LJU4801 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - DUE DATE :- 17 - 22 MAY 2024 (DETAILED ANSWERS WITH FOOTNOTES AND BIBLIOGRAPHY - DISTINCTION GUARANTEED!)

LJU4801 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - DUE DATE :- 17 - 22 MAY 2024 (DETAILED ANSWERS WITH FOOTNOTES AND BIBLIOGRAPHY - DISTINCTION GUARANTEED!) Question 1 Read the following article and then answer the questions below: In the newspaper article written by Nico De Jager titled “Pride is a Heavy Price to Pay”,1 the author talks about discrimination on the basis of sexual orientation. According to this article: “At least 20 LGBTQIA+ [lesbian, gay, bisexual, transgender, queer, intersex, asexual plus] individuals were brutally killed across South Africa between February and October [2021] when the country witnessed an increase in the number of attacks against lesbians, gays and transgender people. Many of the victims were beaten or stabbed to death. Evidently, these victims were targeted because of their sexual orientation and gender identity.” The article further indicates that: “As a society firmly entrenched in patriarchy and misogyny, many South Africans still perceive LGBTQIA+ individuals as inherently immoral and/or “un-African” and therefore pay little attention to the violence that they endure daily. This is indicative of the work that needs to be done in changing societal attitudes in our communities.” 1.1 Despite the rights of LGBTQIA+ having constitutional and legislative protection, members of this community are still victimised in South Africa, with some critics (as noted above) viewing homosexuality as immoral. One of the consistent debates in legal philosophy has been the relationship between law and morality. Discuss how legal positivists and natural-law philosophers view this relationship. Your answer should not exceed 1000 words. (20) 1.2 Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits discrimination on the basis of sexual orientation. Moreover, the Civil Union Act 17 of 2006 recognises same-sex marriages. Keeping in mind the positivist theory 1 N de Jager, ‘Pride is a Heavy Price to Pay’ Mail & Guardian (25 June 2022) of adjudication, is the South African position on homosexuality based on law or morality? Discuss. Your answer should not exceed 750 words. (15) [35] Question 2 Read the following article and then answer the questions below: In the newspaper article written by Maryna Lamprecht titled “Freedom of Speech also Applies to Judges, Retired Judges”, 2 the author reflects on the debate about judges publicly expressing themselves on political issues. According to this article, the former Minister of Justice and Constitutional Development, Mike Masutha, said: “it was ‘concerning’ that “judges – especially retired judges – get involved in litigation against the state and publicly express themselves on ‘outright political questions’” . 2.1 Discuss objectivist theories on factors that constraint (influence) judges in their decision making. Your answer should not exceed 750 words. (15) 2.2 Considering the factors that are seen to constrain judges based on your answer to the question 2.1 above, discuss whether judges’ public comments on political issues pose a threat to their objectivity in adjudicating political disputes. To answer this question, refer to document “LJU4801 article 1”. Your answer should not exceed 750 words. (15) [30] Question 3 Read the following scenario and then answer the questions below: In 2007, the Constitutional Court handed down judgment in the case of S v M 2007 (2) SACR 539 (CC), which dealt with an appeal against a sentence of imprisonment. Before setting aside and replacing this sentence with that of correctional supervision, Sachs J remarked that: “[72] To start with, her offer to repay the persons she defrauded appears to be genuine and realistic. It would have special significance if she is required to make the repayments on a face-to-face basis. This could be hard for her, but restorative justice ideally requires looking the victim in the eye and acknowledging wrongdoing. There might be practical problems in this case in ensuring that M meets individually with each of the many persons she defrauded … . What matters is that in both a practical and symbolical way M begins to restore a relationship that would otherwise remain ruptured. For M herself this process of acknowledgement and reconciliation removes the silent brand of criminality that imprisonment would bring and facilitates restoration of trust and her reintegration into the community.” 2 M Lamprecht, ‘Freedom of Speech also Applies to Judges, Retired Judges’ City Press (10 December 2015) judges-retired-judges- accessed 16 April 2024. 3.1 The applicant offered to compensate victims of her crime. According to the court, such compensation would have special meaning if made on a face-to-face basis. This would enable her to acknowledge her wrongdoing by looking the victim in the eye and by starting the process of restoring the damaged relationship. How is this method of dealing with crime similar to the African legal approach to law and conflicts? Discuss. Your answer should not exceed 750 words. (15) 3.2 Discuss how the African legal approach to conflicts differs from the Western notion of justice. Your answer should not exceed 500 words. (10) [25] Question 4 4.1 The African legal philosophy is based on the idea of communitarianism. Discuss customary marriage as an institution that reflects this idea. Your answer should not exceed 500 words. (10) [10] Total [100] Lju4801 article 1 Rights and religion; bias and beliefs: Can a judge speak God? M Tsele M Tsele, Part-time lecturer and LLM candidate, Faculty of Law, Rhodes University.