In 2011 the Constitutional Court heard the case of The Citizen 1978 (Pty) Ltd and Others v McBride (CCT 23/10) 2011 (4) SA 191 (CC). This was a defamation case brought by Robert McBride against the Citizen newspaper. He alleged that they had defamed him. The newspaper believed that the comments were covered by freedom of expression. In the course of his minority Judgment, Mogoeng J made the following remarks:
“ Botho or ubuntu is the embodiment of a set of values and moral principles which informed the peaceful co-existence of the African people in this country who espoused ubuntu based on, among other things, mutual respect.”
“ Indeed, human dignity must colour the spectacles through which we view defamatory publications, particularly those which are inextricably linked to our painful past. And so should our rich values, like ubuntu, which are consistent with the Constitution, our shameful history of institutionalised human rights violations, our commitment to make a decisive break with this past as well as our pursuit of the noble objectives of national unity and reconciliation also inform the interpretation and exercise of the rights to dignity, freedom of expression, privacy and property in this country.”
In the first paragraph ubuntu is characterised as typically African. Write a brief essay in which you explain what ubuntu means and indicate whether you think the judge is right in his characterisation of ubuntu. Your answer should not exceed 750 words.
In the second paragraph the Judge links ubuntu to human rights. Human rights can be regarded as something uniquely associated with modern legal philosophy. This is because of the individualistic nature of human rights. Given that ubuntu is a pre- modern idea, in your discussion indicate whether you think the judge is correct in linking ubuntu to human rights. Your answer should not exceed 750 words.
African legal philosophy is based on the premise that there is a uniquely African approach to law and legal conflicts. Discuss two characteristics of this approach to illustrate how it is different from Western ideas. Your answer should not exceed 750 words. (15)
In South Africa the law allows men to enter into polygamous customary marriages. Women on the other hand are not permitted to have more than one husband. Based on the feminist legal philosophy (critical gender theory), does the fact that polygamy is legally recognised, and polyandry not explicitly legally recognised constitute unfair discrimination against women? In your discussion, refer to Mackinnon’s theory of dominance feminism. Your answer should not exceed 750 words. (15)
Read the following scenario and then answer the question set out below:
In 2015, the Constitutional Court handed down a judgment in the case of DE v RH  ZACC 18. In this case, the appellant (Mr DE) challenged the decision by the Supreme of Court Appeal to abolish the delictual claim against a third party based on adultery. A concurring judgment by Mogoeng CJ (Cameron J concurring) emphasised that:
“ The law does and can only create a regulatory framework for the conclusion of marriage and the enforcement of obligations that flow from it. It can also help ensure that barriers to family life are removed. The rest is in the hands of the parties to the marriage. Barring exceptions, they decide freely to get married and it is within their ability to protect their marriage from disintegrating.”
“ …. marriage essentially hinges on the ‘readiness, founded in morals, of the parties to the marriage to create and to maintain it’. Like the Supreme Court of Appeal, I also believe that parties’ loss of moral commitment to sustain marriage may lead to its failure. For abuse of one by the other and other factors that could lead to the breakdown of marriage are, in my view, likely to creep in when that commitment ceases to exist.
“ The law cannot shore up or sustain an otherwise ailing marriage. It continues to be the primary responsibility of the parties to maintain their marriage. For this reason, the continued existence of a claim for damages for adultery by the “innocent spouse” adds nothing to the lifeblood of a solid and peaceful marriage.”
3.1 Indicate which philosophical approach the judgment followed and discuss what it entails. Your answer should not exceed 750 words. (15)
Read the following article and then answer the question set out below:
The newspaper article published by News24 titled “woman should take RDP house after divorce – Sisulu”,1 talks about the proposed law amendment to ensure that if a couple in a free government house get divorced the house goes to the wife. According to this article, this proposed move by the Ministry of Human Settlements was informed by the fact mothers are the primary caregivers for their children. It is postulated that upon divorce the house should belong to the wife, because she is responsible for the children.
4.1 Discuss how cultural and societal factors influence gender roles in the context of Neculaesei’s argument that the roles are the product of communication. To answer this question, refer to document “LJU4801 article 1”. Your answer should not exceed 750 words. (15)
There are divergent views on how judges decide cases. From the objectivist theories’ perspective judges are part of a community of interpreters and this community determines how judges must decide cases. Briefly explain this perspective using Dworkin’s communalist theory. Your answer should not exceed 250 words. (5)
Based on your answer to question 5.1 above, is there a difference between the communalist theory and African theories of adjudication? Briefly explain. Your answer should not exceed 250 words. (5)
Answers to Above Questions on Legal Philosophy
Answer 1: An analysis of the concept of Ubuntu indicates that it has significant relevance in South African culture and it implies the values and moral principle that emphasizes the interconnectedness of individuals within a community. Ubuntu is characterized by the judge as South African and this particular characterization is accurate.
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