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Laws1011 Sem 1 Revision Tut Memo
Laws1011 Sem 1 Revision Tut Memo
Laws1011 Sem 1 Revision Tut Memo
False
Revision tutorial for semester test 2 B. True.
Block 2 – 2024
MEMO QUESTION THREE:
SECTION A: MULTIPLE CHOICE QUESTIONS – CHOOSE THE CORRECT expert witnesses will testify in court as the evidence is beyondthecommon
B. ‘Res ipsa loquitur’ means that the matter speaks for itself as the facts are
QUESTION ONE: based of the common human experience and not common sense.
B. Factual findings depend only on whether the presiding officer takes QUESTION 4
judicial notice of well-known facts, which renders the credibility of
witnesses and presumptions irrelevant. Johns drinking and driving led to his impaired ability to drive. As a result, John
crashed his vehicle into a nearby bookstore. Such negligence can be deduced as
created to prove or disprove facts and judicial notice taken by a presiding
judge. A. Resipsaloquitur-itiscommoncausethatJohn’snegligenceofdrinking
and driving caused him to crash into the bookstore.
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B. Neither courts adopted policy considerations in their judgements as both QUESTION 9
courts found that policy considerations was not a fully developedconceptin
South African law. Choose the incorrect option:
C. The court in Carmichele v Minster of Safety and Security viewed the use if During the judicial commission services interview, the candidate Advocate being
policyconsiderationsinappropriategiventhatthefactsdifferedtothatoftheS interviewedforthepositionofajudgeintheHighCourtdivertedthequestionrelating
v Makwanyan. to whether the death penalty should be reinstated inSouthAfricaandthepossible
consequences. The Advocate did not provide a definite answer and diverted the
D. None of the above. question by asking questions in return to the commission. Such an argument is:
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SECTION B: LONG ANSWER QUESTION
QUESTION 10 Justice Nikolas delivers a judgement in the case of “Brand Design v Cooper”.The
issueinthiscasewasthattheCompany“BrandDesign”prohibitedemployeesfrom
Siphe, a young social media influencer turns 18 years old. She has enteredintoa wearingreligiousclothingintheworkplace.Thedirectorsofthecompanyhavetaken
contractwithabillion-dollarcompanytotakeherbeautyproductstothemainstream this stance as they firmly believe in a liberal working environment free from any
market. However, it turns out that she was influencedbythecompany’slawyersto religious or cultural connotations.
sellherproductstothecompanyataverylow-costprice.Thiswillpreventherfrom
making any profit of each product that is sold. In delivering His judgement, Justice Nikolas writes:
2. The following information must be alerted to in the answer, but the order may
vary:
TOTAL MARKS FOR SECTION A: 10 MARKS
3. There are various systems/views regarding the law. These are :
● Natural theory of law
● Legal positivism
● Feminist theory of law
● Critical legal studies
● Critical race studies
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QUESTION 1
4. Students must revert and make mention of theMEC v Pillay case. The extent
of applying this case depends on the argument but students must make Briefly discuss where judges should begin when interpreting legislation. [2]
mention of:
JudgesmustbeginwiththerightsandvaluesenshrinedintheBillofRights.Section
a. The protection of rights to religion and culture by the law as recognised 39(2)oftheConstitutionrequiresthatthecourtsinterpretlegislationinamannerthat
in the constitution and as mentioned in Pillay. renders it compatible with and in advancement of the Bill ofRights;anylegislation
b. The duty of the state and people not to directly or indirectly discriminate incapable of such construction is unconstitutional and invalid.
on any of the grounds mentioned in section 9 (3) of the Constitution
which is symmetrical to section 6 in PEPUDA. As held inBato Star Fishing:
c. These grounds are culture, religion, conscience or belief – given that [72]TheConstitutionisnowthesupremelawinourcountry.Itisthereforethestartingpointin
the Company has banded religious and cultural attire. interpretinganylegislation. Indeed,everycourt“mustpromotethespirit,purportandobjects
oftheBillofRights”wheninterpretinganylegislation. Thatisthecommandofsection39(2).
Implicit in this command are two propositions: first, the interpretation that isplacedupona
statute must, where possible, be one that would advance at least an identifiable value
5. The students must apply the principle to the facts and using the principles,
enshrined in theBillofRights;andsecond,thestatutemustbereasonablycapableofsuch
disprove Judge Nikolas’ view. interpretation. This flows from the fact that the Bill of Rights “is a cornerstone of [our
constitutional] democracy.” It “affirms the democratic values ofhumandignity,equalityand
6. The students must provide a conclusion and show the relevant principles and freedom.” In interpreting section 2(j), therefore, we must promote the values of our
constitutional democracy. But what are these values?
application thereof in their answer.
7. PLEASE ENSURE that your students understand and have applied the [73]SouthAfricaisacountryintransition. Itisatransitionfromasocietybasedoninequality
above. The students MUST give a comprehensive answer. to one based on equality. This transition wasintroducedbytheinterimConstitution,which
was designed “to create a new order based on equality in whichthereisequalitybetween
men and women and people of all races so that all citizens should be able to enjoy and
exercise their fundamental rights and freedoms.” This commitment to the transformationof
oursocietywasaffirmedandreinforcedin1997,whentheConstitutioncameintoforce. The
PreambletotheConstitution“recognisestheinjusticesofourpast”andmakesacommitment
toestablishing“asocietybasedondemocraticvalues,socialjusticeandfundamentalrights”.
Thissocietyistobebuiltonthefoundationofthevaluesentrenchedintheveryfirstprovision
oftheConstitution. Thesevaluesincludehumandignity,theachievementofequalityandthe
advancement of human rights and freedoms.
SECTION C:
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QUESTION 2
- The purposive approach seeks to apply the legislation by giving effect toits
Explainthedifferencebetweeninternationallawandforeignlaw,andtheirrespective contextualised purpose instead of the exact wording of a provision. Judges
importance in interpreting the Bill of Rights. [3] applying a purposive approach will not assume that theplainwordingofthe
law necessarily reflects its precise intention. Judges might investigate the
International law is the law between states, formed through agreements made in intention of Parliament by using methods including the teleological and
international treaties and conventions. International law ratified by Parliament is historical techniques.
binding on South Africa. Under s39(1)oftheConstitution,thecourtsmustconsider
international law in interpreting the Bill of Rights. - InBatoStarFishing,theCCheldatpara88thatitisnecessaryforprovisions
tobe‘construedpurposivelyto“promotethespirit,purportandobjectsofthe
Foreign law is the law of another jurisdiction. Under s39(1) of theConstitution,the BillofRights”’(emphasisadded).Atpara90itheldthatthe‘emergingtrendin
courts may consider international law in interpreting the Bill of Rights, but are not statutory construction istohaveregardtothecontextinwhichthewords
obliged to do so. Often, foreign law is useful for contextualising law or for occur,evenwherethewordstobeconstruedareclearandunambiguous’
understanding examples of similar provisions in other countries. (emphasis added). As such, it is clear that the purposive approach is more
appropriateinthecurrentconstitutionaldispensation,andthatitbetterreflects
As such, both can be useful, but the Constitution places a clear emphasis on the the transformative nature of the Constitution, 1996.
importance of international law.
- Forthisquestion,itisnecessarytodemonstrateanunderstandingofthetwo
approaches and their key differences (e.g. different levels of emphasis on
QUESTION 3 original wording), and to find that the purposive approach is more
transformative.
Compare and contrast the literal and purposive approaches to statutory
interpretation. Which approach better reflects the transformative nature of the TOTAL FOR SECTION C: 10 MARKS
Constitution, 1996? [5]
The literal and purposive approaches are different ways of interpreting legislation. SECTION D:
Students should see Kleyn et al pages 76-7 for more information on these
approaches. MrXhosaisaMemberofParliamentforanoppositionpartythatholdsthreeseatsin
theNationalAssembly(NA).Concernedaboutclimatechange,MrXhosaintendsto
- Theliteralapproachseekstoapplythelawasitiswritten.Wherethemeaning introduce the Limits on Emissions Bill to cap greenhouse gas emissions by
of a provision is ambiguous, or could lead to absurd results, judges might corporations in South Africa.
consultsecondaryaids(e.g.thedictionary)tounderstandthemeaningofthe
law.Overall,thisapproachisinlinewithalegalpostivistphilosophy,whichis
no longer the dominant approach in South African jurisprudence.
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Through a repeal Bill, which will have to be enacted by Parliament and
assented to by the President.
3.2. The Fossil Fuel Party also believes that environmental rights are an obstacle
to economicgrowth.Asaresult,thepartyseekstoremovesection24ofthe
Constitution,1996.Discusswhetheritwouldbeabletodosousingthesame
procedure used by Mr Xhosa to introduce the Limits on Emissions Bill. [3]
No,thisnewBillcouldnotbeenactedusingthesameprocedureusedforMr
Xhosa’s Bill.
- Mr Xhosa introduced the Limits on Emissions Act as a private
member’sBill. ThisBillwouldpresumablybeintroducedbyaminister
in the new government under the Fossil Fuel Party, and as such it
would not be a private member’s Bill.
- TheJTMtaggedMrXhosa’sBillasasection76Billbecauseitaffected
the provinces. The Fossil Fuel Party’s Bill would seek to amend the
Constitution,andthereforewouldbetaggedasasection74Billbythe
JTM.
- To be enacted, the Bill would have to pass the NA with the support
two-thirds of MPs, and the NCOP with six of nine provinces. Mr
Xhosa’s Bill would have passed with a simple majority.
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