19 2019

MODULE NAME: MODULE CODE:

FUNDAMENTAL RIGHTS FURI6212

ASSESSMENT TYPE: EXAMINATION (PAPER ONLY)

TOTAL MARK ALLOCATION: 120 MARKS
TOTAL HOURS: 2 HOURS (+10 minutes reading time)
INSTRUCTIONS:
1. Please adhere to all instructions in the assessment booklet.
2. Independent work is required.
3. Five minutes per hour of the assessment to a maximum of 15 minutes is dedicated to
reading time before the start of the assessment. You may make notes on your question
paper, but not in your answer sheet. Calculators may not be used during reading time.
4. You may not leave the assessment venue during reading time, or during the first hour or
during the last 15 minutes of the assessment.
5. Ensure that your name is on all pieces of paper or books that you will be submitting. Submit
all the pages of this assessment’s question paper as well as your answer script.
6. Answer all the questions on the answer sheets or in answer booklets provided. The phrase
‘END OF PAPER’ will appear after the final set question of this assessment.
7. Remember to work at a steady pace so that you are able to complete the assessment within
the allocated time. Use the mark allocation as a guideline as to how much time to spend on
each section.

Additional instructions:
1. This is a CLOSED BOOK assessment.
2. Answer all questions.
3. Calculators are not allowed.
4. Dictionaries are not allowed.

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Question 1 (Marks: 25)

Q.1.1 Discuss the ambit of section 38 of the Constitution, 1996, with reference to legal (6)
standing to enforce rights.

Q.1.2 Bill of Rights litigation is usually divided into three stages. Briefly describe each of (9)
these three stages.

Q.1.3 Once a court has determined that a particular measure limits a protected right, it (5)
turns its attention to the second stage of the limitation analysis where it must
consider whether the limitation of the right can be justified. During this process the
court must determine whether or not the limitation of the right is reasonable and
justifiable in an open and democratic society. This second stage is known as the
justification enquiry.

Briefly describe the five steps of the justification enquiry, that need to be answered
in order to determine whether the infringement of a fundamental right satisfies the
various requirements of the limitation clause.

Q.1.4 Differentiate between the constitutional remedies “severance” and “notional (5)
severance.”

Question 2 (Marks: 20)

Mr and Mrs Smith have been having marital problems. Mr Smith has been having an extra-marital
affair with Penelope, a colleague from work. Mrs Smith found out about the affair and decided to
separate from her husband. They now live in different apartment buildings. Mrs Smith, angry
about the infidelity, decides to spy on Penelope. Penelope finds out that Mrs Smith has been
spying on her and she comes to you for legal advice.

Answer the following questions:

Q.2.1 With reference to Chapter 2 of the Constitution, which right of Penelope has Mrs (3)
Smith potentially violated? Briefly describe the content and scope of this right.

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Q.2.2 Discuss the scope and content of the right mentioned in question Q.2.1 above, with (9)
specific reference to the legitimate expectation required of the right and it’s two
components. In your answer, also refer to relevant case law.

Q.2.3 With reference to relevant case law, discuss the factors that the court may take into (8)
account when determining whether or not discrimination is unfair.

Question 3 _______________ (Marks: 25)

Q.3.1 Differentiate between the concepts of ‘individual rights’ and ‘group rights’, in the (6)
context of the rights of cultural and religious communities.

Q.3.2 Pupils of Riverdale High School and their parents have accused teachers at the (8)
school of unfairly discriminating against the pupils based on their religion. This is
because teachers are telling their Rastafarian pupils to straighten their hair and
that dreadlocks and Rastafarian hairstyles were not allowed in terms of the
school’s code of conduct. The school’s code of conduct is strict with regards to
how pupils must attend to their hair. The MEC for Education has informed the
school that they need to adapt their code of conduct in such a way that it
accommodates pupils from diverse backgrounds.

Assess the notion of reasonable accommodation of religious beliefs and practices

with reference to section 15 in the Constitution, 1996. In your answer also refer to
relevant case law.

Q.3.3 The appeals committee of the South African Human Rights Commission (SAHRC), (8)
in the matter of Forum for Black Journalists (FBJ) v Katy Katopodis, had to decide
whether a group of black journalists could exclude white journalists from a
meeting of their organisation. With reference to this case, apply the balancing of
the right to freedom of association with respect to a competing right.

Q.3.4 Name three international treaties (conventions) which protect cultural liberties. (3)

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Question 4 (Marks: 20)

Q.4.1 With reference to relevant case law, discuss the ‘right to vote’ of South African (6)
citizens. In your answer, refer to the voting rights of prisoners.

Q.4.2 In the matter of De Reuck v Director of Public Prosecutions (WLD) and Others 2004 (6)
(1) SA 406 (CC), De Reuck, a film producer, was found in possession of child
pornography and charged under section 27(1) of the Film and Publications Act 65
of 1996. Provide both the approach and the reasoning of the court in its
application of section 16 of the Constitution to the facts of this case.

Q.4.3 In Khumalo and Others v Holomisa 2002 (5) SA 401 (CC), and in a suit for
defamation by a prominent politician against a newspaper, the newspaper asked
for the common-law rule on defamation to be developed so as to allow for the
action to lie only if the article that was published was indeed false.

With reference to this case, answer the following questions:

Q.4.3.1 Describe the role of the media in a democratic society. (5)

Q.4.3.2 The court per O’Regan J struck a balance between two competing (3)
rights. Briefly describe the reasoning of the court in this regard.

Question 5 (Marks: 20)

Q.5.1 Define an ‘unfair labour practice’ in terms of the Labour Relations Act 66 of 1995. (5)

Q.5.2 Explain what is meant by the ‘right to just administrative action’. (5)

Q.5.3 Discuss the right to reasonable administrative action with reference to the (5)
Constitution, the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and
relevant case law.

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Q.5.4 Discuss the purpose of the Promotion of Access to Information Act 2 of 2000 (or (5)
‘PAIA’).

Question 6 (Marks: 10)

Distinguish between the negative duties and the positive duties imposed on the State in terms of
section 7(2) in the Constitution, 1996.

END OF PAPER

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