Exam (elaborations)
IRM1501 EXAM PACK 2023
- Institution
- University Of South Africa (Unisa)
QUESTIONS AND ANSWERS
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IRM1501EXAM PACK
2023
QUESTIONS WITH ANSWERS
Email: musyokah11@gmail.com
, IRM1501/202/1/2021
3. FEEDBACK ON ASSIGNMENTS 01
QUESTION ONE
Define empirical research and refer to examples where necessary. [2 marks]
Answer
Empirical research is a method of research that is referred to as ‘document - based research’. For
example, sources such as case law, articles and books are used to conduct research in an attempt to
find a solution.
It is also referred to as desktop research because the researchers use computers to read cases, article
and online books to determine the gap in law.
QUESTION 2
Discuss the notion of ‘Ubuntu’ with reference to transformative constitutionalism, case law and
jurisprudence in your answer.
Answer
Ubuntu vs Transformative Constitutionalism
The notion of Ubuntu is defined as humanity.1 The courts and authors categorize Ubuntu as one of the
values that are entrenched in the Constitution. 2 Transformative constitutionalism is intertwined with
Ubuntu.3 Langa J describes it as "the meaning of transformation in juridical terms is as highly contested
as it is difficult to formulate". It is perhaps in keeping with the spirit of transformation that there is no
single stable understanding of transformative constitutionalism.
Langa J further suggests that transformative constitutionalism is best defined as:
1 Kroeze IJ “Once More Ubuntu: A reply to Radebe and Phhoko” 2020 PER 1727-3781.
2 S v Makwanyane and Another 1995 (3) SA 391; Geduld AJN uBuntu as a constitutional value: A social justice
perspective (LLD Thesis 2020, North-West University) 1-258.
3 Geduld uBuntu as a constitutional value: A social justice perspective 1-258.
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, IRM1501/202/1/2021
"a historic bridge between the past of a deeply divided society characterised by strife, conflict,
untold suffering and injustice, and a future founded on the recognition of human rights, democracy
and peaceful co-existence and development opportunities for all South Africans, irrespective of
colour, race, class, belief or sex".4
According to Langa J, ‘this is a magnificent goal for a Constitution: to heal the wounds of the past and
guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we
must change’. 5 The notion of Ubuntu applies in human rights, 6 as well as other fields of law such as
the law of contract.
Important aspects of Ubuntu and Transformative Constitutionalism
South Africa’s Constitution is recognized as a transformative text mainly because it is founded on
historic values of non-racialism, non-sexism, Bill of Rights and the rule of law. Thus, Professor Karl
Klare formulated the notion of transformative constitutionalism, given the country’s system of
constitutional supremacy and the Constitution’s values. Since its inception, TC effectively embedded
its inherent importance in various constitutional law and constitutionalism discourse. The Constitution
demands that all decisions be capable of being substantively defended in terms of the rights and values
that it enshrines. It is no longer sufficient for judges to rely on the say-so of parliament or technical
readings of legislation as providing justifications for their decisions. Under a transformative
Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to
authority, but by reference to ideas and values.
The Constitutional Court in more than one case expressed the significance of linking Ubuntu with
transformative constitutionalism. For example, in S v Makwenyane the Constitutional Court introduced
the concept of ‘Ubuntu’ for the first in the history of South African law. 7 This court illustrated the fact
that the infringement of the right to dignity goes against the notion of Ubuntu. In addition, cruel and
degrading treatment destroys the notion of Ubuntu. 8 In another Constitutional Court case Everfresh
9 the Constitutional Court affirmed that it is crucial
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
to accept and recognize the notion of Ubuntu in light of transformative constitutionalism. The facts of
4 Langa P “Transformative Constitutionalism” 2006 Stellenbosch Law Review (17) 351.
5 Langa 2006 Stellenbosch Law Review 352. See also Corder H, Federico V & Orrù R The Quest for
Constitutionalism – South Africa since 1994 (Routledge: London 2016) 5-17.
6 Hutchison A “Good Faith Contract: A unique South African Perspective” 2019 Journal of
Common Wealth Law 227-271.
7 S v Makwanyane and Another 1995 (3) SA 391.
8 S v Makwanyane 26, 5, 225 and 227.
9 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC).
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, IRM1501/202/1/2021
this case were briefly that the Constitutional Court was requested to intervene to infuse the law of
contract with certain constitutional values.
The applicant leased particular premises to the respondent. In terms of the contract of lease, the
applicant could renew the lease on its expiry on the same terms and conditions, subject to an
agreement being reached between the parties on the rental. Before the expiry of the contract of lease,
the respondent bought the premises from H.R. Geeringh C.C. At the time when the contract of lease
expired, the respondent refused to renew the contract.
Furthermore, it started a process to and successfully evicted the applicant. In deciding on a proper
judgment, the Constitutional Court was divided in its decision. The minority judgment was of the view
that the court had to interpret the Constitution is a way that develops the common law by infusing
10 The majority decision only differed from the
constitutional values such as ubuntu, and fairness.
minority decision because the issues relating to the infusing of the law of contract with constitutional
values were only raised and contended in the Constitutional Court. 11 Hutchison agrees that Ubuntu
should also be invoked in law of contract to illustrate good faith.12
Suffice it to say that the notion of Ubuntu goes hand in hand with transformative constitutionalism. This
is highlighted by the decisions of the Constitutional Court in cases such as S v Makwenyane and
Everfresh case. The authors assert that Ubuntu and transformative constitutionalism are intertwined.
Bibliography
Books
Corder H, Federico V & Orrù R The Quest for Constitutionalism – South Africa since 1994 (Routledge:
London 2016)
Journals
Hutchison A “Good Faith Contract: A unique South African Perspective” 2019 Journal of Common
Wealth Law 227-271.
Kroeze IJ “Once More Ubuntu: A reply to Radebe and Phooko” 2020 PER 1727-3781.
10 Everfresh case paras 46 to 80.
11 Everfresh case paras 71–73.
12 Hutchison 2019 Journal of Common Wealth 227-271.
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