Southern African Society of Legal Historians 

• Suider-Afrikaanse Vereniging van Regshistorici

                                             • Inhlangano ese-Afrika eseningizimu yosomlando bexomthetho

                                                      • Mokgahlo wa borwa bja Afrika wa borahistori ba molao

 

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  Welcome to the Southern African Society of Legal Historians.

 

 

 

SYLLABI OF SUBJECTS

The society has recently undertaken a project to publish the syllabi of related courses dealing with legal history, legal philosophy and indigenous law from all Southern African universities. By providing a brief outline of each course, the Society hopes to encourage greater co-operation between departments as well as to promote the standardisation of course contents.

 

BACK

 

POTCHEFSTROOM UNIVERSITY FOR CHRISTIAN HIGHER EDUCATION

 

HISTORICAL FOUNDATIONS OF SOUTH AFRICAN LAW (LLB113)

Study units:

    1. External foundations of South African law - Roman law

The external foundations deals with all those factors (social, religious, political, etc) that had an influence on legal development. These factors are given as background. You will study inter alia the various sources, legal schools and most important authors that influenced the development of the law during the Roman period.

    1. External foundations of South African law - Middle Ages until Roman Dutch law

You are going to study in this study unit the external foundations of the law from the Middle Ages until the Roman Dutch law.

 

    1. External foundations of South African common law and African customary law

The sources and development of South African common law from 1652 until 1996 are studied as well as the external foundations of African customary law. The external foundations of African customary law deals with the social, philosophical, religious and political background of African customary law. Similarities and dissimilarities between African customary law and Roman law are indicated.

    1. External foundations of South African mercantile law, public law as well as the external and internal foundations of the law of procedure

The South African mercantile law, public law and law of procedure were influenced by English law. In this study unit you will briefly study the social, economic, political and religious background of these subjects.

    1. Internal foundations of the South African law of succession

The South African law mainly rests on the Roman Dutch law. The internal foundations, that is the development of material legal norms is studied here.

    1. Internal foundations of the South African law of persons and the family

The South African law of persons and the family rests on the Roman law and the development of the material legal norms of the law of persons, marriage norms and the rules dealing with curatorship and guardianship are studied here.

 

CONTEMPORARY FOUNDATIONS OF SA LAW (LLB123)

Study Unit 1:        Internal foundations of the Law of Property: ownership and property

The internal foundations of the law of property that deals with the classification of things, joint ownership, neighbour law, original and derivative forms of acquisition of ownership, property and the protection of ownership and property are studied in this study unit.

Study Unit 2:        Internal foundations of the Law of Property - limited real rights

Study unit 2 deals with the rights that a person has by way of real rights in respect of things belonging to another person namely servitudes, quitrent, emphyteusis and superfices as well as real security.

Study Unit 3:        Internal foundations of the Law of Delict

The Law of Delict forms part of the law of obligations and this instance the general foundations of the law of obligations are studied. The general requirements and actions of delicts, theft, robbery, iniuria (infringement of a person's personality), damnum iniuria datum (damage to property), as well as the action for the negligent causation of pain and suffering and the action of the dependant form part of the study material. Quasi-delicta is the last section of the study unit that you will study.

Study Unit 4:        Internal foundations of the South African Law of Contract - general principles

This study unit deals with the general principles of the law of contract as well as breach of contract.

Study Unit 5:        Internal foundations of the South African law of contract - contractual institutions

In this study unit the various contractual institutions and forms of consensual contracts, quasi-contracts and other contractual institutions are studied. The ways in which discharge of obligations took place concludes this study section.

 

LEGAL PLURALISM (LLB225)

Study unit 1

Introduction and background to Legal Pluralism and African customary legal systems

The recognition of African customary law by the 1996 Constitution led to Legal Pluralism. These systems should be interpreted in the light of the other fundamental rights and therefore you have to take note of them. The concept of legal pluralism, the definition and sources of African customary law, the history of the recognition of African customary law and the actual application of the rules dealing with the recognition of African customary law and the court system are studied in this study unit.

Study unit 2

General principles of Law of Persons and Law of the Family

The rules dealing with the general principles of the African law of persons and the law of the family are studied in study unit 2 as well as the changes brought about by the legislator.

Study unit 3

General principles of the Law of Succession

African customary principles of the law of succession are studied here as well as the legislative changes to the customary position.

Study unit 4

General principles of Law of Property and Law of Contract

African customary rules of the law of contract are studied as well as the customary rules pertaining to the law of property especially communal property. The legislative interference in communal property is also studied.

Study unit 5

General principles of the Law of Delict

The general principles of the customary law of delict are studied as well as the legislative changes to it.

Study unit 6

The future of customary law and the conflict of customary law with fundamental rights

This part of the course is based on assignments, debates and moot courts.

 

LEGAL PLURALISM (LLB314)

The course unit consists of six study units:

1.             General introduction and recognition of religious-based legal systems

The recognition of religious-based legal systems by the 1996 Constitution led to Legal Pluralism. These systems should be interpreted in the light of the other fundamental rights and therefore you have to take notice of them. Various reasons were given during the constitution-writing process as to why the Islamic law should be recognised - the reasons for this recognition as well as various international documents will be referred to.

  1. General principles of Islamic, Hindu and Jewish law

The external foundations of Islamic law deal inter alia with the philosophical and religious background of Islamic, Hindu and Jewish law. Reference will also be made to sources and legal schools. The external foundation of Islamic law is based on the Qur'an. The external foundations of Hindu law deal inter alia with the philosphical and religious background of Hindu law. The Jewish law uses the Bible as point of departure, and in particular its first five books - you will be referred to a discussion of justice that is found in the Old Testament.

  1. Islamic, Hindu and Jewish Law of Persons

The material Islamic, Hindu and Jewish law of persons will be discussed in this study unit.

  1. Islamic, Hindu and Jewish Law of Marriage

The material marriage rules of the different legal systems will be studied.

  1. Islamic, Hindu and Jewish Law of Property and Law of Succession

The material legal norms regarding the Islamic, Hindu and Jewish Law of Property and Law of Succession will be studied.

  1. Fundamental rights and the religious-based legal systems

This part of the course is based on assignments and moot courts.

 

INTRODUCTION TO JURISPRUDENCE LLB211

The course consists of seven study units:

Study unit 1:     general jurisprudence

study unit 2       legal ideals

study unit 3       relationship law and morality

study unit 4       natural law

study unit 5       legal positivism

study unit 6       Ronald Dworkin

study unit 7       reformational jurisprudence

 

 

LEGAL PHILOSOPHY LLB428

 

The course unit LLB 428 comprises eleven study units, namely:

Study unit 1      natural law and its opponents

Study unit 2      positivistic theories of law

Study unit 3      the american realists

Study unit 4      ronald dworkin and reconstruction

Study unit 5      the rebirth of natural law

Study unit 6      reformational jurisprudence

Study unit 7      liberalism, libertarianism and socialism

Study unit 8      critical legal studies

Study unit 9      feminism and the law

Study unit 10    the communitarian debate and liberalism

Study unit 11    legal hermeneutics and deconstruction

 

Rand Afrikaans University (Johannesburg)

 

  • Legal History; Foundations of SA Law; Comparative Law (modules of the year course Introduction to Legal Studies):

 

            *          The importance of legal history.

*          Roman law (ancient Rome; foundations of Roman jurisprudence; classical Roman jurisprudence; codification of Roman law by emperor Justinian).

*        The Romanist law of the middle ages (reasons for the continued existence of Roman law in the early middle ages; revival of the study of Roman law in the high middle ages; the origin of Romanist law in the late middle ages; reception of Roman law in the Germanic legal systems).

*          Roman-Dutch law in the Netherlands in the 17th and 18th centuries.

*          Codification of the Roman-European law.

*          South African law (Roman-Dutch law; English influence; modernists and purists; apartheid; positivists and non-positivists; reconstruction of the law; indigenous law).

*          A new synthesis.

*          Perspectives on the law (five judicial approaches – the case of the speluncean explorers; cultural perspective; feminist perspective; critical perspective).

*          Reasons for legal comparison.

*          Problems in this field.

            Different legal systems (Western legal systems; socialist legal systems; non-Western legal systems; South African legal system).

*          Bill of rights.

  • Roman Law (semester course):

            *          History of Roman Law.

*          Roman law of things (classification of things; possession; ownership; limited real rights; text analysis).

*          Roman law of contract (law of obligations; general principles of the law of contract; verbal and written contracts; real contracts; letting and hiring; partnership; mandate; purchase and sale; quasi-contract; text analysis).

*          Roman law of delict (furtum; rapina; damnum iniuria datum; iniuria; damage caused by animals; quasi-delict; text analysis).

  • Indigenous Law (African Customary Law) (semester course)

*          Introduction to Indigenous Law (Indigenous Law as a subject material; different African customary legal systems; the division and characteristics of the Bantu-speaking groups of Southern Africa; language groups; characteristics of the main groups; the nature and general characteristics of Indigenous Law; the sources of Indigenous Law).

*          The history of the recognition and application of Indigenous Law in South Africa.

*          Law of persons (general introduction; gender equality of Indigenous Law; children; women; men (family heads).

*          Marriage law (customary marriages - general introduction; the customary engagement; the customary marriage; lobolo; the consequences and effects of a customary marriage; dissolution of a customary marriage; Act 120 of 1998; civil marriages - introduction to the theme; historical background; Section 22 of Act 38/1927).

*          Law of succession (general principles of customary law of succession; begetting of hereditary successors; statutory provisions; Section 23 of the Black Administration Act 38 of 1927; Section 2 of Government Notice R200 of 1987; proposed new legislation).

*          Conflict of laws (introduction; interpretation of the enabling provisions by the court).

*          The constitutionality of Indigenous Law.

  • Jurisprudence (Philosophy of Law) (semester course)

Part I: Law and morality

1.         The Law and other norm systems.

          2.       The relationship between law and morality.

         

            Part II: Historical overview of legal theoretical thought

 

            1.         Antiquity : the Greeks and the Romans.

            2.         Late Antiquity and the Middle Ages.

            3.         The Enlightenment.

            4.         The modern period: nineteenth century.

            5.         The modern period: twentieth century.

                        5.1       Legal positivism

                        5.2       Idealist conceptions of law

                        5.3       Social-functional approaches to law

 

            Part III: Selected topics on contemporary legal theoretical issues

 

Rhodes University (Grahamstown)

 

  • Legal History

 

Foundations of law

An introduction to the nature and purpose of law, law and justice, rights and duties; an outline of the legal systems of the world and the bases of modern South African law (an outline of Roman law and the sources of law).

Introduction to law

The structure and offices of courts. An outline of criminal and civil procedure; divisions of law and an outline of selected branches of public and private law.

 

  • Legal Philosophy

 

Jurisprudence

This comprises Jurisprudence A and B

 

Jurisprudence A

 

Introduction to natural law: nature and origins; John Austin and the command theory of law; Kelsen and the pure theory of law; law as a system of rules and Hart's concept of law.

The rebirth of natural law: law and morality, the Hart-Fuller debate; John Mitchell Finnis; the theories of Dworkin; American realism; the debate on the record and role of the South African judiciary.

 

Jurisprudence B

 

Selected topics of jurisprudential interest, which have particular relevance in our evolving human rights jurisprudence such as equality and equity, African jurisprudence and harmonisation of common and customary law.

 

  • African customary law

 

This course comprises both customary law A and B.

 

Customary law A

 

The nature, history and ascertainment of customary law, customary law and the Bill of rights; the courts and internal conflicts of law; customary law of persons, family, obligations and succession.

 

Customary law B

Customary law of property with emphasis on pre-democracy land tenure systems and post apartheid land reforms and reconstruction.

 

University of South Africa (Pretoria)

 

  • Roman law

LJU 401 -E General legal history (S1 and S2)

Purpose: to provide an overview of the political, social and economic events, which shaped the South African legal order.

LJU 408 - M Capita selecta from Roman law (S1 and S2)*

Purpose: to gain advanced knowledge of specific topics from Roman private law.

LJU 409 - N Further capita selecta from Roman law (S1 and S2)*

Purpose: to gain knowledge about certain selected topics from Roman private law on an advanced level.

* Both these courses will only be available to students repeating the course during 2001. All first time students should register for LJU 412 - H.

LJU 412 - H Capita selecta from Roman law (S1 and S2)

Purpose: to gain insight into the Roman law foundations of the South African law on an advanced level.

  • Legal History

FLS 102 - V The origins of South African law (S1 and S2)

Purpose: to provide an overview of the origins of the South African legal system, focusing on Western or European, the African and the human rights traditions.

FLS 102 - W Foundations of South African law (S1 and S2)

Purpose: to provide an overview of the Roman law origin and foundation of the law of property and the law of obligations, with reference to the interaction of various legal traditions studied in FLS 102 - V and comparable institutions in South African law.

LJU 402 - F Further Study in legal history (S1 and S2)

Purpose: to enable students to analyse the historical development of selected legal rules and principles within the framework of the external history of law.

  • Indigenous law

IND 101 - S Introduction to indigenous private law (S1 and S2)

Purpose: to gain insight into indigenous private law in cultural perspective, including the following: characteristics of unspecialised private law systems, nature, sources and recognition of indigenous private law; content and division of indigenous private law; legal diversity and the principles of indigenous private law.

IND 102 - T Introduction to indigenous public law (S1 and S2)

Purpose: to gain insight into indigenous public law in cultural perspective, including the following: characteristics of unspecialised public law systems; nature sources and recognition of indigenous public law; content and divisions of indigenous public law; principles of indigenous public law.

LIL 403 - 3 Indigenous law of persons and family law (S1 and S2)

Purpose: to enable students to extend their knowledge of indigenous law of persons, family law, law of property, succession and inheritance.

LIL 404 - 4 Indigenous private law (capita selecta) (S1 and S2)

Purpose: to enable students to extend their insight into and knowledge of selected themes from indigenous law.

  • Comparative law

LJU 403 - G Introduction to comparative law (S1 and S2)

Purpose: to equip students with necessary knowledge of comparative method and the skills to undertake comparative studies of different legal systems.

LJU 405 - J Conflict of laws (S1 and S2)

Purpose: to equip students with the required knowledge and skills to solve private-law issues in which the laws of different countries are involved.

  • Legal philosophy

LJU 406 - K Introduction to legal philosophy (S1 and S2)

Purpose: to enable students to identify, critically discuss and defend their viewpoints on the philosophical assumptions underlying law in general and specific legislative policies, legal judgements, arguments and legal practice in particular and to gain insight into various ways in which these assumptions changed over time.

LJU 407 - L Legal philosophy (S1 and S2)

Purpose: to enable students to uncover, critically assess, discuss and defend their viewpoints on the philosophical assumptions underlying selected problem areas and key issues in law.

  • Street law

LJU 411 - G Street law

Purpose: to enable students to teach law in communities and to provide a theoretical jurisprudential framework within which such instruction can take place.

 

University of Pretoria

 

  • Philosophy of law

RFF 311 Philosophy of law

Purpose: Philosophy of law is a compulsory third year course spanning one semester in which students are given an introductory overview of legal philosophy. The course contains four themes: legal philosophy in the South African context; law of nature and positivism; formalism, critical questioning of American realism and critical legal studies, reconstructive approach of John Rawls and Ronald Dworkin; alternative approaches: communitarianism and republican thought, post-modernism, feminism and the African renaissance.

FGR 420 Philosophical foundations of legal problems

Purpose: A final year elective in which selective themes of legal philosophy are analysed and applied to both the South African and international political contexts. The course is reviewed annually in conjunction with students who have enrolled for it. The focus areas are critical theory, post-modernism and legal interpretation.

 

  • Comparative law

Comparative law

Purpose: The curriculum for comparative law spans one semester. During this time, students have lectures on: introduction to comparative law; history of comparative law; advantages and disadvantages of comparative law; the methodology of comparative study - selection of topic, research, evaluation of material; the major legal systems of the world: common law systems, civil law systems, religious legal systems, socialist systems; customary law and comparative law; comparative law and the constitution; guest lectures as well as a research project.

 

  • Legal skills

Legal skills 110/111

Purpose: introduction to legal study; finding legislation and cases; writing an introduction; Latin and other foreign phrases; reading, summarising and applying case law; reading and applying legislation; reading, interpreting and applying the Constitution; common law; reading and interpreting academic journals; finding, reading and interpreting text books; doing research; basic numerical skills.

 

Legal skills 120

Purpose: introduction to the process of writing; legal language; writing a letter to a client; an office memo; examination in chief; re-examination; the closing argument; heads of argument; argument and logic.

 

  • Historical foundations of South African private law 151

Introduction to external legal history

  1. Introduction to characteristics and components of the South African legal system
  2. African law
  3. Roman legal history; reception
  4. Dutch Republic; Dutch law
  5. English legal history
  6. Human rights; historical development; philosophy; international documents and systems
  7. South Africa; Cape; English occupation; ZAR; Union, Apartheid; common law; Constitution; religious systems.

 

  • Historical foundations of South African private law 152

Introduction to the Roman law of things

  1. Real rights; Things; possession
  2. Ownership limitations, acquisition, protection
  3. Limited real rights, servitudes, real security.

 

  • Historical foundations of South African private law 120

Introduction to the Roman law of contract

  1. General principles of the law of contract
  2. Specific contracts
  3. Short overview of basic concepts of the Roman law of persons and family

 

Introduction to the Roman law of delict

  1. General principles of the law of delict
  2. Specific delicts
  3. Short overview of the basic concepts from the Roman law of succession.

 

UNIVERSITY OF THE WESTERN CAPE

 

COMPARATIVE LAW 431

(semester course - elective)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         Methodology of comparative legal studies.

2.         Basic principles of the Anglo-Saxon legal systems.

3.         Basic principles of selected European legal systems.

4.         Basic principles of selected African legal systems.

5.         Basic principles of European Community law.

 

CONFLICT OF LAWS 431

(semester course - elective)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

A         General principles of conflict of laws

1.         Introduction and theories

2.         Characterisation, renvoi and the incidental question

3.         Proof of foreign law

4.         Exclusions of foreign law

5.         Time factor

 

B         Choice of law in South Africa

1.         Law of domicile

2.         Jurisdiction

3.         Law of contract

4.         Law of delict

5.         Family Law

6.         Property law

7.         Law of succession

8.         Recognition and enforcement of foreign judgements

 

CORPORATE LAW 402

(year course)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         Introduction to SA business entities: companies; close corporations; business trusts; partnerships and co-operative societies

2.         Pre-incorporation contracts

3.         Memorandum and articles of association

4.         Capacity and representation

5.         Share capital, shares and debentures

6.         Share capital maintenance

7.         The prospectus, share issues and membership

8.         Transfer of shares and shares as security

9.         Corporate governance

10.       Minority protection

11.       Take-overs

12.       Close corporations

CUSTOMARY LAW 111

(semester course)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         Introduction to multiculturalism and legal pluralism in South Africa against the background of the Constitution and with reference to rural and urban communities.

2.         A survey of the context of African customary law in jurisprudential and comparative perspective, including its nature and sources.

3.         Versions of the traditional and modern South African customary laws of persons and family relations, property (including land), contract and succession.

 

CUSTOMARY LAW 121

(semester course)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         Versions of the traditional and modern South African customary laws of wrongs (including delict and crime) and procedure (including evidence).

2.         Versions of the traditional and modern South African customary constitutional and Administrative laws (including traditional leaders and their courts and traditional authorities referred to by the Constitution).

3.         Review of the interaction between "Legislation, Common law and Customary law" referred to by the Constitution and a survey of the South African internal conflict of laws affecting customary law.

4.         Introduction to aboriginal rights in international context.

5.         Introduction to law reform and the development and future of customary law and jurisprudence in South Africa in view of the Constitution as well as modernisation in general (e.g. the position of traditional leaders, women and children, traditional land tenure, etc.)

 

FOUNDATIONS OF SOUTH AFRICAN LAW 211

(semester course)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         An overview of the development of Roman law in its socio-political context.

2.         The survival and revival of Roman law in Western Europe.

3.         The reception of Roman law in the Netherlands.

4.         The reception of Roman-Dutch law in South Africa.

5.         The reception of English law in South Africa.

6.         An overview of recent developments in South African law.

 

FOUNDATIONS OF SOUTH AFRICAN LAW 221

(semester course)

Lectures

Four lectures per week

 

Examination

One paper of three hours

1.         An overview of the Roman law of persons, actions and things.

2.         The Roman law of obligations.

JURISPRUDENCE 311

(semester course)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         An overview of the evolution of Western legal philosophy from ancient Greek mythology and naturalistic thought to twentieth century irrationalism.

2.         An assessment of modern-day developments in African thinking on law and justice.

 

JURISPRUDENCE 321

(semester course)

 

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         A jurisprudential reflection on the relationship between law and ethics.

2.         Capita selecta from current bio-ethical and other ethic-legal issues, e.g. abortion, genetic engineering, euthanasia, acquired immunity deficiency syndrome, affirmative action, civil disobedience and pornography.

 

MUSLIM PERSONAL LAW 431

(semester course - elective)

Lectures

Four lectures per week

 

Examination

One paper of three hours

 

1.         Introduction to Muslim personal law

2.         Capita selecta from Muslim family law and jurisprudence

3.         Problem areas in Muslim personal law within the local and international context

 

UNIVERSITY OF NATAL

 

  1. Foundations of South African law - DLA1FL2

 

General history of the South African legal system; the origin and development of law within selected themes.

 

  1. Introduction to law & legal skills - DLA1IL1

 

An overview of the South African legal system; Law and other normative systems; Classifications of law; Sources of law and legal practitioners; Cases and precedent; Legal research and problem-solving; Introduction to delict involving research and problem solving; A simulation involving principles of criminal law and procedure and sentencing; Presenting an oral argument and writing a single issue and multi-issue legal opinion.

 

  1. Jurisprudence - DLA3JP1 or DLA3JP2

 

The Greeks and Romans; The Middle Ages: Islam, Judaic law, Augustine and Aquinas; Natural law (1): Grotius, Hobbes, Locke; Rosseau and the French revolution; Jefferson and the American revolution; Positivism (1): Bentham and Austin; The German challenge: Savigny, Hegel, Marx; Natural law (2): Radbruch, Fuller, Devlin, Dworkin, Dugard; Positivism (2): Kelsen, Hart, forsyth and Schiller; Realism: Scandinavian and American; Justice theory: Rawls and Nozick; Analytical

Jurisprudence: Hohfeld; American Jurisprudence; Feminist Jurisprudence; Postmodernism and Critical legal studies.

 

  1. Legal diversity - DLA2LD1 or DLA2LD2

 

African customary law; Hindu and Muslim law relating to selected aspects of the following: sources of legal authority, persons and family law, property and aspects of conflict of laws.

 

  1. Street law - DLA4ST1 and DLA4ST2

 

Train students in communication skills to enable them to explain legal concepts to lay persons; train students to teach legal issues and trial skills to pupils in secondary school; train students in basic teaching skills and methodology; train students to prepare mock trial packages; train students in basic advocacy skills and inculcate in students an awareness of human-rights issues and encourage them to promote this awareness in the pupils they teach.

 

  1. Teaching legal skills - DLA4TS1 and DLA4TS2

 

Theory and practice of teaching in a multi-cultural class; teaching methodology and small group facilitation. Theory and practice on providing both written and oral feedback to students to develop and improve their writing skills.