JUR 120 Exam 2021

Question
On 15 March 2020 a state of national disaster in terms of the Disaster Management
Act was declared by President Ramaphosa. A number of regulations intended to
prevent the occurrence of what was termed “super spreader” events were instituted.
One of these regulations was the limitation of parties/funerals and other gatherings to
only 50 people. Lerato had planned a grand 21st birthday party for 300 people.
Unaware of the regulations, Lerato decides to go ahead with the 300 person birthday
party. However, on the day of the birthday party, there is a police raid and all the
guests, including Lerato are arrested. They now face criminal charges. Lerato
approaches you for legal advice.
Lerato claims that she is uncertain of the charge against her and her guests. Are their
constitutional rights being violated? Please discuss with reference to the relevant
provision(s) of the Constitution. [4]

Mark allocation
The accused has a constitutional right to be informed of the charge against them [1]
This right is stated in section 35(3)(a) of the Constitution [1]
which states that “Everyone has the right to a fair trial, which includes the right to be
informed of the charge with sufficient detail to answer it.” [1]
Therefore, if Lerato and her guests were not informed of the charge against them, their
constitutional rights are being violated. [1]

Question
On 15 March 2020 a state of national disaster in terms of the Disaster Management
Act was declared by President Ramaphosa. A number of regulations intended to
prevent the occurrence of what was termed “super spreader” events were instituted.
One of these regulations was the limitation of parties/funerals and other gatherings to
only 50 people. Lerato had planned a grand 21st birthday party for 300 people.
Unaware of the regulations, Lerato decides to go ahead with the 300 person birthday
party. However, on the day of the birthday party, there is a police raid and all the
guests, including Lerato are arrested. They now face criminal charges. Lerato
approaches you for legal advice.
After finally being informed of the charge against her, Lerato admits her guilt and fears
that she will be prosecuted and subjected to a trial. Lerato wants to know if she can
avoid going this route by entering into a ‘negotiation’ with the prosecutor. Please
advise. Your answer must refer to the relevant legislation as well as the procedure
Lerato will be subjected to in court. [5] (Marked in half marks).

Mark allocation
Lerato can enter into a plea agreement with the prosecutor. [1/2]
In terms of a plea agreement, the accused admits that they are guilty and the accused
and the prosecutor then agrees on a sentence. [1/2]
There is then no need to go through the lengthy procedure of a trial. [1/2]
Plea agreements were enacted in terms of an amendment to the Criminal Procedure
Act in 2001 to address the long delays in criminal trials. [1/2]
The plea agreement must be in writing and must be reached before the accused
pleads to the charge. [1/2]
Once the presiding officer is informed of the plea agreement, the accused will be asked
to plead in court. [1/2]
If the presiding officer is convinced that the accused is indeed guilty and that the
agreed upon sentence is just, they will find the accused guilty and sentence the
accused in accordance with the sentence set out in the plea agreement. [1/2]
If the presiding officer is not convinced that the sentence is just, the presiding officer
will impose another sentence. [1/2]
The accused can accept or reject the new sentence. [1/2]
If the accused rejects the sentence, the trial will start afresh (de novo). [1/2]

Question
Which source(s) of South African law makes reference to class actions? Explain with
reference to the relevant provision(s). [3]

Mark allocation
Section 38 of the Constitution lists five categories of people that can approach the
court. [1]
In subsection (c), anyone acting as a member of, or in the interest of , a group or class
of persons may approach a court. [1]
However, section 38 does not define what a ‘class’ is or what a ‘class action’ is. [1]

Question
Distinguish between class actions instituted against the state and class actions
instituted against private entities with reference to Mukkaddam v Pioneer Foods (Pty)
Ltd and Others. [4]

Mark allocation
In the Mukkaddam case, the class action was sought against a private company. [1]
The Constitutional Court held that the same rules that apply for certification with
regards to private entities, do not apply for state entities. [1]
The Court held that class actions that deal with enforcing rights in the Bill of Rights [1]
may be brought in the wider public interest without certification. [1]

Question
In the Children’s Resource Centre Trust judgment, the SCA was very rigid in its
approach with regards to the factors of certification. The SCA judgment was appealed
to the Constitutional Court. Did the Constitutional Court agree with the SCA’s
approach? Explain your answer with reference to relevant case law. [4]

Mark allocation
The Constitutional Court disagreed with the approach of the SCA in Mukkadam v
Pioneer Foods. [1]
The Constitutional Court held that the factors for certification laid down by the SCA is
not a rigid list that MUST be followed before a court decides to grant certification. [1]
Instead, the courts must use these factors in a flexible manner to determine whether
it is in the interests of justice to grant certification. [1]
The overriding principle in certification cases is whether it would be in the interests of
justice to grant certification. [1]

Question
“[U]nless every citizen, including those who cannot afford legal representation, has
access to legal advice , it cannot be said that access to justice for all is achieved.
Clearly, substantive equality before the law is unattainable as long as the huge
disparities in wealth continue to exist between the rich and poor and impact the
provision and quality of legal representation in South African courts.” - Greenbaum, L
“Access to justice for all: a reality or unfulfilled expectations?” De Jure (2020).
Critically analyse the statement of Greenbaum above with reference to the Legal
Practice Act 28 of 2014. [5]

Mark allocation
In terms of section 3 [1] the purpose of the Act is to:
“(b) broaden access to justice by putting in place-
(i) a mechanism to determine fees chargeable by legal practitioners for legal services
rendered that are within the reach of the citizenry. [1]
(ii) measures to provide for the rendering of community service by candidate legal
practitioners and practising legal practitioners.” [1]
2 marks awarded for analysis of Greenbaum's statement with reference to section 3.

Question
Can the Carmichele judgment be read as furthering the goals of transformative
constitutionalism? Explain with reference to the Langa article. [5]

Mark allocation
Main tenets of CT [3]
Application/argument why Carmichele furthers these aims or not [2]

Question
Your best friend’s father hears that you are studying law and asks you to draft a
contract of lease. He owns a flat in the city centre and wants to let it to a student.
Consider the terms of the lease from your client’s perspective (for example, the rental
income he requires; whom he thinks should be responsible for repairs to the property
(inside and outside); what provision should be made for rent reviews and/or rent
increases, and so on), and incorporate these terms in a draft contract. You may use
the following information from LAWSA to help you.

154 Essentials of the contract

A contract of lease (often referred to simply as ‘a lease’) is entered into when, within
the limits laid down by law, parties who have the requisite intention agree together, or
appear to have the requisite intention and to agree together, that the one party, called
the lessor, shall give the use and enjoyment of property to the other, called the lessee,
in return for the payment of rent. The parties’ intention must be directed towards an
agreement which the law characterises as a lease. Hence if the agreement permits a
party to consume or destroy the subject matter of the contract the contract is not a
lease even if the parties are referred to as lessor and lessee or one of them is said to
be obliged to pay ‘rent’. In the case of long leases of immovable property formalities
are required if the lease is to be effective against third persons.

Mark allocation
The contract must contain the essentialia:
The lessor gives the use and enjoyment of property to the lessee
In return for payment of rent

Identify the parties as lessor and lessee [1]

Refer to use and enjoyment of the property [1]
Monthly rent amount [1]

Further clauses
Repairs to the property [1]
Rent amount review/increases in rent [1]

For example:
Lease agreement for a residential property
Between:
(i) Mr David K. Lewis (640120567978), residing at 78 Willow Road, The Willows,
Pretoria, hereafter referred to as the “lessor”
AND
(ii) Mr David Hume (550103987654), residing at 87 Hollow Street, Wapadrand,
Pretoria, hereafter referred to as the “lessee”
(1) The lessor agrees to allow the lessee access to, for his (the lessee’s) use and
enjoyment, of the following property:
19 Ajax Road, Olympus, Pretoria
(2) In return, the lessee agrees to pay a monthly sum of R10 000.00 (ten thousand) to
the lessor.
(3) This lease agreement between the lessor and the lessee will be valid for 5 (five)
years, starting from 1 January 2014 and expiring on 31 December 2018. Thereafter, if
the lessor is satisfied that the lessee keep the property in a good condition, the lessee
will have first option to a new agreement for the lease of the property in question.
(4) The rental amount stated in (2) above shall remain the same for a period of two
years. After the two years the rental amount will increase by 15%. Thereafter, the total
monthly rental amount will increase at the end of each year by 5%.
(5) The lessor and the lessee will, on an agreed date but before the lessee moves in,
inspect the property together and compile a list of damages, if any. The reparation of
these damages, should any be found, will be the responsibility of the lessor.
(6) Maintenance of the property will be the responsibility of the lessor, unless damage
to the property was caused by the lessee, whether intentionally or negligently. If the
lessee does not repair the damage caused by him, the lessor will be entitled to repair
the damage himself but at the cost of the lessee.

Question
The State charged Tony McPherson with intentionally causing damage to property.
Assume that the following witnesses will testify during the trial:
A. The State’s witnesses
A.1 Jim Wiley
I have lived in this neighbourhood for 47 years. My wife and I moved into our little
house when we were married. She died five years ago. Since then, I have been the
victim of many attacks of vandalism. On Friday evening I was watching the news when
I heard glass breaking in my front porch. I ran out the back door and around the house
to see what was going on. I saw many kids. I recognised Tony because he lives down
the block and often rides his bike past my house. It was clear to me that this group of
kids was responsible for breaking my windows. In fact, Tony had a rock in his hand
and was getting ready to throw it.
A.2 Leslie Newton
I have delivered newspapers to Mr Wiley’s neighbourhood for three years. On Friday
evening 15 March I was delivering a newspaper to Mrs Cowley, who lives three houses
away from Mr Wiley, when I heard kids screaming and then I heard breaking glass. I
ran over to Mr Wiley’s house. I saw about 10 children in the front yard. Tony and
another kid were pushing each other. It looked to me like the other kid was trying to
stop Tony from throwing a stone. I did not see anyone throw stones.

B. The accused’s witnesses

B.1 Sandy Taylor
Tony and I were riding our bikes with some other friends on Friday evening. We were
riding up and down Tony’s block when a bunch of kids we didn’t know rode up to us
and started teasing us. They dared us to throw stones at grouchy old Mr Wiley’s
windows. We tried to ignore them. They threw a stone and hit a front porch window.
They then threw some more stones. I think a couple of windows were broken. Tony
and I and our friends stood and watched. When one of the other kids picked up a stone
to throw, Tony tried to stop him. Then Mr Wiley came around the house. The other
kids said they didn’t throw the stones, they said that Tony did. I think they were mad
at Tony because he tried to stop them. Tony is a real nice friend; he wouldn’t try to
break Mr Wiley’s windows.
B.2 Tony McPherson
I was riding bikes with my friends on Friday evening, 15 March. It was almost getting
dark when a bunch of kids we didn’t know rode up to us and started bugging us. They
wanted us to throw rocks with them. They were going to try to break some of Mr Wiley’s
front porch windows. Even though I don’t like Mr Wiley very much, we said we wouldn’t
do that. I saw one kid standing next to me pick up a rock. I tried to take it out of his
hand so he wouldn’t throw it. That’s when Mr Wiley came around the corner. Leslie,
the guy who delivers newspapers, also showed up. I did not throw any stones.
You act on behalf of Tony. Draft the opening statement. [5]

Mark allocation
Good morning your lordship / your worship [1]
I am (name) and I act on behalf of the accused. [1]
This criminal case concerns a charge of causing intentional damage to property. [1]
The accused’s case is that he did not throw any rocks at the complainant’s house and
in actual fact tried to prevent other children from throwing rocks at the property. [1]
The accused will testify, as well as Sandy Taylor, a friend of the accused, who was
present when the incident occurred. [1]
Question
The State charged Tony McPherson with intentionally causing damage to property.
Assume that the following witnesses will testify during the trial:
A. The State’s witnesses
A.1 Jim Wiley
I have lived in this neighbourhood for 47 years. My wife and I moved into our little
house when we were married. She died five years ago. Since then, I have been the
victim of many attacks of vandalism. On Friday evening I was watching the news when
I heard glass breaking in my front porch. I ran out the back door and around the house
to see what was going on. I saw many kids. I recognised Tony because he lives down
the block and often rides his bike past my house. It was clear to me that this group of
kids was responsible for breaking my windows. In fact, Tony had a rock in his hand
and was getting ready to throw it.
A.2 Leslie Newton
I have delivered newspapers to Mr Wiley’s neighbourhood for three years. On Friday
evening 15 March I was delivering a newspaper to Mrs Cowley, who lives three houses
away from Mr Wiley, when I heard kids screaming and then I heard breaking glass. I
ran over to Mr Wiley’s house. I saw about 10 children in the front yard. Tony and
another kid were pushing each other. It looked to me like the other kid was trying to
stop Tony from throwing a stone. I did not see anyone throw stones.

B. The accused’s witnesses

B.1 Sandy Taylor
Tony and I were riding our bikes with some other friends on Friday evening. We were
riding up and down Tony’s block when a bunch of kids we didn’t know rode up to us
and started teasing us. They dared us to throw stones at grouchy old Mr Wiley’s
windows. We tried to ignore them. They threw a stone and hit a front porch window.
They then threw some more stones. I think a couple of windows were broken. Tony
and I and our friends stood and watched. When one of the other kids picked up a stone
to throw, Tony tried to stop him. Then Mr Wiley came around the house. The other
kids said they didn’t throw the stones, they said that Tony did. I think they were mad
at Tony because he tried to stop them. Tony is a real nice friend; he wouldn’t try to
break Mr Wiley’s windows.
B.2 Tony McPherson
I was riding bikes with my friends on Friday evening, 15 March. It was almost getting
dark when a bunch of kids we didn’t know rode up to us and started bugging us. They
wanted us to throw rocks with them. They were going to try to break some of Mr Wiley’s
front porch windows. Even though I don’t like Mr Wiley very much, we said we wouldn’t
do that. I saw one kid standing next to me pick up a rock. I tried to take it out of his
hand so he wouldn’t throw it. That’s when Mr Wiley came around the corner. Leslie,
the guy who delivers newspapers, also showed up. I did not throw any stones.
You act on behalf of Tony. Which questions would you pose to Sandy in examination
in chief? Write down the questions, and explain why you would ask those specific
questions. Avoid leading questions as far as possible. Use the technique referred to
as ‘piggy backing’. [5] (Half marks)

Mark allocation
The exam question stated that the question is assessed in half marks - this was done
to indicate to students that they had to make sure to ask all the necessary questions
to elicit all the information in the witness statement by using "piggy backing"
“Piggy backing” is explained in the course notes and the voicenote on clickUP. It
entails using the witness’ previous answer(s) to “piggy back” the next question.
Mark holistically by checking carefully that the student uses information already
provided by the witness to then ask the next question. If done well, 4 or 5 marks. If
adequate attempt, 3 marks. If almost no piggy backing, 1 or 2 marks.

For example:
In the model answer below, we underlined the answers already provided by the
witness, and underlined in the next "piggy back" question how the information already
provided is then used in the next question. The student's answer will obviously not
correspond to this model answer - check carefully how the student used information
already provided by the witness to then ask the next question(s)

Why are you in court today?

To testify about the events of 15 March.
What happened on 15 March?
Tony and I were riding our bikes with some other friends on Friday evening.
What happened while you were driving your bikes?
A bunch of kids we didn’t know rode up to us and started teasing us.
How did they tease you?
They dared us to throw stones at grouchy old Mr Wiley’s windows.
How did you respond to the dare?
We tried to ignore them.
What happened when you ignored them?
They threw a stone.
Where did the stone land?
The stone hit a front porch window. They then threw some more stones. I think a
couple of windows were broken.
What did you do when the windows were broken?
Tony and I and our friends stood and watched. When one of the other kids picked up
a stone to throw, Tony tried to stop him.
Did Tony manage to stop him?
At that moment Mr Wiley came around the house. The other kids said they didn’t throw
the stones, they said that Tony did.

Question
The State charged Tony McPherson with intentionally causing damage to property.
Assume that the following witnesses will testify during the trial:
A. The State’s witnesses
A.1 Jim Wiley
I have lived in this neighbourhood for 47 years. My wife and I moved into our little
house when we were married. She died five years ago. Since then, I have been the
victim of many attacks of vandalism. On Friday evening I was watching the news when
I heard glass breaking in my front porch. I ran out the back door and around the house
to see what was going on. I saw many kids. I recognised Tony because he lives down
the block and often rides his bike past my house. It was clear to me that this group of
kids was responsible for breaking my windows. In fact, Tony had a rock in his hand
and was getting ready to throw it.
A.2 Leslie Newton
I have delivered newspapers to Mr Wiley’s neighbourhood for three years. On Friday
evening 15 March I was delivering a newspaper to Mrs Cowley, who lives three houses
away from Mr Wiley, when I heard kids screaming and then I heard breaking glass. I
ran over to Mr Wiley’s house. I saw about 10 children in the front yard. Tony and
another kid were pushing each other. It looked to me like the other kid was trying to
stop Tony from throwing a stone. I did not see anyone throw stones.

B. The accused’s witnesses

B.1 Sandy Taylor
Tony and I were riding our bikes with some other friends on Friday evening. We were
riding up and down Tony’s block when a bunch of kids we didn’t know rode up to us
and started teasing us. They dared us to throw stones at grouchy old Mr Wiley’s
windows. We tried to ignore them. They threw a stone and hit a front porch window.
They then threw some more stones. I think a couple of windows were broken. Tony
and I and our friends stood and watched. When one of the other kids picked up a stone
to throw, Tony tried to stop him. Then Mr Wiley came around the house. The other
kids said they didn’t throw the stones, they said that Tony did. I think they were mad
at Tony because he tried to stop them. Tony is a real nice friend; he wouldn’t try to
break Mr Wiley’s windows.
B.2 Tony McPherson
I was riding bikes with my friends on Friday evening, 15 March. It was almost getting
dark when a bunch of kids we didn’t know rode up to us and started bugging us. They
wanted us to throw rocks with them. They were going to try to break some of Mr Wiley’s
front porch windows. Even though I don’t like Mr Wiley very much, we said we wouldn’t
do that. I saw one kid standing next to me pick up a rock. I tried to take it out of his
hand so he wouldn’t throw it. That’s when Mr Wiley came around the corner. Leslie,
the guy who delivers newspapers, also showed up. I did not throw any stones.
You act on behalf of Tony. Put the accused’s case to Jim Wiley in cross-examination
by only putting leading questions. [5]

Mark allocation
The question asks student to "put the accused's case" - so check carefully that the
student puts their client's version one fact at a time to the state's witnesses. So these
questions must not be aimed at undermining the state's case or to strengthen the
accused's case - the questions must merely put the accused's case. Mark holistically
by checking carefully to what extent the accused's state was carefully put to the state's
witness, one fact at a time. 0 marks if the student does not put the accused's case.

Sandy Taylor will testify that Tony McPherson and he were riding up and down Tony’s
block when a bunch of kids they didn’t know rode up to them and started teasing them.
Sandy Taylor will testify that these children dared them to throw stones at the
complainant’s windows but that they tried to ignore the children.
Sandy Taylor will testify that these children threw a stone and hit a front porch window.
They then threw some more stones and Sandy thinks a couple of windows were
broken.
Sandy Taylor will testify that when one of the other kids picked up a stone to throw,
Tony tried to stop him just as the complainant came around the house. Sandy Taylor
will testify that the other kids then said they didn’t throw the stones, they said that Tony
did.
Tony McPherson will testify that children he and Sandy Taylor did not know rode up
to them and started bugging them; they wanted Tony and Sandy to throw rocks with
them.
Tony McPherson will testify that these children were going to try to break some of the
complainant’s front porch windows but that Tony said they wouldn’t do that.
Tony McPherson will testify that he saw one kid standing next to him pick up a rock.
He tried to take it out of the child’s hand so he wouldn’t throw it just as the complainant
came around the corner.
Tony McPherson will testify that Leslie, the child who delivers newspapers, also
showed up at this point.
Tony McPherson will testify that he did not throw any stones.