Tutorial 2 -IURX 171

Evelyn Makanza 55947228

Question 1:

1.1) The set of laws controlling behaviour that are accepted by the
public and upheld by the government. Laws dictate what people
should do in a well-ordered community and what happens if they
do not follow the rules. Laws can be enforced, penalize behaviour
that is deemed inappropriate, and reward behaviour that is
accepted by society. Most people concur that laws have to do
with how society is ordered and that they are prescriptive norms
rather than descriptive or scientific principles. Beyond this
consensus, there are many various perspectives on what
constitutes law, particularly in a multicultural society like South
Africa, which is home to several ethnic, religious, and cultural
groups.

1.2) The concept of a "social contract," according to which the people

of a community give their leaders permission to organize the
group in order to secure its survival, is also connected to law. In
return for giving up their limitless

These leaders provide them with the assurance of safety and

order in a natural condition. Some intellectuals contend that we
cannot discuss civilization and the law until such a society is
established. Law plays a crucial role in our daily lives. Indeed, we
hardly even notice it anymore as we have gotten so accustomed
to "living with the law" and being governed by it.

1.3) The concept of a "social contract," whereby members of a

community give their leaders permission to organize the
organization to secure its survival. In return for giving up their
limitless
These leaders provide them with the assurance of safety and order in
a natural condition. Some intellectuals contend that we cannot discuss
civilization and the law until such a society is established.

1.4) Legal positivism is the belief that law is something that was
invented for humans by humans and that the rules of the law are
posited by humans/human-made. Natural law, on the other hand,
is the belief that law human laws should be judged against a
higher standard of morality, it states that human laws that fall
short of this standard should not be considered laws at all.
1.5) Legal certainty is a core principle of law, which believes that laws
should be consistent, clear, and predictable in order for people to
rely on them. Achieving legal certainty is considered an illusion,
because laws are complex and open to interpretation which
therefore makes it impossible to achieve absolute legal certainty.
1.6) Law and justice are interrelated but distinct concepts. Law
provides the framework of regulations, rules, and procedures
while justice is the concept of equality and fairness which ensures
that the rules, regulations, and procedures are followed correctly
to ensure fairness is achieved.
1.7) Individual morals are personal principles that someone has which
guide their behaviour and what they believe in. Community
morals are values that a group of people share and the behaviour
they expect from one another.
1.8) There exists a connection between religion and law as well, as
religious beliefs, practices, and regulations frequently influence
the law. Occasionally, religion is even invoked to support and
defend a certain legal framework. Morality, as defined by
theology, is a collection of ideas and guidelines on what is good or
bad, right, or wrong, and permitted or prohibited. Social groups or
society create the moral standards. Additionally, moral standards
show people the required behaviour and the repercussions of not
adhering to it, including moral penalties distinct from legal ones,
much like legal standards do. Because justice and law are
complimentary, they are dependent on one another; justice
without law can lead to chaos, and law without justice can lead to
oppression. Together, they establish a framework that safeguards
each person's fundamental rights and dignity while also upholding
social standards. By means of judicial interpretation, legal
reforms, and upholding the rule of law, communities can
consistently endeavour to maintain a fair and peaceful world by
balancing the scales of justice.

Question 2:

1a) Sunali Pillay returned to school with a nose stud after the spring
holiday. The nose stud was apart of her Hindu/Indian culture, which was
her religious right and responsibility to uphold. The school had a rule
against the wearing of jewellery which was a form of discrimination as it
disregarded certain groups of learners and stopped them from
expressing their cultural and religious identities freely.

b) The school rules stated that jewellery was not allowed. However, this
was wrong as it was not inclusive of learners who need to wear
jewellery because of religious reasons. The code of conduct was ruled to
be discriminatory and the school was ordered to amend it in order to
accommodate religious and cultural practices.

c) The prohibition of unfair discrimination on the basis of culture or

religion and is a religious and moral norm. As it deals with the
representation of religions and cultures. This therefore means that it is
not right to discriminate against a person because of their religion or
culture even if the discrimination falls under a legal principle or law.

2) The first time the court looked at the case, they did not fid the school
guilty of anything. The second time they looked at the case is when
they said the school was guilty of unfair discrimination. This means the
court only looked at the case in depth the second time around as they
did not take it seriously the first time. Some laws in South Africa are
limiting as stop people from fully exercising their religious and cultural
rights. This means not all religious and cultural rights can be protected
at all times because of limitations that unfortunately lie within the law.

3) Morality and religion can reinforce objectives of the law as there are
some principles in morality and religion that are similar to rules of law.
To exemplify honesty is something that is taken seriously in religion,
morally as well as in the law. However, there are certain instances
where morality and religion go against the law. To exemplify, morally
and religiously Euthanasia or assisted suicide is accepted. However, in
many countries, it is illegal.

Question 3:

3.1.1) In this situation a, a legal positivist would agree with Jonathan

being arrested as he was going over the speed limit which is illegal.

3.1.2) A natural lawyer would argue that he had the right to go over the
speed limit as his wife was in pain and labour and he was rushing her to
the hospital in order to relieve her of the pain as well as protect their
future child.

3.2.1) A Marxist would argue that Abigail was unfairly treated as she is
a low class pregnant woman. The father of her child is not willing to
support her needs which puts her at a disadvantage.

3.2.2) A feminist would argue that Abigail is being deprived of her

reproductive rights. As well as the fact that as a woman she gets paid
significantly less which is a contributing factor to her lifestyle this is the
reason why her car does not work properly. The father of the child is out
of the picture which is unfair on her.
3.3) The other 4 functions of law in society are:

 It ensures justice and order is maintained in the community to

make people with different interests able to live with each other.
 Establishing peace, certainty, and security to enable people to
make commitments that are long term.
 A society without law would be chaotic.
 To regulate activities that are done socially and economically.

Question 4:

4.1) South African legal system is widely based on roman dutch law.
This is because in the seventeenth century Dutch settlers began to
come to South Africa and implement their own laws. When the British
came to the cape in 1806,it was decided that the roman dutch system
would remain as they began to colonise the country. Roman-Dutch law
did not always meet the requirements for a modern society that
developed during the 19th century. Therefore, Roman-Dutch law in the
cape colony had a strong influence of English law. As a result, today
South Africa has a hybrid legal system which has a mixture of English
common law, Roman-Dutch law and customary law.

4.2) African customary law is made up of traditions and norms that

have been accepted over the years, indicating a centuries-long legal
history. African customary law also developed as a result of social,
cultural, and religious influences. Factors - sense of totality, time and
traditional beliefs regarding the Supreme Being and the role of the
ancestors.

4.3) Internationally, South African law was influenced by Dutch settlers

through Dutch colonial law , British colonial law as well as slavery and
Apartheid.

4.4) Before colonialism, Indigenous African Kingdoms had their own

customary laws and traditions. When European settlers arrived in South
Africa they implemented laws which have had a lasting impact on the
development of South African law.

4.5) South Africa has a range of religious operating systems as a result

of our diverse multi-religious community. There are various religious
communities that include Muslim, Christian, Hindu and Jewish. These
communities have their own legal systems which deal with matters like
divorce, inheritance , and marriage.