ASSIGNMENT 01 FIRST SEMESTER 2012

OSCAR SIMUKAI JEMWA 4927-397-3 ORIGINS OF SOUTH AFRICAN LAW FLS1501 ASSIGNMENT 1 SEMESTER 2 2013 UNIQUE NUMBER 778712 03492 BACHELOR OF LAWS EXAM CENTER HARARE EXHIBITION PARKunisaORIGINS OF SOUTH AFRICAN LAW FLS1501

ASSIGNMENT 01 SECOND SEMESTER 20139/9/2013

NAME OSCAR SIMUKAI JEMWA STUDENT NUMBER 4927-397-3 MODULE ORIGINS OF SOUTH AFRICAN LAW FLS1501REGISTRATION PERIOD CODE ASSIGNMENT 1 SECOND SEMESTER 2013UNIQUE NUMBER 778712DUE DATE 9 SEPTEMBER 2013DEGREE PROGRAMME 03492 BACHELOR OF LAWS EXAM CENTER HARARE EXHIBITION PARKPOSTAL ADRESS 12466 UNIT N SEKE CHITUNGWIZA ZIMBABWE ASSIGNMENT 01 SECOND SEMESTER 2013 SUBMITTED IN PARTIAL FULLFILLMENT TO THE REQUIREMENTS OF THE UNISA BACHELOR OF LAWS PROGRAMME

FLS1501/1012513.2 Assignments for the second semesterSECOND SEMESTER: ASSIGNMENT 01CLOSING DATE: 9 SEPTEMBER 2013UNIQUE NUMBER: 778712Assignment 01 contains written questions which must be answered in the spacesprovided. You must then cut out the assignment, attach it to the inside of anassignment cover and submit it before 9 September 2013. Alternatively, you maysubmit this assignment electronically. See paragraph 8.3 above. Remember to add yourstudent number and the unique number!The purpose of this assignment is twofold: first, it illustrates to you how our courtsincorporate legal historical sources in its judgements. In your legal career you will comeacross these sources and should be able to refer to it when necessary. Secondly, thisassignment tests your knowledge of these sources, all of which are discussed in theStudy Guide. After having worked through your Study Guide, you should be able toanswer all the questions in this assignment.Study the extracts of the judgement of the Appellate Division in Willis Faber Enthoven(Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A) below and answer thefollowing questions by referring to your Study Guide. You do not have to find and/orread the whole judgement; studying the extracts provided will provide you withsufficient background information to enable you to answer the questions.This case concerned the payment of monies by insurers to the Receiver of Revenue andtouched upon issues such as condictio indebiti as well as the difference between amistake of law (error juris) and a mistake of fact (error facti). The questions in this caseare very technical ones and you need not concern yourself with them. You do not haveto read the judgement. What is of importance for this module, though, is the variouslegal historical sources referred to by the court.Please note that your writing skills will also be evaluated. The ability to write is a crucialskill for any lawyer as this can mean the difference between a good or a poor legaldocument (ie a contract, particulars of claim, testament, etc). Marks will therefore bededucted for poor spelling, grammar or punctuation or if your answers are not formulatedclearly. If you submit this assignment electronically, please include the rubric inyour assignment.26Question 1Judge of Appeal Hefer (Hefer JA) refers to the position in Roman law (at 216I 217C):The dispute to which Schomaker refers stemmed from Justinians adoption ofcertain principles of classical Roman law in the Corpus Juris which at the same timeextend and amended certain others...For present purposes a brief rsum of themain texts in the Corpus Juris and how they were applied by the jurists of thesixteenth and seventeenth century will suffice.The condictio indebiti was dealt with under its own title in D 12.6 and C 4.5.According to D 12.6.1(e)t quidem, si quis indebitum ignorans solvit, per hanc actionem condicerepotest; sed si sciens se non debere solvit, cessat repetitio.According to C 4.5.1(p)ecuniae indebiti, per errorem, non ex causa judicati solutae, esserepetitionem, non ambigatur.No distinction is drawn in these texts between ignorance or mistake of fact andignorance or mistake of law...1.1 Who was Justinian to whom the court refers? (1)

Justinian was the emperor of the Eastern Roman Empire from AD 527 until his death in AD 565.

1.2 Which jurist was considered to be the driving force behind the codification known asthe Corpus Iuris Civilis? (1)

The driving force behind the great codification known as the Corpus luris Civilis was Tribonian.

Question 2The judge (at 217D-H) then discussed the legal development of the rule regarding theeffect of an error of law by looking at how various jurists had interpreted these textsthrough the centuries:From the time of the Glossators the jurists were never in agreement on the effect ofan error of law and after the reception of the Roman law in Western Europe twovery distinct schools of thought developed. On the one hand there were writers likeFLS1501/10127Cujacius, Donellus, Noodt and Johannes Voet who were of the opinion that thepayment of an indebitum made in errorem juris was as a rule not recoverable. Butthere were others who took the opposite view. Among these were Grotius, Vinnius,Huber, Van Leeuwen and Van der Keessel. (I mention only a few of the betterknownwriters; each side had many other supporters, not only in Holland and theother Dutch provinces, but al so in France and Germany. In France, for example,Pothier and DAguesseau entered the arena and in Germany Carpzovius,Muhlenbrch, Brunnemann and Leyser (and later Glck, Von Savigny andWindscheid.)2.1 (a) Which school of law discussed in this module does the jurist Von Savignyrepresent? (1)

The jurist Von Savigny represents the Historical school of law.

b) Describe this school of laws approach to the study of Roman law. (1)

The historical school believed the law was not permanent, but changeable to the national spirit. They believed that there was no universal system of law, but that the law developed to suit the needs of the nation.

2.2 Among others, the court refers to the Roman-Dutch author, Voet. Name one of hisimportant works of which you have learned in this module and briefly describe whatit deals with. (2)

The comprehensive Commentarius ad Pandectas. In this commentary on the pandects (another name for Justinians digest), Voet deals with Roman law to which he adds the existing law of his time.2.3 It is clear that the court referred to the position in other legal systems, namely thoseof the Netherlands, France and Germany. These legal systems are all part of theEuropean ius commune. Explain what is meant by the European ius commune. (1)

The European ius commune refers to the common law of Western Europe. It is based on Roman law (civil law) and canon law as received into the Germanic customary legal systems of Western Europe.

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Question 3Hefer JA also refers (at 217H-I) to the views of the Dutch courts in particular:Amidst the dissension in the ranks of the jurists the Dutch courts remainedunaccountably silent. Researchers have been able to find only one case .... that isof some relevance, although it is of little assistance since only two of the Judges ofthe Hoge Raad upheld the claim on the ground that errorem juris, certe moribus,non excludere indebiti condictionem.3.1 Explain how the Dutch courts contributed to the reception of Roman law in theNetherlands during the 15th and 16th centuries. (1)

The Dutch courts promoted the reception of Roman law in the following ways:

Various provincial high courts wrer created and the Grote Raad van Mechelen was constituted as a central court of appeal for the provinces. The jurists who sat on these high court benches were Romanist-oriented. They had little knowledge of the local customary law and thus tended to fall back on Roman law principles in their judgements.

Since the Netherlands was under French rule, French law applied in the Dutch courts. French law was influenced by Roman law and canon law, and in this way Roman law and canon law exerted an influence on the developing law of the Netherlands.

Even though the lower courts were bitterly opposed to Roman law, the judgements of the higher courts has a highly persuasive value for the lower courts.

3.2 Name one Roman-Dutch jurist of whom you have learned in this module who was ajudge of the Hooge Raad van Holland en Zeeland. (1)

Cornelis van Bijnkershoek.

Question 4Hefer JA (at 218E) extensively discusses an old court case:This is how the law in South Africa stood when the question came up for decisionin Rooth v The State (supra) before a Court of three Judges presided over by KotzeCJ. Since we have been urged not to follow the Courts judgment I am obliged tocite extensive portions thereof.4.1 Kotz was the Chief Justice of which old republic when he was dismissed in 1897by State President Kruger? (1)

Kotze was the Chief Justice of the Volksraad.

FLS1501/10129EVALUATION OF WRITING SKILLSSKILLS (Ability to communicate effectively)Requirements EvaluationGood Can improve Poor FormulationSpellingGrammarPunctuationTOTAL: CONTENT: 10WRITING SKILLS: 2GRAND TOTAL: 12

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