LJU4801 October/November 2023

UNIVERSITY EXAMINATIONS

October/November 2023
LJU4801

LEGAL PHILOSOPHY

First examiner: Adv RB Mokomane

Second examiner: Ms PAN Nyawo

This paper consists of 4 pages.

The paper counts 100 marks.
The portfolio runs from 20 – 25 October 2023

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING THE EXAMINATION QUESTIONS.

1. This portfolio must be submitted before 23:00 on 25 October 2023. Students have
to submit this portfolio via myUnisa, therefore no e-mailed or faxed portfolios may
be accepted. No extensions will be granted. It is the responsibility of the student to
ensure that the file submitted is not corrupted and can be opened for marking.
2. You must submit this portfolio as Assessment 3 via myUnisa. When you receive
the portfolio, check whether your submission is open / available and let your
lecturers know immediately if your submission portal is not open.
3. The Declaration of Academic Honesty must be signed and included in the
submission of the portfolio examination.
4. Proper footnote referencing must be used. This entails that every argument or idea
taken from another source, or any piece of information utilised from another source,
needs to be provided with a separate footnote reference.
5. Long quotes from sources are not allowed. Students must summarise or paraphrase
arguments and ideas from sources in their own words. Short quotes must be
provided with quotation marks and with a corresponding footnote.
6. When answering questions, students are expected to make use of the study guide
as well as any other relevant source to answer the question. The study guide must
be referenced like any other source. These footnotes must adhere to the prescribed

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referencing style of the School of Law. In this regard, please read tutorial letter 301,
which is available under official study material on Moodle. Remember that a Unisa
study guide is referenced in the same way as a book. Please include references
in your portfolio, even when you are only referring to the study material and the
Constitution.

7. Use proper language and grammar and make use of full sentences. You must not
write using bullets and numbering. Rather provide a narrative consisting of a
coherent, logical, and consistent argument.

Question 1
Read the following scenario and answer the questions set out below:

In 2011 the Constitutional Court heard the case of The Citizen 1978 (Pty) Ltd and Others v
McBride (CCT 23/10) 2011 (4) SA 191 (CC). This was a defamation case brought by Robert
McBride against the Citizen newspaper. He alleged that they had defamed him. The
newspaper believed that the comments were covered by freedom of expression. In the
course of his minority Judgment, Mogoeng J made the following remarks:
“[217] Botho or ubuntu is the embodiment of a set of values and moral principles which
informed the peaceful co-existence of the African people in this country who espoused
ubuntu based on, among other things, mutual respect.”

AND

“[243] Indeed, human dignity must colour the spectacles through which we view defamatory
publications, particularly those which are inextricably linked to our painful past. And so
should our rich values, like ubuntu, which are consistent with the Constitution, our shameful
history of institutionalised human rights violations, our commitment to make a decisive break
with this past as well as our pursuit of the noble objectives of national unity and reconciliation
also inform the interpretation and exercise of the rights to dignity, freedom of expression,
privacy and property in this country.”

1.1 In the first paragraph ubuntu is characterised as typically African. Write a brief essay
in which you explain what ubuntu means and indicate whether you think the judge is
right in his characterisation of ubuntu. Your answer should not exceed 750 words.
(15)
1.2 In the second paragraph the Judge links ubuntu to human rights. Human rights can be
regarded as something uniquely associated with modern legal philosophy. This is
because of the individualistic nature of human rights. Given that ubuntu is a pre-
modern idea, in your discussion indicate whether you think the judge is correct in
linking ubuntu to human rights. Your answer should not exceed 750 words.
(15)
[30]

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Question 2
2.1 African legal philosophy is based on the premise that there is a uniquely African
approach to law and legal conflicts. Discuss two characteristics of this approach to
illustrate how it is different from Western ideas. Your answer should not exceed 750
words. (15)
2.2 In South Africa the law allows men to enter into polygamous customary marriages.
Women on the other hand are not permitted to have more than one husband. Based
on the feminist legal philosophy (critical gender theory), does the fact that polygamy is
legally recognised, and polyandry not explicitly legally recognised constitute unfair
discrimination against women? In your discussion, refer to Mackinnon’s theory of
dominance feminism. Your answer should not exceed 750 words. (15)

[30]
Question 3
Read the following scenario and then answer the question set out below:

In 2015, the Constitutional Court handed down a judgment in the case of DE v RH [2015]
ZACC 18. In this case, the appellant (Mr DE) challenged the decision by the Supreme of
Court Appeal to abolish the delictual claim against a third party based on adultery. A
concurring judgment by Mogoeng CJ (Cameron J concurring) emphasised that:

“[69] The law does and can only create a regulatory framework for the conclusion of
marriage and the enforcement of obligations that flow from it. It can also help ensure that
barriers to family life are removed. The rest is in the hands of the parties to the marriage.
Barring exceptions, they decide freely to get married and it is within their ability to protect
their marriage from disintegrating.”

AND

“[70] …. marriage essentially hinges on the ‘readiness, founded in morals, of the parties to
the marriage to create and to maintain it’. Like the Supreme Court of Appeal, I also believe
that parties’ loss of moral commitment to sustain marriage may lead to its failure. For abuse
of one by the other and other factors that could lead to the breakdown of marriage are, in
my view, likely to creep in when that commitment ceases to exist.

THEREFORE

“[71] The law cannot shore up or sustain an otherwise ailing marriage. It continues to be the
primary responsibility of the parties to maintain their marriage. For this reason, the continued
existence of a claim for damages for adultery by the “innocent spouse” adds nothing to the
lifeblood of a solid and peaceful marriage.”

3.1 Indicate which philosophical approach the judgment followed and discuss what it
entails. Your answer should not exceed 750 words. (15)
[15]

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Question 4

Read the following article and then answer the question set out below:

The newspaper article published by News24 titled “woman should take RDP house after
divorce – Sisulu”,1 talks about the proposed law amendment to ensure that if a couple in a
free government house get divorced the house goes to the wife. According to this article,
this proposed move by the Ministry of Human Settlements was informed by the fact mothers
are the primary caregivers for their children. It is postulated that upon divorce the house
should belong to the wife, because she is responsible for the children.

4.1 Discuss how cultural and societal factors influence gender roles in the context of
Neculaesei’s argument that the roles are the product of communication. To
answer this question, refer to document “LJU4801 article 1”. Your answer should not
exceed 750 words. (15)
[15]

Question 5
5.1 There are divergent views on how judges decide cases. From the objectivist theories’
perspective judges are part of a community of interpreters and this community
determines how judges must decide cases. Briefly explain this perspective using
Dworkin’s communalist theory. Your answer should not exceed 250 words. (5)
5.2 Based on your answer to question 5.1 above, is there a difference between the
communalist theory and African theories of adjudication? Briefly explain. Your answer
should not exceed 250 words. (5)
[10]
TOTAL {100}
©
Unisa 2023

1
News24, ‘Woman should take RDP House After Divorce – Sisulu’ News24 (28 October 2014)
https://www.news24.com/news24/woman-should-take-rdp-house-after-divorce-sisulu-
20150430 accessed 06 August 2023.