Exam (elaborations)
FOR1501 EXAM PACK
- Institution
- University Of South Africa (Unisa)
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answers,MAY/JUNE 2016
SECTION A
Question 1
(a) Which system’s rules should be obeyed, when there is a clash between law and religion
as normative systems? (Hint: In your answer you should focus on the differences between
legal rules and religious rule) (4)
There are differences between legal rules and religious rules. These two normative
systems do not overlap completely. The Ten Commandments proclaim that one should
not covet thy neighbour's possessions. How will a state enforce this? This is not enforced
by law. In the same way adultery is not a crime, although it may be regarded a `sin'.
Although religion and law are not always similar, there are certain aspects of the South
African law that favour the Christian religion. In criminal law blasphemy is an offence: It
pertains only to the Christian God. Christian public holidays such as Christmas and Good
Friday are given preference by the government. This is justified as part of the accepted
religious convictions of the majority.
(b) Martie van der Merwe, a lecturer at New Africa University, applies for promotion.
Unfortunately she is not promoted and she complains about the University’s
decision. The University gives her a chance to present her case. An impartial person
hear the complaint and decided that the rules with regard to promotions within the
University are clear and apply to all personnel equally. However, Martie feels she
was not promoted simply because she is a woman.
Has formal justice been done in this case? Give reasons for your answer. (4)
The requirements of formal justice have been met, these being:
∞ Explicit rules must be laid down to show how people must be treated in a specific case.
The rules with regard to promotions within the New Africa University are explicit.
∞ The rules must apply generally, meaning they must apply to all people in the group in
the same circumstances. These rules apply generally to all personnel at the
University.
∞ Rules must be applied impartially by legal institutions. These rules are implied impartially because
Martie’s complaint was heard by an impartial person.
If the formal law meets certain basic requirements and is always applied in exactly the same
way, we say that formal justice has been achieved.
(c) John buys a second-hand motorbike from his friend, Peter, for R10 000. This
transaction involves a contract of purchase between John and Peter. John pays
Peter the purchase price of R10 000. However, Peter refuses to deliver the motorbike
to John as agreed in their contract.
Name two kinds of rights that are applicable to our scenario. Explain what each kind
answers
, entails (3)
Real right: Real rights are rights to physical, material things, that we can touch, e.g. a pen
or a car. The object of a real right is always a thing, the real right itself is, e.g. right of
ownership, right of pledge. In the case of ownership, the owner of property may freely use
and enjoy her property. The owner can also alienate it (that is sell or give it away). Peter
has the right of ownership to his motorbike, as the owner he decided to sell it to John.
Personal right: A personal right is a right to performance. It is also called a claim.
Performance is a human action of either doing or not doing something. We may have a
right to the action of another person. The action may be the delivery of something by the
seller, the payment of the purchase price by the buyer, or the services of an employee. In
this case Peter had the right to receive purchase price from John, which he did. But John
also has the personal right to have the motorbike delivered, which Peter failed to do.
(d) During the sixth century AD the emperor of the Eastern Roman Empire, Justinian, wanted
his empire to be as glorious as the old Roman Empire and he wanted to bring order to the
legal system of his time. Explain how he contributed to the development of the legal system
during his reign and the preservation of Roman law in later centuries. (4)
Justinian decided to “codify” Roman law as a whole; that meant that he decided that all the
earlier writings of the classical jurists and all the laws which had been passed during the
time of the emperors were to be collected and written down as a code. This collection of
Roman law by Justinian was called the Corpus Iuris Civilis. By codifying the law, Justinian
kept Roman law alive in the Eastern Roman Empire, although this collection of Roman law
did not have much influence in the Western Roman Empire at that time. However, the fact
that the Roman law had been collected and written down made it possible for Roman law
to be received in Europe in about the 12th century AD.
Question 2
(a) Distinguish between criminal law and law of criminal procedure as the divisions of public law
(4)
Criminal laws states which acts are crimes and what the penalties/ punishments are that are
that are imposed by the state for the commission of these crimes.
Law of criminal procedure is concerned with the way in which someone who is suspected of
having committed a crime is prosecuted and tried.
These are the divisions of public law, which deal with the relationship between the state and
the citizen.
(b) Charl and Charlotte Charles have been married for the past 25 years. During this time
they have lived in luxury and have never even thought about what would happen to
their wealth if they are not around anymore. On their way to Cape Town for their annual
holiday they both die in a car accident. Their three children are now very eager to hear
what will happen to their parents’ wealth.
answers
, Which division of private law will be applicable to this scenario? Explain in detail what
this specific division deals with. (3)
The law of patrimony: which is concerned with a person and their means, in other words things
people own that can be given a value in money.
(c) Define legal obligation and name two of the subdivisions that the law of obligations can be
divided into. (4)
An obligation is a legal relationship between two or more parties in terms of which on party
has a right against another party for performance and the other party has a corresponding
duty to perform.
Subdivisions that the law of obligation can be divided into are:
∞ Law of contract
∞ Law of delict
(d) Consider the following sources of law and answer the questions that follow.
Foreign law, legal textbooks, articles in law journals and case law.
(i) Which source of law has binding authority I South African courts? Give a reason for your
answer. (2)
Case Law is an authoritative source of law, with binding authority in court.
(ii) With reference to your answer in (i), explain the difference between this source of law
and the other three sources of law (2)
Foreign law, legal textbooks and articles in law journals are sources of law which merely have
persuasive influence in court and do not bind the court, like case law does on the other hand, it is
an authoritative source of law.
Question 3
(a) Explain the concept “constitution” (3)
The rules by which a country is governed are found in that country's Constitution. A
Constitution is usually a very long document which sets out the structure and functions of
government. It also sets out the standards that will have to be used to protect the individual
against any abuse of power by the state. In South Africa we have a written Constitution
that was adopted in 1996. Although other countries such as England do not have a single
written Constitution.
(b) What do you understand by the “separation of state’s powers”? Why is this separation so importan
answers
(4)
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