QUESTION 1

1.1 Read the following statement and answer the question that follows:

“South Africa has an uncodified legal system.”

In your own words, discuss how this fact impacts on a lawyer who is searching for a remedy with regard to a legal question. (4)

1.2 Name one country of which you have learned in this module that has a codified legal system. (1) [5]

QUESTION 2

Name two Constitutional Court cases discussed in the HFL1501 Study Guide that deal with security of tenure. (2)

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QUESTION 3

3.1 Study the following scenario carefully and answer the question that follows:

Buhle and Rita conclude a contract of purchase and sale on 1 March 2024 in terms of which Buhle sells her slowcooker to Rita. They agree that Rita may collect the machine on 10 March 2024. When Rita arrives at Buhle’s house on 10
March 2024, they discover that the slowcooker is missing. Buhle’s house was burgled in July of the previous year, but Buhle did not realise at the time (or at any point thereafter) that the slowcooker was amongst the items stolen from her home. Buhle insists that she and Rita has an agreement and that it is not her fault that the slowcooker is now missing. She demands that Rita still pay the purchase price.

Is Buhle entitled to demand that Rita pay the purchase price? Motivate your answer. (4)

3.2 In your own words, discuss how the Consumer Protection Act 68 of 2008 has developed the common law regarding the sale of defective goods. Your answer should be based on your understanding of the discussion in this module’s study material of the law of contract and consumer protection. (4)

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QUESTION 4

Read the following scenario1 carefully and answer the questions that follow:

Facts

The three central parties in this case were two attorneys who are partners in a law firm, Mr Alberts and Mr Botha (referred to as the plaintiffs), and Mr Swanepoel (referred to as the defendant). The plaintiffs specialise in the management of deceased estates. In this matter, a conflict arose between the plaintiffs and Mr Swanepoel over a dispute concerning a house in Pretoria North, which had belonged to Mr Swanepoel’s deceased mother. In terms of her will, Mr Swanepoel was his mother’s only heir, which meant that he would ultimately become the owner of the house in question when she passed away.

Before her death, Mr Swanepoel’s mother appointed the plaintiffs to handle her estate. Mr Swanepoel was unaware of this, or of the fact that he did not become the owner of the property immediately upon the death of his mother. At the time of her death, Mr Swanepoel was unemployed and he could not afford the ongoing property expenses. Since he was under the impression that he was the owner of the house, he decided to sell it, as he needed the money. Because he had no legal knowledge, he was not aware that the Deeds Registries Act 47 of 1937 or the Alienation of Land Act 68 of 1981 had any relevance to the matter in question; he did not know that the house needed to be formally registered in his name before he could become the owner thereof.

Shortly after Mr Swanepoel appointed an estate agent to advertise the property, the plaintiffs discovered that he was trying to sell the house, which he had no legal right to do. The plaintiffs explained to Mr Swanepoel that, before the house was registered in his name, only they, the plaintiffs (who managed his mother’s estate) could sell the house. After the discussion, which severely angered Mr Swanepoel, the plaintiffs allowed Mr Swanepoel’s estate agent a certain period within which to sell the property on behalf of the estate (and not on behalf of Mr Swanepoel), either through advertising or per auction.

When the house did not sell within the agreed-upon period, the plaintiffs ended the estate agent’s mandate. They decided to rather try and sell the property on auction instead, as this would hopefully attract a prospective buyer. The auction proceeded with one serious bidder, who ultimately bought the house. Mr Swanepoel was very disappointed in the amount paid by the purchaser, as he thought the house was worth much more. After the auction and the finalisation of the sale, Mr Swanepoel accused the plaintiffs and the purchaser of conspiring against him. These accusations were directed not only at the involved parties, but also officially reported to several authorities and organisations.
Mr Swanepoel reported the plaintiffs to the Legal Practice Council of South Africa, to the Master of the High Court, and to the Office of the Judge President of the High Court. In his communications to these bodies, he made several serious accusations against the plaintiffs, including those claiming deceit, unprofessional conduct, blackmail and fraud on their part. Mr Swanepoel’s core accusations against the plaintiffs included the following:

1. That the plaintiffs had knowingly concluded a void contract of purchase and sale;
2. That they had conspired to sell the property at a lower price in order to benefit their friend (the purchaser);
3. That they had used fake names and a front company to acquire the property illegally;
4. That they had sold the property at auction without Mr Swanepoel’s consent;
5. That the main purpose of all their actions in this matter had been to gain financial benefits at the expense of Mr Swanepoel.

The plaintiffs contacted Mr Swanepoel multiple times, requesting that he retract these accusations, which they stated were wholly and entirely false. Mr Swanepoel refused to do so. The plaintiffs decided to institute legal action against him in an attempt to restore the good name of their law firm.

Legal proceedings

The defendant, lacking any legal expertise and not able to afford legal representation, decided to represent himself in court. His defence was poorly presented, highlighting the challenges faced by laypersons in legal proceedings. Throughout the court proceedings, Mr Swanepoel insisted that his statements were truthful, that it was beneficial to the general public, and that it constituted fair comment without malice. However, he could not verify his claims with any evidence. Ultimately, Mr Swanepoel admitted that his statements were indeed intended to damage the plaintiffs’ reputation and professional standing. His attitude towards the repercussions of his actions was indifferent; he admitted his wrongdoing without showing concern for the impact of his statements, essentially resigning himself to the consequences of his actions. He attempted to justify his actions by expressing frustration over the sale process and final sale price, which was lower than he had expected. Forensic investigations cleared the plaintiffs of any misconduct, and the complaints to the Master of the High Court and the Legal Practice Council did not lead to further action against the plaintiffs.

4.1 Identify the delict and its specific type, as applicable in the scenario described. (2)

4.2 If ancient Roman law applied to the facts in the scenario, would Mr Swanepoel have been found liable of the delict you identified in 4.1? Explain your answer. (2)

4.3 Assume that Mr Swanepoel is found liable of committing a delict, as set out in these facts. Consider the relevant common-law and constitutional principles relevant to the law of delict as you have learned of them in the HFL1501 study material. If you were the judge in this case, what do you think would be an appropriate order to compel Mr Swanepoel to provide restitution for his wrongdoing? Substantiate your answer. (4) [8]

QUESTION 5

Read the following paragraph and answer the question that follows:

Two interpretations of ubuntu are mentioned in Learning unit 3 of Part 3 of the HFL1501 Study Guide. These interpretations were formulated by Mokgoro (1995) and Radebe and Phooko (2017). While these interpretations of ubuntu are not in conflict with each other, their focus differs.

Identify which one of these two interpretations of ubuntu, if any, you prefer and give reasons for your choice. Your answer must be sufficiently detailed and specific but should not exceed 150 words. (2)

Answers to Above Questions on South African Legal Systems

Answer 1: An analysis of the South African economy indicates that it has an uncodified legal system, and in this particular system, if a lawyer is looking for remedy for a legal question, then it needs to rely on a combination of written laws, judicial decisions and constitutional principles rather than focusing on a single quote or statute. This can have a significant impact in terms of affecting the justice seeking process by a lawyer, as it will increase complexity and require interpretation of a number of laws.

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