LJU4801 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 28 October 2025

Carefully consider the following pronouncement made by Nelson Mandela during his first court statement in Pretoria, 1962: Your Worship, I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on the one hand and the law on the other. This is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who think and who feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell, probably the most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand before you today, for following his conscience in defiance of the law, as a protest against a nuclear weapons policy being followed by his own government. For him, his duty to the public, his belief in the morality of the essential rightness of the cause for which he stood, rose superior to this high respect for the law. He could not do other than to oppose the law and to suffer the consequences for it. Nor can I. Nor can many Africans in this country. The law as it is applied, the law as it has been developed over a long period of history, and especially the law as it is written and designed by the Nationalist government, is a law which, in our view, is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it, that we must oppose it, and that we must attempt to alter it. Consider the following extract from page 1 of The Citizen newspaper, Friday 29 August 2025: The Sexual Offences Act 23 of 1957 prohibits prostitution, brothel-keeping, and other related activities. A call for the decriminalisation of sex work is currently being heard by the Western Cape High Court. Comprehensively explain the legal thinking found in the work of Mary Joe Frug to explain how both the law, generally, and the Sexual Offences Act, specifically, “encodes” the female body with meaning. Read the following scenario and then answer the question below: In South Africa, prostitution constitutes a crime in terms of the Sexual Offences Act 23 of 1957. There are divergent views on the rationale behind the criminalisation of prostitution. Some attribute the non-recognition of prostitution to the immorality of the conduct, while others are of the opinion that the law has nothing to do with the morality or immorality of the prohibited conduct. 1.1 Identify and discuss the two philosophical approaches being used here. Your answer should not exceed 750 words. (15) 1.2 According to the positivist theory of adjudication, is the South African position on prostitution based on law or immorality? Discuss. Your answer should not exceed 750 words. (15) [30] Question 2 Read the following scenario and then answer the questions below: In 1931, the then Appellate Division heard the case of Collett v Priest 1931 AD 290. Mr Collett lodged an appeal against the judgment which placed his estate under sequestration. In the course of its judgment, the court remarked as follows: [301] “…great as is the respect which this Court entertains for the opinion of so eminent a judge, we cannot allow reasons of that kind to override an unbroken series of decisions in this Court, unless clearly shown to be wrong. Stare decisis is a sound principle and one which has been adopted in South African practice. No reason has been adduced either by the learned JUDGE PRESIDENT or by Counsel for appellant, for reversing the decisions of this Court on the matter before us.” 2.1 From the objectivist theories’ perspective, judges are part of a community of interpreters and this community determines how judges must decide cases. Discuss what this perspective entails. In your discussion, refer to Dworkin’s communalist theory. Your answer should not exceed 500 words. (10)judicial precedent (stare decisis) resonates with the notion that judges are constrained in their decision-making by the community of interpreters. Your answer should not exceed 500 words. (10) [20] Question 3 Read the following scenario and then answer the question below: In the case of S v Maluleke 2008 (1) SACR 49 (T) the court said the following: [24] “…a suitable sentence could be imposed that also created an opportunity to begin to heal the wounds that the commission of the crime caused to the family of the deceased and to the community at large.” AND [25] “The particular circumstances of this case created the opportunity to introduce the principles of restorative justice into the sentencing process.” FURTHERMORE [26] “Restorative justice… emphasises the need for reparation, healing and rehabilitation rather than harsher sentences….” 3.1 Discuss how the court’s remarks resonate with notion of communitarianism and reconciliation, which are central to African legal philosophy. Your answer should not exceed 1250 words. (25) Question 4 4.1 Discuss the four main ideas that form the basis for critical legal theory. Your answer should not exceed 750 words. (15) 4.2 Consider Mandela’s pronouncement in light of the persistent debate in legal philosophy that pertains to the relationship between law and morality. Extensively discuss the debate and expressly situate Mandela’s statement in relation to the debate Mary Joe Frug argues that the law “encodes” the female body with meaning. Briefly discuss how the law mandates the sexualisation of the female body. Your answer should not exceed 500 words. (10) Despite its centrality in the African context, the concept of uBuntu has not escaped criticisms. Read the following article that is available on the module site under the Additional Resources tab, and then answer the question below:Consider the following scenario and then answer the questions below: A judge is confronted with a novel case concerning online bullying. X stands accused of relentlessly bullying Y on various social media platforms. There is no clear, single legal principle to guide the judge in reaching a decision. Jan-Harm de Villiers, ‘Prolegomenon on the Role of the Polyphonic Novel for (Animal) Law:Explain how the judge will go about reaching a decision if he follows the approach suggested by Ronald Dworkin. J.M. Coetzee’s The Lives of Animals, the Voice of Refusal, and the Subversive Performativity of the Novel’ (2019) 31 Law & Literature 443. Explain the four ideas that form the basis for critical theory and, drawing on arguments andHow will a judge decide the case if he follows an African legal philosophical approach to adjudication? theoretical inventions from the article, explain why the article can be seen as a work of critical theory. Discuss the criticisms that have been levelled against uBuntu and indicate whether you agree or disagree with each of the criticisms. You must substantiate your position by relying on relevant sources. Your Worship, I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on the one hand and the law on the other. This is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who think and who feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell, probably the most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand before you today, for following his conscience in defiance of the law, as a protest against a nuclear weapons policy being followed by his own government. For him, his duty to the public, his belief in the morality of the essential rightness of the cause for which he stood, rose superior to this high respect for the law. He could not do other than to oppose the law and to suffer the consequences for it. Nor can I. Nor can many Africans in this country. The law as it is applied, the law as it has been developed over a long period of history, and especially the law as it is written and designed by the Nationalist government, is a law which, in our view, is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it, that we must oppose it, and that we must attempt to alter it. Consider the following extract from page 1 of The Citizen newspaper, Friday 29 August 2025: The Sexual Offences Act 23 of 1957 prohibits prostitution, brothel-keeping, and other related activities. A call for the decriminalisation of sex work is currently being heard by the Western Cape High Court. Comprehensively explain the legal thinking found in the work of Mary Joe Frug to explain how both the law, generally, and the Sexual Offences Act, specifically, “encodes” the female body with meaning. Read the following scenario and then answer the question below: In South Africa, prostitution constitutes a crime in terms of the Sexual Offences Act 23 of 1957. There are divergent views on the rationale behind the criminalisation of prostitution. Some attribute the non-recognition of prostitution to the immorality of the conduct, while others are of the opinion that the law has nothing to do with the morality or immorality of the prohibited conduct. 1.1 Identify and discuss the two philosophical approaches being used here. Your answer should not exceed 750 words. (15) 1.2 According to the positivist theory of adjudication, is the South African position on prostitution based on law or immorality? Discuss. Your answer should not exceed 750 words. (15) [30] Question 2 Read the following scenario and then answer the questions below: In 1931, the then Appellate Division heard the case of Collett v Priest 1931 AD 290. Mr Collett lodged an appeal against the judgment which placed his estate under sequestration. In the course of its judgment, the court remarked as follows: [301] “…great as is the respect which this Court entertains for the opinion of so eminent a judge, we cannot allow reasons of that kind to override an unbroken series of decisions in this Court, unless clearly shown to be wrong. Stare decisis is a sound principle and one which has been adopted in South African practice. No reason has been adduced either by the learned JUDGE PRESIDENT or by Counsel for appellant, for reversing the decisions of this Court on the matter before us.” 2.1 From the objectivist theories’ perspective, judges are part of a community of interpreters and this community determines how judges must decide cases. Discuss what this perspective entails. In your discussion, refer to Dworkin’s communalist theory. Your answer should not exceed 500 words. (10)judicial precedent (stare decisis) resonates with the notion that judges are constrained in their decision-making by the community of interpreters. Your answer should not exceed 500 words. (10) [20] Question 3 Read the following scenario and then answer the question below: In the case of S v Maluleke 2008 (1) SACR 49 (T) the court said the following: [24] “…a suitable sentence could be imposed that also created an opportunity to begin to heal the wounds that the commission of the crime caused to the family of the deceased and to the community at large.” AND [25] “The particular circumstances of this case created the opportunity to introduce the principles of restorative justice into the sentencing process.” FURTHERMORE [26] “Restorative justice… emphasises the need for reparation, healing and rehabilitation rather than harsher sentences….” 3.1 Discuss how the court’s remarks resonate with notion of communitarianism and reconciliation, which are central to African legal philosophy. Your answer should not exceed 1250 words. (25) Question 4 4.1 Discuss the four main ideas that form the basis for critical legal theory. Your answer should not exceed 750 words. (15) 4.2 Consider Mandela’s pronouncement in light of the persistent debate in legal philosophy that pertains to the relationship between law and morality. Extensively discuss the debate and expressly situate Mandela’s statement in relation to the debate Mary Joe Frug argues that the law “encodes” the female body with meaning. Briefly discuss how the law mandates the sexualisation of the female body. Your answer should not exceed 500 words. (10) Despite its centrality in the African context, the concept of uBuntu has not escaped criticisms. Read the following article that is available on the module site under the Additional Resources tab, and then answer the question below:Consider the following scenario and then answer the questions below: A judge is confronted with a novel case concerning online bullying. X stands accused of relentlessly bullying Y on various social media platforms. There is no clear, single legal principle to guide the judge in reaching a decision. Jan-Harm de Villiers, ‘Prolegomenon on the Role of the Polyphonic Novel for (Animal) Law:Explain how the judge will go about reaching a decision if he follows the approach suggested by Ronald Dworkin. J.M. Coetzee’s The Lives of Animals, the Voice of Refusal, and the Subversive Performativity of the Novel’ (2019) 31 Law & Literature 443. Explain the four ideas that form the basis for critical theory and, drawing on arguments andHow will a judge decide the case if he follows an African legal philosophical approach to adjudication? theoretical inventions from the article, explain why the article can be seen as a work of critical theory. Discuss the criticisms that have been levelled against uBuntu and indicate whether you agree or disagree with each of the criticisms. You must substantiate your position by relying on relevant sources.