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HFL1501: Portfolio examination October/November 2023 Name
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HFL1501: Portfolio examination October/November 2023 Name
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lOMoARcPSD| 33582448lOMoAR cPSD| 33582448
HFL1501: Portfolio examination October/November 2023 Name:
Student number: Unique
number: 541425 First
examiner:
Second examiner:
PART 1 (20 marks)
QUESTION 1
Read the following two statements regarding the constitutional development of
indigenous law and determine whether each one is true or false. Write only the
correct option as your answer (eg, “1.3 True”):
1.1 In Bhe and others v Magistrate, Khayelitsha and others; Shibi v Sithole and
others; SA Human Rights Commission and another v President of the Republic
of South Africa and another 2005 (1) BCLR 1 (CC), the Court found that the rule
of male primogeniture, as it applied in the indigenous law of succession, is
unconstitutional. This decision led to the promulgation of the Reform of
Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.
(1)
True
1.2 The Special Courts for Blacks Abolition Act 34 of 1986 abolished a number of
the separate courts for blacks because these courts were found to be repugnant
to the values set out in the Constitution and because they were a reminder of
, lOMoARcPSD| 33582448
“past divisions and discrimination”. (1)
False
QUESTION 2
Indicate whether each of the following two statements with regard to the decision
in Daniels v Campbell 2004 (7) BCLR 735 (CC) regarding the recognition and
application of Islamic law is true or false. Write only the correct option (eg, “2.3
True”):
2.1 The 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 both spouses in any Muslim marriage. (1)
False
2.2 As a result of this decision, the South African Law Reform Commission
proposed a draft Bill for the Recognition of Islamic Marriages and recommended
that polygynous Muslim marriages be recognised. (1)
False
QUESTION 3
Answer the following questions regarding the old writers on Roman-Dutch law:
3.1 The work of which old writer formed the basis of the law of the ZuidAfrikaansche
Republiek and was an authoritative source of the law of the Republic of the Orange
Free State? (1)
Johannes Van der Linden
, lOMoARcPSD| 33582448
3.2 The works of which 17th-century old writers were regarded as sources of law in
both Boer republics? (2)
Simon van Leeuwen
QUESTION 4
Read the following statements regarding legal development in South Africa after
unification in 1910. Analyse the statements below and indicate whether each one is true
or false. Motivate your answer in each instance:
4.1 After the establishment of one Supreme Court for South Africa in 1910, judges began
to believe in the importance of retaining a pure Roman-Dutch law and rejected the
application of English law. (2)
True- English law was despised by the division, it did not affirm English rule as
encompassed in the stare decisis rule which was never really received into the South
African law. The Appellate division gave Roman-Dutch law traction in South Africa1i.
4.2 In Linvestment CC v Hammersley and Another 2008 JDR 190 (SCA) the Supreme
Court of Appeal observed that it was necessary to preserve our Roman-Dutch heritage
by applying pure 17th-century Roman-Dutch law and rejecting the influence of other legal
systems. (3)
False-it has been demonstrated in South africa that there is a propesnsity of our courts to
lean towards Roman-Dutch law and the constitutions enjoins the courts to look into other
jurisdictions. Nonetheless, the courts are not shy to jettison Roman-Dutch rules that are
out of sync with the needs of present day South Africa. This was demonstrated in the
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