TUTORIAL 1

Read the article below and answer the question below.

Mom gets 12 years for killing 5 kids

November 14, 2012 at 07:46am
Vryburg - Emotions ran high in the North West Circuit High Court, sitting in the
Vryburg Magistrate’s Court on Tuesday, when Venolia Siwa was sentenced to 12
years in prison for killing her five children in Pampierstad last year.

Siwa battled to hold back her tears as Judge Ronald Hendricks told her that there
was compelling evidence that she had no intention of killing her five children.

“Looking at all the evidence before the court, it is clear that there is compelling
evidence for this court to deviate from giving you a prescribed minimum sentence of
15 years’ jail on each count.
“This court will therefore sentence you to 12 years’ imprisonment on each count,
which will be served concurrently.”

Judge Hendricks said that his decision to grant Siwa a lesser sentence was informed
by several issues, including the pre-sentencing report compiled by Marelize
Vergottini, a social worker in the Free State Department of Education, who on
Tuesday told the court that severe psychological problems could have led to Siwa’s
killing her children.

“The report shows that at the time you committed the crime, your behaviour was not
normal. The report also shows that you were a good mother to your children until that
day when you snapped and even went to the extent of trying to commit suicide,”
Judge Hendricks said.

He said although Siwa had not verbally apologised for stabbing four of her children,
aged four, five, 10 and 13, and drowning the youngest, two years old, she had shown
remorse by pleading guilty to the crimes. “It is clear that the crime you committed
was not premeditated and therefore you must be given a second chance in life,”
Judge Hendricks stated. However, he rebuked Siwa for “killing the helpless children
who were looking to you for love, support and safety”.

“The seriousness of the crime you committed cannot be underestimated as it has

sent shockwaves through our communities. In fact, what you did was unprecedented
in our society.”
Siwa’s sentence is conditional on her presenting herself for psychological counselling

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 and treatment at the prison facility where she is to be held. Earlier during the
proceedings, Vergottini was close to tears as she delivered the psychological aspect
of the pre-sentencing report which shed light on the problems that Siwa was facing.

“My observation, which was confirmed by some of the doctors who psychologically
examined her, showed that psychological problems contributed to Siwa killing the
children. The only problem now is that, although she is aware that she killed the
children, she still cannot bring herself to say so,” Vergottini said.

“What is strange about this incident is that there appears to be no pattern with Siwa
abusing the children. Everyone I spoke to when I was working on this report, told me
she loved the children very much and that they were shocked to learn about what
she had done.”

Vergottini said a doctor who used to treat Siwa and her children was also shocked by
the murders.

“Dr Nel told me that Siwa used to come with the children to her consulting room and
they all looked happy,” Vergottini testified.

Siwa’s advocate, Nzame Skibi, argued for a 10-year sentence, and the State for 20
years for each count. Siwa stabbed Sizwe, 13, who was physically and mentally
disabled, Lukhanyo, 10, Edward, five, and Reatlegile, four, with a kitchen knife before
drowning the two-year-old.

Pretoria News
http://mobi.iol.co.za/#!/article/mom-gets-12-years-for-killing-5-kids-1.1423012
(Last accessed on 2 July 2015)

With reference to the facts of the story above, discuss the relationship between law, morality
and justice. Include in your answer a discussion of whether, in your view, justice was served in
this case. Give full reasons for your answers. (15 marks)

TUTORIAL 2
Read the article below and answer the question below.

Ukuthwala must be stopped – survivor

http://www.news24.com/SouthAfrica/News/Ukuthwala-must-be-stopped-survivor-20141204

Johannesburg - The practice of ukuthwala needs to stop, a woman who was abducted, forced
into marriage and raped, said in Johannesburg on Thursday. ‘I'm here to say, put an end to it.
Only bad things come from it,’ said the woman, clad in orange and brown traditional Xhosa
clothing. She was speaking at a briefing by the Commission for the Promotion and Protection of
the Rights of Cultural, Religious, and Linguistic Communities on its latest report on ukuthwala.

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The woman was responding to calls from commission head Thoko Mkhwanazi-Xaluva that
ukuthwala be promoted and protected. Mkhwanazi-Xaluva said earlier that ukuthwala was being
abused by some men. Initially it was a practice by two consenting adults who wanted to be
together but were hindered by things such as collapsed lobola negotiations. She said men who
kidnapped girls to make them wives were paedophiles who tarnished tradition with crime.

‘As long as we call it ukuthwala, it won't stop,’ she said. ‘It needs to be called jack-rolling and
abduction... Name it correctly,’ she said.

The woman, however, said she wanted the practice abolished. She was abducted when she
was 14 by a 50-year-old man and repeatedly raped. ‘I was in Standard 2 (Grade 4). I was
uneducated and I had to bear him kids,’ she told the conference.

Her first child was stillborn, probably because she had had the baby at a young age. She cried
as she spoke about how the man would leave her at home while he went to Johannesburg and
possibly mingled with other women. ‘I never loved him and he never loved me but I had to hold
on,’ she said in Xhosa. She explained the vicious cycle of being taken as a young girl.

‘My own children are now uneducated because I was uneducated,’ she said, taking a sip of
water. ‘I say do away with this practice.’

Mkhwanazi-Xaluva said she sympathised with the woman, but it was wrong to call for the
dissolution of cultural practices instead of fixing problems with them. She said it seemed to be
easy for people to call for abolishing cultural practices but the same was not being done for
religious practices as these were considered sacred.

‘Why are cultural practices not sacred?’ she asked.

Discuss the relationship between law, morality and culture. Include in your answer a discussion
of the extent to which you may take culture and morality into account in a legal matter.
(15 marks)

TUTORIAL 3
Discuss the importance of foreign law and international law as sources of South African law.
Provide examples. Include in your answer a discussion of the weight that the Constitution of the
Republic of South Africa, 1996 attaches to these sources of law.
(10 marks)
TUTORIAL 4
Compare and contrast custom and customary law as sources of law. Draw a table to illustrate
your answer. (10 marks)

TUTORIAL 5
Discuss fully the hierarchy and jurisdiction of the courts in South Africa. Draw a diagram to
illustrate the hierarchy. Include in your answer a full discussion of the types of cases that each
court may hear. (20 marks)

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TUTORIAL 6
Read the scenario below, and answer the questions that follow.

Gena is a US citizen who met and fell in love with Thabo (a Capetonian) while visiting South
Africa in 2007. They married in SA in 2009, and decided to live in Cape Town to be near
Thabo’s family. Two years into their marriage, Gena gave birth to their son Teddy. Gena had
always promised Teddy that one day she would take him to the US to meet her side of the
family. Gena and Thabo were married for 8 years when she had an affair with a US soldier that
she met on Facebook. She decided to return to her home country as she felt extremely
unhappy and home-sick. In terms of the divorce order, both Thabo and Gena share full parental
responsibilities and rights in respect of Teddy, but the order indicated that Teddy was to stay
with Thabo after the divorce. Gena was very upset with the court’s decision and decided to take
Teddy back to the US without Thabo’s knowledge or consent. A few months after the divorce,
on a weekend which Teddy was due to spend with Gena, she arranged that she and Teddy fly
to the US. Thabo could hardly believe it when Gena simply informed him that Teddy would be
staying with her in the US and that Thabo could visit Teddy ‘sometime in the near future’.

Thabo approaches you for legal advice and wants to know what he is supposed to do in these
circumstances. Following your consultation with Thabo, you do extensive legal research and
find the following sources of law. Indicate what weight to attach to each source of law, giving
reasons for your answers.

(a) The Children’s Act 38 of 2005 which expressly adopts the Hague Convention on
International Child Abduction in section 275 of the Act, which Parliament has
approved/ratified. (2 marks)
(b) A judgment from the US Supreme Court, Berry v Moolman, in which the court found that
it is in the best interest of the child to remain in the custody of the mother after a divorce.
(2 marks)
(c) A Constitutional Court judgment in which the court found that although it is a custom in
society for mothers to be given custody of their children, such a practice might be in
violation of the equality clause in the Constitution since it discriminates against fathers.
(2
marks)
(d) A newspaper article in which a father outlines his experiences regarding the harmful
effects of parental child abduction. (2 marks)
(e) A customary law principle which states that the child born of marriage forms a part of the
father’s family, and the mother therefore has limited right over the child.
(2
marks)
(f) A book written by Prof Sheldon Cooper in 2020 titled Custody Battles Across Continents.
(2 marks)

(Total marks: 12 marks)

TUTORIAL 7
A full bench of the Pietermaritzburg High Court is hearing a case concerning a constitutional
challenge to the validity of legislation. A person who practices the Rastafarian religion has

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approached the court to challenge the validity of the Drugs and Drug Trafficking Act and the
Medicines and Related Substance Control Act, which prohibit the possession and use of
cannabis (dagga), on the basis that these Acts do not grant a religious exemption to
Rastafarians, and as such, they constitute an infringement of their constitutional right to freedom
of religion. The full bench of the Pietermaritzburg High Court is faced with the following sources
of law, all of which are relevant to the case before it.
Explain how much weight the court would give to each of the following sources of law, giving full
reasons for your answer:
(a) A split decision of the Supreme Court of Appeal in 2022, in which three judges concurred
and two judges dissented. (2 marks)
(b) A ratio decidendi of the Pietermaritzburg Magistrates’ Court from 2021. (2 marks)
(c) A full bench decision of the Kimberley High Court in 1999. (2 marks)
(d) A book written by Ms Muriel Mushariwa in 2008, which conflicts with the views
expressed in an article written by Prof. Cora Hoexter in 2012.
(2 marks)
(e) A decision of two judges in the Bloemfontein High Court in 2015. (2 marks)
(f) An obiter dictum of the Constitutional Court of South Africa in 2022. (2 marks)
(g) A full bench decision from the Durban High Court in 2002. (2 marks)
(Total marks: 14 marks)

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