Introduction to Law (ILW1501): EXAM 13 May 2019, Questions and Answers Introduction to Law (University of South Africa). Grade A Guarantee.

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SECTION A Question 1 (a) Which system’s rules should be obeyed, when there is a clash between law and religion as normative systems? (Hint: In your answer you should focus on the differences b... etween legal rules and religious rule) (4) (b) Martie van der Merwe, a lecturer at New Africa University, applies for promotion. Unfortunately she is not promoted and she complains about the University’s decision. The University gives her a chance to present her case. An impartial person hear the complaint and decided that the rules with regard to promotions within the University are clear and apply to all personnel equally. However, Martie feels she was not promoted simply because she is a woman. Has formal justice been done in this case? Give reasons for your answer. (4) John buys a second-hand motorbike from his friend, Peter, for R10 000. This transaction involves a contract of purchase between John and Peter. John pays Peter the purchase price of R10 000. However, Peter refuses to deliver the motorbike to John as agreed in their contract. Name two kinds of rights that are applicable to our scenario. Explain what each kind entails (3) (c) During the sixth century AD the emperor of the Eastern Roman Empire, Justinian, wanted his empire to be as glorious as the old Roman Empire and he wanted to bring order to the legal system of his time. Explain how he contributed to the development of the legal system during his reign and the preservation of Roman law in later centuries. (4) Question 2 (a) Distinguish between criminal law and law of criminal procedure as the divisions of public law (4) (b) Charl and Charlotte Charles have been married for the past 25 years. During this time they have lived in luxury and have never even thought about what would happen to their wealth if they are not around anymore. On their way to Cape Town for their annual holiday they both die in a car accident. Their three children are now very eager to hear what will happen to their parents’ wealth. Which division of private law will be applicable to this scenario? Explain in detail what this specific division deals with. (3) (c) Define legal obligation and name two of the subdivisions that the law of obligations can be divided into. (4) (d) Consider the following sources of law and answer the questions that follow. Foreign law, legal textbooks, articles in law journals and case law. (i) Which source of law has binding authority I South African courts? Give a reason for your answer. (2) (ii) With reference to your answer in (i), explain the difference between this source of law and the other three sources of law (2) (a) Explain the concept “constitution” (3) (b) What do you understand by the “separation of state’s powers”? Why is this separation so important? (4) (c) Briefly discuss the possible consequences of constitutionalism on legislation (3) (d) What is a fundamental right? (3) (e) Distinguish between the horizontal and vertical application of the Bill of Rights (2) Question 4 (a) Charles Maimela drive at 80km/h on a road where there is a 60km/h speed limit. Charles fails to see Frans Mahlobongwane who is crossing the road. Frans is knocked down and sustains severe injuries. He incurs medical bills to the value of R500 000. (i) Indicate whether the following statement is correct or incorrect. Motivate your answer in full. (4) (ii) With reference to your answer in (i), if a legal dispute arises from our scenario, can a public prosecutor or a state advocate be a role player in court? Give a reason for your answer (3) (iii) What does the concept “burden of proof” mean in a civil case and on which party does it rest? (3) (b) Briefly discuss appeal as one of the basic legal principles that forms part of our legal process (5) (Hint: In your discussion you should refer to possible reasons why a party would want to apply for appeal. You should also briefly discuss how the appeal process works in court) Question 5 (a) A norm/ right) is a standard of human conduct or human behaviour (1) (b) (Canon Law/ Germanic law) had an important influence on the development of modern law. (1) (c) (Conflict of laws/ Private Law) is mainly concerned with the question of which private law system applies if more than one private law system is involved. (1) (d) (Case law/ legislation) is our most important source of law (1) (e) If a legal dispute is on appeal, the parties are referred to as (the appellant and the respondent/ the appellant and the defendant) (1) (f) The Supreme Court of Appeal (can/ cannot) overrule a decision of the Constitutional Court (1) (g) The correct way of referring to a section of an act is as follows (s 2(1)(b)(iii)/ s 2(b)(1)(iii)) (1) (h) The tri-cameral Parliament was a parliament with three houses, one for each of the (white, Indian and coloured population groups/ white, Indian and black population groups) (1) (i) Second generation rights include the (right to freedom of expression/ right to education) (1) (j) When the state declares a state of emergency, certain fundamental rights may be suspended (for a period of time/ indefinitely) (1) SECTION B SECTION A Question 1 1.1. Describe the concept “substantive law” (1) 1.2. How is substantive justice achieved? (2) 1.3. Conrad and George are in grade 11 in St James College and play rugby for the first team. During a match they start punching each other. By doing this, they infringe upon a specific kind of right granted to them in terms of private law. 1.3.1 Identify this kind of right (1) 1.3.2 Write a paragraph on this kind of right. In your answer you should briefly refer to the following: the object/s, the value of the object/s and examples of this kind of right. (4) 1.4. During the sixth century AD the emperor of the Eastern Roman Empire, Justinian, wanted his empire to be as glorious as the old Roman Empire and he wanted to bring order to the legal system of his time. Explain how he contributed to the development of the legal system during his reign and the preservation of Roman law in later centuries. (1) d (2) e (3) f (4) c (5) a (6) b Question 2 Larry and Peter are friends. One day they have an argument over a girl which they both wish to date, Larry tackles Peter with a number of fist punches during their argument. Peter reports the incident at the police station; Larry is later prosecuted in terms of a statute that prohibits the crime of assail and has to appear for his trial. 2.1. Which main division of South African law will be applicable in this scenario? Give a reason for your answer. (1) 2.2. Name one division of your answer in 2.1 (NB: which falls under substantive or material law) that will be applicable to this scenario. Give a reason for your answer (3) 2.3. With reference to your answer in 2.2, identify the subdivision of law of procedure that will be applicable in our scenario? Give a reason for your answer. (2) 2.4. If the state decided to call a witness during Larry’s trial, which further subdivision of the law of procedure will be applicable? Give a reason for your answer (2) 2.5. Is there any possibility that the law of civil procedure can be applicable in our scenario above? Give a reason for your answer. (2) 2.6. Statutory law is a written law. Which state body is responsible for this law? (1) 2.7. Suppose the Supreme Court of Appeal has just before Larry and Peter’s incident occurred, set a precedent in a case similar to the one in our scenario above. Which court/courts will have to follow this precedent? Give a reason for your answer. (2) 2.8. Name the two requirements for the operation of the precedent system (2) Question 3 3.1. Following the decision made by the Constitution Court in 2005, where it found that the definition of marriage was unconstitutional, the Civil Union 17 of 2006 was implemented. How has this Act changed the way in which permanent cohabitation relationships of homo- and heterosexual couples are views? (4) 3.2. The Constitutional Court found the definition of marriage to be unconstitutional on the grounds of the infringement of certain fundamental rights. Name these fundamental rights (1) 3.3. What gives a person the claim to have fundamental rights? (1) 3.4. Explain what fundamental rights entail. (3) 3.5. Name the measures, as set out in section 36 of the Constitution, in terms of which a right contained in the Bill of Rights may be limited. (6) Question 4 Themba has a fight with his fiancé who is cheating on him with another man. Later that evening he decided to drive to his friend’s house for a few drinks. On his way there he knocks over a young girl who suddenly jumps in front of his car. Themba immediately stops and rushes to help the girl. When he gets o her she is already dead. 4.1. Identify the legal dispute that will arise from this scenario. Give a reason for your answer (2) 4.2. With reference to your answer in 4.1, what is the purpose of this specific legal dispute? (2) 4.3. If the case goes to court, who will be the parties considering the fact that the young girl is dead? Give a reason for your answer. (2) 4.4. If Themba is accused of the death of the young girl, how can his attendance be secured in a magistrate’s court? (1) 4.5. Distinguish between appeal and review. (4) 4.6. Should the process of appeal or review be used in the following situations? Give reasons for your answers. 4.6.1 Tebogo sues Unathi for breach of contrct. He loses the case. Later it transpires that the presiding officer of their trial is Unathi’s cousin. (2) 4.6.2 In Pretoria’s magistrates’ court, Tshidi is convicted of shoplifting a cheap shirt. He believes that he should not have been convicted. (2) Question 5 5.1. Formal justice will be achieve if a legal institution applied the rules of formal law (impartially/ unequally) 5.2. In private law the four classes of rights are grouped according to the (subject/ object) of each of the four classes of rights. 5.3. When a person dies and leaves behind a valid will, his/her property will be inherited in terms of the rules of (testate/ intestate) succession. 5.4. Custom is a primary source of law, which is made up of largely (written/ unwritten) rules 5.5. The 1996 Constitution is known as South Africa’s (first democratic Constitution/ a codification of South African law) 5.6. The Constitution sets out (the structure of the judiciary/ parliamentary sovereignty) 5.7. Third generation rights have more to do with (a group/ an individual) 5.8. The application of the Bill of Rights between the state and a private institution is known as the (horizontal/ vertical) application of the Bill of Rights. 5.9. In a criminal case a court’s jurisdiction is determined by (the type of offence/ the location of the parties) 5.10. (Review/ obiter dictum) is one of the basic legal principles that form part of the legal process which should be considered when working with the hierarchy of courts. SECTION B ( MAY/JUNE 2017 SECTION A Question 1 1.1. The different normative systems differ with regard to three aspects in particular. Name these three aspects. (3) 1.2. Distinguish between the concepts “substantive law” and “formal law” (2) 1.3. How is substantive justice achieved? (4) 1.4. Conrad and George are in grade 11 in St James College and play rugby for the first team. During a match Conrad starts punching George. By doing this, Conrad infringes on George’s personality right granted to him in terms of the private law. Explain what the relation is between the law (in this case private law) and George’s personality right. (3) 1.5. Name two factors which contributed to the survival of Roman law after the split of the Roman Empire (2) 1.6. By using certain criteria we can identify the different legal families. Name three of these criteria. (3) Question 2 Ken Klapman, the neighbour of Silas Ngobeni, is having a loud party late one Monday night. When Silas asks Ken to turn down the music, Ken becomes angry and hits Silas with a bottle, Silas suffers a deep cut to his head. Silas reports the incident at the police station, Ken is later prosecuted in terms of a statute that prohibits the crime of assault ad has to appear in court for his trial. 2.1. Which main division of South Africa law will be applicable to this scenario? Give a reason for your answer (2) 2.2. Name one division of your answer in 2.1 (NB: which falls under substantive or material law) that will be applicable to this scenario. Give a reason for your answer (3) 2.3. With reference to your answer in 2.2, identify the subdivision of law of procedure that will be applicable to our scenario? Give a reason for your answer (2) 2.4. If the state decided to call a witness during Ken’s trial, which further subdivision of the law of procedure will be applicable? Given a reason for your answer (2) 2.5. Will the court apply the law of civil procedure in this case? Give a reason for your answer. (2) 2.6. Suppose the Supreme Court of Appeal has just before Ken and Silas’s incident occurred, set a precedent in a case similar to the one in our scenario above. Which court/courts will have to follow this precedent? Give a reason for your answer. (2) 2.7. Name the two requirements for the operation of the precedent system Question 3 (2) 3.1. Briefly discuss the possible consequences of constitutionalism on legislation (3) 3.2. The government has given permission for the testing of nuclear weapons in a remote area of the country. The government feels that it is safe because there is no- one living anywhere near this area. The Green Party does not agree and decides to start a protest action. The Van der Merwe and Mothibes are environmental activists and they decide to join the protest. Jane is a member of the Green Party’s legal team. The legal team is seeking a court order to prevent the nuclear testing from going ahead. 3.2.1. Which specific fundamental right has been infringed in this scenario? (1) 3.2.2. Identify and discuss the CATEGORY of fundamental right which has been infringed in this scenario (2) 3.3. Name five factors that the court will consider when determining whether the limitation of a fundamental right is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. (5) 3.4. John Brown and Peter Smith have been in a permanent same-sex relationship for many years. They have always dreamt of getting married one day, but unfortunately for them the definition of marriage in SA law did not include permanent same-sex relationships. They were delighted when the Constitutional Court decided in 2005 that these relationships must also be included in the definition of marriage. The court decided that the definition of marriage, in terms of the common law and the Marriage Act 25 of 1961, is unconstitutional. John and Peter were even more delighted when the Civil Union Act 17 of 2006 came into operation at the end of 2006. 3.4.1. Why did the Constitutional Court decide that the definition of marriage, in terms of the common law and Marriage Act of 1961, is unconstitutional? (1) Because it is unconstitutional on the grounds of the right to equality and the right to human dignity. 3.4.2. How did the Civil Union Act of 2006 change the legal position with regard to samesex relationships in SA? (3) Question 4 Mr Sipho Sibisi concluded a contract of sale with Mrs Zodwa Pheshwa. In terms of this contract Sipho undertook to sell his motor car, a red Mazda 3, to Zodwa of R180 000. They agreed that Zodwa will pay the purchase price when Sipho delivers the car her. When Sipho wanted to deliver the car, Zodwa refused to pay the purchase price. She told Sipho that she no longer liked the Mazda 3 and was making arrangements to buy another motor car, a blue Toyota Corolla. 4.1. Identify the legal dispute that can arise from the scenario. Given a reason for your answer (2) 4.2. With reference to your answer in 4.1, what is the purpose of the specific legal dispute? (1) 4.3. What role will Sipho and Zodwa respectively play in this legal dispute? Give reasons for your answer. (4) 4.4. What will the onus of proof be in this legal dispute and on whom will it rest? (2) 4.5. Which court will have jurisdiction to hear the legal dispute? Give a reason for your answer (2) 4.6. Should the process of the appeal or review be used in the following situations? Give reasons for your answers. 4.6.1. Sipho sues Zodwa for breach of contract. He loses the case. Later it transpires that Zodwa’s uncle has been the presiding officer of the court proceedings. (2) 4.6.2. Sipho sues Zodwa for breach of contract. He wins the case with costs. Zodwa claims that the court has come to an incorrect decision. (2) Question 5 5.1. The law consists of norms which the whole community regards as binding and that must be obeyed 5.2. In private law the four classes of rights are grouped according to the object of each of the four classes of rights. 5.3. In the Netherlands it was the reception of Roman law that caused the creation of what was called the Roman-Dutch law 5.4. The South African legal system is classified under the hybrid legal family. 5.5. A/An obligation is a legal relationship in terms of which one party has a right to performance and the other party a corresponding duty to performance. 5.6. The separation of powers is essential in a democratic country to prevent abuse of power by one of the divisions of government. 5.7. All persons are born with human dignity which gives them a claim to fundamental rights. 5.8. The application of the Bill of Rights between the state and a private institution is known as the vertical application of the Bill of Rights. 5.9. In a criminal case a court’s jurisdiction is determined by the type of offence committed by the accused. 5.10. The Supreme Court of Appeal is the highest court with regard to appeals and other cases. SECTION B OCT/NOV 2017 SECTION A Question 1 a) Describe the term “norm”. Also name four normative systems that comply with the description of the term “norm” (3) b) Distinguish between formal justice and substantive justice (3) c) According to South African private law a legal subject can be the bearer of four types of rights. Name these rights as well as their corresponding objects (4) d) To which legal family does the South African legal system belong? Give reasons for your answer. (5) Question 2 a) Charl and Charlotte Charles have been married for the past 25 years. During these years they have lived in luxury and have never even thought about what would happen to their possessions if they are not around anymore. On their way to Cape Town for their annual holiday they both dies in a car accident. Their three children are now very eager to hear what will happen to their parents’ possessions. (i) Which main division of South African law will be applicable to this scenario? Give a reason for your answer (2) (ii) Which division of your answer in (i) will be applicable? Explain what this division deals with (3) (iii) Which subdivision of your answer in (ii) will be applicable? Give reasons for your answer. (3) (iv) Which forms of the subdivision in (iii) will be applicable to our scenario? Give a reason for your answer. (2) b) Mr and Mrs Clark have been married for the past 10 years. Two years ago Mr Clark, who is a well-known businessman in the community, began an extra- marital relationship with his neighbour’s wife. When Mrs Clark found out about her husband’s adultery a year later, she decided to divorce him. She approaches you for legal advice and asks you to explain to her which sources of law you will use in the divorce case against Mr Clark. (i) Name the source of South African law that you will have to consult first when you start preparing Mrs Clark’s case. (1) (ii) You explain to Mrs Clark that a distinction is made between two kinds of sources of law in South African law. To which kind of sources of law does your answer in (i) belong?(1) c) Write a short paragraph on African indigenous law as a source of South Africa law (3) Question 3 a) Johan and Yonela are in an interracial relationship. One day a conservative and corrupt policeman, Mr Chabede, walks up to the couple and tells them that they are “immoral and second class citizens”. He tells them that he has the power to arrest them and that he will do exactly that unless they each pay him R300. (i) Identify and discuss in detail the kind of fundamental rights that will protect Johan and Yonela in this situation. (5) (ii) What type of application of the Bill of Rights is applicable in this scenario? (1) (iii) Mr Chabede argues that fundamental rights may be limited and that his conduct amounts to justifiable limitations of Johan and Yonela’s rights. How will a court determine whether a limitation of a fundamental right is justifiable? (4) b) Melissa and Rudene have been in a same-sex relationship for the past six years. They want to get married, but are not sure whether gay people are allowed to marry. You are Melissa and Rudene’s lawyer and they come to you for advice. Keeping the influence of the Constitution in mind, explain to Melissa and Rudene what their legal position is and what different options they have at their disposal regarding their union. (5) Question 4 a) The neighbour of Sipho Ngobeni, Ken Klapman, is having a loud party late one Monday night. When Sipho asks Ken to turn down the music, Ken becomes angry and hits Sipho with a bottle. Sipho suffers a deep cut to his head. He is admitted to hospital where he receives treatment for his injuries. Sipho wants to institute a case against Ken for the hospital costs but does not know whether he should approach an attorney or an advocate for legal advice. He approaches you, a first-year law student at Unisa, and asks some questions. (i) What kind of case might arise from the treatment of Sipho’s injuries? Give a reason for your answer. (2) (ii) Which will Sipho have to approach for legal advice in this case- an attorney or an advocate? (1) (iii) Sipho does not understand the difference between an attorney and an advocate. Explain to him what the differences are with reference to academic and professional requirements, their functions, their right of appearance in the courts and their membership pf professional bodies. (4) (iv) Who will be the parties in the case? ( (v) What will the onus of proof be in this case and on which party will it rest? (2) b) Explain the difference between an appeal and a review. (4) Question 5 5.1. A servitude is an example of a real right which entitles the holder of the right to use a road through the land of another person. 5.2. Intellectual property rights relate to creations of the human mind. 5.3. The English law relating to insolvency and company law was received at the Cape in the 19th century. 5.4. There are three ways in which obligations arise, namely: agreement, delict and unjustified enrichment. 5.5. The attendance of an appeal in the Magistrate’s Court can be secured by means of arrest, a notice issued by a peace officer and a summons issued by the clerk of the Court. 5.6. In criminal matters the type of offence and the sentence determines a court’s jurisdiction. SECTION B ( ( ( ( ( ( ( ( MAY/JUNE 2018 SECTION A Question 1 a) Name the four characteristics of the law (4) b) Rudente and Melissa are in a same-sex relationship. They live in an exclusive neighbourhood in Pretoria. The residents of this neighbourhood are very conservative. Whenever the couple walks down the street holding hands, neighbours make insulting remarks about them. Name and describe the normative system that you can identify from this scenario (2) c) What is the connection between “law” and “right”? (3) d) Name the most important characteristic of the civil-law legal family. Also name one legal system grouped within this legal family. 1 (2) e) Explain why the South African legal system is classified as a hybrid legal system (4 Question 2 (a) Karel entered into an agreement with New Visions Kitchens to renovate their kitchen. They agreed that New Visions Kitchens would replace their old stove with a new Easycook stove. The new stove would have a two-year guarantee. Karel and Martie could not wait to try out the new stove and invited their best friends for dinner. To their utter disappointment and anger, the oven failed before the meal was cooked. They had to go to a restaurant for dinner instead. The following day Karel’s brother, who repairs electrical appliances, took a look at the stove and told him that it was not a new stove. When Karel phoned New Visions Kitchens, they refused to speak to him. To make matters worse, it appeared that New Visions Kitchens had destroyed a fish pond with exclusive species of fish in Karel’s garden by dumping some of the building rubble in it. (i) Which main division of South African law will be applicable to this scenario? Give a reason for your answer (2) (ii) Which division of your answer in (i) will be applicable? Give a reason for your answer. (2 (iii) Which subdivision of your answer in (ii) will be applicable? Give a reason for your answer (2) (iv) Name two further subdivisions of your answer in (iii) that will be applicable to our scenario? (2) (b) Mr and Mrs Clark have been married for the past 10 years. Two years ago Mr Clark, who is a well-known businessman in the community, began an extra- marital relationship with his neighbour’s wife. When Mrs Clark found out about her husband’s adultery a year later, she decided to divorce him. She approaches you for legal advice. Name two sources of South African law that you will use to provide Mrs Clark with legal advice (2) (c) Indicate whether custom is an authoritative or persuasive source of the law and name the requirements that a custom has to fulfil in order to be recognised as a legal rule (5) Question 3 (a) A number of special features have been built into the Constitution of 1996 to ensure the success of our democracy. One of these features is the supremacy of the Constitution. Discuss this feature. (4) (b) David Berman applied for a post as engineer at a large construction company, Oxtron. It is a well-known fact that all the directors of Oxtron are Catholic. On his application form David mentions that he is Jewish. When he hands in his application at the office of Oxtron, the receptionist informs him that only Catholics can apply for the post and because David is Jewish, his application will not be considered. (i) Which fundamental right has been infringed in this scenario? Give a reason for your answer (2) (ii) Fundamental rights in the Bill of Rights can be applied in two ways. Which way is applicable to this scenario? Give a reason for your answer. (2) (c) What I the purpose of section 36 of the Constitution? (2) (d) Discuss the influence of the Constitution on criminal law by specifically focusing on the position of the death penalty in South African law. Refer to relevant case law in your discussion. (5) Question 4 (a) Thee neighbour of Sipho Ngobeni, Ken Klapman, is having a loud part late one Monday night. When Sipho asks Ken to turn down the music, Ken becomes angry and hits Sipho with a bottle. Sipho suffers a deep cut to his head. He is admitted to hospital where he receives treatment for his injuries. Sipho alleges that Ken started the fight, but Ken denies this, Sipho decides to lay a charge of assault against Ken. Both appear in the magistrate’s court. After judgment has been delivered, Ken feels that he has been wronged since he has not been given the opportunity to present his own case. (i) Name the kind of case that might arise from the charge of assault. Give a reason for your answer. (2) (ii) What is the purpose of the kind of case that you defined in (i)? (1) (iii) Name the parties who will be involved in this case (2) (iv) Name three ways in which the offender’s attendance can be secured in court. (3) (v) Who will be the presiding officer in this court be? (1) (vi) Name two factors that will determine the court’s jurisdiction in this case. (2) (vii) What will the onus of proof be in this case and on which party will it rest? (2) Question 5 5.1. Substantive Law is that part of the law that determines the content and meaning of the different legal rules. 5.2. The right to your good name is an example of a personality right. 5.3. The Dutch legal system is an example of the Civil Law legal family. 5.4. Public Law deals with the relationship between the state and the citizen. 5.5. The purpose of an act is set out in the long title of an act. 5.6. The law of a country which is not contained in legislation is called common law. 5.7. The application of the Bill of Rights between individual’s and/ or private institutions is known as the horizontal application of the Bill of Rights. 5.8. The branch of the state that applied and carries out law is known as the executive authority of the state. 5.9. In a civil case the jurisdiction of the court may be determined by the nature if the relief claimed. 5.10. A court orderly is responsible for keeping order in a magistrate’s court. SECTION B [Show More]

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