PRA CTICAL ASSESSMENT QUESTIONS

Read t he scenario below and answer the question t hat follows:

S elling everything

Annah is the owner of a certain piece of land. Adjacent to her land is a portion of land
that belongs to the municipality. Annah is aware of this fact. She offers to sell her land
to Bravo and, during negotiations, she tells Bravo that all the land (including the
portion that belongs to the municipality) is her land. Bravo accepts the offer,
persuaded to do so more because of the piece of land that, unbeknownst to him,
belongs to the local municipality. Annah and Bravo consequently conclude a contract.

Later, Bravo discovers the truth about the extent and ownership of the land he has
bought.

Required:

Bravo approaches you for legal advice. In your advice to him, explain in detail the
legal principles that govern this scenario and the legal remedies that are available to
him. (10)

(A nswer: Topic 2 & 3: Chapter 5, page 35 and Chapter 8, page 56-59 of the Prescribed
Text Book)

Legal Principles

 In our law one of the requirements for an agreement to be valid and

enforceable is that the parties must reach consensus . In this case it
appears that the parties reached consensus on all the essential elements
regarding their contract of sale
 Where, however, the consent of one of the parties was improperly
obtained in circumstances where such consent would not have been given
if the full facts were known, the law regards this as a case of defective
consensus
 One of the factors that affect consensus or leads to defective consensus
is misrepresentation
  Misrepresentation is a false statement of facts made before or during
conclusion of a contract with the intention to persuade a party to enter
into a contract
 For misrepresentation to exists there must be a false statement of fact(s),
the fact(s) must be material, the statement must be made by a
contracting party/agent, the other party must have relied on the false
statement of fact(s) to his or her detriment (Give a mark even if the
student only mentions that that there are five requirements for
misrepresentation)
 Where a party knows that the facts are false but nevertheless presents
them as true, it becomes a case of fraudulent or intentional
misrepresentation
 In this case Annah knows that the portion adjacent to her farm belongs to
the municipality but nevertheless tells Bravo that the entire land (including
the portion that belongs to the municipality) is her land, thus making this
a case of fraudulent or intentional misrepresentation

Legal remedies

 Where there is misrepresentation, an agreement becomes voidable at the

instance of the aggrieved or wronged or injured party
 Voidability means that the innocent party (i.e. party who gave defective
consent) has a choice to enforce or set aside the contract

A dvice

 In this case, Bravo’s consent was improperly obtained as a result of

fraudulent or intentional misrepresentation so rendering the agreement
voidable, with the result that Bravo has a choice to enforce or set aside
the contract

Read t he scenario o n the following page and answer t he question that follows.

Duty to disclose

Mr X approaches ABC Insurance Company, one of the leading insurance companies in

Johannesburg, to take out a life insurance policy. He completes a proposal form
containing a number of questions on various aspects, including a set of questions on
his health condition and medical history.

Mr X suffers from high blood pressure and sugar diabetes. In fact, there is a long
history of hypertension and sugar diabetes in his family. However, Mr X answers “No”
to the question: “Do you suffer from hypertension?” and “Nothing at all” to the
question: “Is there anything that you would like to draw our attention to in relation to
this proposal for insurance?”

After he submits the proposal form, Mr X feels guilty about how he had answered the
questions on the proposal form.

Required:

Mr X approaches you for advice regarding the legal implication of his answers. With
reference to the scenario above, comprehensively discuss the meaning and legal
import (i.e. implications) of the statement that “insurance is a contract of the utmost
good faith between an insurer and an insured”. (10)

(A nswers: Topic 5: Chapter 24, page 263-265 o f the Prescribed Text Book)

Meaning

 The statement implies that a “duty to disclose” is imposed upon the

insured when taking out insurance.
 In order for the insurer to properly calculate the extent of the risk, decide
whether or not to accept it and, if so, on what premium, the insurer relies
on the answers provided by the insured in the proposal form.
 “utmost good faith” places a duty upon the insured to answer questions
in the proposal forms truthfully and accurately.
 “utmost good faith” also places a duty upon the insured to volunteer
information or facts material to the risk, even if such information was not
requested in the proposal
 Information or facts are deemed to be material to the risk if they would
influence the insurer‘s decision in assessing and accepting the risk and
determining the premium payable.
 The test for materiality is whether a reasonable person would have
realized that the information or facts was relevant to the assessment of
the risk by the insurer.
 Certain categories of information or facts such as the insured’s medical
history and his family medical history have been held to be material and,
therefore, are required to be disclosed.
 In the scenario, Mr X ought to have disclosed his medical conditions of
hypertension and diabetes and the medical history of his family
Implications

 If the insured fails to answer questions in the proposal form accurately

and truthfully and/or fails to volunteer information or facts material to the
assessment of the risk, his or her failure amount to misrepresentation,
rendering the insurance contract voidable at the option of the insurer (i.e.
the insurer has a choice to enforce or set aside the contract or to refuse
to indemnify the insured)
 Where the insured has warranted or guaranteed the accuracy and
truthfulness of his answers, incorrect or untruthful answers amount to
breach of contract entitling the insurer to cancel the policy and reject the
claim

Read t he scenario below and answer the question t hat follows:

Cashing-in on t he adversity

Sibusiso was involved in a motor vehicle accident, which led to his car being written
off. The accident was caused by the negligent driving of James, who failed to stop
behind Sibusiso at a traffic light because his car had faulty breaks. James smashed
into the back of Sibusiso’s car, causing extensive damage that led Sibusiso’s insurer
to declare the car irreparable and, therefore, a write off.

The insurer paid Sibusiso an amount of R120 000 (one hundred and twenty thousand
rand only) as full and final compensation for the insured loss. Sibusiso was very happy
with the payment, and even more excited that he would recover an equivalent amount
from suing James who, in his view, caused the accident that caused the loss.

Sibusiso approaches you and instructs you to issue summons against James in order
to recover damages in the amount of R120 000 (one hundred and twenty thousand
rand only), this being the quantum of the loss suffered by him as a result of James’s
negligent driving, which ultimately lead to his car being declared a write-off by his
insurer.

Source: Examiner (2020)

Using the scenario above, advise Sibusiso on the prospect of success in his
contemplated act ion against James. (10)

(A nswer: Topic 5, Chapter 24, Page 267 o f the Prescribed Textbook)

Issue √

The issue is whether Sibusiso is entitled to claim against the wrongdoer in

circumstances where the insurer has covered the loss in full √

Applicable legal principles √

The concept of subrogation governs this scenario. The concept is intended to prevent
double payment (i.e. insured receiving payment from both insurer and wrongdoer) √

Once insurer has fully covered the loss, insurer has the right and is entitled to proceed
against wrongdoer in the name of the insured. In terms of subrogation, insurer steps
into the shoes of the insured to claim against the wrongdoer. Insured gives the insurer
the right to sue the wrongdoer in the name of the insured √√

Legal conclusion √

The principle of subrogation prohibits Sibusiso from proceeding against James to claim
for the loss that was covered in full by the insurer √

Advice on prospects of success √

Sibusiso will not succeed in his claim against James. √

Read t he scenario below and answer the question t hat follows:

Huur gaar voorkoop

“Where the lessee is already in possession of the property when it is sold, the
purchaser and new owner may, by means of the rei vindication, claim back from the
lessee. The doctrine of “huur gaar voorkoop ” constitutes an exception to this rule
(Fouche, 2014:187).” In view of the proposed amendment of the Constitution of the
Republic of South Africa to permit expropriation of land without compensation, many
landowners are exploring every legal avenue possible to hold on to their land.

Source: Author’s own

Required:

You attend a meeting of landowners to discuss “land possession tactics.” Explain to

the landowners how the principle of “huur gaat voor koop ’’ operates in practice.(5)
(A nswer: Topic 4, Chapter 21, Page 188 o f the Prescribed Textbook)

 “Huur gaat voor koop ” is applicable where land is leased and entails that the
purchaser of property must permit the tenant his use and enjoyment of the
property.
 If the tenant is occupying the leased property at the time of sale, this rule is
operative for the duration of the short-term lease or for the first ten years of the
long-term lease.
 If a long-term lease has been registered “huur gaat voor koop ” applies for the
duration of the contract.
 All the rights subsequently established over the land are subject to the lease and
all successors are bound by the lease.
 The doctrine of “huur gaat voor koop ” is applicable to the new owner of the property
who becomes the landlord in the place of the previous landlord-owner.

Read t he scenario below and answer the questions that follow:

Init iation and circumcision in South Africa

The circumcision of male youths is a common occurrence throughout South Africa. A

operates an initiation school in Johannesburg for unmarried males aged between 7
and 17, and he charges a fee for initiation and circumcision. However, an initiate loses
his life during a circumcision performed by A and he is arrested and charged with
murder. The parents of the deceased had not been aware that their son had enrolled
for initiation and circumcision. A seeks your legal advice and you agree to represent
him in court.

Source: Examiner’s own compilation

1.1 Giving reasons, advise A as to which South African court(s) have jurisdiction
to hear the matter and who would preside over the case. (6)

1.2 In what capacity would you be representing A and what would your role be in
the case? (4)

1.3 What other legal personnel are you likely to interact with as his
representative and what role would they play in relation to the case? (5)

1.4 Advise A about the procedure that would be followed in court during trial from
the beginning to the end of the case, explaining the purpose of each stage or
process. (12)

1.5 Critically comment on A’s contentions that:

 1.5.1 there was a valid contract between himself and the deceased initiat e.
(3)

1.5.2 this is a matter of private law and not public law. It concerns nothing
more than a relationship between two private individuals . (4)

1.5.3 circumcision is a custom that must be elevated into law and

recognised and enforced by the courts. (4)

1.6 There are strong calls for A to be interdicted from establishing and/or
operating an initiation and circumcision school. Advise A on the meaning and
types of interdicts that can be issued by courts in South Africa. (2)
(A nswers: Chapter 1, 2, 3, 5 & 17 of the Prescribed Text Book)

1.1 (A nswer: Chapter 3 of the Prescribed Text Book o n pages 18 & 20)

The matter will be heard either in the High Court or the Regional division of
the Magistrates Court (otherwise known as the Regional Court) in
Johannesburg since the offence was committed in this jurisdictional area The
High Court has original or inherent jurisdiction and it is a court of first instance
with jurisdiction to hear all matters including murders By statutory
amendments Regional Courts have jurisdiction to hear murder cases. A
Regional Magistrates Court is presided over by a Regional Magistrates while a
High is presided over by a Judge

1.2 (A nswer: Chapter 3 of the Prescribed Text Book o n page 28)

As an attorney to provide appropriate legal advice on the murder case and

to represent him in the Regional Court or the High Court (as the case may be)
as his defence lawyer if you have the Right of Appearance in the High Court

1.3 (A nswer: Chapter 3 of the Prescribed Text Book o n pages 27 & 28)

Possibly an advocate briefed to represent the accused person in the High Court
, a prosecutor who represents the State and prosecutes the case a Regional
Magistrate or Judge who will preside over the case and the clerk of court who
administrates the Magistrates Court if the matter is the Regional Magistrates
Court or the Registrar of the High Court if the matter is in the high Court

1.4 (A nswer: Chapter 3 of the Prescribed Text Book o n pages 23 & 24)

(a) The charge is put to the accused and he is asked to plead

(b) If the accused has pleaded not guilty, evidence will be led by the State
in an attempt to establish the guilt of the accused
(c) The State through the Prosecutor leads evidences from State
witnesses through examination in chief
(d) After each State witness has testified, the accused person is given the
opportunity to cross-examine the witness to discredit the testimony
of the witness, after which the Prosecutor may re-examine the witness
(e) After all State witnesses have been examined, cross examined and
re-examined the State closes its case
 (f) The accused person may apply for discharge on the basis that the
State has failed to establish a prima facie case necessitating the
accused to defend himself
(g) If the State did establish a prima facie case, the accused is given an
opportunity to present his case and may call witnesses or take the
stand himself
(h) The process of examination, cross-examination and re-examination of
witnesses is followed and the accused closes his case
(i) The presiding officer given a judgment as to the guilt or otherwise of
the accused
(j) If the accused is found guilty he is given an opportunity to mitigat e
the sentence and ask for leniency
(k) The State is also given the opportunity to address the court in
aggravation of sentence
(l) The presiding officer finally sentences the accused person taking into
account mitigating and aggravating factors

1.5 (A nswer: Chapter 5 and 3 o f t he Prescribed Text Book o n page 33, 11 - 12

and 9 - 10 respectively)

1.5.1 In order for agreement to be a valid contract it must comply with all
the legal requirements for validity. In this case the requirement of
contractual capacity is missing. The deceased initiate is a minor who
contracted without the assistance of his parents or guardian.

1.5.2 Public law deals with the relationship between the State and
individuals and focuses on the public or general interest. On the other
hand private law deals with the relationship between individuals on
an equal footing and focuses on private interests. While the case may
involve private contractual rights and interests it concerns an alleged
crime of murder, a matter of public or general interest that is
governed by criminal law and must, therefore, be dealt with by the
State.

1.5.3 According to Van Brenda and Others v Jacobs and others for a custom
to be recognized as a rule of law that can be given effect to by the
courts it must satisfy the following requirements: (a) the custom must
be reasonable (b) the custom must have existed for a long time (c)
the custom must be generally recognized and observed by the
community and (d) the contents of the customary rule must not
contradict any existing rule of law
1.6 (A nswer: Chapter 17 of the Prescribed Text Book o n pages 121 - 122)

An interdict is a court order in terms of which a person is ordered to do or to

stop doing something. Courts may issue a mandatory interdict, ordering a
person to act in a certain manner or a prohibitory interdict, ordering a person
not to act in a certain manner. (max. 2)