FUR2601 Questions and Answers Exams
FUR2601 November 2021
Section A
1.1 In President of the Republic of South Africa and Another v Hugo, the Constitutional
Court held that the decision of the President granting a remission of sentence to all
imprisoned mothers with minor children under the age of 12, but not to the fathers,
amounted to unfair discrimination.
False, because it amounted to fair discrimination as its purpose was to achieve an important
societal goal.
1.2 The Tshwane Metro Council plans to evict a number of squatters from land that has
been earmarked for a housing project. The Council has the right to evict the squatters
and demolish their dwellings.
True, because the actions of the Council amounts to an administrative decision.
1.3 A decision by the Independent Electoral Commission (IEC) that prisoners will not
be allowed to vote in the forthcoming elections qualifies as law of general application.
False, because the Electoral Act does not deny prisoners the right to vote.
1.4 Formal equality refers to sameness of treatment.
True, because this means that the law must treat individuals the same regardless of their
circumstances.
1.5 The common-law rule that criminalises gay sodomy infringes the right to human
dignity.
True, because this statement was confirmed by the Constitutional Court in National Coalition
for Gay and Lesbian Equality v Minister of Justice.
Section B
1.6 List the requirements that have to be met in order to obtain locus standi when a
person is seeking to act in public interest. (2)
It must be shown that the person is acting in the public’s interest.
It must be shown that the public has sufficient interest in the requested remedy.
1.7 Differentiate the following concepts:
Reading in and reading down (3)
Reading in is a remedy while reading down is a method of statutory interpretation aimed at
avoiding inconsistency between the law and the Constitution.
Reading in is a constitutional remedy which is granted by a court after it has concluded that a
statue is constitutionally invalid.
Reading in is mainly used when the inconsistency is caused by an omission and it is
necessary to add words to the statutory provision to cure it.
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,1.8 Discuss whether, and to what extent, a juristic person can rely on the protection of
the Bill of Rights. For instance, can Nose week, an independent newspaper, invoke the
right to life and the right to freedom of expression? (5)
In the First Certification judgment, the Court emphasized that many universally accepted
fundamental rights will be fully recognized only if afforded to juristic persons as well as to
natural persons.
Section 8(4) provides for the protection of juristic persons. A juristic person is entitled to the
rights in the Bill of Rights to the extent required by the nature of the rights and the nature of
that juristic person.
In order to determine whether a juristic person is protected by a particular right or not, two
factors must be taken into consideration: first, the nature of the right, and, secondly, the
nature of the juristic person.
The nature of some fundamental rights is such that these rights cannot be applied to juristic
persons. Nose week cannot be protected by the right to life, which is afforded to human
beings only, although it might have standing to approach a competent court if the
requirements of section 38 have been complied with.
Other rights, such as the right to freedom of expression, have been specifically afforded to the
media, which are often controlled by juristic persons.
1.9 What is the relationship between the Constitution and the Bill of Rights? (5)
The Bill of Rights (Chapter 2) is part and parcel of the Constitution. It can only be properly
understood in the context of the Constitution. Like the Constitution itself, it is entrenched,
enforceable and justiciable.
QUESTION 2
2.1 Discuss whether or not magistrates’ courts can develop common law in accordance
with the Constitution. (10)
Section 8(3) of the Constitution obliges the courts, when applying the provisions of the Bill
of Rights, if necessary, to develop rules of the common law to limit the rights, provided that
the limitation is in accordance with section 36 of the Constitution. This means that they are
bound to give effect to the constitutional rights as all other courts are bound to do in terms of
section 8(1) of the Constitution; hence magistrates presiding over criminal trials must, for
instance, ensure that the proceedings are conducted in conformity with the Constitution,
particularly the fair-trial rights of the accused. Further, section 39(2) places a positive duty on
every court to promote the spirit, purport and objects of the Bill of Rights when developing
the common law. Over and above that, in terms of section 166 of the Constitution, courts in
our judicial system include magistrates’ courts.
However, section 173 explicitly empowers only the Constitutional Court, the Supreme Court
of Appeal and the High Courts to develop the common law, taking into account the interests
of justice. Magistrates’ courts are excluded on the basis of the following grounds:
Magistrates are constrained in their ability to develop crimes at common law by virtue of the
doctrine of precedent. Their pronouncements on the validity of common law criminal
principles would create a fragmented and possibly incoherent legal order. Effective operation
of the development of common law criminal principles depends on the maintenance of a
unified and coherent legal system, a system maintained through the recognized doctrine of
2
, stare devises which is aimed at avoiding uncertainty and confusion, protecting vested rights
and legitimate expectations of individuals, and upholding the dignity of the judicial system.
Moreover, there does not seem to be any constitutional or legislative mandate for all cases in
which a magistrate might see fit to develop the common law in line with the Constitution to
be referred to higher courts for confirmation. Such a referral might mitigate the
disadvantageous factors discussed above.
2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically
with regard to the application of the equality test as laid down in Harksen v Lane. (10)
A good illustration of the application of the Harksen v Lane enquiry is the Constitutional
Court’s recent decision in Hassam v Jacobs. The case concerned the confirmation of a
declaration of constitutional invalidity of certain sections of the Intestate Succession Act 81
of 1987. The impugned provisions were found to exclude widows of polygynous marriages
celebrated according to the tenets of the Muslim religious faith in a discriminatory manner
from the protection of the Intestate Act. The applicant’s argument was largely devoted to the
equality provisions in the Constitution, specifically unfair discrimination on the grounds of
gender, marital status and religion. Nkabinde J, at paragraphs 31–39 (footnotes omitted),
specifically stated:
[31] The marriage between the applicant and the deceased, being polygynous, does not enjoy
the status of a marriage under the Marriage Act. The Act differentiates between widows
married in terms of the Marriage Act and those married in terms of Muslim rites; between
widows in monogamous Muslim marriages and those in polygynous Muslim marriages; and
between widows in polygynous customary marriages and those in polygynous Muslim
marriages. The Act works to the detriment of Muslim women and not Muslim men.
[32] I am satisfied that the Act differentiates between the groups outlined above.
[33] Having found that the Act differentiates between widows in polygynous Muslim
marriages like the applicant, on the one hand, and widows who were married in terms of the
Marriage Act, widows in monogamous Muslim marriages and widows in polygynous
customary marriages, on the other, the question arises whether the differentiation amounts to
discrimination on any of the listed grounds in section 9 of the Constitution. The answer is
yes. As I have indicated above, our jurisprudence on equality has made it clear that the nature
of the discrimination must be analysed contextually and in the light of our history. It is clear
that, in the past, Muslim marriages, whether polygynous or not, were deprived of legal
recognition for reasons which do not withstand constitutional scrutiny today. It bears
emphasis that our Constitution not only tolerates but celebrates the diversity of our nation.
The celebration of that diversity constitutes a rejection of reasoning such as that to be found
in Seedat’s Executors v The Master (Natal), where the court declined to recognise a widow of
a Muslim marriage as a surviving spouse because a Muslim marriage, for the very reason that
it was potentially polygynous, was said to be “reprobated by the majority of civilised peoples,
on grounds of morality and religion”.
[34] The effect of the failure to afford the benefits of the Act to widows of polygynous
Muslim marriages will generally cause widows significant and material disadvantage of the
sort which it is the express purpose of our equality provision to avoid. Moreover, because the
denial of benefits affects only widows in polygynous marriages concluded pursuant to
Muslim rites and not widowers (because Muslim personal law does not permit women to
have more than one husband), the discrimination also has a gendered aspect. The grounds of
discrimination can thus be understood to be overlapping on the grounds of: religion, in the
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FUR2601 November 2021
Section A
1.1 In President of the Republic of South Africa and Another v Hugo, the Constitutional
Court held that the decision of the President granting a remission of sentence to all
imprisoned mothers with minor children under the age of 12, but not to the fathers,
amounted to unfair discrimination.
False, because it amounted to fair discrimination as its purpose was to achieve an important
societal goal.
1.2 The Tshwane Metro Council plans to evict a number of squatters from land that has
been earmarked for a housing project. The Council has the right to evict the squatters
and demolish their dwellings.
True, because the actions of the Council amounts to an administrative decision.
1.3 A decision by the Independent Electoral Commission (IEC) that prisoners will not
be allowed to vote in the forthcoming elections qualifies as law of general application.
False, because the Electoral Act does not deny prisoners the right to vote.
1.4 Formal equality refers to sameness of treatment.
True, because this means that the law must treat individuals the same regardless of their
circumstances.
1.5 The common-law rule that criminalises gay sodomy infringes the right to human
dignity.
True, because this statement was confirmed by the Constitutional Court in National Coalition
for Gay and Lesbian Equality v Minister of Justice.
Section B
1.6 List the requirements that have to be met in order to obtain locus standi when a
person is seeking to act in public interest. (2)
It must be shown that the person is acting in the public’s interest.
It must be shown that the public has sufficient interest in the requested remedy.
1.7 Differentiate the following concepts:
Reading in and reading down (3)
Reading in is a remedy while reading down is a method of statutory interpretation aimed at
avoiding inconsistency between the law and the Constitution.
Reading in is a constitutional remedy which is granted by a court after it has concluded that a
statue is constitutionally invalid.
Reading in is mainly used when the inconsistency is caused by an omission and it is
necessary to add words to the statutory provision to cure it.
1
,1.8 Discuss whether, and to what extent, a juristic person can rely on the protection of
the Bill of Rights. For instance, can Nose week, an independent newspaper, invoke the
right to life and the right to freedom of expression? (5)
In the First Certification judgment, the Court emphasized that many universally accepted
fundamental rights will be fully recognized only if afforded to juristic persons as well as to
natural persons.
Section 8(4) provides for the protection of juristic persons. A juristic person is entitled to the
rights in the Bill of Rights to the extent required by the nature of the rights and the nature of
that juristic person.
In order to determine whether a juristic person is protected by a particular right or not, two
factors must be taken into consideration: first, the nature of the right, and, secondly, the
nature of the juristic person.
The nature of some fundamental rights is such that these rights cannot be applied to juristic
persons. Nose week cannot be protected by the right to life, which is afforded to human
beings only, although it might have standing to approach a competent court if the
requirements of section 38 have been complied with.
Other rights, such as the right to freedom of expression, have been specifically afforded to the
media, which are often controlled by juristic persons.
1.9 What is the relationship between the Constitution and the Bill of Rights? (5)
The Bill of Rights (Chapter 2) is part and parcel of the Constitution. It can only be properly
understood in the context of the Constitution. Like the Constitution itself, it is entrenched,
enforceable and justiciable.
QUESTION 2
2.1 Discuss whether or not magistrates’ courts can develop common law in accordance
with the Constitution. (10)
Section 8(3) of the Constitution obliges the courts, when applying the provisions of the Bill
of Rights, if necessary, to develop rules of the common law to limit the rights, provided that
the limitation is in accordance with section 36 of the Constitution. This means that they are
bound to give effect to the constitutional rights as all other courts are bound to do in terms of
section 8(1) of the Constitution; hence magistrates presiding over criminal trials must, for
instance, ensure that the proceedings are conducted in conformity with the Constitution,
particularly the fair-trial rights of the accused. Further, section 39(2) places a positive duty on
every court to promote the spirit, purport and objects of the Bill of Rights when developing
the common law. Over and above that, in terms of section 166 of the Constitution, courts in
our judicial system include magistrates’ courts.
However, section 173 explicitly empowers only the Constitutional Court, the Supreme Court
of Appeal and the High Courts to develop the common law, taking into account the interests
of justice. Magistrates’ courts are excluded on the basis of the following grounds:
Magistrates are constrained in their ability to develop crimes at common law by virtue of the
doctrine of precedent. Their pronouncements on the validity of common law criminal
principles would create a fragmented and possibly incoherent legal order. Effective operation
of the development of common law criminal principles depends on the maintenance of a
unified and coherent legal system, a system maintained through the recognized doctrine of
2
, stare devises which is aimed at avoiding uncertainty and confusion, protecting vested rights
and legitimate expectations of individuals, and upholding the dignity of the judicial system.
Moreover, there does not seem to be any constitutional or legislative mandate for all cases in
which a magistrate might see fit to develop the common law in line with the Constitution to
be referred to higher courts for confirmation. Such a referral might mitigate the
disadvantageous factors discussed above.
2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically
with regard to the application of the equality test as laid down in Harksen v Lane. (10)
A good illustration of the application of the Harksen v Lane enquiry is the Constitutional
Court’s recent decision in Hassam v Jacobs. The case concerned the confirmation of a
declaration of constitutional invalidity of certain sections of the Intestate Succession Act 81
of 1987. The impugned provisions were found to exclude widows of polygynous marriages
celebrated according to the tenets of the Muslim religious faith in a discriminatory manner
from the protection of the Intestate Act. The applicant’s argument was largely devoted to the
equality provisions in the Constitution, specifically unfair discrimination on the grounds of
gender, marital status and religion. Nkabinde J, at paragraphs 31–39 (footnotes omitted),
specifically stated:
[31] The marriage between the applicant and the deceased, being polygynous, does not enjoy
the status of a marriage under the Marriage Act. The Act differentiates between widows
married in terms of the Marriage Act and those married in terms of Muslim rites; between
widows in monogamous Muslim marriages and those in polygynous Muslim marriages; and
between widows in polygynous customary marriages and those in polygynous Muslim
marriages. The Act works to the detriment of Muslim women and not Muslim men.
[32] I am satisfied that the Act differentiates between the groups outlined above.
[33] Having found that the Act differentiates between widows in polygynous Muslim
marriages like the applicant, on the one hand, and widows who were married in terms of the
Marriage Act, widows in monogamous Muslim marriages and widows in polygynous
customary marriages, on the other, the question arises whether the differentiation amounts to
discrimination on any of the listed grounds in section 9 of the Constitution. The answer is
yes. As I have indicated above, our jurisprudence on equality has made it clear that the nature
of the discrimination must be analysed contextually and in the light of our history. It is clear
that, in the past, Muslim marriages, whether polygynous or not, were deprived of legal
recognition for reasons which do not withstand constitutional scrutiny today. It bears
emphasis that our Constitution not only tolerates but celebrates the diversity of our nation.
The celebration of that diversity constitutes a rejection of reasoning such as that to be found
in Seedat’s Executors v The Master (Natal), where the court declined to recognise a widow of
a Muslim marriage as a surviving spouse because a Muslim marriage, for the very reason that
it was potentially polygynous, was said to be “reprobated by the majority of civilised peoples,
on grounds of morality and religion”.
[34] The effect of the failure to afford the benefits of the Act to widows of polygynous
Muslim marriages will generally cause widows significant and material disadvantage of the
sort which it is the express purpose of our equality provision to avoid. Moreover, because the
denial of benefits affects only widows in polygynous marriages concluded pursuant to
Muslim rites and not widowers (because Muslim personal law does not permit women to
have more than one husband), the discrimination also has a gendered aspect. The grounds of
discrimination can thus be understood to be overlapping on the grounds of: religion, in the
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