FUR2601 EXAM PACK 2023
100+ QUESTIONS AND
CORRECT ANSWERS.
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1.6 List the requirements that have to be taken in order to obtain locus stand when a
person is seeking to act in the public interests (2)
- It must be shown that the person is acting in the public interest
- It must be shown that the public has sufficient interest in the requested remedy.
1.7 Differentiate the following concepts
Reading in and reading down (3)
- reading in is a remedy while reading down is a method of statutory interpretation
aimed at avoiding inconsistency between the law and Constitution
- reading in is a constitutional remedy which is granted by a court after it has
concluded that a statute is constitutionally invalid
- reading in is mainly used when the inconsistency is caused by an omission and it is
necessary to add words to the statutory provision to cure it
1.8 Discuss whether, and to what extent, a juristic person can rely on the protection of the Bill of
Rights. For instance, can Nose week, an independent newspaper, invoke the right to life
and the right to freedom of expression? (5)
- In the First Certification judgment, the Court emphasized that many universally accepted
fundamental rights will be fully recognized only if afforded to juristic persons as well as
to natural persons.
- Section 8(4) provides for the protection of juristic persons. A juristic person is entitled
to the rights in the Bill of Rights to the extent required by the nature of the rights and
the nature of that juristic person.
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- In order to determine whether a juristic person is protected by a particular right or
not, two factors must be taken into consideration: first, the nature of the right, and,
secondly, the nature of the juristic person.
- The nature of some fundamental rights is such that these rights cannot be applied to
juristic persons. Nose week cannot be protected by the right to life, which is afforded
to human beings only, although it might have standing to approach a competent court
if the requirements of section 38 have been complied with.
- Other rights, such as the right to freedom of expression, have been specifically
afforded to the media, which are often controlled by juristic persons.
1.9 What is the relationship between the Constitution and the Bill of Rights? (5)
The Bill of Rights (Chapter 2) is part and parcel of the Constitution. It can only be properly
understood in the context of the Constitution. Like the Constitution itself, it is entrenched,
enforceable and justiciable.
QUESTION 2
2.1 Discuss whether or not magistrates’ courts can develop common law in accordance with the
Constitution. (10)
Section 8(3) of the Constitution obliges the courts, when applying the provisions of the Bill of
Rights, if necessary, to develop rules of the common law to limit the rights, provided that the
limitation is in accordance with section 36 of the Constitution. This means that they are bound
to give effect to the constitutional rights as all other courts are bound to do in terms of section
8(1) of the Constitution; hence magistrates presiding over criminal trials must, for instance,
ensure that the proceedings are conducted in conformity with the Constitution, particularly the
fair-trial rights of the accused. Further, section 39(2) places a positive duty on every court to
promote the spirit, purport and objects of the Bill of Rights when developing the common law.
Over and above that, in terms of section 166 of the Constitution, courts in our judicial system
include magistrates’ courts.
However, section 173 explicitly empowers only the Constitutional Court, the Supreme Court of
Appeal and the High Courts to develop the common law, taking into account the interests of
justice. Magistrates’ courts are excluded on the basis of the following grounds:
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Magistrates are constrained in their ability to develop crimes at common law by virtue of the
doctrine of precedent. Their pronouncements on the validity of common law criminal principles
would create a fragmented and possibly incoherent legal order. Effective operation of the
development of common law criminal principles depends on the maintenance of a unified and
coherent legal system, a system maintained through the recognized doctrine of stare devises
which is aimed at avoiding uncertainty and confusion, protecting vested rights and legitimate
expectations of individuals, and upholding the dignity of the judicial system. Moreover, there
does not seem to be any constitutional or legislative mandate for all cases in which a magistrate
might see fit to develop the common law in line with the Constitution to be referred to higher
courts for confirmation. Such a referral might mitigate the disadvantageous factors discussed
above.
2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically with regard
to the application of the equality test as laid down in Harksen v Lane. (10)
A good illustration of the application of the Harksen v Lane enquiry is the Constitutional Court’s
recent decision in Hassam v Jacobs. The case concerned the confirmation of a declaration of
constitutional invalidity of certain sections of the Intestate Succession Act 81 of 1987. The
impunged provisions were found to exclude widows of polygynous marriages celebrated according
to the tenets of the Muslim religious faith in a discriminatory manner from the protection of the
Intestate Act. The applicant’s argument was largely devoted to the equality provisions in the
Constitution, specifically unfair discrimination on the grounds of gender, marital status and religion.
Nkabinde J, at paragraphs 31–39 (footnotes omitted), specifically stated:
[31] The marriage between the applicant and the deceased, being polygynous, does not enjoy
the status of a marriage under the Marriage Act. The Act differentiates between widows
married in terms of the Marriage Act and those married in terms of Muslim rites; between
widows in monogamous Muslim marriages and those in polygynous Muslim marriages; and
between widows in polygynous customary marriages and those in polygynous Muslim
marriages. The Act works to the detriment of Muslim women and not Muslim men.
[32] I am satisfied that the Act differentiates between the groups outlined above.
[33] Having found that the Act differentiates between widows in polygynous Muslim marriages like
the applicant, on the one hand, and widows who were married in terms of the Marriage Act,
widows in monogamous Muslim marriages and widows in polygynous customary marriages, on the
other, the question arises whether the differentiation amounts to discrimination on any of the
listed grounds in section 9 of the Constitution. The answer is yes. As I have indicated above,
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