Name: Keabetswe Mikayla

Surname: Dikgale

ID Number: 0311070939088

University of South Africa

HFL 1501

20 October 2023
 Question 1

1.1 They are constitutional review, statutory interpretation, and common

law development. These are the three ways the courts may exercise
their testing capacity.

1.2 The case of Government of the Republic of South Africa v Grootboom

1.3 Legal positivism

Question 2

Transformative constitutionalism assigns to an approach to constitutional

interpretation and application that seeks to bring about social and political
transformation. It recognizes that a constitution is not merely a legal document, but
also a tool for social change and justice. One of the key principles of transformative
constitutionalism is the protection and promotion of fundamental rights. The
fundamental right to dignity is a core principle in many constitutional frameworks. It
recognizes the inherent worth and value of every individual and ensures that they
are treated with respect and equality. Dignity is not only a personal attribute but also
a societal value that should be upheld by the state and its institutions.
The relationship between transformative constitutionalism and the fundamental right
to dignity is that transformative constitutionalism seeks to use the protection of
dignity to achieve social transformation. It recognizes that the denial of dignity is
often at the root of social injustices and inequalities.
Transformative constitutionalism and the fundamental right to dignity are closely
twisted together. Transformative constitutionalism seeks to use the protection of
dignity to achieve social transformation and address historical injustices. By
recognizing and upholding the right to dignity, transformative constitutionalism aims
to promote equality, justice, and the empowerment of marginalized groups.
 Question 3

Ubuntu is a concept deeply rooted in African philosophy and culture, emphasizing

the interconnectedness and interdependence of individuals within a community. In
the context of the Constitutional Court cases, ubuntu has been expressed and
applied in the law of obligations. Ubuntu has been used as a guiding principle to
interpret and apply the law of obligations. It recognizes that the law should not only
focus on individual rights and interests but also consider the broader social and
communal implications of legal decisions. It encourages a more holistic and
relational approach to the law, considering the impact of legal decisions on the well-
being and harmony of the community.

Most of the time ubuntu has been expressed through the recognition of the duty of
care in the law of delict. The duty of care requires individuals to act in a manner that
does not harm others. In the context of ubuntu, this duty extends beyond mere
compliance with legal obligations and includes a moral obligation to consider the
well-being of others. Courts have emphasized the importance of ubuntu in
determining the scope and extent of the duty of care, particularly in cases involving
vulnerable individuals or marginalized communities. Ubuntu has influenced the
interpretation of contractual obligations. While contracts are typically seen as legally
binding agreements between parties, ubuntu recognizes that contractual
relationships are also social relationships. Courts have considered the principles of
fairness, equity, and good faith in interpreting and enforcing contracts, considering
the broader social and communal context in which the contracts were made.

Ubuntu has been expressed and applied in the Constitutional Court cases discussed
in the HFL1501 Study Guide by emphasizing the interconnectedness and
interdependence of individuals within a community. It has influenced the
interpretation and application of the law of obligations, particularly with the duty of
care in delict and the interpretation of contractual obligations. Ubuntu encourages a
more holistic and relational approach to the law, considering the broader social and
communal implications of legal decisions.
 QUESTION 4

4.1)

4.2) Fujitsu instituted a legal action against Schenker instead of Mr. Lerama in the
Fujitsu case because Schenker is considered to be the employer of Mr. Lerama

4.3) The Constitutional Court case discussed in the HFL1501 Study Guide that
confirmed the applicability of vicarious liability in delictual cases is the case of K v
Minister of Safety and Security. the Minister of Safety and Security was held liable in
terms of the legal principle of vicarious liability.

4.4) The provision in the contract stating that Schenker is not liable for Fujitsu's
losses in specific circumstances is a condition. In contract law, a condition is a
critical term that must be precisely fulfilled for the contract to be valid. In this
instance, the condition outlines the scenarios where Schenker cannot be held
responsible for Fujitsu's losses, and if these criteria are not met, Schenker might be
held accountable for any losses or damage.

4.5) Pacta sunt servanda

4.6) The type of contract is called the lease contract

4.7) The court had to determine if the defendant was to blame for the harm suffered
by the plaintiff. The crucial legal concept is negligence which means not taking
reasonable care, resulting in harm to others, and being legally responsible for it.

The court concluded that the defendant was, indeed, negligent. They found that the
defendant had a duty to act responsibly toward the plaintiff, which is a legal
requirement to be cautious. The defendant failed to meet this duty by acting
carelessly, and as a result, their carelessness led to harm to the plaintiff. In simpler
terms, the court decided that the defendant was at fault for not being careful, and this
caused harm to the plaintiff. Therefore, the defendant is now legally obligated to
compensate the plaintiff for the harm they endured.