SCL1502/201/1/2013

Tutorial letter 201/1/2013

Research Skills for Law
SCL1502
Semester 1
Department of Jurisprudence

IMPORTANT INFORMATION:
This tutorial letter contains important information
about your module.

Dear Student
In this tutorial letter we want to share the following information with you:
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LECTURERS FOR SCL1502

FEEDBACK ON ASSIGNMENT 01

FEEDBACK ON ASSIGNMENT 02

ASSIGNMENT 03 (EXAM)

A SERIOUS WARNING!

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LECTURERS FOR SCL1502
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Your lecturers for SCL1502 are:
Mr J De Villiers (Module leader)
E-mail:
dvillj@unisa.ac.za
Prof M Swanepoel
E-mail:
swanem@unisa.ac.za
IMPORTANT NOTICE: The Department of Jurisprudence is relocating to an office block in
Brooklyn (Pretoria) during March/April 2013. Our contact details, except for our e-mail
addresses, will consequently change. As soon as the Department receives the new contact
details, you will be informed via a tutorial letter, sms and myUnisa. Until further notice, we
advise that you contact us via email.
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FEEDBACK ON ASSIGNMENT 01
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Feedback on Assignment 01 follows. Please do not see this as a set memorandum, but
rather as feedback intended to guide you so that you know how to approach similar
questions in future.
Question 1
The most important consideration in this question is whether you cited the relevant source in
the prescribed format as explained on pages 32 and 33 of Tutorial letter 102. Examples of
correctly cited sources are:

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1.1 Van Heerden and another v Joubert NO and others 1994 (2) ALL SA 468 (A)
Connolly and others v AA Mutual Insurance Association ltd 1991 (1) SA 423 (W)
G v Superintendent, Groote Schuur Hospital, and others 1993 (2) SA 255 (C)
1.2 Long-term Insurance Act 52 of 1998
1.3 Du Plessis L "Jurisprudential reflections on the status of unborn life" 1990 Journal of
South African Law 44-59
Hahlo H "Nasciturus in the Limelight" 1974 South African Law Journal 73-83
Slabbert M "The fetus and embryo: Legal status and personhood" 1997 Journal of
South African Law 234-255
Question 2
We explain on pages 18 and 19 of Tutorial letter 102 how a case should be summarised.
Your summary should have clear headings and all the sections should be included in your
summary. One example of a summarised case follows:
Van Heerden and another v Joubert NO and others 1994 (2) ALL SA 468 (A)
Summary of the facts
The baby of the second and third respondents died at about the time of its birth on 2 April
1988. The first respondent, a magistrate, subsequently conducted an inquest in terms of the
Inquests Act 58 of 1959.1 The doctor who attended to the delivery of the baby raised an
objection to the authority of the magistrate to hold the inquest as an inquest in terms of the
act could only be held into the death of a "person" and she argued that the baby was
stillborn and consequently not a "person" as contemplated in the act.2
Legal question
Is a foetus a "person" in terms of the Inquest Act 58 of 1959?
Ratio decidendi (The court's reasons for its decision)
The court found that, as the word "person" is not defined in the act, the essential enquiry is
whether the word "person", as used in the act, includes a stillborn baby. In order to do this,
other provisions of the act has to be considered to establish the purpose of holding an
inquest.3
As is clear from section 5 and section 16(2) of the Inquest Act, the main objects of an
inquest are to determine the cause of death, the circumstances surrounding the death,

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Van Heerden and another v Joubert NO and others 1994 (2) ALL SA 468 (A) (hereinafter the Van
Heerden case) at 793
Van Heerden case at 793.
Van Heerden case at 794.

whether anyone was responsible for the death, and whether the death can be attributed to
the commission of any offence.4
The general rule when statutes are constructed is that the ordinary grammatical meaning of
words must be adhered to. Where the language of a statute is unambiguous and its
meaning clear, the court may only depart from the ordinary meaning if it leads to absurdity
that could obviously not have been contemplated by the legislature.5
The court held that it would in this instance not lead to any absurdity if the word "person"
was given its ordinary literal meaning.6
The court consulted various dictionary meanings of the word "person" and found that there
is no suggestion in any of those dictionaries that the word "person" can also connote a
stillborn child, an unborn human being or a living foetus.7
It was not contended that the nasciturus rule can be applied in the present case, as the child
was not born alive and although there is a view that the nasciturus rule leads to an unborn
child being regarded as a legal persona, the issue here is not whether a foetus should be
regarded as a legal persona, or to what extent life before birth should be protected, but
whether the act applies to the present case.8
The court found that, even if the law does indeed recognise a foetus as a legal persona, the
legislature never had any such legal persona in mind when it used the word "person" in the
act as it would otherwise have made an attempt to address some of the obvious problems
which such an extended meaning of the word would involve, like inquests surrounding
legalised abortions and the effect on the law relating to murder and culpable homicide.9
The court found that the act does not make provision for an inquest into the death of a
stillborn.10
The finding
The appeal was upheld and the court made an order declaring that the first respondent has
no authority to continue with an inquest in terms of the Inquest Act 58 of 1959 into the death
of the stillborn child.
Question 3
The integrated summary should focus on the similarities and differences between the three
cases that you summarised. Look at your answer to question 3 and, taking any feedback
from the marker into consideration, ask yourself the following:

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Van Heerden case at 794 - 795.

Van Heerden case at 795.
Van Heerden case at 795.
Van Heerden case at 796.
Van Heerden case at 797 - 798.
Van Heerden case at 798.
Van Heerden case at 798.

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Is it clear from my integrated summary that there is a "golden thread" that binds the
three cases together?
Have I also discussed the differences between the three cases?
How, if at all, did the legal question in each of the three cases differ from the other two
cases and is this clear from my summary?
Do the legal principles laid down in the respective cases have bearing on one another
and is this clear from my summary?

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FEEDBACK ON ASSIGNMENT 02
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There is no single correct blueprint or memorandum for any essay-type question. There are
however certain "rules" regarding grammar, proper language, structure, technical
requirements etc. that must be adhered to. Your essay also needs to be substantively
correct and address the question that was posed. This feedback is once again intended to
guide you so that you know how to approach a similar question in future. One example of an
essay on the difference between the indigenous and Roman concepts of ownership follows:
The difference between the indigenous and Roman concepts of ownership
Ownership can be defined as the "fullest possible right one could have over a corporeal
thing".11 Ownership gives a person the right to use a thing, enjoy the fruits and have control
over it.12 Only the owner of a specific object can have a right over a thing, if other persons
also have a right over the same specific object the owner's rights is limited. The right of
ownership is regarded as one of the most important rights and is enshrined and protected in
the Constitution, which states that "no one may be deprived of property except in terms of
law of general application, and no law may permit arbitrary deprivation of property".13 In this
essay I will distinguish between the indigenous and Roman concepts of ownership.
The Roman law recognised different forms of ownership and the Romans could acquire
ownership in different ways. The earliest form of Roman law only recognised the power of
the head of the household (the paterfamilias) over his wife, children, slaves and cattle.14
Originally, the Romans knew only one type of ownership called dominium ex iure
Quiritium.15 This form of ownership was only available to Roman citizens and could only be
acquired in terms of the ius civile.16 Furthermore, dominium could only be exercised over
corporeal things in commercia and without any defects.17 If a Roman citizen wanted to

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Thomas P, Stoop B and Van der Merwe C The Historical Foundations of South African Private Law
(LexisNexis Durban 2000) 155.
Bernard F The First Year of Roman Law (The Lawbook Exchange Ltd New Jersey 2009) 186.
Section 25(1) of the Constitution of the Republic of South Africa, 1996.
Birks P "The Roman Law Concept of Dominium and the Idea of Absolute Ownership" 1985 Acta
Juridica 1-38, 22.
Van den Bergh H, Slabbert M and Wethmar-Lemmer M Study guide for Foundations of the South
African Law (FLS1502) (Unisa Press Pretoria 2009) 22.
Thomas, Stoop and Van der Merwe The Historical Foundations of South African Private Law 163.
Radin M "Fundamental Concepts of the Roman Law" 1925 California Law Review 207-228, 210.

transfer his civil ownership it could only be done through the two formal modes of
transferring ownership, namely mancipatio or in iure cessio.18
Towards the end of the Republican period, the Romans started to ignore these formal
procedures of transferring ownership. This led to the praetor giving full legal protection to
the transferee and a new form of ownership was born.19 The new form of ownership was
called praetorian or bonitary ownership, and came about in those cases where the Roman
citizens transferred ownership contrary to the provisions of the ius civile.20
Both dominium and praetorian ownership was only open to Roman citizens and was only
applicable in respect of res in commercio. Consequently, the praetor had to provide special
remedies to protect foreigners who had interest in property.21 Furthermore, land in the
provinces was res extra commercio and even Roman citizens could not acquire ownership
thereof. This led to the praetor providing them with an action to protect their right to possess
and use the land.22
The concept of ownership is a bit more difficult when it comes to indigenous law. For a
proper understanding of ownership, one first has to establish the meaning of the concept of
property in the indigenous law.
The most important categories of property in indigenous law are land, cattle and personal
property.23 The individuals right in respect of each of these categories is determined by a
persons social status and position in the group. Land and related resource rights are of
fundamental importance to indigenous people since they constitute the basis of their
economic livelihood and are the sources of their spiritual, cultural and social identity.24
The following categories of property can be distinguished in regard to indigenous law: family
property, household property and personal property.
Similar to the Roman notion of paterfamilias, in an indigenous family the husband is
traditionally the head of the family and the control and administration of the family property
is his responsibility.25 Family property must always be used to the benefit of the whole
family. Depending on the status of a person within the group, he or she will be entitled to a
share in the property.26

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Burdick W The Principles of Roman Law: And Their Relation to Modern Law 3rd ed (The Lawbook
Exchange Ltd New Jersey 2007) 348.
Mousourakis G Fundamentals of Roman Private Law (Springer Berlin 2012) 126.
Thomas, Stoop and Van der Merwe The Historical Foundations of South African Private Law 164.
Van den Bergh, Slabbert and Wethmar-Lemmer Study guide for Foundations of the South African Law
24.
Van den Bergh, Slabbert and Wethmar-Lemmer Study guide for Foundations of the South African Law
24.
Van den Bergh, Slabbert and Wethmar-Lemmer Study guide for Foundations of the South African Law
26.
International Work Group for Indigenous Affairs (IWGIA) "Land Rights and Indigenous Peoples"
http://www.iwgia.org/environment-and-development/land-rights (Date of use: 13 March 2013).
Cornell D and Muvangua N Ubuntu and the Law: African Ideals and Post-Apartheid Jurisprudence
(Fordham University Press The United States of America 2012) 256.
Cornell and Muvangua Ubuntu and the Law 242.

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Household property includes gifts received by a woman, goods earned by her or by
members of the household, lobolo given in respect of a daughter and household things such
as furniture and utensils. The right to use agricultural land or to use a residence may also be
regarded as household property. In the case of household property, no individual right to
property exists and it must be used to the advantage of the women of the specific house
and her children.27
Personal property can be regarded as goods that are only of use and value to a specific
individual and not to a group as a whole.28 Thus, the individual concerned has the exclusive
right to use such property.
The main differences between the Roman and indigenous concept of ownership can be
summarised as follows; firstly indigenous rights to property are seen as social relations and
the rights consequently have no meaning outside the context of the indigenous marriage
and the family29 whilst civil ownership of the Romans was governed by the Roman law (ius
civile) and was legally binding outside the right holder's immediate social context. Secondly,
ownership regarding the indigenous law is seen more as a group right, for example family
property and household property, while the Romans regarded ownership as an individual
right. Thirdly, according to indigenous law it is ones standing in the group that provides
access to land and social relations are more important than legal ownership of the land
itself. Lastly, the power of the paterfamilias was absolute and not limited by the requirement
that he had to administer his property to the benefit of his family as the indigenous head of
the family has to do.
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ASSIGNMENT 03 (EXAM)
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The due date for Assignment 03 is 3 May 2013. For guidelines on the submission of
assignments please refer to page 7 of Tutorial Letter 101.
Question 1
Legal research can broadly be defined as the method and approaches used by lawyers to
solve complex legal problems within a changing and evolving social and legislative setting.
On the basis of this definition we can identify eight elements of research. Briefly discuss any
five of these elements. (5)
Question 2
2.1 Find the case of S v Gerwe 1977 (3) SA 1078 (T). Using appropriate headings,
summarise the case. (10)

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Van den Bergh, Slabbert and Wethmar-Lemmer Study guide for Foundations of the South African Law
26.
Van den Bergh, Slabbert and Wethmar-Lemmer Study guide for Foundations of the South African Law
27.
Du Plessis W "African Indigenous Land Rights in a Private Ownership Paradigm" 2011 Potchefstroom
Electronic Law Journal 44-69, 49.

2.2 In S v Gerwe 1977 (3) SA 1078 (T) the court refers to the Animals Protection Act 71 of
1962. Find the act and quote section 9 of the act verbatim. (2)
2.3 Find any act other than the Animals Protection Act 71 of 1962 or any Animals
Protection Amendment Act that relate to animals and cite the act. (2)
2.4 Find any 3 journal articles in a South African law journal on the topic of animals and
the law and cite them in the prescribed format. (6)
Question 3
Do research on the legalisation of same-sex marriage in South Africa and write a 2 3 page
essay in which you discuss the developments in South African family law in this regard. You
must use at least one text book, one journal article, one act of parliament and one court
case as authority. Your essay must contain footnotes in the prescribed format and a
bibliography. Remember that spelling, grammar and general language usage will be
assessed and will form part of your final mark. (40)
Question 4

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Read the following badly written essay on freedom of expression and answer the questions
that follow:
Freedom of expression
1. What is meant by freedom of expression?
Freedom is being able to do or say what you want, whenever you want to without being
forced by anyone or anything to do so. While on the other hand it is said that expression
relate to " things that people say, write or do in order to show their feelings, opinnions or
ideas"
2. This right forms one of the human rights in the bill of rights and section 16 provides
1) Everyone has the right to freedom of expression which includes
a) the right to the press and other media,
b) freedom to receive or impart information or ideas,
c)freedom of artistic creativity, and
d)academic freedom and freedom of scientific research"
It is clear that when constitution was drafted so many factors that contributed to the
democratical state was taken into consideration, hence the inclusion of section 16 which not
only adds too the contents but plays an important role in the advancement of democracy.
Democracy means government by the people This imply that people will have to place
they're expectation and what they want to see happening in that state or to also criticize
where such promises are not kept.
This is where this right will most probably fit in. and this is why this right forms one of the
important right in our constitution and should be protected. However this right is not without
limits .the same section of the subsection 2 Provides" the right in subsection 16.2 does not
extent toa) propaganda for war,
b) incitement of imminent violence, or
c) advocacy of hatred which is based on race, ethnycity, gender or religion, and that causes
incitement to cause harm.
In S v Mamabolo the question of the protection of this rights and its limitation as opposed to
other human right was addresses as follows:

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The accused was charged of contravening section 10 of the Constitution, whereby is was
alleged that accused's publication of words scandalized the court with the perpose of
bringing the administration of justice into a disrepute.
he legal question that had to be answered was that "whether the trier of fact has been
satisfied with the requisite preponderance depending on the nature of the case, that the
publisher of the offending statement brought about a particular result in the case of the
scandalizing the court that result must have been to bring the administration of justice into
disrepute."?
Findings
"Leave was granted to appeal directly to this court because this case raised constitutional
issue of substance on which a ruling by this court was desirable in the interest of justice".
3. Conclusion
This right just like any rights ,will be limitted in terms of the application of the limitation
clause contained in section 36 of the constitution.
Bibliography: 1. fith edition the Bill of Right Handbook 2005, Juta & Company limited,
Wetton, Author Ian Currie and Johan de Waal 2. S v Mamabolo(E TV and other
intervening), Constitutional Court, 2001, (3) SA 409.
4.1 There are several spelling mistakes in the essay. Find five spelling mistakes, identify
them and write down the correct spelling of the word. (Example: In line 50, atorneys
should be spelled attorneys). (5)
4.2 There are several punctuation errors in the essay. Find five punctuation errors, identify
them and rewrite the whole sentence, using correct punctuation. (Example: The
sentence in line 50 to 51 should read as follows: All prospective attorneys, advocates,
magistrates and judges should be in possession of a LLB degree.) (5)
4.3 The bibliography in line 43 to 45 contains two incorrectly cited sources. Cite these
sources in the correct format. (5)
TOTAL: [80]
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A SERIOUS WARNING!
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We would like to urge you to not procrastinate with Assignment 03. Proper research
takes a lot of time and you consequently need to start well in advance. If you leave the
assignment to the last minute you run the risk of not being able to deal with technical
problems that might arise.
You are welcome to contact us should you have any further questions regarding the
assignments, the feedback on the assignments or the contents of the study material.
Should you happen to be in Pretoria, you are most welcome to make an appointment and
pay us a visit.
We trust that you have enjoyed this module and wish you every success with the exam.
Kind regards,
MR J DE VILLIERS (Module leader)
PROF M SWANEPOEL
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