HFL1501/202/2/2019

Tutorial Letter 202/2/2019

Historical Foundations of South African Law

HFL1501

Semester 2

Department of Jurisprudence

IMPORTANT INFORMATION
This tutorial letter contains the feedback on your assignments.

BARCODE
 Dear Student

CONTENTS

1 FEEDBACK ON ASSIGNMENT 01

2 FEEDBACK ON ASSIGNMENT 02

3 GENERAL COMMENTS ON THE ASSIGNMENTS

4 INFORMATION ON THE PORTFOLIO EXAMINATION

______________________________________________________________________

1 FEEDBACK ON ASSIGNMENT 01
______________________________________________________________________

The purpose of Assignment 01 was to give you an opportunity to test your knowledge and
understanding of Part 1 of this module. Students sometimes underestimate multiple-choice
questions because the type of question does not require them to add anything new to the
information that appears in the question. However, the truth is that a multiple-choice question
can indeed be difficult, because it requires you to apply your knowledge. It also requires a
detailed knowledge, as one word in a statement may change the meaning and/or the accuracy
of that statement. For this reason, you should always read the question and the various options
very carefully before choosing an answer.

Question 1
Your answer should have been (3), as that is the only legal tradition that does not form part of
the South African legal system.
The South African legal system originated in different legal traditions and therefore contains
elements and characteristics of various other legal systems. For this reason, we say that South
Africa has a mixed or hybrid legal system. The three legal traditions on which South African law
is built, is the civil- (Roman) law tradition, the common- (English) law tradition and the African
tradition. (See p 3 of the study guide, as well as the Preface on p (v).)
Question 2
Your answer should have been (4), as that is the only option that contains an example of an
external legal-historical event in South African law. The implementation of the policy of
apartheid in 1948 was a political event that would influence the development of South African
law to a great extent in the years following thereafter. (See pp 2-3 of the study guide.)
All the other statements are examples of internal legal historical events and illustrate how the
law developed over the years. Make sure that you understand the difference between external
and internal legal history.

2
 HFL1501/202/2/2019

Question 3
Your answer should have been (1). (See p 7 of the study guide.)
It is important to distinguish clearly between the concepts “reception”, “transplantation” and
“imposition”. You should also be able to apply the definitions to examples from history.
“Codification” means the process of compiling a comprehensive, written version of the law that
has the force of legislation. South African law is NOT codified, because the law cannot be found
in a single document with the force of legislation. Instead, we use various sources when we
want to determine what the law says. These sources of law include the Constitution of the
Republic of South Africa, 1996, legislation, case law, custom, indigenous African law and
common law. (See p 5 of the study guide.)
Question 4
Your answer should have been (3). The year AD 476 is in the fifth century.
It is important that you understand in which century a specific year falls. We find that students
struggle with this concept. This will hamper you when studying this module or when simply
reading history in general. The following explains how to know in which century a specific year
falls:
Think of the present time. Ask yourself which year this is. What century are we in? Although the
first two digits of the year are 20-, this does not mean that this is the twentieth century! In fact,
this is now the 21st century AD! Why? Draw a timeline from the year nil to today (in other words,
the period AD since the year nil). Find the period on the timeline that indicates the years
between the year nil and the year AD 100. Suppose you were living during that century. If you
had to describe to someone in which century you were living, what would you say? You would
tell people that you were living in the 1st century AD. Do you find that strange? Think about it: If
you were alive during the first hundred years after the year nil, it would be correct to say that
you were living in the 1st century after the year nil. In other words, even though the first two
digits of that century would be 00-, you would be living in the 1st century AD. (Now apply this to
another example: In which century would you be living if you were born in AD 315 and died in
AD 372?)
Remember that the same principle applies when you are describing dates from before the year
nil. For instance, if you were born in 82 BC and died in 4 BC, in which century would you have
lived? In the 1st century BC of course! In a similar way, if something happened in 753 BC, we
say that it happened in the 8th century BC. And if an event occurred in the 5th century BC, that
event would have taken place in the period between 500 BC and 400 BC.
If you still struggle with this concept, have a look at the frequently asked questions available
under the FAQs link on the HFL1501 myUnisa site. There we explain this in a bit more detail,
and also provide you with a link to a video that explains this concept in easy terms.
Question 5
Your answer should have been (4) as that is the only correct statement. Islamic law is NOT yet
officially recognised as a source of law in South Africa. This is also why statement (1) is
incorrect. (See Activity and Feedback 2.2 on pp 18-19 of the study guide.)
Statement (2) is not correct. The Constitution is supreme; it is the yardstick against which all law
is measured. This means that all law that is in conflict with the values of the Constitution may be
declared unconstitutional by the Constitutional Court. Like all other law, Islamic law principles

3
that are in conflict with the Constitution – and that includes the equality clause – may be
declared unconstitutional.
Statement (3) is not correct. The Hassam judgement involved polygynous Muslim marriages,
not monogamous Muslim marriages. Make sure that you are able to distinguish between
monogamy, polygamy, polygyny and polyandry. For purposes of this module, you may define
the terms within the context of marriage as follows:

 Monogamy: the practice where only one man and one woman are allowed to be married
to each other at the same time
 Polygamy: the practice where a man or a woman may be married to more than one
spouse at the same time
 Polygyny: the practice where a man is allowed to have more than one wife
 Polyandry: the practice where a woman is allowed to have more than one husband.
Also, remember that the Hassam judgement must be interpreted narrowly. The court did not
recognise all marital rights of spouses in polygynous Muslim marriages. Instead, the court only
decided that the interpretation of the word “spouse” in very specific circumstances, namely in
those cases where section 1 of the Intestate Succession Act 81 of 1987 applies, must be
interpreted to also include spouses in polygynous Muslim marriages. Remember that the courts
may only decide a legal question that is before the court; the courts may not give a decision that
is broader than the question asked.
(See p 18 of the study guide.)
Question 6
Your answer should have been (2). Ibn Rushd was a philosopher who lived during the twelfth
century. He was a natural-law thinker. (See p 61 of the study guide.)
Plato, Socrates and Aristoteles were all famous philosophers in ancient Greece. To this day, the
ideal of a scientific and rational legal system forms the cornerstone of the Western legal
tradition. (See p 21 of the study guide.)
Question 7
Your answer should have been (1). The Law of the Twelve Tables was promulgated in 450 BC
(that is almost two and a half thousand years ago). It introduced the beginnings of legal science.
(See p 23 of the study guide.)
Statement (2) is incorrect. The Decretum Gratiani was a collection of canon-law sources and
was published in the twelfth century by the monk, Gratianus. (See p 33 of the study guide.)
Statement (3) is incorrect. The Corpus Iuris Canonici is the most comprehensive collection of
classical canon law. It was based on the Decretum Gratiani and was therefore published only
later than that source. (See p 33 of the study guide).
Statement (4) is incorrect. The Statute of Citation was promulgated in AD 426 – that was in the
time of the Dominate and many centuries (about 900 years) after the Twelve Tables was
issued. It prescribed which jurists’ work could in future be regarded as authoritative and
therefore stifled legal development. (See p 26 of the study guide.)
Question 8
Your answer should have been (2). Although Justinian gave instructions for the codification of
classical Roman law, he was NOT a jurist himself. Instead, he was the emperor of the Eastern

4
 HFL1501/202/2/2019

Roman Empire. The person who oversaw the codification process, and who was a brilliant jurist,
was Tribonian. (See p 27 of the study guide.)
Statement (1) is correct. (See pp 27-28 of the study guide.)
Statement (3) is correct. (See pp 28 and 20-21 of the study guide.)
Statement (4) is correct. Remember that the Corpus Iuris Civilis consists of four parts, each
drafted for a different purpose. The Novellae contains imperial legislation that was promulgated
after the publication of the Codex. (See p 27 of the study guide.) Make sure that you know what
the four parts of the Corpus Iuris Civilis are and what each part contained.
Question 9
Your answer should have been (1), as that was the only correct statement. This was one of the
rules formulated by the ultramontani that facilitated the reception of canon law into secular law.
(See p 33 of the study guide.)
Statement (2) is incorrect. The ultramontani did not follow an interpretative method of study, nor
did they write grammatical notes on the Corpus Iuris Civilis – this was the method of study of the
glossators. (See p 31 of the study guide.)
Statement (3) is incorrect. Because the ultramontani wanted to incorporate Roman law into
contemporary practice, they also investigated sources of law outside Roman law, such as town
law, canon law and Germanic customary law. (See p 31 of the study guide.)
Statement (4) is incorrect. It was the commentators (or post-glossators) who laid the foundation
for the seventeenth-century school of natural law. (See pp 31-32 of the study guide.)
Question 10
Your answer should have been (2). Western European legal systems were influenced by
ancient Greek thought (see Question 6 above), by Roman law and by canon law. (See pp 21
and 30-40 of the study guide.)
English law did not influence the development of the Western European legal systems.
Remember that English law is part of the common-law legal tradition, whereas the Western
European legal systems are mostly part of the civil-law legal tradition. (See p 3 of the study
guide.)
Question 11
Your answer should have been (4), as that was the only incorrect statement. In AB and Another
v Minister of Social Development, the Constitutional Court reiterated that the maxim pacta sunt
servanda, which originates in canon law, is still part of the South African common law today.
(See pp 32-33 of the study guide.)
Statements (1), (2) and (3) are all correct. (See pp 32-33 of the study guide.)
Question 12
Your answer should have been (2). (See pp 38 and 44 of the study guide.)
Make sure that you know the importance of each of the old writers discussed on pages 38 to 39
of the study guide. Remember that the works of all these writers influenced the development of
the South African common law and that they are still cited by the courts today.

5
Question 13
Your answer should have been (3). To be able to determine the correct chronological order of
the various events, you first had to find the dates when each event occurred. The correct
chronological order of the four events is:

 The Raad van Justitie was established as a court at the Cape in 1685.
 The Second British Occupation of the Cape took place in 1806.
 Khoi labourers and slaves rebelled against their employers in 1825.
 The Orange Free State Constitution came into effect in 1854.
Of the four dates mentioned, 1854 is therefore the most recent. When studying history, it is
important to keep in mind the chronological order of events. This is because an event may
impact on future developments and events. (See pp 42, 50 and 63 of the study guide.)
Question 14
Your answer should have been (1) as that was the only correct statement. The unification of the
four former British colonies (namely the Cape of Good Hope, Natal, the Transvaal and the
Orange Free State) in 1910 also initiated a new era in the development of law in South Africa.
Whereas each former colony had previously had its own legal system, there was now a drive to
unify the law to ensure that the law of the Union of South Africa was more or less the same
everywhere in the Union. This is where the Appellate Division played an important role: as it
heard appeals from the courts of all four former colonies, it helped to assimilate the law. Of
course, the stare decisis principle greatly aided in this endeavour, as the decisions of the
Appellate Division was binding on the courts of the four areas. (See p 45 of the study guide. If
you don’t know what the principle of stare decisis refers to, see the Glossary on p 181 of the
study guide.)
Statement (2) is incorrect. The South African Law Reform Commission does not hesitate to
make use of comparative legal material and it acknowledges the civil-law heritage that we share
with other European legal systems. (See p 46 of the study guide.)
Statement (3) is incorrect. Until 1950, the highest court of appeal in South Africa remained the
Privy Council in London. However, its influence declined from 1910 when the Appellate Division
was established. After 1950, the Appellate Division was the highest court of appeal in South
Africa and remained so until the new constitutional dispensation of the 1990s. (See p 45 of the
study guide.)
Statement (4) is incorrect. It was not until the creation of the law faculties of the Universities of
Cape Town, Pretoria and Stellenbosch in the early twentieth century that it was possible to
discern a movement in South Africa towards the scientific study of Roman-Dutch law. The
University of South Africa was established in 1873. (See p 45 of the study guide.)
Question 15
Your answer should have been (3) as that was the only correct statement. This fact contributed
to a great extent to the commissioners’ courts losing their credibility with the community it was
supposed to serve. (See pp 14 and 50 of the study guide.)
Statement (1) is incorrect. The restrictions of the free movement of the South African population
occurred long before 1948. See the examples mentioned on page 50 of the study guide.
Statement (2) is incorrect. The pass laws were designed to restrict the residence and movement
of black South Africans only. (See p 50 of the study guide.)

6
 HFL1501/202/2/2019

Statement (4) is incorrect. The mass action by black and coloured women in the Free State in
1913 led to the relaxation of the pass laws for women in 1914. (See p 50 of the study guide.)
Question 16
Your answer should have been (4), as both statements are true. The Sharpeville massacre was
indeed followed by intensified race discrimination and political repression. Also, the ANC and
PAC were declared unlawful soon thereafter. However, the massacre also resulted in the
worldwide condemnation of apartheid and apartheid laws. Anti-apartheid movements were
established in other countries. (See p 51 of the study guide.)
Question 17
Your answer should have been (3). The liberation movement never questioned the application
of Magna Carta. Remember, Magna Carta is an ancient English charter that guaranteed
fundamental liberties. Some of its clauses still form part of English law today. In fact, former
President Nelson Mandela referred to Magna Carta as one of the “documents which are held in
veneration by democrats throughout the world”. (See pp 53-54 of the study guide.)
All the other statements are correct. (See p 57 of the study guide.)
Question 18
Your answer should have been (4). Oliver Tambo was never awarded a Nobel Peace Prize.
(See pp 53-54 of the study guide.) He did, however, play an important role as a member of the
liberation movement. (See p 51, especially footnote 3, and p 54 of the study guide.)
Make sure that you know the role of each of these activists in South African history.
Question 19
Your answer should have been (1). This is an important case and you will come across it again
in your future legal studies. Make sure that you know what was said in this judgement and how
it impacted on the development of South African law. (See page 62 of the study guide.)
Harris v Minister of the Interior was decided in the 1950s and concerned the testing powers of
the courts. (See pp 63-64 of the study guide.)
Le Roux and others v Dey was decided by the Constitutional Court in 2011 and concerned the
law of delict. You will learn more about this judgement in Part 2 of the study guide. (See pp 6,
64 and 148-150 of the study guide.)
Hassam v Jacobs was decided by the Constitutional Court in 2009 and concerned the rights of
spouses in polygynous Muslim marriages. (See p 18 of the study guide and also Question 5
above.)
Make sure that you are familiar with the judgements mentioned in this module. Remember that
each judgement discussed in the study guide gives an illustration of the development of South
African law and is an example of how our law is not stagnant, but is an ever-evolving system.
Question 20
Your answer should have been (2). The principle of constitutionalism was completely denied in
the Constitution of the Zuid-Afrikaansche Republiek. This led to the constitutional crisis in the
1890s and the eventual dismissal of Chief Justice Kotzé. (See p 63 of the study guide.)

7
The 1910 Constitution of the Union of South Africa made explicit provision for the formal testing
powers of the courts and it partially recognised the principle of constitutionalism. (See p 63 of
the study guide.)
The Constitution of the Orange Free State was strongly influenced by the American Constitution
and by the idea of constitutionalism. It provided that the Volksraad was not completely
sovereign and it granted the courts formal testing powers. This 1854 Constitution therefore
partially recognised the principle of constitutionalism. (See p 63 of the study guide.)
The Constitution of the Republic of South Africa Act 200 of 1993 (also known as the interim
Constitution) embraces full recognition of the principle of constitutionality. It provided for the full
testing powers of the courts and that they could declare legislation invalid, not only on the basis
of procedural requirements not followed, but also if the contents of that legislation were in
conflict with the values of the Constitution. (See p 60 of the study guide.) You will learn more
about the interim Constitution in Part 3 of the study guide (see p 156).

TOTAL: [20]

_________________________________________________________________________

2 FEEDBACK ON ASSIGNMENT 02
_________________________________________________________________________

QUESTION 1: Learning unit 1

1.1 What is the correct way to refer to the Interim Constitution of South Africa? (1)

ANSWER

The Constitution of the Republic of South Africa Act 200 of 1993

Absolutely no other answer was accepted. This is the only correct way to refer to the Interim
Constitution.

1.2 What is the correct way to refer to the South African Constitution currently in force? (1)

ANSWER

The Constitution of the Republic of South Africa, 1996

Absolutely no other answer was accepted. This is the only correct way to refer to the
Constitution, since the Constitution is not equal to any other piece of legislation. Always
remember this. In this regard, see footnote 3 on p 69 of the study guide.

8
 HFL1501/202/2/2019

QUESTION 2: Learning unit 2

2.1 How is a personal right enforced? (2)

ANSWER

A personal right is enforced by means of a personal action (1) and may only be enforced
against a specific person (1).

See pp 78-79 of the study guide for a discussion of the distinction between real and personal
rights.

2.2 Simphiwe purchases a car. Describe the rights he obtains as owner of the car. (3)

ANSWER

The right of ownership grants the owner the following three rights in terms of the thing in
question:
 The right to use the thing (or ius utendi) (1);
 The right to become the owner of the fruits of the thing (or ius fruendi) (1); and
 The right to alienate or destroy the thing (or ius abutendi) (1).

See para 2.7.1 on p 80 of the study guide.

2.3 Name three sources of South African property law (do not list individual pieces of
legislation). (3)

SUGGESTED ANSWER

Any three of the following:

 Constitution of the Republic of South Africa, 1996;

 Legislation;
 African customary law; and
 Common-law, which is based on Roman-Dutch legal principles, as developed by the
South African courts.

The answer to this question was not provided on a specific page of the study guide. You had to
read and understand the entire learning unit 2 in order to arrive at this answer. Many of the
questions in the portfolio examination will be similar in nature to this question. It is important that
you read and understand all the study material before you attempt the portfolio questions.
[8]

9
QUESTION 3: Learning unit 3

3.1 Indicate whether the performance in the agreement concluded in the following scenario is
(a) specific performance, or (b) unspecified performance. Write down only “A” or “B” as
your answer:

Karel gets drunk and accidentally fires his pistol near the fence separating his farm from
Mzu’s farm. The bullet from Karel’s weapon kills Mzu’s prized bull. The bull has won
awards at two local competitions. Karel undertakes to compensate Mzu for his loss. He will
pay Mzu the amount an independent appraiser determines as the value of the bull at the
time of its death. (1)

ANSWER

See p 112 of the study guide for a discussion of the distinction between specified and
unspecified performance.

3.2 Name three things that prospective partners had to agree upon for a valid contract of
partnership to be concluded. (3)

SUGGESTED ANSWER

The prospective partners had to agree that they intended to conclude a contract of partnership
(1); what the purpose of the partnership would be (1); and what each partner would contribute to
the partnership. (1)

See p 121 of the study guide regarding the contract of partnership.

3.3 Did good faith once again become a contractual requirement in South African law after
judgement was handed down in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers
(Pty) Ltd 2012 (1) SA 256 (CC)? Explain your answer. (2)

SUGGESTED ANSWER

No, (1) the discussion of good faith was included in the minority judgement OR the comments
on good faith were made obiter and do not form part of the judgement. (1)

See pp 130-132 for a complete discussion of the case.

[6]

10
 HFL1501/202/2/2019

QUESTION 4: Learning unit 4

4.1 Indicate whether the following statements are TRUE or FALSE, by writing down only “True”
or “False” as your answer:
4.1.1 “Damage” refers to the sum of money a wrongdoer should pay as compensation for
the harm he has caused the victim by committing a delict. (1)
4.1.2 The Romans classified delicts committed by individuals against each other as
private delicts. (1)

ANSWER

4.1.1 False (1)

There is a difference between “damage” and “damages”. In this regard, please see p 137
of the study guide.

4.1.2 True (1)

For the difference between crimes and delicts, please see p 137 of the study guide.

4.2 What is the victim of iniuria allowed to claim from the wrongdoer with the actio iniuriarum?(1)

ANSWER

Satisfaction OR solace/comfort money/solatium (1)

See p 145 of the study guide for a discussion of the actio iniuriarum.

4.3 How did the Constitutional Court develop the common law of delict in Loureiro and others
v iMvula Quality Protection (Pty) Ltd [2014] ZACC 4? (1)

SUGGESTED ANSWER

Any one of the following:

 The Court developed the “reasonable security guard test”;

 The Court developed the law on negligence by providing clarity on “foreseeability” and
“preventability”;
 The Court developed the law in such a manner that individuals may hold private security
companies liable for losses suffered due to their negligence;
 Any other relevant explanation.

See pp 146-148 of the study guide for a discussion on this case.

[4]

TOTAL: [20]
11
 Please note that you were not penalised if you did not include references in footnotes, a
bibliography or an academic honesty declaration. These are, however, required in your portfolio
submission. When completing the portfolio, please consider the instructions and the marking
rubric in this regard.

______________________________________________________________________

3 IMPORTANT GENERAL COMMENTS ON THE ASSIGNMENTS

______________________________________________________________________

Although a large number of students obtained good marks for the assignments, many
students did not do well. Below is a summary of some of the reasons why you may have
obtained lower marks than you expected:

 It was obvious that many of you did not systematically work through the study guide
as required. The purpose of the weekly schedule is to give you enough time to
familiarise yourself with the content of this module before attempting the
assignments.
 Some of you had apparently merely read the questions and then tried to find the
answers, without taking into consideration that law is an interactive science and that
the various sections of a specific subject relate to each other. For example, when
answering a question on the law of obligations, you should not only study the
specific contract(s) referred to in that question, but also the general principles of the
law of contract.
 It was obvious that many of you merely submitted your assignments to obtain
admission to the examination and were not concerned about the mark that you
would obtain.
 Some of you – with disastrous results – tried to complete your assignments based
on your general knowledge. Law, unfortunately, requires hard work and a lot of
study.
 Also, those of you who based your answers on internet searches probably received
low marks. Keep in mind that law is country specific and that doing a general
internet search will yield information on various legal systems, not all of which will
be applicable to South African law. The only way to find information on the legal
position in South African law, is to consult the recognised sources of South African
law. These do NOT include newspaper clippings, magazines or Wikipedia. You
were supposed to work through the prescribed study material for the module.

12
 HFL1501/202/2/2019

Please do not repeat this mistake in the portfolio examination. You will most
certainly fail.

Those of you who committed plagiarism by copying directly from the study guide were
awarded a mark of zero for each infringing answer. DO NOT COMMIT PLAGIARISM IN
THE PORTFOLIO EXAMINATION. YOU HAVE BEEN WARNED!

If you completed and submitted one or both of the assignments and obtained marks for
them, you should now have a year mark (a possible 20%). Remember that the year
mark will be taken into account when your final mark is determined. (Please see para
8.2 in Tut Letter 101 where we explain how the final mark is calculated.) Those of you
who submitted both assignments and who obtained good marks for them will probably
be grateful for that in view of the upcoming examination. Please study all the work
carefully and make sure that you understand everything. The examination mark
constitutes 80% of your final mark. This means that you could still pass this module IF
you submitted your assignments and you have a low year mark. However, remember
that you need to obtain at least 40% in the exam before your year mark is taken into
account. This means that if you have a year mark of 95%, but you obtain only 39% in
the exam, you will still fail this module.

______________________________________________________________________

4 INFORMATION ON THE PORTFOLIO EXAM

______________________________________________________________________

Tutorial letter 201, sent out earlier this semester, contains all the information on the
portfolio examination. That tutorial letter was posted to all students and is available on
the module’s myUnisa page (see “Official Study Material” and “Additional Resources”).
Tutorial letter 201 contains not only general information and instructions on how to
compose and submit the portfolio, but also the portfolio questions itself. Your answers
to these questions must be submitted as your portfolio submission, which will
serve as your examination in this module.

For any queries on the portfolio, please visit the FAQs on myUnisa, as well as the folder
entitled “Portfolio”, which has been uploaded under “Additional Resources”. You may
post any questions in the discussion forum specifically created for the portfolio. Please

13
 read all announcements carefully, as they may contain important information relevant to
the portfolio.

We wish you all the best with your portfolio examination. Remember: start early, follow
the instructions carefully, and submit early.

Kind regards

MS A BAULING
PROF F ABIOYE
MS L WILDENBOER PRETORIA

14