HISL130-1 Formative Assessment 1 (2024) PDF

HIGHER EDUCATION PROGRAMMES MEMORANDUM Academic Year 2024: January – June Formative Assessment 1: Introduction to South African Law...

HIGHER EDUCATION PROGRAMMES MEMORANDUM Academic Year 2024: January – June Formative Assessment 1: Introduction to South African Law (HISL130-1) NQF Level, Credits: 5, 10 Weighting: 20% Assessment Type: Essay Questions Educator: Sinovuyo Janda Examiner: Sinovuyo Janda Due Date: 28 March 2024 Total: 100 Marks Instructions: This paper consists of seven (7) questions. It is based on Units 1 – 4 (Chapters 1 – 4) of your textbook. All questions are compulsory. Your assessment must be typed using: o Font: Arial o Font size: 12 o Line spacing: 1.5 1 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 The Learning Outcomes assessed in this assessment are: Discuss the sources of South African Law. Differentiate between the alternative dispute resolution processes that can be followed in South Africa. Define the concept of law. Analyse the relationship between law and morality. Differentiate between international and national law. Explain various components of procedural law. Identify the legal name of the presiding officers of the various courts Explain the civil jurisdiction of the various courts. Differentiate between appeals and reviews. 2 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 1 (18 Marks) Read the scenario below and answer the question(s) that follow: A group of elders in a small village noticed that planting different types of seeds in the same field caused their crops to die faster. They decided to plant the crops in separate fields. The method of planting has been passed down through generations in that village, and it has been 100 years since crops have been planted in separate fields. The people refer to this as 'the separation' and tell their children and grandchildren about it. Required: 1.1. Explain if the practice mentioned in the scenario above is an example of customary law. Refer to the general characteristics of customary law as part of your answer. (11 marks) Note to student: Students will be awarded a maximum of six (6) marks for identifying the general characteristics of customary law. A maximum of four (4) marks for the application and an additional one (1) mark for the conclusion. Note to grader: Students should be awarded a maximum of six (6) marks for identifying the general characteristics of customary law. A maximum of four (4) marks for the application and an additional one (1) mark for the conclusion. Student’s answers may differ. Please use discretion when marking. Answer: Unit 2, chapter 2, page 62. General characteristics of customary law: Customary law is regarded as unwritten law, as it comprises the fixed practices of a particular community. ✔ For customs to become law, there are certain requirements✔ that must be met, namely that the custom must: 3 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  o have existed for a long time; ✔ o be generally authorised and observed by that particular community; ✔ o be reasonable; and✔ o be certain and clear in terms of its content and meaning. ✔ Application: For the past 100 years, this custom has been passed down verbally from generation to generation. ✔ This custom was unique to that small village and the individuals in that village. ✔ The custom is reasonable as it does not pose an undue burden on anyone; on the contrary, it is for the benefit of the community. ✔ The village elders met to discuss instituting this tradition, in which the entire village participates; thus, everyone understood the contents of the custom. ✔ Conclusion: This qualifies as customary law. ✔ Learning Outcome: Discuss the sources of South African Law. 1.2. According to section 211 of the Constitution, identify how customary law is recognised in South African Law today. (2 marks) Answer: Unit 4, chapter 4, page 109. Section 211 of the Constitution states that customary law in South Africa has an equal status ✔ to any other law. ✔ Learning Outcome: Discuss the sources of South African Law. 1.3. Discuss the applicability of indigenous law in the ordinary courts of South Africa, and identify under which circumstances courts may accept or reject the 4 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  application of indigenous law within the South African legal system. (5 marks) Note to grader: Students' answers may differ. Please use discretion when marking. Answer: Unit 2, chapter 2, page 62-63. Indigenous law is a form of unwritten customary law that many black communities live by. ✔ If a party so chooses, indigenous law may be applied in any of the ordinary courts. ✔ The court then simply needs to take judicial notice of the indigenous law. ✔ In other words, indigenous law does not need to be proven; the court needs only to take note thereof. ✔ However, the court may accept indigenous law only if it is not contrary to natural justice or the principles of public policy. ✔ Learning Outcome: Discuss the sources of South African law. 5 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 2 (11 Marks) Sarah and Tom, parents of two young children, are going through a challenging divorce with child custody emerging as the primary point of contention, potentially leading to legal proceedings. Despite the difficulties, they are open to exploring alternative dispute resolution (ADR) methods to reach an amicable resolution. Specifically, Sarah and Tom are considering mediation to facilitate open communication and find a mutually agreeable custody arrangement Required: Discuss the potential benefits of utilising mediation as an alternative dispute resolution (ADR) mechanism, and provide specific examples of how mediation could have a positive impact on Sarah and Tom’s situation. Note to student: Students will be awarded a maximum of seven (7) marks for discussing the benefits of mediation and an additional four (4) marks for providing examples of how mediation could have a positive impact on Sarah and Tom’s situation. Note to grader: Students should be awarded a maximum of seven (7) marks for discussing the benefits of mediation and an additional four (4) marks for providing examples of how mediation could have a positive impact on Sarah and Tom’s situation. The student’s answers may differ. Please use discretion when grading. Answer: Unit 3, chapter 3, pages 93-94. General theory: Mediation is: o a less formal, ✔ o less time-consuming process and✔ o is more cost-effective than both arbitration and litigation. ✔ Mediation also helps preserve relationships between potential litigants, which can become strained or destroyed by the adversarial nature of litigation. ✔ 6 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  The parties to the dispute agree amongst themselves on who the mediator will be. ✔ Mediation is an ADR method that encourages the parties to talk to each other so that they themselves may reach a resolution. ✔ Mediation can, therefore, be described as a collaborative process between the mediator and the parties, as they meet in a series of joint and private meetings with the goal of achieving a result that benefits the parties. ✔ Application: The expediency of mediation can result in a reduced emotional toll on Sarah, Tom and their children. ✔ Sarah and Tom will save on legal fees, and that money can instead be directed towards the children. ✔ Mediation will help reduce the conflict between Sarah and Tom, leading to a healthier co-parenting environment in the future, ✔ and ensures that the custody arrangement will be beneficial for both of them. ✔ Learning Outcome: differentiate between the alternative dispute resolution processes that can be followed in South Africa. 7 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 3 (9 Marks) Different jurisprudential scholars have developed various theories and beliefs regarding the link between law and morality. Determine which theory applies to each statement below and provide a reason for your answer. Note to student: Students will be awarded a maximum of one (1) mark for identifying the relevant theory and an additional two (2) marks for providing a reason for their answer. Note to grader: Students should be awarded a maximum of one (1) mark for identifying the relevant theory and an additional two (2) marks for providing a reason for their answer. 3.1. A judge makes a decision influenced by the judge's personal economic and political views rather than strictly adhering to a formalist interpretation of the law. (3 marks) Answer Unit 1, chapter 1, page 10. Legal realism ✔ Legal realism focuses on how law is implemented and interpreted in reality. Legal realists accept that the law cannot be viewed separately from society, morality, or even human nature. They argue that the law will never be entirely objective, as it will always be implemented by people. ✔✔ Learning Outcome: Define the concept of law. 3.2. “What counts as law in any particular society is fundamentally a matter of social fact or convention... [and] there is no necessary connection between law and morality." – Colemand & Leiter (3 marks) Answer Unit 1, chapter 1, page 9. Legal positivism ✔ 8 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Legal positivism deliberately and intentionally separates laws and the legal framework from morality and moral frameworks. Under legal positivism, the “justness” and/or morality of a law do not impact on its authority or validity. Rather, a law’s authority derives from its creation through accepted and enforced legal processes. ✔✔ Learning Outcome: Define the concept of law. 3.3. The legal theory asserts that laws should be based on a higher, universal moral order rather than merely human-made laws. (3 marks) Answer: Unit 1, chapter 1, page 8. Natural law ✔ Natural law theories look to answer the question of why we should obey the law. According to natural law theories, morality and/or social contracts provide the underlying force for our obedience. Laws are developed as a practical means of enforcing morally desirable behaviours. ✔✔ Learning Outcome: Define the concept of law. 9 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 4 (12 Marks) Match the below sources of South African law with their definitions. Note to student: Students only need to write the number and corresponding letter down as the answer. For example: 1.A; 2.B etc. Sources of South African law. Definition 1 The Constitution of the Republic of A Rules of law promulgated by a body South Africa, 1996 or person bestowed with the power of creating rules of law. 2 Judicial precedent B An unwritten body of law that consists of legal norms that are widely known. 3 Customary law C The supreme law of South Africa. 4 Legislation D Comprises the fixed practices of a particular community. 5 Common law E A body of law which binds or regulates states in terms of their relationships with other states. 6 International law F The doctrine of stare decisis. Answer: Unit 2, chapter 2, pages 55-66. 1. C ✔✔ 2. F ✔✔ 3. D ✔✔ 4. A ✔✔ 5. B ✔✔ 6. E ✔✔ Learning Outcome: Discuss the sources of South African law. 10 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 5 ( 23 Marks) Read the scenario below and answer the question(s) that follow: Zintle, a first-year law student fueled by a passion for the law, is currently engaged in a job shadowing experience at the local High Court. Her mentor, recognising her enthusiasm and potential, assigns her the task of reading a specific legal case. While conducting court research, Zintle encounters the complex concept of judicial precedent. She is also curious about the case that she is reading, referring to the different jurisdictions and functions of courts, specifically, the Small Claims Court. As a final year student and a tutor, Zintle approaches you with questions that she would like clarified. Required: 5.1. Explain the doctrine of judicial precedent to Zintle, and elaborate on the hierarchy of courts, clarifying how the principle of judicial precedent operates within this hierarchy. (13 marks) Note to student: Students will be awarded a maximum of seven (7) marks for explaining the doctrine of judicial precedent and a maximum of six (6) marks for clarifying how the principle of judicial precedent operates within the hierarchy of the courts. Note to grader: Students should be awarded a maximum of seven (7) marks for explaining the doctrine of judicial precedent and a maximum of six (6) marks for clarifying how the principle of judicial precedent operates within the hierarchy of the courts. The student’s answers may differ. Please use discretion when grading Note to grader: Student’s answers and examples may differ. Use discretion when marking. Answer: Unit 2, chapter 2, pages 59-60. 11 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Doctrine of judicial precedent: The system of judicial precedent is also referred to as the doctrine of stare decisis. ✔ This means that previous judicial decisions establish binding precedents that must be followed by the courts. ✔ However, there is an exception to this rule. ✔ o The doctrine does not apply where the facts of an existing precedent are materially different to those of the current case before the court. ✔ o In other words, if the two cases are distinguishable, then the court does not need to apply the existing precedent to its case. ✔ There are two significant consequences of judicial precedent. o Firstly, lower courts are bound to the decision of higher courts. ✔ o Secondly, a court is bound by its own previous decisions, unless those decisions were incorrect. ✔ Hierarchy of courts: The CC is the highest court in terms of constitutional matters. Its judgments are therefore binding on all other courts that preside over constitutional matters. ✔ The Supreme Court of Appeal (SCA): The SCA is bound by its own judgments (unless they are incorrect).✔ Tthe SCA is not bound by the judgments of subordinate courts. ✔ Each High Court (HC) is bound by its own judgments (unless they are incorrect), ✔ Magistrates’ Courts (MCs) are bound by the judgments of the SCA. ✔ However, where the SCA has not delivered a judgment on a specific issue, the MCs are then bound by the HCs of their respective provinces. ✔ The judgments of MCs never serve as precedent. ✔ Learning Outcome: Discuss the sources of South African law. 12 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 5.2. Explain to Zintle the difference between 'ratio decidendi' and 'obiter dicta' in a judgment and clarify their roles in establishing legal precedents in your own words. (6 marks) Note to grader: Students must answer this question in their own words. Answer: Unit 2, chapter 2, page 61. Ratio decidendi: o This term means ‘the reason for the decision’. ✔ o In other words, it contains the legal principles that a court applies to the material facts of a case in order to reach a decision. ✔ o The ratio decidendi of a court’s judgment, therefore constitutes precedent. ✔ Obiter dicta: o This term means ‘remarks in passing’. ✔ o In other words, they are simply a judge’s view of the law but are not necessary for a judgment to be reached. ✔ o Therefore, the obiter dicta of a court’s judgment do not constitute precedent. ✔ Learning Outcome: Discuss the sources of South African law. 5.3. With reference to the Small Claims Court, explain to Zintle (a) what the presiding officer of this court is called; (b) what the jurisdiction of this court is regarding civil claims; and (c) whether the judgment of the presiding officer of this court can be appealed. (4 marks) Note to student: Students will be awarded a maximum of four (4) marks. Note to grader: Students will be awarded a maximum of four (4) marks. 13 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Answer: Unit 3, chapter 3, page 80-83. a) The presiding officer is called a “Commissioner”.✔ b) The court can only preside over civil claims not exceeding R20 000.00. ✔ c) The court is not a court of record ✔ (or: proceedings taking place during the hearing are not recorded). Therefore, it is not possible to appeal against Commissioner’s judgment, ✔ however, it is possible to review the Commissioner’s judgment in certain circumstances. ✔ Learning Outcome: Identify the legal name of the presiding officers of the various courts Explain the civil jurisdiction of the various courts. Differentiate between appeals and reviews. 14 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 6 (15 Marks) For each of the statements below, indicate whether it is true or false and provide a justification for your answer: Note to student: Students will be awarded a maximum of one (1) mark for indicating whether the statement is true or false and an additional two (2) marks for providing a justification for their answer. Note to grader: Students should be awarded a maximum of one (1) mark for indicating whether the statement is true or false and an additional two (2) marks for providing a justification for their answer. 6.1. In Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC), the court ultimately decided that the appellant’s moral rights were breached. Answer: Unit 1, chapter 1, page 6. False ✔ The court ultimately decided that the appellant had not shown that the failure to provide him with dialysis in his specific circumstances constituted a breach of his rights under section 27 of the Constitution. ✔✔ Learning Outcome: Analyse the relationship between law and morality. 6.2. An immoral action is an action that holds no moral value. Answer: Unit 1, chapter 1, page 12. False ✔ An immoral action is any action or behaviour that a particular moral framework sees as a bad thing. ✔✔ 15 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  Learning Outcome: Analyse the relationship between law and morality. 6.3. The social contract theory sees morality as inherently objective; it follows that we can condemn the actions of someone from a different community on the basis of the beliefs of our community. Answer: Unit 1, chapter 1, page 14. False ✔ The social contract theory sees morality as inherently subjective; it follows that we cannot condemn the actions of someone from a different community on the basis of the beliefs of our community. ✔✔ Learning Outcome: Analyse the relationship between law and morality. 6.4. In mediation, a neutral third party makes a binding decision to resolve a dispute. Answer: Unit 3, Chapter 3, pages 91-94. False ✔ In arbitration, a neutral third party makes a binding decision to resolve a dispute. ✔✔ Or In mediation, a neutral third party encourages the parties to talk to each other so that they themselves may reach a resolution. ✔✔ Learning Outcome: Differentiate between the alternative dispute resolution processes that can be followed in South Africa. 6.5. John has a company in South Africa, while James has a company in Chad. They conduct business together. John contends that James committed fraud 16 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  under the Companies Act applicable in South Africa. Unfortunately, John cannot apply South African national law with regard to James`s conduct. Answer: Unit 4, chapter 4, page 106. True ✔ National law is limited to one state; therefore, South African National Law is exclusively applicable within the territorial boarders of South Africa. In essence, national law only governs legal matters South Africa. ✔✔ Learning Outcomes: Differentiate between international and national law. 17 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024 Question 7 (12 Marks) Read the scenario below and answer the question(s) that follow: Emma, a young woman, decides to move out of her family home due to a toxic environment. In an effort to support herself financially, she makes the difficult decision to engage in sex work. In South Africa, sex work, specifically prostitution, is considered a crime under both the Sexual Offences Act 23 of 1957 and the Sexual Offences and Related Matters Act 32 of 2007. One night, while Emma is engaging in sex work, she encounters an undercover police officer. Unaware of the officer's identity, Emma is subsequently arrested. The police officer takes Emma to the police station and criminally charges her for the contravention of the Sexual Offences Act 23 of 1957. Required: 7.1. With reference to the three stages of criminal procedure, explain how this case would proceed through the courts. (9 marks) Note to student: Students will be awarded a maximum of one (1) mark for identifying the relevant stage, one (1) mark for discussing the theory of the relevant stage, and one (1) mark for applying the theory to the set of facts. Note to grader: Students will be awarded a maximum of one (1) mark for identifying the relevant stage, one (1) mark for discussing the theory of the relevant stagem, and one (1) mark for applying the theory to the set of facts. Answer: Unit 4, chapter 4, pages 124. Criminal procedure in South Africa can be divided into three stages: Pre-trial stage: ✔ 18 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  o This is the stage before the formal trial begins and involves officially charging a person with a crime and gathering evidence, and th lawyers representing the accused also begin to make out their defence. ✔ o Emma will be charged and her lawyers will begin crafting Emma’s defence. ✔ Trial stage: ✔ o During the trial stage, the case is made against the accused, where the state has to prove their guilt. The law of evidence governs what kind of evidence can be submitted to support the state or the defence. ✔ o The case against Emma is either proven guilty or not guilty.✔ Post-trial stage: ✔ o The post-trial stage takes place after the trial has ended. It may involve issues relating to the sentence or restorative justice (where the accused has to undertake certain actions to compensate the victims of the crime). Alternatively, the accused can be sentenced to prison for a period of time, which they will then need to serve. ✔ o Emma will either sentenced to serve time in prison or be required to perform a form of restorative justice.✔ Learning Outcome: Explain various components of procedural law. 7.2. Identify under which legislative act Emma’s trial will be conducted and provide reasons for your answer. (3 marks) Note to grader: The student’s answers may differ. Please use discretion when grading. Answer: Unit 4, chapter 4, page 107. Since X decided to engage in sex work, she is considered to have committed a crime. ✔ 19 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024  Criminal procedure in South Africa is governed by legislation, which primarily involves the Criminal Procedure Act 51 of 1977, ✔ which makes provisions for criminal proceedings. ✔ Learning Outcome: Explain various components of procedural law. 20 HISL130-1-Jan-June2024-FA1-Memo-SJ-V3-18012024