RRLLB81 Assignment 2 (RESEARCH) Semester 1 2023 (558676)

This document contains workings, explanations and solutions to the RRLLB81 Assignment 2 (RESEARCH) Semester 1 2023. For assistance call or us on ................................................................. TOPIC 1: INSURANCE LAW THE INSURED’S DUTY TO TAKE REASONABLE PRECAUTIONS TO AVOID LOSS OR DAMAGE TO THE OBJECT OF RISK Research question One of the significant factors to be considered by insurers when assessing a risk, and their subsequent liability in terms of the contract, is the degree to which the insured’s own conduct causes, or may cause, the risk insured against. It is for this reason that most insurance providers place a duty on an insured to take reasonable precautions to avoid loss or damage to the object of risk. You have been assigned by the Insurance Ombudsman’s Office to write a research paper that critically analyse the meaning, ambit and effect of the insured’s duty to take reasonable precautions. Your paper should in detail distinguish the insured’s duty to take reasonable precautions from other legal concepts that may be confused with it. Also include examples to explain the duty to take reasonable precautions. Your research paper must contain your own critical analysis of the subject matter. The body of your paper should contain an integrated and focussed discussion of common law, case law, and legislation (as far as applicable). Background Most insurance policies contain a standard clause requiring an insured ‘to take all reasonable steps and precautions to prevent accidents or losses to the object of risk.’ This is because, in South Africa, the position is that loss caused by an insured's negligent conduct RRLLB81/103/1/2023 33 is included within the risk assumed by an insurer when issuing an insurance policy. An insurer, therefore, in including such a clause (the ‘reasonable precautions clause’) in a policy, tries to exclude liability for an insured's negligence. Even though it is common practice for insurers to include such clauses in their policies, it remains unsettled in our law exactly when an insurer is entitled to repudiate a claim based solely on the negligence of an insured in the context of such a clause. The enquiry becomes increasingly important in view of the rise of consumer protection to treat insureds fairly, and the amended Policy Holder Protection Rules of 2017 (the ‘amended PPRs’). Suggested reading material Cases Auto Protection Insurance Co Ltd v Hanmer-Strudwick 1964 (1) SA 349 (A) Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) Kliptown Clothing Industries (Pty) Ltd v Marine and Trade Insurance Co of SA Ltd 1961 (1) SA 103 (A) Parity Insurance Co Ltd v Marescia 1965 (3) SA 430 (A) Paterson v Aegis Insurance Co Ltd 1989 (3) SA 478 (C) Rouwkoop Caterers (Pty) Ltd v Incorporated General Insurance Ltd 1977 (3) SA 941 (C) S v Chretien 1981 (1) SA 1097 (A) Santam Ltd v CC Designing 1999 (4) SA 199 (C) Shooter t/a Shooter’s Fisheries v Incorporated General Insurance Ltd 1984 (4) SA 264 (A) Legislation Insurance Act 18 of 2017 Financial Sector Regulation Act 9 of 2017 Books Neethling J and Potgieter JM, Law of Delict (7th edn, Butterworths 2015) Reinecke MFB, Van Niekerk JP and Nienaber PM, General Principles of Insurance Law (Butterworths 2013) Snyman CR, Criminal Law (6th edn, LexisNexis 2014) Millard D and Kuschke B, Insurance law in South Africa (Wolters Kluwer 2018) Journal Articles Van Niekerk JP, ‘The Bloody Handed Homicidal Beneficiary and the Materialisation of the Life Insurance Risk’ (2009) 21 SA Merc LJ 126 Millard D, ‘The Infusion of Insurance with Fairness: Incorporation of the TCF into the Draft 34 Policyholder Protection Rules’ (2017) 20 Juta’s Insurance L Bulletin 1-19 (Discussion by Millard on TCF and Draft PPRs) Millard D, ‘Replacement of the Policyholder Protection Rules in terms of the Long-Term Insurance Act 52 of 1998 and the Short-Term Insurance Act 53 of 1998’ (2018) 21 Juta’s Insurance L Bulletin 2-5 (Discussion by Millard on the replacement of the PPRs) Millard D, ‘Financial Sector Regulation Act in force from 1 April” (2018) 21 Juta’s Insurance L Bulletin 1-2 (Discussion by Millard on the Financial Sector Regulation Act) Millard D, ‘Legislation: Insurance Act 18 of 2017’ (2018) 21 Juta’s Insurance L Bulletin 14 (Note by Millard on Legislation: Insurance Act 18 of 2017 at 14) TOPIC 2: BANKING LAW NATIONAL CREDIT ACT 34 OF 2005 AND REGULATIONS: PRE-AGREEMENT ASSESSMENT Background A credit provider who wants to enter into a credit agreement with a potential consumer has a statutory duty to conduct a pre-agreement assessment in terms of section 81(2) of the National Credit Act 34 of 2005 (“NCA”). Section 81(2) puts a duty on a credit provider to take reasonable steps to assess the creditworthiness of each consumer before entering into a credit agreement. A rather heavy-duty rests on the shoulders of a credit provider to determine the ability of a consumer to repay credit before approving an application for credit. When a credit provider needs to carry out its pre-agreement assessment obligation, section 82(1) of the NCA provides guidance for credit providers to determine for themselves the evaluative procedures and methods as sated in section 81(2). Despite guidance provided to credit providers, it is unfortunate that the current affordability assessment criteria still do not provide a detailed formula for calculation that a credit provider should utilize to determine the affordability of a potential consumer. The methodology of the table (the minimum expenses norm) in regulation 23A’s calculation seems to provide an inaccurate reflection of the percentage of a consumer’s living expenses. You are appointed by a credit provider to write a research paper in which you critically discuss all aspects of this affordability assessment duty placed on credit providers. Your paper should include a discussion of the following: (1) provide a focused discussion of relevant section/s and regulation/s of the NCA pertaining to the pre-agreement assessment duty placed on a credit provider; (2) point out any problems in the affordability assessment requirements: regulation 23A and (3) include a discussion on a credit provider’s complete defence in terms of section 81(4) that a credit provider may raise against a claim that the credit provider failed to conduct such an assessment and granted reckless credit. Your discussion must not include a discussion of the scope of the NCA, nor must you refer to the pre-agreement assessment duty which was present under any of the predecessors (Usury Act and Credit Agreements Act) to NCA. Your research paper must contain your own critical analysis and conclusion of the subject matter. Your research paper should also include reference to case law on the subject matter; and any scholarly journal law articles concerning this topic. RRLLB81/103/1/2023 35 Suggested reading material Case Law Absa Bank Ltd v COE Family Trust 2012 (3) SA 184 (WCC) Driskel v Maseko [2017] ZAFSHC 150 (21 August 2017) Ex Parte Ford 2009 (3) SA 376 (WCC) FirstRand Bank v Obeholster [2018] ZAGPPHC 522 (4 September 2019) Firstrand Bank Ltd v Olivier 2009 (3) SA 353 (SE) Horwood v Firstrand Bank Ltd 2011 ZAGPJHC 121 (21 September 2011) Molefe v Firstrand Bank Ltd [2018] ZAGPJHC 556 (11 October 2018) SA Taxi Securitisation (Pty) Ltd v Mbatha 2011 1 SA 310 (GSJ) Truworths Ltd v Minister of Trade and Industry 2018 3 SA 558 (WCC) Wesbank (a division of FirstRand Bank Ltd) v Papier 2011 (2) SA 395 (WCC) Books Kelly-Louw M and Stoop P, ‘Alternative Methods of Validating Unbanked Consumers’ Income and Assessing Their “Creditworthiness” and “Affordability” of Repayments’ in Van der Merwe D (ed), Magister – Essays vir/for Jannie Otto (LexisNexis 2020) 50 Kelly-Louw M and Stoop PN, Consumer Credit Regulation in South Africa (Juta 2012) Otto JM and Otto RL, The National Credit Act Explained (4th edn, 2016) Scholtz JW (ed), Guide to the National Credit Act (LexisNexis 2008) Journal Articles Kawazda H, ‘Remarks on Lending Reforms Ushered in by Regulation 23A of the Affordability Assessment Regulations’ (2018) 51 De Jure 163 Van Heerden CM and Steennot R, ‘Pre-Agreement Assessment as a Responsible Lending Tool in South Africa, the EU and Belgium: Part 1’ (2018) 21 PELJ 1 Van Heerden C and Beyers C, ‘Dynamic Affordability Assessment in the Context of the South African National Credit Act 34 of 2005’ (2016) J of Int Banking L & Regulation 446 Van Heerden C and Renke S, ‘Perspectives on the South African Responsible Lending Regime and the Duty to Conduct a Pre-Agreement Assessment as a Responsible Lending Practice’ (2015) 24 International Insolvency R 67 Articles concerning reckless credit Brits R, ‘The National Credit Act’s Remedies for Reckless Credit in the Mortgage Context’ (2018) 21 PELJ 1 36 Kelly-Louw M, ‘A Credit Provider's Complete Defence against a Consumer's Allegation of Reckless Lending’ (2014) 26 SA Merc LJ 24 Theses and Dissertations Renke S, ‘An Evaluation of Debt Prevention Measures in Terms of the National Credit Act 34 of 2005’ (LLD thesis, University of Pretoria 2012) Sibanda S, ‘An Analysis of the Affordability Assessment Regulations in Terms of the National Credit Act 34 of 2005’ (LLM dissertation, University of South Africa 2016) Legislation Constitution of the Republic of South Africa, 1996 National Credit Act 34 of 2005 National Credit Amendment Act 19 of 2014 Other Sources National Credit Regulator, ‘Affordability Assessment Guidelines’ (2013) September 1-6 < TOPIC 3: COMPANY LAW BUSINESS RESCUE Background The concept of judicial management of companies that were in distress proved to be a failure. This was owed largely to the limitation of how the rescue of the distressed company was to be secured. This prompted attempts to formulate a new concept that would facilitate the rehabilitation of a distressed company better. This led to the passing of the improved business rescue legislation. Initially, there were concerns that business rescue favoured creditors, and this meant that the rescue could be difficult to accomplish once creditors oppose the rescue plan. Of course, creditors must not be alienated during the rescue process because they are fundamental in ensuring that rescue is a success. In a sense, the interest of creditors and the company in distress must be balanced. Does business rescue legislation provide measures that enable this balancing act, and do creditors and the distressed company benefit from the legislation? Suggested reading material Articles Books Cassim FHI and others, Contemporary Company Law (Cassim FHI ed, 3rd edn, Juta 2021) RRLLB81/103/1/2023 37 Davies D and others, Companies and Other Business Structures (Davis D and Geach W eds, 5th edn, OUP 2021) Journal Articles Loubser A, ‘Tilting at Windmills? The Quest for an Effective Corporate Rescue Procedure in South African Law’ (2013) 25 SA Merc LJ 437 Nkoane P, ‘South African Business Rescue: Evaluating the Efficacy of Alterations of Creditors’ Contractual Agreements’ (2021) 22 Business L Intl 177 Case Law BP Southern Africa (Pty) Ltd v Intertrans Oil SA (Pty) Ltd 2017 (4) SA 592 (GJ) Chetty t/a Nationwide Electrical v Hart 2015 (6) SA 424 (SCA) Legislation Companies Act 71 of 2008 Companies Regulations in GN 351 GG 34239 of 26 April 2011 TOPIC 4: LABOUR LAW A CRITICAL EVALUATION OF THE IMPACT OF UNION SECURITY ARRANGEMENTS ON A MINORITY TRADE UNION AND ITS MEMBERS Background Union security arrangements are provided for in section 23 of the Constitution of the Republic of South Africa, 1996 and they refer to an ‘agency shop agreement’ and a ‘closed shop agreement’. An agency shop agreement is provided for in terms of section 25 of the Labour Relations Act 66 of 1995. This is an agreement between a representative/majority trade union and an employer or an employer’s organisation. In terms of an agency shop agreement, an employer is required to deduct an agreed agency fee from the wages of all employees identified in the agreement who are not members of the majority trade union but are eligible for membership. A closed shop agreement is provided for in terms of section 26 of the Labour Relations Act 66 of 1995. This is again an agreement between a representative/majority trade union and an employer or an employer’s organisation. This agreement requires all employees covered by the agreement to be members of the trade union. Please take note that for purposes of both agreements, a representative trade union means ‘a registered trade union or two or more registered trade unions acting jointly whose members are a majority of employees employed by the employer in a workplace or by members of an employers’ organisation in a sector or area in respect of which the agreement applies. 38 A majority trade union represents more than 50% of employees within the workplace and a minority trade union represents less. You are required to write a coherent and critical argument on the manner in which the law deals with the agency shop agreements and closed shop agreements and their impact on minority trade unions and their members. Suggested reading material Articles Albertyn C, ‘Closed Shop, Closed Mind’ (1994) 10(5) Employment Law 101 Budeli M, ‘Understanding the Right to Freedom of Association: Components and Scope’, (2010) 31 Obiter 16 Budeli M, ‘The Protection of Workers’ Right to Freedom of Association in International and Regional Human Rights Systems’ (2009) 42 De Jure 136 Kruger J and Tshoose CI, ‘The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective’ (2013) 16 PELJ 285 Book Rautenbach F, ‘Set the Workers Free: Why Deregulation Will Solve South Africa’s Labour Problems’ (Labour Dynamics 1993) Case Law Greathead v SACCAWU (2001) 22 ILJ 595 (SCA) Great North Transport v TAWU (1998) 4 BALR 470 IMSSA National Manufactured Fibres Employers’ Association v Bikwani [1999] 10 BLLR 1076 (LC) Solidarity v Minister of Public Service and Administration [2004] 6 BLLR 593 (LC) Legislation Constitution of the Republic of South Africa, 1996 Labour Relations Act 66 of 1995 International Conventions ILO Convention 87 on Freedom of Association and Protection of the Right to Organise of 1948 ILO Convention 98 on the Right to Organise and Collective Bargaining of 1949 RRLLB81/103/1/2023 39 PRIVATE LAW TOPIC 1: FAMILY LAW THE EFFECT OF GUMEDE V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 2009 (3) BCLR 243 (CC), 2009 (3) SA 152 (CC) ON PATRIMONIAL CONSEQUENCES OF MARRIAGES Background Critically discuss both the effect that the decision of the Constitutional Court in Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC), 2009 (3) SA 152 (CC) had on the patrimonial consequences of customary marriages and the possible effect that it might in future have on the patrimonial consequences of civil marriages. Suggested reading material Articles Bekker J and Van Niekerk G ‘Gumede v President of the Republic of South Africa: Harmonisation, or the creation of new marriage laws in South Africa?’ (2009) 24 SAPL 206 Heaton J, ‘Striving for Substantive Gender Equality in Family Law: Selected Issues’ (2005) 21 SAJHR 547 Ntlokwana N, ‘Customary Marriage and the Law: Gumede v The President of South Africa and 6 Others, Women's Legal Centre as amicus curiae (unreported case 4225/2006, 13-6-2008) High Court, Durban and Coast Local Division, Theron J’ [2008] Oct De Rebus 40 Van Niekerk C and Mwambene L, ‘The Gumede Judgment: Another Lost Opportunity to Develop Customary Law and Protect Women’s Rights?’ 2009 (23)1 Speculum Juris 86 Van Schalkwyk LN, ‘Gumede v President of the Republic of South Africa 2009 (3) SA 152 (KH) 2010 (43) De Jure 176 Books Heaton J and Kruger H, South African Family Law (4th edn, Butterworths 2015) – or any older edition or any other Family Law textbook Case Law Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC), 2009 (3) SA 152 (CC) Legislation Divorce Act 70 of 1979 Matrimonial Property Act 88 of 1984 Recognition of Customary Marriages Act 120 of 1998 40 TOPIC 2: LAW OF SUCCESSION THE CURRENT POSITION OF FREEDOM OF TESTATION IN SOUTH AFRICA Background The South African law of succession affords a testator a very wide freedom of testation. This means that a testator has the right to dispose of his or her assets as he or she pleases. The testator may leave his or her estate to his or her family, may disinherit them entirely in favour of his or her romantic partner or a stranger, or may leave the estate to a charity or welfare organisation of his or her choice. This principle is known as freedom of testation. However, the testator’s freedom of testation is not absolute, but may be limited by common law, statute law and, more recently, by the Constitution of the Republic of South Africa, 1996. This means that a provision in a will may not be enforced by the courts if it is contra bonos mores, impossible or too vague, in conflict with the law, or deemed to be unconstitutional. NB: The research should include a historical background, the limitations of freedom of testation, a review of books, journal articles, legislation and case law. A brief historical overview of the current South African law on freedom of testation and the impact of the Constitution on freedom of testation. Suggested reading material Books Currie I and De Waal J, The Bill of Rights Handbook (6th edn, Juta 2013) Du Toit F, ‘Succession Law in South Africa – A Historical Perspective’ in Reid KGC, De Waal MJ and Zimmermann R (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (Edinburgh University Press 2007) 67 Jamneck J, Rautenbach C (eds), Paleker M, Van der Linde A, Wood-Bodley M, The Law of Succession in South Africa (3rd edn, OUP 2017) Articles Du Toit F, ‘The Limits Imposed upon Freedom of Testation by the Boni Mores: Lessons from Common Law and Civil Law (Continental) Legal Systems’ (2000) 11 Stell LR 358 Modiri JM, ‘Race as/and the Trace of the Ghost: Jurisprudential Escapism, Horizontal Anxiety and the Right to be Racist in BOE Trust Limited’ (2013) 16 PELJ 582 Cases Curators, Emma Smith Educational Fund v University of Kwazulu-Natal 2010 (6) SA 518 (SCA) Ex parte BOE Trust Ltd 2009 (6) SA 470 (WCC) Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C) Legislation Constitution of the Republic of South Africa, 1996 RRLLB81/103/1/2023 41 TOPIC 3: UNJUSTIFIED ENRICHMENT Background Anand has concluded a contract with Bheki in terms of which Bheki must paint the exterior of the house that Anand occupies. Anand is in fact looking after the house for Charles, who is overseas for an extended period. Anand promises to pay Bheki R40 000 when the work is done. Bheki completes the work thinking that the house belongs to Anand, but Anand absconds without paying the contract price to Bheki. Discuss whether Bheki has a claim against Charles, explain in full which action would be used, how the claim should be quantified and any defences that Charles may raise against the claim by Bheki. Suggested reading material Books Du Plessis JE, The South African Law of Unjustified Enrichment (Juta 2012) Sonnekus JC, Unjustified Enrichment in South African Law (Rhoodie JE tr, LexisNexis 2017) Visser DP, Unjustified Enrichment (Juta 2008) Case Law ABSA Bank t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) Brooklyn House Furnishers v Knoetze & Sons 1979 (3) SA 264 (A) Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A) Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 653 (T) Hubby s Investments (Pty) Ltd v Lifetime Properties (Pty) Ltd 1998 (1) SA 289 (W) Knoll v SA Flooring Industries Ltd 1951 (1) SA 404 (T) New Club Garage v Milborrow & Son 1931 GWL 86 Williams’ Estate v Molenschoot & Schep (Pty) Ltd 1939 CPD 360 42 TOPIC 4: CONTRACT LAW GOOD FAITH AND FAIRNESS IN THE LAW OF CONTRACT Background Contract Law has always revolved around the concept of pacta sunt servanda, the concept which is synonymous to the theory of holding people to their word. This entails that once a contracting party agrees to the terms of the contract, the party cannot escape liability on the grounds that the terms are unfair and that the contracting party would not have agreed to the terms if the party fully understood them. This creates a dilemma in contracts of adhesion (standard contracts) where terms could be written in fine lines and in language that is difficult to understand. Of course, it is unfair to compel a person to perform a task that is difficult, and it appears the person has not agreed to that task. Equally, it is unfair to allow a contracting party to escape liability on the grounds that the party failed to understand the terms where he/she could have sought advice or taken other steps to ensure that he/she understands before signing, particularly if the other party will suffer damage. Does the concept of fairness have a role to play in such cases considering that the courts focus on whether the terms are reasonable and in line with public policy? Suggested reading material Books Hutchison D and others, The Law of Contract in South Africa (Hutchison D and Pretorius C eds, 4th edn, OUP 2022) Van Huyssteen LF and others, Contract: General Principles (6th edn, Juta 2020) Journal Articles Brand FDJ, ‘The Role of Good Faith, Equity and Fairness in the South African Law of Contract: The Influence of the Common Law and the Constitution’ (2009) 126 SALJ 71 Davis DM, ‘Developing the Common Law of Contract in the Light of Poverty and Illiteracy: The Challenge of the Constitution’ (2011) 22 Stell LR 845 Case Law Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 (5) SA 247 (CC) Barkhuizen v Napier 2007 (5) SA 323 (CC) Legislation Consumer Protection Act 68 of 2008 RRLLB81/103/1/2023 43 CRIMINAL AND PROCEDURAL LAW TOPIC 1: CRIMINAL PROCEDURE THE USE OF FORCE WHEN EFFECTING ARREST IN THE CONTEXT OF SECTION 49 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977, AND THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 Background After the commission of an alleged criminal offence, the suspect must be brought before a court of law to face the charges against them. There are various ways of bringing the suspect before the courts to face the law, one of which is arrest. Where a suspect resists attempts to arrest them peacefully, the arrestor (either members of the police or private persons) might be compelled by circumstances to use force to bring them to book. The amount of force required to bring a suspect into custody ranges from benign to minimum to lethal. The latter might entail an amount of violence which results in the killing or maiming of a suspect. The following considerations must always be kept in mind in any discussion relating to the use of force when arresting a suspect: (1) The use of force to effect arrest is regulated by section 49 of the Criminal Procedure Act (hereinafter, the CPA) 51 of 1977; (2) In terms of section 39 of the CPA, the police (or any person empowered thereto) are permitted to bring a suspect before court by way of arrest. Arrest is regarded as one of the most extreme methods of bringing a suspect before court. In the same vein, the deprivation of liberty is generally considered as ‘prima facie unlawful’ (see in this regard Dlamini v Minister of Safety and Security 2016 (2) SACR 655 (GJ); Minister of Justice v Hofmeyr 1993 (3) SA 131 (A); (3) The primary purpose of arrest is to bring the suspect before court. Thus, arrest may not be used as a means to punish a suspect, or to achieve any other purpose beyond brining the suspect before a court of law; (4) The provisions of section 49 are applicable, not only to members of the police performing their ordinary duties, but to private individuals as well; (5) The Constitution accords the following rights which are worth considering in the context of this discussion: (a) The right to a fair trial, which includes the right to be presumed innocent (s 35 (3) (h); (b) The right to life (s 11); and (c) The right to freedom and security of the person, which includes the right not to be exposed to any private or public violence (s 12 (1) (c) – (e)). The facts A is the owner of a bakery business known as Lunch Box Bakery. One evening he receives a report from his watchman that his business premises have been broken into. Upon arrival 44 at the premises he notices that entry into the building was gained through a hole in the roof of the building, and that the perpetrators are still inside the building. Afraid to go in, he opens the door of the building from outside, and peers through the door. He sees the silhouette of the suspect (B) walking about one of the rooms, and orders him to come out. However, the suspect runs quickly past him (A) at the door, and out of the building. A tries to run after B (a much younger and faster young man) but realizes that the suspect (B) is too fast for him. A thereupon fires two warning shots in the air and orders B to stop, but the B continues to make the run away from him. As the suspect is about to run around the corner of the building, A fires two more shots at the suspect’s legs to stop his advance. The suspect is fatally wounded by the shots, and dies at the scene from his wounds. The issues before the court The use of force to effect arrest or to bring an accused before a court is one of the most extreme measures countenanced by our law. In the same vein, the use of lethal force can and must be used in a limited number of circumstances to bring a suspect to book. In respect of the facts above, A used his firearm in order to try and apprehend B, who had allegedly broken into his bakery. What the court needs to determine in this regard are: (1) The protection of the right to life in the context of section 49; (2) The protection of the right to freedom and security of the person, which includes the right not to be exposed to any private or public violence in the context of section 49; (3) The constitutionality of section 49 (2) in the general scheme of the Bill of Rights; and (4) The application of the provisions of section 49 (2) to the facts at hand; that is, whether A can claim the protections accorded by section 49 for his actions. Suggested reading material Legislation Criminal Procedure Act 51 of 1977 Constitution of the Republic of South Africa, 1996 Books Ally D, An Introduction to the Law of Criminal Procedure and Selected Topics on the Law of Evidence (Juta 2009) Ally D and Mokoena MT, The Basic Guide to Criminal Procedure; A Rights-Based Approach (Juta 2013) Joubert C, Applied Law for Police Officials (5th edn, Juta 2018) Joubert JJ (ed) and others, Criminal Procedure Handbook (13th edn, Juta 2020) RRLLB81/103/1/2023 45 Theophilopoulos C (ed) and others, Criminal Procedure in South Africa (OUP 2020) Case Law Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) Govender v Minister of Safety and Security 2001 (2) SACR 197 (SCA); 2001 (4) SA 273 (SCA) Matlou v Makhubedu 1978 (1) SA 946 (A) Mazeka v Minister of Justice 1956 (1) SA 312 (A) Raloso v Wilson 1998 (2) SACR 298 (NC); 1998 (4) SA 369 (NC); 1998 (1) BCLR 26 (NC) S v Makwanyane 1995 (2) SACR 1 (CC); 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) S v Martin 2001 (2) SACR 271 (C) S v Martinus 1990 (2) SACR 568 (A) TOPIC 2: LAW OF EVIDENCE CRITICALLY EXPLAIN WHETHER YOU AGREE WITH THE PRINCIPLE THAT EXTRA- CURIAL STATEMENTS BY A NON-TESTIFYING ACCUSED SHOULD BE INADMISSIBLE EVIDENCE AGAINST A CO-ACCUSED Background Essentially, students must critically discuss the relationship between section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 and the right to confrontation embodied in section 35(3)(i) of the Constitution with reference to admissions and confessions. It is necessary to explain whether the dangers in admitting hearsay evidence can be overcome by a court’s discretionary power to admit hearsay in the interest of justice. Students must necessarily also provide a proper perspective as far as section 35(5)(3)(i) of the Constitution is concerned and explain the possible influence of this section on the law as far as the admissibility of hearsay is concerned. It is further important to give an exposition of the common law position on the admissibility of extra-curial statements by a nontestifying accused. Students must necessarily refer to the opinions of different writers on the topic to substantiate their own points of view on the relevant issues. Suggested reading material Legislation Constitution of the Republic of South Africa, 1996 Law of Evidence Amendment Act 45 of 1988 Cases Davids v S 2015 (6) SA 310 (SCA) Khanye v S [2017] ZACC 29; 2017 (11) BCLR 1399 (CC); 2017 (2) SACR 630 (CC) 46 Libazi v S 2010 (2) SACR 233 (SCA); [2011] 1 All SA 246 (SCA) Litako v S [2014] 3 All SA 138 (SCA); 2014 (2) SACR 431 (SCA); 2015 (3) SA 287 (SCA) Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC) S v Mangena 2012 (2) SACR 170 (GSJ) S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC); 2008 (2) SACR 76 (CC); 2008 (5) BCLR 451 (CC) S v Ndhlovu 2002 (2) SACR 325 (SCA) Tarr v S 2019 (1) BCLR 151 (CC) Books Du Toit E and others, Commentary on the Criminal Procedure Act (Revision Service 64, Juta 2020) (see Chapter 24) Schwikkard PJ and Van der Merwe SE, Principles of Evidence (4th edn, Juta 2016) (see Chapter 13) Zeffertt DT and Paizes AP, The South African Law of Evidence (3rd edn, LexisNexis 2017) (see Chapter 16) Articles Whatney M ‘The Clock Turned Back for the Admissibility of Extra Curial Hearsay Admissions Against a Co-Accused in Criminal Cases’ [2014] TSAR 855 TOPIC 3: CRIMINAL LAW THE EFFECT OF THE EXPANSION OF THE DEFINITION OF RAPE Background The common-law definition of rape was rather limited. Rape only occurred when specific acts were committed on a woman. Legislation was passed to expand the definition of rape. How does this new definition affect both men and women, whether they are the perpetrators or victims of the crime? You can contrast the common-law and statutory definitions of rape and provide your own opinion whether the expansion of the definition of rape was necessary or unnecessary, particularly in an evolving society. In this regard, the history of rape provides a background of why it is necessary to punish the crime of rape and whether expansion of the definition accords with societal progression. RRLLB81/103/1/2023 47 Suggested reading material Journal Articles Snyman CR, ‘Extending the Scope of Rape – A Dangerous Precedent’ (2007) 124 SALJ 677 Phelps K and Kazee SI ‘The Constitutional Court Gets Anal about Rape — Gender Neutrality and the Principle of Legality in Masiya v DPP’ (2007) 20 SACJ 341 Books Burchell J, Principles of Criminal Law (5th edn, Juta 2016) Snyman CR, Criminal Law (6th edn, LexisNexis 2014) or Hoctor SV, Snyman’s Criminal Law (7th edn, LexisNexis 2020) Case Law Masiya v DPP 2007 (5) SA 30 (CC) Tshabalala v S; Ntuli v S 2020 (5) SA 1 (CC) Legislation Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Criminal Procedure Act 51 of 1977 PUBLIC, CONSTITUTIONAL AND INTERNATIONAL LAW TOPIC 1: CUSTOMARY LAW THE ROLE OF AFRICAN CUSTOMARY LAW IN DETERMINING BURIAL DISPUTES Background For centuries, regulation of customary law fell outside the scope of legal recognition. This has largely been so because, under colonialism and apartheid, customary law was regarded as against public policy and the rules of natural justice. Marriages were not recognised as marriages, but rather as customary unions. The apartheid regime, in a manner similar to that of its colonial counterpart, frowned upon the conclusion of polygynous marriages, because its tradition recognised only monogamous marriages, for example. Today, the Recognition of Customary Marriages Act affords legal recognition to polygynous marriages, even to those concluded before the Act was enacted. However, there is an important issue on which the Act is silent, and which continues to cause disputes among communities. This issue pertains to who has the right to bury a deceased person if he or she was married at the time of his or her death. The right to bury can cause conflicts between the surviving spouse and the family of the deceased, with each alleging that they have the right to undertake the burial. In Thembisile v Thembisile 2002 (2) SA 269 (T), in the early years of the Constitution, the court was required to decide on this issue. The court opted to settle the dispute based on the rule of primogeniture, arguing that the heir of the deceased – or his eldest son – makes the decision as to burial rights. This issue recently returned to the courts in the form of a burial dispute that caught the attention of the public due to the deceased being a public figure (Mr Jabulani Tsambo, popularly known as Hip Hop Pantsula. Thus, the nation, including the 48 government of South Africa, had an interest in his burial (Sengadi v Tsambo 2019 (4) SA 50 (GJ)). Suggested readings Cases Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC) Ramuhovhi v President of the Republic of South Africa 2018 (2) SA 1 (CC) Thembisile v Thembisile 2002 (2) SA 269 (T) Books Lugard FD, The Dual Mandate in British Tropical Africa (Blackwood 1929) Mann K and Roberts RL, Law in Colonial Africa (Heinemann 1991) Articles Bonthuys E and Sibanda S, ‘“Till Death Us Do Part”: Thembisile v Thembisile’ (2003) 120 SALJ 784 Jansen R-M, ‘Multiple Marriages, Burial Rights and the Role of Lobolo at the Dissolution of the Marriage’ (2003) 28(1) TRW 120 Ndima DD, ‘The African Law of the 21st Century in South Africa’ (2003) 36 CILSA 325 TOPIC 2: THE PROS AND CONS OF CONSTITUTIONALISM / TRANSFORMATIVE CONSTITUTIONALISM Background South African has been under constitutional democracy for several years now. This mode of governance affects the law. This implies that the theory of constitutionalism has great impact on society in general. Thus, one has to understand what the theory of constitutionalism entails and how it affects the law. Of course, any theory of law has to be formulated to benefit the people it governs, whether in limiting certain acts or providing freedoms to individuals within a society. From this backdrop, what does constitutionalism bring to society, particularly the advancement of the law? Do you think constitutionalism can be used in a limited manner where a large part of the population does not benefit? You are expected to construct your own understanding of the theory of constitutionalism. You may want to explain how this theory benefits the application of the rules of law or limits the application of the rules of law for the benefit of society. RRLLB81/103/1/2023 49 Suggested reading material Books Rautenbach IM and Venter R, Constitutional Law (7th edn, LexisNexis 2020) De Vos P and others, South African Constitutional Law In Context (De Vos P and Freedman W eds, 2nd edn, OUP 2022) Case Law S v Makwanyane 1995 (3) SA 391 (CC) Du Plessis v De Klerk 1996 (3) SA 850 (CC) Journal Articles Langa P, ‘Transformative Constitutionalism’ (2006) 17 Stell LR 351 Rosa S, ‘Transformative Constitutionalism in a Democratic Developmental State’ 2011 (22) Stell LR 542 Legislation Constitution of the Republic of South Africa, 1996 JURISPRUDENCE TOPIC 1 LIABILITY ISSUES WITH REGARDS TO THE LIFE ESIDIMENI TRAGEDY IN SOUTH AFRICAN MENTAL HEALTH CARE LAW Background The Life Healthcare Esidimeni Scandal involved the deaths of 143 people at psychiatric facilities in the Gauteng province of South Africa from causes including starvation and neglect. It is named for Life Esidimeni, the private healthcare provider from which patients were removed by the state. The incident has been called ‘the greatest cause of human rights violation’ in democratic South Africa. The Gauteng Executive Council has managed to pay Life Esidimeni families their R1.2 million compensation ahead of the set deadline. All payments were concluded by June 13, before the deadline of June 19 set by retired deputy chief justice Dikgang Moseneke who was chairing the arbitration. ‘The office of the premier paid a total sum of R159,460,000.00 to all the 134 claimants who were part of the Alternative Dispute Resolution Process,’ the office of the Gauteng Premier David Makhura said. In March, the arbitration awarded survivors and families of those who had died R1-million in constitutional damages and R200,000 in damages for emotional suffering and funeral expenses. During the arbitration, it emerged that patients died of cold and hunger, dehydration and general lack of care. The 50 sick spent three months in facilities that had no trained staff nor funds to cater for them. The homes also had inadequate facilities and many patients without medical records. The State's argument that relatives of deceased Life Esidimeni psychiatric patients should not be allowed to qualify for Constitutional damages is ‘incredible’, former deputy chief justice Dikgang Moseneke said. Suggested reading material Arbitration Report Journal Articles Durojaye E and Agaba DK, ‘Contribution of the Health Ombud to Accountability: The Life Esidimeni Tragedy in South Africa’ (2018) 20(2) Health Hum Right 161 McQuoid-Mason DJ, ‘Life Esidimeni Deaths: Can the Former MEC for Health and Public Health Officials Escape Liability for the Deaths of the Mental-Health Patients on the Basis of Obedience to ‘Superior Orders’ or Because the Officials under Them Were Negligent?’ (2018) 11(1) SAJBL 5 Zitzke E, ‘The Life Esidimeni Arbitration: Towards Transformative Constitutional Damages?’ [2020] TSAR 419 TOPIC 2 STRIKES IN PUBLIC HEALTHCARE, AN ESSENTIAL SERVICE: BALANCING THE RIGHT TO STRIKE BY PUBLIC HEALTHCARE WORKERS, AGAINST OTHER FUNDAMENTAL HUMAN RIGHTS Background The right to strike is a fundamental right entrenched in section 23 of the Bill of Rights of the Constitution, 1996. Accordingly, every worker has the constitutional right to strike, which, in turn, allows for the central right of a worker, to collectively bargain. However, there are limitations placed on the right to strike by section 36 of the Constitution, 1996 and, where essential service workers are concerned, by the Labour Relations Act 66 of 1995. Strikes in the public healthcare sector, at times, result in healthcare personnel being attacked and healthcare facilities being damaged or destroyed. In addition, there have been reported incidents of patients being prevented from accessing much needed healthcare services during the strike action, which has had a serious impact on the wellbeing of the most vulnerable populations in our country. In your research paper you should analyse and critically discuss the right to strike by public healthcare workers as essential service workers, including, balancing the rights of healthcare workers’ rights to strike, against the rights of healthcare personnel and patients. Your discussion should focus on: 1. The right to strike by public healthcare workers, as essential service workers. 2. The limitations placed on the right to strike by section 36 of the Constitution, 1996. RRLLB81/103/1/2023 51 3. The limitations placed on public healthcare workers as essential service workers, as so defined in the Labour Relations Act 66 of 1995. 4. The right to strike by public healthcare workers against other fundamental human rights, in specific, the rights of patients and healthcare personnel. Suggested reading material Legislation Constitution of the Republic of South Africa, 1996 Labour Relations Act 66 of 1995 Journal Article McQuoid-Mason DJ, ‘What Should Doctors and Healthcare Staff Do When Industrial Action Jeopardises the Lives and Health of Patients?’ (2018) 108 SA Medical J 634 Dissertation Mvelase Z, ‘Balancing the Right to Strike by Public Health Care Workers against the Right of Patients: Lessons from Abroad’ (LLM mini dissertation, University of KwaZulu-Natal 2022) TOPIC 3 A LEGAL ANALYSIS OF THE INTERNATIONAL TRANSFER OF HEALTH DATA DURING A PANDEMIC Background COVID-19 is a global pandemic that requires a global response, with a clear need for African involvement. Meaningful participation in global initiatives supports local knowledge-based opportunities for African researchers, builds local capacity and brings research in-house. However, the historical exploitation of vulnerable population groups within South Africa (SA) have given rise to legitimate ethical concerns including mistrust by communities when international transfers of samples and data are contemplated. Historical, cultural and ethical considerations have informed the development of regulations that apply to health research in many African jurisdictions. On 1 July 2020, SA’s Protection of Personal Information Act 4 of 2013 (POPIA) came into force, during an exponential rise of COVID-19 cases. Amid this evolving regulatory landscape, it is unclear what impact the South African regulatory framework will have on international sample and data sharing for health research purposes. Suggested reading material Journal Article Mahomed S and Staunton C, ‘Ethico-Legal Analysis of International Sample and Data Sharing for Genomic Research During COVID-19: A South African Perspective’ (2021) Special Issue 1 Biolaw Journal-Rivista Di Biodiritto 261 52 Legislation National Health Act 61 of 2003 Protection of Personal Information Act 4 of 2013 Regulations GN 719 of 20 July 2018: Material Transfer Agreement of Human Biological Materials GG 41781 Regulations under Chapter 8 of the National Health Act 61 of 2003 Other Pope A (ed), Ethics in Health Research: Principles, Processes and Structures (2nd ed, Department of Health of the Republic of South Africa 2015) TOPIC 4 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 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. Suggested reading material Books Pickover M, Animal Rights in South Africa (Double Storey 2005) Singer P, Animal Liberation (4th edn, Harper Collins 2009) Wise SM, Rattling the Cage: Toward Legal Rights for Animals (Perseus 2000) Journal Articles 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’ 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); 2017 (4) BCLR 517 (CC)