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HFL1501 Assignment 6 Semester 2 2024 | Due 23 October 2024. All questions answered. Questions
Answer the following questions based on your understanding of the HFL1501 study
material:
QUESTION 1
1.1 Name one South African constitution of which you have learned in this module that
embraced an approach of complete denial of the principle of constitutionalism. (1)
1.2 Provide evidence from the Constitution of the Republic of South Africa, 1996 that
supports the statement that the current South African governmental structure is not
based on parliamentary supremacy. (4)
[5]
QUESTION 2
2.1 Provide one valid example of each of the following classifications of things:
a) a consumable thing (1)
b) a single thing (1)
c) res extra commercium (1)
2.2 Which form of delivery is applicable in the following scenarios?
a) André leases an office complex from Michelle for a period of five years. Two years
after the lease agreement is concluded, Michelle puts the office complex on the
market and André buys it. (1)
b) Orabile buys a 2022 Volkswagen Polo from a second-hand vehicle dealership. Upon
receipt of the purchase price, Juju, an employee of the dealership, hands the keys of
the vehicle to Orabile. (1)
c) Lerato sells her car to Charles, but the parties agree that Lerato will temporarily keep
the car and lease it from Charles for a period of two months before she delivers it to
him. (1)
[6]
QUESTION 3
Read the discussion of the facts provided in the media summary of the Supreme Court of
Appeal case of Special Investigating Unit v Phomella Property Investments (Pty) Ltd and
Another 2023 (5) SA 601 (SCA) that is included at the end of this assessment in Annexure
A. The questions that follow test your understanding of the contents of the HFL1501 Study
Guide. It is not necessary to read the entire judgment, neither are you required to do any
additional research on this case, or on the parties concerned. Read only the discussion
3
provided below and answer the following questions based on your understanding of what
you have learnt in this module:
3.1 Identify a term of the contract between the parties and state whether this term is
suspensive or resolutive in nature. (2)
3.2 Identify a condition of the contract between the parties and state whether this condition
is suspensive or resolutive in nature. (2)
3.3 If you were a judge of appeal hearing this matter, and it came before you on 3 April
2016, would you have agreed with the SIU that the contract was not concluded legally?
Explain your reasoning in sufficient and specific detail, based on your understanding
of the common law as discussed in the HFL1501 study material. Your answer should
not exceed 200 words. (3)
[7]
QUESTION 4
Under modern South African law, unlawful arrest qualifies as a form of iniuria. Name two
fundamental rights, entrenched in Chapter 2 of the Constitution, that may possibly be
infringed if a person is unlawfully arrested. (2)
[2]
QUESTION 5
Answer the following questions by relying on your knowledge of this module and what you
have learnt throughout the semester. In this question, you should answer by giving your own
opinion, but you must be able to motivate each answer. Please write your answer for each
question in full sentences.
5.1 Do you view our legal system differently now that you have completed this module? If
your answer is “yes”, explain what you have changed your mind about, or what you
have learnt. If your answer is “no”, explain which of your earlier ideas has been
confirmed. Limit your answer to 100 words. (3)
5.2 Did you enjoy this module? If your answer is “yes”, explain what you liked best about
the module, the content, or how the module is presented. If you answer “no”, you will
not be penalised for doing so, but you must explain what you disliked, or what the
lecturers could have done differently that would have changed your opinion of the
module. Limit your answer to 60 words. (2)
[5]
TOTAL: [25]
4
ANNEXURE A
Discussion: The Special Investigating Unit v Phomella Property Investments (Pty) Ltd
and Another 2023 (5) SA 601 (SCA)1
Background information on parties relevant to the case
The Department of Public Works (DPW) is a division of the executive authority of the
government of the Republic of South Africa. The authority, mandate and power of this
Department is governed and limited by various sections of and schedules to the Constitution
of the Republic of South Africa, 1996, and several pieces of legislation. For the purposes of
answering this question, you need to understand that the DPW is tasked with procuring
property (either by purchase or lease) for the use of government departments (the state).
The DPW thus concludes agreements on behalf of the state, in line with various legislative
prescriptions and requirements. You do not need to do any further research on the DPW or
its functions and powers to answer the relevant questions.
The Special Investigating Unit (SIU) is an independent investigative organisation, created
in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996. The purpose
of the SIU is to investigate allegations of corruption, malpractice and maladministration in
South African government institutions; the potential mismanagement of state assets and
public money; and any actions that could harm the interests of the public. The intended
outcome of these investigations is to recover any financial losses suffered by state
institutions through court proceedings. You do not need to do any further research on the
SIU or its functions and powers to answer the relevant questions.
Relevant facts of the case
On 3 April 2023, the Supreme Court of Appeal dismissed with costs an appeal from a
judgment of the Gauteng Division of the High Court, Pretoria. The matter before the court
related to the letting and hiring of a building in Pretoria, owned by the first respondent
(Phomella). The building was to be used as office space by the Department of Justice and
Constitutional Development. The DPW had negotiated a contract of letting and hiring with
Phomella, which had been concluded on 22 September 2009. The contract stipulated that
Phomella would lease the building to the DPW for a period of 9 years and 11 months. The
agreement was subject to the condition that, prior to signature, an inspection of the building
was to be conducted by the DPW. The parties signed the contract, but no inspection took
place.
In February 2017, the Special Investigating Unit (the SIU), applied to the High Court for the
contract to be declared unlawful and for an order that Phomella pay to the DPW a sum
exceeding R103 million, which according to the SIU was wasteful expenditure. According to the SIU, an area greater than was needed by the Department of Justice and Constitutional
Development had been leased. This amount was based on the SIU’s calculation of the sum
paid to Phomella for the area of the building that allegedly exceeded the space needed by
the Department. The SIU argued that, if the contract was declared unlawful, Phomella may
not benefit from it and therefore had to repay the sum it was not legally entitled to receive.
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