Assignment question (Marks: 100) The assignment takes the form of an opinion piece. It focuses on judicial decision making, critique of the judiciary and government action. Students are to consider the role of the legal academics and non-government organizations in challenging government action, pursuing justice and
critique of case law both during apartheid and now in the post-apartheid democratic era. We encourage you look beyond the prescribed sources. We would like you to critique the challenges to the exercise of state power in recent times or the lack thereof. Because this an opinion piece, there isn’t a right or wrong answer, but we would like you to substantiate whatever position you take.

Students are required to read the Van Niekerk case, Albertyn and Davis (2011) and Swart (2010) as well as selected pages from the TRC report volume 4. These articles and extracts will be uploaded to the student portal for ease of access. The assignment focuses on the role of lawyers and judges in transformation. In all of the prescribed readings, the tension between the various concepts of law is addressed. Students must address the topic of critique of the law as a contribution to the development of the law.

Swart (2010, p278) asserts the following: “Fuller essentially asked the same question Dugard

asked about the influence of legal positivism on the attitudes of apartheid judges in Human Rights and the South African Legal Order.1 While Hart and Fuller were waging an intellectual battle in the pages of the Harvard Law Journal, Verwoerdian apartheid was gaining momentum. South African judges, lawyers and academics while faced daily with the dilemmas Hart and Fuller debated, were stuck in a different theoretical paradigm and very few offered resistance to the unjust legislation, let alone appealed to higher law.”

What are your thoughts on Radbruch’s view that “the judge’s ethos ought to be directed at justice at any price, even the price of his own life”? (Swart (2010, p.276) Consider then the summary of the submissions made to the TRC, in particular paragraph 18 in which the views put forward by
the BLA, LHR, the LRC and Nadel. What role are these lawyer organizations playing in supporting democracy? Who is at the forefront? What sort of challenges are lawyer organizations raising? Do you agree with these challenges, or do you deem them to be “counter-revolutionary”? What is the role of the legal academic and lawyer in post-apartheid South Africa? We encourage you to also use your Jurisprudence readings, where applicable, to support your argument, being able to see and make connections between the two modules.

Answers to Above Questions on Legal Ethics

Answer 1: In analysing the transition of the South African economy from apartheid to democracy, it is important to evaluate the principles that guide the judiciary ethos and challenges faced by legal practices in pursuing justice.


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