Mastervincent
HRM3706 SUMMARISED NOTES
FUR2601 EXAM
PACK
FOR ASSISTANCE CONTACT
, lOMoARcPSD|56105791
FUR2601/202
SUBSECTION A: ANSWER ON MARK READING SHEET
Indicate whether the following statements are True or False by selecting the correct answer.
A 1. Franco Seerdorf, a German soccer player, has a three-year contract to play for a South African Club.
Franco is, therefore, entitled to vote in the next general elections. (2)
1) False, because foreign soccer players are not allowed vote.
2) True, because our Constitution is similar to the German Constitution.
3) True, because foreign nationals are entitled to all the rights in the Constitution.
4) False, because political rights are only granted to citizens of the country.
Answer: False, because political rights are only granted to citizens of the country.
A 2. The general limitation clause can meaningfully be applied to all rights in the Bill of Rights. (2)
1) True, because all rights are textually unqualified.
2) True, because all rights have demarcations.
3) False, because some provisions contain internal demarcations that repeat the phrasing of
section 36.
4) False, because some provisions contain external demarcations that repeat the phrasing of
section 36.
Answer: False, because some provisions contain internal demarcations that repeat the phrasing of
section 36.
A 3. You are a legal adviser to the Pretoria City Council. The Council plans to evict a number of squatters
from its land that has been earmarked for a housing project. The Council has the right to evict the
squatters and demolish their dwellings. (2)
1) True, because fair procedure does not apply to illegal occupants
2) False, because evictions can only occur once a court order has been granted.
3) False, because South Africans are allowed to squat anywhere in the country.
4) True, because the actions of the Council amount to an administrative decision.
Answer: False, because evictions can only occur once a court order has been granted.
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A 4. Reading in is a constitutional remedy that is used to remedy an omission in a statutory provision. (2)
1) False, because it is a method of statutory interpretation.
2) False, because it is not recognised by s172 of the Constitution.
3) True, because its purpose is to add words to cure the defect.
4) True, because it is the same as severance.
Answer: True, because its purpose is to add words to cure the defect.
A 5. The customary law rule of male primogeniture, in terms of which wives and daughters are not allowed
to inherit where the testator has died without a will, infringes the right to human dignity. (2)
1) False, because this statement was confirmed by the Constitutional Court in Booysens v
Magistrate of Khayelitsha.
2) False, because this statement was confirmed by the Constitutional Court in Minister of Home
Affairs v Watchenuka.
3) True, because this statement was confirmed by the Constitutional Court in Minister of Home
Affairs v Fourie.
4) True, because this statement was confirmed by the Constitutional Court in Bhe v Magistrate
Khayelitsha.
Answer: True, because this statement was confirmed by the Constitutional Court in Bhe v
Magistrate Khayelitsha.
SUBSECTION B
B 1. What is the basis for the distinction between socio-economic rights on the one hand and civil
and political rights on the other? (3)
Civil and political rights have traditionally been seen as first-generation or “blue” rights and socio-economic
rights as second-generation or “red” rights. These labels are somewhat arbitrary, as is the traditional
distinction between negative and positive rights. Socio-economic rights have come to the fore more
recently. The American Constitution is a good example of a constitution founded on the idea of the classic
individual rights which are protected against undue interference by the state, but do not impose any positive
obligation on the state. In reality, though, all these categories are permeable (ie, open to influences and
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FUR2601/202
interpretation). One can say is that socio-economic rights focuses on the social obligation of the state to
provide for the basic needs of its citizens.
B 2. What is the difference between formal equality and substantive equality? (2)
Formal equality refers to sameness of treatment. This means that the law must treat individuals the same
regardless of their circumstances, because all persons are equal and the actual social and economic
differences between groups and individuals are not taken into account.
Substantive equality requires an examination of the actual social and economic conditions of groups and
individuals to determine whether the Constitution’s commitment to equality has been upheld. To achieve
substantive equality, the results and the effects of a particular rule (and not only its form) must be
considered.
B 3. What is a structural interdict and for which cases are they best suited? (2)
A structural interdict directs the violator to rectify the breach of fundamental rights under court supervision
and is particularly well suited to socio-economic rights cases.
B 4. What is the two-stage approach to the limitation of fundamental rights? (2)
The first stage involves rights analysis (determining whether a fundamental right has in fact been infringed)
and the second stage involves limitations analysis (determining whether the infringement, impairment or
limitation is in accordance with the Constitution).
B.5 Does a provision that allows all medical doctors (but not members of any other professions)
to do community service qualifies as a law of general application? (2)
The mere fact that a law differentiates between different professions does not mean that it is not a law of
general application. It would only fail the test if it was arbitrary.
B 6. Can an insurance company invoke the right to life? (2)
In applying sec 8(4), it is unlikely that a company can claim the right to life. This is so because the nature of
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HRM3706 SUMMARISED NOTES
FUR2601 EXAM
PACK
FOR ASSISTANCE CONTACT
, lOMoARcPSD|56105791
FUR2601/202
SUBSECTION A: ANSWER ON MARK READING SHEET
Indicate whether the following statements are True or False by selecting the correct answer.
A 1. Franco Seerdorf, a German soccer player, has a three-year contract to play for a South African Club.
Franco is, therefore, entitled to vote in the next general elections. (2)
1) False, because foreign soccer players are not allowed vote.
2) True, because our Constitution is similar to the German Constitution.
3) True, because foreign nationals are entitled to all the rights in the Constitution.
4) False, because political rights are only granted to citizens of the country.
Answer: False, because political rights are only granted to citizens of the country.
A 2. The general limitation clause can meaningfully be applied to all rights in the Bill of Rights. (2)
1) True, because all rights are textually unqualified.
2) True, because all rights have demarcations.
3) False, because some provisions contain internal demarcations that repeat the phrasing of
section 36.
4) False, because some provisions contain external demarcations that repeat the phrasing of
section 36.
Answer: False, because some provisions contain internal demarcations that repeat the phrasing of
section 36.
A 3. You are a legal adviser to the Pretoria City Council. The Council plans to evict a number of squatters
from its land that has been earmarked for a housing project. The Council has the right to evict the
squatters and demolish their dwellings. (2)
1) True, because fair procedure does not apply to illegal occupants
2) False, because evictions can only occur once a court order has been granted.
3) False, because South Africans are allowed to squat anywhere in the country.
4) True, because the actions of the Council amount to an administrative decision.
Answer: False, because evictions can only occur once a court order has been granted.
7
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, lOMoARcPSD|56105791
A 4. Reading in is a constitutional remedy that is used to remedy an omission in a statutory provision. (2)
1) False, because it is a method of statutory interpretation.
2) False, because it is not recognised by s172 of the Constitution.
3) True, because its purpose is to add words to cure the defect.
4) True, because it is the same as severance.
Answer: True, because its purpose is to add words to cure the defect.
A 5. The customary law rule of male primogeniture, in terms of which wives and daughters are not allowed
to inherit where the testator has died without a will, infringes the right to human dignity. (2)
1) False, because this statement was confirmed by the Constitutional Court in Booysens v
Magistrate of Khayelitsha.
2) False, because this statement was confirmed by the Constitutional Court in Minister of Home
Affairs v Watchenuka.
3) True, because this statement was confirmed by the Constitutional Court in Minister of Home
Affairs v Fourie.
4) True, because this statement was confirmed by the Constitutional Court in Bhe v Magistrate
Khayelitsha.
Answer: True, because this statement was confirmed by the Constitutional Court in Bhe v
Magistrate Khayelitsha.
SUBSECTION B
B 1. What is the basis for the distinction between socio-economic rights on the one hand and civil
and political rights on the other? (3)
Civil and political rights have traditionally been seen as first-generation or “blue” rights and socio-economic
rights as second-generation or “red” rights. These labels are somewhat arbitrary, as is the traditional
distinction between negative and positive rights. Socio-economic rights have come to the fore more
recently. The American Constitution is a good example of a constitution founded on the idea of the classic
individual rights which are protected against undue interference by the state, but do not impose any positive
obligation on the state. In reality, though, all these categories are permeable (ie, open to influences and
8
Downloaded by Vincent kyalo ()
, lOMoARcPSD|56105791
FUR2601/202
interpretation). One can say is that socio-economic rights focuses on the social obligation of the state to
provide for the basic needs of its citizens.
B 2. What is the difference between formal equality and substantive equality? (2)
Formal equality refers to sameness of treatment. This means that the law must treat individuals the same
regardless of their circumstances, because all persons are equal and the actual social and economic
differences between groups and individuals are not taken into account.
Substantive equality requires an examination of the actual social and economic conditions of groups and
individuals to determine whether the Constitution’s commitment to equality has been upheld. To achieve
substantive equality, the results and the effects of a particular rule (and not only its form) must be
considered.
B 3. What is a structural interdict and for which cases are they best suited? (2)
A structural interdict directs the violator to rectify the breach of fundamental rights under court supervision
and is particularly well suited to socio-economic rights cases.
B 4. What is the two-stage approach to the limitation of fundamental rights? (2)
The first stage involves rights analysis (determining whether a fundamental right has in fact been infringed)
and the second stage involves limitations analysis (determining whether the infringement, impairment or
limitation is in accordance with the Constitution).
B.5 Does a provision that allows all medical doctors (but not members of any other professions)
to do community service qualifies as a law of general application? (2)
The mere fact that a law differentiates between different professions does not mean that it is not a law of
general application. It would only fail the test if it was arbitrary.
B 6. Can an insurance company invoke the right to life? (2)
In applying sec 8(4), it is unlikely that a company can claim the right to life. This is so because the nature of
9
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