EXAM PORTFOLIO HFL1501

2 FEBRUARY 2023

STUDENT NUMBER: 67255302

NAME: MATHAPELO BOKABA

PART 1

QUESTION 1

1.1 The task of Law Reform Commission is to investigate certain matters approved by the Minister of
Justice and Constitutional Development and referred by the parliament.

1.2 -traditional court bill

-the promulgation of the reform of customary law succession

-regulation of related matter Act 11 of 2009

QUESTION 2

2.1 Section 211

2.2 - enumerating or listing its powers

-the legislative, executive and judicial powers of government can be separated

QUESTION 3

-In the matter of Investment CC v Harmmesly (2008 JDR 190 (SCA)); the Judge of Appeal was expected to
continue legal development; it did not hold onto absolute and stringent principles from Roman-Dutch
Law. In this case the Supreme Court of Appeal re-evaluated a rule of Roman-Dutch Law as stated by
Voet. The court stated that is always had the inherent power to develop the common law; there is
power is confirmed is Section 173 of the constitution. By the suitable application of knowledge gain so
far, modification of our existing law may serve the interests of justice better as opposed to when the
current law does not serve modern demands adequately.

QUESTION 4

4.1 Freedom Charter

4.2 -all national groups shall have equal rights

-the people shall govern

QUESTION 5

5.1 Van Der Hinden

5.2 Hugo De Groot

5.3 Johannes Voet

QUESTION 6

6.1 The Orange Free State Constitution of 1854

6.2 Zuid-Afrikaansche Replubliek (ZAR)

6.3 (a)The 1910 Constitution of the Union of South Africa.

(b) Constitution of Republic of South, 1996

PART 2

QUESTION 7

-The most important aspects of this definition to me is the use of the constitution to inform and guide
transformation on society. This means using the constitution and guidelines contained there to inform
strategies around how to balance and transform society with a focus of redressing past injustices.

QUESTION 8

8.1 Family property is made up of earnings by the husband and it is owned by the whole family. In case
of polygamous families; family property is shared by everyone including all the wives. Household
property is more specific and restricted to the single-family unit of a husband and wife although the
husband might have more than one wife. This includes furniture and other household property. Family
property is controlled by the head of family and it is of the benefits of the family as whole including all
wives and their children. Household property must be used for the advantage OF specific wife and her
children.

8.2 (a) If all the requirements of contracts had been met there still wouldn’t be a valid contract between
them because of the plus luris rule. According to this rule no one can transfer more right in a this to
another person than she herself has. Joe is not even the owner of the ring and could therefore not
transfer any eights to Mrs. Jones even if they met the requirements of a contract if sale.

(b) Yes; Mrs. Jones became the owner because she purchased the ring in a good faith; even if Joe was
not the owner of the ring. Mrs. Jones purchased under assumption. The fact that she later finds out that
the ring belonged to Kat does not detract from their initial good faith. If Mrs. Jones met all requirements
of prescription; she can become the owner of the ring.
(c) Kat can use the rei vindication to retrieve her ring.

QUESTION 9

9.1 In the case of delict; an obligation arises even if the parties have not agreed but the case of a
contract, the parties reach an agreement and deliberately want to create an obligation.

9.2 (a) Suspensive condition

(b) Resolution condition

(c) Resolution condition

9.3 The test for negligence arose from the case where a security company was been held liable for the
actions for a security guard who was under their employment when the residence he was protecting got
robbed. In this case it was found that the security guard, acting vicariously on behalf of the security
company therefore the security company had been negligent because they could have taken
precautions to prevent the robbery. The constitutional court also decide to interpret the rules of
negligence in such a way that private security companies are held accountable in the future; this the
South African test for negligence.

9.4 (a) The contract is not valid because it was concluded under duress.

(b) The contact is not valid because it does not meet the purchase price requirement; an exchange of
goods is not a sale, but a barter.

9.5 Barnard’s conception of the duty to contract ethically is based on a society that strives to uplift its
weaker members through fairness and being ethical. In a society where human dignity is important
principles of ethics and fairness cannot be ignored at it is through these that human dignity id
expressed. It is important to act honestly and in good faith at all time. Parties to a contact should not
only be regard and concern for the need of the other party and beyond this an effort to act fairly and in
good faith at all times. It is through ethical contracting that our Ubuntu and humanness and expressed.

QUESTION 10

10.1 The three forms of iniuria are physical attack, attack on a person's dignity and attack on a person's
reputation. A physical attack is an attack on a person's body; for exam punching someone. The treat of a
physical and not an actual attack is sufficient for physical iniuria.

An attack on a person's dignity is not a physical attack, but attack on a person's worth. Public verbal
abuse is an example of an attack on persons dignity. The last iniuria is an attack on persons reputations;
this refers to damage of society's rumor about a person which impact on the way people view that that
person.
10.2 (a) The class action was allowed in this case because the Constitution of South Africa. In Section 38
allows class actions. This case was a special case which involved poor mine workers with limited
resources and a class action was the easiest way they could access the courts. The applicant were all
miners and miner's dependents and it would have been possible for them to access legal
representatives individually due to financial constraints; limited resources and the fact they were
already fighting the effects of the inhaling silica.

(b) The applicant agreed to settlement because they knew if they did not the process was going to take
time and they could end up with nothing. They settled because they needed the money now and could
not wait any longer and risk the chance of ending with nothing.

10.3 Delict occurs when one party commits a wrong against another. Delict in Roman law, an obligation
to pay a penalty because a wrong had been committed.

PART 3

QUESTION 11

-Section 2 of the constitution

-section 167 0f the constitution

-section 172 0f the constitution

QUESTION 12

12.1 Human dignity is protected in section 10 of the Constitution which states that “Everyone has
inherent dignity and the right to have their dignity respected and protected”. The right to human dignity
is about equality and advancing human rights, this is in line with ubuntu and the concept of human
equality enshrined in ubuntu. In ubuntu all human beings are equal, none is better than the other and
the right to human dignity says all humans are equal and deserve to have their rights protected.

12.2 Radebe and Phooko describe ubuntu as an African way of life which is founded in very specific
community principles and practices like family, respect, togetherness and a sense of community. They
describe everyday events like a funeral where the community pulls together and mourns together. This
means that when there is a death, it is not just a death in one family, but it is loss to the whole
community when someone dies. In times like that the community pulls together and stands with the
one family during this time. This also links back to the sense of motherhood in African communities that
your birth mother is not your only mother, instead all the older women in the village are your mothers.
Ubuntu therefore refers to a sense of community and oneness.

12.3 In this case the court used the ubuntu principle of togetherness and humanness.

QUESTION 13
13.1 Hassam v Jacobs NO and others.

13.2 Section 2 of the Constitution provides that the Constitution is the supreme law of South Africa, that
any law or conduct inconsistent with it is invalid and that the obligations imposed by the Constitution
must be fulfilled. According to section 172 when deciding a constitutional matter within its power, a
court must declare that any law or conduct that is inconsistent with the Constitution is invalid.

13.3 - Daniels v Scribante and another

-Daniels v Scribante and another

13.4 I believe that the Rahube case reflects the underlying concepts of both ubuntu and transformative
constitutionalism. In this case the court looked back to how Ms Rahube had been a victim of an unfair
legislation that unduly favored males as they were the only ones recognized as family heads. Although
this was the law at that time the law acknowledges that this was discriminatory against women and had
excluded women from holding tenure rights. In line with Constitutional supremacy, the court found
section 2 of the Upgrading Act to be unconstitutional as it was unreasonable, irrational and
discriminatory against women. The Constitutional Court’s confirmation of the retrospective effect which
had been ordered by the High Court further highlights efforts to redress past injustices and to create a
fair society which does not favor or prejudice anyone. In line with the spirit of ubuntu this case reflects
principles of equality and fairness in the Court’s judgements. It is clear that men and women are equal,
and no gender is better than other, and this reflects the spirit of ubuntu.

BIBLIOGRAPHY

BOOKS

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DECLARATION

-I MATHAPELO BOKABA DECLARE THAT I HAVE DONE MY OWN PORTFOLIO WITHOUT ANYONES HELP.
WHERE I HAVE USED RESOURCES THAT ARE NOT MINE, I HAVE STATED IN THE REFERENCES.

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