CONFIDENTIAL

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CLA1501
October/November 2021

UNIVERSITY EXAMINATIONS

October / November 2021

CLA1501

Commercial Law

80 Marks
24 Hours

First examiner: Mrs Z Taljaard

Second examiner: Adv N Hlongwane

This paper consists of 10 pages.

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

This paper consists of 10 pages.

Instructions:

Please read the below very carefully to ensure you comply with all instructions.
Be reminded to tick the Honour Pledge (Honesty Declaration) before you submit.
Read the instructions on the platform and specific submission tool carefully.

We wish you the best for your examination!

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING THE EXAMINATION QUESTIONS.

1. The examination question paper counts 80 marks.

2. It consists of 3 written questions. Answer ALL of the questions.

3. The duration of the examination is 24 hours. Your answers must be submitted via
myExams platform on or before 10 November 2021 (South African Standard Time).

4. This is an open-book examination. You may consult your prescribed study material
during the examination.

5. This examination is not proctored (or invigilated).

6. SUBMISSION OF YOUR EXAMINATION ANSWER FILE

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Your answer to this portfolio or take-home examination must be submitted online on the
myExams platform.

6.1 Access myExams at https://myexams.ac.za/portal and login using your student

number and myUnisa password.

6.2 Go to your specific examination site through the site tabs on the horizontal navigation
bar. Also check your Sites link in the top right-hand corner if you do not find the site
on the horizontal navigation bar.

6.3 Once the site has loaded, select the eAssessment tool from the left-navigation menu

6.4 The list of all available assessments in the site will be displayed.

6.5 Select the assessment for which you want to upload the examination answer file by
clicking on the title of the assessment in the list. A new page will open.

6.6 Submit your examination answer file.

You are allowed to attach ONE PDF file.

Under Attachments, click the Choose File button to browse for a file on your
device.
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Once you have attached your answer file, the name of the file, as well as the file
size and upload time stamp will be displayed under Attachments.

Tip: You may click Remove to remove the attachment if you selected the wrong
file.

Tip: Select the honour pledge. Students MUST check the honour pledge before
submission if it appears on the screen. A student will not be able to submit the
assessment if he/she did not check the honour pledge.

When you are ready and satisfied that you have correct answer file, click the
Submit button to complete your assessment submission.

Tip: If you are not yet ready to submit, you may click Preview to preview the
submission, or Save Draft to save your submission and submit it later. Click
Cancel to exit the assessment without saving or submitting.

You are advised to preview your submission to ensure that it is legible and that the
correct answer file has been uploaded.

Time permitting, you will be allowed to resubmit your exam file twice.

6.7 Submission confirmation

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Once you have submitted your assessment, you will receive a confirmation message
on the screen. Make a screen copy for your records. In addition, if you have opted to
receive email notifications, you will also receive an email confirmation of your
submission.

7. The cover page to your portfolio exam must include your name, student number and
the module code.

8. It is preferred that your portfolio exam is typed. However, handwritten submissions

will also be accepted. If the portfolio exam is typed, the maximum length is 12 pages
(which includes the cover page and the bibliography). If the portfolio exam is
handwritten, the maximum length is 16 pages (which includes the cover page and
the bibliography).

9. Whether your answers are typed or handwritten, your submission on the myExams
platform must be made in the form of one PDF document.

9.1 The exam answer file that you submit must not be password protected or uploaded
as a “read only” file.

9.2 Your examination answer file will not be marked if:

9.2.1 you send your examination answer file via email.

9.2.2 you submit the incorrect examination answer file.
9.2.3 you submit your exam answer file on an unofficial examination platform (including
the invigilator cellphone application).
9.2.4 you submit your examination answer file in the incorrect file format.
9.2.5 you submit a password-protected document.
9.2.6 you submit your examination answer file late.

9.3 The mark awarded for an incomplete examination answer file submission will be your
final mark. You will not be allowed to resubmit after the scheduled closing date and
time of the exam.

9.4 The mark awarded for an illegible examination answer file submission will be your
final mark. You will not be allowed to resubmit after the scheduled closing date and
time of the exam.

10. If your answers are typed, ensure that the following requirements are adhered to.
Items 9.3-9.6 applies to written assignments as well.

10.1 The text must be typed in Arial font, size 12 with single line spacing within the
paragraph, and double line spacing after the paragraph.

10.2 The text must be justified.

10.3 All of the pages must be numbered in the right-hand corner at the bottom of the page.

10.4 All margins must be 2.5cm, but the left margin must be 3cm.

10.5 South African English and not American English should be used. For example, the
correct spelling is “Labour” and not “Labor”.
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10.6 Do not use abbreviations or SMS language.

10.7 All quotes that are two lines long (or less), must form part of the main text, be written
in italics, and be bracketed by quotation marks. Where a quotation is longer than two
lines, it must be typed in a separate paragraph in italics in size 11 font and must be
indented by 1 cm. No quotation marks are required when the quotations stand alone.
Use quotations very sparingly. In this take-home exam, a maximum of 5% of the text
may be quoted.

11. When answering the take-home exam questions, remember that an open-book exam
is a test at a higher level than the usual type of exam, where memory is tested as
much as insight. In an open-book exam, you need not memorise any information.
You are expected to prove that you can use information, rather than merely repeat
it. In brief, what is being tested is factual knowledge, understanding and the correct
application thereof, not memory skills. For this reason, you do not earn marks by
merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other
provisions are applicable in a specific context. You are expected to identify precisely
what information applies, and then explain why you think so.

11.1 Also, because you have the guide available when answering questions, we do not
give marks for direct quotations from the guide. You are therefore assessed on your
level of understanding of the legal principles by looking at how well you applied the
principles to the questions.

11.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR
ANY OTHER SOURCE).

12. The arguments that you make must be logical, well-structured and substantiated by
all of the relevant legal principles. You are given 24 hours (not 2 hours) to complete
the take-home exam. Use the time given wisely.

12.1 Ensure that you give reasons for each answer. Substantiate your answers by
referring to ALL of the relevant authorities, e.g. sections from relevant legislation
and/or court cases in the text or in your footnotes.

12.2 You are required to have read and summarised the prescribed cases yourself. The
summaries in the Study Guide are not sufficient for this exam. When using case law
to support your answer, please include complete references to the relevant cases in
your footnotes. This means that you must not only include the name of the case but
also the exact page and section and/or paragraph where the information can be
found. The same applies to articles and books used.

12.3 A number of students lose marks because they do not approach problem-type
questions correctly. When answering such questions, it is important to first clarify for
yourself the area of work where the answer must be sought. Once you have done
this, set out the relevant legal principles. Deal only with those principles that relate
to the given facts. Next, apply these principles to the facts. This is where most of the
students lose marks - they set out the law in some detail, but then do not illustrate
how it applies to the factual situation they have been asked to solve. Finally, state
your conclusion.
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13. By ticking the Honour Pledge, you confirm that you have read (i) the
University’s Policy on Copyright Infringement and Plagiarism and the Student
Disciplinary Code, which are both available on
myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-
rules.

13.1 Students suspected of dishonest conduct during the examination will be subjected
to disciplinary processes. UNISA has zero tolerance for plagiarism and/or any other
forms of academic dishonesty.

PLEASE NOTE:

If you experience technical problems of any kind on the day(s) of the examination (including
network or load shedding challenges) and your examination answers are not submitted by
the cut-off time, please apply online for an aegrotat exam within 3 days of the examination
session. Include supporting documentation with your application.

Students experiencing technical challenges may contact the SCSC on 080 000 1870 or
email Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact
numbers.
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QUESTION 1

1.1 The courts in the Republic of South Africa are divided into superior and lower
courts. Name three types of superior courts and name one type of lower court.
(4)

1.2 Benson has diabetes. He has to carefully control his diet as he cannot consume
any sugary foods. When he does, his sugar insulin level spikes and could cause
him to go into a diabetic coma. His family is aware of this and has always helped
and cared for him. His sister, Noma, is however very jealous of all the attention
her mother has always bestowed upon her brother over the years.

One day, after a fight with her brother, Noma is particularly upset. She decides
to replace the sugar-free cold drink in the fridge with a sugary soft drink. She
pours Benson a glass of the sugary cold drink, adds a few extra spoons of sugar
as well and takes it to her brother to drink. As a result, Benson goes into a
diabetic coma and needs to be hospitalised causing him considerable medical
expenses.

Explain whether Noma’s actions could be considered to be a delict and whether

she would be held accountable on that basis? In coming to your conclusion, list
the requirements of a delict and apply each requirement to the set of facts to
determine whether Noma committed a delict in these circumstances.
(10)

1.3 One of the remedies in the case of a delict is the payment of damages for three
kinds of proven loss. Name the type of action, and what you can claim
thereunder. (6)

[Total: 20 marks]
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QUESTION 2

2.1 Themba gets invited to his best friend’s wedding. He asks Kora to be his date
for the evening. While enjoying the wedding and festive spirit, and because they
enjoy the evening together, Themba says to Kora, “why don’t we get married
next weekend?”. They go their separate ways after the wedding, but the next
Saturday Kora shows up to Themba’s home in a white dress with her priest and
demands to get married. Discuss the requirements for the offer and acceptance
of a contract, and whether the facts given give rise to the formation of a “valid”
or “invalid” contract. (6)

2.2 Explain the difference between “duress” and “undue influence” and provide an
example of each. (6)

2.3 Eric and Martin attend a 21st birthday party. They consume too much alcohol,
smoke marijuana and become severely intoxicated and drugged. Later that
evening, Hamilton tells them that he is selling his apartment for R 500 000. Eric
and Martin decide that they want to purchase the apartment, and on a napkin,
the three parties sign a purchase agreement. Discuss whether a valid contract
was formed. (10)

2.4 With reference to the consequences of illegality, discuss those circumstances

when a contract could be considered unlawful or illegal. (4)

2.5 Explain the difference between the concepts of the “Ex turpi causa" rule and the
"Par delictum” rule. (4)

[Total: 30 marks]
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QUESTION 3

3.1 Thabo buys a motor vehicle from Mohammed General Motors on hire purchase.
In terms of the agreement, Thabo must repay the purchase price and interest
in instalments, over a period of 56 months. Thabo obtains a loan from Freedom
Bank to finance the transaction. Freedom Bank pays Mohammed General
Motors the cash price of the vehicle and Mohammed General Motors transfers
their rights in terms of hire purchase agreement to Freedom Bank.
Consequently, Thabo must pay the purchase price, and interest, to Freedom
Bank. Explain the legal principle that is applicable in this set of facts. (6)

3.2 Explain repudiation as a form of breach of contract. Refer to the definition, the
requirements as well as the consequences of repudiation. (10)

3.3 The Blue Baboon is a television character that is extremely popular with young
children. Fiona, who owns a toy shop, orders fifty Blue Baboon outfits from
Fantasy Clothing at R50 per suit. The parties agree that the suits will be
delivered on 15 November. Fiona plans to sell the suits at R120 per suit. At
least 100 customers express interest in buying suits for their children for New
Year’s parties, but Fiona cannot supply the suits to her customers at the agreed
date as the suits are only delivered on 15 January. The reason for the late
delivery is that Fantasy Clothing took on more orders than they could cope with.
By January when Fantasy Clothing could deliver the suits, Edmund the Weasel
has replaced the Blue Baboon as television’s favourite children’s character and
the market for Blue Baboon suits has diminished considerably. The majority of
Fiona’s customers have withdrawn their orders for the Blue Baboon suits.

(a) Explain the type of breach that Fantasy Clothing has committed. (2)
(b) Discuss the remedy available to Fiona. (6)

3.4 Indicate whether the following statement is “valid” or “invalid” and provide a
reason for your answer: “A rectification clause provides that a contract may not
be varied by an oral agreement. Any alteration in terms of the contract must be
made in terms of a written amendment.” (4)
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3.5 Tumi wants to purchase a stand from Teboho only if the beach is visible from
the stand. Teboho is not sure whether the beach is visible from the stand. They
agree that Tumi will purchase the stand if the beach is visible from the stand.
Explain the applicable contractual term and motivate your answer. (2)

[Total: 30 marks]

[GRAND TOTAL: 80 MARKS]

First Examiner: Mrs Z Taljaard

Second Examiner: Adv. N Hlongwane

©
UNISA 2021