UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 1 of 7
DURATION: 2 HOURS TOTAL MARKS: 70
INTERNAL EXAMINER : DR A. STRODE
INDEPENDENT MODERATOR : MS J. BADUL
INSTRUCTIONS
1. This paper consists of SEVEN (7) pages. Please make sure you have
all the pages.
2. All questions are compulsory.
3. Students are requested, in their own interests, to write legibly.
4. This paper consists of TEN (10) multiple choice questions, ONE (1)
short answer question and TWO (2) problem type questions.
Continued/…
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 2 of 7
SECTION A.
Multiple-Choice Questions
Students must answer all the MCQ questions in their answer books. Each
answer is worth two (2) marks). There is no negative marking. Read the
instructions for each individual question carefully.
1. Choose the correct answer or answers:
The SABC wishes to come onto campus to film student protests at UKZN.
However, campus security do not want to allow them to do so. Consequently,
they force the film crew to leave and state that they can only film the protests
from public spaces such as the roads running past campus. Has the SABC’s
human right to freedom of expression been violated?
(i) Yes. Everyone has human rights.
(ii) No. The SABC is not a human and, consequently, it is not entitled to
human rights.
(iii) Yes. The SABC is an organ of state and organs of state are protected by
human rights.
(iv) No. Only the camera crew in their individual or collective capacity are
protected by human rights.
2. Is the following statement true or false?
The right to emergency treatment guaranteed in section 27(3) of the
Constitution of the Republic of South Africa, 1996, is a right that must be
progressively realised.
TRUE or FALSE
3. Choose the correct answer or answers:
The protection of human rights through international law is important as it:
(i) Accepts that every human has certain universal and fundamental rights
which transcend culture and religion and domestic legal systems.
(ii) Ensures that action can be taken against states which are not protecting
human rights in domestic law.
(iii) Enables states to promote their autonomy and set their own human rights
norms.
Continued/…
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 3 of 7
(iv) Means that military action can be taken against states not complying with
human rights norms.
4. Choose the incorrect statement or statements:
In terms of section 9 of the Constitution of the Republic of South Africa, 1996,
the listed ground of sex discrimination can be used when there is an allegation
that:
(i) Two gay men are being discriminated against.
(ii) Women are being treated unfairly because of social and cultural
stereotypes.
(iii) Women are being treated unfairly because they may be away from the
workplace at inconvenient times when they take maternity leave.
(iv) A transgender person is dismissed from their job.
5. Is the following statement true or false?
The constitutional remedy of ‘reading-in’ occurs when a judge re-writes the
entire provision in the offending legislation to ensure that it becomes consistent
with the Constitution.
TRUE or FALSE
6. Is the following statement true or false?
Section 8 of the Constitution of the Republic of South Africa, 1996, always
applies to relationships between private individuals.
TRUE or FALSE
7. Identify the incorrect statement or statements:
The Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment defines torture as: ‘any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, where such pain
or suffering is inflicted by or at the instigation of or with the acquiescence of a
public official or other person acting in an official capacity. It does not include
pain or suffering from, inherent in or incidental to lawful sanctions’.
In terms of this definition:
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UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 4 of 7
(i) Forcing hunger strikers to eat is a form of torture.
(ii) Using emotional blackmail is a form of torture.
(iii) A whipping, lawfully imposed by a court, is a form of torture.
(iv) The death penalty, lawfully imposed by a court, is a form of torture.
8. Is the following statement true or false?
The right to a clean environment is a civil and political right.
TRUE or FALSE
9. Is the following statement true or false?
The direct application of Bill of Rights refers to the principle that the state is
always bound by the Bill of Rights.
TRUE or FALSE
10. Identify the incorrect statement or statements:
(i) The rights in section 27(1) and (2) of the Constitution of the Republic of
South Africa, 1996, can be applied horizontally against private hospitals.
(ii) Arrested, accused and detained persons have the right to basic health
care services in terms of section 35 of the Constitution of the Republic of
South Africa, 1996.
(iii) Arrested, accused and detained persons have the right to adequate
health care services in terms of section 35 of the Constitution of the
Republic of South Africa, 1996.
(iv) Children have the right to basic health care services in terms of section
28(1) of the Constitution of the Republic of South Africa, 1996.
[TOTAL SECTION A: 20 MARKS]
Continued/…
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 5 of 7
SECTION B
Short Answer Question
Provide a comprehensive definition of human rights and describe the key
characteristics of human rights.
[TOTAL SECTION B: 10 MARKS]
SECTION C
Problem Type Question on the Promotion of Equality and
Prevention of Unfair Discrimination Act
Jane and Thandi are in a long term relationship, but are not married. After working
hard all year they decided that they would like to spend a part of their December
vacation in Sodwana Bay, which is on the north coast of KwaZulu-Natal. Thandi then
phoned the Sodwana Lodge and booked a double room for 10 days. To confirm her
booking she also paid a deposit of R 10 000. A few weeks later Thandi called the
Lodge again to up-grade their room to the honeymoon suite. She had just had been
told that her application for promotion to the position of partner at her law firm had
been successful. During the telephone conversation the owner of the Lodge became
cold and disapproving after realising that Thandi’s partner was another woman. A
day later Thandi received an e-mail informing her that her booking had been
cancelled and her deposit would be returned. In the email, the owners of the Lodge
explained that they were members of the Christian faith and that as a part of their
faith they believed that same sex relations were sinful. This meant, the owners
explained further, that it would be against their religious beliefs to allow a same sex
couple to say in their Lodge. Thandi and Jane are outraged. They approach you, a
prominent human rights lawyer in Pietermaritzburg, to represent them. They want to
know whether the Sodwana Lodge has unfairly discriminated against them on the
grounds of sexual orientation in terms of PEPUDA. Advise them. In your answer you
must discuss (a) whether discrimination has occurred in this instance and (b)
whether this discrimination is unfair
[TOTAL SECTION C: 20 MARKS]
Continued/…
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 6 of 7
SECTION D:
Problem Type Question on the Bill of Rights
Mr Cough Continuously is a 37 year old male who has been diagnosed with what is
known as XDR-TB, a highly infectious and dangerous disease with a high mortality
(death) rate. He is married with four children and is the sole breadwinner for his
family. On 12 July 2016 the Minister of Health applied to the High Court for a
directive pursuant to the provisions of 7A of the National Health Act 61 of 2003 (this
is a fictitious provision, but you must presume it exists for the purposes of this
question) ordering Mr Cough Continuously to be admitted to and remain in isolation
at the Brooklyn Chest Hospital in Cape Town and to undergo any medical
examination and mandatory treatment that may be necessary. Section 7A provides
that:
‘Any user of health care services may, without their informed consent, be:
(a) Compelled to undertake a medical examination;
(b) Involuntarily committed to any health facility; and
(c) Subjected to mandatory treatment or placed in isolation’.
Such actions, however, may only be authorised by the Minister of Health who is
required in terms of section 7B to issue a notice of such compulsory treatment if ‘a
user of the health service poses a health risk to themselves or others’.
The Brooklyn Chest Hospital specialises in the treatment of tuberculosis and is
staffed by specialist medical practitioners skilled in the treatment of XDR-TB. It is
also the only dedicated public-health facility in Cape Town that treats XDR-TB
patients. The treatment lasts for between 18 and 24 months at a total cost of
approximately R 63 000 per patient.
Mr Cough Continuously initially submitted himself voluntarily for treatment at the
Hospital for the more than nine months. During this time, he spent numerous days
away from his family and spent almost all of his life savings on his medical costs.
However, as his condition deteriorated and his medical costs escalated, Mr Cough
Continuously began to realise that the end might be drawing closer and he soon
began to abscond from the facility to spend time with his family as he feared that in
his absence his wife may be having an affair with their neighbour.
Continued/…
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG CAMPUS
SCHOOL OF LAW: DECEMBER 2016 MAIN EXAMINATION
MODULE AND CODE: HUMAN RIGHTS (LAWP2HR / LAWS2HR)
PART- TIME & FULL-TIME
Page 7 of 7
Furthermore, given the loss of family income, his 16 year old daughter has dropped
out of school and taken up a waitressing position at a local restaurant. Mr Cough
Continuously feels strongly that she ought to return to school, however, this can only
happen if he returns home and starts work. Mr Cough Continuously approaches the
UCT Campus Law Clinic for assistance. The Campus Law Clinic writes to the
Department of Health which replies as follows:
‘Involuntary detention in these circumstances is necessary as patients with XDR-TB
pose a risk not only to themselves, and their families, but the community at large.
To allow them to return home before they have finished their treatment creates more
resistant strains of TB and could result in a public health disaster’.
Mr Cough Continuously would like to take legal action against the Department and
has turned to you for advice. He wants you to answer the following questions:
(i) First, Mr Cough Continuously wants to know whether any of his constitutional
rights have been violated by his involuntary detention.
[2 marks]
(ii) Second, Mr Cough Continuously wants to know whether this matter requires
the direct or indirect application of the Bill of Rights. Refer to case law.
[5 marks]
(iii) Third, if any of his rights have been violated, Mr Cough Continuously wants to
know whether such a violation may be justified in terms of section 36 of the
Constitution.
[10 marks]
(iv) Finally, if any of his rights have been unjustifiably violated, Mr Cough
Continuously wants to know whether reading-in would be an appropriate
remedy in this matter. Justify your answer.
[3 marks]
[TOTAL SECTION D: 20 MARKS]
TOTAL FOR PAPER: 70 MARKS