PART 1 QUESTION 1 11 The task of the Commission is to Essay

PART 1

QUESTION 1

1.1 “The task of the Commission is to investigate certain matters approved by the Minister of Justice and Constitutional Development and referred to it by Parliament”. “In each investigation, the Commission considers the present legal position, the historical development of the matter under consideration and then, after extensive research, proposes changes to the law to bring it into line with the needs of society”.

1.2 -“Traditional Courts Bill”.

– “Recognition of Islamic Marriage”.

– “Customary Law Succession and Regulation of Related Matters Act 11 of 2009”.

QUESTION 2

(1) “The 1996 Constitution abolished the Black Administration Act 38 of 1927”.

QUESTION 3

3.1 False.

3.2 True.

3.3 True.

QUESTION 4

Decision: “Court alluded to Voet – unequivocal bondage having been comprised must be changed through shared assent. The court at that point kept up that one ought to recognize subjugations that are by and large stipulated and those that are explicitly characterized – like the case in the present example”.

QUESTION 5

5.1 (3).

5.2 “European ius commune it was the law commonly used by many Western European countries”.

QUESTION 6

6.1 “Johannes van der Linden” .

6.2 “Hugo de Groot” .

6.3 “Johannes Voet” .

QUESTION 7

7.1 “The Orange Free State Constitution of 1854”.

7.2 “The Zuid-Afrikaansche Republiek Constitution”.

7.3 -“The 1910 Constitution of the Union of South Africa”

-“The Constitution of the Republic of South Africa, 1996”

PART 2

QUESTION 8

“The elements are long term project, interpretation, isolation, power relationship, and equality”.

QUESTION 9

9.1 “A graveyard is a thing outside commerce; a composite thing; a consumable thing; and an immovable thing”.

9.2 “Standard social associations are possibly polygynous. This infers each man may have more than one real mate. A companion, together with her adolescents, outlines an alternate unit, named a “family”. A mate in a polygynous marriage has a speci?c rank or status in association with various spouses. The family property excludes nuclear family property. It includes all property of, and benefit by, the life partner who is the pioneer of the family, (for instance, things obtained by him or that he has gotten as favours; pay got from work; land apportioned by the ordinary master). The control and association of the family property is the commitment of the pioneer of the family. This does not infer that he has sole duty regarding the family property. He controls it for the bene?t of the family with everything considered. Each person from the family, dependent upon their status inside the get-together, is in this way qualified for the idea in the property. Endowments got by a woman, items earned by her or by people from the nuclear family, lobolo (bridewealth) given in respect of a young lady, and family things, for instance, furniture and utensils, are a couple of examples of family property. Nuclear family property may moreover consolidate the benefit to use speci?c country land or to use a residence. By virtue of nuclear family property, the interests of the family, as a rule, are principal. The pioneer of the family controls the property, yet it must be used to the upside of the life partner and her adolescents”.

9.3

(a) “Yes, the contract of purchase and sale is a consensual contract, the only consensus between the parties is required to conclude a valid contract of sale”. “This does not mean that a valid contract of sale has been concluded meaning that ownership in the sold thing has passed from the seller to the buyer”.

(b) “Under Roman law ownership never pass to the buyer upon delivery, when sold a thing which does not belong to the buyer, so Mrs. Jones did not become the owner immediately”.

(c) “The rei vindication”.

(d) Mrs. Jones has been in possession of the ring for 10 years because she may have become of the ring by prescription. “Simple delivery”.

9.4

(a) 3.

(b) 2.

(c) 1.

(d) 1.

QUESTION 10

10.1 “Acts directed all in all by at least two co-working gatherings (for example contracts). The most significant wellsprings of commitments are demonstrations of agreement, delict, and crooked improvement. Consequently, an agreement is anything but a legitimate commitment yet rather a lawful reality that offers ascend to a lawful commitment”.

10.2

(a) (iii) Resolutive term.

(b) (iv) Resolutive condition.

(c) (ii) Suspensive condition.

10.3

(a) True.

(b) True.

(c) True.

10.4 “The 1990s, the of?cial state law, which shaped the establishment of the South African lawful framework, was Roman-Dutch law as in?uenced by English law. This was of?cially the main law of South Africa. As demonstrated, the Constitution perceives the precedent-based law as a wellspring of South African law and, in a few arrangements, propels the courts to build up the custom-based law. The precedent-based law is viewed as the authentic part of our law. However, what precisely comprises the precedent-based law of South Africa? In the courts and in scholarly composition Roman-Dutch law is viewed as the customary law, and its standards, statutes, and standards are viewed as the premise of the lawful framework. The customary law has its underlying foundations in both the Roman (non-military personnel) and English precedent-based law conventions and comprises mostly of Roman-Dutch law, in?uenced by English custom-based law, adjusted throughout the hundreds of years by neighbourhood enactment and legal point of reference (case law).

Even more significantly, the custom-based law of South Africa isn’t a constant, unchangeable component of the lawful framework. This custom-based law is a living law, which is yet connected by our courts and which is fit for adjusting to the changing estimations of our general public. The courts have demonstrated that where the need emerges, they are set up to adjust or abrogate the precedent-based law to suit the necessities of a created society and to comply with present-day protected standards”.

10.5

(a) “Pholani who fears for her life, concludes the contract to sell her car because she is afraid, she might lose life due to the knife put on her throat. Clearly, Kamogelo has unduly in?uenced Pholani into concluding a contract she would not have entered of her own free will she was under duress”.

(b) “In Roman law, for a contract of sale to be valid, the purchase price had to be in a form that can be physically be counted, in this case, it is not. Tina and Azraa contract are invalid”.

(c) “The fact of the matter is there is no object of sale which the car is, it prevents the sale. As a result of the supervening impossibility of performance, the contract is not valid page”.

10.6 “Fundamentally, the Constitution requires a reappraisal of conventional thoughts of the legal capacity and of lawful understanding. It expects judges to take part in substantive lawful thinking, to verbalize the qualities whereupon their choices are based and to draw in with the social, chronicled and authoritative setting. Judges themselves are in this way made subject to the interest in the avocation, instead of essentially depending on a previous standard or point of reference, they are required to take part in esteem based, relevant thinking. Subsequently, the new sacred regulation guarantees to start new advancements in the law of agreement. Despite logical help for good confidence, decency, and sensibility, be that as it may, the post-established example for our situation law remains a progression of triumphs for the free marketeers. No doubt the legacy of positivism and formalism has viably risked the improvement of the law of agreement by methods for established translation”.

QUESTION 11

11.1

(a) True.

(b) True.

(c) False.

(d) True.

(e) False.

11.2 • Physical attack on the body (corpus)

“Any unlawful physical attack on a free person’s body constituted an infringement of the person (iniuria). The mere threat of physical violence was also suf?cient”.

• Attack on a person’s dignity (dignitas)

“A person’s dignity refers to her self-worth, meaning how she feels about herself. An example of an attack on someone’s dignity would be if one person tore another’s toga off in public. To the Romans, this was an exceptionally in dignifying act. But we can relate to that – imagine if someone walked up to you in the street and tried to rip off your clothes! Another example would be where a person was subjected to vulgar verbal abuse”.

• Damaging a person’s reputation (fama)

“Fama refers to what other people think of a person, or how society regards him. If Andrew spreads false rumours about Bongi to the detriment of her good name, then her reputation has been injured. The Romans considered it a typical case of an attack on a person’s fama if a virgin was subjected to pregnancy tests because this insinuated that her word was not to be trusted or that she acted in a scandalous or promiscuous manner”.

11.3

a) The case is of enormous significance for the respondents and is one including “a financial calamity. Class activities speak to a paradigmatic move in the South African lawful procedure. It is a procedure that licenses at least one offended party to record and arraign a claim for the benefit of a bigger gathering or “class” against at least one litigant. It has a specific process to follow- is a piece of the value created law and is intended to cover circumstances where the gatherings, especially offended parties, are numerous to the point that it would be practically difficult to present to them all under the watchful eye of the court in one hearing, and where it would not be in light of a legitimate concern for equity for them to precede court independently; is intended to ensure the offended party, yet in addition the defendant(s) from confronting an assortment of activities bringing about the defendant(s) recasting or spew its/their argument against each individual offended party; pushes the case ahead, is considering a legitimate concern for equity and upgrades legal economy by shielding courts from thinking about similar issues and proof in various procedures, which conveys with it the likelihood of choices by an alternate court on a similar issue; and considers a solitary finding on the issue(s), which discovering ties every one of the offended parties and respondents.

(b) The more case prolonged the more people were dying while waiting for the application to be finalised.

PART 3

QUESTION 12

“Section 2 Supremacy of Constitution” .

“Section 39(2) Interpretation of Bill of Rights”.

“Section 172 Powers of courts in Constitutional matters”.

QUESTION 13

13.1 “human dignity and equality”.

13.2 In African cultures when one speaks of Ubuntu it is all about the way we are connected to others and humanity that makes one recognise that we are who we are because of others “motho ke motho ka batho ba bangwe”. The word Ubuntu is in a different range of huge languages and it means happiness, inner goodness, peace, love, truth, and generosity. In addition, for a human being to be fully recognised by the world there is a humanity that one is born with, we learn how to interact with others, how to nature each other as individuals and as a society. Moreover, Ubuntu is about forgiveness, compassion, humanity, and dignity. As the notion states human beings, we are not born in isolation, a human being needs each other for social purpose and to learn and respect each other. Ubuntu it is the principle that guides the African community about humanity, love as a core because without love there will never be Ubuntu. Furthermore, love is all about caring, showing forgiveness and sharing among the community.

13.3 “The defendants are ordered to tender an unconditional apology to the plaintiff for the injury they caused him”.

QUESTION 14

14.1 “Bhe v Magistrate Khayelitsha and others”.

14.2 –“Section 167(4) (e) Constitutional Court” .

-“Section 172(1)(a) Powers of courts in Constitutional matters” .

14.3 – “Daniels v Scribante and another [2017] ZACC 13”.

– “Baron and others v Claytile (Pty) Limited and another [2017] ZACC 24”.

14.4 Ubuntu is perceived just like a significant wellspring of law inside the setting of stressed or broken connections among people for giving cures which contribute towards more commonly adequate solutions for the gatherings in such cases. It supports the re-foundation of congruity in the connection among gatherings and that such agreement ought to re-establish the poise of the offended party without demolishing the respondent. Likewise, it favours helpful as opposed to retributive equity.

Since S v Makwanyane, Ubuntu has turned into a fundamental piece of the protected qualities and the rules that advise the translation regarding the Bill of Rights and different territories of law. Specifically, a helpful equity topic has turned out to be clear in the law that includes standard law, eviction criticism, and criminal law matters.