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LJU4801 PORTFOLIO ANSWERS DUE 30 OCTOBER 2024 Question 1 Read the following scenario and then answer the question below: The football governing body is investigating Mark Pachio’s deliberate handball during the quarter final match between Shibobo FC and Maluti FC. Shibobo FC defender, Pachio, used his hand to stop Mpho Motale’s header on the line which would have sent Maluti FC through to the semi-final. While Pachio was given a straight red card for his actions, his 'Hand of God' intervention ultimately paid-off as Maluti FC missed the resulting penalty and Shibobo FC went through to the semi-final after winning the shoot-out. Shibobo FC does not consider that handball as unfair or dishonest play but rather as an act for the higher purpose of winning the game. Maluti FC, however, sees the handball as unfair play which is inconsistent with the fair play code. 1. Discuss the different philosophical approaches being used here (NB apply the approaches to the set of facts). In your substantiated opinion, which approach is the correct one? Your answer should not exceed 1250 words. (25) [25] Question 2 Read the following scenario and then answer the question below: In the case of R v Sachs 1953 (1) SA 392 (A) the Appeal Court said the following: [339 H – 400 D] "(W)here the statute under consideration in clear terms confers on the Executive autocratic power over individuals, courts of law have no option but to give effect to the will of the Legislature as expressed in the statute. … The dictum is no authority for saying that the Courts may restrain the executive when it acts within the powers conferred by a statute”. LJU4801 October/November 2024 3 2. This decision is often quoted as an example of positivist adjudication. Do you agree that it is positivist? Give reasons for your answer. Your answer should not exceed 500 words. (10) [10] Question 3 Read the following scenario and answer the questions set out below: In 2006 the Constitutional Court heard the case of Dikoko v Mokhatla 2006 (6) SA 235 (CC). The applicant, Mr David Dikoko, sought leave to appeal against the judgment in which it was found that he had defamed the respondent, Mr Thupi Zacharia Mokhatla. In the course of its judgment the court remarked as follows: [68] “In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principal objectives of the law to be the restoration of harmonious human and social relationships where they have been ruptured by an infraction of community norms. It should be a goal of our law to emphasise, in cases of compensation for defamation, the re-establishment of harmony in the relationship between the parties, rather than to enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties apart and even cause the defendant financial ruin”. AND [114] “Ubuntu - botho is highly consonant with rapidly evolving international notions of restorative justice. Deeply rooted in our society, it links up with world-wide striving to develop restorative systems of justice based on reparative rather than purely punitive principles. The key elements of restorative justice have been identified as encounter, reparation, reintegration and participation. Encounter (dialogue) enables the victims and offenders to talk about the hurt caused and how the parties are to get on in future. Reparation focuses on repairing the harm that has been done rather than on doling out punishment. Reintegration into the community depends upon the achievement of mutual respect for and mutual commitment to one another. And participation presupposes a less formal encounter between the parties that allows other people close to them to participate. These concepts harmonise well with processes well-known to traditional forms of dispute resolution in our country, processes that have long been, and continue to be, underpinned by the philosophy of ubuntu – botho”. 3.1 In the second paragraph African traditional processes of justice are linked with the philosophy of Ubuntu. Write a brief essay in which you explain what Ubuntu means and indicate whether you think the court is right in associating it with the African notion of justice. Your answer should not exceed 750 words. LJU4801 October/November 2024 4 (15) 3.2 Discuss the criticism levelled against Ubuntu as a philosophical concept. Your answer should not exceed 500 words. (10) [25] Question 4 4.1 Critical Legal Studies (CLS) is a movement that specifically rejects traditional legal thinking. The CLS scholars see law as essentially a political enterprise. With reference to the minority judgment of Sachs J in Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794, briefly discuss how the law reflects and promotes the political choices and priorities of those in power in society. Your answer should not exceed 500 words. (10) 4.2 Based on your answer to question 4.1 above, is there a difference between the view that law is politics and the notion of indeterminacy of the law? Briefly explain. Your answer should not exceed 500 words. (10) [20] Question 5 5.1 Kibet and Fombad postulate that transformative constitutionalism ‘offers an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa’. Discuss their motivation for this view in relation to the South African context. To answer this question, refer to document “LJU4801 article 1”. Your answer should not exceed 500 words. (10) 5.2 Discuss different types of African legal philosophy. (10) [20]