through judicial decisions over time.
Lawyers consult case law to understand how courts have interpreted and applied
the law in previous cases. These precedents provide guidance for similar cases in
the future.
4. Customary Law: South Africa has a diverse population with various cultural and
ethnic groups, each having their own customary laws and traditions. Customary law
is recognized as a source of law, especially in matters relating to personal and
family law for those who are subject to it.
5. International Law: Treaties and conventions that South Africa has ratified also
form part of the country's legal framework. Lawyers may need to refer to
international law when dealing with matters that have cross-border implications.
6. Legal Texts and Journals: Legal scholars, textbooks, and academic journals
provide analysis and commentary on various legal topics. Lawyers often consult
these sources to gain a deeper understanding of legal concepts and arguments.
7. Precedent and Jurisprudence: The decisions of higher courts, such as the
Constitutional Court and the Supreme Court of Appeal, establish binding
precedents that lower courts must follow. Lawyers need to consult these decisions
to understand how the law has been interpreted and applied in specific cases.
Given this complex legal landscape, a lawyer consults these various sources of law to
ensure that they have a comprehensive and accurate understanding of the legal principles
and precedents relevant to their client's case. This thorough research and analysis help
lawyers provide informed advice and representation to their clients.
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