DEPARTMENT OF JURISPRUDENCE

JURISPRUDENCE 120 (JUR 120)

_________________________________________________________________________
EXAMINATION Jurisprudence 120 (JUR 120)

Date 23 November 2020

Total marks 50 marks

Time 24 hrs

Examiners:
Busisiwe Deyi
Dr Lorette Arendse

Moderator: Lizelle Le Roux

GUIDELINES & INSTRUCTIONS:

 Read the plagiarism declaration on CLickUP and agree to the terms.

 Read the questions carefully. Mark allocation should be used as an indicator for
length of answers. Pay attention to the prescribed length of your discussions in
question 4. Answers to 10 mark questions cannot exceed a single A4 page.
Answers exceeding the prescribe length will be penalised.

 Answers should be presented in a clear, logical and well-structured format.

Remember to use your I-R-A-C method and/or chickenfoot methods.

 Language (spelling and grammar) will be taken into account.

 NO cover page is needed

 NO bibliography or footnotes necessary

 12 font Arial, 1.5 spacing

 Answer all your question. This paper consists out of 4 questions with sub-questions

 NO LISTING UNLESS ASKED TO DO SO BY THE QUESTION.

 Read carefully, write carefully and good luck!

QUESTION ONE (approaches to interpretation) [10]

Until 1994 the system of parliamentary sovereignty was in force in South Africa. Post-1994 South
Africa courts moved away from a positivistic approach and adopted a new approach to the
interpretation of legislation and particularly, of constitutional provisions.

In S v Makwanyane the Constitutional Court moved away from the positivistic approach to
interpretation which sought to identify the intention of the legislature. Discuss the Court’s ratio
decidendi on the use of travaux préparatoires (background material). Your discussion must
include what the court held with regards to the use of background material in the
interpretation of constitutional provisions and other legislation. (10)

QUESTION TWO (socio-economic rights) [10]

2.1 What obligations does the constitutional duty to “respect, protect, promote and fulfil” entail
on the hospital as a government organ (you must refer to the prescribed articles to
substantiate your answer).
(5)

Does section 27 of the constitution provide the right to receive health services immediately?
Use prescribed case law to substantiate your answer. (5)
QUESTION THREE (human rights) [10]
Fill/write out in the answers in Column B to the correct numbers in Column A
For example:
1. g
2. e
3. d

COLUMN A COLUMN B
1 Parliamentary sovereignty a Means an individual may enforce rights
directly against another person
2 Subject-bound or group-based rights b Constitutional Court declared common
law definition of marriage
unconstitutional
3 Non-derogable rights c Constitutionality of Choice of
Termination of Pregnancy Act was
confirmed
4 A remedy the constitutional court is d Public international law
reluctant to grant
5 Law which must be taken into account e Foreign law
when interpreting the Bill of Rights
6 Minister of Home Affairs and Another v f Right to human dignity and the right to
Fourie and Another (Doctors for Life life
International and Others, Amici Curiae)
7 Christian Education South Africa v g Afforded on the international level e.g
Minister of Education protection of women and children
through the Convention on the
Elimination of All Forms of
Discrimination against Women (1979)
8 Law which may be taken into account in h Supervisory/ structural interdict
the interpretation of the Bill of Rights
9 Christian Lawyers Association of South i Courts do not have the capacity to review
Africa v Minister of Health the content of legislation and executive
actions/
10 Full horizontal application j Constitutional court found that section
10 of the Children’s Act was a justifiable
limitation to the right to freedom of
religion
QUESTION FOUR (Procedure) [20]

Former President Jacob Zuma and his lawyers have taken issue with the manner in which
he is being treated by the State Capture Commission. They argue it was unfair that he was
not provided with the questions he would have to answer, and complain that he was being
treated differently than the witnesses who implicated him. There has also been a suggestion
that he has not been given adequate opportunity to challenge the testimony of other
witnesses. The Commission’s lawyers have responded by stating that a commission of
inquiry is not a court of law. It does not have the power to prosecute or convict any person –
that power belongs to the National Prosecuting Authority (NPA). The procedural rules that
apply in criminal cases are also not applicable and witnesses or implicated people do not
enjoy the same procedural rights as does an accused person in a criminal trial. Instead, the
Commission follows an inquisitorial process and not an adversarial process. Zuma’s lawyers
have indicated that even if they lose, they will take the matter on review.

4.1 ‘The Zondo commission follows an inquisitorial process and not an adversarial process.’
Explain the differences between an inquisitorial and adversarial system and what that
means in terms of how justice Zondo will conduct the proceedings. (4)

4.2 Zuma’s lawyers indicated that they will take the matter on review if they ‘lose’. Explain
what a review is by distinguishing between and appeal and a review and why Zuma’s
lawyers will have to follow the review process. (4)

4.3 ‘The Zondo commission does not constitute a criminal trial.’ Explain this statement by
distinguishing between criminal and civil trials. (2)
4.4 List the different ways in which crimes are reported and give an example of each. (4)
4.5 Please discuss the factors that a court will consider in determining whether to grant an
accused bail or not. (4)
Former president Zuma wants to institute a civil claim against justice Zondo for crimen
injuria or slander. They do not agree on some of the fundamental facts pertaining to this
case. Explain which kind of proceedings Zuma will institute against Zondo and give
reasons for your answer. (2)

TOTAL: [50]