Question 1: (9 Marks)

Differentiate between natural law and positivism by explaining each concept. Illustrate the difference by providing an example of each.

Question 2: (27 Marks) Read the following fictitious scenario and answer the questions that follow:
You are a research assistant at the Department of Private Law at Umtata University. Akhona, a first-year student, rushes to you seeking guidance on his assignment for Law of Persons. He is uncertain about several elements of his assignment.

He provides you with the following details:

His (proposed) assignment is titled: “The best interests of the child.”

His (proposed) research question is as follows: “Do the best interests of the child begin at birth or conception?”

The (proposed) main aim of his assignment: “The assignment aims to consider and rethink the judgments of the best interests of the child. I want to do this through a critical analysis of a number of judgments that considered whether the nasciturus fiction could be extended to other branches of law, such as the law of delict. The research would, therefore, require a deep-dive into these cases and academic
opinions on the matter.”

Required:

2.1. Fully explain the process a researcher must undertake to draft a clear research question and determine if Akhona’s proposed research question is clear. If not, provide Akhona with an alternative research question for his assignment.

(17 Marks)

2.2. Explain the importance of a well-crafted research title for Akhona’s research assignment. In your answer, determine if Akhona’s proposed research title is sufficient. If not, provide Akhona with an alternate title for her assignment.
(7 Marks)

2.3. Akhona has followed your advice and is about to complete his assignment but does not know how to conclude his paper. Explain what a good conclusion contains.

(3 Marks)

Question 3: (23 Marks)

3.1. Briefly explain the concept of historiography in the field of law. (2 marks)

3.2. The study and writing of history is a specialised scholarly field with its own methodological considerations. Discuss the basic methodological considerations when conducting research in the field of legal history. (16 marks)

3.3. Should one always include legal history in a research project? (5 marks)

Question 4: (14 Marks) Read the following excerpt and answer the questions that follow:
“For the beginner lawyer the dilemma of the interminable stream of possible sources may be removed or mitigated by the professor who directs his or her students to specific materials, but with the development of more sources autonomously. There are no hard and fast rules for dealing with this responsibility because there are too many variables involved that are determined by the nature of the specific project.” Source: Venter, F. 2018. Legal research: purpose, planning and publication. Cape
Town: Juta.

Required:

Discuss the statement by Venter above by referring to four tips you learned during this module to help students with the selection and use of sources in their independent research.

Question 5 (7 Marks)

Explain the main components of comparative legal research and how they would apply in comparing laws between different countries. Provide an example of comparative legal research to illustrate your explanation.

Question 6 (20 Marks) Read the extract below and see the instructions that follow:
The education process essentially involves two parties: the learner and the educator. One receives education, and the other provides it. One pays to be provided with education (through parents in the form of school fees or tax), and the other is paid to provide it. One undergoes compulsory education, and the other follows a career choice to educate. One has expectations; and the other has responsibilities. One has no collective voice, and the other is organised in a union or even unions. This is an oversimplified way of stating that we are dealing with two opposites within the education sector (each with its own complex constitutional, educational, labour and political issues).

According to the international McKinsey report on world school systems, the quality of an education system cannot exceed the quality of its teachers. The report clearly shows that if one should remove all equipment (computers, interactive boards, chairs and tables) from a classroom and be left with nothing but a dedicated educator, education will still take place. Education, therefore, is not possible without the educator (McKinsey & Company, 2007). Education is one of the non-negotiable aspects of most societies, and, in South Africa, this right is enshrined in the Constitution of the Republic of South Africa, 1996 (Constitution). In terms of section
29(1)(a) of the Constitution, everyone has a right to a basic education. Therefore, all learners have the right to a basic education. On the other hand, educators – being employees (Rossouw, 2012) – enjoy labour rights. Section 23 of the Constitution provides that everyone has the right to fair labour practices and every worker has the right to form and join a trade union, to participate in the activities and programmes of a trade union, and to strike.

While the Constitution protects both teachers’ right to strike and our learners’ right to a basic education, these two are sometimes in conflict, despite the fact that section 28(2) of the Constitution explicitly states: “A child’s best interests are of paramount importance in every matter concerning the child”. The conflict between learners’ and educators’ rights occurs when teachers’ unions conduct strike actions in a way that diminishes the quality and duration of learners’ classroom education or when educators strike just before or during an examination (Horsten & Le Grange, 2012).

The two most recent strikes in education were marked by intimidation of non-striking educators, violence and disruption of classes, and even intimidation of learners travelling to school. Educators took part in protest actions at several schools on a single day and disrupted schooling where non-strikers were employed (Calitz & Conradie, 2013). This gave rise to the question of the right to strike as opposed to the right to a basic education and quickly became a political ‘hot ball’. In 2011, for example, the Democratic Alliance (DA) proposed a Private Members’ Bill, through which they sought to limit educators’ right to strike (James, 2011). This was immediately rejected by the majority teachers’ trade union, the South African Democratic Teachers Union (SADTU).

Source: Deacon, HJ. 2014. The balancing act between the constitutional right to strike and the constitutional right to education. South African Journal of Education 34(2): 1-15.

Required:

In preparation for Summative Assessment 1 (SA1), you are required to conduct research on the given research theme and write a 5–6-page draft research proposal.

The research theme is balancing the constitutional right to strike with the constitutional right to a basic education.

Answers to Above Questions on Law

Answer 1: The main difference between the natural law and legal positivism can be identified from their concept. Natural law is defined as a philosophy that indicates that there are certain rights and moral values that are inherent within human beings, and they can be understood with the help of a reason. The concept of legal positivism indicates that the laws are rules and regulations that are created by human beings and there is no such need to connect to morality.