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LCR4803/201/2/2022

Tutorial Letter 201/2/2022

Media Law

LCR4803
Semester 2
Department of Criminal and Procedural Law

This tutorial letter contains important information about your module.

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LCR4803/201/2/2022

Dear Student,

When you read this tutorial letter you would have completed the assignments for this subject and will
undoubtedly have experienced some of the fascinating and frustrating aspects of Selected Private and
Criminal Law Principles of the Internet. We trust that you have found the questions in the assignments
interesting, and that you have learnt from them.

The purpose of this tutorial letter is to provide comments on the assignment questions.

1. INTRODUCTION

2. COMMENTS ON ASSIGNMENT QUESTIONS

3. PREPARATION FOR THE EXAMINATIONS

1 INTRODUCTION

This module is presented on NQF level 8 (Honors level). Students who comply with the outcomes of
this module should be able to identify legal issues relating to and insight into Internet law with specific
reference to certain private and criminal law aspects of Internet law and basic research skills in the
practice of law. Students will deal with freedom of speech on the internet, including the legal aspects
relating to defamation, hate speech and pornography, as well as the legal principles surrounding
invasion of privacy, data protection, cybercrime and evidential aspects relating to the internet. Another
purpose of this module is to provide the South African and the global community with lawyers
empowered to deal with the challenges of Internet law in an equitable way and who are equipped to
accept their responsibility towards the realization of a just and inclusive society based on constitutional
democracy within a world legal order. You must furthermore be able to integrate relevant information
from the sources you have consulted and present it in your own words. Please note that it is
unacceptable to copy the study guide verbatim. You have to acknowledge ALL the sources (including
the study guide) you consulted. Plagiarism is a serious infringement and is not tolerated by the
University.

2 COMMENTS ON ASSESSMENT QUESTIONS

What follows below are not model answers, but merely guidelines to highlight some of the
important aspects that students should have mentioned and discussed. The information that is
contained in your study guide will not necessarily be repeated here. We merely draw your attention
to the salient facts. When you study this part of the course, use this tutorial letter with your study guide,
and not as a source of information on its own.

Extra marks are given if students do independent research and include relevant information in their
answers. Students who merely “copied and pasted” information from the Internet were penalised for
that. It is expected of students to communicate the information in their own words.

2.1 NB:-The questions were marked taking into account the overall content, the
substantiated conclusions, the use of language, correct style of referencing in the
footnotes and bibliography, and the research done. Students who merely “copied
and pasted” information from the Internet were penalised for that. It is expected of
students to communicate the information in their own words.

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2.2 On every correct point student gets full 1 mark; students are expected to have full
marks where they express knowledge of academic writing by referencing their points
through official sources; study guide; academic writing, books, case law and articles.
LCR4803 is a postgraduate module, so students need to exert vigilance to academic
standard. Student’s English expression is also of vital importance. Answers must be
presented with easy English and must be comprehensible.

2.3 The current tutorial letter 201 is just a guideline, by taking note of 2.1 and 2.2 students
ought to add more meat and expression to the answers.

ASSESSMENT 1

(a)
10.2.5 Children’s Courts
Subject to the Promotion of Access to Information Act 2 of 2000, no person has access to children’s
court case records, except –

(a) for the purpose of performing official duties in terms of this Act;
(b) in terms of an order of court if the court finds that such access would not compromise the best
interests of the child;
(c) for the purpose of a review or appeal; or
(d) for the purpose of bona fide research or the reporting of cases in law reports, provided the
provisions of section 74 are complied with.

SUMMARY

Although the public are generally allowed at court proceedings, they may be excluded when the safety
of the state, law and order, public morals or the administration of justice is at stake or when the rights
of other people are involved.

The media have a right to report freely on court proceedings, except where they have been prohibited
expressly. Such a right is, however, always subject to the rules relating to contempt of court and to the
rights of other people to their privacy and good names.

There is no general right of access to the court records of completed trials. The people involved in the
proceedings can claim a right to see the court records, but subject to various administrative rules.

(b) the courts’ definition of a newspaper (St/g par 4.6.3 p 43)

- the definition of a newspaper as given by our courts


- In R v Daya Morar, the question arose whether the specific publication could in fact be regarded
as a “newspaper" for purposes of the provisions of the Wage Act. the court in R v Daya Morar
confirmed the following definition of a newspaper: it is a
- publication ; appearing at regular intervals: daily / weekly
- usually in sheet form
- containing news/reports of happenings of recent occurrence:
- such as political, social, moral, religious etc
- intended for the information of the general reader (wide circulation)
- R v Lewin: - confirmed above def.
- publication in Daya Morar could not be regarded as newspaper, because not published at short

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intervals; did not contain news of general nature


- The legislature’s intention with the provision that advertisements should be placed in a
‘’newspaper’’ was really to ensure that information be distributed as widely as possible amongst
the general public by means of the printed word so that in that way those members of the public
who could not be reached by means of the official mouthpiece, that is, the Gazette, could also be
informed. The quality of the publication should therefore be of such a nature that it enjoys a wide

(c)
The person requesting the information in terms of the Promotion of Access to Information Act is called
the “requester.” The Act distinguishes between the procedures regarding public and private bodies
when the requester requests information. The reason for this distinction lies in the fact that, in the case
of private bodies, a right of access to information can be claimed only in cases where that information
is required for the exercise or protection of any other rights. This prerequisite does not apply in the
case of information held by public bodies

(d)
The designated judge may only issue an interception direction in certain circumstances.

1. He/she must be satisfied that there are reasonable grounds to believe that

- a serious offence (as defined in the schedule to the Act) has been or will be committed

- the information concerns an actual or potential threat to public health or safety, national security
or compelling national economic interests

- the information is requested by a country outside the Republic regarding organised crime or
terrorism, and the gathering thereof is in accordance with an international mutual assistance
agreement or in the interest of the Republic’s international relations

- the information relates to property that plays a role in the commission of a serious offence (as
defined in the schedule to the Act) or could be the proceeds of unlawful activities

2. There should be reasonable grounds for believing that the information relating to the ground will
be obtained by means of the interception direction at the specific place.

3. Other investigative procedures must have been applied but should have been unsuccessful.

(e) the various complaints which a Public Protector is competent to investigate


(St/g par 9.9.2 )

In terms of sections 181 to 183 of the Constitution Act 108 of 1996, read in conjunction with section
6(4) of the Public Protector Act of 1994, the Public Protector is competent to investigate any allegation
that

(1) there is maladministration in connection with the affairs of government


(2) a person performing a public function is guilty of
(a) abuse or unjustifiable exercise of power or
(b) unfair, capricious, discourteous or other improper conduct or undue delay
(3) an improper or dishonest act, or an omission or form of corruption with respect to public money
has taken place

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(4) a person (as a result of the public administration or in connection with the affairs of government)
or a public official, has been improperly or unlawfully enriched, or has received any improper
advantage or promise of such enrichment or advantage
(5) the conduct of a person in the employ of the government constitutes an act or omission which
results in unlawful or improper prejudice to any other person

(f)

Newspaper Association The Press Ombudsman

The Newspaper Association of


South Africa (NASA) is the (St/g par 4.3)
oldest communication industry
association in South Africa. - The office was set up by the Print Media Assoc,
The Association was Sanef, Media Workers Assoc, SA Union of Journalists.
established on 27 November - As self-regulating mechanisms of media industry,
1882 and named the the Press Ombudsman & appeal panel in step with
Newspaper Press Union. Constitution
Newspaper proprietors - Not an admin body – it has been created by statute
gathered on that day to - It does not have admin authority & members submit
establish a collective body to voluntarily on basis of agreement &
promote all aspects and joint their membership of the Newspaper Assoc (NA).
interests of the press in South - Exercises control over the written media
Africa. It is the South African - Press Ombudsman may investigate & adjudicate
Press Association operating as any alleged infringement of the Code by members of the
an non-profit organisation. The NA who have accepted its jurisdiction.
Organization supplies news in - The objective: to prevent media reporting &
South Africa to media comment from:
channels, newspapers, - being factually incorrect
television, radio, and online - containing unfair comment
news portals, locally and - endangering state security or law and order
internationally. - damaging race relations
- being obscene
- violating an individual’s privacy

(g)
Limitations that are constitutionally justifiable can be created in two ways:

(1) intratextually, by a section in the Constitution itself


(2) extratextually, by “’non-supreme, non-constitutional’’ legal rules which are also of a general
nature and in accordance with the guidelines laid down by the Constitution in this regard (s 36(1))

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(h)

Litigation – passing off (See Study Guide 8.3.1.1.)

Requirements:

It is a specialised form of unlawful competition – therefore, the plaintiff has to prove

- a representation or imitation that XYZ’s logo is that of ABC

- that ABC’s logo has a reputation in the market in the area in which XYZ advertises

- that XYZ’s conduct is likely to deceive the purchasing public (intention not required)

- and that it is likely to cause damage to ABC’s goodwill

Possible outcome:

If ABC is successful with its claim, it can claim

- cessation of whatever is causing the damage (interdict) and

- compensation for the damages already suffered

The advantage of this remedy: ABC can bring about an end to XYZ’s conduct, as well as monetary
compensation in relation to the damages suffered(1). The disadvantage of this remedy: The normal
disadvantages of any legal proceedings, namely uncertainty regarding the outcome and the financial
costs involved.

ASSESSMENT 2

(a) Answer: the procedure created by section 205 of the Criminal Procedure Act 51 of 1977

The first part of section 205(1) of the Criminal Procedure Act of 1977 provides that any person who
is likely to give material (ie relevant) information regarding any alleged offence (whether or not it is
known who committed the offence) may be ordered (subpoenaed) by a judge or magistrate to appear
in court to be questioned by the director of public prosecutions or the prosecutor (authorised thereto by
the director of public prosecutions) about the alleged offence.
The usual procedure followed, is that the police consult the director of public prosecutions or the
prosecutor beforehand.
After this a request is directed to the relevant judge or magistrate and a subpoena is issued.
The subpoena names a day on which attendance is required and also sets out the offence under
investigation.
Failure to attend makes the witness liable to arrest and punishment.
The second part of section 205(1) makes provision for indemnity if the witness furnishes the required
information to the satisfaction of the director of public prosecutions or the prosecutor concerned (this is
normally done by means of an affidavit) prior to the date on which he or she is required to appear, he
or she is under no further obligation to appear before the specific judge or magistrate.
Hearing takes place in camera.
Legal representation allowed.

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• Since s 205 & 189 of the Criminal Procedure Act refer to the same procedure, marks were also
given when students referred to the provisions of s 189 of the Crim Procedure Act
If the court finds that the witness’ refusal to take the oath/ be sworn in is not based on a just
excuse, witness may be found guilty of contempt of court (maximum 2 year imprisonment)
If witness still refuses (after this term of imprisonment) to divulge information, can be sentenced
again to imprisonment for contempt.
The privilege against self-incrimination is just excuse
Journalistic privilege is not a just excuse
Indemnity (cannot refuse to answer)
• Section 205(4): a judge or magistrate will NOT sentence a witness to imprisonment if he/she
fails/refuses to give information, unless the judge/magistrate is also of the opinion that the
furnishing of the information is necessary for the administration of justice or maintenance of law
& order. (This ensures witness not imprisoned for concealment of unimportant/irrelevant info ir
info that could have been obtained from other sources)
Brief mentioning of case law implementing procedure ito S 205

Bosasa Operations (Pty) Ltd v Basson and Another 2013 (2) SA 570 (GSJ). Court confirmed that
journalists have journalistic privilege, but stated that it is not a blanket privilege.
Nel v Le Roux NO and Others 1996 (4) BCLR 592 (CC) / 1996 (3) SA 562 (CC) Constitutionality of s
205 was at issue. The court concluded that the provisions of section afforded… the widest possible
protection. The provisions of section 205 have therefore been tailored as narrowly as possible to meet
the legitimate state interest of investigating and prosecuting crime. The court added that similar
summary proceedings for imprisonment of witnesses, where the normal strict criminal procedure rules
were not applied, were not unknown in other open and democratic societies based on freedom and
equality – the court referred in particular to the position in the United States and Germany. The court
declared that the provisions of section 205 of the Criminal Procedure Act of 1977 were not inconsistent
with the Constitution.

(b)
In terms of section 123 of the Correctional Services Act 111 of 1998 before disclosure of information
(St/g par 11.3.5 (p 101-102))
(1) The Commissioner must give permission
The information published must form part of court proceedings
The commissioner may only refuse permission if the publication undermine the objectives of the
imprisonment or the objectives of community corrections
(2) It will be a contravention of section 123, specifically the prohibition that a prisoner may not receive
any reward or remuneration directly or indirectly for any published account of an offence (1) for
which he/she is serving time

(c) Name the elements which must be present to constitute the crime of false
disparagement of goods and services, and give an example from case law.
(St/g par 8.3.1.2 (p 77))
Plaintiff must prove that the defendant made a false representation (act)
Which he knew to be false (wrongfulness)
The plaintiff must have suffered or be likely to suffer loss (damage)
Because of the false representation (causation)
The defendant must have intended to cause the plaintiff such loss (fault)
Example: Cigarette case –International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd
Name and gist of case:

• A good example from our case law is the following: A manufactured a particular cigarette. His
competitor, B, instigated the spreading of false rumours about A’s cigarette. The gist of these
rumours was that manufacturer A practised racial discrimination and that the cigarettes caused
tuberculosis. These rumours destroyed the market for A’s cigarettes, and the court held that A
was entitled to damages from B.

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(C) False disparagement

(St/g par 8.3.1.2 (p 77))

Plaintiff must prove that the defendant made a false representation (act)
Which he knew to be false (wrongfulness)
The plaintiff must have suffered or be likely to suffer loss (damage)
Because of the false representation (causation)
The defendant must have intended to cause the plaintiff such loss (fault)
Example: Cigarette case – International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd

Name (1) and gist of case (1):

• A good example from our case law is the following: A manufactured a particular cigarette. His
competitor, B, instigated the spreading of false rumours about A’s cigarette. The gist of these
rumours was that manufacturer A practised racial discrimination and that the cigarettes caused
tuberculosis. These rumours destroyed the market for A’s cigarettes, and the court held that A
was entitled to damages from B.

(d) Name four (4) grounds upon which the provision of records may be refused in terms of the
Promotion of Access to Information Act 2 of 2000. (4)
(St/g par 9.1.2 (p 87))

(1) Various grounds on which access to records must or may be refused, include the following:

● the protection of privacy of third parties


● protection of information in the records of the South African Revenue Service
● protection of certain commercial and confidential information
● protection of individuals or their property
● protection of police dockets in bail proceedings
● law enforcement
● legal proceedings
● defence security
● international relations of the Republic
● economic interests and financial welfare of the Republic
● research information of a third party.

3. PREPARATION FOR THE EXAMINATIONS

You are now nearing the end of your semester’s studies. In order to prepare yourself properly
for the forthcoming examination, you should read the following information carefully:

3.1 Examinations

If you have any enquiries about to the date on which you will be writing the examination, you
should contact the Examinations Department at exams@unisa.ac.za.

3.2 Duration of paper

3.2.1 The examination question paper counts 100 marks.

3.2.2 It consists of FOUR questions.

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3.2.3 The duration of the examination is 3 hours. The portfolio must be submitted via myExams in
myMoodle on or before 11:30 (Central African Time).

3.2.3.1 The exam is scheduled on the timetable to take place from 8:00 to 11:00.
3.2.3.2 You are given an additional 30 minutes to finalise your submission on the myExam platform.
This means that your submission must be finalised by 11:30.

3.2.4 This is a timed online examination. You may consult your prescribed study material during the
examination. You may not consult anyone else and must submit your own work.
This examination is invigilated via invigilator app.

3.2.6 The portal will close (30) minutes after the deadline to allow submission. This is not time
for writing and students need not claim that they are entitled to these 30 minutes for
writing.

3.2.7 You need to start writing timeously.

3.2.8 Students who discuss during the examination will be penalised via disciplinary hearing
which may lead to suspension from the University

4. Access myExams https://myexams.unisa.ac.za/portal/relogin

4.1 Your exam file must be uploaded on the myExams platform on myMoodle. See QR code below.
YOU NEED TO ACTIVATE THE QR CODE WITHIN 30 MINUTES of the start of the
examination.

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5. You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.

5.1 Once the official examination time per the examination timetable has expired, you are provided
30 minutes to submit your answer script. Submissions made after the submission period has
lapsed will be rejected per the examination regulations and will not be marked.

6. The cover page for your take-home exam must include your name, student number and the
module code.

7. It is preferred that your portfolio is typed, however, handwritten submissions will also be
accepted.

8. Whether your answers are typed or handwritten, your submission on the myExams platform on
Moodle must be made in the form of one PDF document.

8.1 The exam answer file that you submit must not be password protected or uploaded as a “read
only” file.

8.2 Your examination answer file will not be marked if:

8.2.1 you send your examination answer file via email or via invigilator app.
8.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
8.2.3 you submit your exam answer file on an unofficial examination platform (including the invigilator
cellphone application).
8.2.4 you submit your examination answer file in the incorrect file format.
8.2.5 you submit a password-protected document.
8.2.6 you submit your examination answer file late
8.2.7 you submit your answer file from a registered student account that is not your own.

9. Incorrect answer scripts and/or submissions made on unofficial examinations platforms


(including the invigilator cell phone application) will not be marked and no opportunity will be
granted for resubmission.

9.1 The mark awarded for an illegible examination answer file submission will be your final mark.
You will not be allowed to resubmit after the scheduled closing date and time of the exam.

10. When answering the portfolio questions, remember that an open-book exam is a test at a higher
level than the usual type of exam, where memory is tested as much as insight. In an open-book
exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do
not earn marks by merely detailing a list of all the information that you think might be relevant to
a particular question. This gives no indication that you know the applicable statutory or other
provisions in a specific context. You are expected to identify precisely what information applies,
and then explain why you think so. Also, because you have the guide available when answering
questions, we do not give marks for direct quotations from the guide. You are therefore assessed
on your level of understanding of the legal principles by looking at how well you applied the
principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM ANY
SOURCE.

11. The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. You are given 3 hours – to complete the portfolio. Use the time
given wisely.

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11.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL
of the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text
or in your footnotes.

11.2 You are required to have read and summarised the prescribed cases yourself. When using case
law to support your answer, please include complete references to the relevant cases in your
footnotes. This means that you must not only include the name of the case but also the exact
page and section and/or paragraph where the information can be found.

11.3 Students often lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts.
This is where most of the students lose marks - they set out the law in some detail, but then do
not illustrate how it applies to the factual situation they have been asked to solve. Finally, state
your conclusion.

12. You must complete the online declaration of own work when submitting.
12.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy on
Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-
Unisa/Student-values-and-rules.

12.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of academic
integrity, and students who do plagiarise or copy verbatim from published work will be in violation
of the Policy on Academic Integrity and the Student Disciplinary Code and may be referred to
disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other forms of
academic dishonesty.

12.3 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s examination
rules and will have their marks withheld.

12.4 It is preferred that your portfolio is typed, however, handwritten submissions will also be
accepted.

12.5 Whether your answers are typed or handwritten, your submission on myUnisa must be made in
the form of one PDF document.

12.5.1 If your answers are typed, please ensure that the following requirements are adhered to. Items
9.1 – 9.6 applies to written assignments as well.
12.5.2 The text must be typed in Arial font, size 12 with single line spacing within the paragraph,
and double line spacing after the paragraph.

12.5.2 The text must be justified.

12.5.2.1 All of the pages must be numbered in the bottom right hand corner of the page.

12.5.2.2 All margins must be 2.5cm, but the left margin must be 3cm.

12.5.2.3 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.

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12.5.2.4 Do not use abbreviations or SMS language.

12.5.2.5 All quotes that are two lines long (or less), must form part of the main text, be written in italics,
and be bracketed by quotation marks. Where a quotation is longer than two lines, it must be
typed in a separate paragraph in italics in size 11 font and must be indented by 1 cm. No
quotation marks are required when the quotations stand alone. Use quotations very sparingly.
In this portfolio, a maximum of 5% of the text may be quoted.

13. When answering the portfolio questions, remember that a timed online exam is a test at a higher
level than the usual type of exam, where memory is tested as much as insight. In a timed online
exam, you need to memorise information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do
not earn marks by merely detailing a list of all the information that you think might be relevant to
a particular question. This gives no indication that you know what statutory or other provisions
are applicable in a specific context. You are expected to identify precisely what information
applies, and then explain why you think so. Also, because you have the guide available when
answering questions, we do not give marks for direct quotations from the guide. You are
therefore assessed on your level of understanding of the legal principles by looking at how well
you applied the principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS
FROM ANY SOURCE. CUT AND PASTING AMOUNTS TO PLAGIARISM.

14. The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. You are given 3 hours to complete the portfolio. Use the time given
wisely.

14.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL
the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or
in your footnotes.

14.2 You are required to have read and summarised the prescribed cases yourself. When using case
law to support your answer, please include complete references to the relevant cases in your
footnotes. This means that you must not only include the name of the case but also the exact
page and section and/or paragraph where the information can be found.

14.3 Students often lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts.
This is where most of the students lose marks - they set out the law in some detail, but then do
not illustrate how it applies to the factual situation they have been asked to solve. Finally, state
your conclusion.

15. BEST WISHES

It only remains to wish you all the best with your preparation for the examination, and to express
the hope that you will achieve the results you have worked for.

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16. PLEASE NOTE:

Students registered for this module for 2022 semester 2:

If for any reason (including network or loadshedding challenges) your examination answers were not
submitted by the cut-off time, you will automatically be admitted to the May/June 2023 exam.

Students registered for this module for 2022 semester 1:

If for any reason (including network or loadshedding challenges) your examination answers were not
submitted by the cut-off time, you will have to reregister for the module.

Students experiencing technical challenges may contact the SCSC on 080 000 1870 or email
Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.

17. CONCLUDING REMARKS

This is the last tutorial letter for this semester. Please do not underestimate the course - start your
preparation for the exam timeously.

Wishing you every success for the exam!

PROF MMM MONYAKANE


MR M PITLELE

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