TOPIC 1 TUTORIALS

TUTORIAL 1
Discuss the importance of foreign law and international law as sources of South African law.
Provide examples. Include in your answer a discussion of the weight that the Constitution of the
Republic of South Africa, 1996 attaches to these sources of law. (10 marks)

Discuss the importance of foreign law and international law as sources of South African law.
Provide examples. Include in your answer a discussion of the weight that the Constitution of the
Republic of South Africa, 1996 attaches to these sources of law.

TUTORIAL 2
Compare and contrast custom and customary law as sources of law. Draw a table to illustrate
your answer. (10 marks)

TUTORIAL 3
Discuss fully the hierarchy and jurisdiction of the courts in South Africa. Draw a diagram to
illustrate the hierarchy. Include in your answer a full discussion of the types of cases that each
court may hear. (20 marks)

TUTORIAL 4

Read the scenario below and answer the questions that follow.

Gena is a US citizen who met and fell in love with Thabo (a Capetonian) while visiting South
Africa in 2007. They married in SA in 2009, and decided to live in Cape Town to be near
Thabo’s family. Two years into their marriage, Gena gave birth to their son Teddy. Gena had
always promised Teddy that one day she would take him to the US to meet her side of the
family. Gena and Thabo were married for 8 years when she had an affair with a US soldier that
she met on Facebook. She decided to return to her home country as she felt extremely
unhappy and home-sick. In terms of the divorce order, both Thabo and Gena share full parental
responsibilities and rights in respect of Teddy, but the order indicated that Teddy was to stay
with Thabo after the divorce. Gena was very upset with the court’s decision and decided to take
Teddy back to the US without Thabo’s knowledge or consent. A few months after the divorce,
on a weekend which Teddy was due to spend with Gena, she arranged that she and Teddy fly
to the US. Thabo could hardly believe it when Gena simply informed him that Teddy would be
staying with her in the US and that Thabo could visit Teddy ‘sometime in the near future’.

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Thabo approaches you for legal advice and wants to know what he is supposed to do in these
circumstances. Following your consultation with Thabo, you do extensive legal research and
find the following sources of law. Indicate what weight to attach to each source of law, giving
reasons for your answers.

(a) The Children’s Act 38 of 2005 which expressly adopts the Hague Convention on
International Child Abduction in section 275 of the Act, which Parliament has
approved/ratified. (2 marks)
(b) A judgment from the US Supreme Court, Berry v Moolman, in which the court found that
it is in the best interest of the child to remain in the custody of the mother after a divorce.
(2 marks)
(c) A Constitutional Court judgment in which the court found that although it is a customary
in society for mothers to be given custody of their children, such a practice might be in
violation of the equality clause in the Constitution since it unfairly discriminates against
fathers. (2 marks)
(d) A newspaper article in which a father outlines his experiences regarding the harmful
effects of parental child abduction. (2 marks)
(e) A customary law principle which states that the child born of marriage forms a part of the
father’s family, and the mother therefore has limited rights over the child.
(2
marks)
(f) A book written by Prof. Sheldon Cooper in 2020 titled Custody Battles Across
Continents. (2
marks)

(Total marks: 12 marks)

(b) A judgment from the US Supreme Court, Berry v Moolman, in which the court found that
it is in the best interest of the child to remain in the custody of the mother after a divorce.
(2 marks)

(c) A Constitutional Court judgment in which the court found that although it is a custom in
society for mothers to be given custody of their children, such a practice might be in
violation of the equality clause in the Constitution since it discriminates against fathers.
(2
marks)

(d) A newspaper article in which a father outlines his experiences regarding the harmful
effects of parental child abduction. (2 marks)

(e) A customary law principle which states that the child born of marriage forms a part of the
father’s family, and the mother therefore has limited right over the child.

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 (2
marks)

(f) A book written by Prof Sheldon Cooper in 2015 titled Custody Battles Across Continents.
(2 marks)
TUTORIAL 5

A full bench of the Pietermaritzburg High Court is hearing a case concerning a constitutional
challenge to the validity of legislation. A person who practices the Rastafarian religion has
approached the court to challenge the validity of the Drugs and Drug Trafficking Act and the
Medicines and Related Substance Control Act, which prohibit the possession and use of
cannabis (dagga), on the basis that these Acts do not grant a religious exemption to
Rastafarians, and as such, they constitute an infringement of their constitutional right to freedom
of religion. The full bench of the Pietermaritzburg High Court is faced with the following sources
of law, all of which are relevant to the case before it.
Explain how much weight the court would give to each of the following sources of law, giving full
reasons for your answer:
(a) A split decision of the Supreme Court of Appeal in 2022, in which three judges concurred
and two judges dissented. (2 marks)
(b) A ratio decidendi of the Pietermaritzburg Magistrates’ Court from 2021. (2 marks)
(c) A full bench decision of the Kimberley High Court in 1999. (2 marks)
(d) A book written by Ms Muriel Mushariwa in 2008, which conflicts with the views
expressed in an article written by Prof. Cora Hoexter in 2012.
(2 marks)
(e) A decision of two judges in the Bloemfontein High Court in 2015. (2 marks)
(f) An obiter dictum of the Constitutional Court of South Africa in 2022. (2 marks)
(g) A full bench decision from the Durban High Court in 2002. (2 marks)
(Total marks: 14 marks)

TUTORIAL 6

In 2023, following reports of tax evasion by informal traders and complaints from registered
businesses about unfair competition, Parliament passed the Small Business Registration Act
4 of 2023 to ensure that all commercial activities are properly regulated and taxed.

Section 5 of the Act states: “Every person conducting business must register with the
Companies and Intellectual Property Commission (CIPC).”

The Act’s preamble declares that the background to the Act is: “To ensure proper regulation of
commercial enterprises and fair competition in the marketplace.”

During parliamentary debates, the Minister of Small Business Development stated: “We must
close the loopholes that allow unregistered commercial operators to avoid tax obligations and
undermine legitimate registered businesses.”

The Incident:

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On 10 June 2024, Lisa Mokoena, a BCom Accounting graduate, received a compliance notice
from CIPC demanding that she register her activities under section 5. Lisa operates from her
home where she:

 Prepares tax returns for friends and neighbours.

Lisa argues she is not “conducting business”, as she only helps people occasionally and does
not have a formal business structure. CIPC maintains that her regular income-generating
activities constitute business that must be registered.

You are a magistrate in the Johannesburg Magistrates’ Court hearing Lisa’s challenge to the
compliance notice. You must determine whether Lisa is required to register her activities under
section 5 of the Small Business Registration Act 4 of 2023? Your answer must make explain
and apply the relevant principles on the interpretation of statutes/legislation.
(10 marks)

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