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FACULTY OF LAW
DEPARTMENT OF JURISPRUDENCE
EXAMINATION Jurisprudence 110 (JUR 110)

DATE 7-9 July 2021 8:00

TOTAL MARKS 50

TIME 48 hours

Dr Lorette Arendse
EXAMINERS Lizelle le Roux

Prof Dyani-Mhango
MODERATOR
GUIDELINES & INSTRUCTIONS:

 Read the exam plagiarism declaration on CLickUP and agree to the terms.

 Read the questions carefully. Mark allocation should be used as an indicator for length of
answers. Pay attention to the prescribed length of your discussions in questions 1 and
2. Answers exceeding the prescribed length will be penalised.

 Answers should be presented in a clear, logical and well-structured format.

 Language (spelling and grammar) will be taken into account.

 NO cover page is needed

 NO bibliography or footnotes are necessary

 12 font Arial, 1.5 spacing

QUESTION 1 [15]
 Answer all your questions. This paper consists out of 2 main questions with some sub-
questions.

 Relax, breathe and good luck!

Open Rubric
 Be brave!
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QUESTION 1 [15]

The new Expropriation Bill 2020 was gazetted last year. A process to amend
section 25 of South Africa’s Constitution (Constitution of the Republic of South
Africa, 1996) that will allow for expropriation without compensation in South Africa
is also underway. The project started on 14 October 2020 and the Portfolio
Committee on Public Works and Infrastructure had resolved that a call for public
comment in line with sections 59 and 72 of the Constitution should be published in
both the print media and online during December of 2020. Ever since, several virtual
public hearings have been conducted and several bodies including the Minerals
Council have opposed the bill arguing that it would undermine investor confidence.
Still, the bill – perhaps with amendments - is expected to be adopted by parliament
during the course of 2021.

1.1 In his chapter, Constitutional Delinquency is a precondition for black liberation,

Andile Mngxitama criticizes the Constitution as being ‘anti-black’. He specifically
rejects the s.25-property clause as having left the black people of South Africa
‘landless in their own land’. Briefly discuss his argument by explaining what he
regards as the defining element of black oppression and the first step
towards black emancipation. Explain why s.25 can be seen as a compromise
that has left black people as ‘slaves in their own land’. Your answer should not
be longer than one paragraph. (5)

1.2 Mngxitama argues that the protection of ‘stolen land’ is ‘guaranteed’ by the
‘Alcatraz of constitutional supremacy’. Briefly discuss whether and how section
1, section 25 and section 72 of the Constitution can be amended. (5)

1.3 Discuss the importance of the call for public comment on the Expropriation Bill.
In your answer, you must define what a bill is and refer to the specific stage
when such a call must be facilitated as well as the possible impact that a failure
to comply with this requirement may have on the proposed bill. Refer to
relevant case law. Your answer should not exceed one paragraph. (5)
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QUESTION 2 (15)

Following the declaration of the National State of Disaster on March 15 of 2020,

several regulations have been enacted to contain and minimise the spread of COVID-
19 in South Africa. In De Beer and others v The Minister of Cooperative Governance
and Traditional Affairs 2020 (11) BCLR 1349 (GP), the applicant argued that the
Disaster Management Act and some of the Lockdown Regulations promulgated by the
Minister of Cooperative Governance and Traditional Affairs in respect of Alert Levels
3 and 4 were unconstitutional and invalid. Both the applicant and respondent were
domiciled in Pretoria and the application came before the court as the court a quo. The
judge rejected an argument that the Disaster Management Act itself or the conduct of
the president were unconstitutional but agreed that some of the subordinate
regulations in respect of Alert Levels 3 and 4 were unconstitutional and declared them
invalid.

2.1 Discuss why this specific court had the jurisdiction to hear this matter. You must
explain what jurisdiction means and refer to how the three factors that
influence jurisdiction, apply to this particular court and set of facts. (5)

2.2 Explain whether this court had the jurisdiction to decide on the validity of the
Disaster Management Act and whether the court’s order of invalidity in terms
of the Regulations will stand. You must refer to the relevant sections in the
Constitution that apply to this scenario. (5)

2.3 The Minister claims that it will be in the interest of justice to appeal this judgment.
Explain the possible avenues of appeal that the Minister can explore in this
particular matter. Always provide reasons for your answers and refer to the
relevant authority. (5)

QUESTION 3 [10]

3.1 Explain what can be done about a common law principle that has become
outdated and that is no longer in line with the modern-day needs of society.
Discuss whether there exists a similar process to deal with old Acts in instances
where newer Acts have been promulgated. (5)
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3.2 The Common law is often associated with colonisation and the white coloniser.
Explain the impact of the Constitution on the common law after 1996 and
whether the South African common law is still relevant today. You must refer to
the applicable Constitutional sections in your answer. (5)

QUESTION 4 [10]

Please match the correct answer with the corresponding number, for example 1.C

1. National Coalition for Gay and A. An extension of the common law

Lesbian Equality and another v definition of rape is ordered by
Minister of Justice and others the Constitutional Court.
1999 (1) SA 6 (CC)

2. Masiya v Director of Public B. The common law offense of

Prosecutions and others 2007 (5) sodomy is in violation of the
SA 30 (CC) Constitution.

3. Khumalo and others v Holomisa C. The court explained the

2002 (5) SA 401 (CC) importance of an adequate and
sincere public apology in
defamation cases.

4. Dikoko v Mokhatla 2006 (6) SA D. Common law worked in tandem

235 (CC) with s.16 of the Constitution.

5. Carmichele v Minister of Safety E. An example of the practice of

and Security 2001 (10) BCLR 995 living customary law.

(CC)

6. Shilubana and Others v Nwamitwa F. S.39(2) mandates the courts to

2008 (9) BCLR 914 (CC) develop the common law to
promote the spirit, purport and
object of the Bill of Rights.

7. Bhe v Magistrate, Khayelitsha G. A rejection of the Roman -Dutch

2005 (1) BCLR 1 (CC) law principle of prescription.
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8. Molato ga o bole H. Based on the notion of

multiracialism and integration.

9. Radical Africanist approach I. The principle of male

primogeniture is scrutinised for
constitutional compliance.

10. Compromising approach of the J. Colonisation will continue until

ANC the land is returned to its rightful
owners.

TOTAL: [50]