JUR110 worksheet – unit 8 lecture 1

1.1. No as society has changed and the law must adapt to these changes. The courts have the power
to change common law. Many laws from original common law have been abrogated by disuse.
1.2. The courts have the authority to amend or replace the law.
1.3. audi alteram partem – No person should be judged without a fair hearing and each party is
allowed to respond with appropriate evidence to defend themselves.
pacta sunt servanda – agreement must be honoured by parties.
1.4. No. The common law still forms the roots of some of our positive laws and is guideline to how
to handle specific cases of crime.
2. Game Theft Act 105 of 1991 will have effect as legislation must be consulted before common law.
According to Section 8(3) we should not directly rely on the constitution but we should rather,
first, rely on legislation, unless there is no legislation then we rely on common law. Therefore,
the applicant should not directly rely on section 24 of the constitution to have the environment
protected and to promote conservation.
3. A) The obligation on the courts to develop common law according to section 39(2) is not purely
discretionary. If common law does not promote s.39(2) when read with s.172 the court must
develop the common law appropriately.
b) Does the existing common law require development to adapt to s.39(2) objectives?
if YES: how is such development to take place in order to meet s.39(2) objectives?
a) This is discriminatory towards gay people.
b) Section 8 was against a minority group that was not liked by the majority. This entrenches
inequality amongst certain groups. The need to prohibit these patterns of discrimination
and to resolve these problems are the main purposes of section 8.
c) Yes, it is discrimination. This is because it targets a specific group of people and it aims to
prosecute them for their acts which heterosexual couples are allowed to perform.
d) The rights to an open democratic society based on freedom and equality had to be
balanced. Human dignity, equality and freedom. The limitations of this right also had to be
balanced as to ensure maintain its purpose but make it less restrictive. Gay right to equality,
sexual orientation, privacy dignity and freedom.
a) The CC wishes not to invalidate the common law definition of rape but rather to extend it
to include the act of non-consensual penetration of a male’s penis into a female’s anus. This
is to protect the young as they do not know what is wrong and right yet.
b) Yes, he will be guilty of rape.
c) No, the magistrate’s court does not have jurisdiction to conclude common law definition as
invalid, according to Magistrates Courts Act 32 of 1944. Only the CC,SCA,HC.
a)