RRLLB81 Assignment 3 (ALL TOPICS DETAILED ANSWERS) Semester 1 2025 - DISTINCTION GUARANTEED

RRLLB81 Assignment 3 (ALL TOPICS DETAILED ANSWERS) Semester 1 2025 - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED Answers, guidelines, workings and references .... You are required to select one (1) topic from those listed and to base your both Assessment 2 and Assessment 3 for RRLLB81 on that same topic. You may not change topics once you have selected one. We are able to identify your specific assignment submissions and to verify that you keep to the same topic. The due dates and unique numbers for Assessment 2 and Assessment 3 will appear on the myUnisa module site for RRLLB81. Research topics: Department of Mercantile Law TOPIC ONE: INTELLECTUAL PROPERTY LAW THE INTERRELATIONSHIP WITH ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY Background The recent rapid advancement of technology is slowly being recognised as a gamechanger in human history. Generative technology in the form of Artificial Intelligence (AI) can now be used to perform a myriad of human functions ranging in difficulty and complexity. AI can now be used to create inventions and works that not only mimic but also rival human creations. The seamless integration of AI across diverse industries has sparked a paradigm shift in business and creative work processes. While these technological advancements present opportunities for innovation, cost effectiveness and efficiency, they simultaneously pose complex challenges in the realm of Intellectual Property Law. The intersection between AI and Intellectual Property manifests several problems in all areas of Intellectual Property, namely: Copyright, Trademark, Design and Patent laws. AI technology is now being used to create inventions and works autonomously, with minimum human input or creativity. Intellectual Property law has always been known an umbrella term to describe products of the human intellect. Thus, it is debatable whether works created from AI, with minimal or no human intellect, are subject to Intellectual Property protection, and whether current Intellectual Property laws allow for inventions and works created by AI to acquire Intellectual Property rights. Suggested reading material Books Dean O and Dyer A (eds), Introduction to Intellectual Property Law (OUP 2014) Ncube CB and others (eds), Artificial Intelligence and the Law in Africa (LexisNexis 2023) Cases Haupt v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA) MoneyWeb (Pty) Ltd v Media 24 Ltd [2016] 3 All SA 193 (GJ); 2016 (4) SA 591 (GJ) Legislation Copyright Act 98 of 1978 Patents Act 57 of 1978 Trade Marks Act 194 of 1993 Journal Articles Khan R and Gotora N, ‘One (Innovation) Flew over the Law’s Head: The Intersection of Artificial Intelligence and Copyright’ (2023) 11 South African Intellectual Property Law Review 72 Ncube CB and Oriakhogba DO, ‘Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspective’ (2018) 21 PELJ 1 Ndlovu L, ‘Enhancing the Value of Patents as Corporate Assets in South Africa: How Can Artificial Intelligence (AI) Assist?’ (2021) 24 PELJ 1 46 Other Sources of Interest Naruto v Slater 2016 WL 362231 Telstra Corporation v Phone Directories Co Pty (2010) FCA 11 102 PRIVATE LAW TOPIC 1: FAMILY LAW THE PROTECTION OF THE RIGHTS OF WOMEN IN CUSTOMARY MARRIAGES IN SOUTH AFRICA THROUGH THE RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998 Background The Recognition of Customary Marriages Act 120 of 1998 (RCMA) was introduced on 15 November 2000. The RCMA was promulgated not only to provide full recognition to customary marriages but also to provide spouses in customary marriages with equal status and capacity. However, 24 years later it is evident that the interventions in the RCMA do not protect women in customary marriages adequately. Critically evaluate the protection of women’s rights in terms of the Recognition of Customary Marriages Act 120 of 1998 and explain whether the Act adequately protects the rights of women in customary marriages in South Africa. Relevant aspects include the requirements for a customary marriage; the uncertainty regarding the proof of the validity of customary marriages; the lack of registration of customary marriages; the patrimonial consequences of customary marriages; divorce and its consequences. Suggested reading material Journal Articles Bakker P, ‘Gender Equality in Customary Marriages: Is the Deregulation of Customary Marriages the Solution?’ [2023] Acta Juridica 152 Johnson E, ‘The Active Role of South Africa’s Constitutional Court in Advancing Women’s Rights and Proprietary Interests in the Customary Law of Marriage’ [2023] Acta Juridica 46 Kovacks RJ, Ndashe S and Williams J, ‘Twelve Years Later: How the Recognition of Customary Marriages Act of 1998 is Failing Women in South Africa’ [2013] Acta Juridica 273 Books Rautenbach C, Introduction to Legal Pluralism in South Africa (6th edn, LexisNexis 2021) Cases Ramuhovhi v President of the Republic of South Africa 2018 (2) BCLR 217 (CC); 2018 (2) SA 1 (CC Sithole v Sithole 2021 (6) BCLR 597 (CC); 2021 (5) SA 34 (CC) Tsambo v Sengadi [2020] ZASCA 46 RRLLB81/103/2/2024 47 Legislation Recognition of Customary Marriages Act 120 of 1998 TOPIC 2: LAW OF PERSONS THE HISTORICAL POSITION AND RECENT DEVELOPMENTS REGARDING THE ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS BY SAME-SEX LIFE PARTNERS WHO HAVE CHILDREN VIA IN VITRO FERTILISATION Background Ayanda and Buhle are involved in a same-sex permanent life partnership. Ayanda and Buhle underwent in vitro fertilisation: Buhle’s ova (eggs) were fertilised with donor sperm, and the embryos were transferred to Ayanda’s uterus. A successful pregnancy resulted in the birth of twin boys, Zuko and Zukile. With reference to authority, discuss the historical position and recent developments regarding the acquisition of parental responsibilities and rights by same-sex life partners who have children via in vitro fertilisation. Also advise Ayanda and Buhle on the issue of their parental responsibilities and rights in respect of Zuko and Zukile. Additional Information Students should note that Heaton J, The South African Law of Persons (6th edn, LexisNexis 2021) refers to the position before the Constitutional Court decision in VJV v Minister of Social Development 2023 (10) BCLR 1250 (CC), 2023 (6) SA 87 (CC). However, as students are expected to discuss the historical position, it is important that they consult the textbook, as well as the repealed Children’s Status Act 82 of 1987. They should then indicate how the decision in VJV v Minister of Social Development 2023 (10) BCLR 1250 (CC), 2023 (6) SA 87 (CC) has affected the legal position. Suggested reading material Books Heaton J, The South African Law of Persons (6th edn, LexisNexis 2021) Journal Articles Louw A, ‘Lesbian Parentage and Known Donors: Where in the World are We?’ 2016 (133) SALJ 1 Legislation Children’s Act 38 of 2005 Children’s Status Act 82 of 1987 (repealed) Constitution of the Republic of South Africa, 1996 Cases J v Director-General, Department of Home Affairs 2003 (5) BCLR 463 (CC) VJV v Minister of Social Development 2023 (10) BCLR 1250 (CC); 2023 (6) SA 87 (CC) 48 TOPIC 3: LAW OF DELICT LITIGATION PERTAINING TO MINING: A DELICTUAL PERSPECTIVE Background Read the fictitious scenario below and answer the research question that follows: Scenario A mining site began operations in Kloof near Carletonville with the purpose of extracting and producing gold. The process of extraction concerns digging out large quantities of rock to access gold deposits. As part of the mining process, ore is mined and chemically processed to separate gold from unwanted materials. The processes involved in extracting gold deposits and chemically treating ore have resulted in airborne respirable dust and gases being released into the atmosphere, which encompasses the Kloof community, affecting its residents. Kloof community members were not forewarned of the plumes of smoke, dust and gases that would be polluting the air. Community members with underlying illnesses became severely ill with a lung disease called pneumoconiosis because of their exposure to airborne respirable dust. As a result, these community members cannot work and provide for their dependants. In addition, miners employed by the mining company have also fallen severely ill with pneumoconiosis despite wearing the necessary personal protection equipment for mining and following mining health and safety protocols. Similarly, to the affected Kloof residents, these ill miners are unable to work and provide for their families. REQUIRED: As a legal researcher, discuss how the Law of Delict may be applied to address human rights violations experienced by residents in mining communities, focusing on health risks from environmental pollution, physical hazards, and the socio-economic challenges associated with mining operations. In your research, refer to the relevant authority. NOTE TO STUDENTS: • In your research, you must identify the applicable human rights potentially violated. • Identify and apply the relevant common law remedy to the facts of the scenario. • Refer to relevant case law. • Lastly, you should give an opinion whether the community members of Kloof and the miners will be successful with the identified common law remedy. Suggested reading material Books Neethling J and Potgieter JM, Law of Delict (8th edn, LexisNexis 2020) Journal Articles Chauhan R, ‘Social Justice for Miners and Mining-Affected Communities: The Present and The Future’ (2018) Obiter 345 RRLLB81/103/2/2024 49 Legislation Constitution of the Republic of South Africa, 1996 Mine Health and Safety Act 29 of 1996 National Environmental Management Act 107 of 1998 Occupational Health and Safety Act 85 of 1993 Cases City of Johannesburg Metropolitan Municipality v Hlophe 2011 (6) SA 134 (CC); 2011 (12) BCLR 1225 (CC) Mankayi v AngloGold Ashanti Ltd 2011 (5) BCLR 453 (CC) Transnet Ltd t/a Metrorail v Witter 2008 (6) SA 549 (SCA); [2009] 1 All SA 164 (SCA) Criminal and Procedural Law TOPIC 1: CRIMINAL LAW A CRITICAL LEGAL PERSPECTICE ON UKUTHWALA AS A GENDER-BASED VIOLENT CRIME IN SOUTH AFRICA Background Section 9(1) of the Constitution guarantees everyone equality before the law and the right to equal protection and benefit of the law. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against anybody on the ground of, inter alia, race, gender religion and culture. Crimes have often been condoned in the past under the guise of culture. Physical violence is perpetrated daily between various individuals in different scenarios, including parental chastisement, gender-based violence and ukuthwala. The courts were granted the opportunity to adjudicate on various forms of physical violence before. Parental chastisement was declared unconstitutional in Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SACR 113 (CC) and gender-based violence was again recently condemned in AK v Minister of Police 2022 (11) BCLR 1307 (CC). Ukuthwala as a traditional practice under customary law has, however, not yet had the same extent of exposure from a criminal law point of view. The incorrect practice of ukuthwala reinforces gender inequality and constitutes serious gender-based crimes such as rape, kidnapping and child trafficking. The commission of these crimes violates various constitutional rights. South Africa’s constitutional dispensation continuously demands a re-evaluation of defences in criminal law. The concept of ‘consent’ should be evaluated against the constitutional rights to equality before the law and not be subjected to unfair discrimination on the ground of culture. The evaluation of the cultural defence of ukuthwala by the court in S v Jezile 2015 (2) SACR 452 (WCC), S v Osabiya (CC47/2019) [2021] ZAGPPHC 716 (21 October 2021) and, most recently, Mbhamali v S [2022] 1 All SA 488 (KZD) is a huge judicial advance in the fight against gender-based violence in South Africa. The Constitutional Court held in Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938; 2001 (10) BCLR 995 (CC) [62] that ‘few things can be more important to women than freedom from the threat of sexual violence’ and in Tshabalala v 50 S; Ntuli v S [2019] ZACC 48; 2020 (5) SA 1 (CC); 2020 (3) BCLR 307 (CC) [61] that ‘[h]ardly a day passes without any incident of gender-based violence being reported. This scourge has reached alarming proportions.’ These statements validate a critical analysis of the recent judgments on ukuthwala. Suggested reading material Cases Mbhamali v S 2021 (2) SACR 627 (KZD); [2022] 1 All SA 488 (KZD) S v Jezile 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA 201 (WCC) S v Osabiya (CC47/2019) [2021] ZAGPPHC 716 (21 October 2021) Books Burchell J, Principles of Criminal Law (5th edn, Juta 2016) Snyman CR, Snyman’s Criminal Law (updated by Hoctor SV, 7th edn, LexisNexis 2020) Journal Articles Mkhize G and Vilakazi F, ‘Rethinking Gender and Conduits of Control: A Feminist Review’ (2021) 35 Image & Text 1 Mwambene L and Mgidlana RH, ‘Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?’ (2021) 24 PELJ 1 Mwambene L and Sloth-Nielsen J, ‘Benign Accommodation? Ukuthwala, “Forced Marriage” and the South African Children's Act’ (2011) 11 AHRLJ 1 Legislation Children’s Act 38 of 2005 Constitution of the Republic of South Africa, 1996 Criminal Law (Sexual Offences and Related Matters Amendment Act) 32 of 2007 Online sources ‘Gender-Based Violence’ (UNHCR – The UN Refugee Agency) < accessed 16 August 2024 ‘What is Gender-Based Violence?’ (European Institute for Gender Equality, 17 May 2023) < accessed 16 August 2024 TOPIC 2: CRIMINAL LAW MINIMUM SENTENCES AND THE CRIME OF RAPE Background South African criminal courts are inundated with rape trials. In reaction to the high rate of serious crime, the legislature implemented sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 in terms of which minimum sentences are prescribed for RRLLB81/103/2/2024 51 various crimes. Since its passing, this so-called ‘minimum sentencing legislation’ has been the subject of academic debate. The Gauteng High Court in Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024), Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) and Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024) has recently considered the sentence of life imprisonment where the rape involved grievous bodily harm, the complainant was 14 years old at the time of the rape and the complainant was raped by an accused and a co-perpetrator. As part of the ongoing academic debate, these recent decisions implore critical academic analysis. Suggested reading material Legislation Constitution of the Republic of South Africa, 1996 Criminal Law Amendment Act 105 of 1997 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Books Burchell J, Principles of Criminal Law (5th edn, Juta 2016) Snyman CR, Snyman’s Criminal Law (updated by Hoctor SV, 7th edn, LexisNexis 2020) Journal Articles Schoeman M, ‘Recidivism: A Conceptual and Operational Conundrum’ (2010) Acta Criminologica 81 Terblanche SS, ‘Mandatory and Minimum Sentences: Considering s 51 of the Criminal Law Amendment Act 1997’ [2003] Acta Juridica 194 Terblanche SS, ‘Twenty Years of Constitutional Court Judgments: What Lessons are there about Sentencing?’ (2017) 20 PELJ 1 Cases Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024) Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024) 52 TOPIC 3: LAW OF EVIDENCE THE ADMISSIBILITY OF PHOTOGRAPHS AS EVIDENCE Background Photographs can either be seen as documentary or real evidence, depending on the purpose why they stand to be admitted as evidence in court and whether they are digital in nature. If they are viewed as real evidence, there are no special requirements for admissibility, but if they are seen as documentary evidence, legislation and possibly the common law determine their admissibility. Suggested reading material Cases Motata v Nair 2009 (1) SACR 263 (T) S v Brown 2016 (1) SACR 206 (WCC) S v Ndiki [2007] 2 All SA 185 (CK) Legislation Electronic Communications and Transactions Act 25 of 2002, Chapter III Books Schwikkard PJ and Mosaka TB, Principles of Evidence (5th edn, Juta 2023) Ch 21 Van der Merwe DP (managing ed), Information and Communications Technology Law (3rd edn, LexisNexis 2021) Ch 5 Journal Articles De Villiers DS, ‘Old “Documents”, “Video Tapes” and New “Data Messages” – A Functional Approach to the Law of Evidence’ (part 1) [2010] (3) TSAR 558 De Villiers DS, ‘Old “Documents”, “Video Tapes” and New “Data Messages” – A Functional Approach to the Law of Evidence’ (part 2) [2010] (4) TSAR 720 Hofman J, ‘Electronic Evidence in Criminal Cases’ (2006) SACJ 257 RRLLB81/103/2/2024 53 Public, Constitutional and International Law TOPIC 1: FUNDAMENTAL LAW THE PRINCIPLE OF LEGALITY IN THE SOUTH AFRICAN CONSTITUTION Background The Constitution of the Republic of South Africa, 1996 obliges all organs of state to act based on the enabling authority they possess deriving from the Constitution and/or piece of legislation. In other words, any act or conduct must be in terms of the empowering authority or legislation. Any act or conduct that is made without authority is deemed illegal and irrational. This principle of the Constitution is also supported by administrative law to ultimately, ensure the protection of human rights. Institutions supporting democracy such as the Public Protector, South African Human Rights Commission and the Auditor General must also act in terms of the powers establishing them as well as the Constitution. The importance of the principle of legality to the South African democracy underscores the rule of law and protection of human rights. In recent times, some conduct of government officials has been outside of the law, thus violating the principle of legality. Suggested reading material Books Currie I and De Waal J, The Bill of Rights Handbook (6th edn, Juta 2016) Hoexter C, Administrative Law in South Africa (Juta 2007) Woolman S and others, The Constitutional Law of South Africa, Vol 1 (2nd edn, Juta 2006) Legislation Constitution of the Republic of South Africa ,1996 Promotion of Administrative Justice Act 3 of 2000 Journal Articles Freedman W and Mzolo N, ‘The Principle of Legality and the Requirements of Lawfulness and Procedural Rationality: Law Society of South Africa v President of the RSA (2019 (3) SA 30 (CC))’ (2021) 42 Obiter 421 Konstant A, ‘Administrative Action, the Principle of Legality and Deference – The Case of Minister of Defence and Military Veterans v Motau’ (2015) 7 Constitutional Court Review 68 54 Jurisprudence TOPIC 1: LEGAL PHILOSOPHY THE SOUTH AFRICAN JUDICIAL JURISPRUDENCE OF GENDER EQUALITY IN RAPE Background South Africa has adopted a gender-centred approach in its rape judgments, since becoming a constitutional democracy in 1994. The recognition of unequal power relations in rape adjudication illustrates a gender-responsive judiciary towards equality, dignity, and privacy of persons. The common law definition of rape was understood as the unlawful and intentional sexual intercourse with a woman without her consent. This legal position was in effect for a long time in South Africa, even after 1994 when the Constitution took effect as the supreme law of the country. Even though there had been efforts to reform laws on rape, it was not until the Masiya decision that the law on rape conceptualised rape beyond vaginal penetration to also include anal rape. When the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 took effect, the scope of rape adopted a wider definition. Courts, in the furtherance of the purport and the spirit of the rights enshrined in the Constitution have since interpreted rape within its constitutional prescripts. This means giving effect to the various rights enshrined in the Constitution, including the right to equality, security, dignity and privacy of a person in the conceptualisation of rape. In light of this, rape is viewed as an instrument to exert control, infringing on the various rights of individuals. It is also a hate crime, particularly when it is committed against gender/sexual minorities. This demonstrates the complexity of rape and how gender relations function to create inequality in society. Suggested reading material Books Bonthuys E and Albertyn C, Gender, Law and Justice (2nd edn, Juta 2023) Snyman CR, Criminal Law (6th edn, LexisNexis 2014) Contribution to Book Naylor N, ‘The Politics of a Definition’ in Artz L and Smythe D (eds), Should we Consent? Rape Law Reform in South Africa (Juta 2007) Journal Articles Andrews P, ‘Violence Against Women in South Africa: The Role of Culture and the Limitations of the Law’ (1999) 8 Temple Political & Civil Rights L Rev 425 Bonthuys, E ‘Women’s Sexuality in the South African Constitutional Court Jordan v S 2002 (6) SA 642 (CC) also reported as 2002 (11) BCLR 1117 (CC)’ (2006) 14 Feminist Legal Studies 391 Spies A, ‘Perpetuating Harm: The Sentencing of Rape Offenders Under South African Law’ (2016) 133 SALJ 389 RRLLB81/103/2/2024 55 Legislation Constitution of the Republic of South Africa, 1996 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Cases Carmichele v Minister of Safety and Security [2001] 10 BCLR 995 (CC) Masiya v Director of Public Prosecutions Pretoria (The State) [2007] 8 BCLR 827 Tshabalala v The State; Ntuli v The State [2019] 2 SACR 38 (CC) THE REGULATION OF LABOUR BROKERS UNDER SOUTH AFRICAN LABOUR LAW Background Labour-broking, which is also known as temporary employment services (TES), exists in South Africa and is regulated by the Labour Relations Act 66 of 1995 (LRA) (as amended by the Labour Relations Amendment Act 6 of 2014). Labour broking creates a tripartite relationship between the labour broker, the client and the employee. A key characteristic of this relationship was the absence of a direct employment relationship between the labour broker and the employee, although the employee is paid by the labour broker. This normally created problems and at times it was unclear whether the labour broker or the client is the employer. Provide your own analysis of the law and determine whether the current arrangement between the parties resolved the issue of who is the employer. Suggested reading material Downloaded by Corona Virus () lOMoARcPSD| RRLLB81/103/1/2025 55 Books McGregor M and others, Labour Law Rules (2nd edn, Siber Ink CC 2014) Journal Articles Bosch C, ‘Contract as a Barrier to “Dismissal”: The Plight of the Labour Broker’s Employee’ (2008) 29 ILJ 813 Theron J, ‘The Shift to Services and Triangular Employment: Implications for Labour Market Reform’ (2008) 29 ILJ 1 Legislation Labour Relations Act 66 of 1995 Labour Relations Amendment Act 6 of 2014 Cases Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 2507 (CC) Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others 2018 (5) SA 323 (CC) TOPIC TWO: THE DOCTRINE OF CONSTRUCTIVE NOTICE Background The common-law doctrine of constructive notice provides that third parties dealing with a company are deemed to be fully acquainted with the contents of the public documents of the company. Section 19(4) of the Companies Act partly abolishes this doctrine. Thus, third parties contracting with a company will no longer be deemed to have had notice of the contents of the public documents of the company merely because the documents have been filed with the Companies and Intellectual Property Commission or are accessible for inspection at the office of the company. However, section 19(5) of the Companies Act provides for two exceptions. The fist exception is if a person is deemed to have knowledge of any provision of a company’s Memorandum of Incorporation in terms of section 15(2)(b) (relating to special conditions applicable to a company and additional requirements regarding their amendment). This is subject to the condition that the name of the company include the ending “RF” and the company’s Notice of Incorporation contain a prominent statement drawing attention to such a provision, as required by section 13(3). In other words, the doctrine of constructive notice still applies to “ring-fenced” companies. The second exception applies to a personal liability company. A person is also regarded to have received notice and to have knowledge of the effect of section 19(3) on a personal liability company. Section 19(3), in turn, provides that the directors and past directors of a Downloaded by Corona Virus () lOMoARcPSD| 56 personal liability company are jointly and severally liable, together with the company, for any debts and liabilities of the company contracted during their respective periods of office. Write a paper and provide your own opinion about this law. Books Cassim FHI (ed), Contemporary Company Law (3rd edn, Juta 2022) Denis D and Geach W (eds), Companies and other Business Structures - In South Africa (5th edn, Oxford University Press 2022) Journal Articles Olivier E, 'Section 19(5) (A) of the Companies Act 71 of 2008 : Enter a Positive Doctrine of Constructive Notice?' (2017) 38 Stell LR 614 McLennan JS, ' Time for the Final Abolition of the Ultra Vires and Constructive Notice Doctrines in Company Law' (1997) 9 SA Merc LJ 333 Legislation Companies Act 71 of 2008 Cases Tuckers Land and Development Corporation (Pty) Ltd v Perpellief 1978 (2) SA 11 (T) One Stop Financial Services (Pty) Ltd v Neffensaan Ontwikkelings (Pty) Ltd 2015 (4) SA 623 (WCC) Research topic: Department of Private Law TOPIC ONE: THE VESTING OF RIGHTS IN SUCCESSION Background Wills are an essential component of vesting rights in succession law. This means that a person is vested with a right to a property belonging to a testator. However, the vested right could be conditional or certain depending on circumstances. The concept of vested rights in succession law creates various dynamics that lead to confusion of who is the bearer of rights at a particular moment in time. The beneficiary would have a personal right to the vested property upon the death of the testator and not a real right. Even where the beneficiary has a vested right to unconditionally claim a benefit, does not entail that the beneficiary has complete ownership of the property. What happens if the will becomes void, are the rights affected in any way? Is the right to inherit undermined if ownership is not immediately vested Downloaded by Corona Virus () lOMoARcPSD| RRLLB81/103/1/2025 57 in the beneficiary? In the background, you may research this topic and provide your opinion about the categories of rights and how they affect ownership in the law of succession. Books Jamneck A and Rautenbach C (eds), The Law of Succession in South Africa (4th edn, Oxford University Press 2023) Journal Articles du Toit F, 'The Constitutional Reshaping of South Africa's Succession Laws' (2022) 14 J of Civil L Stud 367 Kerr AJ, 'The Constitution, the Bill of Rights, and the Law of Succession' (2006) Speculum Juris 1 Legislation Intestate Succession Act 81 of 1987 Wills Act 7 of 1953 Cases Harris v Assumed Administrator Estate MacGregor 1987 (3) SA 563 (A) De Leef Family Trust & Ors v CIR 1993 (3) SA 345 (A) TOPIC TWO: THE RIGHTS TO PROPERTY AND ACCESSION Background Accession in property law means that if one thing (an accessory) is attached to another thing (principal), then the owner of the principal becomes the owner of the formed single entity. This means that there is only one owner of the formed thing. The person who owns pillars and steel (accessory) used to build, loses ownership of the accessory even if the owner did not consent to the attachment of his things to the principal thing. This undermines the right to property of the owner of the accessory. There are serious concerns about the right to property and its enforcement. Research how forms of accession affect ownership and provide opinions whether they are compatible with the rights to property. Books Muller G and others, Silberberg and Schoemans the Law of Property (6th edn, LexisNexis 2019) Downloaded by Corona Virus () lOMoARcPSD| 58 Currie I and De Waal J, Bill of Rights – Handbook (6th edn, Juta 2013) Pope A and du Plessis E (eds), Principles of The Law of Property in South Africa (2nd edn, Oxford University Press 2021) Journal Articles Boggenpoel ZT, 'The Decision to Order Transfer of Encroached-upon Land: A Constitutional Analysis' 2013 THRHR 1 Knobel I, 'Accession of Movables to Land, South African Law and Dutch Law' 2012 CILSA 77 Legislation Constitution of South Africa, 1996 Cases Pocock v De Oliveira 2007 (2) SA 90 (W) MacDonald Ltd v Radin NO and Potchestroom Daries and Industrial Co Ltd 1915 AD 454 Research topics: Department of Criminal and Procedural Law TOPIC ONE: SIMILAR FACT EVIDENCE Background Similar facts evidence in law of evidence entails that when a party has behaved in a particular manner (immorally) previously and is accused of a similar conduct in the current proceedings, it can be deduced that the party is likely to have acted immorally again. This is generally tied to a party's (accused) character. Such evidence is usually irrelevant and inadmissible in court. However, such evidence can be admissible if it is found to be relevant. Do you think such evidence is important in helping the prosecution to prove the guilt of the accused beyond a reasonable doubt? Do you think similar fact evidence contribute to a fair trial? Provide you own opinions about why you think similar evidence is essential or irrelevant in criminal proceedings. Books Schwikkard PJ and others, Principles of Evidence (5th edn, Juta 2023) Journal Articles Schwikkard PJ, 'Evidence: Similar Fact Evidence' (2002) 15 SACJ 406 Downloaded by Corona Virus () lOMoARcPSD| RRLLB81/103/1/2025 59 Acorn AE, ' Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense' (1991) 11 Oxford Journal of Legal Studies 63 Legislation Criminal Procedure Act 56 of 1955 Cases Savoi v National Director of Public Prosecutions 2014 (5) SA 317 (CC) S v M 1995 (1) SACR 667 (BA) TOPIC TWO: IS A FIT OF RAGE THE SAME AS NON-PATHOLOGICAL CRIMINAL INCAPACITY Background Provocation is a legal defends in criminal proceedings. Upon a heated argument, words can be said that could lead one to erupt in anger. This may lead to violence, injury and murder. One may argue that provocation could lead one to lose self-control and lash out violently against someone even where one appreciates the wrongfulness of his or her conduct. Discuss with reference to the law whether one may rely on the defence of non-pathological criminal incapacity. In your discussion, elaborate on the evolution of the defence of nonpathological criminal incapacity; and whether the defence is indeed the same as sane automatism, considering the definitions of the elements of “act” and “criminal capacity”. Books Burchell J, Principles of criminal law (4th edn, Juta 1983) Snyman CR, Criminal law (5th edn, Lexis Nexis 2008) Journal Articles Hoctor S, 'Tracing the origins of the defence of non-pathological incapacity in South African criminal law' 2011 17(2) Fundamina 70 Louw R, 'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ 200 Legislation Criminal Procedure Act 56 of 1955 Cases S v Eadie 2002 (1) SACR 663 (SCA) S v Wiid 1990 (1) SACR 561 (A) Downloaded by Corona Virus () lOMoARcPSD| 60 Research topics: Department of Public, Constitutional and International Law TOPIC ONE: A CRITICAL ANALYSIS OF THE RIGHT TO HOUSING IN THE CONTEXT OF ILLEGAL OCCUPATION OF PRIVATE PROPERTY Numerous ‘eviction’ cases have been deliberated upon by the South African judiciary. However, to date there remains absolutely no clarity and certainty regarding the parameters of the executive’s obligation to provide housing in the context of persons who have occupied property owned by a private citizen. In fact, so important is the need to resolve this complex issue, that in August 2009, Mendukazi Monakali submitted a case to the African Commission on Human and Peoples’ Rights against the Republic of South Africa concerning the right of access to alternative housing in the face of imminent eviction. This case is significant for the fact that a central argument advanced by the complainants is that a proper interpretation of the Housing Integrated Development Plan reveals that that the municipality has no intention of planning for the housing needs of the complainants before 2025. Books Currie I and De Waal J, Bill of Rights – Handbook (6th edn, Juta 2013) Journal Articles Wilson S, 'Breaking the tie: Evictions from Private Land, Homelessness and a New Normality' (2009) 126 SALJ 270 Strydom J and Viljoen S, 'Unlawful occupation of inner-city buildings: A constitutional analysis of the rights and obligations involved' (2014) 17 PER 1207 Legislation Constitution of South Africa, 1996 Cases City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) TOPIC TWO: THE ROLE OF INTERNATIONAL LAW IN THE INTERPRETATION OF THE BILL OF RIGHTS Downloaded by Corona Virus () lOMoARcPSD| RRLLB81/103/1/2025 61 International law is connected to the South African Constitution. Thus, the interpreter of the Bill of Rights is compelled to consider international law when interpreting the Bill of Rights. This has made the Bill of Rights to be universally acceptable. This is more contextual interpretation of the Bill of Rights rather than textual. In other words, the Bill of Rights cannot be interpreted by only considering its text particularly where there is a conflict of rights. Determine whether international law contributes positively to the regime of fundamental rights. Determine this in relation to the right to equality in the Constitution. In other words, should the right to equality be interpreted positively to promote its fundamental nature. Books De Vos P and Freedman W (eds), South African Constitutional Law in Context (2nd edn, Oxford University Press 2022) Currie I and De Waal J, Bill of Rights – Handbook (6th edn, Juta 2013) Journal Articles Smith A, 'Equality Constitutional Adjudication in South Africa' (2014)2 AHRLJ 30 O'Regan K, 'The Right to Equality in the South African Constitution' (2013) 25 Columbia Journal of Gender & Law 110 Legislation Constitution of South Africa, 1996 Cases Brink v Kitshoff NO 1996 (4) SA 197 (CC) Hoffmann v South African Airways 2001 (1) SA 1 (CC) Research topics: Department of Jurisprudence TOPIC ONE: REFLECTIONS ON THE PROPERTY STATUS OF ANIMALS IN SOUTH AFRICAN LAW Background The suggested topic speaks to increased critique (both locally and internationally) on the legal classification of animals as objects or things, given their sentience. Several countries around the world have started to grant legal personhood to certain animals, and the recent decision Downloaded by Corona Virus () lOMoARcPSD| 62 by the Constitutional Court in National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2017 (4) BCLR 517 (CC) leaves ample room for critical engagement on the topic in South African law. Books Pickover M, Animal Rights in South Africa (Double Storey 2005) Singer P, Animal Liberation (4th ed, Harper Collins 2009) Wise SM, Rattling the Cage: Toward Legal Rights for Animals (Perseus 2000) Journal articles LPL4802 De Villiers JH, ‘Law and the Question of the Animal: A Critical Discussion of National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development’ LCP4801 2019 (136) SALJ 207 De Villiers JH, ‘Animal Rights Theory, Animal Welfarism and the “New Welfarist” Amalgamation: A Critical Perspective’ 2015 (2) SAPL 401 Case National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2017 (1) SACR 284 (CC) LME3701