HFL1501: Legal History and Foundations of SA Law Flashcards

These flashcards cover the foundational concepts of South African legal history, including the origins of law, constitutional transformation, property rights, and the influence of indigenous and Roman-Dutch traditions.

How does external legal history differ from internal legal history?

External legal history examines political, constitutional, economic, and social factors influencing law development, while internal legal history focuses on the development of the rules and principles themselves.

What does 'legal pluralism' mean in the South African context?

It means more than one legal system operates within the same society, such as indigenous African law, Hindu law, Muslim law, and Western legal traditions.

Which three major legal traditions influence the South African mixed or hybrid legal system?

Roman-Dutch law (civil-law tradition), English law (common-law tradition), and Indigenous African law.

What are the three components that form the foundation of the South African legal system?

The African Component (indigenous law), the Western Component (Roman-Dutch and English law), and the Universal Component (human-rights law).

What are the six main sources of South African law?

The Constitution, Legislation, Court decisions, Common law, Custom, and Indigenous African law.

What does Section $211(3)$ of the Constitution require of the courts regarding indigenous law?

It requires courts to apply customary law when appropriate, provided it is consistent with the Constitution and relevant legislation.

Define the 'reception' of a legal system.

The voluntary adoption of legal rules and principles from another legal system by a community that already has its own legal system.

What was the significance of the ruling in Bhe v Magistrate, Khayelitsha?

The Constitutional Court ruled that the rule of male primogeniture (inheritance by eldest male child) was unconstitutional because it discriminated against women and children born outside marriage.

What is the 'repugnancy clause' historically applied to indigenous law?

A rule stating that indigenous law was only valid if it did not conflict with Western ideas of public policy and justice.

According to Section $2$ of the Constitution, what is the status of the Constitution in South Africa?

It is the supreme law of the Republic, and any law or conduct inconsistent with it is invalid.

Which primary legal work did Hugo de Groot (Grotius) author that served as a textbook for Roman-Dutch law?

Inleidinge tot de Hollandsche Rechtsgeleerdheid.

Who was the first person to use the specific term 'Roman-Dutch law'?

Simon van Leeuwen.

What was the purpose of the Black Administration Act $38$ of $1927$?

It created a formal system for governing indigenous communities, introducing controlled recognition of indigenous law through state-controlled chiefs' and commissioners' courts.

What was the significance of the Law of the Twelve Tables ($450$ BC)?

It was Rome’s first written law, which ended elite control of legal knowledge and made the law publicly accessible.

What are the four parts of Emperor Justinian's Corpus Iuris Civilis?

The Codex (imperial laws), the Digest (writings of jurists), the Institutes (student textbook), and the Novellae (later imperial laws).

Which medieval school of law wrote explanatory notes known as 'glosses' on the Corpus Iuris Civilis?

The Glossators ($12th$-$13th$ Century).

Define 'transformatice constitutionalism' as described by Karl Klare.

Using the Constitution as a tool to transform society from apartheid-era inequalities into a society based on dignity, equality, and freedom.

What are the five elements required to prove a delict?

Conduct, Wrongfulness, Fault (intent or negligence), Damage, and Causation.

Distinguish between a real right (ius in rem) and a personal right (ius in personam).

A real right is a right over a 'thing' that can be enforced against the world (e.g., ownership), while a personal right is enforceable only against a specific person (e.g., a contract).

What is the 'nemo plus iuris' principle in the transfer of ownership?

No one can transfer more rights than they have; if the seller is not the legal owner, they cannot pass ownership to the buyer.

What are the requirements for original acquisition of ownership through prescription (usucapio)?

The thing must be capable of ownership, continuous possession, iusta causa (valid reason), good faith (bona fides), and the completion of the required time period.

What is the significance of the Case 'S v Makwanyane' in South African legal history?

It abolished the death penalty and established that the Constitution binds all organs of state and that ubuntu shapes constitutional interpretation.

What is the African philosophy of 'Ubuntu' and its core legal meaning?

It highlights 'humanity through others' (Umuntu ngumuntu ngabantu), emphasizing dignity, compassion, community responsibility, and reconciliation.

In contract law, what is the difference between a 'void' contract and a 'voidable' contract?

A void contract never legally existed (e.g., error in negotio), while a voidable contract exists but can be cancelled by an aggrieved party (e.g., due to fraud or duress).

What did the Case 'Loureiro v iMvula' determine regarding private security companies?

The court found a security company vicariously liable for the loss of property because its guard acted negligently by failing to verify the identity of intruders posing as police.