Module 10

Question 1

What are the 5 phases of South African law?

Answer 1

1. Indigenous Law
2. Dutch Colonisation - Extensive commercial transactions took place between the Netherlands and the East
3. English Colonisation - The British allowed for Roman-Dutch law to remain, with influences of the British legal system
4. Apartheid Laws - Origins in the colonial past but began when the National Party came into power
5. Transformative Constitutional Democracy

Question 2

What is ancient law?

Answer 2

Ancient law is when Rome was established, governed by the customs and traditions of the King, there were plebians and patricians.

Question 3

What happened during the roman republic?

Answer 3

Roman Republic - was a period of democracy, expansion, and growth in the Roman Empire, slavery was an integral part of the growth. The patricians and plebians wanted access to the legal system. First codification of the law, through the twelve tables. The twelve tables classified law, through branches and sources (Lex Duodecim Tabularum).

Question 4

How do the 12 Tables compare to modern laws?

Answer 4

The Twelve Tables compares to Modern laws because it acknowledged the right of individuals, explained courts and trial procedures for crimes committed, and outlined the general laws of society.

Question 5

What are the twelve tables of law?

Answer 5

1. Proceeding before trial
2. Trail procedure
3. Judgment on debts
4. patriarchal powers
5. Rules of succession and protection of property.
6. Sale, transfer and ownership of property.
7. land rights
8. laws of injury (Criminal offences and delicts stipulated)
9. equality before the law, right to appeal, no punishment without a trial, anti-corruption provisions
10. Rules regarding funeral
11. Prohibition of marriages between patricians and plebeians
12. General rules about punishment and slaves

Question 6

What happened during the principate roman empire?

Answer 6

Roman Empire (principate)- the study of the law began and where the Emporer would ask the jurist for opinion and advice

Question 7

What happens during the dominate roman empire?

Answer 7

Roman Empire (dominate)- The regression of Roman law, due to the division of Rome. The first piece of legislation is the Citation Act.

Question 8

What happens during the justinian period?

Answer 8

Justinian period - Attempted to codify the overwhelming mass of Romans. This codification process resulted in the publication of four books which were known together as the Corpus Iuris Civilis (the Body of Civil Roman law).

Question 9

What happens during the reception in Europe glassotors?

Answer 9

Reception of law in Europe (glossator)- The Glossator is a group of scholars in Bologna, they provide short commentaries or explanatory notes in the margins. The Glossators failed to consider the need for current legal solutions. Canon law played an essential role in sustaining Roman Law, religious law was known as Corpus Iuris Canonici.

Question 10

What happens during the reception in Europe post-glassotors?

Answer 10

Reception of law in Europe (post glossators) - The post-glossators wrote commentaries on the Corpus Iuris Civilis and the glossator’s work, interpreting the work to apply to modern society. They were responsible for the incorporation of Roman law into the practical administration of justice (common law) and the Transnational application of Roman law was studied (class of professional)

Question 11

What happens during reception into Holland?

Answer 11

Reception into Holland - There was a centralisation of the administration, courts applied written laws which consisted of Roman Law and Canon law as there was greater certainty. Roman Law was accepted into civil law. Where the customary laws were deficient.

Question 12

What happens during the reception in netherlands?

Answer 12

Reception into the Netherlands - An emphasis on human beings’ life and earthly potentialities, which revived the study of Roman Law (Corpus Iuris Civilis) and the isolated principles of law and their critical approach led to the development of a logical framework for European legal systems.

Question 13

What happens during the reception of the roman-dutch law in the cape?

Answer 13

Roman-Dutch Law in the Cape - The Cape changed its policy, which encouraged the settling and during this period, there was no record of the reasons why the courts made certain decisions. Magistrates and persons were appointed to deal with the administration of justice

Question 14

What happens during the reception of the english law in the cape?

Answer 14

English Law in the Cape - English law (common law legal tradition) and Roman-Dutch law (civil law or ius commune legal tradition). Roman-Dutch law was to remain, however torture to obtain criminal confessions was prohibited, and old laws were abolished.

Question 15

What happens during the reception of the roman-dutch law beyond cape?

Answer 15

Roman-Dutch Law beyond the Cape - There was a development of the Supreme Court of Appeal to harmonise common law. South African courts played an important role in adapting and combining Roman-Dutch Law and English Law.

Question 16

what happened during aparthied?

Answer 16

Apartheid - The National Party came into power, they enacted laws based on their belief in racial purity. In 1990, the negotiations began to address the injustices and inequalities of the past, and the aim was for reconciliation through the introduction of the Interim Constitution in 1993

Question 17

what are the four books of the The Corpus Iuris Civilis?

Answer 17

The Corpus Iuris Civilis was broken into four books:
- Institutiones - Textbook for law students
- Digesta - Jurists writing and opinions
- Codex - imperial legislation
- Novellae - New imperial legislation of Justinian

Question 18

what was the result of the English law king making laws based on examples?

Answer 18

The English law had the King’s court make laws based on concrete examples. This resulted in the:
- Development of procedural rules,
- Strict application of the doctrine of stare decisis
- Judicial precedent became a source of law

Question 19

How did the english law influence our legal system?

Answer 19

• Legislation (criminal law, procedural law; evidence and the jury system). A high court called the Supreme court was established
• Having lawyers (judge to interpret the law, advocates to represent and apply the law, and attorneys to read and use the law) instead of Jurists/ the assembly
• Precedent (court decisions) applied English doctrine particularly in contract and delict
• Replacements of landdrosten with heemraden with Mag Courts

Question 20

What is a transformative constitution?

Answer 20

A transformative constitution is a long-term project that looks at transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction, through nonviolent political processes grounded in law. It is a highly egalitarian, caring, multicultural community, governed through participatory, democratic processes

Question 21

What is adjudicative subsidiarity?

Answer 21

Adjudicative Subsidiarity looks if there is constitutional right infringement, we first have to look at legislation that gives effect to these rights. If there is no legislation or an Act of Parliament has been declared invalid, then we rely on common law.

Question 22

What does section 1(3) of the Law of Evidence Act state?

Answer 22

the common law will be applied unless one can prove that customary law should be used to resolve the dispute. This is seen in Section 1(3) of the Law of Evidence Act but depends on the person’s area and if it is practised in the community.

Question 23

what does section 39(2) of the Constitution state?

Answer 23

If unconstitutional, the common law or customary law should be developed to be constitutionally compliant, as stated in section 39(2) of the Constitution. Legislation is tested using section 172 of the Constitution

Question 24

What does visser article highlight?

Answer 24

Visser’s article highlights a single system of law, the main idea is that constitutional and private law work together. Making a constitutionalised single body of private law.

Question 25

What do we have adjudicative subsidairty?

Answer 25

We don’t directly go to the constitution cause it dosent provide remedies or what happens if you break them

Question 26

What is the value-based analysis?

Answer 26

Value-based analysis is in line with section 39 of the Constitution and the interpretation of the Bill of Rights. The approach interprets the law through the values of the Constitution

This is an indirect rule under the horizontal simplister

Question 27

what is the right based analysis?

Answer 27

Right-based analysis in line with Section 8 deals with the application of the Constitution and that the Bill of Rights applies to all. Section 36 deals with when this approach is limited If it’s a law in place it should be looked at in line with the right based approach

This is direct rule under horizontal simplicter

Question 28

What is the first generational rights?

Answer 28

First-generation rights provide a shield for individuals to protect themselves against the state authority. Guarantees freedom from unlawful interference by the state. They operate on a vertical level. These rights are political and civil rights, including the right to life, freedom of expression, of association and religious freedom. These rights are known as blue rights and origins are in the struggle against despotic regimes.

Question 29

What are second generational rights?

Answer 29

Second-generation rights are socio-economic rights. They do not require the state to refrain from doing something specific, but to take positive action. These rights are mostly controlled by the state such as the right to housing, education, medical services. Claims to theses rights are unenforceable in a state where insufficient means exist to give them effect

Question 30

What are third generational rights?

Answer 30

Third-generation rights pertain to groups and the environment. Such as the right to a healthy living environment, right to development and self-determination. These are green right

Question 31

What is legal plurism?

Answer 31

Legal plurism is were two more legal systems coexist in the same field

Question 32

Where does the Substantive of the adjudicative subsidiarity principle come from?

Answer 32

The Substantive of the adjudicative subsidiarity principle comes from the South African Defence Union v Minister of Defence which determined adjudication of a potential fundamental right infringement must find its cause of action in legislation
that has been expressly enacted in the protection of this fundamental right.

Question 33

What does CJ Visser article argue?

Answer 33

In this article CJ Visser article argues that an integrated and constitutional approach to the law of personality is required as multiple sources of law are applicable to the adjudication of personality rights these sources must give effect to constitutional
imperatives.