ILW Lessons

LESSON 1: LEARNING UNIT 1 (WHAT IS “LAW”?
WEEK: 07/02 – 14/02
Dear Students of ILW1501,
Welcome to our first lesson! In Lesson 1 we provide you with an extra non-compulsory self-assessment
MCQ activity on Learning Unit 1 of the Study Guide. It consists of 10 multiple-choice questions (MCQs).
Each MCQ is followed by its answer, detailed feedback and comments.
Before attempting this lesson, make sure that you know why the extra non-compulsory self-assessment
MCQ activities on the learning units of the Study Guide in the lessons are important and how to attempt
the lessons. Read in this regard Announcement 2 posted on the ILW1501 module site.
FOCUS AREAS
Before we get to the multiple-choice questions (MCQs), their answers, detailed feedback and comments,
we would like to provide a recap of the focus areas (i.e. more detailed learning outcomes) to Learning
Unit 1.
After working through Learning Unit 1, you should have been able to pick up that these focus areas of
the learning unit are very important!
1. Description of a norm or normative system
2. Four normative systems discussed in Learning Unit 1:
(1) law; (2) religion; (3) individual morality (ethics); and (4) community mores
3. Similarity between the four normative systems
4. Differences between the four normative systems
Note: For the four normative systems, study Activity 1.6 and its Feedback on pp 19-23 of Study Guide.
5. Characteristics of the law
Note: Study Activity 1.2 pp 8-9.
6. Descriptions of and differences between the following legal concepts (terms):
► private law and public law
► formal law and substantive law
7. Description of justice
8. Requirements to achieve formal justice
9. Requirements to achieve substantive justice
10. All the above must be identified in everyday real-life situations (in other words, in scenarios that have
something to do with the law.
MCQs, ANSWERS, FEEDBACK AND COMMENTS
Now, read the following 10 MCQs very carefully. Answer each question on your own by applying the
principles discussed in “Introduction to the module ILW1501 (Part 2): Understanding and Answering
MCQs for ILW1501".
Then you may compare your answers to the lecturers' answers, feedback, and comments.
Question 1
Complete the following sentence by choosing the correct option:
A normative system can be described as a system of…
(a) rules that determine the play of sport.
(b) rules that govern human behaviour.
(c) rules that control physical forces.
(d) rules that must be obeyed by all.
Answer 1
This question consists of a stem and answer set therefore, it is categorised as an easier question.
As we know that a normative system has nothing to do with playing sport or physical forces, we can
immediately rule out options a and c as possible answers. We are now left with options b and d. After
completing Activity 1.6 you should have noticed that not all normative systems contain rules that must be
obeyed by all. Thus, option d is incorrect.
The correct option is b.
[Learning Unit 1, p 5 and pp 7-8]
Question 2
Which one of the following is NOT a normative system?
(a) religion
(b) physics
(c) ethics
(d) the law
Answer 2
You will notice that this question consists of a stem and answer set therefore, it is categorised as an easier
question.
We know that religion and the law are clearly classified as normative systems [Learning Unit 1, p 15]. Thus,
options a and d may be immediately ruled out as possible answers. We are now left with options b and c.
Section 1.3.2 of Learning Unit 1 defines “ethics” as a synonym of individual morality or personal morality
as this normative system consists of standards that individuals set for themselves. Therefore, “ethics”
(option c) is a normative system and may be ruled out as a possible answer.
The correct option is b.
Note to students: Some of you chose option c as the correct option. Most probably because “ethics” is
not blatantly defined as a normative system. Ensure that you are familiar with synonyms of terminology
within the learning unit and Study Guide.
Question 3
What does the term "private law" refer to?
(a) A body of legal rules that derives from the decisions of court cases.
(b) A body of legal rules that regulates relationships between individuals.
(c) A body of legal rules that regulates relations between states and citizens.
(d) A body of legal rules that states that individuals have rights to privacy.
Answer 3
This question consists of a stem and answer set. Can you determine whether this question is categorised
as easy or more difficult?
We know that one method of dividing the law is dividing it into private and public law. As private law
regulates the relationships between individuals, option b is correct.
[Learning Unit 1, pp 9-10]
Note to students: Did you realise that option c is a description of the term “public law”?
Question 4
Which of the following real-life situations has to do with public law?
(a) payment of private school fees
(b) repair work to motor vehicle
(c) voting in municipal elections
(d) agreement to cut off branches
Answer 4
We know that the public law deals with the relationship between the state and the individual. As the
payment of private school fees, repair work to a vehicle and an agreement to cut tree branches is in most
instances related to agreements between individuals and/or juristic persons (see p 26 of Learning Unit 2
for a definition of juristic persons) these relationships would be classified under the private law. Thus,
options a, b and d may immediately be ruled out as possible answers.
As voting in municipal elections consists of a relationship between citizens / individuals and the state, the
correct answer is c.
[Learning Unit 1, p 9]
Question 5
Which of the following statements describes the concept “formal law” correctly?
(a) Formal law determines the meaning of legal rules.
(b) Formal law regulates relationships between individuals.
(c) Formal law regulates relationships between the state and its citizens.
(d) Formal law are legal rules that determine how court cases are decided.
Answer 5
Formal or procedural law is described as that part of the law which deals with the procedures that must
be followed in legal proceedings. The rules that determine how court cases are decided or decisions are
reached, the way we act in courts, the kinds of evidence that are allowed, and so on, are contained in
what we call formal law. Thus, options a, b and c may immediately be ruled out as possible answers.
The correct option is d.
Question 6
Formal law must comply with three basic requirements to achieve formal justice. Which one of the
following is NOT a requirement for formal justice?
(a) Explicit legal rules must be laid down.
(b) Legal rules must apply generally.
(c) Legal rules must be fair and impartial.
(d) Legal rules must be applied impartially.
Answer 6
Although this question consists of a stem and answer set, it is not straight forward!
We know that formal law needs to meet three basic requirements for formal justice to be achieved.
These basic requirements are: 1) There must be explicit rules laid down to show how people must be
treated in specific cases; 2) The rules must apply generally; and 3) The rules must be applied impartially
by a legal institution.
Fairness of a legal rule is not a requirement for formal justice.
Thus, option c is correct.
Note to students: On a quick reading of the options, you may have felt a bit confused. It is very
important to read the question and options thoroughly before selecting an answer.
Question 7
Complete the following sentence about substantive justice by choosing the correct option:
Substantive justice…
(a) concerns the way in which the legal rule is applied.
(b) concerns the fairness of the content and meaning of a legal rule.
(c) provides the procedures that must be followed in legal proceedings.
(d) can only be achieved when formal justice has been achieved.
Answer 7
This question is also not so straight forward!
• We know that substantive justice does not concern the way in which a legal rule is applied. [p 13
of Learning Unit 1]. Thus, option a is ruled out as a possible answer.
• We also know that formal law concerns the procedures that must be followed in legal
proceedings [p 12 of Learning Unit 1]. Thus, option c is ruled out as a possible answer.
• From Activity 1.5 and its feedback we know that substantive justice is not reliant on formal
justice being achieved. [p 14 of Learning Unit 1]. Thus, option d is ruled out as a possible
answer.
This leaves us with option b. We do know that substantive justice concerns the fairness and meaning of
a legal rule. Thus, b is the correct answer.
Question 8
Read the following statements about the difference between legal norms and moral norms.
Which statement is correct?
(a) Legal norms must be obeyed by all of society whereas moral norms must be obeyed in a particular
society.
(b) Legal norms bind the whole community whereas moral norms do not bind the whole community.
(c) The sanction for non-compliance of legal norms is prosecution whereas the sanction for moral norms
is punishment.
(d) The origin of legal norms is not found in religion whereas the origin of moral norms can be found in
religion.
Answer 8
This question is categorised as more difficult as it requires you to analyse each option provided and then
determine which option is correct.
• Legal norms must be obeyed by all society, however moral norms are set by individuals. Thus,
option a may be ruled out as a possible answer.
• The sanction for non-compliance with moral norms is self-imposed. Thus, option c is not a
possible answer.
• The origin of community mores may be found in the communities’ religious convictions. Thus,
option d may be ruled out as a possible answer.
Option b is therefore correct, as legal norms are binding on a whole community as opposed to moral
norms, which are not.
[Learning Unit 1, pp 10 – 22]
Question 9
Read the following scenario and answer the question that follows:
Nomsa is a beautiful single Christian lady who enjoys socialising with her friends over a glass of wine.
Sometimes she drinks too much and then her friends do not allow her to drive home. She always feels
embarrassed afterwards and decides to stop drinking. Unfortunately, she has a stressful job and soon
she starts drinking again. She is so upset with herself that she stops visiting her friends.
Which normative system is applicable to this scenario and why?
(a) The law is applicable because Nomsa drives home under the influence of alcohol.
(b) Religion is applicable because as a Christian Nomsa is not allowed to drink alcohol.
(c) Individual morality is applicable because Nomsa disobeyed the rule she set for herself.
(d) Community mores is applicable because her friends would not allow her to drive home.
Answer 9
This question consists of a root/ scenario/ set of facts, a stem and an answer set. It is categorised as
more difficult.
Individual morality is applicable to the scenario as Nomsa as an individual is struggling with a drinking
habit, for which she imposes a punishment on herself.
[Learning Unit 1, p 17 and p 22]
Question 10
Nomsa is a beautiful single Christian lady who enjoys socialising with her friends over a glass of wine.
Sometimes she drinks too much and then her friends do not allow her to drive home. She always feels
embarrassed afterwards and decides to stop drinking. Unfortunately, she has a stressful job and soon
she starts drinking again. She is so upset with herself that she stops visiting her friends.
What is the sanction for non-compliance with the normative system applicable to this scenario?
(a) punishment by a state organ
(b) rejection by Nomsa’s friends
(c) prosecution by a state organ
(d) Nomsa’s self-inflicted remorse
Answer 10
Again, this question consists of a root/ scenario/ set of facts, a stem and an answer set. It is categorised
as more difficult.
We know that the sanction for non-compliance with individual morality is personal and self-imposed.
Thus, Nomsa’s self-inflicted remorse is applicable.
Option d is therefore correct.
Do you see how in many instances, we used a process of elimination to reason out which answer option
was correct? If you cannot immediately identify the correct answer to a particular question, then the
process of elimination may work best for you! It is also very helpful when two options appear similar
or confusing. However, our goal is certainly not to trick you. Therefore, you will find that our level of
questions is mostly straight forward.
This now concludes our lesson on Learning Unit 1, please see the link to the explanatory video on the
lesson below:
https://drive.google.com/file/d/1PZ1eGOcCqxmw5enzTO1cPzPa8JXxnkgO/view?usp=share_link
Should you have any further queries regarding Learning Unit 1 or Lesson 1, please send an email to any
of the ILW1501 lecturers or post your queries under a relevant topic on “Discussion Forum 2: Student-
Lecturer Lounge” on the ILW1501 module site.
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LESSON 2: LEARNING UNIT 2 (LAW AND RIGHTS)
WEEK: 14/02 – 21/02

Welcome to Lesson 2 in which we provide you with an extra self-assessment activity on Learning Unit 2
of the Study Guide. It consists of 12 multiple-choice questions (MCQs). Each MCQ is followed by its
answer, detailed feedback, and comments.
the lessons. Read in this regard Announcement 2 posted on the ILW1501 site.
FOCUS AREAS
Before we get to the answers and detailed feedback to each multiple-choice question MCQ of Lesson 2,
Unit 2.
1. Description of the term “right”: the way people relate to objects (things) and to one another. See
Learning Unit 2, paragraph 2.2, p 25.
2. The above description of the term “right” clearly shows that every right concerns a dual legal
relationship. This dual legal relationship is made up two parts:
(1) a relationship between a legal subject (the holder of the right) and legal object (the object of the
right
AND
(2) a relationship between a legal subject and other legal subjects who must respect the right
Very important: For the dual relationship of a right, see Learning Unit 2, paragraph 2.2, pp 25-26 and p
31.
3. Before looking at the four classes of rights granted in terms of the private law, make sure that you can
describe and identify examples of the following terms:
3.1 legal subject
3.2 natural person
3.3 juristic person
3.4 legal object
3.5 meaning of “economic value” in the case of a legal object
Very important: See Learning Unit 2, p 26.
4. Identify four classes (kinds) of rights given to legal subjects by private law:
4.1 Real rights
4.1.1 What are real rights?

4.1.2 What is the object of a real right?
4.1.3 Identify and explain the examples of real rights and limited real rights in everyday real-life
scenarios:
► real right: right of ownership/ownership
► limited real rights: rights of pledge/pledge; rights of servitude/servitude
Very important: See Learning Unit 2, pp 27-29.
4.2 Personality rights
4.2.1 What are personality rights?
4.2.2 What is the object of a personality right?
4.2.3 Identify and explain the examples of personality rights in everyday real-life scenarios:
► right to physical integrity (right to own body)
► right to a good name
► right to a reputation
► right to own honour
4.2.4 Does the object of a personality right have economic value?
4.3 Intellectual property rights // Immaterial property rights
4.3.1 What are intellectual property rights or immaterial property rights?
Note: Intellectual rights or immaterial rights are not correct. The word property must be included in order
to be correct.
4.3.2 What is the object of an intellectual property right or an immaterial property right?
4.3.3 Identify and explain the examples of objects of intellectual property rights in everyday real-life
scenarios:
► work of art
► an invention
► a trademark
4.3.4 Copyright is an example of an intellectual or immaterial property right.
4.4 Personal rights
4.4.1 What are personal rights?

4.4.2 What is the object of a personal right?
4.4.3 Identify and explain the examples of personal rights in everyday real-life scenarios:
► right to the action of another person, in other words the right to do something, for example, a right
to the delivery of a car, a right to the payment of the purchase price by the buyer, a right to the services
of an employee.
► right not to do something
4.4.4 Know the difference between a personal right and a personality right.
Very important: See Learning Unit 2, pp 29-30; Activity 2.1 and Feedback, pp 33-35; Activity 2.2 and
Feedback, pp 35 and 36.
5. Other meanings of the term “right”
► right to use/sell your house refers to the powers of the content of the right
► right to appear in court refers to the capacity to appear in court
► right to enter a contract refers to the capacity to enter a contract
► right in our Bill of Rights may refer to a fundamental or human right
Very important: See Learning Unit 2, p 32; Activity 2.3 (1) and Feedback, page 37.
6. The connection between law and right
Very important: Study Learning Unit 2, Activity 2.3 (2) and Feedback, p 37; Activity 2.4 and Feedback,
p 38.
Thus, after reading Learning Unit 2, you should have been able to pick up that these focus areas of the
learning unit are very important! You should have also picked up that this Learning Unit was more
technical in nature. Which means that it requires you to learn terminology and specific definitions
rather than debate / provide arguments / theorise concepts.
MCQs for ILW1501".
Question 1
A right refers to…
(a) a rule that regulates human behaviour within our society.

(b) the way people relate to (objects) things and to one another.
(c) anything that is of economic or sentimental value to a person.
(d) a rule that must be obeyed by all members of society.
Answer 1
► After reading through Learning Unit 1 and completing Lesson 1, we know that a rule that regulates
human behaviour or that requires society to obey the rule, refers to a normative system and not a right.
Thus, options a and d may be ruled out immediately as possible answers.
► Let us now consider option c: An object of a right may be anything that is of economic or sentimental
value to a person. Therefore, this option does not explain what a right is, but rather what the object of a
right is.
Option c is thus incorrect.
► We are left with option b, which is the correct option as a right refers to the way people relate to
objects/things and to one another.
Question 2
Every right concerns a dual relationship. Indicate which option reflects the two parts of this dual
relationship correctly:
(a) a relationship between the holder of a right and the object of a right
(b) a relationship between a legal subject and a legal object
(c) a relationship between a legal subject and legal object, and other legal subjects
(d) a relationship between a legal subject and other legal subjects
Answer 2
This answer requires that you understand the two parts of the dual relationship specific to every right.
Recall the example provided in Learning Unit 2:
I have a right to my car, to my book, to the services of my employee, to the invention which I have
patented, to delivery of the thing which you have sold me. I also have a right against the person who has
sold me a car, against my employee who must provide me with his services, against all others who must
respect my right to my car, my book, and so on.
Thus, the dual relationship as regards a right reflects a relationship between a legal subject and legal
object, and other legal subjects.
Option c is correct.

Question 3
Which of the following options does NOT relate to the term “legal subjects”?
(a) natural and juristic persons
(b) bearers of rights and duties
(c) persons who are subject to norms of the law
(d) persons who are not under control of the law
Answer 3
Watch out for questions framed in the negative! This means that you need to find an option that does not
relate to a specific term/concept.
We know that a legal subject is a person who is subject to (or under the control of) the norms of the law
and who also may be the bearer (holder) of rights and duties. A legal subject refers to a person which
includes a natural and juristic person (for example, entities and companies). Thus, options a, b and c all
relate to the term “legal subjects’ and can be ruled out as possible options.
Therefore, option d is the correct option.
Question 4
Which of the following is NOT a legal object?
(a) a company
(b) a painting
(c) a good name
(d) a herd of cows
Answer 4
Again, this question is framed in the negative. We are therefore looking for options that do not relate to
a specific term/concept!
We have just learned that a legal subject includes a juristic person (Answer 3). Therefore, a company
(which is a juristic person) is a legal subject and cannot be a legal object. Thus, as options b, c and d refer
to legal objects, option a is the correct option.
Question 5
Which of the following options about ownership is correct?
(a) Ownership is a limited real right that cannot be limited.

(b) Ownership is a real right over movable or immovable property.
(c) Ownership does not include the owner’s power to destroy his property.
(d) Ownership does not include the owner’s power to alienate his property.
Answer 5
We know that when considering the right of ownership, the owner’s powers to freely use, alienate and
destroy the property he/she owns are the powers which form the content of the owner’s real rights of
ownership. Thus, options a, c and d are incorrect and can be ruled out as possible answers.
As ownership is a real right over moveable or immoveable property, option b is the correct option.
Question 6
Mr Venter and Mr Khumalo have been neighbours for some time. However, Mr Venter recently installed
a gutter system that causes water to flow right into Mr Khumalo’s property, damaging his plants. This is a
nuisance to Mr Khumalo and makes life very unpleasant for him, as he is an avid gardener.
In terms of the private law Mr Khumalo has a right to his property. What is the object of Mr Khumalo’s
right to his property called?
(a) a thing
(b) personality property
(c) performance
(d) a creation of the human mind
Answer 6
Did you recognise that this is a more difficult question? It includes a root/ scenario/ set of facts, a stem
and an answer set.
From the set of facts and the question that follows, we first need to determine what private law right Mr
Khumalo has to his property. The right that Mr Khumalo has to his property is called ownership. Thus, the
object of the right of ownership is a thing (in this case, Mr Khumalo’s home). Option a is therefore correct.
Question 7
Mr Nkomo and Mr Masina are both farmers in the Northern Cape. The Orange River runs through Mr
Nkomo’s farm. Mr Nkomo and Mr Masina have an agreement that Mr Masina has a right to use Mr
Nkomo’s farm to get his cattle to the river to drink water.
What is Mr Masina’s right called?
(a) a personal right
(b) a right of servitude
(c) a right of way
(d) a right of ownership
Answer 7
Again, this question includes a root/ scenario/ set of facts, a stem and an answer set. It is categorised as
more difficult.
► We first need to understand that Mr Masina has a limited real right to use Mr Nkomo’s farm to get his
cattle to the river where they may drink water. He may use a portion of Mr Nkomo’s property for this
purpose only.
► We also know that an example of a servitude includes a right of way over another person’s property.
► Regarding servitudes, a servitude holder has a limited real right to the property of another person.
Therefore, in this scenario, Mr Masina’s right is limited.
► However, this question requires you to choose the best possible answer as there are two options which
appear to be correct! Is the correct answer option b or c?
► Option c, a right of way, is only one example of the right of servitude i.e.: a limited real right. Other
examples of a right of servitude include a right of grazing, a right of conduction of electricity etc. (You will
learn more about the right of servitude and the examples which fall within the right of servitude when
you study the law of property).
► Thus, the actual right that Mr Masina has over Mr Nkomo’s property is called a right of servitude.
Option b is therefore correct.
Question 8
Read the scenario and answer the question that follows:
Sipho concluded a contract of sale with Zodwa. In terms of this contract, Sipho undertook to sell his motor
car, a red Mazda CX3, to Zodwa for R163 000. They agreed that Zodwa will pay the purchase price when
Sipho delivers the car to her. When Sipho wanted to deliver the car, Zodwa refused to pay the purchase
price. She told Sipho that she no longer liked the Mazda CX3 and decided to buy another motor car, a
white Toyota RAV.
In the scenario above both Sipho and Zodwa have rights in terms of the private law? Which rights are we
referring to?
(a) intellectual property rights

(b) personality rights
(c) personal rights
(d) human rights
Answer 8
Again, this question includes a root/ scenario/ set of facts, a stem and an answer set. It is categorised as
more difficult.
► Intellectual property rights relate to the creations of the human mind. A work of art, an invention, and
a trademark are examples of objects of intellectual property rights. Option a is thus incorrect.
► Personality rights are the rights each one of us has to parts of our person and personality. Examples of
these rights are the right to physical integrity (that is a right to your own body), the right to your good
name or reputation, and the right to your honour. Option b is thus incorrect.
► Human rights are fundamental rights protected by the Constitution. Thus, option d is incorrect.
Therefore option c is correct as personal rights are rights to performance/ claims.
[Learning Unit 2, pp 27- 30 and p 32]
Question 9
Rendani, an artist, always signs his name at the back of his paintings before sending them to the gallery.
In terms of the private law Rendani has a right to his artwork. What is his right to his artwork called?
(a) real right
(b) personal right
(c) immaterial right
(d) intellectual property right
Answer 9
We have just learned that intellectual property rights relate to the creations of the human mind. A work
of art, an invention, and a trademark are examples of objects of intellectual property rights. Thus,
Rendani’s right to his artwork is his intellectual property right.
Option d is correct.
Note to students:
Some students indicated option c (an immaterial right) as the correct option. Intellectual property rights
are also called immaterial property rights and not immaterial rights. Please read carefully and be aware
of the correct terminology used within the Study Guide.

Question 10
Which option indicates an example of a personal right?
(a) right to your person
(b) right to your reputation
(c) right to your payment
(d) right to your honour
Answer 10
► From the options provided, can you see that we are testing whether you know the difference between
a personal right and a personality right.
► Options a, b and d are examples of personality rights. Thus, they may be immediately ruled out as
possible options.
The right to payment is an example of a personal right and therefore the correct option is c.
Question 11
Jane Mothibe agreed with Brilliant Car Repairs to repair her motor vehicle. In terms of the contract,
Brilliant Car Repairs would provide the parts and the labour for which Jane would pay them R 10 000.
What is Jane’s right to enter into the contract called?
(a) a real right
(b) a personal right
(c) a capacity
(d) a human right
Answer 11
This question tested your ability to recognise the other meanings of the term, “right”.
Remember that when we speak of a “right to appear in court” or the “right to enter into a contract” we
are speaking of an “ability” which the law gives to a person in accordance with his status or legal standing.
It is usually indicated by the technical term “capacity”. Thus, option c is correct.
Note to students:
We do realise that placing the scenario which involved a legal subject and object before the question,
could have been confusing, leading students to believe that option b (personal rights) was the correct
option. We will therefore rephrase the question moving forward when we wish to test your knowledge of
a “capacity”.
Question 12
Which of the following options does NOT have anything to do with the connection between “law” and
“right”?
(a) The law determines what the content of a right is.
(b) The law determines what the powers of a legal subject are.
(c) The law prescribes what human behaviour and conduct are.
(d) The law prescribes what the limits to the content of a right are.
Answer 12
► This question is framed in the negative! We are therefore looking for an option that does not relate to
the specific concept, in this case, an answer that does not relate to the connection between law and rights.
► We know that “law” and “right” are connected, because it is the rules of law (legal rules) that decide
what the powers of the holder of a right are (in other words, the content of a right), and what the limits
to the content of a right are. Thus, options a, b and d may be ruled out as possible answers.
Option c is therefore correct.
lesson below:
https://mylifeunisaac-
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/EWt2v2dATuVHnHcXlF7YL3ABWiDoOHREvvg
raj3YXF_KsQ?e=wGfbiH
Kind regards,
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LESSON 3: LEARNING UNIT 3 (THE STORY OF OUR LAW)
WEEK: 21/02 – 28/02

Welcome to Lesson 3 in which we provide you with an extra non-compulsory self-assessment MCQ
activity on Learning Unit 3 of the Study Guide. It consists of 13 multiple-choice questions (MCQs). Each
MCQ is followed by its answer, detailed feedback and comments.
the lessons. Read in this regard Announcements 2 and 4 posted on the ILW1501 module site.
FOCUS AREAS
Before we get to the multiple-choice questions (MCQs), their answers, detailed feedback and
comments, we would like to provide a recap of the focus areas (i.e. more detailed learning outcomes) to
Learning Unit 3.
1. In Learning Unit 3 on page 42 we refer to five periods in the history of our law, namely:
(1) Roman law becomes Roman-Dutch law
(2) Roman-Dutch law comes to the Cape
(3) English law comes from Britain to the Cape
(4) The recognition of African customary law
(5) The establishment of a constitutional democracy in South Africa
2. We suggest that you draw a diagram of each period using the headings and the following focus areas.
This will make it easier for you to study the history.
Let us briefly look at each of these periods:
3. Roman law becomes Roman-Dutch law
This period is divided into two parts:
3.1.1 The history of the Romans and the Roman law
(1) The rise of the Roman Empire and the Roman law
► The Roman civilization was a powerful and successful society. The Roman Empire included Western
Europe, parts of Britain, North Africa and parts of Asia. It was governed by an emperor.
► Roman Empire was especially known for its law. During the Roman Empire Roman law reached its
peak in the form of classical Roman law. See Learning Unit 3, pp 42-43 for an explanation of the classical
Roman law.
(2) The split of the Roman Empire and the decline of Roman law
► See Learning Unit 3, p 43 for the factors which contributed to the fall of the Roman Empire, especially
the invasion of the Roman Empire by the Germanics.
► The fall of the Roman Empire resulted in the split of the Empire into Western and Eastern Roman
Empire. The split of the Empire resulted in the decline of the importance of the classical Roman law. Yet
it survived. Roman law survived more successfully in Eastern Empire than Western Empire.
(a) Western Empire
► Germanic tribes of Western Europe took over Western Roman Empire. Germanic law influenced
classical Roman law. Yet Roman law remained alive to be received in Europe in later centuries. (This is
known as the reception of Roman law into Europe.)
► STUDY in detail two factors which contributed to the survival of Roman law in the Western Empire:
■ Personality principle: The personality principle refers to the legal principle used by the Germanic rulers
after their invasion of the Western Roman Empire. According to the personality principle each person
lived according to the law of his or her own tribe. [See Learning Unit 3, pp 43-44.]
■ Role of the Roman Catholic Church and its church law known as canon law
[See Learning Unit 3, pp 43-44.]
(b) Eastern Empire
► Only Emperor Justinian played a role in the survival of classical Roman law in Eastern Empire. He is
known for the codification of the Roman law. Codification of law refers to the collection and writing
down of law as a code. STUDY his role on page 45 of Learning Unit 3.
3.1.2 How did Roman law become Roman-Dutch law?
(1) The revival of Roman law in Europe
► For many centuries after Justinian’s death the codification of Roman law was forgotten. Renewed
interest in Roman law started in the 12th century at medieval universities in Europe. In Italy jurists
started studying Roman law as contained in Justinian’s codification.
(2) The reception of Roman law in Europe
► All of the above events resulted in Roman law spreading throughout Europe three to five centuries
later.
► The reception of Roman law in the Netherlands is important for the history of our law. Reception of
law refers to the adoption of one law into another or the merger of one legal system with another.
► STUDY the reception of Roman law in the Netherlands that resulted in the Roman-Dutch law. [See
Learning Unit 3, p 46, sections in bold black print.]
► Jurists in Netherlands wrote commentaries on Roman-Dutch law. These commentaries were used
notes for students or as legal guides in legal practice. Who were the old authorities? Know their names.
[See Learning Unit 3, p 47, sections in bold black print.]
► Writings of Roman-Dutch jurists are still used in South African courts today.
3.2 Roman-Dutch law comes to Cape
3.2.1 Roman-Dutch law comes from the Netherlands to the Cape.
► How did Roman-Dutch law come to the Cape?
► Dutch settlement lived according to law that they knew. Thus Roman-Dutch law became applicable in
Cape through custom.
► Roman-Dutch law developed over time. Name the sources of law. [Learning Unit 3, p 48.]
3.2.2 The importance of Roman-Dutch law
See Learning Unit 3, pp 48-49.
3.3 English law comes from Britain to the Cape.
► When the English came to the Cape at first, they decided not to deliberately change the Roman-Dutch
law at the Cape. However, the influence of English law on the Dutch settlement was inevitable.
► STUDY the factors that contributed to the reception of English law at the time of the British
occupation of the Cape during 1806-1910. You will find these factors in black bold print on pp 49-50 of
Learning Unit 3.
► Merger of the Roman-Dutch law and English law to form common law [See Learning Unit 3, p 50.]
3.4 The role of African customary (indigenous) law
In this section, you must STUDY the position of the African customary (indigenous) law. [See Learning Unit
3, pp 50-52.]
Focus on:
► the nature of African customary (indigenous) law
► the position of African customary (indigenous) law, in other words whether it was officially recognised
and applied as law or not
During the following periods:
3.4.1 At the Cape when the Dutch arrived.
3.4.2 From the British arrival to apartheid.
3.4.3 Since the establishment of our constitutional democracy.
3.5 The establishment of a constitutional democracy in South Africa
3.5.1 The apartheid regime
► Where was the law found?
► Position of parliament?
3.5.2 South Africa’s first democratic Constitution
STUDY:
► South Africa’s different Constitutions:
(1) three non-democratic Constitutions
(2) interim Constitution of 1993 (also non-democratic)
(3) Constitution of the Republic of South Africa, 1996 (first democratic Constitution)
► Concept legal pluralism [See Learning Unit 3, pp 54-55.]
Thus, after reading Learning Unit 3, you should have been able to pick up that these focus areas of the
learning unit are very important! You should have also picked up that this Learning Unit was historical in
nature. Which means that it requires you to learn terminology, specific definitions, and historical facts
rather than debate / provide arguments / theorise concepts.
MCQs for ILW1501".
Question 1
Which of the following does not form part of the development and composition of South African law?
(a) Roman law comes to the Cape of Good Hope.
(b) English law comes from Britain to the Cape.
(c) African customary law receives official status as law.
(d) South Africa becomes a constitutional democracy.
Answer 1
Watch out for the negative in the question!
In Learning Unit 3 on page 42 we refer to five periods in the history of our law, namely:
(1) Roman law becomes Roman-Dutch law
(2) Roman-Dutch law comes to the Cape
(3) English law comes from Britain to the Cape

(4) The recognition of African customary law
(5) The establishment of a constitutional democracy in South Africa
If you compare the four options of Question 1 to the five periods discussed in Learning Unit 3, you will
notice that options (b), (c) and (d) overlap with periods (3), (4) and (5). Options (b), (c) and (d) therefore
form part of the development and composition of the South African law and are correct. Options (b), (c)
and (d) are therefore ruled out as possible answers.
Option (a) Roman law comes to the Cape of Good Hope does not form part of the development and
composition of South African law because Roman law as a legal system did not come to the Cape of
Good Hope. It was Roman-Dutch law that came to the Cape. See period (2) above. Option (a) is therefore
incorrect and the answer to the question.
It is very important to note that the first period refers to Roman law that becomes Roman-Dutch law, in
other words Roman law that was received into Dutch law to form the Roman-Dutch law. Then the second
period is applicable when Roman-Dutch law came to the Cape and formed part of the development and
composition of South African law.
This question is straight-forward and easy, if you have read it carefully and noticed that option (a) is
incorrect as it refers to Roman law, and not Roman-Dutch law.
Question 2
During the Roman Empire, its law reached its peak of development in the form of the writings of jurists
and to some extent the legislation of emperors.
What is the law of this period called?
(a) Roman canon law
(b) classical Roman law
(c) Roman imperial law
(d) customary Roman law
Answer 2
This question consists of a stem and an answer set and is therefore categorised as a straight-forward
question. The question is simply which law applied when the Roman Empire reached its peak.
Option (a) is incorrect as there is no law called Roman canon law and is ruled out as a possible answer.
If you read option (b) and really know the content of Learning Unit 3 well, you will immediately know
that option (b) is correct because the classical Roman law was applicable when the Roman law reached
its peak during the Roman Empire. What was the classical Roman law? The answer is of course the
extensive writings of the jurists and to some extent the legislation of the emperors. It is because of the
extensive writings of the jurists and the legislation of some emperors that the Roman law reached its
height.
Since option (b) is correct, you only need to consider options (c) and (d) very quickly to confirm that
they are irrelevant regarding this question and that they are therefore incorrect. Options (c) and (d) are
indeed incorrect and may be ruled out as the answer to the question.
The answer to Question 2 is therefore option (b). [See Learning Unit 3, pp 42-43.]
Question 3
Which factors played a role in the survival of Roman law in the Western Empire after the Germanic
invasion?
(a) The rise of the Roman Empire and the peak of Roman law
(b) The split of the Roman Empire and the decline of Roman law
(c) The personality principle and the role of the Roman Catholic Church
(d) The renewed interest in Roman law and its reception throughout Europe
Answer 3
This question consists of a stem (a direct question) and a set of answers. It is therefore categorised as a
straight-forward question.
Option (c) is clearly the correct answer to the question because the two factors that played a role in the
survival of Roman law in the Western Empire after the Germanic invasion were the personality principle
and the role of the Roman Catholic Church.
Question 4
Which of the following about the canon law is incorrect?
(a) The church law of the Roman Catholic Church became known as canon law.
(b) Roman law formed the foundation of the canon law of the Catholic Church.
(c) Church courts used canon law to decide on questions regarding marriage.
(d) The influence of canon law remained in Europe after the Germanic invasion.
Answer 4
This question is a straight-forward question about the canon law. It consists of a stem (a direct question)
and an answer set. But look out! The question is phrased in the negative!
Options (a), (b) and (c) deal with the canon law and are clearly correct.
Therefore option (d) is incorrect as canon law did not remain in Europe after the Germanic invasion.
Canon law had an important influence on the development of modern law. Even South African law
inherited certain legal principles from canon law. One such an example is that a mere agreement between
two persons can be enforced by law.
The answer to Question 4 is therefore option (d). [See Learning Unit 3, page 44.]
Question 5
Which factor played a role in the survival of classical Roman law in the Eastern Empire after the split of
the Roman Empire?
(a) The influence of the Roman law on the Greek civilization of the Eastern Empire
(b) The emperor Justinian’s success in reuniting the Western and Eastern Empires
(c) The emperor Justinian’s collection of the Roman law in the Corpus Iuris Civilis
(d) The different kinds of law developed by jurists and emperors before AD527
Answer 5
This question consists of a stem (a direct question) and a set of answers. It is therefore categorised as a
straight-forward question.
Option (c) is clearly the correct answer to Question 5 because the factor that played a role in the survival
of classical Roman law in the Eastern Empire after the split of the Roman Empire was indeed Emperor
Justinian’s collection of the Roman law in the Corpus Iuris Civilis.
[See Learning Unit 3, p 45.]
Question 6
Which of the following regarding the Roman-Dutch law coming to the Cape in the 17th century is
incorrect?
(a) The Dutch brought Roman-Dutch law from the Netherlands to the Cape when they started a trading
post in the 17th century for ships on their journey from the Netherlands to the East.
(b) The Dutch settlement at the Cape lived according to the Roman-Dutch law that they brought from the
Netherlands and we can therefore accept that Roman-Dutch law became applicable in the Cape through
custom.
(c) The Roman-Dutch law further developed at the Cape and later the only source of law became the
writings of the old Roman-Dutch jurists from the Netherlands, also known as the old authorities.
(d) South African courts still use the writings of the Roman-Dutch jurists and so Roman-Dutch law has
become part of our legal tradition, which enables South African lawyers to interact with lawyers across
the world.
Answer 6
Another question in the negative! The question consists of a stem (a direct question) and an answer set.
Since the options are quite long, the question appears to be more difficult. We therefore advise you to
read the options very carefully and then you will realise that the question is actually not so difficult. The
question deals with the Roman-Dutch law coming to the Cape in the 17th century. Let us look at the
different options.
Options (a), (b) and (d) are clearly correct and may be ruled out as possible answers. [See Learning Unit 3,
p 48.]
The only option left is option (c). It appears as if option (c) may also be correct because the writings of
the old Roman-Dutch jurists from the Netherlands were indeed a source of law when the Roman-Dutch
law further developed at the Cape. However, the use of the word “only” in the statement should have
made you suspicious. The writings of the old Roman-Dutch jurists were not the only source of law. The
law was also found in custom, legislation, and court decisions. [See Learning Unit 3, p 48.]
Hint: Look out for words such as only, always, and never. These words may be an indicator of statement
being correct or incorrect.
The answer to Question 6 is therefore option (c).
Question 7
Which of the following factors did not contribute to the reception of English law at the time of the British
occupation of the Cape during 1806-1910?
(a) Judges and advocates received their legal training in England.
(b) The English jury system was received at the Cape.
(c) The English law was formally received through legislation.
(d) The English customary law governed the lives of the Dutch.
Answer 7
This question consists of a stem (a direct question phrased in the negative) and an answer set. The
question deals with the factors that contributed to the reception of English law at the time of the British
occupation of the Cape during 1806-1910. It is therefore categorised as a straight-forward question.
When you read Learning Unit 3 page 49, you will immediately see in black bold print the factors that
contributed to the reception of English law at the time of the British occupation of the Cape during 1806-
1910.
Options (a), (b) and (c) clearly refer to factors that contributed to the reception of English law at the Cape
during 1806 -1910 and are correct.
Therefore option (d) must be incorrect and is the answer to Question 7.
Question 8
The Appellate Division of the Supreme Court played an important role in the forming of the “common
law”. Which of the following about the “common law” is incorrect?
(a) Common law is officially the only law of South Africa.
(b) Common law is one of our present-day sources of law.
(c) Common law is Roman-Dutch law as influenced by English law.

(d) Common law is the foundation of the South African legal system.
Answer 8
This question also consists of a stem (a direct question phrased in the negative) and an answer set. In this
question we test your knowledge of the meaning “common law”. This is a straight-forward question if you
know your work well.
Options (b), (c), and (d) are clearly correct and may be ruled out as possible answers. [See Learning Unit
3, p 50.]
Therefore, option (a) must be incorrect. Until the 1990s common law was officially the only law of South
Africa. However, since the adoption of the first democratic Constitution of the Republic of South Africa,
1996 African customary (indigenous) law has also been officially recognised in the Constitution as part of
the South African legal system. [See Learning Unit 3, pp 54-55.]
The answer to Question 8 is therefore option (a).
Question 9
Which statement regarding the recognition of African customary law during the history and development
of South African law is incorrect?
(a) Dutch authorities neither interfered with nor recognised the customary laws of the different
indigenous African tribes of Southern Africa when they arrived at the Cape in the 17th century.
(b) The post-colonial authorities and apartheid governments officially recognised African customary law
as part of South African law in a written codification, namely the Black Administration Act of 1927.
(c) Today, African customary law is still recognised as law that develops within indigenous communities
and is largely made up of oral or unwritten customs handed down from generation to generation.
(d) Section 211(3) of the Constitution of the Republic of South Africa, 1996 gives African customary law
formal status in South African law by stating that courts must apply it, except if it is contrary to the
Constitution.
Answer 9
This question consists of a stem (a direct question in the negative) and an answer set. Since the options
are quite long, the question appears to be difficult. However, when you read the options carefully you will
realise that the question is quite straight-forward. The question deals with the recognition of African
customary law during the history and development of South African law. Let us look at the different
options.
Option (a) is correct and may be ruled out as a possible answer. [See Learning Unit 3, p 51.]
Option (b) is incorrect, because the post-colonial authorities and apartheid governments did not officially
recognise African customary law as part of South African law in a written codification. During the post-
colonial period and the era of apartheid, a uniform policy for the entire South Africa regarding the
recognition and application of African customary law was laid down in legislation, not in a written code,
for example the Black Administration Act of 1927. [See Learning Unit 3, p 51.]
Since option (b) is incorrect, you only need to consider options (c) and (d) very quickly to confirm that
they are correct. Are they? Yes, they are indeed. [See Learning Unit 3, p 52.]
The answer to Question 9 is therefore option (b).
Question 10
What is the correct term used for African customary law that has to some extent been recorded in writing,
for example in legislation, court decisions and textbooks?
(a) primary customary law
(b) official customary law
(c) unofficial customary law
(d) living customary law
Answer 10
This question is categorised as straight-forward since it consists of a stem (a direct question) and an
answer set.
The correct term used for African customary law that has to some extent been recorded in writing, for
example in legislation, court decisions and textbooks is official customary law. Therefore, option (b) is
correct and the answer to the question. [See Learning Unit 3, pp 51-52.]
Note that the terms used in options (c) and (d), namely “unofficial customary law” and “living customary
law” refer to African customary law that develops within indigenous communities and that is largely made
up of oral or unwritten customs handed down from generation to generation. [See Learning Unit 3, pp 51-
52.]
Note to students: Make sure that you know the difference between these concepts.
Question 11
How many democratic Constitutions has South Africa had during the course of the history of South African
law?
(a) One
(b) Two
(c) Three
(d) Four
Answer 11
This question tricks many of you! It is categorised as a straight-forward question since it consists of a stem
(a direct question) and an answer set.
South Africa has had five (5) Constitutions during the course of the history of South African law. However,
only ONE of them is a democratic Constitution. And this is the Constitution of the Republic of South
Africa, 1996. Therefore, option (a) is clearly the correct answer to Question 11.
[See Learning Unit 3, pp 53-54; and Activity and Feedback 3.2 (4) & (5), pp 56-58.]
Question 12
Which of the following regarding the interim Constitution of 1993 is incorrect?
(a) The Constitution was called an “interim” Constitution because its existence was limited to two years.
(b) The interim Constitution determined that the Constitutional Assembly be given the task of writing the
final Constitution.
(c) The interim Constitution set out 34 constitutional principles with which the final Constitution had to
comply with.
(d) The interim Constitution was a democratic Constitution written by a democratically elected
government.
Answer 12
This question is categorised as straight-forward since it consists of a stem (a direct question in the
negative) and an answer set. It deals with the interim Constitution of 1993.
Options (a), (b), and (c) are correct and may be ruled out as possible answers.
Therefore option (d) must be incorrect and is the answer to Question 12. The interim Constitution of
1993 was not a democratic Constitution because it was not written by a democratically elected
government.
[See Learning Unit 3, p 54; and Activity and Feedback 3.2 (5), pp 56-58.]
Question 13
Indicate the correct option:
The fact that various systems of law are applied in South Africa is known as:
(a) the personality principle
(b) the reception of law
(c) legal pluralism
(d) codification of law
Answer 13
This question is categorised as more complex as it requires you to complete a sentence correctly.
It provides you with an explanation of a legal concept used in Learning Unit 3 and you must determine
which legal concept it describes.
Option (a) is incorrect and may be ruled out as a possible answer. The personality principle refers to the
legal principle used by the Germanic rulers after their invasion of the Western Roman Empire. According
to the personality principle each person lived according to the law of his or her own tribe. [See Learning
Unit 3, pp 43-44.]
Option (b) is incorrect and may be ruled out as a possible answer. Reception of law refers to the adoption
of one law into another or the merger of one legal system with another. For example, the reception of
Roman law in the Netherlands that resulted in the Roman-Dutch law. [See Learning Unit 3, p 46.]
Option (d) is incorrect and may be ruled out as a possible answer because codification of law refers to
the collection and writing down of law as a code. [See Learning Unit 3, p 45.]
Therefore option (c) must be correct and is therefore the answer to Question 13. The fact that various
systems of law are applied in South Africa is known as legal pluralism. [See Learning Unit 3, p 54.]
Note to students: Make sure that you know the descriptions of all the concepts referred to above.
lesson below:
Lesson 3 video lecture AJ edited.mp4
Note: In the video there is a mistake in the text of Answer 6. It states that options (a), (b) and (c) are
correct and that option (d) is incorrect. However, we have corrected Answer 6 above to state that
options (a), (b) and (d) are correct and that option (c) is incorrect.
----------------------------------------------------------------------------------------------------------------------------- ---------
LESSON 4: LEARNING UNIT 4 (FAMILIES OF LAW OR LEGAL CULTURES)
WEEK: 28/02 – 07/03
FOCUS AREAS
Unit 4.
Learning Unit 4 teaches you that there are different legal systems in the world. All these legal systems
form part of a world legal order.
The different legal systems in the world are grouped or classified into families of law (legal families) or
legal cultures.
How do we know to which legal family a specific legal system belongs? Scholars use different standards
or criteria to group or classify the legal systems of the world into legal families or legal cultures.
Please study the document "Lesson 4: Focus Areas and Diagram" uploaded under "Additional Sources"
that will make it easier for you to understand. Click on the link below to find the diagram:
https://mymodules.dtls.unisa.ac.za/pluginfile.php/16196112/mod_folder/content/0/Lesson%204%2
0Focus%20Areas%20and%20Diagram/Lesson%204_Focus%20Areas%20and%20Diagram.pdf
MCQs for ILW1501".
Question 1
Which of the following options that deal with the world legal order is incorrect?
a. The concepts “families of law”, “legal families” and “legal cultures” all relate to the world legal order.
b. The concepts “legal systems of the world” and “legal families of the world” are the same.
c. A country’s legal system may reflect the influence of the country’s culture on its law.
d. Certain standards are used to group the world’s different legal systems into legal families.
Answer 1
This question consists of a stem (a direct question) and an answer set. It is a direct question and is
therefore categorised as a straightforward and easy question.
Option a is correct because all the concepts relate to the world legal order. [See Learning Unit 4, pp 59-
60.]
Read option b very carefully. Students confuse the concepts “legal systems” and “legal families”. Legal
systems and legal families are not the same. There is indeed a difference between these two concepts.
Legal systems of the world are legal systems that apply in different countries of the world. By using certain
standards/criteria, legal systems are grouped into different legal families. Option b is therefore incorrect.
Since option b is incorrect, you only need to consider options c and d very quickly to make sure that they
are correct. Are they? Yes, they are indeed. [See Learning Unit 4, p 60.]
The answer to Question 1 is therefore option b.
Question 2
Which of the following criteria deals with a legal system’s sources of law and their importance when
grouping legal systems into legal families?
a. the philosophy of the legal system
b. the economic elements of the legal system
c. the style and technique of the legal system
d the system of values of the legal system
Answer 2
This question consists of a stem (a direct question) and an answer set and is regarded as straight forward
and easy. The question deals with the criteria or standards used when grouping legal systems into legal
families.
In this question we want to determine whether you can identify the specific standard that deals with
sources of law and their importance when legal systems are grouped into legal families. Option c is clearly
correct because the style and technique of a legal system refer to the sources of law within a particular
legal system and their importance. [See Learning Unit 4, p 61.]
Did you realise that options a and d refer to the same standard of the philosophy of the legal system and
are thus not relevant to the question? Option b refer to economic elements and is also not relevant to the
sources of law as a standard.
Note to students: Make sure that you can identify the three criteria used when grouping legal systems
into legal families. Also make sure that you can explain each of the criteria. [See Learning Unit 4, p 61.]
The answer to Question 2 is therefore option c.
Question 3
Which of the following criteria deals with a legal system’s beliefs or values when grouping legal systems
into legal families?
a. the philosophy of the legal system
b. the economic theories of the legal system
c. the style and technique of the legal system
d. the economic elements of the legal system
Answer 3
This question also deals with the criteria or standards used when grouping legal systems into legal
families. The question consists of a stem (a direct question) and an answer set and is regarded as straight
forward and easy.
In this question we want to determine whether you can identify the specific standard that deals with a
legal system’s beliefs or values when grouping legal systems into legal families. Option a is clearly correct
because the philosophy of a legal system refers to a legal system’s beliefs or values. [See Learning Unit
4, p 61.]
Did you realise that options b and d refer to the same standard of economic elements and are thus not
relevant to the question? Make sure that you can identify the three criteria used when grouping legal
systems into legal families. Also make sure that you can explain each of the criteria. [See Learning Unit 4,
p 61.]
The answer to Question 3 is therefore option a.
Question 4
Every legal family has an important characteristic that is common to the legal systems that belong to that
legal family. Which option is incorrect?
a. Roman law played a role in the development of the legal systems belonging to the civil-law legal family.
b. Romano-Germanic law played a role in the development of legal systems belonging to the common-
law legal family.
c. The focus of legal systems belonging to the socialist legal family is on social and economic policies.
d. The focus of legal systems belonging to the indigenous legal family is on the community.
Answer 4
This question has a stem (a direct question) and a set of answers. The question deals with the important
characteristic/s of each legal family. Legal systems that belong to a specific legal family will all have these
important characteristic/s in common. This question appears to be difficult but is in fact straight forward
and easy.
Option a is correct since Roman law played a very important role in the development of legal systems that
belong to the civil-law legal family. Since the option is correct, it may be ruled out as a possible answer.
[See Learning Unit 4, Activity 4,1, p 64.]
The Romano-Germanic law did not play a role in the development of legal systems belonging to the
common-law legal family. Case law did. Option b is therefore incorrect and a possible answer. [See
Learning Unit 4, Activity 4,1, p 64.]
Option c is correct since the focus of legal systems belonging to the socialist legal family is on social and
economic policies. Since the option is correct, it may be ruled out as a possible answer. [See Learning Unit
4, Activity 4,1, p 64.]
Option d is also correct since the focus of legal systems belonging to the indigenous legal family is on the
community. Since the option is correct, it may be ruled out as a possible answer. [See Learning Unit 4,
Activity 4,1, p 64.]
The answer to Question 4 is therefore option b.
Question 5
Which of the following countries’ legal systems fall within the civil-law legal family?
a. France
b. Scotland
c. England
d. Sri Lanka
Answer 5
This question is categorised as straight-forward since it consists of a stem and an answer set. The
question deals with the examples of legal systems that belong to the civil-law legal family.
If you consider option a, you should realise that France is an example of a country that falls within the
civil-law legal family. Option a is therefore a possible answer. [See Learning Unit 4, p 64.]
Since option a is a possible answer, you only need to quickly consider the other countries’ legal systems
to make sure that they do not fall within the civil-law legal family. [See Learning Unit 4, p 64.]
Scotland and Sri-Lanka are examples of countries that fall within the mixed/hybrid legal family. Thus,
options b and d may be ruled out as possible answers. [See Learning Unit 4, p 65.]
England is an example of a country that falls within the common-law legal family. Thus, option c may be
ruled out as an answer too. [See Learning Unit 4, pp 64-65.]
As France is the only example of a country that falls within the civil-law legal family, option a, is
therefore the answer to Question 5.
Question 6
Which of the following countries’ legal systems fall within the common-law legal family?
a. France and The Netherlands
b. America and Scotland

c. Australia and New Zealand
d. England and South Africa
Answer 6
This question is categorised as straight-forward since it consists of a stem and an answer set. The question
deals with the examples of legal systems that belong to the common-law legal family.
If you consider option a, you should realise that France and the Netherlands are examples of countries
that fall within the civil-law legal family, not the common-law legal family. Option a is therefore incorrect
and may be ruled out as a possible answer. [Learning Unit 4, p 64.]
Read option b carefully. It appears correct because the legal system of America falls within the common-
law legal family. However, Scotland is an example of a country which legal system falls within the
mixed/hybrid legal family. Thus, option b is incorrect and may also be ruled out as a possible answer.
[Learning Unit 4, pp 64-65.]
Your eye should immediately have caught option c because both Australia and New Zealand’s legal
systems fall within the common-law legal family. Option c is therefore correct and the option you had
to choose. [Learning Unit 4, p 64.]
Option d appears correct because England is an example of a country that falls within the common-law
legal family. However, South Africa is an example of a country which legal system falls within the
mixed/hybrid legal family. Thus, option d is incorrect and may also be ruled out as a possible answer.
[Learning Unit 4, pp 65-64.]
Question 7
Which of the following legal systems does not fall under the religious legal family?
a. Jewish
b. Hindu
c. Marxism
d. Islamic
Answer 7
This question is categorised as straight-forward an easy since it consists of a stem and an answer set. The
question deals with the examples of legal systems that belong to the religious legal family.
Jewish, Hindu and Islamic legal systems clearly fall under the religious legal family. Options a, b, and d are
therefore correct. [See Learning Unit 4, p 62.]
Option c is clearly incorrect since Marxism is not an example of a legal system that belongs to the religious
legal family, but an important characteristic of socialist legal systems that belong to the socialist legal
family. [See Learning Unit 4, p 62.]
Question 8
Different legal systems influenced the development and composition of South African law. Which legal
system did not officially play a role in the development and composition of South African law?
a. Roman law
b. Roman-Dutch law
c. English law
d. African customary law
Answer 8
After our discussion of Learning Unit 3 on the story of our law, there is no doubt that Roman-Dutch law,
English law and African customary law played a definite role in the development and composition of South
African law. Options b, c, and d are therefore correct. [See Learning Unit 3, Activity and Feedback 3.2 (1),
p 55 and p 57.]
Option a is clearly incorrect since Roman law as an independent legal system did not officially play a role
in the development and composition of South African law. It is important to remember that Roman law
that forms part of the Roman-Dutch law, in other words the Roman law that was received into Dutch law
to form Roman-Dutch law, played a role in the development and composition of South African law.
The answer to Question 8 is therefore option a.
Question 9
We classify the South African legal system as a hybrid legal system, because three legal systems that
belong to three different legal families played a role in the development of our law.
Look at the following options. Each option provides three legal systems and the legal family to which each
legal system belongs. Which option is correct in reflecting South African law as a hybrid legal system?
a. • Roman law from the civil-law legal family
• Dutch law from the common-law legal family
• Canon law from the religious legal family
b. • Dutch law from the civil-law legal family
• English law from the common-law legal family
• African law from the religious legal family
c. • Roman-Germanic law from the civil-legal family
• Anglo-American law from common-law family
• Customary law from the indigenous legal family

d. • Roman-Dutch law from the civil-law legal family
• English law from the common-law legal family
• African customary law from the indigenous law family
Answer 9
In Question 9 we test your understanding of South African law as a legal system belonging to the category
of hybrid/mixed legal families. It consists of a fairly long stem, that includes a direct question, and an
answer set. However, as the options are similar, it could be considered as a more difficult question.
Therefore, we advise you to read through the options very carefully and eliminate the incorrect
statements as you read.
In Learning Unit 4 on page 65, you read that South African law is classified as a hybrid legal system
because various components or legal systems played a role in its development. These components are:
• Roman-Dutch law (which forms part of the civil-law legal family);

• English law (which forms part of the common-law legal family); and
• African customary (indigenous) law (which forms part of the indigenous legal family) all
played a role.
If you bear the above in mind when you read the options, options a, b and c are incorrect and may be
ruled out as possible answers.
Therefore, option d must be correct and the answer to Question 9.
Question 10
Which legal families contributed to the development of South African law as a legal system belonging to
the category of mixed legal families?
a. civil-law; religious; indigenous
b. common-law; religious; indigenous
c. civil-law; common-law; indigenous
d. hybrid; common-law; indigenous
Answer 10
As in Question 9, we also test in Question 10 your understanding of South African law as a legal system
belonging to the category of hybrid/mixed legal families. However, Question 10 is phrased differently.
It is also categorised as straight-forward since it consists of a stem (a direct question) and an answer set.
However, as the options are similar, it could be considered as more complex!
Use the same method as in Question 9 to get to the correct answer. Options a, b and d are clearly incorrect
and may be ruled out as possible answers.
Thus, option c must be correct.
[See Learning Unit 4, p 65]

lesson below:
Lesson 4 learning unit 4 edited 2023.mp4
Kind regards,
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LESSON 5: LEARNING UNIT 5 (DIVISIONS OF LAW)
WEEK: 07/03 - 14/03
Welcome to Lesson 5 in which we provide you with an extra self-assessment activity on Learning Unit
5 of the Study Guide. It consists of 10 multiple-choice questions (MCQs).
FOCUS AREAS
1. After reading through Learning Unit 5, you should be able to distinguish:
• The main divisions of the law;
• Divisions of these main divisions;
• Subdivisions of these divisions;
• Further subdivisions of the law; and
• Other areas of the law.
Note: If this sounds like a tongue twister to you then please refer to the Diagram on page 68 of the
Learning Unit. We provide a detailed visual breakdown of the divisions of the law in this diagram!
2. You must be able to recognise the differences between the main divisions of our law: Public and Private
law. The public law is concerned with public interests (eg: interests of the community) while the private
law deals with individual interests.
3. The public law has five (5) divisions. The law of procedure under the public law has three (3)
subdivisions.
4. You will also notice that the divisions of the private law appear to be more complex than the divisions
under the public law.
5. The private law has four (4) divisions. The law of patrimony has three (3) subdivisions. The law of
succession (a subdivision under the law of patrimony) has a further two (2) subdivisions.
6. The law of obligations (also a subdivision under the law of patrimony) has a further three (3)
subdivisions.
7. We then also have other areas of law that do not strictly belong to the public or private law and may
fall under both main divisions of the law.
Note: Activities 5.1 and 5.2 provide a practical application of the divisions of our law to real life scenarios.
Ensure that you understand these activities and their feedback!
[See Learning Unit 5, pp 74-82]
Note 1: Ensure that you have the Diagram on page 68 of Learning Unit 5, on hand as you work through
the questions!
Note 2: For purposes of the examination, you must study the Diagram on page 68. You must also study
the description of each of the main divisions, divisions, subdivisions and further subdivisions of law as well
as the other areas of law. MCQs in the examination may not only require you to identify the different
divisions but may also require you to find the correct description of the different divisions.
Question 1
Two main divisions in our law can be described as:
a. criminal and civil law
b. constitutional and administrative law
c. legal philosophy and mercantile law
d. public and private law
Answer 1
This question consists of a stem and an answer set and is therefore categorised as a straight-forward
question. You should have recognised that answers a, b and c refer to divisions of the private law, public
law and other areas of the law. Thus, options a, b and c may be ruled out as possible answers.
The correct answer is option d as our law is divided into two main divisions ie: the public and the private
law.
[See Learning Unit 5, pp 68 – 71.]

Question 2
Which one of the following options is the odd one out? (Hint: look for an option that is different in
comparison to the other options provided)
a. international law
b. law of patrimony
c. administrative law
d. constitutional law
Answer 2
Although this question consists of a stem and an answer set and is categorised as a straight-forward
question, it may be considered more complex as it requires you to find an option that is different in
comparison to the majority of options provided.
Let us now consider each option carefully:
• Option a – International law falls under the public law
• Option b – Law of patrimony falls under the private law
• Option c – Administrative law falls under the public law
• Option d – Constitutional law again falls under the public law
Can you see that the majority of our options fall under the public law, thus, option b (the law of patrimony
which falls under the private law) is the odd one out.
Option b is thus the correct option.
[See Learning Unit 5, pp 68 – 72.]
Question 3
Read the scenario and complete the sentence that follows by choosing the correct option:
Thato and Mbali have been friends for many years. However, Thato has noticed Mbali’s behaviour
changing towards her lately. One morning as Thato is scrolling through Facebook, she notices that Mbali
posted nasty, negative statements about her which have no truth to them. The negative statements were
made public by Mbali and are now trending on social media. Thato is very upset and seeks legal advice
from you.
The above scenario will fall under the private law because…
a. the case will involve the state and an individual.
b. the interests of the whole community are involved.
c. Mbali has committed a criminal offense against Thato.
d. individual interests are protected under the private law.

Answer 3
This question consists of a scenario, stem and answer set. It is categorised as more difficult. However, the
question itself is not that difficult!
Let’s have a look:
From the set of facts we are able to establish that this is a dispute between Thato and Mbali in that Mbali
has been posting untrue statements about Thato which offend her. This matter falls under the private
law. We also know that the private law protects the interests of individuals.
Option d is therefore correct.
Question 4
Read the scenario in Question 3 and answer the following question:
Which division of the private law does the publication of defamatory statements relate to?
a. law of personality
b. law of patrimony
c. law of persons
d. law of evidence
Answer 4
Remember that the law of personality is concerned with what we call “personality rights”. We have rights,
for example, as far as our body, our reputation, and our dignity are concerned. If someone publishes
defamatory statements about us (that is statements about us that are bad or perhaps untrue and that are
likely to damage our reputation), she may be forced, in terms of the law of personality, to pay a sum of
money to us as satisfaction.
Therefore, option a is correct.
Question 5
Read the scenario and complete the sentence that follows by choosing the correct option:
A prominent member of parliament has been exposed for his involvement in corrupt activities where
taxpayers’ money was allegedly used to conduct extensive improvements to his private, residential
townhouse in Sandton. You are part of an activist organisation who provides legal advice to its members.
The members as a collective would like to take the Minister to court.
The scenario above describes a:
a. private law matter

b. public law matter
c. international law dispute
d. law of procedure dispute
Answer 5
This question consists of a scenario, stem and answer set. It is categorised as more difficult because you
must apply your knowledge about the divisions of law to answer the question.
From the set of facts we are able to establish that members of the activist organisation would like to take
a member of parliament (ie: a Minister/ public employee) to court. Since this dispute involves the State
and an organisation and impacts the public interests, this is a public law matter.
Option b is correct.
Question 6
Read the scenario in Question 5 and the statement below, and answer the question that follows:
“The Judge found the Minister guilty of the unlawful act of corruption and sentenced him to five (5) years
in prison.”
What division of the public law describes which acts are considered crimes and what penalties should
be imposed by the state for the commission of crimes?
a. law of delict
b. administrative law
c. criminal law
Answer 6
We know that this is a public law matter already. We now need to establish which division of the public
law is described by the statement provided above. As the criminal law describes which acts are considered
crimes and what penalties should be imposed by the state for the commission of crimes, option c is
correct.
Question 7
Mrs Mothibe takes great pride in her exotic flower collection which has grown in size and monetary value
over the years. She enters into a written contract with Superb Spraying Specialists who agree to treat and
water her exotic plants every month on a weekly basis. One morning, Mrs Mothibe wakes up to find her
entire collection of exotic plants dead in her garden. She is furious and after her own investigation finds
out that Superb Spraying Specialists have been spraying her plants with a harmful pesticide instead of a
plant grower. Mrs Mothibe is adamant to sue the company and claim damages amounting to millions of
Rands. She turns to you for legal advice.
Which main division of our law will be applicable to this problem?
a. labour law
b. private law
c. public law
d. contract law
Answer 7
This is another more complicated scenario! However, the actual question is not very complex, provided
you understand the facts contained in the scenario.
You should have been able to identify that this scenario relates to a dispute between Mrs Mothibe and
Superb Spraying Specialists ie: an individual and a company. Therefore, as individual interests are the
concern in this scenario, the private law is applicable.
Option b is correct.
Question 8
Which division of your answer in Question 7 will be applicable?
a. law of persons
b. law of delict
c. law of patrimony
d. law of contract
Answer 8
Now here is where the question becomes more complicated. You are required to identify the division of
the private law that is applicable. As the scenario deals with Mrs Mothibe and her “means” (ie: her exotic
plant collection that has a high monetary value), the law of patrimony would be applicable here.
Note: As this question asks you for the division of the private law that is applicable, the law of contract is
not the correct answer at this stage. The law of contract is a further subdivision of the law of obligations
and is applicable to our answer in question 10.
Question 9
Which subdivision of your answer in Question 8 will be applicable?
a. law of testate succession
b. law of intestate succession
c. law of personality
d. law of obligations
Answer 9
Again, this question is a more complicated one as it requires you to identify the subdivision of the law of
patrimony that is applicable to the scenario.
As Superb Spraying Specialists has a duty to perform in terms of their contract with Mrs Mothibe and Mrs
Mothibe has a corresponding duty to pay the company for services rendered, they both have a mutual
right against each other for performance. The law of obligations is therefore applicable and option d is
correct.
Question 10
Read the scenario in Question 7 and answer the question that follows:
Which further two subdivisions to your answer in Question 9 will be applicable?
a. law of contract and law of delict
b. enrichment law and labour law
c. conflict of laws and contract law
d. legal philosophy and law of delict
Answer 10
This question requires you to identify the further two subdivisions of the law of obligations that are
applicable to the scenario.
As the scenario describes a contractual arrangement between Mrs Mothibe and Superb Spraying
Specialists, the law of contract is clearly applicable here. In addition, since Mrs Mothibe has vowed to sue
the company for millions for damages to her exotic plant collection, the law of delict is applicable.
Thus, option a is correct.
Note: The law of unjustified enrichment is not applicable here as no party was enriched at the expense
of another in this scenario. In addition, do you see how your answers to questions 8, 9 and 10 were all
linked to each other?
lesson below:
Lesson 5 Learning Unit 5 edited 2023.mp4
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LESSON 6: LEARNING UNIT 6 (WHERE TO FIND THE LAW)
WEEK: 14/03 - 21/03
FOCUS AREAS
comments, we would like to provide a recap of the focus areas (i.e. more detailed learning outcomes)
to Learning Unit 6.
1. What is a “source of law”?
2. What is a “codification of law”?
Is South African law codified or not? South African law is not codified.
Why is South African law not codified?

South African law is found in different sources of law.
3. Two kinds of South African sources of law:
3.1 FIRST KIND OF SOURCES OF LAW: AUTHORITATIVE OR PRIMARY SOURCES
3.2 SECOND KIND OF SOURCES OF LAW: PERSUASIVE OR SECONDARY SOURCES
[Study the diagram in Learning Unit 6, Activity 6.2, (1) and its Feedback, p 109. Also study Learning Unit
6, NOTE, p 107.]
4. Name and distinguish between the two kinds of sources of law.
[Study the diagram in Learning Unit 6, Activity 6.2, (1) and its Feedback, p 109. Also study learning Unit
6, NOTE, p 107.]
5. Under each kind of source of law, you will find several examples of sources of law.
[Study the diagram in Learning Unit 6, Activity 6.2, (1) and its Feedback, p 109. Also study Learning Unit
6, NOTE, p 107.]
6. Name and describe the examples under each kind of source of law.
FIRST KIND OF SOURCES OF LAW:
AUTHORITATIVE OR PRIMARY SOURCES:
Five examples:
1. legislation/ statutes/ statutory law/ acts of parliament/ Constitution
[Learning Unit 6, NOTE on Constitution on p 101, and pp 101-102]
2. court decisions/ case law/ court cases/ judicial precedent
3. common law
4. custom
5. African customary (indigenous) law
SECOND KIND OF SOURCES OF LAW:
PERSUASIVE OR SECONDARY SOURCES:
Three examples:
1. other legal systems
2. foreign law (when courts interpret the Bill of Rights)
3. views of modern legal writers
7. Identify and explain the use of the different sources of law in scenarios.
Example Question:
You are a candidate attorney working at a community legal aid center. One afternoon, Mr Khumalo
approaches you for legal advice. He shows you a letter from his employer which indicates that he has
been dismissed with immediate effect, with no reasons being stated in the letter. You are tasked with
finding the relevant sources of law which will assist your principal attorney in preparing her case. During
your research, you find various South African sources of law.
Which one of the following sources of law is a secondary source of law?
(1) Labour Relations Act 66 of 1995
(2) Basic Conditions of Employment Act, 1997
(3) A judgment by the Labour Court
(4) A textbook on South African labour law (Correct option)
8. System of judicial precedent
8.1 What is the meaning of the precedent system?
8.2. What are the two requirements for the operation of the precedent system?
8.3. Identify and apply the concept “system of judicial precedent and its use in in practical scenarios.
[Learning Unit 6, Activity 6.2 (2) and its Feedback, p 109]
9. Explain the following two concepts:
9.1 ratio decidendi
9.2 obiter dictum
FAQ: DO WE HAVE TO STUDY THE CASES AND THE ACT IN LEARNING UNIT 6?
Do NOT study the following:
• Do not study the contents of the following:
(1) The Choice on Termination of Pregnancy Act 92 of 1996 (learning unit 6)
(2) S v Makwanyane (learning unit 6)
(3) Naude and Another v Fraser (learning unit 6)
• Full references of acts and cases referred to in the Only Study Guide of ILW1501.
HOWEVER:
• You are expected to study the Activities and Feedback that are given on The Choice on Termination
of Pregnancy Act 92 of 1996 and the court cases and have a general understanding of the principles
within the court cases.
• You must study the structure of an act
[Learning Unit 6, Activity 6.4 and its Feedback, pp 142-153]
• You must be able to identify and explain the different components (parts) of:
1. the name of an act: The Choice on Termination of Pregnancy Act 92 of 1996
2. any reference to a section in an act: section 2(1)(a)(i)
3. the full reference to a court decision (case citation): Naude and Another v Fraser 1998 (4) SA 539
MCQs for ILW1501".
Question 1
Which of the following is not true about “sources of law”?
a. Law originates or comes from sources of law.
b. Lawyers find answers to legal problems in sources of law.
c. Sources of law provide lawyers with authority for their arguments.
d. Sources of law divide law into fields to make it easier to understand.
Answer 1
In this question we test your understanding of “sources of law”. It is a straight-forward question with a
stem and an answer set. However, watch out because the question is phrased in the negative! You must
find the statement that is not true about “sources of law”. This means that you must find an option that
does not relate to the concept “sources of law”.
Options a, b and c clearly relate to “sources of law” and may therefore be ruled out as possible answers.
Option d states that sources of law divide law into fields of law to make it easier to understand. This
statement does not relate to “sources of law”, but rather to “divisions of law” and is not true. Option d
is therefore the option you had to choose. [Learning Unit 5, p 67]
Note to students: Students tend to confuse “divisions or branches of law” (discussed in Learning Unit 5)
with “sources of law” (discussed in Learning Unit 6. Make sure that you distinguish clearly between
these two concepts.
Question 2
Indicate whether the following statement is true or false by choosing the correct option below:
“South African law is codified.”
a. True, because South African law is found in one source of law.
b. True, because South African law is found in different sources of law.
c. False, because South African law is found in one source of law.
d. False, because South African law is found in different sources of law.
Answer 2
This question appears to be straight forward, but it is more complex! Before you can indicate whether
the statement is true or false, you must determine the meaning of the word “codified”, and also
whether South African law is codified or not.
When law is written down, we say that it has been codified and can be found by going to one source, a
codification. However, this is not the case in South Africa. South African law cannot be found in a single
codification of law, as we do not have just one source of law. We have several sources of law.
Since South African law is not codified, options a and b that indicate that the statement is true cannot
be correct and may be ruled out as possible answers.
This leaves us with options c and d that indicate that the statement is false. One of these two options
must be the correct option. Let us investigate option c. Option c states that the statement “South African
law is codified” is false BUT provides a reason that is not correct. South African law is not found in one
source of law. Option c is therefore not correct and may also be ruled out as a possible answer.
Option d must then be the answer to Question 2. Let us analyse it and see if, by way of elimination, we
ended up with the correct option. Option d states that the statement “South African law is codified” is
false and provides as reason the fact that South African law is found in different sources of law. Th is
reason is correct. Thus, option d is correct and the option that you had to choose.
Question 3
South Africa has two kinds of sources of law namely:
a. The Constitution and legislation
b. Case law and common law
c. Authoritative and persuasive sources
d. Common law and customary law
Answer 3
This question is categorized as straight-forward. However, students often confuse the examples under
each kind of source of law, with the two kinds of sources of law.
We know that there are two kinds of sources of South African law: authoritative and persuasive sources
of law. Each of these kinds of sources of law contain examples that fall under each kind.
The examples of sources of law that fall under the first kind, namely authoritative sources of law (also
known as primary sources of law) are:
1 legislation/statutes/acts of parliament/Constitution
2 case law/court decisions/court cases
3 common law
4 custom
5 African customary (indigenous) law
The examples of sources of law that fall under the second, namely persuasive sources of law (also known
as secondary sources of law) are:
1 other legal systems
2 foreign law
3 views of modern legal writers
Options a, b and d that refer to the Constitution, legislation, case law, common law and customary law
refer to examples of sources of law that fall under authoritative sources of law as a kind of source of
law. They may therefore be ruled out as possible answers as we are looking for the two kinds of sources
of law in Question 3.
Option c that refers to authoritative and persuasive sources of law, refers to the two kinds of sources
of law and is therefore correct.
Question 4
Which of the following sources of law is the odd one out? (Hint: look for an option that is different in
comparison to the other options provided.)
a. case law
b. foreign law
c. common law
d. statutory law
Answer 4
This question is quite straight forward. You are asked to indicate the source of law that is the odd one out,
in other words you must look for a source of law that is different in comparison to the other sources of
law provided.
Let us look at the options:
a. case law is an authoritative/primary source of law
b. foreign law is a persuasive/secondary source of law
c. common law is an authoritative/primary source of law
d. statutory law is an authoritative/primary source of law
Options a, c and d are examples of authoritative or primary sources of law with binding authority in
court. All three these examples of sources of law belong to the same kind of source of law, namely
authoritative or primary sources of law and may be ruled out as possible answers.
Option b, foreign law, is an example of a persuasive or secondary source of law and do not bind the
court. This source of law is different because it is not an example of an authoritative or primary source
of law. Option b, foreign law, is the odd one out and option b is therefore the option you had to choose.
[Learning Unit 6, Activity 6.2, (3) and its Feedback, pp 109-110]
Question 5
Which of the following sources of law will a lawyer use as a last resort to find the law on a specific matter?
a. an act
b. a court decision
c. a legal textbook
d. a custom
Answer 5
In our discussion of legislation, we state that legislation is the most important authoritative source of
law and has binding authority in court. This means that a lawyer will consult an act first, and not as a
last resort, to find the law on a specific matter. Option a may therefore be ruled out as a possible answer.
Option b, a court decision, is also an authoritative source of law that has binding authority in court.
Lawyers will consult court decisions or case law if there is no act on a specific matter. Even if there is an
act on a specific matter, lawyers may still consult case law to determine how the courts interpreted the
act. Option b may therefore also be ruled out as a possible answer because a court decision will not be
consulted as a last resort to find the law on a specific matter. [Learning Unit 6, pp 100-102]
Option c, a legal textbook, is a persuasive or secondary source of law that does not have binding
authority in court. A lawyer will therefore use a textbook as last resort to find the law on a specific
matter. Option c is therefore correct. [Learning Unit 6, p 107]
Question 6
Which of the following statements about legislation is not correct?
a. Legislation is the most important primary source of law.
b. Legislation is also referred to as “statutes” or “statutory law”.
c. Legislation are rules laid down by the three levels of government.
d. Legislation is the only law that is subject to the Constitution of 1996.
Answer 6
To answer this question, you must know that legislation is an example of an authoritative/primary
source of law. You must also know what legislation is and what it deals with as explained on pages 101
to 102 in Learning Unit 6.
Option a is correct because legislation is indeed the most important primary or authoritative source of
law. [Learning Unit 6, p 101]
Option b is correct. Legislation is also referred to as “statutes” or “statutory law”. Again, a reminder that
you must study the synonyms of concepts. [Learning Unit 6, p 100]
Option c is correct because legislation are rules laid down by three levels of government:
National level: acts of parliament
Provincial level: provincial ordinances
Local level: municipal by-laws

Option d is therefore not correct because all law, not only legislation, is subject to the Constitution of
1996. [Learning Unit 6, p 102]
Question 7
The passing of acts is the responsibility of…
a. the President.
b. parliament.
c. the courts.
d. judges.
Answer 7
This question is easy and straight forward. The passing of acts is the responsibility of parliament.
Therefore, option b is correct.
Question 8
Local levels of government are responsible for the passing of…
a. statutes.
b. ordinances.
c. by-laws.
d. codes.
Answer 8
This question is also easy and straight forward. Local levels of government are responsible for the passing
of by-laws, municipal by-laws. Therefore, option c is correct.
Question 9
Indicate whether the following statement is true or false by choosing the correct option below:
In every legal matter the Constitution of the Republic of South Africa, 1996 is the first source of law that
must be consulted.”
a. True, because the Constitution is the supreme law of South Africa and no other law may be in conflict
with it.
b. True, because the Constitution is the benchmark against which all other laws must be tested for
fairness.
c. False, because different types of scenarios will require the consultation of different sources of law.
d. False, because the Constitution was not adopted through the usual parliamentary process.
Answer 9
This question appears to be straight forward, but it is more complex!
The question deals with the status of the Constitution of the Republic of South Africa, 1996 as a piece
of legislation. Students tend to think that in every legal matter the Constitution of the Republic of South
Africa, 1996, as supreme law of South Africa, is the first source of law that must be consulted. However,
this is not true. The Constitution rather serves as a standard or benchmark against which all other laws
must be tested. In this regard we refer you to the very important NOTE on page 101 in Learning Unit 6.
Since the statement is false, options a and b may be ruled out as possible answers.
Options c and d appear to be both correct. However, in our guidelines on understanding and answering
MCQs we state: “MCQs require knowledge of the law (legal rules) discussed in the study material and
an analysis to arrive at the “best” or “most correct” option.
Option c stating that the statement is false, because different types of scenarios will require the
consultation of different sources of law is the best or most correct option and therefore the option you
had to choose.
Question 10
Mr and Mrs Lewis have been married for twenty years. For the past five years, they have experienced
marriage problems and have not really lived together as husband and wife. Since they could not reconcile
after several counselling sessions, they decided to end their marriage. They approach you, a legal
practitioner, to assist them in their divorce case.
What is the first source of law that you will have to consult to assist them?
a. private law
b. family law
c. statutory law
d. case law
Answer 10
This question is more complex than it appears to be. It consists of a root, which is the scenario or set of
facts on which the problem/question is based. The stem, which is the part in which you will find the
question. And lastly the answer set, which consists of four short options.
Read the question very carefully. It requires you to identify the first source of law that you will consult
to assist Mr and Mrs Lewis in their divorce case.
It is of utmost importance that you realise that options a and b are not sources of law, but divisions of
law and may be ruled out as possible answers to the question.
Option c, statutory law, is an example of an authoritative source of law. “Statutory law” is a synonym
for “legislation/statutes/acts” and is always the first source of law that a lawyer will consult to
determine what the law on a specific matter is. This case deals with a divorce and the lawyer will first
consult the Divorce Act 70 of 1979. Therefore, option c is correct.
Option d, case law, is also an example of an authoritative source of law but a lawyer will only consult case
law if there is no act on a specific matter. Option d may be ruled out as answer to the question. [Learning
Unit 6, p 102]
Question 11
Where in an act will you find the definitions of words as they are used in the act?
a. section 1
b. long title
c. short title
d. preamble
Answer 11
This question deals with the structure of an act and is straight forward and easy.
You will find the definitions of words as they are used in the act in the definition clause. Section 1 is called
the definition clause. Therefore, option a is correct.
[Learning Unit 6, Activity 6.4, (5) and its Feedback, p 149 and p 152]
Options b, c, and d refer to the long title, short title, and the preamble. Make sure that you know where
to find these in an act and what their respective functions (purposes) are.
[Learning Unit 6, Activity 6.4, and its Feedback: long title in (3) on p 148 and p 151; short title in (2) on p
148 and p 151; and preamble in (4) on p 148 and pp 151-152]
Question 12
In terms of section 2(1)(a) of the Choice on Termination of Pregnancy Act 92 of 1996, a pregnant woman
may, if she requests it, have her pregnancy terminated during the first 12 weeks of the gestation period
of the pregnancy.
Consider the reference section 2(1)(a) of the Act. Indicate what the (1) in the reference refers to by
choosing the correct option:
a. section
b. subsection
c. paragraph
d. subparagraph
Answer 12
This question is more difficult because you must apply your knowledge about referring to a section of an
act in this question.
The reference section 2(1)(a) consists of the following components (parts):
Section 2 (1) (a)
↓ ↓ ↓
Section subsection paragraph
(1) in the reference section 2(1)(a) refers to subsection (1). Option b is therefore correct. [Learning
Unit 6, Activity 6.4 p 143 and p 145]
Question 13
What are the two requirements for the operation of the system of judicial precedent in South African
law?
a. the facts of a case and the lawyers’ arguments put before court
b. the casual remarks and quoting of similar cases by a judge
c. a hierarchy of courts and an effective system of law reporting
d. the legal rules relevant to a dispute and the reasons for the court’s decision
Answer 13
Option a relates to published decisions in law reports. It does not relate to the requirements for the
operation of the system of judicial precedent in South African law and may be ruled out as a possible
answer to the question. [Learning Unit 6, p 103]
Option b refers to the concept “obiter dictum” (singular) or “obiter dicta” (plural) that may be found in
a court decision. It does not relate to the requirements for the operation of the system of judicial
precedent and may also be ruled out as a possible answer to the question. [Learning Unit 6, p 104]
Option c clearly mentions the two requirements for the operation of the system of judicial precedent
in South African law, namely a hierarchy of courts and an effective system of law reporting. Option c is
therefore the correct answer to the question. [Learning Unit 6, p 102]
Note that option d describes a very important concept that is found in a court decision, namely the ratio
decidendi. [Learning Unit 6, p 103]
Question 14
Consider the following case reference and complete the sentence by choosing the correct option:
In the case of S v Makwanyane and Another (CCT3/94) 1995 (3) SA 391 (CC), refers to the year in which
the …
a. case was heard for the first time.
b. court reserved judgment in the case.
c. court gave its final judgment.
d. case was reported in the Law Reports.
Answer 14
This question is more difficult because you must apply your knowledge about case refencing or case
citation in this question.
Options a and b are clearly not the correct explanation for 1995 in the case reference of S v Makwanyane
and may be ruled out as possible answers.
Many students may think that option c is correct and that 1995 in the case reference refers to the year in
which the court gave its final judgment, but it is not.
Option d is in fact correct, which states that 1995 refers to the year in which the case was reported in
the Law Reports. [Learning Unit 6, p 111]
Question 15
Consider the following case reference and complete the sentence by choosing the correct option:
In Naude and Another v Fraser 1998 (4) SA 539 (SCA), Fraser is known as the:
a. appellant
b. plaintiff
c. respondent
d. defendant
Answer 15
This question is similar to Question 14, but more complex!
You must consider the case reference Naude and Another v Fraser 1998 (4) SA 539 (SCA) and determine
who Fraser is in the case.
The case citation is a citation of a civil case. Your first observation may be that the parties to a civil case
are the plaintiff and the defendant. Therefore, Naude and Another are the plaintiffs and Fraser must be
the defendant, However, this is not correct.
In this case reference you must have noticed that the case was decided in the SCA, the Supreme Court
of Appeal, and is therefore a matter on appeal. When a matter is on appeal the parties are called the
appellant and the respondent. Thus, Naude and Another are the appellants and Fraser is the
respondent. Option c is therefore correct. [Learning Unit 6, p 111]
lesson below:
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/EcD2XBg9AnJFvb47YD_zXcwBP5mwTznea
tJMIr-SFHJw4Q?e=ggVHUP
Kind regards,
Your ILW1501 Lecturers
--------------------------------------------------------------------------------
LESSON 7: LEARNING UNIT 7 (THE CONSTITUTION AND YOU)
WEEK: 21/03 - 28/03
FOCUS AREAS
to Learning Unit 7.
1. What is a “Constitution”?
See Learning Unit 7, page 160.

2. Ensure that you can explain the following concepts:
− constitutionalism
− supremacy (sovereignty) of the Constitution
− rule of law
− separation of powers
− transformative constitutionalism
− restorative justice
− ubuntu
3. Why is the South African Constitution so important?
Answer:
The South African Constitution may be described as a “transformative constitution” as one of the main
aims of the Constitution is to address the social and economic injustices of the past.
• You need to understand the link between transformative constitution, transformative justice and
ubuntu.
4. The South African Constitution contains a number of special features
4.1 Supremacy of the Constitution
In terms of the Constitution, all state organs (that is official state organisations) – yes, even parliament –
are subject to the Constitution. In other words, the new Constitution introduced “constitutionalism”,
which means that our country is ruled according to the Constitution, which is the supreme (highest or
sovereign) law of the land. Therefore, all legislation may be challenged in terms of the Constitution, in a
court, and changed or removed by parliament, if it is found to be inconsistent (in other words, it does not
agree) with the Constitution.
4.2 Separation of powers
- The legislative authority that makes laws
- The executive authority that applies and carries out laws
- The judicial authority that decides legal disputes
The separation of powers is essential in a democratic state, because if too much power is concentrated
in any one branch of the state, this may easily lead to abuse.
4.3 Structure of the judiciary (courts)
The judiciary deals with the courts. The main courts are the Constitutional Court, the Supreme Court of
Appeal, High Courts and Magistrates’ Courts. You will learn more about the courts in Learning Unit 12.
4.4 State institutions supporting democracy
A number of state institutions support our democracy. These institutions are:
- The Public Protector
- The Human Rights Commission
- The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities
- The Commission for Gender Equality
- The Auditor-General
- The Electoral Commission
- The Independent Authority to Regulate Broadcasting
These institutions are independent, and their function is to protect the people from abuse of state power
and to make sure that the government does its work properly.
4.5 Bill of Rights
The Bill of Rights in Chapter 2 of the 1996 Constitution protects the fundamental rights that each person
has. You will learn more about this in Learning Unit 8.
See Learning Unit 7, pages 164 to 168.
After studying Learning Unit 7, you should understand the most important concepts related to a
constitutional democracy and be familiar with the essential characteristics of the South African
Constitution.
MCQS, ANSWERS, FEEDBACK AND COMMENTS
Question 1
An “Anti-Vaccination” organisation is protesting the distribution of Covid-19 vaccines. The police are
called in several times to break up demonstrations by the group as they became violent. The police
eventually used rubber bullets to break up the protest actions.
Which branch of the state's power is applicable in this case?
a. Judicial authority
b. Legislative authority
c. Executive authority
d. Public Prosecutions
Answer 1
This question tests whether you are able to identify the applicable branch of the state’s power in
relation to the specific scenario. This is more complex as it involves the analysis of a scenario when
identifying the correct answer.
The key sentence in the scenario is: “The police eventually used rubber bullets to break up the protest
actions”.
We know that the powers of the state are separated into three different branches:
1. The legislative authority that makes laws.

2. The executive authority that applies and carries out laws.
3. The judicial authority that decides legal disputes.
The police form part of the executive authority that apply and carry out laws, in this case, dispersing a
violent protect action.
Question 2
Joseph Jones, an attorney, is convicted of fraud and sentenced to five years in prison. Which branch of
the state's power is applicable in this case?
a. Auditor-General
b. Judicial authority
c. Executive authority
d. Legislative authority
Answer 2
You should have noticed that this question is very similar to Question 1!
However, this scenario deals with Joseph Jones being convicted and sentenced to five years in prison.
The authority that decides legal disputes, the judicial authority, is involved in this scenario. Thus,
option b is correct.
Question 3
Read the following statement and answer the question that follows:
“It is an African world-outlook that one only becomes complete when others are appreciated,
accommodated and respected.”
What philosophical concept does the above statement describe?
a. ubuntu
b. justice
c. sovereignty
d. constitutionalism
Answer 3
This question tests whether you are able to identify a concept from its description. It is a straightforward
question, if you have studied your study material! It will not be easy to search through the entire Study
Guide during a timed examination to interpret a concept. So, please familiarize yourselves with the
description of terms well in advance!
The philosophical concept being described is ubuntu. Thus, option a is correct.
Hint: By the process of elimination, you may exclude options b, c and d as they are not philosophical
concepts.
Question 4
Which one of the following statements regarding the spirit, aim and special features of the Constitution
of the Republic of South Africa, 1996 is correct?
a. Constitutionalism means that parliament is sovereign and that it makes any law.
b. The Constitutional Court is the only court that may hear constitutional matters.
c. The Constitution addresses social and economic injustices of the past.
d. The concept of ubuntu is explicitly mentioned in the final Constitution, 1996.
Answer 4
This question is complex as it requires you to analyse each statement and identify the correct option.
You really do need to understand the content of the Study Guide thoroughly to choose the correct
option here.
Let us look at each option closely:
a. Constitutionalism means that parliament is sovereign and that it makes any law.
We know that in the past (i.e. before the adoption of the 1993 interim Constitution and the 1996 final
Constitution), parliament was supreme or sovereign in the sense that it could make any law it wanted
to, no matter how unjust or unfair, as long as the correct procedure was followed. Courts did not have
the authority to question such legislation. However, this is not the case now as all legislation may be
challenged in terms of the Constitution and changed or removed by parliament if it is found to be
inconsistent with the Constitution. Option a is therefore incorrect and may be excluded as a possible
option.

b. The Constitutional Court is the only court that may hear constitutional matters.
The High Courts and the Supreme Court of Appeal may also hear constitutional issues, but the
Constitutional Court has the final say in these matters. Thus, option b is incorrect and may be excluded
as a possible answer.
c. The Constitution addresses social and economic injustices of the past.
As one of the main aims of the Constitution is to address social and economic injustices of the past,
option c is possibly the correct answer.
d. The concept of ubuntu is explicitly mentioned in the final Constitution, 1996.
In contrast with the interim 1993 Constitution that included the concept of ubuntu, it is not explicitly
mentioned in the 1996 Constitution. The South African courts have, however, in a number of cases
applied this concept in their interpretation of the Bill of Rights. Option d is therefore incorrect and may
be excluded as a possible answer.
Thus, option c is the correct option.
Question 5
Read the following statement and answer the question that follows:
“Reconciliation, rather than retribution (punishment), is the focus in addressing the injustices of the past
dispensation.”
The above statement describes:
a. supremacy of the Constitution
b. separation of state powers
c. structure of the courts / judiciary
d. the theory of restorative justice
Answer 5
Similar to Question 3, this is again another question that requires you to identify a concept from its
description.
We know that all the transformative measures taken to eradicate the social and economic injustices of
the past, encapsulate (express) the theory of “restorative justice”. According to restorative justice,
reconciliation, rather than retribution (punishment), is the focus in addressing the injustices of the past
dispensation.
Thus, as the theory of restorative justice is being described, option d is correct.

Question 6
Complete the sentence below by choosing the correct option:
____________________ is essential in a democratic state, because if too much power is concentrated in

any one branch of the state, this may easily lead to abuse.
a. Separation of powers
b. The structure of the judiciary
c. Constitutional supremacy
d. Constitutional sovereignty
Answer 6
This question requires you to fill in the missing word. It is a straightforward question.
We know that by giving certain specific functions (legislative, executive and judicial) to each of the three
branches of government, the separation of powers ensures that the powers of each state organ are kept
in check. As is it the separation of powers that is essential in a democratic state, because if too much
power is concentrated in any one branch of the state, this may easily lead to abuse, option a is
correct.
Question 7
In which chapter of the Constitution of the Republic of South Africa, 1996 will you find the Bill of Rights?
a. Chapter 1
b. Chapter 2
c. Chapter 3
d. Chapter 4
Answer 7
This is a straightforward, easy question.
As The Bill of Rights may be found in Chapter 2 of the Constitution, option b is correct.
Question 8
The Kwa-Zulu Natal Parliament has published legislation in which it states that farmers must renew their
permits to sell farm feed every year, instead of every three years. The farmers are very upset and regard
this as an interference on their right to freedom of trade.
Which level of government is applicable in this scenario?
a. national level
b. provincial level
c. local level
d. executive level
Answer 8
This question requires you to apply the set of facts in the scenario and determine which level of
government is applicable after interpreting the scenario. It is a more complex question.
The key words from the scenario are: “The Kwa-Zulu Natal Parliament has published legislation”.
This provides an indication that the legislation was published in KZN province. Remember that when we
speak of “the government”, it involves government at national level, provincial level or local level.
Thus, as the legislation regarding farmer’s permits was published by the Kwa-Zulu Natal Parliament,
option b is the correct answer.
Question 9
Which of the following options is not an example of a state institution supporting democracy?
a. The South African Revenue Service
b. The Commission for Gender Equality
c. The Electoral Commission
d. The Auditor-General
Answer 9
To answer this question, you need to be able to identify which state institutions support our democracy,
in order to identify the incorrect option.
Remember that in Chapter 9 of the 1996 Constitution, a number of state institutions are identified that
were set up to support our democracy. These institutions are the following:
- The Public Protector
- The Human Rights Commission
- The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities
- The Commission for Gender Equality
- The Auditor-General
- The Electoral Commission
- The Independent Authority to Regulate Broadcasting
Therefore, as the South African Revenue Service is not a state institution set up to support our
democracy, option a is the correct answer.
[Learning Unit 7, pp167-168]
Question 10
Which one of the following features does not relate to the Constitution of the Republic of South
Africa, 1996?
a. The Constitution provides for the separation of state powers.
b. The Constitution sets out the structure of the judiciary.
c. The Constitution contains a Bill of Rights in Chapter 2.
d. The Constitution provides for parliamentary sovereignty.
Answer 10
This question is similar to Questions 4 and 6.
By now we know that Parliament is not sovereign. All legislation may be challenged in terms of the
Constitution and changed or removed by parliament if it is found to be inconsistent with the
Constitution.
Thus, option d is the correct option.
lesson below:
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/Ed6XMFWcNhpIkvzHvOMArpIBI80LJ5yaM-
6fAsNM1rg9Zg?e=YQzzbA
Kind regards,
-----------------------------------------------------------------------------------
LESSON 8: LEARNING UNIT 8 (THE BILL OF RIGHTS: WHAT ARE FUNDAMENTAL RIGHTS?)
WEEK: 28/03 - 04/04
FOCUS AREAS
to Learning Unit 8.
1. What are fundamental rights? Explain their nature.
2. Make a list of the 27 fundamental rights protected in the Bill of Rights.
3. Briefly explains what each right guarantees.
4. References in Learning Unit 8 and our feedback will assist you in doing so. See answers to MCQs.
5. You must be able to identify the 27 fundamental rights in real-life scenarios.
6. Name and explain the three categories (kinds) of fundamental rights:
FIRST-GENERATION RIGHTS OR BLUE RIGHTS
SECOND-GENERATION RIGHTS OR RED RIGHTS
THIRD-GENERATION RIGHTS OR GREEN RIGHTS
7. Indicate to which category of fundamental rights a specific right belongs.
8. Identify and explain the application of the Bill of Rights:
Vertical application: Between state and individuals/private institutions

Horizontal application: Between individuals/private institutions
Question 1
Which of the following statements regarding the nature of fundamental rights is not correct?
a. Human dignity is the basis of every fundamental or human right.
b. Fundamental rights are natural rights because every person has it.
c. The state can never take fundamental rights away from a person.
d. Fundamental rights are afforded to those persons who qualify for it.
Answer 1
This question is an easy and straightforward question with a stem/question and an answer set. However,
it is phrased in the negative. Have you noticed?
In this question we simply test whether you know what a “fundamental right” is. You must find the
statement that is not correct about the nature of fundamental rights. If you know what the nature of
fundamental rights is, you will realise that options a, b and c are correct and clearly describe the nature
of fundamental rights. [See Learning Unit 8, p 174 as well as Activity 8.2 (1) and its Feedback (1) on pp
176-177.]
The statement that fundamental rights are afforded to those persons who qualify for fundamental
rights is not one of the characteristics of fundamental rights. Therefore, option d is not correct and the
option that you had to choose. [Learning Unit 8, p 176]
Question 2
Which of the following statements regarding the three categories of fundamental rights are correct?
a. First-generation rights are civil rights that protect groups of people from the state.
b. Second-generation rights are rights that relate to socio-economic issues.
c. Third-generation rights are known as blue rights, for example a right to life.
d. Red rights relate to environmental issues such as a right to unpolluted air.
Answer 2
This question is a straightforward question with a stem/question and an answer set. However, it is more
difficult than it appears. In this question we test your knowledge of the three categories of fundamental
rights and your ability to distinguish between the three categories of fundamental rights.
Let us look at each option closely:
a. First-generation rights are civil rights that protect groups of people from the state.
First-generation (or blue) rights are civil rights, political rights or procedural rights that protect the
individual from the abuse of state power. The first part of the statement that states that first-generation
rights are civil rights is correct. HOWEVER: the second part of the statement that states that first-
generation rights protect groups of people from the state, is not correct. First-generation rights apply to
the individual and are therefore individual rights. Thus, option a is incorrect and may be ruled out as a
possible answer. [Learning Unit 8, p 173]
b. Second-generation rights are rights that relate to socio-economic issues.
Second-generation (or red) rights are rights that relate to socio-economic issues, in other words issues
that concern society and the economy. These rights give people the right to demand that government
examines and deals with their basic socio-economic needs, for example their rights of access to health
care services, sufficient water and food, housing and their right to education. Option b is therefore correct
and may be considered as a possible answer. [Learning Unit 8, p 173]
c. Third-generation rights are known as blue rights, for example a right to life.
Third-generation (or green) rights have more to do with the group than the individual. These rights are
known as green rights because they relate to environmental issues and protect the right to a clean and
unpolluted environment. Option c is therefore completely incorrect and may be ruled out as a possible
answer. [Learning Unit 8, p 173]
d. Red rights relate to environmental issues such as a right to unpolluted air.
Red rights or second-generation rights are rights that relate to socio-economic issues, in other words
issues that concern society and the economy. Red rights do not relate to environmental issues. Green
rights relate to environmental issues such as a right to unpolluted air. Option d is incorrect and may be
ruled out as a possible answer. [Learning Unit 8, p 173]
Option b is therefore correct. [Learning Unit 8, p 173]
Question 3
How many fundamental rights are protected in Chapter 2 of the Bill of Rights?
a. 15
b. 27
c. 30
d. 33
Answer 3
If you turn to the Bill of Rights on pages 182 to 193 in Learning Unit 8 of your Study Guide, you will notice
that the specific fundamental rights start at section 9 with the right to equality and end at section 35 with
the right of arrested, detained and accused persons. If you count the number of rights, you should realise
that 27 fundamental rights are protected in Chapter 2 of the Bill of Rights. Therefore, option b is correct.
Question 4
Which section in the Bill of Rights deals with the right to property?
a. section 24
b. section 25
c. section 26
d. section 27
Answer 4
In our discussion of the focus areas of Learning Unit 8, we stressed that the first learning outcome of
Learning Unit 8 requires you to make a list of the fundamental rights protected in the Bill of Rights and
know what each right guarantees.
This question tests whether you have done so. If you have, you should know that the right to property
is protected in section 25 of the Bill of Rights. Therefore, option b is correct. See section 25 of the Bill of
Rights in Learning Unit 8 on page 186 of the Study Guide.
Make sure that you know what the other sections deal with:
Section 24 (in option a) guarantees the right to an environment that is not harmful to a person’s health
or well-being. [Learning Unit 8, pp 185-186]
Section 26 (in option c) guarantees the right to housing. [Learning Unit 8, p 187]
Section 27 (in option d) guarantees the right to health care, food, water, and social security. [Learning
Unit 8, p 187]
Question 5
What does section 34 of the Bill of Rights deal with?
a. access to housing
b. access to health care
c. access to courts
d. access to information
Answer 5
This question also tests whether you have made a list of the fundamental rights protected in the Bill of
Rights and know what each right guarantees. If you have done so, you should know that section 34
deals with the right of access to courts. Therefore, option c is correct. See section 34 in the Bill of Rights
on page 189 in Learning Unit 8 of the Study Guide.
Question 6
Sibusiso is employed as an estate agent at New Horizons Property Group (Pty) Ltd. During a marketing
campaign, Sibusiso overhears one of the company directors along with some of his colleagues making
derogatory remarks about Sibusiso’s sexual orientation. Sibusiso is very upset by what he hears and
approaches you for legal advice.
Which specific fundamental right has been infringed in this scenario?
a. the right to a reputation
b. the right to personality
c. the right to a good name
d. the right to equality
Answer 6
This question is a more difficult application question. It consists of a root/scenario, a stem/question, and
a set of answers.
In this question we want to know which specific fundamental right has been infringed in the scenario
above. It is therefore important that you know the list of 27 fundamental rights that are
protected/guaranteed in the Bill of Rights.
Let us look at the rights provided in the options of Question 6:
Option a, the right to a reputation, is not a specific fundamental right embodied in the Bill of Rights and
may be ruled out as a possible answer.
Option b, the right to personality, is not mentioned as a specific fundamental right protected in the Bill of
Rights and may be ruled out as a possible answer.
Option c, the right to a good name, also does not feature as a specific fundamental right in the Bill of
Rights and may be ruled out as a possible answer.
NOTE: The rights mentioned in options a, b and c form part of personality rights that we find in private
law and discussed in Learning Unit 2. It is very important that you distinguish between fundamental
rights embodied in the Bill of Rights in the Constitution and personality rights in private law.
Option d, the right to equality, must therefore be correct. In terms of section 9(1) of the Bill of Rights,
everyone is equal before the law and has the right to equal protection and benefit of the law.
However, there is more to section 9 that you must study. You must also take note of section 9(3) and
9(4) that are very important when it comes to the infringement of the right to equality. In terms of these
two subsections neither the state (section 9(3)) nor a person (section 9(4)) may unfairly discriminate
directly or indirectly against anyone on one of more of the following grounds:
■ race
■ gender
■ sex
■ pregnancy
■ marital status
■ ethnic or social origin
■ colour
■ sexual orientation
■ age
■ disability
■ religion
■ conscience
■ belief
■ culture
■ language
■ birth
In our scenario, Sibusiso overhears one of the company directors along with some of his colleagues
making derogatory remarks about Sibusiso’s sexual orientation. Therefore, the right to equality has
been infringed, and more particularly Sibusiso’s right not to be discriminated against on ground of his
sexual orientation. See section 9(4) of the Bill of Rights in Learning Unit 8 on page 183 of the Study
Guide.
Question 7
Colin Peters is arrested for selling drugs to school children in his neighbourhood. During the interrogation
process, Colin is tortured by the police in order to force him to make a confession.
In this scenario two specific fundamental rights have been infringed. Indicate the correct option:
a. the right to freedom of trade, occupation and profession and the right to privacy
b. the right to freedom of association and the right to freedom of movement and residence
c. the right to freedom of belief and opinion and the right of access to information
d. the right to freedom and security of the person and the right of an arrested, detained and accused
person
Answer 7
a set of answers.
In this question we want to know which two specific fundamental rights have been infringed in the
scenario above. Do you see why it is important to study the list of 27 fundamental rights that are
protected/guaranteed in the Bill of Rights?
In our scenario we read that Collin is arrested. We also read that during the interrogation process Collin
is tortured by the police in order to force him to make a confession.
If we look at each option closer, options a, b and c are clearly not relevant to our scenario and may be
ruled out as possible answers.
Option d must therefore be correct. The first specific fundamental right that has been infringed is the
right to freedom and security of the person (section 12 of the Bill of Rights). This right includes the right
not to be tortured in any way. See section 12 of the Bill of Rights in Learning 8 on page 183 of the Study
Guide.
[See also Learning Unit 8, Activity 8.3 (3), pp 178-179 and Feedback (3) on pp 180-181.]
The second specific fundamental that has been infringed is the right of an arrested, detained and
accused person (section 35 of the Bill of Rights). This section makes it clear that Collin has the right not
to be forced (compelled) to make any confessions that can be used as evidence against him. See section
35 of the Bill of Rights in Learning 8 on pages 189 to 190 of the Study Guide.
[See also Activity 8.3 (3), pp 178-179 and Feedback (3) on pp 180-181.]
Question 8
Derek installs a generator on his residential property to use in the event of a power outage. However, the
generator emits excessive unclean fumes. Derek's neighbours are becoming increasingly distressed by the
unclean fumes that the generator is emitting. Derek's neighbours decide to apply for a court order to
prevent him from operating his generator.
Which specific fundamental right of the neighbours has Derek potentially infringed in this scenario?
a. right to privacy
b. right to equality
c. right to property
d. right to environment
Answer 8
Question 8 is another more difficult question because it is an application question that consists of a
root/scenario, a stem/question, and a set of answers. Again, you must use the list of 27 fundamental rights
embedded in the Bill of Rights to answer the question.
In the scenario Derek installs a generator on his property that emits excessive unclean fumes. His
neighbours are not happy about these unclean fumes. If we look at options a, b and c, they are clearly not
relevant to our scenario and may be ruled out as possible answers.
Option d that refers to the “right to environment” is therefore correct. Section 24 guarantees the right
to an environment that is not harmful to a person’s health or well-being. This right also includes the right
to prevent pollution and guarantees the right to a clean and unpolluted environment. In our scenario,
Derek has potentially infringed on his neighbours’ right to a clean and unpolluted environment by using a
generator on his residential property that emits excessive unclean fumes. See section 24 of the Bill of
Rights in Learning Unit 8 on pages 185 to 186 of the Study Guide.
[See also Learning Unit 8, Activity 8.3 (2), p 178 and Feedback (2) on p 180.]
Question 9
To which category of fundamental rights does the neighbours’ fundamental right belong that Derek
has potentially infringed?
a. first-generation rights
b. second-generation rights
c. third-generation rights
d. blue-generation rights
Answer 9
Question 9 is follow-up question on Question 8. It is a more difficult question because it consists of a

root/scenario, a stem/question, and a set of answers. It is an application question because we require you
to determine to which category of fundamental rights does the neighbours’ fundamental right belong,
that Derek has potentially infringed.
In order to answer the question to which category of fundamental rights does the neighbours’
fundamental right belong that Derek has potentially infringed, you must first determine which specific
fundamental right has been infringed in the scenario. The purpose of asking Question 8 was to assist you
in answering Question 9.
In the answer to Question 8 we determined that Derek has potentially infringed on his neighbours’ right
to an environment, specifically the right to a clean and unpolluted environment, by using a generator on
his residential property that emits excessive unclean fumes.
By now you should know that the fundamental right to a clean and unpolluted environment belongs to
the third-generation or green rights. Therefore, option c is correct. [Learning Unit 8, p 173]
Question 10
Which application of the Bill of Rights is involved in this scenario?
a. vertical application of the Bill of Rights
b horizontal application of the Bill of Rights
c. general application of the Bill of Rights
d. neutral application of the Bill of Rights
Answer 10
Question 10 is also a follow-up question on Question 8. It is a more difficult question because it consists
of a root/scenario, a stem/question, and a set of answers. It is an application question because we require
you to determine which application of the Bill of Rights is involved in this scenario where David installs a
generator that emits excessive unclean fumes on his residential property and distresses his neighbours.
In Learning Unit 8 on pages 174 to 175 we discuss the vertical and the horizontal application of the Bill
of Rights. There is no general or neutral application of the Bill of Rights. Therefore, options c and d are
incorrect and may be ruled out as possible answers.
Let us consider options a and b closer which refer to vertical and horizontal application of the Bill of
Rights.
The application of the Bill of Rights between the state and the individual is known as vertical
application. Since no mention is made of the state in our scenario, option a is incorrect and may be
ruled out as a possible answer.
Therefore, option b must be correct. In our scenario David infringes on his neighbours’ fundamental
right to a clean and unpolluted environment. In other words, an individual infringes on the fundamental
right of other individuals. Therefore, this is an example of the horizontal application of the Bill of Rights,
NOTE TO STUDENTS:
Since the MCQs in the examination are linear/sequential and randomized, follow-up questions as in
Questions 8 to 10 will not be possible. You may receive, for example, only one of these questions. This
will make it more difficult for you to answer the question. However, if you follow our method of
reasoning in Answers 8 to 10, you should be able to answer similar questions in the examination.
Question 11
Sheila’s 90-year-old mother slips and falls in her kitchen, sustaining severe injuries to her back and right
arm. Sheila rushes her mother to the closest governmental hospital. However, Sheila and her mother are
turned away at the entrance after a member of staff informs them that the hospital does not treat the
elderly.
Which category of fundamental rights is applicable in this scenario?
a. first-generation rights
b. second-generation rights
c. third-generation rights
d. green-generation rights
Answer 11
This is a more difficult question because it consists of a root/scenario, a stem/question, and a set of
answers. It is an application question because we require you to determine which category of
fundamental rights is applicable in this scenario.
In order to answer this question, you must first determine which specific fundamental right has been
infringed. Our scenario tells us that a staff member at the entrance of a government hospital, to which
Sheila rushes her 90-year-old mother after she has fallen, denies them entrance to the hospital.
This means that the staff member of the government hospital denied Sheila’s mother her right of access
to health care services that is guaranteed in section 27 of the Bill of Rights. [See section 27 of the Bill of
Rights in Learning Unit 8 on page 187 of the Study Guide.] This right belongs to the category of second-
generation or red rights that relate to socio-economic issues, in other words issues that concern society
and the economy. These rights allow people to demand their basic socio-economic needs from
government. [Learning Unit 8, p 173] Option b is without any doubt correct and a possible answer.
Some of you may have argued that option a is correct because in terms of section 9(3) the right to equality
on grounds of age, which belongs to the category of first-generation rights, has been infringed in the
scenario. You may have argued that Sheila’s mother has been denied access to the hospital because she
is too old. Option a may be correct and may be a possible answer.
However, the focus in the scenario of Question 11 is on Sheila’s mother who fell and sustained severe
injuries to her back and right arm. She was in desperate need of health care services and had a right to
demand health care services, which belong to the category of second-generation rights, from the
government hospital.
Option b is therefore more correct and the best option to choose.
Question 12
The Western Cape Parliament has published legislation in which it states that fishers must in future
obtain a permit in order to sell fish to tourists on the beach. The fishers are very upset and regard this as
an infringement of their right to freedom of trade.
Which application of the Bill of Rights is involved in this scenario?

a. vertical application of the Bill of Rights
b horizontal application of the Bill of Rights
c. general application of the Bill of Rights
d. neutral application of the Bill of Rights
Answer 12
Question 12 is a more difficult question because it consists of a root/scenario, a stem/question, and a set
of answers. It is an application question because we require you to determine which application of the Bill
of Rights is involved in this scenario. We read that the Western Cape Parliament has published legislation
in which it states that fishers must in future obtain a permit in order to sell fish to tourists on the beach.
The fishers are very upset and regard this as an infringement of their right to freedom of trade.
In Learning Unit 8 on pages 174 to 175 we discuss the vertical and the horizontal application of the Bill
of Rights. As we stated above, there is no general or neutral application of the Bill of Rights. Therefore,
options c and d are incorrect and may be ruled out as possible answers.
Let us consider options a and b closer which refer to vertical and horizontal application of the Bill of
Rights.
The application of the Bill of Rights between the state and the individual is known as vertical
application. Since mention is made of the Western Cape Parliament and the fishers in our scenario, the
state and the fishers as individuals are involved. Therefore, vertical application of the Bill of Rights is
applicable in the scenario and option a is correct.
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LESSON 9: LEARNING UNIT 9 (LIMITATION OF YOUR FUNDAMENTAL RIGHTS)
WEEK 04/04 - 11/04
FOCUS AREAS
Unit 9.
1. Learning Unit 8 taught you that we all have fundamental rights that are enshrined within the Bill of
Rights of the Constitution, 1996.
2. From Learning Unit 9 you learnt that these fundamental rights are not always absolute. Some
fundamental rights can be limited under certain circumstances.
3. Because Learning Unit 9 is linked to Learning Unit 8, you will find that your understanding of Learning
Unit 9 depends on your understanding of Learning Unit 8!
4. After studying Learning Unit 9, you must be able to explain the ways in which fundamental rights
may be limited:
• Internal limitation of fundamental rights. [Learning Unit 9, pp 196-197]

• Limitation of fundamental rights that are in competition with one another. [Learning Unit 9, p
197]
• Limitation of fundamental rights during a state of emergency. [Learning Unit 9, pp 197-198]
• Limitation of fundamental rights in terms of section 36 of the Bill of Rights. [Learning Unit 9, p
198]
5. You must also be able to explain, with reference to section 36 of the Bill of Rights, how fundamental
rights are limited in real life scenarios [Learning Unit 9, Activity 9.1 pp 199-200]
6. You must also be able to identify and explain what a non-derogable right is using real life scenarios
and describe the extent to which these rights are protected in terms of the Bill of Rights [Section 37 of
the Constitution; p 198 of Learning Unit 9]

Question 1
Consider the following two statements:
(1) The state can never take a person’s fundamental rights away.
(2) The right to life may be suspended during a state of emergency.
a. (1) and (2) are correct.
b. (1) and (2) are incorrect.
c. (1) is correct; (2) is incorrect.
d. (1) is incorrect; (2) is correct.
Answer 1
This question appears complex as it requires you to analyse two statements and determine whether they
are correct or incorrect. However, if you understand what a fundamental right is and which fundamental
rights can never be limited, then you would have found this question easy and straightforward!
To choose the correct option, you need to first establish whether each statement is correct or not. Let
us have a look at statement 1:
(1) The state can never take a person’s fundamental rights away.
From Learning Unit 8, we know that every person is born with fundamental rights and that no one, not
even the state can take our fundamental rights away from us. [Learning Unit 8, p 174] Therefore,
statement 1 is correct.
(2) The right to life may be suspended during a state of emergency.
Again, from Learning Unit 8 we know that the right to life is a first-generation right / blue right that
protects individuals from the abuse of state power. [Learning Unit 8, p 173] From Learning Unit 9, we
learnt that certain fundamental rights may be limited. A state of emergency is one situation in which
fundamental rights may be limited. However, even though the state may have wide-ranging powers
during a state of emergency, you learnt that certain rights, such as the rights to human dignity and life,
may not be derogated (placed in an inferior position) or infringed or suspended in any way. [Learning Unit
9, p 198] Therefore, as the right to life may not be suspended during a state of emergency, statement 2
is incorrect.
As statement 1 is correct and statement 2 is incorrect, the correct answer to Question 1 is option c.
NOTE: Did you see how we used Learning Unit 8 as a basis to determine the correctness of each
statement 1 and 2? Do you understand why it is important to know Learning Unit 8 well before
attempting to understand Learning Unit 9?
Question 2
Katlego is a trader. He has a small stall in Johannesburg CBD from which he sells household groceries to
the community. A group of armed protestors are making their way through the city and begin looting the
shops in the area, including destroying half of Katlego’s stock.
Which fundamental right(s) has/have been infringed in this scenario?
a. The protestors’ rights to assemble and demonstrate
b. Katlego’s right to freedom and security of the person
c. The protestors’ rights to freedom of movement
d. Katlego’s right to fair labour relations and practices
Answer 2
a set of answers.
We know that everyone has fundamental rights. To establish which fundamental rights have been
infringed, we need to really understand what each fundamental right means.
a. The protestors’ rights to assemble and demonstrate – Yes, the protestors’ do have a fundamental right
to assemble, demonstrate, picket and petition, however, this must be done in a peaceful manner and the
protestors should not be armed [Section 17 of the Bill of Rights]. The protestors in the scenario are acting
violently, destroying property, looting shops, and are armed. As a violent, destructive protest does not
fall within the confines of the fundamental right to assemble, demonstrate, picket and petition, option
a is incorrect.
b. Katlego’s right to freedom and security of the person – Everybody, has a right to be free from all forms
of violence from either public or private sources [Section 12 of the Bill of Rights]. This describes section
12(1)(c) of the fundamental right to freedom and security of the person. As Katlego’s fundamental right
in this regard has been infringed, option b is a possible answer.
c. The protestors’ rights to freedom of movement – The right to freedom of movement has more to do
with the place where one chooses to live/reside/ enter/exit the country. [Section 21 of the Bill of Rights]
This fundamental right is not applicable to the scenario and may be ruled out as a possible option.
d. Katlego’s right to fair labour relations and practices – This fundamental right deals with the rights of
employers and employees and is also not applicable to the scenario [Section 23 of the Bill of Rights]. It
may also be ruled out as a possible answer.
Therefore, as Katlego’s right to freedom and security of the person has been infringed in this scenario,
option b is correct.
Question 3

John Small is in grade 8. One day in his mathematics class, John is battling to do one of the calculations.
In the presence of the other learners his teacher calls him a baboon and tells him to write out the words:
“I am dumb” ten times on the board. As a result of this incident, John refuses to go back to school. His
parents decide to speak to the principal.
Which fundamental right has been infringed?
a. his right to physical integrity
b. right to his good name
c. his right to honour
d. his right to human dignity
Answer 3
a set of answers.
NOTE: The rights mentioned in options a, b and c form part of personality rights that we find in private
law and discussed in Learning Unit 2. It is very important that you distinguish between fundamental
rights embodied in the Bill of Rights in the Constitution and personality rights in private law.
Therefore, as option d, the right to human dignity is the only fundamental right amongst the options
you had to choose from, it has to be the correct answer!
Hint: Remember that using this process to eliminate incorrect options in order to find the correct
answer is called the process of elimination.
However, the more acceptable explanation of why option d is correct is because by humiliating John,
his teacher disrespected his inherent dignity which we are all born with. Therefore, as John’s right to
human dignity was infringed, option d is the correct option.
[Section 10 of the Bill of Rights, Learning Unit 8, p 183]
Question 4
David Berman applies for a post as engineer at a large construction company, Oxtron. It is a well-known
fact that all the directors of Oxtron are Catholic. On his application form David mentions that he is Jewish.
When he hands in his application at the office of Oxtron, the receptionist informs him that only Catholics
can apply for the post and because David is Jewish, his application will not be considered.
Which specific fundamental right has been infringed in this scenario?
a. The right to life
b. The right to equality
c. The right to trade

d. The right to labour
Answer 4
a set of answers. This question asks you to identify a specific fundamental right that was infringed
according to the set of facts from the scenario.
• The right to life in option a may be immediately ruled out as an answer as it is not applicable to the
scenario.
• That leaves us with options b, c and d.
• Option c (the right to trade) deals with a person’s right to choose their occupation or profession. It is
implicated in this scenario, however, it does not deal with the discrimination that David as a Jewish person
faces. Therefore, option b may be ruled out as a possible option.
• Option d (the right to labour) deals with the relationship and rights afforded to employers and
employees. It is also not applicable to the scenario and may be ruled out as a possible option.
• We are then left with option b. The right to equality includes the right not to be unfairly discriminated
against due to your race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth. [Section 9 of the Bill
of Rights; Learning Unit 8, p 183]
In this scenario it is clear that David has been discriminated against due to his religion. Therefore, the
right to equality has been infringed an option b is the correct answer.
Question 5
Indicate whether the following statement is true or false:
“The kind of application of the Bill of Rights between the state and an individual is known as the horizontal
application of the Bill of Rights.”
a. True
b. False
Answer 5
This is a straightforward, easy question!
We know that some of the rights in the Bill of Rights have horizontal application. This means that they
apply between individuals or private institutions. A vertical application of the Bill of Rights applies
between the state and an individual/ group of people/ private institution.
The statement is therefore, false.
[Learning Unit 8 pp 174-175]
Question 6
Consider the following two statements:
(1) The Bill of Rights is the cornerstone of democracy in South Africa and no right in the Bill of Rights may
be limited.
(2) In terms of the supremacy of the Constitution, even the President of South Africa is subject to the
provisions of the Constitution.
Which option is correct?
a. (1) and (2) are correct.
b. (1) and (2) are incorrect.
c. (1) is correct; (2) is incorrect.
d. (1) is incorrect; (2) is correct.
Answer 6
This question appears complex as it requires you to analyse two statements and determine whether
they are correct or incorrect.
• We have learnt in Learning Unit 9, that fundamental rights may be limited in certain
circumstances. [Learning Unit 9, pp 196-199] Thus, statement 1 is incorrect.
• From Learning Unit 8, we learnt that the Constitution is the supreme law of the land and that
everyone including the president is subject to its provisions. [Learning Unit 7, pp 167-168]
Therefore, statement 2 is correct.
As statement 1 is incorrect and statement 2 is correct, the correct answer is option d.
Question 7
In terms of section 36 of the Constitution the court will take certain factors into account in order to
determine whether a limitation is justifiable.
Which of the following is not a factor that the court will consider?
a. nature of the right
b. purpose of the right
c. nature and extent of the limitation
d. importance of the purpose of the limitation
Answer 7
This question is straightforward. But, it is framed in the negative. Do you notice that? We are therefore
looking for an option that does not relate to the question ie: a factor that the court will not consider in
determining whether a limitation is justifiable.
The factors that the court considers when determining whether a limitation of the Bill of Rights is
justifiable, are set out in section 36 of the Constitution, 1996. They are further explained in Learning Unit
9, page 198.
The purpose of the right is not a factor taken into account by the courts but rather the purpose of the
limitation is a factor taken into account. Therefore, option b is incorrect and the correct answer.
Question 8
Read the following scenario and indicate the correct statement:
After COVID-19 swept through the country, causing thousands of deaths and stretching state resources
beyond their capacities, a state of emergency was declared by parliament. However, communities were
concerned by the way in which residents were being treated by the South African police services and the
military. Incidents of residents being harassed and mistreated started coming to light. The Concerned
Lawyers Association is tasked with investigating the extent to which fundamental rights may be limited
during a state of emergency.
a. Even during a state of emergency, a person may not be tortured.
b. During a state of emergency, the right to life is temporarily suspended.
c. Detainees may be tortured if they refuse to answer questions.
d. The Bill of Rights is suspended entirely during a state of emergency.
Answer 8
a set of answers.
We know that certain fundamental rights may also be suspended for a period of time when the state
declares a state of emergency. [Learning Unit 9, p 198]. But, have a look at the Table of non-derogable
rights in section 37 of the Bill of Rights which explains the extent to which certain fundamental rights
are protected. Remember that section 12 of the Bill of Rights provides for the right to security and
freedom of the person and the right not to be tortured in any way (section 12(1)(d)). The right not to be
tortured is protected under section 37 of the Bill of Rights and therefore, even in a state of emergency,
a person cannot be subjected to torture.
Option a is therefore correct.
Question 9
Consider the following statement:
“Certain fundamental rights may not be placed in an inferior position or infringed or suspended in any
way.”
Choose the correct option below:
a. The right to equality is protected entirely.

b. The right to life is not protected entirely.
c. The right to human dignity is protected entirely.
d. The rights of arrested persons are protected entirely.
Answer 9
This question is straightforward, however, it requires that you know the extent to which certain
fundamental rights are protected in terms of section 37 of the Bill of Rights.
Similar to question 8, have a look at the Table of non-derogable rights in section 37 of the Bill of Rights
which explains the extent to which certain fundamental rights are protected, do you see that the right to
human dignity is protected in its entirety?
As the fundamental rights outlined in options a and d are not protected entirely, these options are
incorrect. The right to life (option b) is protected entirely and option b is thus incorrect. Options a, b
and d may be excluded as possible answers.
Therefore, option c is the correct option.
Question 10
Which one of the following statements regarding fundamental rights is incorrect?
a. Fundamental rights may be limited as a result of internal limitations of specific fundamental rights.
b. When fundamental rights are in conflict with one another, it is usually the courts that decide which
right is limited.
c. Fundamental rights may only be limited or suspended for a period of time when the state declares a
state of emergency.
d. Fundamental rights may be limited in terms of section 36 of the Bill of Rights otherwise known as the
limitation’s clause.
Answer 10
This is a straightforward and easy question. But, do you see that it is framed in the negative?
We know that fundamental rights may be limited in four different ways:
• Internal limitation of fundamental rights. [Learning Unit 9, pp 196-197]

• Limitation of fundamental rights that are in competition with one another. [Learning Unit 9, p
197]
• Limitation of fundamental rights during a state of emergency. [Learning Unit 9, pp 197-198]
• Limitation of fundamental rights in terms of section 36 of the Bill of Rights. [Learning Unit 9, p
198]
Thus, option c is incorrect and the answer you had to choose.

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LESSON 10: LEARNING UNIT 10 (THE INFLUENCE OF THE CONSTITUTION ON SOUTH AFRICAN LAW)
WEEK 11/04 - 18/04
FOCUS AREAS
to Learning Unit 10.
1. Study the influence of both the 1993 and 1996 Constitutions on the South African law, with reference
to relevant case law and legislation:
1.1 Study the unconstitutionality of the death penalty (decided in terms of 1993 interim Constitution)
Divisions of law influenced:

criminal law and law of procedure (subdivision: law of criminal procedure)
Case:
S v Makwanyane
Fundamental rights infringed:
the right to life (s 11) and the right to human dignity (s 10)
Result of Constitutional Court’s order:
Since the death penalty was legally regarded as “cruel, inhuman and degrading”, it was decided that it
was an unconstitutional form of punishment and abolished.
1.2 Study the unconstitutionality of section 18(4)(d) of the Child Care Act 74 of 1983
Division of law influenced:
family law
Case:
Fraser v Children’s Court, Pretoria North and Others
Fundamental right infringed:
the right to equality (s 9)
Parliament amended section 18(4)(d) of Child Care Act (in 2010 this Act was nullified by Children’s Act 38
of 2005)
Both mother and father of a child born out of wedlock has a say in adoption of their child, not only the
mother
1.3 Study the unconstitutionality of certain sections of the Electoral Act 73 of 1998
constitutional law
Case:
Richter v Minister of Home Affairs
political rights (s 19), more specific the right to vote, and the right to equality (equal treatment) (s 9)
Result of Pretoria Hight Court’s order:
Certain sections of Electoral Act are unconstitutional.
High Court’s order must be confirmed by Constitutional Court

Constitutional Court confirmed High Court’s order and instructed parliament to change the relevant
sections according to its order
1.4 Study the recognition of same-sex marriages
family law
Case:
Minister of Home Affairs and Another v Fourie and Another
the right to equality (s 9), specifically unfair discrimination by the state on grounds of sexual orientation,
and the right to human dignity (s 10)
Constitutional Court’s order:
The common-law definition of marriage as “a union of one man with one woman…” and the reference in
the Marriage Act 25 of 1961 to “wife” or “husband” excluded same-sex couples from getting married and
was unconstitutional.
Permanent cohabitation relationships of same-sex and heterosexual couples had to be included in the
definition of marriage.
Parliament were given two years to change position.
Parliament adopted the Civil Union Act 17 of 2006.
The Civil Union Act allows same-sex or heterosexual couples to enter into a civil union.
“Civil union” is the umbrella name and may be a marriage or a civil partnership. Partners to a civil union
must choose whether they want to call their union a marriage or a civil partnership.
Regardless of what a same-sex or heterosexual couple choose to call their union, a marriage or a civil
partnership, their civil union has the same consequences as a civil marriage in terms of the Marriage Act
and dissolves (ends) in the same way as a civil marriage.
2. Apply the constitutionality of certain legal positions to real-life scenarios
Note to students:
In Learning Unit 10 we expect you to know the names of the cases and acts that we refer to. You do not
have to study the full reference. If we refer to cases and acts in MCQs, we will only test whether you
know the name of the case or the act, not the full reference.
Question 1
Which of the following courts in South Africa may declare law unconstitutional?
a. High Courts
b. The Supreme Court of Appeal
c. The Constitutional Court
d. All superior courts
Answer 1
We included this question for purpose of revision. In Learning Unit 7 you learnt that the Hight Courts, the
Supreme Court of Appeal and the Constitutional Court may hear constitutional matters and may declare
any law unconstitutional.
Question 1 is therefore a straightforward question. If we look at the options, all the courts mentioned in
options a, b, and c may declare law unconstitutional. Therefore, option d “all the superior courts” is the
most correct option and the option you had to choose.
[Learning Unit 7, pp 166-167; Learning Unit 10, NOTE on top of p 204]
Question 2
Once law has been declared unconstitutional by a court of law, who must confirm the
unconstitutionality of the specific law before it has legal force?
a. President
b. Parliament
c. Constitutional Court
d. Public Protector
Answer 2
Question 2 is another straightforward revision question. In Learning Unit 7 we also said that the
Constitutional Court has the “final say” in all constitutional matters. Do you still remember what this
means? It has in fact two meanings:
1. The Constitutional Court is the final court that one would be able to appeal to, not only in
constitutional matters but in all legal matters.
2. The Constitutional Court makes the final decision whether law is constitutional or not. An order by
the High Court or the Supreme Court of Appeal that law is unconstitutional will only have legal force
once it has been confirmed by the Constitutional Court.
From the explanation above, option c is clearly correct.
[Learning Unit 7, pp 166-167; Learning Unit 10, NOTE on top of p 204]
Question 3
Whose task is it to amend or abolish law that is in conflict with the provisions of the Constitution?
a. President
b. Parliament
d. Public Protector
Answer 3
Question 3 is an easy and straightforward question that relates to Questions 1 and 2. If the Constitutional
Court has confirmed that law is in conflict with the provisions of the Constitution, it is the task of
parliament to amend or abolish the law that has been confirmed to be unconstitutional by the
Constitutional Court.
[Learning Unit 7, pp 166-167; Learning Unit 10, NOTE at bottom of p 204]
Question 4
Read the following scenario and answer Questions 4 and 5:
Two men have been murdered in a drive-by shooting in Mitchells Plain, Cape Town, in what is believed to
be a gang hit. The suspects fled the scene but were later arrested and charged with murder. Police
confirmed that the accused, Gerwin Morris and Warren Davies, are members of the Junky Funky gang,
one of the notorious gangs on the Cape Flats. Since they fled the scene of the crime, they were denied
bail. You are their attorney and must answer several questions asked by their family members.
Gerwin’s grandmother is heart-broken and wants to know whether her grandson will be punished with
the death penalty. You comfort her by telling her that the death penalty no longer exists in South Africa.
Which sources of South African law will you use to prove to Gerwin’s grandmother that the death
penalty is an unconstitutional form of punishment in terms of South African law?
a. legislation and case law
b. criminal law and case law
c. constitutional and criminal law
d. common law and case law
Answer 4
This question is more difficult because it is an application question in which you must decide which sources
of South African law you will use to prove to Gerwin’s grandmother that the death penalty is an
unconstitutional form of punishment. It is a revision question on the sources of law that we discussed in
Learning Unit 6.
The question consists of a root/scenario, a stem/question and an answer set consisting of four options.
Option a refers to legislation and case law. The question that you must ask yourself is whether any
legislation and case law that we have discussed or referred to in Learning Unit 10 are relevant to the
question. The answer is obviously yes because we referred to:
1. Legislation, specifically the Constitution of the Republic of South Africa, 1996; and
2. Case law, specifically the case S v Makwanyane.
Option b which refers to criminal law and case law is not correct because criminal law is not a source of
law but a division of law.
Option c which refers to constitutional and criminal law is also not correct because both constitutional
and criminal law are divisions of law, not sources of law.
Option d refers to two sources of law, namely common law and case law. These two sources of law are
not the answer to the question and may be ruled out as a possible answer.
Question 5
To which kind of sources of law do the two sources in Question 4 belong?
a. first-generation sources of law
b. secondary sources of law
c. persuasive sources of law
d. authoritative sources of law
Answer 5
This is a straightforward question.
Legislation and case law are authoritative sources of law. Therefore, option d is clearly correct.
NOTE:
If you were not able to answer this question, please carefully study Learning Unit 6 again for the
differences between authoritative and persuasive sources of law.
Question 6
In the case of S v Makwanyane and Another (CCT 3/94) 1995 (3) SA 391 (CC) the Constitutional Court
decided that the death penalty is an infringement of the fundamental rights to…
a. life and human dignity.

b. freedom of belief and opinion.
c. physical and bodily integrity.
d. freedom and security of the person.
Answer 6
This question is more complex in that it requires you to understand the principles of the case, which would
assist you in choosing the correct answer.
In 1995, the Constitutional Court decided in S v Makwanyane that, in terms of the 1993 (interim)
Constitution, the death penalty was a cruel, inhuman and degrading form of punishment that infringed
on the right to life and the right to human dignity. It therefore decided that the death penalty was in
conflict with the provisions of the Bill of Rights and thus an unconstitutional form of punishment. As a
result, the death penalty was abolished in South Africa.
NOTE:
In the case of S v Makwanyane that was decided in 1995, the Constitutional Court used the 1993
(interim) Constitution to come to its decision.
In the final Constitution of 1996, section 11 deals with the right to life and section 12(1)(e) with the right
to freedom and security of the person which includes the right not to be treated or punished in a cruel,
inhuman or degrading way and section 10 with the right to human dignity.
[Learning Unit 6, p 85; Learning Unit 8, p 183; Learning Unit 10, p 202]
Question 7
From the options below, which case declared section 18(4)(d) of the Child Care Act 74 of 1983
unconstitutional?
a. S v Makwanyane and Another (CCT/3/94) 1995 (3) SA 391 (CC)
b. Fraser v Children’s Court, Pretoria North and Others 1997 (2) SA 261 (CC)
c. Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19
d. Richter v Minister of Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC 3
Answer 7
This question is straightforward with a stem/question and an answer set. It deals with the influence of the
Constitution on South African law as discussed in Learning Unit 10.
Option a, S v Makwanyane and Another (CCT 3/94) 1995 (3) SA 391 (CC), deals with the death penalty as
an unconstitutional form of punishment since it is an infringement on the rights to life and human dignity.
The case referred to in option a is therefore not relevant. [Learning Unit 6, p 99; Learning Unit 10, p 202]
Option b refers to the case of Fraser v Children’s Court, Pretoria North and Others 1997 (2) SA 261 (CC).
The Constitutional Court decided in this case that section 18(4)(d) of the Child Care Act was
unconstitutional since it infringed on the right to equality, and this resulted in amendments to the Act.
The cases referred to in options c and d should therefore be irrelevant to the question. Let us confirm this.
Option c refers to the case of Minister of Home Affairs and Another v Fourie and Another (CCT 60/04)
[2005] ZACC 19. In this case the Constitutional Court found the definition of marriage to be
unconstitutional on grounds of the fundamental rights to equality and human dignity. The case in option
c is therefore not relevant. [See Learning Unit 10, pp 205-206; Question (2) in Activity 10.1, pp 207-208.]
The case of Richter v Minister of Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC 3 in option
d declared certain sections of the Electoral Act 73 of 1998 unconstitutional, resulting in amendments to
the Act. Therefore, the case in option d is irrelevant and not the answer to the question. The Act violated
the right to vote and the right to equal treatment of South Africans living abroad. [See Learning Unit 10,
pp 203-204.]
Question 8
In the case of Richter v Minister of Home Affairs and Others, the Pretoria High Court found certain
sections of the Electoral Act 73 of 1998 to be unconstitutional on grounds of the fundamental rights…
a. to freedom of movement and residence.
b. to vote and equal treatment.
c. to citizenship and equality.
d. to freedom of belief and opinion.
Answer 8
Question 8 looks easy, but it is more complex because you must complete the sentence by choosing the
correct option. You must therefore know what the case of Richter v Home Affairs and Others is about and
what the court’s decision was in this case.
The case of Richter v Minister of Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC 3 declared
certain sections of the Electoral Act 73 of 1998 unconstitutional on grounds of the fundamental rights to
vote and equal treatment of South Africans living abroad, resulting in amendments to the Act.
Therefore, option b is correct. [See Learning Unit 10, pp 203-204.]
Question 9
Read the following statement and answer the question that follows by choosing the correct option:
In the case of Minister of Home Affairs and Another v Fourie and Another, the Constitutional Court found
the definition of marriage to be unconstitutional on grounds of the fundamental rights to equality and
human dignity.
On which division of South African private law did the Constitution have an influence in the case of
Minister of Home Affairs and Another v Fourie and Another?
a. law of persons
b. family law
c. law of civil unions
Answer 9
Note that the question asks you to find the division of private law that was influenced by the
Constitution in the case of Minister of Home Affairs and Another v Fourie and Another. The case dealt
with the definition of marriage. The law on marriage forms part of family law. Option b is therefore
correct. [Learning Unit 5, pp 70-71]
Question 10
Read the following statement and answer the question that follows by choosing the correct option:
In the case of Minister of Home Affairs and Another v Fourie and Another, a same-sex couple contended
the common-law definition of marriage and approached the Constitutional Court for an order that the
Minister of Home Affairs and the Director-General register their marriage in terms of the Marriage Act 25
of 1961.
Which application of the Bill of Rights does the case of Minister of Home Affairs and Another v Fourie and
Another involve?
a. fair
b. unfair
c. horizontal
d. vertical
Answer 10
This question is more difficult since the question consists of a root, a statement on which the question is
based. The stem or question requires you to apply your knowledge of the different applications of the Bill
of Rights and find the specific application of the Bill of Rights relevant to the statement. The answer set
provides you with four options.
In Learning Unit 8 we discussed the two kinds of applications of the Bill of Rights, namely the vertical and
horizontal applications of the Bill of Rights. This means that options a and b which refer to fair and unfair
may be ruled out as possible answers. [See Learning Unit 8, p 174.]
Therefore, the correct option must either be option c or d, in other words horizontal or vertical
application.
Since the statement refers to a same-sex couple (individuals) and the Minister of Home Affairs and the
Director-General (the state), this is an example of the vertical application of the Bill of Rights. Thus,
option d is correct. [See Learning Unit 8, pp 174-175.]
Note to students: Make sure that you know the difference between the vertical and horizontal
application of fundamental rights in the Bill of Rights. [See Learning Unit 8, pp 174-175; Activity 8.3 and
its Feedback, pp 177-181.]
lesson below:
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/EbUPyyBJnjJGg4WcPVU2MeEBI88u-
c3daJb1Wl9hOF4-_g?e=zTBw4T
Should you have any further queries regarding Learning Unit 10 or Lesson 10, please send an email to
any of the ILW1501 lecturers or post your queries under a relevant topic on “Discussion Forum 2:
Student-Lecturer Lounge” on the ILW1501 module site.
Kind regards,
-------------------------------------------------------
LESSON 11: LEARNING UNIT 11 (THE LEGAL PROFESSION)
WEEK: 18/04 - 25/04
FOCUS AREAS
to Learning Unit 11.
You should be able to:
1. Name and discuss the legal professions in the private sector
1.1 Traditionally in South Africa, lawyers have followed two legal professions to become private legal
practitioners. They have become either attorneys or advocates. Attorneys and advocates contribute
towards the legal profession in different ways.
1.2 Can you identify what attorneys’ and advocates’ admission criteria are; what their functions are in
practice; how they obtain a right of appearance in courts and which professional council they belong to?
[pp 214-219 of Learning Unit 11]
1.3 You should also be able to distinguish which piece of legislation and professional council governs
these two professions? You would be correct if you identified the Legal Practice Act and the Legal Practice
Council as the governance framework for attorneys and advocates. Do you know what the purpose of the
Legal Practice Act and the Legal Practice Council are? [pp 211 – 214 of Learning Unit 11]
2. Name and discuss the legal professions in the public service
2.1 In the public service, the Department of Justice and Constitutional Development and other
government departments offer different legal professions and careers that relate to the administration
of justice in South African courts.
2.2 Can you identify the role of prosecutors? (public or state prosecutors and state advocates) [pp 222-
223 of Learning Unit 11]
2.3 There are also presiding officers who are called different names in the higher and lower courts. Can
you distinguish between a judge and a magistrate? [pp 223- 224 of Learning Unit 11]
3. Describe the court officials in the public service and explain their functions
3.1 In addition to members of the legal profession in the public service who provide legal advice to clients
and the state, who represent clients and the state in court, and presiding officers who make decisions
about legal disputes, there are also different personnel who are responsible for carrying out other official
duties in the courts. They are known as court officials.
3.2 You should be able to explain the functions and roles of:
3.2.1 Court orderlies [pp 225-226 of Learning Unit 11]
3.2.2 Court interpreters [p 226 of Learning Unit 11]
3.2.3 A family advocate [p 226 of Learning Unit 11]
3.2.4 The Registrar of the high court [pp 226 - 227 of Learning Unit 11]
3.2.5 Clerk of the court [p 227 of Learning Unit 11]

3.2.6 Master of the high court [p 227 of Learning Unit 11]
3.2.7 The Sheriff [p 228 of Learning Unit 11]
4. Understand the consequences for unethical or unprofessional conduct
4.1 Do you realise how important it is that all legal professionals are ethical, competent, act with
integrity (honesty) and do not abuse their positions?
4.2 What are the consequences involved when a legal professional is found to act in an unethical or
unprofessional manner?
4.3 Sanctions include disciplinary hearings and fines. In the case of serious misconduct, legal
practitioners may even be struck off the Roll and may not be allowed to practise as legal practitioners
any longer [pp 229-230 of learning Unit 11]
Question 1
In a criminal case before the Magistrate’s Court, who receives the evidence collected by the investigating
officer and decides whether or not the suspect should be charged?
a. a judge or magistrate
b. a state advocate
c. a defence advocate
d. a public prosecutor
Answer 1
This is a straightforward, easy question.
In the lower courts, it is the public prosecutor that will decide whether an individual will be prosecuted in
terms of the criminal law, after looking at all the evidence that has been presented to them, by the police.
In this scenario, as this criminal matter which is being heard before the Magistrate’s court (a lower
court), the answer is option d.
[p 222 Learning Unit 11]
Note to students: Remember that a state advocate is found in the higher courts, for example in the
Johannesburg High Court. Public prosecutors or state prosecutors are found in the lower courts (for
example, in the Magistrate’s court).
Question 2
Which one of the following statements regarding the Legal Practice Act 28 of 2014 is correct?
a. The Act does not apply to candidate attorneys, candidate advocates and paralegals.
b. The purpose of the Act is to restrict entry into the legal professions of attorneys and advocates.
c. In terms of the Act the Legal Practice Council regulates the affairs of legal practitioners.
d. The Act grants attorneys the automatic right of appearance in all high courts.
Answer 2
Although this question appears straightforward, it requires that you understand the basic principles of the
Legal Practice Act.
In the past, attorneys were regulated and represented by their own independent professional body, the
Law Society of South Africa (LSSA) and advocates belonged to one of the professional Bar councils linked
to the divisions of the High Court. However, under the Legal Practice Act, attorneys and advocates must
belong to the Legal Practice Council as the statutory (regulatory) body that regulates the affairs of all legal
practitioners.
Option a is not correct because the Act is applicable to ALL legal practitioners and ALL candidate legal
practitioners. [p 213 of Learning Unit 11]
Option b is not correct because one of the purposes of the Act is not to restrict entry into the legal
professions of attorneys and advocates, but rather to ensure that entry into the legal profession is
unrestricted. [p 212 of Learning Unit 11]
Option c is correct. In terms of the Act, the Legal Practice Council regulates the affairs of all legal
practitioners and all candidate legal practitioners. [p 213 of Learning Unit 11]
Option d is incorrect since the Act still does not grant attorneys the automatic right of appearance in all
high courts. Attorneys must still apply for a right of appearance in all high courts. [p 216 of Learning Unit
11]
Thus, option c is correct and the option you had to choose.
[pp 216 and 219 of Learning Unit 11]
Note to students: Remember that your exam is timed. You will not finish your exam if you try to look
for all the answers within your Study Guide while you are writing the exam paper. You need to know,
understand and be able to identify basic principles (such as, the most important features of the Legal
Practice Act), in order to quickly eliminate incorrect options and chose the correct answer!
Question 3
Which one of the following statements about presiding officers is correct?
a. Judges are presiding officers in the lower courts.
b. Judges are presiding officers in the higher courts.
c. Magistrates are presiding officers in the higher courts.
d. Judges and Magistrates may preside in any court.
Answer 3
Again, this is another straightforward question! In order to answer this question, you need to distinguish
between Judges and Magistrates.
Recall that presiding officers are called by different names in the higher and lower courts. Judges are
presiding officers in the higher courts (that is, the Constitutional Court, the Supreme Court of Appeal, and
the High Court). Magistrates perform a similar function to judges. However, they preside over the lower
courts (that is, the district and regional magistrates’ courts). Therefore, option b is clearly correct.
[pp 223 – 224 Learning Unit 11]
Question 4
Jimmy has been implicated in illegally growing and selling marijuana/dagga from his home. The police
have come to investigate the matter and present him with a legal document, authorising them to search
his home.
What legal document would the police have presented to Jimmy in order to search his home?
a. a search warrant
b. a court summons
c. a charge sheet
d. a notice of motion
Answer 4
This question is more complicated as it consists of a scenario, stem/question and answer set. It requires
that you apply the set of facts from the scenario to the question.
You need to identify what legal document allows the police to search Jimmy’s home. As a search warrant
is a legal document that authorises a member of the South African Police Service to enter and to search a
person’s property or premises, option a is clearly correct and the answer to this question.
Note to students: Make sure that you know the descriptions of the other documents referred to in
options b, c and d.
Option b: for the description of a court summons, see Learning Unit 12, page 242.
Option c: for the description of a charge sheet, see Learning Unit 12, page 241.
Option d: for a description of a notice of motion, see Learning Unit 12, page 237.
[p 240, Learning Unit 11]
Question 5
There are different role players involved in court processes. Indicate the correct statement:
a. The Sheriff is an impartial and independent official appointed only in higher courts.
b. The Registrar of the High Court serves summonses on people to appear in court.
c. The Clerk of the Court supervises the administration of the High Court.
d. A court interpreter makes sure all parties understand legal proceedings in a language of their choice.
Answer 5
This question appears straightforward; however, it is more complex as it requires you to distinguish the
functions of different role players involved in court processes.
Let us go through each option carefully:
a. The Sheriff is an impartial and independent official appointed only in higher courts. This is incorrect as
the Sheriff is an impartial and independent official appointed in both the High Court and the Magistrate’s
Court. [p 228 of Learning Unit 11]
b. The Registrar of the High Court serves summonses on people to appear in court. Again, this option is
incorrect as we know that the Sheriff or the Deputy Sheriff of the court serves all documents (including
summons) issued by the court. [p 228 of Learning Unit 11]
c. The Clerk of the Court supervises the administration of the High Court. This option is also incorrect as
the clerk of the court is responsible for the administration and documentation in the Magistrate’s Court.
[p 227 of Learning Unit 11]
d. A court interpreter makes sure all parties understand legal proceedings in a language of their choice.
This option is correct and the answer to Question 5. [p 226 of Learning Unit 11]
[See Activity 11.3 pp 228-229]
Question 6
State advocates are also known as:
a. public prosecutors
b. private legal practitioners
c. public legal practitioners
d. presiding officers
Answer 6
This is a straightforward question.
We know that state advocates are legal professionals in the public service. Thus, they are public legal
practitioners. Option c is therefore correct.
Note to students: State advocates and public prosecutors are not the same! Public prosecutors / State
prosecutors are found in the lower courts, whereas state advocates are found in the higher courts.
Question 7
Attorneys and advocates are referred to as private legal practitioners because they:
a. act on behalf of the state
b. practise for their own accounts
c. perform similar functions in court
d. train candidate attorneys and pupils
Answer 7
This is a straightforward question. We know that private legal practitioners who practise law for their own
account, are called attorneys and advocates. Thus, option b is clearly correct.
[p 210 of Learning Unit 11; see also Activity 11.1 (1) and its Feedback on p 220]
Question 8
There are different types of legal practitioners recognised in South Africa. Choose the incorrect statement:
a. Legal practitioner refers to an advocate or an attorney admitted to the High Court and enrolled on the
Role of Legal Practitioners by the Legal Practice Council.
b. Candidate legal practitioner refers to a person undergoing practical vocational training either as a
candidate attorney or as a pupil.
c. Practical vocational training means training required in terms of the Legal Practice Act to qualify as a
candidate attorney or pupil.
d. Candidate attorney means a person who has completed practical vocational training and who has been
admitted as an attorney by the High Court.
Answer 8
This question is more complex as it requires you to know and understand certain concepts in order to
choose the incorrect option. It is also a question framed in the negative. Do you see that you need to look
for a statement that is not correct?
As you go through the options carefully, you should have realised that a, b and c are correct. Therefore,
you may rule these options out as possible answers to question 8. Since a candidate attorney means a
person undergoing practical vocational training with a view to being admitted and enrolled as an attorney,
option d is incorrect and the answer to Question 8.
Question 9
The Legal Practice Act 28 of 2014 has brought about changes to the legal profession. Choose the
incorrect statement:
a. The Legal Practice Act abolished the Law Society of South Africa and the General Council of the Bar of
South Africa as associations that used to regulate the affairs of attorneys and advocates.
b. The South African Legal Practice Council is a single statutory body that regulates the affairs of all legal
practitioners (attorneys and advocates) and candidate legal practitioners.
c. “Practical vocational training” is a new concept. Prior to the Legal Practice Act, the concept “articles of
clerkship” was used in the case of attorneys and “pupillage” in the case of advocates.
d. The mandate of the Legal Practice Council includes to establish provincial councils, delegate some if its
powers to the provincial councils and set norms and standards for legal practitioners.
Answer 9
Similar to Question 8, this question (which is framed in the negative) is more complex as it requires you
to know and understand certain concepts in order to choose the incorrect option.
As you go through the options carefully you should have realised that b, c and d are correct. You may
therefore rule these options out as possible answers to Question 9.
Option a is incorrect because the Legal Practice Act did not abolish the Law Society or the General Council
of the Bar. The Law Society of South Africa and the General Council of the Bar of South Africa continue to
exist in the Legal Practice Act dispensation as voluntary, representative, professional bodies that promote
the interests of attorneys and advocates respectively. Thus, option a is the answer to Question 9.
[p 213 and pp 216-217 of Learning Unit 11; see also Activity 11.1 (4) and its Feedback on pp 220-221]]
Question 10
All legal practitioners are expected to act ethically. Choose the correct statement:
a. Most legal professionals are subject to a high duty of care as the legal profession functions as a
service system to private entities only.
b. A Code of Conduct sets out rules and standards relating to ethics, conduct and practice for legal
practitioners and juristic entities.
c. Unethical conduct by legal professionals or abuse of their positions is not considered to be a serious
offence.
d. Should a legal practitioner be found guilty of unethical behaviour, this is easily remedied and limited
to payment of a fine.
Answer 10
This is a straightforward question. However, it requires you to know what unethical conduct by a legal
practitioner constitutes as well as the consequences for unethical or unprofessional conduct. Options a, c
and d are incorrect and may be ruled out as possible answers to Question 10.
However, we know that the Legal Practice Act requires the Legal Practice Council to provide a Code of
Conduct that applies to all legal practitioners (attorneys and advocates), candidate legal practitioners as
well as juristic entities. This Code of Conduct was published in 2019. It is a written code setting out rules
and standards relating to ethics, conduct and practice for legal practitioners. Therefore, option b is clearly
correct and the answer to Question 10.
[pp 229-230 of Learning Unit 11]
lesson below:
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/EZ4PkijQO5NKjUsziV9j7aABD3Ei6-
KWOI6RjCztDRyhrA?e=1yFcIt
Should you have any further queries regarding Learning Unit 11 or Lesson 11, please send an email to
any of the ILW1501 lecturers or post your queries under a relevant topic on “Discussion Forum 2:
Student-Lecturer Lounge” on the ILW1501 module site.
Kind regards,
-------------------------------------------------------------------------------------------------------
LESSON 12: LEARNING UNIT 12 (DIFFERENT LEGAL DISPUTES AND THE COURTS)
WEEK: 25/04 – 02/05 - PART 1 (DIFFERENT LEGAL DISPUTES)
WEEK: 02/05 – 09/05 - PART 2 (THE COURTS)
Dear ILW1501 Students
Welcome to the first part of Lesson 12! Since Learning Unit 12 (on which Lesson 12 is based) is quite a
long and very important unit, we decided to divide Lesson 12 into two parts.
Part 1 deals with the different legal disputes.
Part 2 will deal with the most important courts in South Africa and the basic concepts relating to the
operation of the courts.
In Lesson 12 (Part 1) we provide you with an extra non-compulsory self-assessment MCQ activity on
Learning Unit 12 of the Study Guide. It consists of 15 multiple-choice questions (MCQs). Each MCQ is
followed by its answer, detailed feedback and comments.
FOCUS AREAS
Before we get into the feedback to each question of Lesson 12 (Part 1), we would like to provide a recap
of the focus areas (i.e. more detailed learning outcomes) to Learning Unit 12, specifically the section on
the different kinds of legal disputes.
Since our recap of the focus areas of Lesson 12 (Part 1) contains tables and diagrams, we have uploaded
the focus areas in a word document under "Additional Resources". The following link will take you to
this document. Click on the link and download the document:
https://mymodules.dtls.unisa.ac.za/mod/folder/view.php?id=595615
Question 1
Which of the following statements about a civil dispute is incorrect?
a. A civil dispute is a private-law matter between individuals.
b. A civil dispute is a public-law matter in which the state is involved.
c. One party to a civil dispute may decide to institute a claim.
d. The other party to a civil dispute may decide to defend the claim.
Answer 1
This is a straightforward, easy question about the nature of a civil case. It consists of a stem/question and
a set of answers/ four options.
Did you notice that the question is phrased in the negative? Please read your MCQs very carefully.
Students often miss the negative!
Let us look at the different options:
Option a is correct because a civil dispute is a private-law matter between individuals. [Learning Unit 12,
p 233]
Taking into consideration that option a is correct, option b must be incorrect because a civil dispute is not
a public-law matter in which the state is involved. [Learning Unit 12, pp 233-234 and p 238]
Since option b is incorrect, options c and d must be correct by way of elimination. [Learning Unit 12, p
233]
Option b is incorrect and therefore the option you had to choose.
Question 2
Who are the parties to a civil case in a magistrate’s court?
a. plaintiff and the defendant

b. state and the appellant
c. plaintiff and the respondent
d. applicant and the complainant
Answer 2
This question consists of a stem/question and a set of answers/ four options.
It is a straightforward, easy question that tests whether you know who the parties in a civil case in the
magistrate’s court are. If you know your study material well, you should in fact be able to answer this
question without even looking at the options.
Option a, referring to the plaintiff and the defendant, is clearly correct as options b, c and d do not
reflect the parties that are involved in a civil case in the magistrate’s court. [Learning Unit 12, p 233]
Question 3
Which two types of civil proceedings can legal practitioners use to institute civil cases?
a. appeal and review proceedings
b. action and defence proceedings
c. action and application proceedings
d. summons and trial proceedings
Answer 3
Question 3 also consists of a stem/question and a set of answers/ four options.
It is also a straightforward, easy question that you should be able to answer without even looking at the
options.
The two types of civil proceedings which a legal practitioner can use to institute a civil matter are action
and application proceedings. Therefore, option c is correct. [Learning Unit 12, p 234]
Question 4
The following statements reflect the difference between action and application proceedings. Which
statement is incorrect?
a. In action proceedings there are fundamental differences between the parties with regards to the facts
of the case whereas in application proceedings the only real issues to be decided are the points of law.
b. Action proceedings are instituted by the plaintiff by way of summons whereas application proceedings
are instituted by the applicant by way of a notice of motion.
c. In action proceedings the reason for instituting the action can be a delict, a contract, or a divorce
whereas in application proceedings the reason for the application can be a form of relief or a court order.
d. There are two types of action proceedings, namely actions with notice of motion or ex parte notice of
motion actions whereas there is only one type of application proceeding.
Answer 4
This question consists of a stem/question and a set of answers/ four options. Did you see the negative or
did you miss it?
The question may appear easy, but it is more complex because we want to determine whether you can
distinguish between action and application proceedings. If you drafted and completed the table on civil
proceedings as we suggested in the focus areas above, you will find the question easy.
Option a: In action proceedings there are fundamental differences between the parties with regards to
the facts of the case [Learning Unit 12, p 234] whereas in application proceedings the only real issues to
be decided are the points of law [ Learning Unit 12, p 236]. Thus, option a is correct and may be ruled out
Option b: Action proceedings are instituted by the plaintiff by way of summons [Learning Unit 12, pp 234-
235] whereas application proceedings are instituted by the applicant by way of a notice of motion
Learning Unit 12, pp 236-237]. Option b is also correct and may be ruled out as a possible answer.
Option c: In action proceedings the reason for instituting the action can be a delict, a contract, or a divorce
[Learning Unit 12, p 234] whereas in application proceedings the reason for the application can be a form
of relief or a court order [Learning Unit 12, p 236]. Option c is therefore also correct and may be ruled out
Option d: If options a, b and c are correct, then option d must be incorrect. Option d states that there are
two types of action proceedings, namely actions with notice of motion or ex parte notice of motion actions
whereas there is only one type of application proceeding. Option d is clearly incorrect as there are two
kinds of application proceedings, namely applications with notice of motion and ex parte notice of motion
applications. [Learning Unit 12, p 234 and pp 236-237]
Question 5
Which of the following documents does not form part of the action proceedings?
a. a summons
b. particulars of claims
c. a notice of motion
d. an affidavit
Answer 5
Question 5 consists of a stem/question and a set of answers/ four options. Watch out, the question is
phrased in the negative!
It is a straightforward, easy question that you should be able to answer by reading through the options
only once.
The question asks which document does not form part of the action proceedings. If you look at options a,
b and d you should realise that a summons, particular of claims and an affidavit are documents that form
part of the action proceedings, not the application proceedings. Options a, b and d may then be ruled out
as possible answers. [Learning Unit 12, pp 234-235]
Option c that refers to a notice of motion must therefore be the incorrect option because a notice of
motion is a document that forms part of the application proceedings. [Learning Unit 12, pp 236-237]
Question 6
What is the outcome of a criminal case?
a. The court must allow or dismiss the action instituted.
b. The court must find the accused guilty or not guilty.
c. The court must grant a form of relief to a person.
d. The court must decide on the constitutionality of law.
Answer 6
Question 6 consists of a stem/question and a set of answers/ four options.
It is a straightforward, easy question that you should be able to answer without even looking at the
options if you drafted and completed the table on civil, criminal and constitutional disputes as suggested
above when we discussed the focus areas.
The outcome of a criminal case is for the court to find the accused guilty or not guilty. Therefore, option
b is correct. [Learning Unit 12, p 238]
Question 7
Who is the legal representative of an accused in a criminal case in a high court?
a. a judge
b. a paralegal
c. a candidate attorney
d. a legal practitioner
Answer 7
It is a straightforward, easy question that you should be able to answer with one look at the options.
The legal representative of an accused in a criminal case in a high court is a legal practitioner. [Learning
Unit 12, p 238] Therefore, option d is correct.
Question 8
Mr Pillay and Mr Reddy are involved in a heated argument. Mr Pillay hits Mr Reddy repeatedly with a
bottle of wine over the head. Mr Reddy sustains several injuries and opens a case of assault against Mr
Pillay.
Which legal dispute/disputes may arise from this incident?
a. A civil case can be instituted against Mr Pillay.
b. A criminal case can be instituted against Mr Pillay.
c. Both a criminal and a civil case may be instituted against Mr Pillay.
d. Neither a criminal nor a civil case can be instituted against Mr Pillay.
Answer 8
Question 8 consists of a root/scenario, a stem/question and an answer set of four options. The question
is a more difficult application question since we require you to apply your knowledge of the three different
legal disputes and identify the legal dispute/disputes that may arise from the incident.
If you have studied our guidelines on understanding and answering MCQs, you will know that we inform
you in one of the guidelines not to assume words and facts that are not specifically stated in the
scenario. In other words, do not read words or facts into the scenario that are not there. Keep to the
words and facts as stated in the scenario.
If you followed this guideline, you should have argued that option b is most correct and that a criminal
case can be instituted against Mr Pillay because Mr Reddy opened a case of assault against Mr Pillay.
Although we refer to Mr Reddy’s injuries, we do not elaborate on the several injuries that he sustained
and therefore a civil case may not arise from this incident.
We decided to provide you with a revised scenario for Question 8 from which both a criminal and civil
case may be instituted against Mr Pillay.
Question 8 (Revised)
Mr Pillay and Mr Reddy are involved in a heated argument in front of a few bystanders. Mr Pillay who had
a few glasses of wine too many hits Mr Reddy repeatedly with a bottle of wine over the head. Mr Reddy
sustains severe head injuries and is admitted to hospital. The police investigated the matter, drafted a
charge sheet, and require Mr Pillay to appear in the magistrate’s court. After Mr Reddy has been
discharged from hospital, he wants to claim damages from Mr Pillay for his hospital costs of R600 000.
Which legal dispute/disputes may arise from this incident?
a. A civil case can be instituted against Mr Pillay.

b. A criminal case can be instituted against Mr Pillay.
c. Both a criminal and a civil case may be instituted against Mr Pillay.
d. Neither a criminal nor a civil case can be instituted against Mr Pillay.
Answer 8 (revised)
Question 8 (revised) consists of a root/scenario, a stem/question and an answer set of four options. The
question is a more difficult application question since we require you to apply your knowledge of the three
different legal disputes and identify the legal dispute/disputes that may arise from the incident.
From this scenario, both a criminal and civil case may be instituted against Mr Pillay. A criminal case
can be instituted against Mr Pillay because Mr Reddy opened a case of assault against Mr Pillay.
[Learning Unit 12, p 238] A civil case may also arise from this incident because Mr Reddy wants to claim
damages from Mr Pillay for his hospital costs of R600 000. [Learning Unit 12, pp 233-235]
Option c is therefore the most correct option.
Question 9
Pillay.
What will the name of the civil case against Mr Pillay be?
a. Reddy v Pillay
b. S v Pillay
c. Pillay v S
d. Pillay v Reddy
Answer 9
This question consists of a root/scenario, a stem/question, and an answer set/four options.
It is a straightforward, easy question in which we require you to give the name of the civil case against Mr
Pillay.
You should know that a civil case takes place between the plaintiff and the defendant. In the name of
a civil case instituted by way of the action proceedings, the plaintiff’s name comes first followed by the
letter “v” (for versus or against) and then comes the defendant’s name. In this case Mr Reddy will be
the plaintiff and Mr Pillay the defendant. The name of the civil case will be Reddy v Pillay.
Option a is therefore correct. [Learning Unit 12, pp 233-235]
Question 10
Pillay.
What will the name of the criminal case against Mr Pillay be?
a. Reddy v Pillay
b. S v Pillay
c. Pillay v S
d. Pillay v Reddy
Answer 10
This question consists of a root/scenario, a stem/question, and an answer set/four options.
It is a straightforward, easy question in which we require you to give the name of the criminal case against
Mr Pillay.
You should know that a criminal case takes place between the state and the accused. In the name of a
criminal case, the name of the first party will always be the letter “S” (for state) followed by the letter
“v” (for versus or against) and lastly the name of the accused, in this case Mr Pillay. The name of the
criminal case against Mr Pillay will be S v Pillay.
Option b is therefore correct. [Learning Unit 12, p 238]
Question 11
Pillay. The police investigated the matter, drafted a charge sheet, and now requires Mr Pillay to appear in
the magistrate’s court.
Which method will be used to assure the attendance of Mr Pillay in the magistrate’s court?
a. arrest
b. summons
c. written notice by police
d. indictment
Answer 11
Question 11 consists of a root/scenario, a stem/question, and a set of answers/ four options. It is a

straightforward, easy question that you should be able to answer by reading through the options only
once.
You must simply decide which of the three methods used in a criminal case to assure the attendance of
the accused in a magistrate’s court will be applicable to this scenario. Do you remember the three ways
in our diagram that are used in a criminal case to assure the attendance of the accused in a magistrate’s
court during the pre-trial stage? Arrest, summons and a written notice issued by a peace officer!
Let us consider the three options:
Option a: arrest - is not applicable because the scenario does not make any mention of the police arresting
Mr Pillay. [Learning Unit 12, p 241]
Option b: summons - may be applicable because the police investigated the matter, drafted a charge
sheet, and requires Mr Pillay to appear in the magistrate’s court. [Learning Unit 12, p 242]
Option c: written notice by police - is not applicable because a notice issued by a peace officer or police
officer is usually given in the case of minor offences. Assault is not regarded as a minor offence. [Learning
Unit 12, p 242]
Option d: indictment – is used to assure the attendance of the accused in a criminal case in the high court,
not in a criminal case in the magistrate’s court. [Learning Unit 12, p 242]
Question 12
In a criminal case the trial on the merits of the case consists of the following:
a. committing and reporting of a crime; investigation by police; decision to prosecute; first appearance in
court
b. arrest; summons; written notice issued by peace officer; notice of trial; indictment
c. state’s charges against accused; accused’s plea; state and accused state their cases; judgment
d. sentence; reason for sentence; execution of sentence follows; possibility of appeal and review
Answer 12
This question consists of a stem/question and an answer set of four options. If you followed our advice
and drafted a diagram to outline the process of a criminal case as suggested when we discussed the
focus areas, you will find the question easy to answer. If you did not draft the diagram, you may struggle
to answer the question.
Option a: reflects the phases of a pre-trial in a criminal case and may be ruled out as a possible answer.
Option b: reflects the different ways in which the accused can be brought before the magistrate’s court
and the high court and may be ruled out as a possible answer. [Learning Unit 12, pp 241-242]
Option c: reflects the phases of the first stage of a criminal trial, namely the trial on the merits of the case,
and is therefore the correct option. [Learning Unit 12, pp 242-244]
Option d: reflects the phases of the second stage of a criminal trial, namely the trial on sentence
(punishment), as well as the phases of the after trial and may be ruled out as a possible answer. [Learning
Unit 12, p 244]
Option c is correct and the option that you had to choose.
Question 13
Which one of the following statements is correct regarding the onus of proof in a court case?
a. In a civil case the plaintiff must prove his case beyond a reasonable doubt.
b. In a criminal case the state must prove its case on a balance of probabilities.
c. In a criminal and civil case, the onus rests with an individual to prove his case.
d. The onus of proof in a civil case is not quite as heavy as in a criminal case.
Answer 13
Question 13 consists of a stem/question and an answer set of four options. You must look for the correct
option.
It is a straightforward, easy question if you know the meaning of the legal concept “onus of proof” and
if you know on which party the onus of proof rests in the different kinds of disputes.
Option a: is incorrect because in a civil case the plaintiff must prove his case on a balance of probabilities,
not beyond a reasonable doubt.
Option b: is incorrect because in a criminal case the state must prove its case beyond a reasonable doubt,
not on a balance of probabilities.
Option c: is clearly incorrect because the onus does not rest with an individual to prove his case in a
criminal or civil case.
Since options a, b and c are incorrect they may be ruled out as possible answers. By way of elimination
option d must therefore be correct. Let us confirm this.
Option d: is correct because the onus of proof in a civil case is not quite as heavy as in a criminal case.
[See for the onus of proof in a civil case: Learning Unit 12, p 236.]
[See for the onus of proof in a criminal case: Learning Unit 12, p 243.]
Question 14
What is the purpose of a constitutional matter?
a. to prosecute and punish someone for a crime and in doing so protecting the community as a whole
b. to grant a remedy to a person in order to institute a claim for performance such as the payment for
damages
c. to deal with any issue involving the interpretation, protection or enforcement of the Constitution
d. to hear a case where there are no fundamental differences between the parties regarding the facts of
the case
Answer 14
It is a straightforward, easy question that you should be able to answer with one look at the options,
especially if you have drafted a table of the different kinds of legal disputes.
Let us investigate the options:
Option a describes the purpose of a criminal matter and may be ruled out as a possible answer. [Learning
Unit 12, p 238]
Option b describes the purpose of a civil matter and may be ruled out as a possible answer. [Learning Unit
12, p 233]
Option c describes the purpose of a constitutional matter and is correct. [Learning Unit 12, p 245]
Option d explains what application proceedings are and may be ruled out as a possible answer. [Learning
Unit 12, p 236]
Option c is therefore correct.
Question 15
Katlego is a trader. He has a small stall in Johannesburg CBD from which he sells household groceries to
the community. A group of armed protestors are making their way through the city and begin looting the
shops in the area, including destroying half of Katlego’s stock.
Which legal disputes may arise from this incident?
a. civil and criminal
b. criminal and constitutional
c. civil and constitutional
d. civil, criminal and constitutional
Answer 15
Question 15 is an application question that consists of a root/scenario, a stem/question and an answer

set of four options. Since it is an application question it is more complex and requires you to apply your
knowledge of the three different kinds of disputes and to identify the legal disputes that may arise from
the scenario.
Let us start with the scenario and see if we can identify the legal disputes that may arise from the scenario:
Katlego is a trader who has a small stall in Johannesburg CBD from which he sells household groceries to
the community. This means that Katlego is exercising his fundamental right to freedom of trade as
entrenched in section 22 of the Bill of Rights. The group of armed protestors who destroys half of his stock
infringes on his right to freedom of trade and a constitutional dispute may arise from this incident.
Remember that constitutional disputes may also involve issues on fundamental rights. [Learning Unit 12,
p 245]
The group of armed protestors, who makes their way through the city and loots the shops, disobeys the
law and commits a crime by doing so. Their looting is a criminal act that threatens the whole community
and infringes public interests. The state should therefore use its power to prosecute and punish the
offenders. A criminal dispute may also flow from the scenario. [Learning Unit 12, p 238]
Since a criminal and constitutional dispute may arise from the incident, option b is correct.
This now concludes our Lesson 12 (Part 1) on Learning Unit 12, please see the link to the explanatory
video on the lesson below:
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/EZz4CJkm9Z5OqwuIZYPojswBh9zYqnM1P
A-mTahTGHIs_Q?e=x2YhCk
Should you have any further queries regarding Learning Unit 12 or Lesson 12 (Part 1), please send an
email to any of the ILW1501 lecturers or post your queries under a relevant topic on “Discussion Forum
2: Student-Lecturer Lounge” on the ILW1501 module site.
Kind regards,
-----------------------------------------------------------------------------------------------------------------------------
LESSON 12: LEARNING UNIT 12 (DIFFERENT LEGAL DISPUTES AND THE COURTS)
WEEK: 25/04 – 02/05 - PART 1 (DIFFERENT LEGAL DISPUTES)
WEEK: 02/05 – 09/05 - PART 2 (THE COURTS)
Dear ILW1501 Students
Welcome to the second part of Lesson 12! Since Learning Unit 12 (on which Lesson 12 is based) is quite a
long and very important unit, we decided to divide Lesson 12 into two parts.
Part 1 dealt with the different legal disputes.

Part 2 deals with the most important courts in South Africa and the basic concepts relating to the
operation of the courts.
In Lesson 12 (Part 2) we provide you with an extra non-compulsory self-assessment MCQ activity on
Learning Unit 12 of the Study Guide. It consists of 15 multiple-choice questions (MCQs). Each MCQ is
followed by its answer, detailed feedback and comments.
the lessons. Read in this regard Announcements 2 and 4 posted on the ILW1501 module site
FOCUS AREAS
Before we get into the feedback to each question of Lesson 12 (Part 2), we would like to provide a recap
of the focus areas (i.e. more detailed learning outcomes) to Learning Unit 12, specifically the section on
the most important courts in South Africa and the basic concepts relating to the operation of the courts..
Since our recap of the focus areas of Lesson 12 (Part 2) contains tables and diagrams, we have uploaded
the focus areas in a word document under "Additional Resources". The following link will take you to
this document. Click on the link and download the document:
https://mymodules.dtls.unisa.ac.za/mod/folder/edit.php
Question 1
Which court in South Africa is the highest court in all legal matters?
a. Magistrate’s Court
b. North Gauteng High Court
c. Supreme Court of Appeal
d. Constitutional Court
Answer 1
Question 1 is straightforward and easy. It consists of a stem/question and an answer set of four options.
The purpose of the question is to test your knowledge about the hierarchy of the courts, in other words
whether you know where the most important courts fit into the hierarchy (or level) of courts. You
should be able to answer the question without even looking at the options.
Option d is clearly correct. The Constitutional Court (CC) is since the amendment of section 167 of the
Constitution the highest court in all legal matters, in other words in civil, criminal and constitutional
disputes. [Learning Unit 12, pp 249-250]
Question 2
Which one of the following statements regarding the Constitutional Court is incorrect?
a. The Constitutional Court may only hear constitutional matters and is the highest court of appeal in
these matters.
b. The decisions of the Constitutional Court are final and bind all courts within the hierarchy of courts.
c. Direct access to the Constitutional Court is possible if the application is in the interests of justice.
d. The Constitutional Court can function as a court of first instance or as a court of appeal.
Answer 2
Question 2 is straightforward with a stem/question and an answer set of four options. The question deals
with the functioning of the Constitutional Court. Did you notice that the question is phrased in the
negative?
Option a: the Constitutional Court may only hear constitutional matters and is the highest court of
appeal in these matters.
When you read option a, note the use of the word “only”. Do you remember what we said in the guidelines
on understanding and answering MCQs about the use of the word “only”?
Let us refresh your memory. We said: “Look out for words such as “only”, “always”, and “never” in
statements. These words may be an indicator of a statement being correct or incorrect.”
As mentioned in Answer 1, the Constitutional Court may now hear any matter and not only
constitutional matters. Option a reflects the previous status of the Constitutional Court before the
amendment of section 167 of the Constitution. Option a is therefore incorrect and a possible answer to
the question.
Since option a is incorrect, options b, c and d must be correct and may be ruled out as possible answers.
Let us confirm this.
Option b is correct: the decisions of the Constitutional Court are final and bind all courts within the
hierarchy of courts because the Constitutional Court is the highest court in South Africa.
Option c is correct: direct access to the Constitutional Court is possible if the application is in the interests
of justice.
Note to students: The term “justice” is used in the Study Guide in a number of different definitions. For
example, the definitions: formal justice [Learning Unit 1, p 12]; substantive justice [Learning Unit 1, p
13]; transformative justice; restorative justice [Learning Unit 7, p 162] and so on. “Justice” as a concept
refers to fairness, equality or equitable treatment depending on the context in which the term is used.
As a general term in law, “interests of justice” refers to a decision or consequence (for example) that
would be fair, considering a set of facts/ circumstances.
Option d is correct: the Constitutional Court can function as a court of first instance or as a court of
appeal. Make sure that you know what is meant by “court of first instance” and “court of appeal” (court
that can hear appeals). See Learning Unit 12, pages 255 to 266.
Option a is therefore the incorrect option that you had to choose.
Question 3
Which one of the following statements regarding the Supreme Court of Appeal is incorrect?
a. The abbreviation used for the Supreme Court of Appeal in a case reference or case citation is “SCA”.
b. The Supreme Court of appeal may decide civil, criminal and constitutional matters on appeal.
c. The Supreme Court of Appeal only functions as a court of appeal and never as a court of first instance.
d. The Supreme Court of Appeal hears appeals from the High Courts and the Constitutional Court.
Answer 3
Question 3 appears to be straightforward with a stem/question and an answer set of four options but is
in fact more complex. The question deals with the functioning of the Supreme Court of Appeal (SCA)
and is also phrased in the negative. You must therefore look for the incorrect option.
Let us investigate the options:
Options a, b and c are clearly correct. [See Learning Unit 12, p 250.]
Therefore, option d must be incorrect. Let us confirm this. Option d states that the Supreme Court of
Appeal hears appeals from the High Courts and the Constitutional Court. The statement is not correct
because the Supreme Court of Appeal can only hear appeals from the High Courts, in other words appeals
from courts that are on a lower level in the hierarchy of courts. The Supreme Court of Appeal cannot hear
appeals from the Constitutional Court because the Constitutional Court is the highest court within the
hierarchy of courts in all matters. Note that from the Supreme Court of Appeal an appeal can be made to
the Constitutional Court. [Learning Unit 12, pp 249-250]
Do you now understand why we regard Question 3 as more complex? Again, we urge you to read the
MCQs very carefully.
Thus, option d is incorrect and the option that you had to choose.
Question 4
Which one of the following statements regarding the High Court is incorrect?
a. Each High Court in South Africa has jurisdiction to hear cases within a specific provincial area and not
within the whole of South Africa.
b. The High Court only functions as a court of appeal and a court of review and never as a court of first
instance.
c. As a court of appeal, the High Court hears appeals from district courts and regional courts.
d. The High Court may hear civil cases in which substantial amounts of damages are claimed.
Answer 4
Question 4 is straightforward with a stem/question and an answer set of four options. The question deals
with the functioning of the High Court. Did you notice that the question is phrased in the negative?
Option a: is correct and may be ruled out as a possible answer. [Learning Unit 12, p 251]
Option b: look out for the words “only” and “never” in the statement. These words may be an indicator
(not always!) of a statement being the answer that you are looking for.
If you know how the High Court functions, you will realise that option b is incorrect because the High
Court can function as a court of appeal, a court of review and as a court of first instance. Make sure that
you know what is meant by “court of review”. [Learning Unit 12, pp 256-257]
Since option b is incorrect, options c and d must be correct and may be ruled out as possible answers.
You can confirm this by reading Learning Unit 12, page 251.
The words “only” and “never” should have helped you to identify that option b is incorrect and
therefore the option that you had to choose.
Question 5
Which one of the following indicate the two types of magistrates’ courts?
a. lower courts and higher courts
b. civil courts and criminal courts
c. district courts and regional courts
d. courts of appeal and superior courts
Answer 5
Question 5 is straightforward and easy. It consists of a stem/question and an answer set of four options.
You should be able to answer the question without even looking at the options.
The two types of magistrates’ courts in South Africa are the district courts and the regional courts.
Option c is therefore correct. See Learning Unit 12, page 251.
Question 6
The jurisdiction of district courts and regional courts to hear legal disputes differ. Which one of the
following statements regarding the jurisdiction of these courts are correct?
a. District courts may hear minor criminal offences whereas regional courts may hear any criminal
offences.
b. District and regional courts impose the same sentences and fines in hearing a criminal case.
c. The amount claimed for damages in a in a district court in a civil case is smaller than in a regional court.
d. A district court may not decide on the constitutionality of legislation whereas a regional court may.
Answer 6
Question 6 is an easy, straightforward question and consists of a stem/question and an answer set of four
options. It deals with the jurisdiction of district courts and regional courts to hear civil, criminal and
constitutional cases. You should be able to answer the question by reading through the options once.
Before we look at the options, let us first make sure that you understand the meaning of the concept
“jurisdiction”. By jurisdiction we mean the competence (authority/power) of a court to hear a case.
Let us look at the options. You must indicate the correct option.
Option a is incorrect and may be ruled out as a possible answer. Why is option a incorrect? Regional courts
may not hear all criminal offences. There is one criminal offence that regional courts may not hear and
that is treason. [Learning Unit 12, pp 251-252]
Option b is incorrect because the sentences and the fines that district courts and regional courts may
impose in criminal cases differ. [Learning Unit 12, p 252]
Option c is correct because the amount claimed for damages in a in a district court in a civil case is smaller
than in a regional court. [Learning Unit 12, p 251]
Since option c is correct, option d must be incorrect. And it is incorrect, because a court with a lower
status than the High Court, in other words all magistrates’ courts (district and regional), may not decide
on the constitutionality of legislation. [Learning Unit 12, p 252]
Option c is therefore correct and the option that you had to choose.
Question 7
Which court is the odd one out? (Hint: look for an option that is different in comparison to the other
options provided?
a. Equality Court
b. Children’s Court
d. Maintenance Court
Answer 7
Question 7 is an easy, straightforward question and consists of a stem/question and an answer set of four
options. It deals with different courts, specifically with special courts. [Learning Unit 12, p 252]
Let us consider the options and find the one that is different in comparison to the other options provided.
Option a: the Equality Court is a special court.
Option b: the Children’s Court is a special court.
Option c: the Constitutional Court is not a special court.

Option d: the Maintenance Court is a special court.
Thus, option c is the odd one out and the option that you had to choose.
Question 8
Which one of the following statements regarding special courts is incorrect?
a. Special courts are established and recognised in terms of an Act of Parliament for specialised litigation.
b. Some special courts have the same status as the magistrate’s court whereas other special courts have
the same status as the High Court.
c. Special courts may only hear civil matters as determined by an Act of Parliament.
d. The Chiefs’ and Headmen’s Court, Equality Court and Land Claims Court are special courts.
Answer 8
Question 8 is also an easy, straightforward question and consists of a stem/question and an answer set of
four options. All the options deal with special courts. You must find the incorrect option.
When you read the options, the use of “only” in option c must have caught your eye:
Special courts may only hear civil matters as determined by an Act of Parliament.
Is option c perhaps incorrect and the possible answer to the question? The answer is yes! Special courts
may hear any matter as determined by an Act of Parliament, not only civil matters.
Since option c is incorrect, options a, b and d must be correct and may be ruled out as possible answers.
Confirm this by reading Learning Unit 12, p 252.
Option c is incorrect and the option that you had to choose.
Question 9
Anne Peterson buys a house from Kevin Smith. In one of the rooms a very expensive bar unit is fixed to
the floor and in front of this unit there are four loose bar stools handmade by a friend. Kevin wants to
take the bar stools with him when he moves out of the house. Anne, who is an attorney, tells Kevin that
in a similar case (Senekal v Roodt 1983 (2) SA 602 (T)), the High Court decided that the bar stools formed
part of the bar unit and may not be removed by the seller when the house is sold.
On which court/courts is the decision of the High Court in Senekal v Roodt 1983 (2) SA 602 (T) binding?
a. Constitutional Court
b. Supreme Court of Appeal
c. Magistrates’ Courts
d. Small Claims Court
Answer 9
Question 9 is an application question and therefore more complex. It consists of a root/scenario,
stem/question and an answer set of four options.
The question requires you to identify that it deals with the hierarchy of courts and a specific legal
principle in South African law, namely the system of judicial precedent (precedent system), that we
discussed in Learning Unit 6 pages 102 to 103.
The hierarchy of courts and the precedent system are important basic concepts that relate to the
operation of courts in South Africa. Therefore, we briefly discuss it again in Learning 12 pages 253 to 254.
Hierarchy of courts: this concept refers to the division of courts into ranks (levels of authority).
System of judicial precedent: lower courts are bound by the decisions of higher courts.
If you apply the precedent system to Question 9, the decision of the High Court will be binding on courts
lower in the court hierarchy, in other words to the Magistrates’ Courts. Therefore, option c is clearly
correct.
Question 10
charge sheet, and require Mr Pillay to appear in the magistrate’s court. After Mr Reddy has been
Which court can Mr Reddy approach to institute his claim of R600 000 for hospital costs?
a. Supreme Court of Appeal
b. High Court
c. Regional Court
d. District Court
Answer 10

stem/question and an answer set of four options.
This question requires you to identify which court has jurisdiction to hear the case in which Mr Reddy
wants to claim the large amount of R600 000 for hospital costs from Mr Pillay.
Before you can identify which court has jurisdiction to hear the case, you must determine what kind of
dispute we deal with. In our scenario the dispute is between Mr Reddy and Mr Pillay (between two
individuals) and it is therefore a civil case with the purpose of granting Mr Reddy the remedy to institute
a claim for performance, the payment of damages. R600 000 for hospital costs is a substantial amount
claimed for damages!
Which court can hear a civil case in which a substantial amount for damages is claimed?
Let us consider the options:
Option a: the Supreme Court of Appeal may only decide civil cases on appeal. The civil case in our scenario
is not on appeal. Option a is therefore incorrect and may be ruled out as a possible answer. [Learning Unit
12, p 250]
Option b: the High Court may hear civil cases where substantial (large) amounts of damages are claimed.
As said above, R600 000 is a substantial amount for damages and option b is thus correct. [Learning Unit
12, p 251]
Options c and d should then be incorrect and may be ruled out as possible answers. Note that district
courts and regional courts may hear civil cases where smaller amounts of damages are claimed. [Learning
Unit 12, p 251]
Question 11
Read the scenario of Question 10 again and answer the following question:
If Mr Reddy is not satisfied with the decision of the court which he approached in Question 10, which
court can Mr Reddy approach next?
a. Constitutional Court
b. Supreme Court of Appeal
c. High Court
d. Regional Court
Answer 11
Like Question 10, Question 11 is also an application question and therefore more complex. It consists of
a root/scenario, stem/question and an answer set of four options.
This question requires you to bear the following in mind when you decide on the court which Mr Reddy
can approach if he is not satisfied with the decision of the High Court (the court determined in Question
10):
► the hierarchy of courts [Learning Unit 12, pp 253-254]
► appeal, the legal remedy that is used when one of the parties to a dispute is not satisfied with the
decision of the court [Learning Unit 12, pp 255-256]
If Mr Reddy is not satisfied with the decision of the High Court, he can approach the Supreme Court of
Appeal next. Therefore, option b is clearly correct.
Question 12
Read the scenario of Question 10 again and answer the following question:
If Mr Reddy is not satisfied with the decision of the court which he approached in Question 10, what
legal remedy does Mr Reddy have at his disposal?
a. appeal
b. review
c. interdict
d. indictment
Answer 12
Question 12 is an easy, straightforward question with an answer set of four options. The question deals
with the important concepts of appeal and review that relate to the operation of courts.
It is very important for you to know the differences between appeal [Learning Unit 12, 255-256] and
review [Learning Unit 12, p 256-257].
If you look at the options, you should immediately identify option a as the correct option because
appeal is the legal remedy available to Mr Reddy if he is not satisfied with the decision of the High Court
which he approached in Question 10.
Option b: for review as a legal remedy see Learning Unit 12 pages 256 to 257.
Option c: for interdict as a form of relief or a court order see Learning Unit 12 pages 236 to 237.
Option d: for indictment as a method to secure the attendance of the accused in a criminal case in the
High Court see Learning Unit 12 pages 241 to 242.
Question 13
Which one of the following is not a ground upon which court proceedings of lower courts may be
reviewed by higher courts?
a. absence of court’s jurisdiction
b. gross irregularities in procedure
c. error in court’s decision
d. corruption of presiding officer
Answer 13
Question 13 is easy and straightforward. It consists of a stem/question and an answer set of four options.
The question deals with review, specifically with the grounds upon which court proceedings of lower
courts may be reviewed by higher courts. You are required to find the option which is not a ground upon
which court proceedings of lower courts may be reviewed by higher courts. Did you notice that the
question is phrased in the negative?
In Learning Unit 12 on pages 256 to 257 you will find the discussion relevant to review. From the
discussion it is evident that options a, b, and d, are grounds upon which court proceedings of lower
courts may be reviewed by higher courts. Options a, b and d may therefore be ruled out as possible
answers.
Therefore, option c must not be a ground upon which court proceedings of lower courts may be
reviewed by higher courts. It is indeed true! Option c that refers to “error in court’s decision” refers to
a ground upon which one of the parties to a dispute may ask leave for appeal to a higher court.
Option c is therefore the correct option that you had to choose.
Question 14
charge sheet, and requires Mr Pillay to appear in the magistrate’s court. After Mr Reddy has been
What kind of evidence is least likely to be used in the criminal trial against Mr Pillay?
a. real evidence
b. documentary evidence
c. electronic evidence
d. oral evidence
Answer 14

stem/answer and an answer set of four options.
The question requires you to apply your knowledge of the different kinds of evidence that a court may
hear during a criminal trial. There are four kinds of evidence that we discuss in Learning Unit 12 on page
260: oral, documentary, real and electronic evidence.
You must identify the kinds of evidence that may be applicable in our scenario. One of the kinds of
evidence may not be applicable.
Let us consider the options:
Option a: real evidence is evidence in the form of objects. The bottle of wine or fingerprints on the wine
bottle is real evidence and will be used in the trial. Option a may therefore be ruled out as a possible
answer. [Learning Unit 12, p 260]
Option b: documentary evidence is written evidence. In our scenario, documentary evidence may take
the form of, for example, affidavits because of the police investigation and results of blood tests because
of Mr Pillay drinking too much and Mr Reddy’s severe head injuries. Option b may also be ruled out as a
Option c: electronic evidence takes the form of electronic data and data messages (emails). It is unlikely
that electronic evidence will be used in the criminal trial against Mr Pillay. Therefore, option c may be
correct. [Learning Unit 12, p 260]
Option d: oral evidence takes the form of witnesses’ oral evidence. Since bystanders witnessed how Mr
Pillay injured Mr Reddy, they may give their sworn testimony in court. Option d may be ruled out as a
Thus, option c is the most correct option.
Question 15
Which one of the following statements regarding evidence presented to court in a trial is incorrect?
a. Evidence in a trial can be any information, item, document, or testimony by a witness that is presented
to court to assist the court in its decision making.
b. Evidence that is allowed in a trial to assist the court to come to a decision is known as inadmissible
evidence.
c. The law of evidence is a subdivision of the law of procedure which is a division of the main division of
public law.
d. Written documentation presented to court as evidence, for example books, is documentary evidence.
Answer 15
Question 15 is a straightforward question phrased in the negative with four options as an answer set.
Although the question is straightforward, the question tests your knowledge of the law of evidence as a
division of law and evidence as presented to court in trial. Read the options carefully!
Option a: gives a correct description or explanation of the concept “evidence”. Option a is therefore
correct and may be ruled out as a possible answer. [Learning Unit 12, p 259]
Option b: determines whether you can distinguish between the concepts of admissible and inadmissible
evidence. Evidence that is allowed in a trial to assist the court to come to a decision is not known as
inadmissible evidence, but as admissible evidence. Option b is incorrect. [Learning Unit 12, p 259]
Option c: is correct and may be ruled out as a possible answer because the law of evidence is indeed a
subdivision of the law of procedure which is a division of the main division of public law. We refer you
back to the diagram on the divisions of South African law in Learning Unit 5, page 68.
Option d: is correct and may be ruled out as a possible answer because documentation presented to court
as evidence, for example books, is documentary evidence. [Learning Unit 12, p 260]
Option b is therefore the incorrect statement that you had to choose.
This now concludes our Lesson 12 (Part 2) on Learning Unit 12, please see the link to the explanatory
video on the lesson below:
my.sharepoint.com/:v:/g/personal/mahoms1_unisa_ac_za/EZpJeyK4djFLrNFOZnGqIq0B2EG2vFCZCLtr
Ao-Qk2zecA?e=dtfGSq
Should you have any further queries regarding Learning Unit 12 or Lesson 12 (Part 2), please send an
email to any of the ILW1501 lecturers or post your queries under a relevant topic on “Discussion Forum
2: Student-Lecturer Lounge” on the ILW1501 module site.
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LESSON 1: LEARNING UNIT 1 (WHAT IS “LAW”?

WEEK: 07/02 – 14/02

Dear Students of ILW1501,

1. Description of a norm or normative system

2. Four normative systems discussed in Learning Unit 1:

3. Similarity between the four normative systems

4. Differences between the four normative systems

5. Characteristics of the law

Note: Study Activity 1.2 pp 8-9.

6. Descriptions of and differences between the following legal concepts (terms):

► private law and public law

► formal law and substantive law

8. Requirements to achieve formal justice

9. Requirements to achieve substantive justice

Complete the following sentence by choosing the correct option:

A normative system can be described as a system of…

(a) rules that determine the play of sport.

(b) rules that govern human behaviour.

(c) rules that control physical forces.

(d) rules that must be obeyed by all.

The correct option is b.

[Learning Unit 1, p 5 and pp 7-8]

Which one of the following is NOT a normative system?

(d) the law

The correct option is b.

What does the term "private law" refer to?

(b) A body of legal rules that regulates relationships between individuals.

[Learning Unit 1, pp 9-10]

Which of the following real-life situations has to do with public law?

(a) payment of private school fees

(b) repair work to motor vehicle

(c) voting in municipal elections

(d) agreement to cut off branches

(a) Formal law determines the meaning of legal rules.

(b) Formal law regulates relationships between individuals.

The correct option is d.

[Learning Unit 1, p 12]

(a) Explicit legal rules must be laid down.

(b) Legal rules must apply generally.

(c) Legal rules must be fair and impartial.

(d) Legal rules must be applied impartially.

Fairness of a legal rule is not a requirement for formal justice.

Thus, option c is correct.

[Learning Unit 1, pp 12-13]

(a) concerns the way in which the legal rule is applied.

(c) provides the procedures that must be followed in legal proceedings.

This question is also not so straight forward!

Which statement is correct?

[Learning Unit 1, pp 10 – 22]

Which normative system is applicable to this scenario and why?

Thus, option c is correct.

[Learning Unit 1, p 17 and p 22]

(a) punishment by a state organ

(b) rejection by Nomsa’s friends

(c) prosecution by a state organ

(d) Nomsa’s self-inflicted remorse

Option d is therefore correct.

[Learning Unit 1, p 17 and p 22]

LESSON 2: LEARNING UNIT 2 (LAW AND RIGHTS)

WEEK: 14/02 – 21/02

Dear Students of ILW1501,

3.1 legal subject

3.2 natural person