RRLLB81 Assignment 2 (ALL TOPICS DETAILED ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED

RRLLB81 Assignment 2 (ALL TOPICS DETAILED ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED Answers, guidelines, workings and references ,... Impeachable dispositions in Law of Insolvency 3 Jurisprudential development and recognition of the concept of legitimate expectation in Labour matters 19 The Nasciturus fiction and wrongful life 37 The Constitutional disparages in arranged marriages for disabled persons 54 Re-evaluation of the broad principle of the right of accused to be represented 74 Admittance of “statements” evidence adduced by the accused and ordinary state witnesses 95 THE Doctrine of Functus Officio and Defective Administrative Actions in Administrative Law 115 The enforcement of the right to a healthy Environment 133 THE PHILOSOPHY OF PUBLIC POLICY 153 TOPIC ONE: Impeachable dispositions in Law of Insolvency Background An insolvent person can try to gather funds to relief some of the financial burden. This could include the selling of some of his assets to settle other debts. The amount that an asset is sold can determine whether the disposition of the asset can be set aside, as a disposition not made for value. For instance, if a friend or a relative of the insolvent person had acquired the assets from the insolvent person at a bargain price, and a contract is established between the two, should this agreement be challenged? The value the asset is disposed of can be a matter of dispute. Nevertheless, the contract can be considered to be valid between the insolvent and the relative. In insolvency law, the concept of “quid pro quo” matter when determining whether a disposition can be set aside. Is it therefore legally viable to set aside a disposition made on sale that can be considered to be a bargain. Conduct a research and provide your own understand of the legal rules involved. 54 Cases Bloom’s Trustee v Fourie 1921 TPD 599 Hendriks N.O. v Swanepoel 1962 (4) SA 338 (A) Strydom N.O. v Snowball Wealth (Pty) 2022 (5) SA 438 (SCA) Books Sharrock J, Van der Linde K and Smith A, Hockly’s Insolvency Law (9th edn, Juta 2012) Bertelsmann E and others, Mars: Law of Insolvency in South Africa (10th edn, Juta 2019) Legislation Insolvency Act 24 of 1936 Journal Articles Mabe Z, ‘Setting aside Transactions from Pyramid Schemes as Impeachable Dispositions under South African Insolvency Legislation’ (2016)19 PER / PELJ 1 Marumoagae MC, ‘What amounts to “dispositions without value” in the context of section 26 of the Insolvency Act 24 of 1936?’ (2023) De Jure LJ 174 TOPIC TWO: Jurisprudential development and recognition of the concept of legitimate expectation in Labour matters Background The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative RRLLB81/103/2/2025 55 practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.” Per G Quinot, ‘Substantive Legitimate Expectations in South African and European Administrative Law’ (2019) 5(1) German Law Journal 65-85. To what extent could the above argument be raised from a labour law perspective which originally embodied the principle of legitimate expectation? Cases Wood v Nestle (SA) (Pty) Ltd 1996 17 ILJ 184 (IC) Vorster v Rednave Enterprises CC t/a Cash Converters Queenswood 2009 30 ILJ 407 (LC) Books Jordaan B, Kalula E and Strydom E (eds) Understanding the Employment Equity Act (Juta Cape Town 2009) Grogan J, Workplace Law (10th edn, Juta 2009) LEGISLATION Labour Relations Act 66 of 1995 Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 Journal Articles Olivier M, ‘Legal constraints on the termination of fixed-term contracts of employment: An enquiry into recent developments’ 1996 ILJ 1001 Hlophe J, Legitimate Expectation and Natural Justice: English, Australian, and South African Law’ (1987) 104 SALJ 165 Research topic: Department of Private Law TOPIC ONE: The Nasciturus fiction and wrongful life The unborn child can be considered to be born in order to benefit for certain legal purposes. This principle is called the nasciturus fiction. For instance, if a child that is still to be born suffers injuries before birth, and is subsequently delivered alive, the nasciturus fiction can be applied to benefit the child by claiming delictual damages. This implies that the child attains 56 rights until born alive. This fiction, perhaps, arguably guarantees the right to life of a foetus. On the other hand, the principle of wrongful life refers to a legal claim made on behalf of a child born with severe disabilities, alleging that the child's birth, and the subsequent suffering, was caused by a healthcare provider's negligence. Negligence in this regard could mean that the healthcare professional has failed to properly diagnose and thereafter inform the parents about potential birth defects, thus depriving the parents of the choice to terminate the pregnancy or take other preventative measures. If a child is born alive, the parents may institute two claims, one against the person who caused the foetus injuries and the healthcare professional who failed to diagnose potential birth defects. This appears to be legally unfair. Provide your understanding about these legal principles and their contradiction in cases of prematernal injuries. You may also consider whether the right to life applies in such cases. Cases Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA) Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T) Books Kruger H (ed), The Law of Persons in South Africa (3rd edn, Oxford University press 2024) Heaton J, The South African Law of Persons (6th edn, LexisNexis 2021) Legislation Constitution of Soth Africa, 1996 Journal Articles Chürr C, ‘Wrongful Life Claims Under South African Law: An Overview of the Legal Framework’ (2015) 36(3) Obiter 745 Mukheibir A, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006) 27 Obiter 188 TOPIC TWO: The Constitutional disparages in arranged marriages for disabled persons A marriage is an agreement to commit to a union with another person. The decision to marry is very much personal and it lies with the person intending to marry another. There are, however, traditions where arranged marriages are conducted quite frequently. This RRLLB81/103/2/2025 57 phenomenon is therefore not alien or a strange practice. There are instances where an arranged marriage could be completed for disabled individual. To be precise, a marriage could be arranged between a mentality disable person and another. The issue of consent looms large in the matter. To establish a binding agreement, there should be consent between the contracting parties. Marriage is a contract which two parties should consent to. Can the mentally disabled person appreciate the consent that triggers a valid marriage? Should the arranged marriage between a disabled person and another be legally binding considering the mental faculties of the parties? Provide your own legal opinions regarding this matter, pay much regard to the underlying laws. Cases Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669 Martinson v Brown 1961 (4) SA 109 (C) Books Heaton J and Kruger H, South African Family Law (4th edn, LexisNexis 2015) Van Heerden B, Skelton A and Du Toit Z (eds), Family Law in South Africa (2nd edn, Oxford University press 2021) Legislation Mental Health Care Act, 17 of 2002 Marriage Act 25 of 1961 Recognition of Customary Marriages Act 120 of 1998 Treaties Convention on the Rights of Persons with Disabilities, 2006 Journal Articles Labuschagne JMT, Bekker JC and Boonzaaier CC, ‘Legal Capacity of Mentally Ill Persons in African Societies’ (2003) 36 CILSA 106 West A and Bekker JC, ‘Possible Consequences of Declaring Civil and Customary Marriages Void’ (2012) 33 Obiter 351 58 Research topics: Department of Criminal and Procedural Law TOPIC ONE: Re-evaluation of the broad principle of the right of accused to be represented An actio popularis is a legal action that any member of the public can petition to the court, and therefore it is not restricted to the victim of the wrongdoing. It can be traced back to the Roman law, where it was largely initiated by public members for the authorities to address public disorder or wrongs affecting the community. The main aim of actio popularis is to address public interest rather than the interest of the individual. Thus, even someone who is not directly affected can approach the court to prosecute a public wrongdoing. This is contrary to the principle of locus standi, where the litigant has to be directly affected by the matter. While less common in modern legal systems, variations of the concept exist, particularly in international law and in cases involving discrimination. Do you think the common law principle of actio popularis has a place in the criminal justice? What role do you suggest the actio popularis can play from the criminal law perspective. Having regard to the underlying rules, provide your understanding of the role of actio popuralis in criminal justice. Cases Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 (2) SA 213 (SCA) Dalrymple v Colonial Treasurer 1910 TS 372 Books Burchell J, Principles of criminal law (4th edn, Juta 1983) Snyman CR, Criminal law (5th edn, Lexis Nexis 2008) Legislation Criminal Procedure Act 51 of 1977 Constitution of South Africa, 1996 Journal Articles Swanepoel CF, ‘The judicial application of the “interest” requirement for standing in constitutional cases: “A radical and deliberate departure from common law”’ (2014) 47 De Jure 63 Loots C, ‘Locus Standi to Claim Relief in the Public Interest Matters Involving the Enforcement of Legislation’ (1987) 104 SALJ 131 RRLLB81/103/2/2025 59 TOPIC TWO: Admittance of “statements” evidence adduced by the accused and ordinary state witnesses The admissibility of statements as evidence in criminal cases is quite a complex exercise. Sometimes due to the categorisation of witnesses engaged in this process, it becomes difficult for the court to admit the evidence adduced as true. The court could be faced with deciding what/which evidence should be considered to be accurate. For instance, where you have contradictory evidence obtained from the state witness and the accused or his witness. One wonders what the differences between the accused and state witness statement could be. What if any, could be the similarities and differences in evidentiary weight of accused and witness statements? Is the procedure for admission of various statements the same? Prove your opinion, founded on legal rules, about the law relating to admission of evidence adduced by the accused and state witness, and how this evidence could influence the outcome of the trial. Cases S v Mathonsi 2012 (1) SACR 335 (KZP) S v Rathumbu 2012 (2) SACR 219 (SCA) Makhala & Another v S 2022 (1) SACR 485 (SCA) Books Schwikkard PJ and others, Principles of Evidence (5th edn, Juta 2023) Kruger A, Hiemstra’s Criminal Procedure (Lexis Nexis 2025) Du Toit E, Commentary on the Criminal Procedure Act (Juta 1978) Legislation Section 213 of the Criminal Procedure Law Act 51 of 1977 Journal Articles Monyakane M, ‘The Danger for an Underestimation of Necessary Precautions for the Admissibility of Admissions in Section 219A of the South African Criminal Procedure Act 51 of 1977’ (2020) 31 Crim Law Forum 81 Monyakane MM and Monye SM, ‘The legal implications of S v Ndhlovu and Litako v S on the South African law of hearsay evidence: A critical overview’ (2016) 29 (3) SACJ 308 60 Research topics: Department of Public, Constitutional and International Law TOPIC ONE: The enforcement of the right to a healthy Environment An environmental right can be seen to encompass a variety of protections. It can effectively be enforced by a group of people seeking to prevent pollution. Equally, the Constitution states that everyone has a right to a healthy environment. This clearly indicates that the right is individualistic in its nature. Thus, it is clear that everyone has a right to petition a court to prevent, for example, air pollution. One wonders what should be an effective way of enforcing an environment right? Is an individual who is directly and immediately affected by air pollution in a better position to petition the court? Perhaps, a group (NGO) should assume the responsibility of ensuring that air pollution is minimised or prevented. Maybe the state (government) should play an effective role of securing a healthy environment for the benefit of the public at large. What is your opinion about the enforcement of environmental right and who should be best positioned to enforce the right. Cases Minister of Health and Welfare v Woodcarb (Pty) LTD 1996 (3) SA 155 (N) Minister of Environmental Affairs v Trustees for the time being of Groundwork Trust 2025 (4) SA 98 (SCA) Books Currie I and de Waal J, The Bill of Rights: HandBook (6th edn, Juta 2017) Kidd M, Environmental Law (2nd edn, Juta 2017) Legislation National Environmental Management Act 107 of 1998 National Environmental Management: Air Quality Act 39 of 2004 Journal Articles Kruger H, ‘The Silent Right: Environmental Rights in the Constitutional Court of South Africa’ 2019 Constitutional Court Review 473 Kidd M, ‘Deadly Air and the Misinterpretation of the Section 24 Environmental Right: The Groundwork Trust Case’ (2023) 23 PER / PELJ 1 Glazewski J, ‘The environment, Human Rights and a New South African Constitution’ (1991) 7(2) SAJHR 167 RRLLB81/103/2/2025 61 Thesis/Dissertation Frens L, ‘The Conceptualisation of Environmental Justice within the Context of the South African Constitution’ (LLD thesis, University of Stellenbosch 2000) TOPIC TWO: THE Doctrine of Functus Officio and Defective Administrative Actions in Administrative Law Functus Officio is the principle in terms of which decisions of officials are deemed to be final and binding once they are made. The decision cannot, once made, be revoked by the decision maker in the absence of statutory authority. The official could, however, approach a court of law to set aside his/her own decision. This maintains the principle of legality and ensures that functionaries do not exercise more power than they have. This creates certainty because the bearer or receiver of a right and the granter of a right know where they stand legally. The doctrine (Functus Officio) applies only to decisions that are final and where rights or benefits have been granted. This however creates a conundrum where a decision is invalid or unfair ab initio. Particularly administrative actions which unfairly or invalidly granted rights or benefits. This creates problems for the granter of rights or benefits once it is discovered that the administrative action is defective. The administrative action could be unfair, invalid, or void. All these circumstances yield different legal outcomes and affect the granter of rights and the receiver of rights differently. Conduct research and investigate why defective administrative action affects certainty, and how the doctrine of Functus Officio affects administrative law. You may choose to focus on invalid, unfair or void administrative actions, or all of these defective administrative actions. Cases AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency (No 2) 2014 (4) SA 179 (CC) Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) Books Burns Y and Henrico R, Administrative Law (5th edn, Juta 2020) Quinot G (ed), Administrative Justice in South Africa: An Introduction (2nd edn, Oxford 2021) Legislation Promotion of Administrative Justice Act 3 of 2000 Journal Articles 62 Henrico R, ‘The Functus Officio Doctrine and Invalid Administrative Action in South African Administrative Law: A Flexible Approach’ 2020 (34) Spec Juris 115 Pretorius DM, ‘The Origins of the Functus Officio Doctrine with Specific Reference to its Application in Administrative Law’ (2005) 122 SALJ 832 Research topics: Department of Jurisprudence TOPIC ONE: THE PHILOSOPHY OF PUBLIC POLICY Background Public policy analysis implies an estimation and examination of formulating, adopting, and implementing a principle or course of action intended to improve economic, social, or other public issues. The term ‘public policy’ is often used when describing what would be in the best interest of the community, considering the history of the society and its prospects. This philosophy seems to underpin the notion of public good in the true sense of the word. But, philosophically, how could an institution such as a court or a lawmaker capture the meaning of the term perfectly? How is it possible that an institution would know what is in the general interest of the community at large, particularly where people have different needs and aims? The adoption of the notion of public policy is intended to solve current and future problems. It should therefore be future oriented. Thus, the courts when referring to public policy refers to a policy that recognises the future and takes cognisance of the present and the past. In this sense, public policy should be shaped in a manner that weighs competing rights or interests and adopts measures that advance more compelling rights or interests. Can the idea of public policy be used to transform society and its laws? What would be an ideal concept of public policy in this constitutional dispensation? Provide your own understanding and opinion about public policy in a legal philosophy sense. Suggested reading material Cases Barkhuizen v Napier 2007 (5) SA 323 (CC) King v De Jager 2021 (4) SA 1 (CC) Books De Vos P and Freedman W (eds), South African Constitutional Law in Context (2nd edn, OUP 2021) Rautenbach C (ed), Introduction to Legal Pluralism in South Africa (6th edn, LexisNexis 2021) RRLLB81/103/2/2025 63 Legislation Constitution of the Republic of South Africa, 1996 Journal Articles Govender J and Reddy PS, ‘Failing the Public through Public Policy: A Review of the Local Government Experience in South Africa’ (2012) 5 African J of Public Affairs 69 Malapane M and Nyane H, ‘The Role of the Courts in the Public Policy Domain in South Africa’ (2023) 43 Obiter 713