ILW1501-EXAM PACK-Q AND A.

MAY/JUNE 2016 SECTION A Question 1 (a) Which system’s rules should be obeyed, when there is a clash between law and religion as normative systems? (Hint: In your answer you should focus on the differences between legal rules and religious rule) (4) There are differences between legal rules and religious rules. These two normative systems do not overlap completely. The Ten Commandments proclaim that one should not covet thy neighbour's possessions. How will a state enforce this? This is not enforced by law. In the same way adultery is not a crime, although it may be regarded a `sin'. Although religion and law are not always similar, there are certain aspects of the South African law that favour the Christian religion. In criminal law blasphemy is an offence: It pertains only to the Christian God. Christian public holidays such as Christmas and Good Friday are given preference by the government. This is justified as part of the accepted religious convictions of the majority. (b) Martie van der Merwe, a lecturer at New Africa University, applies for promotion. Unfortunately she is not promoted and she complains about the University’s decision. The University gives her a chance to present her case. An impartial person hear the complaint and decided that the rules with regard to promotions within the University are clear and apply to all personnel equally. However, Martie feels she was not promoted simply because she is a woman. Has formal justice been done in this case? Give reasons for your answer. (4) The requirements of formal justice have been met, these being: ∞ Explicit rules must be laid down to show how people must be treated in a specific case. The rules with regard to promotions within the New Africa University are explicit. ∞ The rules must apply generally, meaning they must apply to all people in the group in the same circumstances. These rules apply generally to all personnel at the University. ∞ Rules must be applied impartially by legal institutions. These rules are implied impartially because Martie’s complaint was heard by an impartial person. If the formal law meets certain basic requirements and is always applied in exactly the same way, we say that formal justice has been achieved. (c) John buys a second-hand motorbike from his friend, Peter, for R10 000. This transaction involves a contract of purchase between John and Peter. John pays Peter the purchase price of R10 000. However, Peter refuses to deliver the motorbike to John as agreed in their contract. Name two kinds of rights that are applicable to our scenario. Explain what each kind ILW1501-EXAM PACK-Q AND A. entails (3) Real right: Real rights are rights to physical, material things, that we can touch, e.g. a pen or a car. The object of a real right is always a thing, the real right itself is, e.g. right of ownership, right of pledge. In the case of ownership, the owner of property may freely use and enjoy her property. The owner can also alienate it (that is sell or give it away). Peter has the right of ownership to his motorbike, as the owner he decided to sell it to John. Personal right: A personal right is a right to performance. It is also called a claim. Performance is a human action of either doing or not doing something. We may have a right to the action of another person. The action may be the delivery of something by the seller, the payment of the purchase price by the buyer, or the services of an employee. In this case Peter had the right to receive purchase price from John, which he did. But John also has the personal right to have the motorbike delivered, which Peter failed to do. (d) During the sixth century AD the emperor of the Eastern Roman Empire, Justinian, wanted his empire to be as glorious as the old Roman Empire and he wanted to bring order to the legal system of his time. Explain how he contributed to the development of the legal system during his reign and the preservation of Roman law in later centuries. (4) Justinian decided to “codify” Roman law as a whole; that meant that he decided that all the earlier writings of the classical jurists and all the laws which had been passed during the time of the emperors were to be collected and written down as a code. This collection of Roman law by Justinian was called the Corpus Iuris Civilis. By codifying the law, Justinian kept Roman law alive in the Eastern Roman Empire, although this collection of Roman law did not have much influence in the Western Roman Empire at that time. However, the fact that the Roman law had been collected and written down made it possible for Roman law to be received in Europe in about the 12th century AD. Question 2 (a) Distinguish between criminal law and law of criminal procedure as the divisions of public law (4) Criminal laws states which acts are crimes and what the penalties/ punishments are that are that are imposed by the state for the commission of these crimes. Law of criminal procedure is concerned with the way in which someone who is suspected of having committed a crime is prosecuted and tried. These are the divisions of public law, which deal with the relationship between the state and the citizen. (b) Charl and Charlotte Charles have been married for the past 25 years. During this time they have lived in luxury and have never even thought about what would happen to their wealth if they are not around anymore. On their way to Cape Town for their annual holiday they both die in a car accident. Their three children are now very eager to hear what will happen to their parents’ wealth. Which division of private law will be applicable to this scenario? Explain in detail what this specific division deals with. (3) The law of patrimony: which is concerned with a person and their means, in other words things people own that can be given a value in money. (c) Define legal obligation and name two of the subdivisions that the law of obligations can be divided into. (4) An obligation is a legal relationship between two or more parties in terms of which on party has a right against another party for performance and the other party has a corresponding duty to perform. Subdivisions that the law of obligation can be divided into are: ∞ Law of contract ∞ Law of delict (d) Consider the following sources of law and answer the questions that follow. Foreign law, legal textbooks, articles in law journals and case law. (i) Which source of law has binding authority I South African courts? Give a reason for your answer. (2) Case Law is an authoritative source of law, with binding authority in court. (ii) With reference to your answer in (i), explain the difference between this source of law and the other three sources of law (2) Foreign law, legal textbooks and articles in law journals are sources of law which merely have persuasive influence in court and do not bind the court, like case law does on the other hand, it is an authoritative source of law. Question 3 (a) Explain the concept “constitution” (3) The rules by which a country is governed are found in that country's Constitution. A Constitution is usually a very long document which sets out the structure and functions of government. It also sets out the standards that will have to be used to protect the individual against any abuse of power by the state. In South Africa we have a written Constitution that was adopted in 1996. Although other countries such as England do not have a single written Constitution. (b) What do you understand by the “separation of state’s powers”? Why is this separation so important? (4)