HFL1501 PORTFOLIO MEMO SEPTEMBER 2021 UNISA SUPER SEMESTER

PART 1 (25 marks) The origins of South African law Answer the following questions by making use ONLY of the study material in Part 1 of the Study Guide: QUESTION 1 1.1 Explain what is meant by the codification of a legal system. (3) 1.2 Is the South African legal system codified? Only answer YES / NO. (1) 1.3 Give the title of the following codifications of which you have learned in Part 1 of the Study Guide: (a) The codification of Roman law by the Visigoths. (1) (b) The most comprehensive medieval codification of classical canon law. (1) (c) The codification of French civil law in 1804. (1) [7] QUESTION 2 2.1 Explain how the repugnancy clause limited the application of indigenous African law. (1) 2.2 Which Act, promulgated in 1927, contained the repugnancy clause? (1) 2.3 Is the repugnancy clause still applicable today? (2) 2.4 What does the Constitution of the Republic of South Africa, 1996 say about the status of indigenous African law? (3) [7] 5 QUESTION 3 Answer the following questions regarding the activities of the Roman jurists during the Principate period: 3.1 Name two of the functions that the Roman jurists performed during this period. (2) 3.2 The work of the Five Great Roman jurists was important because it comprised two- thirds of the jurists’ writings that were codified in the Corpus Iuris Civilis. Name one of the Five Great Roman jurists. (1) [3] QUESTION 4 Name one difference between the study method of the glossators and that of the post- glossators. (2) [2] QUESTION 5 Answer the following questions regarding the reception of English law in South Africa after the promulgation of the First and Second Charters of Justice in 1828 and 1834: 5.1 Explain, in your own words, how the judiciary contributed to the reception of English law at the Cape in the years following the promulgation of the Charters of Justice. (1) 5.2 What was the name of the Cape court that replaced the Raad van Justitie? (1) [2] QUESTION 6 Answer the following questions regarding external legal historical events that impacted on the development of South African law: 6.1 Which world-renowned lawyer led a passive-resistance campaign against the pass laws by the Indian community in the Transvaal in 1906? (1) 6.2 Which event took place on 21 March 1960, in which the police killed sixty-nine protesters participating in a non-violent demonstration against the pass laws? (1) 6.3 Which historical document, adopted on 26 June 1955 at Kliptown in Soweto, articulated democratic principles inspired by the Universal Declaration of Human Rights, and has been regarded as the blueprint for a democratic South Africa? (1) [3] 6 QUESTION 7 Which approach to the principle of constitutionalism was followed by the 1983 Constitution of the Republic of South Africa? (1) [1] [Total Part 1: 25] PART 2 (40 marks) Historical foundations and development of the law of property and obligations QUESTION 8 8.1 Read the following statement and answer the question that follows: It is no longer correct to refer to the constitution currently in force in South Africa as the “Constitution of the Republic of South Africa Act 108 of 1996”. Explain why this statement is true. (1) 8.2 Explain, in your own words, how the Constitution guides the transformative constitutional project in South Africa. (2) [3] QUESTION 9 Answer the following questions regarding the law of property: 9.1 Explain, in your own words, the difference between the original and derivative modes of acquisition of ownership. (2) 9.2 Sibongile is the owner of a cow. She discovers that it has foot-and-mouth disease and decides to abandon the animal by the side of the road, because she does not want it to infect the rest of her herd. The next day, Florence walks by, sees that the cow is unaccompanied, and decides to take it home with her. Can Florence legally become the owner of the cow? Explain your answer. (3) 7 9.3 Explain, in your own words, what a limited real right is. Also provide one example of such a right. (3) 9.4 Read the media summary of the Supreme Court of Appeal (SCA) case of Sandvliet Boerdery (Pty) Ltd v Maria Mampies & another (107/2018) [2019] ZASCA 1001 that is included at the end of this exam question paper in Annexure A, and answer the questions below. These questions test your understanding of the contents of the entire Study Guide. It is not necessary to read the entire judgment, neither are you required to do any additional research on this case. Read only the media summary below. (a) In this case, the applicant (Sandvliet Boerdery (Pty) Ltd) argued that they did not have to allow the respondents access to the farm to bury their family members, because the Extension of Security of Tenure Act 62 of 1997 (ESTA) required that the deceased should have resided on the property in question before their death. The Supreme Court of Appeal (SCA) rejected this argument. Do you think the Court made the correct decision? Provide a reason for your answer, and base your answer on your understanding of the constitutional development of the law of property, as discussed in the Study Guide. (2) (b) Name three fundamental rights entrenched in Chapter 2 of the Constitution that the SCA protected with their decision in this judgment. (3) (c) In this case, the SCA ruled that the drafters of ESTA would not have intended to deprive the deceased of the right to be buried with her ancestors. Do you agree with the statement that the Court adhered to the principles of transformative constitutionalism? Provide a reason for your answer. (2) QUESTION 10 Answer the following questions regarding the law of contract: 10.1 Read the following scenarios and identify in each instance the cause of the supervening impossibility of performance: (a) Razia and Faiza agree that Faiza will bake Razia’s wedding cake. Razia pays the agreed-upon purchase price and Faiza agrees to deliver the cake to the reception hall on Friday morning. On Friday morning, Faiza carefully loads the cake into her vehicle and drives to the hall. On the way, Faiza’s vehicle is turned over by angry protestors, who were marching to the mayor’s office to protest against poor service delivery in their area. As a result of the incident, the wedding [15] 1 Hereinafter referred to as “the Sandvliet case”. 8 cake is completely destroyed. The cake took three days to complete and Faiza cannot bake another in time. (1) (b) Maria and Simon agree that Maria will purchase twenty dozen chicken eggs from Simon every month. She will pay the agreed-upon purchase price when she collects the eggs on the last Saturday of each month. On 31 July 2021, Maria arrives at Simon’s farm. Simon cannot sell Maria any eggs that day, because all his chickens had to be put down due to an avian flu outbreak in the area. (1) 10.2 Malperformance in terms of a contract can be due to fraud or negligence on the part of the debtor. Explain the Roman law test for negligence, which is still the basis for the modern South African “reasonable person test”. Answer in your own words and ensure that your answer does not exceed 200 words. (3) 10.3 Read the following scenarios and identify in each instance the type of contract being concluded by the parties. Write down only the name of the contract: (a) Jacobus is building a large braai area in his garden. He realises, too late, that he has not purchased enough cement. He goes over to his neighbour, Lebogang, who owns a construction company. Jacobus borrows a bag of cement and agrees to return another bag to her the following day. (1) (b) Jacobus returns to his building site with the cement. He realises that he has no way to transport from his garage to his building site all the materials that he needs to mix the cement and to build the brick structure. He returns to Lebogang and asks to borrow her wheelbarrow. Jacobus undertakes to clean the wheelbarrow and to return it to Lebogang that evening. (1) 10.4 Read the following scenario and answer the questions that follow: Alfred wishes to lay new carpeting in his home. He visits African Carpets Incorporated where the sales agent, Emily, assists him in selecting the perfect carpeting for his home. Alfred pays the purchase price, as well as the delivery and installation fees. Emily indicates that the installation will take place sometime during the next week. Two days after Alfred visited the showroom, Emily phones Alfred and informs him that African Carpets Incorporated’s warehouse and showroom burnt down during the night. The carpeting Alfred selected was the last stock they had of that specific design. Emily apologises and tells him that she is sorry to inform him of his loss. Alfred is confused by Emily’s statement and asks for a refund of the purchase price he paid two days earlier. Emily indicates that this is not possible, since Alfred is already the owner of the carpeting and that African Carpets Incorporated is not liable in any way. 9 (a) Alfred and African Carpets Incorporated did not conclude a written contract of purchase and sale. Is their sales agreement valid if it was concluded verbally? Explain your answer. (2) (b) Is African Carpets Incorporated correct in their opinion that Alfred became the owner of the carpeting when he left their showroom? Explain your answer. (3) 10.5 In your own words, explain your understanding of how the Constitution impacts the complex relationship between the concept of freedom of contract and the duty to act in good faith when contracting. (3) QUESTION 11 Answer the following questions on the law of delict: 11.1 Name two examples of Roman law delicts that no longer classify as delicts under modern South African law. (2) 11.2 Read the following scenario and answer the questions that follow: Two neighbours, Josephine and Mathapelo, attend church together every week. Josephine is in love with Mathapelo’s husband, Mahlodi, and she hatches a plan to cause a rift between husband and wife. After church one Sunday, Josephine asks Mathapelo about her affair with their other neighbour, Jackson. Mathapelo is surprised and confused, because she is not having an affair. Also, Josephine was speaking so loudly that most of the congregation heard her and are now gossiping about Mathapelo. Mathapelo decides that she will no longer put up with Josephine’s scheming and she visits an attorney to find out about the legal remedies available to her. (a) Which delict has Josephine committed? (1) (b) Mention the legal remedy available to Mathapelo and specify what she can claim. (2) 11.3 In your own words, explain the concept of vicarious liability. Also indicate how the Constitutional Court applied it in the case of iMvula Quality Protection (Pty) Ltd [2014] ZACC 4. (2) [7] [Total Part 2: 40] [15] 10 PART 3 (10 marks) The role of the Constitution in South African legal development QUESTION 12 Consider the Constitutional Court cases on the supremacy of the Constitution that are discussed in Part 3 of the HFL1501 Study Guide. In your opinion, which of these cases best describes the relationship between the Constitution and the common law? Provide a reason for your answer. (2) [2] QUESTION 13 In your own words, explain the relationship between transformative constitutionalism and the fundamental right to dignity. (3) [3] QUESTION 14 Describe, in your own words, how ubuntu has been expressed and applied in the Constitutional Court cases decided on the law of obligations, as discussed in Parts 2 and 3 of the HFL1501 Study Guide. Base your answer on your understanding of all aspects of the law of obligations discussed in the Study Guide. (5) [5] [Total Part 3: 10]