RRLLB81 Assignment 3 PORTFOLIO (ALL TOPICS COMPLETE ANSWERS) Semester 2 2025 - DUE OCTOBER 2025

RRLLB81 Assignment 3 PORTFOLIO (ALL TOPICS COMPLETE ANSWERS) Semester 2 2025 - DUE OCTOBER 2025; 100% TRUSTED Complete, trusted solutions and explanations. For assistance, Whats-App 0.6.7-1.7.1-1.7.3.9. Ensure your success with us.... 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. positions 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? 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. 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. 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. 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. 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. 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. 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