Previous Exam Questions With Answers

Previous exam questions:
Question 1:
Read the factual situation and identify as many divisions of the
South African law as possible that could potentially apply to
solving the problem.
A portion of the Vaal de Orange River in the Eastern Cape has been
polluted by industrial oil that is pumped into it by a large company known
as OIL Ltd. The residents who make use of the river to obtain water for
household purposes have reported the pollution to the local authorities, as
they are responsible for issuing fines to polluters. However, nothing has
been done about the situation. Many of the residents have contracted
illnesses from ingesting the polluted water, and a 4-year-old child has died
as a result of lead poisoning from lead found in the water. The community
wants to institute a class action for the pollution and the death of the
child, and will use the testimony of the doctor as expert evidence.
Question 2:
Discuss the differences between the following concepts and provide

examples where necessary.
7.1 Adjective law and substantive law. (5)
• SUBSTANTIVE LAW – Define our rights, duties and obligations with each
other, other natural persons and the state in particular circumstances. For
example, Criminal Law makes provision for various crimes and lists the
elements the state must prove to convict a person of a crime. Examples:
Criminal Law, Law of Persons and Law of Delict.
• Therefore, Criminal Law is a substantive branch of the law that describes

in what circumstances a person may be found guilty of murder, rape, theft
and so on.
• ADJECTIVE LAW – (Procedural law) relates to ‘procedure’, by which we

mean the body of rules that governs the way in which cases are brought
to court, conducted and adjudicated. Examples: Law of Evidence, Criminal
Procedure and Civil Procedure.
• For example, the law of Criminal Procedure tells us what will happen to a
person who is accused of committing a crime. But the question of what
makes one’s conduct a crime in a particular situation is a part of
Substantive Law. Therefore, Adjective Law provides the procedure through
which the courts may enforce compliance with the provisions of
Substantive Law.
QUESTION FOR YOU! Would you classify Constitutional Law as

part of substantive law or adjective law.
7.2 Public law and private law. (10)
• Public law – regulates the structural organisation of the state, the
relationship between different organs of state.
• Regulates the legal relationship between the legal subjects and the
state.
• Areas in which the state is always extensively involved and the

relationships tend to be ‘vertical’ – such as Administrative Law and
Criminal Law.
• Private law – regulates the relationship between the subjects of

the state, i.e. between different natural and/or juristic persons,
therefore areas in which individual citizens have ‘horizontal’ legal
relationships with each other such as Law of Contract or Delictual
Law.
• This distinction is becoming increasingly strained, however, mainly

because the modern state is inclined to intervene more and more in
what used to be ‘private’ areas.
• For example, Labour Law – years ago, this area was known as ‘the
law of master and servant’ = simply part of contract law. However,
state intervention has been so extensive that it can be classified as
an area of public and private law.
Question 3:
Read the following set of facts and identify as many divisions of the
South African law as possible that could potentially apply to solving the
problem:
Kabelo works for XBG Steelplant. On 1 May 2012, Kabelo dies from a lung-
related illness. The doctor says that the illness can be attributed to years
of exposure to hazardous gases at the plant. Kabelo’s wife and children
institute a claim for loss of income. Kabelo leaves an estate of R500 000.
He was originally from a traditional community in the Free State where
the rule applies that only sons may inherit from their deceased father.
QUESTION 4:
Does an unborn foetus have legal rights: Christian Lawyers Association of

SA v Minster of Health 1998 (4) SA 1113 (T).
The question of whether the unborn foetus have legal rights is a question
answered by the Law of Persons. The question is: Whether the foetus is a
legal subject and capable of being a holder of rights? This question was
considered in the Christian Lawyers Association-case. Here the court had
to consider the constitutionality of the Choice on Termination of
Pregnancy Act (hereafter Termination-act).1 The court also had to consider
the meaning of section 11 2 of the Constitution of the Republic of South
Africa, 1996 (hereafter the Constitution) and whether the section applies
to a foetus.
Plaintiffs claimed that the Termination-Act was inconsistent with section

11 of the Constitution and therefore unconstitutional and invalid.
The defendants argued that a foetus is not a bearer of rights in terms of

section 11 and that the provisions contained in the section did not apply
in the circumstances set out in the Termination-act.
The court questioned whether the words, everyone or every persons as

set out in section 11 applies to a foetus from the moments of its
1
Act 72 of 1996.
2
Everyone has the right to life.
conception. The court held that this is neither a philosophical, theological
nor medical question. It is a purely legal question.
The court referred to the common law where the foetus was not
recognised as a bearer of rights and responsibilities until born alive. The
court also referred to Van Heerden and Another v Joubert NO and Others 3
where the court analysed the meaning of the word person, and held that
no definition of person includes a foetus but that there was a number of
academics that argued the revers. The legal status of a foetus was
therefore left open in the case. The court in the Van Heerden-case also
referred to the application of the nasciturus fiction.4
The court held that on a proper interpretation of section 11, the word
everyone could not include the unborn foetus. The court further argued
that there was no specific protection afforded the foetus in section 28 of
the Constitution.5 Furthermore, section 28(3) of the Constitution defines a
child as a person under the age of 18 years and age is dependent on birth.
Therefore, there was no express provision in the Constitution affording the
foetus legal personality or protection. The conclusion was unavoidable
that the foetus was not a legal persona. Such a recognition would also
infringe on rights accorded to women by the Constitution including the
right to freedom and security of the person, 6 the right to make decisions
concerning reproduction,7 the right to security and control over their
bodies,8 the right to human dignity, 9 life,10 privacy,11 religion,12 belief and
opinion,13 and health and care.14
The court upheld the exception against the plaintiff’s case.
3
1994 (4) SA 793 (A).
4
Nasciturus pro iam nato habetur quotiens de commodo eius agitur (The unborn is deemed to have
been born to the extent that his own benefits are concerned).
5
Rights of a child.
6
Section 12.
7
Section 12(2)(a).
8
Section 12(2)(b).
9
Section 10.
10
Section 11.
11
Section 14.
12
Section 15.
13
Section 15.
14
Section 27(1)(a).
In this case the court referred extensively to foreign law but not to
International Law. However, South Africa is a signatory to a number of
international treaties dealing with the rights of the child. Do you think this
is correct? Although I have not discussed the foreign law in this question,
it is important for you to read that and understand how the courts utilise
foreign law to develop South African law.

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Previous exam questions:

Discuss the differences between the following concepts and provide

7.1 Adjective law and substantive law. (5)

• Therefore, Criminal Law is a substantive branch of the law that describes

• ADJECTIVE LAW – (Procedural law) relates to ‘procedure’, by which we

QUESTION FOR YOU! Would you classify Constitutional Law as

7.2 Public law and private law. (10)

• Public law – regulates the structural organisation of the state, the

relationship between different organs of state.

• Areas in which the state is always extensively involved and the

• Private law – regulates the relationship between the subjects of

• This distinction is becoming increasingly strained, however, mainly

Does an unborn foetus have legal rights: Christian Lawyers Association of

Plaintiffs claimed that the Termination-Act was inconsistent with section

The defendants argued that a foetus is not a bearer of rights in terms of

The court questioned whether the words, everyone or every persons as

The court upheld the exception against the plaintiff’s case.

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