HFL1501/201/1/2019

Tutorial Letter 201/1/2019

Historical Foundations of South African Law

HFL1501

Semester 1

Department of Jurisprudence

This tutorial letter contains the

PORTFOLIO EXAMINATION for this
module. Please read all pages carefully

BARCODE
 Dear Student

CONTENTS

1 GENERAL INFORMATION ON THE PORTFOLIO

2 INSTRUCTIONS FOR THIS PORTFOLIO

3 PORTFOLIO QUESTIONS

4 INFORMATION ON PLAGIARISM

______________________________________________________________________

1 GENERAL INFORMATION ON THE PORTFOLIO

______________________________________________________________________

1.1 What is a portfolio?

This module’s summative assessment (final examination assessment) takes the form of a
written portfolio, which students complete at home. In other words, no written venue-
based exam will take place for this module. Instead, the non-venue based assessment
is referred to as a portfolio and takes the form of an open-book examination.

This portfolio is not a portfolio of evidence that consists of small assignments completed
throughout the semester. It is also not a single essay in which you summarise the study
material. This portfolio examination asks that you complete a series of questions on
the content of the entire study guide. These questions may be found in this Tut Letter
201, from page 12. This portfolio examination represents the final assessment in this
module. For this reason, the same rules and policies that apply to venue-based
examinations also apply to the portfolio. Therefore, please do not contact any of the
lecturers for guidelines or assistance when completing this assessment.

This Tut Letter 201 contains not only the questions of the portfolio examination, but also
detailed information on the requirements for the portfolio, as well as instructions on how to
submit the portfolio online via myUnisa.

2
 HFL1501/201/1/2019

1.2 Examination date: 20 May 2019

Unique number: 899759

This is a semester module. That means that, since you are registered for the first
semester, you must submit the portfolio in May 2019; the supplementary examination will
take place in October 2019. No other dates will be scheduled for supplementary
examinations.

Your examination timetable indicates “departmental requirements” as the date on which

the HFL1501 examination takes place. Because this module has a portfolio examination,
the date is scheduled by the Department of Jurisprudence, and not by the Examinations
Division of Unisa. Students who registered for HFL1501 in the first semester must submit
their portfolio examination ON OR BEFORE midnight (23:59) on 20 May 2019.
Absolutely no exceptions will be made in this regard.

1.3 The scope of the portfolio examination

It is important to study all your tutorial letters and the study guide in its entirety before you
attempt to complete the portfolio. You should not ignore any part of the study material
when you prepare for the portfolio. Remember, the contents of the study guide form an
integrated whole. This means that the contents of all the learning units and all three parts
are interrelated. Therefore, you may have to consult various learning units or parts of the
study material when you answer some of the portfolio questions. The study guide also
refers you to specific sections of the Constitution of the Republic of South Africa, 1996.
These specific sections also form part of the study material for this module.

Please note that no sources other than the prescribed

study material should be used to complete this portfolio
examination.
1.4 The format of the portfolio examination

The portfolio consists of three different sections, each containing various questions
focussing on a different part of the study material. The portfolio has a total of 100
marks and consists of individual questions counting between one and ten marks
each. The portfolio also tests your ability to follow the School of Law’s prescribed
formal style and its referencing guidelines. These guidelines are contained in Tut
Letter 301 and dictate the formal (stylistic) requirements your document should meet
(such as the font type, font size, line spacing and heading formatting) and the format
of your references (which must be in footnotes) and bibliography. These aspects will

3
 also be taken into account when calculating your portfolio result. Please have a look
at the rubric (p 24 below) to see how these aspects will be evaluated.

The composition of the portfolio examination is as follows:

Part 1: The origins of South African law (20 marks)

Part 2: Historical foundations of property law and obligations (55 marks)
Part 3: The role of the Constitution in South African legal development
(20 marks)
Rubric: Technical aspects (5 marks)
GRAND TOTAL: 100

1.5 Preparing for the portfolio examination

In this module it is absolutely crucial that you work through all the study material
(more than once) before attempting the portfolio questions. All the parts and learning
units in the study guide are related to each other and you should be able to illustrate
that you understand how the content of the module interrelates (or how it all fits
together). You cannot answer a portfolio question by paging to a relevant
paragraph in the study material and trying to find an answer there.

1.6 Understanding plagiarism

It is of extreme importance that you understand what plagiarism is. Students who
commit plagiarism in their answers will be severely penalised and may fail the
module as a result. You lecturers and markers know the contents of the study
material well and know when a student has plagiarised. We immediately notice if a
student copies from the study guide, another module’s textbook or from an internet
source.

If you plagiarise in the portfolio examination, we will report the matter to

the Student Disciplinary Division. If you are found guilty of plagiarism,
you may be expelled from the University for a number of years.
Plagiarism is a very serious CRIMINAL offence. Individuals with criminal
records based on dishonesty and fraudulent actions
may not be admitted as legal practitioners. Please read page 25 below,
where you will find additional information on plagiarism.

1.7 Applying for study leave from your employer

Some students who work full-time are allowed to apply for study leave from their
employers. Modules that have a portfolio examination do not have an examination
date listed on the official examination timetable.This examination date is provided in
the tutorial letters (see par 1.2 above).
4
 HFL1501/201/1/2019

To apply for study leave, most employers require your examination timetable (which
lists HFL1501), proof that you are registered at the University (which proves that you
are registered for HFL1501 for this semester), as well as a letter indicating that
HFL1501 is a module with a portfolio examination due on 20 May 2019. This letter is
signed by the module leader and the Director of the School of Law.

This letter can be found on this module’s myUnisa site, under the link for
“Additional Resources”. Please see the folder titled “Portfolio”. Due to the vast
number of students registered for this module, no individual letters will be
provided to students. This general letter should be sufficient when applying for
study leave. If your employer has any questions in this regard, please ask them to
contact the module leader.

Please note that study leave applications are a matter between the student and the
employer.
______________________________________________________________________

2 INSTRUCTIONS FOR THIS PORTFOLIO

______________________________________________________________________

Please read all the instructions carefully.

Failure to do so could negatively affect your
performance in this portfolio examination.

Claiming that you were ignorant of the rules and instructions

will not assist you if you fail to follow them.

2.1 General instructions and guidelines

a) Do not underestimate this portfolio – start early and submit early. It is an

unfortunately reality that our lives can change in an instant. If you have the time to
work on your portfolio now, do it now. You cannot be certain that you will have the
time and opportunity to work on it later. No extensions will be granted under any
circumstance, since you have a month to complete the portfolio.
b) Please complete this portfolio examination by writing or typing out your answers to
the questions. You do not have to rewrite/retype the questions, but number your
answers correctly.

5
 c) Please include the portfolio unique number (899759) on the cover page for your
portfolio.
d) You must submit your portfolio online on myUnisa in PDF format. Convert your
typed document to a PDF document, or scan in your written or typed pages to
create one single PDF document. For instructions and more information in this
regard, please visit the folder “Portfolio” under “Additional resources” on the
module’s myUnisa page. Do not under any circumstances submit your portfolio in
hard copy via the South African Postal Service or by dropping it in a Unisa
Assignment Box. If you submit in this way, you have no proof that you submitted.
If your portfolio is not received you will be marked as absent from the exam. If you
submit online you can confirm that your submission was received and there is proof
that you have submitted.
e) The due date for this portfolio is 23:59 on Monday, 20 May 2019. If the completed
portfolio is not submitted before this time, a mark of 0% (zero) will be awarded
and you will fail the module. Failure to submit a portfolio on time is viewed in the
same light as not showing up on time for a written examination: in other words, you
will be deemed to be absent from the examination and you will not be allowed to
submit your portfolio late under any circumstances.
f) No guidance will be provided on the content of the study material or on how to
approach the questions. Do not contact your lecturers with questions in this regard.
This is an examination.
g) Answer all the questions. If you plan and start early, you will have more than
enough time to complete the portfolio. The majority of students who failed in
previous semesters did not answer all the questions or plagiarised.
h) Read the questions very carefully before answering. Where a question asks that
you address more than one aspect, each element of the question should be
addressed in your answer.
i) Where a question asks that you answer in your own words, please do so. Failure
to paraphrase the information found in the study material constitutes plagiarism.
No marks will be awarded to answers that contain plagiarism.
j) Only make use of the information contained in the HFL1501 study guide and
in the tutorial letters (101, 201 and 202), as well as in the Constitution, when
answering the questions. Do not use any other sources. You are not required to do
legal research in this module – you are only required to illustrate that you have
mastered the prescribed study material. No marks will be awarded for answers
obtained from any source other than the study guide, the tutorial letters or the
Constitution.
k) Where questions refer to case law, legislation or academic articles, you are not
required to find and read these legal sources. You only need to know what is
explained in the study guide. However, Question 14 refers to a document that does
not form part of the study material. In this instance you only need to read the
document (in this case a case summary) that forms part of the portfolio and that is
6
 HFL1501/201/1/2019

provided in this tutorial letter (on pp 21-23). No additional research or reading is

necessary.
l) Where you refer to information found in either the Constitution or the study guide,
you have to include references in the form of footnotes. These footnotes must
adhere to the prescribed referencing style of the School of Law. In this regard,
please read paragraph 5.2.4 (pp 22-27) in the LLBALLF/301/4/2019 tutorial letter.
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. Instructions on how to insert footnotes in an MS
Word document are available on the module’s myUnisa page in the “Portfolio” folder
under “Additional resources”.
m) In order to ensure that your portfolio is in line with the School of Law’s prescribed
formal requirements for written work, please read paragraph 5.2.3.7 (pp 20-21) in
the LLBALLF/301/4/2019 tutorial letter.
n) Please read paragraph 5.2.5 (pp 27-29) in the LLBALLF/301/4/2019 tutorial letter,
as well as part 5 of this tutorial letter below, in order to familiarise yourself with what
constitutes plagiarism and how to avoid it. Please note that you will lose marks if
your answers indicate copying, plagiarism or collaboration with other parties. Also, if
plagiarism is suspected, your case may be referred for possible disciplinary
proceedings. Read again paragraph 1.6 above.
o) Keep a copy of your portfolio.
p) Keep in mind that it is your responsibility to submit the correct document, in the
correct file format, before the deadline for the portfolio. You are in charge of your
own learning and your own examinations. No excuses will be accepted for failure
to submit on time, or for submitting an incorrect or incomplete document.
q) Please follow the submission guidelines exactly. Once you have submitted your
portfolio exam you will not be able to go back and VIEW the document. This is
because a portfolio is an examination and different procedures apply. It is,
therefore, of the utmost importance that you make sure that you submit the correct
document.
r) You may only resubmit your portfolio twice. The myUnisa system will not allow you
to resubmit more than twice. Also, once you have submitted your portfolio and the
marking has started, you will not be able to replace it with another document via the
RESUBMIT tool. Please note that when the RESUBMIT option is no longer
available to you on myUnisa, you cannot resubmit and your lecturers are not in a
position to change this. Therefore, please make sure that you submit the correct
document.
s) Please note that you cannot add to your submission. If you wish to change anything
about your submission, you must resubmit your portfolio if the system allows you to
do so. When you resubmit, the new document replaces the original document.

7
 t) If you are a supplementary or aegrotat examination student, please view the
additional instructions available under “Additional Resources” on the
HFL1501 myUnisa site of last semester.

2.2 What to include with your submission

IMPORTANT!

Please include the following in your portfolio:

a) A cover page containing your personal information, the module name and code the
assignment unique number and the due date of the portfolio examination.
b) The marking rubric after your answer to the final question. An MS Word version of
the marking rubric is available on the module’s myUnisa page under “Additional
resources” (see the folder for “Portfolio”). You may also type or write out the
marking rubric.
c) Your bibliography after the marking rubric.
d) Your completed academic-honesty declaration, after your Bibliography. It is also
acceptable to provide your ID number or passport number instead of your signature,
meaning you do not have to sign by hand. An MS Word version of the declaration is
available on the module’s myUnisa page under “Additional resources”. You may
also type or write out the declaration.

2.3 Instructions for submitting your portfolio via the myUnisa platform

Portfolios may only be submitted online; lecturers cannot and will not accept
portfolios submitted via email, fax or in any other format. The myUnisa system will
close at 23:59 on the due date. After midnight on the due date, you will no longer be
able to submit your portfolio. If you cannot submit your portfolio in time, due to health
reasons or for any of the circumstances listed in the UNISA exam policy, you will have to
officially apply for an aegrotat examination at the Department at Examinations – this
aegrotat exam will take place in October 2019.
For more information regarding online submissions, please see the Studies @ Unisa
2019 brochure, as well as the instructions available on this module’s myUnisa page under
the link “Additional resources”.

8
 HFL1501/201/1/2019

To submit on myUnisa:
a) Go to the module site for HFL1501, click on the link for “Assessment Info”. At the
bottom of the page you will find the link to submit the document under the heading
“Unisa summative assessment”. Make sure to submit the document by clicking on
the correct link. Thereafter, please follow the onscreen instructions.
b) DO NOT submit the portfolio under a link for another module and do not
submit another module’s assessment for this module. You will be awarded a
mark of 0% (ZERO) if you submit the wrong document. Please be very careful
when you select the correct document to upload. We are only allowed to mark
what you submitted. If you therefore submit the WRONG or a BLANK document,
you will receive a mark of zero. No resubmissions are allowed and no exceptions
can be made in this regard. This is an exam.
c) BEFORE submitting, make sure that you submit the correct document, containing
all the pages you wish to submit. You will not be able to return to the “Assessment
info” page to “VIEW” your submission, since this is an examination. This is how the
myUnisa system works and your lecturers have no control over this process.
d) Important: Please do not wait until the last minute to submit. The system may be
down and you will fail your examination if you are unable to submit in time.
e) NO LATE SUBMISSIONS WILL BE ACCEPTED since this assessment counts as
your examination for this module. We advise you to submit your completed
portfolio as early as possible. We suggest that you attempt to submit your
portfolio at least THREE DAYS before the deadline. That way you will have
sufficient time to resolve any potential technical problems that come up. Please see
paragraph 2.4 below.
f) You must submit your examination answers as a single document in PDF format.
Please take note of the following:
 The document may not be submitted as an encrypted pdf document or as a file
with security restrictions under the “protect/secure document” option. This also
means that you may not submit a password-protected file. Security restrictions
interfere with the electronic marking program used.
 Do not include an electronic signature in the document as this affects the online
marking.
 Do not submit a “read-only” document, as this does not allow us to make any
changes to the document. This means we cannot mark it.
 Do not submit your study guide, tutorial letter, ID document, application form, bank
statement, assessment for another module, your second assignment, or any other
irrelevant document as your portfolio submission. We are not allowed to contact
you to ask that you resubmit the correct document, since this is against UNISA’s
Assessment Policy. We mark what we receive and if the submission does not
answer the questions, a mark of zero will be awarded. This is an exam.
9
  Do not submit a document in corrupt file format; you will be awarded a mark of
0%. This applies whether you corrupted the document purposefully or accidentally.
We are not allowed to contact you to ask that you resubmit the document in the
correct file format, since this is against UNISA’s Assessment Policy. We mark
what we receive. If we cannot open the document, you will receive zero.
 Do not take pictures of your hand-written or printed pages with your smart phone
and then use an app to convert these photos into a pdf document. The quality of
these photos may interfere with the marking of the document. If the marker cannot
read the information contained on the page, it cannot be marked.
 DO NOT submit your portfolio in hard copy via the South African Postal Service,
courier, PEP store or Unisa Assignment box. If you do, you have no proof that
you submitted. You also do not receive any feedback on whether or not your
portfolio was submitted successfully. For your own safety and peace of mind, we
urge you to submit online via myUnisa. If we do not receive your portfolio before
the due date, you will be marked absent from the exam and you will fail this
module.

We wish you good luck with this portfolio examination.

To summarise: Start early, read all the instructions, DO NOT plagiarise and submit early.

2.4 Technical problems

Please note that the Unisa Assessment Policy does not allow for extensions in submission
deadlines due to technical difficulties.
 If your laptop or flash disk is stolen or corrupted by a virus, this is unfortunately not
an acceptable excuse not to submit on time.
 Arguing that you had no data to submit your portfolio is not a valid excuse for late or
non-submission. Unisa has made arrangements with Vodacom, Cell C, MTN and
Telkom Mobile to allow students to use the myUnisa site for free if it is accessed
through a special link. For more information in this regard, please see the myUnisa
homepage.
 It is possible that load shedding may affect your ability to access the internet or to
use electronic devices. Load shedding may start at any time, and often without
warning. It is your responsibility to take into consideration that load shedding may
affect your ability to work on, and submit your portfolio. We therefore urge you to
work on, and submit, your portfolio as soon as possible. This is in your own best
interest.

10
 HFL1501/201/1/2019

All queries regarding problems with myUnisa, Unisa emails, or online submission of
assignments and portfolios should be directed to:

myUnisaHelp@unisa.ac.za;
myLifeHelp@unisa.ac.za; or
assign@unisa.ac.za.

Unfortunately your lecturers CANNOT assist you with these matters.

11
 ______________________________________________________________________

3 PORTFOLIO QUESTIONS
______________________________________________________________________

HFL1501: Portfolio examination May/June 2019

First examiner: Ms A Bauling

Second examiner: Ms L Wildenboer

PART 1 (20 marks)

The origins of South African law

Answer the following questions by making use only of the study material in Part 1 of the
study guide:

QUESTION 1
Answer the following questions regarding the South African Law Reform Commission that was
established in 1973.

1.1 What is the task of the Law Reform Commission? (1)

1.2 Name three pieces of legislation or Bills, mentioned in Part 1 of this module, that were
drafted as a result of the work of the Law Reform Commission on the harmonisation of
laws in South Africa. (3)

[4]
QUESTION 2
Read the following multiple-choice question. Choose one statement and write only the number
as your answer:
Which one of the following statements is correct with regard to the recognition and application of
indigenous African law during the twentieth century? (1)
(1) The 1996 Constitution abolished the Black Administration Act 38 of 1927.
(2) The Black Administration Act 38 of 1927 determined that indigenous law would be
applicable only in as far as it was not against public policy or the principles of natural
justice.

12
 HFL1501/201/1/2019

(3) Following the findings of the 1983 Hoexter Commission, the Special Courts for Blacks
Abolition Act 34 of 1986 abolished all special courts for black people.
(4) The 1996 Constitution abolished the repugnancy clause that was still applicable in terms
of the Law of Evidence Amendment Act 45 of 1988.

[1]
QUESTION 3
Indicate whether the following statements are true or false. Write only the correct option as your
answer (eg, “3.4 True”):

3.1 Justinian’s Institutes was based on a law textbook that Gaius (one of the Five Great
Roman jurists) wrote for students. (1)

3.2 Justinian’s Corpus Iuris Civilis was written during the period of classical Roman law. The
work of the Five Great classical jurists of Roman law comprised about two-thirds of the
Corpus Iuris. (1)

3.3 Canonists at the Medieval Law Schools studied the Corpus Iuris Canonici in the same way
the Corpus Iuris Civilis was studied. (1)

[3]
QUESTION 4
Briefly discuss the Supreme Court of Appeal’s view regarding the adaptation of the common law
to bring it in line with the needs of society in the decision of Linvestment CC v Hammersley
(2008 JDR 190 (SCA)). (3)

[3]
QUESTION 5

5.1 Read the following multiple-choice question. Write only the correct option as your answer
(eg, “5.2 (1)”):

Which one of the following groups of jurists played the most important role in the creation of a
European ius commune? (1)

(1) glossators
(2) ultramontani
(3) commentators
(4) humanists

5.2 What is meant by the European ius commune? (1)

[2]
13
QUESTION 6

Answer the following questions regarding the Dutch jurists by writing only the name of the
author as your answer:

6.1 He was recently acknowledged by the Supreme Court of Appeal and one of his works
formed the basis of the law of one of the independent 19th century Boer republics. (1)

6.2 He developed the idea of a social contract and wrote an important work on public
international law. (1)

6.3 He wrote a commentary on Justinian’s Digest and was regarded as an authoritative source
of the law of the Republic of the Orange Free State. (1)

[3]
QUESTION 7

7.1 Which 19th-century constitution of an independent republic in South Africa was influenced
by the American Constitution? (1)

7.2 The constitution of which independent 19th-century republic in South Africa made no
provision for the protection of human rights or the curtailment of government power? (1)

7.3 Name two constitutions of which you have learned in this module that were promulgated in
the 20th century in South Africa that entrenched only the formal testing powers of the
courts. (2)

[4]

TOTAL PART 1: [20]

14
 HFL1501/201/1/2019

PART 2 (55 marks)

Historical foundations and development of
the law of property and obligations
Answer the following questions by making use only of the study material in Part 2 of the
study guide:

QUESTION 8
In your opinion, which are the most important elements of Klare’s definition of transformative
constitutionalism? Answer in your own words and do not provide the definition itself. (2)
[2]
QUESTION 9
9.1 A dog is a thing in commerce, a single thing, a non-consumable thing and a movable
thing.

Now identify whether a graveyard is a thing inside or outside commerce; a single or

composite thing; a consumable or non-consumable thing; AND a movable or immovable
thing. Identify how EACH of these four classifications apply to a graveyard. (4)

9.2 Explain, in your own words, the fundamental difference between family property and
household property in polygynous families, as protected by indigenous property rights. (2)

9.3 Read the following set of facts and answer the questions that follow. Please note that your
knowledge of both the law of property and the law of contract is required to answer these
questions:
On a cold winter’s day, Kat walks into Joe’s jewellery store and is immediately drawn to a
large display of silver rings on the counter. Kat removes her gloves and her own silver ring
in order to try on several rings from Joe’s merchandise. In the process, Kat’s ring is mixed
in with Joe’s merchandise and Joe places it in the display. Kat takes her gloves and
leaves the store, without buying anything. Neither Kat, nor Joe, are aware that Kat’s ring
is now in Joe’s shop.
That evening Kat discovers that her ring is not on her finger and she realises what must
have happened – she took it off and forgot it in the store. The next morning she goes back
to Joe’s store and explains the situation. Kat and Joe search through the rings in the
display, but Kat’s ring is not there. Joe then remembers selling a ring to an older woman
before closing the store the previous day. Joe, who prides himself on being an honest
man, offers Kat money to compensate her for the loss of her property. She is so upset,
that she storms out of the store, without taking Joe up on his offer. Joe is deeply
embarrassed by his honest mistake and for several years he tries to find the woman he
sold the ring to, but is never able to do so.

15
 Ten years later, a lovely elderly woman, Mrs Jones, moves into the house next to Kat’s.
Kat invites her new neighbour over for tea. Once they are seated, Kat pours the tea and
hands a cup to Mrs Jones. As soon as Mrs Jones stretches out her hand to take the tea,
Kat sees her ring on Mrs Jones’ finger. Kat enquires about the ring, explaining that she
thinks it is hers. Kat is able to describe the details of the design, as well as the precise
inscription on the inside of the band. Mrs Jones is shocked and explains that she bought
the ring from a nice man ten years ago. She describes the exact location of the store. It is
clear to both Kat and Mrs Jones that they are referring to the same ring and that Kat was
the owner of the ring at the time it was left in Joe’s store. Mrs Jones is deeply saddened
by the news and explains that she has not taken it off since the day she brought it home.
(a) If all the requirements for a contract of sale were met, did Mrs Jones and Joe conclude a
valid contract of sale? Motivate your answer. (2)
(b) Both Joe and Mrs Jones acted in good faith at the time the ring was sold to Mrs Jones.
Does this mean that Mrs Jones immediately became the owner of the ring, once the
contract of sale was concluded? Motivate your answer. (3)
(c) If Kat wishes to institute legal action against Mrs Jones, which legal remedy is available to
her? (1)
(d) How could Mrs Jones have become the owner of the ring? (2)

9.4 Answer the following multiple-choice questions by identifying the correct Constitutional
Court judgement to which the statement applies. Answer by writing down only the correct
number (eg, “(e) 4”):
(a) In this case the Constitutional Court based its judgement on a principle of common law.
(1)
(1) Daniels v Scribante and another [2017] ZACC 13
(2) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
(3) Occupiers of Erven 87 & 88 Berea v Christiaan Frederick De Wet NO [2017] ZACC 18
(4) Baron and others v Claytile (Pty) Limited and another [2017] ZACC 24.

(b) In this case the Constitutional Court explained that the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998, section 26(3) of the Constitution and the
spirit and values of the Constitution must be interpreted and applied alongside each other
when a determination regarding the validity of an eviction order is made. (1)
(1) Daniels v Scribante and another [2017] ZACC 13
(2) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
(3) Occupiers of Erven 87 & 88 Berea v Christiaan Frederick De Wet NO [2017] ZACC 18
(4) Baron and others v Claytile (Pty) Limited and another [2017] ZACC 24.

(c) In this case the Constitutional Court linked a person’s right to access basic amenities in
the home, which is a place of refuge and safety, to the right to human dignity. (1)
(1) Daniels v Scribante and another [2017] ZACC 13
(2) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
(3) Occupiers of Erven 87 & 88 Berea v Christiaan Frederick De Wet NO [2017] ZACC 18
16
 HFL1501/201/1/2019

(4) Baron and others v Claytile (Pty) Limited and another [2017] ZACC 24.

(d) In a minority judgement, the Constitutional Court stated that granting the applicant’s
request would not unfairly impact on the owner’s use and enjoyment of his property. (1)
(1) Daniels v Scribante and another [2017] ZACC 13
(2) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
(3) Occupiers of Erven 87 & 88 Berea v Christiaan Frederick De Wet NO [2017] ZACC 18
(4) Baron and others v Claytile (Pty) Limited and another [2017] ZACC 24.

[18]
QUESTION 10

10.1 What is the most important difference between contracts and delicts as sources of
obligations? (2)

10.2 Identify the correct statement. Write only the correct option as your answer (eg, (d)
“suspensive term”).

(a) Farzana’s contract stipulates that she will be offered fulltime employment upon the
satisfactory completion of all duties, tasks and responsibilities performed during the
three months of her provisional employment. This agreement contains a
_________________: (1)

(i) Suspensive term.

(ii) Suspensive condition.
(iii) Resolutive term.
(iv) Resolutive condition.

(b) Christoffel agrees with his wife, Annatjie, that he will take her on a month-long
vacation to a tropical island if the first child she bears during their marriage is a son.
This agreement contains a ______________: (1)

(i) Suspensive term.

(ii) Suspensive condition.
(iii) Resolutive term.
(iv) Resolutive condition.

(c) Mzukisi agrees with his brother-in-law, Gcobani, that he may stay in Mzukisi’s home
near Colosa until Gcobani pays lobola one day. This agreement contains a
___________: (1)

(i) Suspensive term.

17
 (ii) Suspensive condition.
(iii) Resolutive term.
(iv) Resolutive condition.

10.3 Indicate whether the following statements are true or false: Write only the correct option as
your answer (eg, “(d) True”):

(a) Under South African law, the only contract that must be concluded in writing is the
sale of immovable property. (1)
(b) The principle aim of the Consumer Protection Act 68 of 2008 is to ensure that the
South African law of contract is influenced by the Constitution. (1)
(c) Mandate (mandatum) is a bilateral contract, because it demands that both the debtor
and the creditor perform in terms of the contract. (1)

10.4 Explain, in your own words, the origin of the South African test for negligence. Do not
discuss the test itself. (4)

10.5 Read the following scenarios and identify why no valid contract of sale is concluded in
each instance:

(a) Kamogelo holds a knife to Pholani’s throat, forcing her to sign a contract in which she
agrees to sell her car to Kamogelo. (1)

(b) Azraa and Tina agree that Tina will sell her ring to Azraa in exchange for Azraa’s
bracelet. (1)

(c) On Wednesday James agrees to sell his car to Mazeeda for R400 000. At the time
neither James, nor Mazeeda, knew that James’ car had already been stolen out of
his garage on Monday evening. (2)

10.6 In your own words, discuss Barnard’s conception of the duty to contract ethically. (4)

[20]
QUESTION 11

11.1 Indicate whether the following statements are true or false. Write only the correct option as
your answer (eg, “(f) True”):

(a) The modern South African test for negligence has two elements. (1)
(b) Under modern South African law, iniuria may qualify as both a crime and a delict. (1)
(c) Negligence and intent are two of the five elements of a delict. (1)
(d) Both ancient Roman and African customary law allow for a formal apology instead of the
payment of monetary compensation. (1)
(e) Patrimonial losses are those suffered by husbands and fathers. (1)

18
 HFL1501/201/1/2019

11.2 Discuss the three forms of iniuria. (5)

11.3 Consider the case of Nkala and others v Harmony Gold Mining Company Limited and
others [2016] ZAGPJHC 97 and answer the following questions:
(a) Why was a class action allowed in this instance? (4)
(b) In your opinion, why did the applicants decide to conclude the settlement agreement? (1)
[15]

PART 3 (20 marks)

The role of the Constitution in South African legal development
In order to answer the following questions you will need to draw from your knowledge
and understanding of the entire study guide:

QUESTION 12

Which sections in the Constitution entrench constitutional supremacy? (3)

[3]

QUESTION 13

13.1 Which fundamental rights protected by the Constitution correlate most directly with
ubuntu? (2)

13.2 In your own words, explain Rabade and Phooko’s understanding of ubuntu. Do not
discuss the specific substantive content of their concept of ubuntu. (4)

13.3 Which aspect of ubuntu did the Constitutional Court utilise in its judgement in the case of
Le Roux v Dey 2011 (3) SA 274 (CC)? (1)

[7]
QUESTION 14

Read the media summary of the Constitutional Court case of Rahube v Rahube and others
[2018] ZACC 2021 and answer the following questions. These questions test your
understanding of the contents of the entire study guide. IT IS NOT NECESSARY TO READ
THE ENTIRE JUDGEMENT. Read only the media summary, which is available on pages 21-23
of this tutorial letter (after this question).

1 Hereinafter referred to as “the Rahube case”.

19
14.1 Name one Constitutional Court case discussed in the study guide that dealt with gender
discrimination and legislative reform. (1)

14.2 Which sections of the Constitution place a duty on the courts to declare legislation invalid
if it is in contrast with the Constitution? (2)

14.3 Name two Constitutional Court cases discussed in the study guide that dealt with security
of tenure. (2)

14.4 Consider everything you have learnt about ubuntu and transformative constitutionalism in
this module. Do you think the Court’s judgment in the Rahube case is representative of
the underlying principles of these concepts? Motivate your answer. (5)

[10]

20
 HFL1501/201/1/2019

Media summary of Rahube v Rahube [2018] ZACC 202:2

2 This media summary is distributed with the permission of the Department of Justice and Constitutional
Development and can be found at https://collections.concourt.org.za/bitstream/handle/20.500.12144/345
94/Summary %20of%20judgment.pdf?sequence=22&isAllowed=y.
21
22
HFL1501/201/1/2019

23
Please remember to include this marking rubric after your portfolio answers, and before your
Bibliography. An electronic version of this rubric is available on myUnisa. See the “Portfolio”
folder, which is uploaded under “Additional Resources”. It is also crucial to familiarise yourself
with the information on plagiarism, which is included on pages 25-28 of this tutorial letter.

MARKING RUBRIC: Technical aspects of the portfolio examination

It is possible to obtain one mark for each of the following criteria:

Presentation neat and according to CLAW Formal Requirements3

Inclusion of completed academic-honesty declaration4

Bibliography included and types of sources indicated by separate headings5

References included in footnotes6

Footnotes and bibliography according to CLAW Prescribed Style7

Part 1: 20
Part 2: 55
Part 3: 20
Technical aspects: 5

GRAND TOTAL: 100

3 As prescribed in Tutorial Letter 301/2019/4, which is sent to all LLB students. It is also available on myUnisa
under the links for “Official Study Material” and “Additional Resources”.
4 This declaration is available in all tutorial letters for this module. It is also available on myUnisa under the
link for “Additional Resources”.
5 As prescribed in Tutorial Letter 301/2019/4.
6 As prescribed in Tutorial Letter 301/2019/4.
7 As prescribed in Tutorial Letter 301/2019/4.
24
 HFL1501/201/1/2019

_____________________________________________________________________

4 INFORMATION ON PLAGIARISM
______________________________________________________________________

PLAGIARISM WARNING
Since this is a portfolio examination, absolutely no plagiarism will be tolerated. All
information taken from the tutorial letters must be paraphrased (written in your own
words). If plagiarism is detected, you will be awarded a mark of 0% (ZERO) for the
infringing question. Please complete and include the academic-honesty declaration below.
You may type or write it out, but you must include it at the end of your portfolio (after the
bibliography). You do not have to sign it by hand. By providing your information you
acknowledge that you have read, understood and adhered to the guidelines.

Please complete and include this declaration with your portfolio submission:

ACADEMIC HONESTY DECLARATION

Declaration

1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this
regard.

2. I declare that this portfolio is my own, original work. Where I have used someone else’s
work I have indicated this by using the prescribed style of referencing. Every contribution
to, and quotation in, this assignment from the work or works of other people has been
referenced according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing
it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

5. I am aware that marks can be deducted for poor/no referencing in this examination.

NAME:

ID NUMBER / PASSPORT NUMBER:

STUDENT NUMBER:

DATE:

25
 PLAGIARISM POLICY OF THE COLLEGE OF LAW

The College of Law is committed to the Unisa ideal of research that is based on integrity,
quality and rigour. All work must meet the ideal of academic integrity. Academic integrity
can be defined as the meaningful and concerted effort to ensure honesty, trust, fairness,
respect and responsibility in research. All research at CLAW, whether a first-year
assignment or a doctoral thesis, should be guided by this ideal.

The opposite of academic integrity is academic dishonesty. In line with Unisa's policies,
the following activities are forms of academic dishonesty:

 Copying/cut-and-paste/patch-writing: This type of dishonesty involves just copying

someone else's work either word-for-word or changing it slightly without indicating that it is
copied by, for example, putting it in inverted commas or brackets.
 Absence of references: This involves using someone else's ideas, thoughts, insights or
data without acknowledging that they are not your own.
 Cheating/falsifying information: This is the manufacturing of data which does not exist
or leaving out contradictory evidence, also sometimes called cherry-picking.
 Padding: This refers to the practice of referring to sources that were not consulted, but
which makes the footnotes and/or bibliography seem more impressive.
 Too many quotes: This form of dishonesty is one where more than 15% of the work
consists of quotes.
 Incorrect referencing: Incorrect referencing shows a lack of rigour and of disciplinary
expertise.
 Helping someone cheat: This might range from the innocuous (allowing someone to copy
from you) to the more severe (providing someone with the means to cheat). It is the
reason why students are not allowed to hand in the same assignment, even if they worked
in a group.

26
HFL1501/201/1/2019

27
28