HIGHER EDUCATION PROGRAMMES
MEMORANDUM
Academic Year 2025: January - June
Formative Assessment 1: Applied Research for Law
Practitioners (HRML330-1)
NQF Level, Credits: 7, 8
Weighting: 20%
Assessment Type: Short & Long Essay Questions
Educator: Dr Ernst Heydenrych
Examiners: Samantha Barkley and Gadiël
Robbertze
Due Date: 27 March 2025
Total: 100 Marks
Instructions:
• This paper consists of seven (7) questions.
• It is based on Units 1- 4 of your prescribed courseware.
• All questions are compulsory.
• Your assessment must be typed using:
o Font: Arial
o Font size: 12
o Line spacing: 1.5
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The following Learning Outcomes are assessed in this assessment:
Unit 1:
• Apply the FIRAC/IRAC method to solve legal problems and analyse
hypothetical legal scenarios.
• Explain the fundamental concepts and principles of legal writing and its
importance in legal practice.
• Analyse case studies to identify key legal issues and evaluate the
effectiveness of legal strategies used.
Unit 2:
• Identify and describe the types of books and their roles in legal research.
• Evaluate the reliability and authority of different sources, including theses,
dissertations, and internet resources.
• Apply appropriate research techniques to find and use legal dictionaries and
encyclopaedias
• Analyse and summarise legal information from various sources, including
electronic databases and open-access repositories.
Unit 3:
• Understand the fundamental principles and methodologies of legislative
interpretation.
• Identify and describe challenges associated with legal language and drafting
practices.
Unit 4:
• Explain the process of how legislation overrides common law, using specific
examples and statutory provisions such as Section 2(10) of the Consumer
Protection Act.
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Question 1 (10 marks)
Read the case of the Minister of Home Affairs and Others v Watchenuka and Others
[2004] 1 All SA 21 (SCA) and apply the FIRAC method to summarise the case.
Note to students:
• The case is accessible on SAFLII. The case can be accessed using the
following link: https://www.saflii.org/za/cases/ZASCA/2003/142.html.
• Two (2) marks should be awarded for the facts, issue, rule of law, application
and conclusion, respectively.
Notes to graders:
• Award a maximum of ten (10) marks for this question.
• Two (2) marks should be awarded for the facts, issue, rule of law, application
and conclusion, respectively.
• Graders must use discretion as students will answer this question in their own
words.
• An example of how to apply FIRAC to the abovementioned case is set out in
the memorandum below to use as a guide in awarding marks for this question.
Answer: Unit 1 (Sections 3–4 of the Academic Legal Writing Guide, and the case
of Minister of Home Affairs and Others v Watchenuka and Others [2004] 1 All SA
21 (SCA)).
Facts:
• The respondents in this matter were asylum seekers prohibited from working or
studying in South Africa under a blanket policy issued by the Department of
Home Affairs. ✔ The respondents challenged the policy, arguing that it violated
their constitutional rights to freedom and dignity. ✔
Issue:
• Does the prohibition of employment and study for asylum seekers violate their
constitutional rights, ✔ particularly the right to dignity? ✔
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Rule of Law:
• The constitutional rights to human dignity and freedom, as enshrined in the Bill
of Rights (Sections 10 and 12 of the Constitution), ✔ must be balanced against
legitimate governmental interests, such as regulating immigration. ✔
Application:
• The court examined whether the blanket prohibition was reasonable and
justifiable in terms of section 36 of the Constitution. ✔
• The court found that work and study are integral to the realisation of dignity,
especially for asylum seekers who have no other means of support. ✔
Conclusion:
• The court ruled that the blanket prohibition on employment and study for asylum
seekers was unconstitutional, ✔ as it unjustifiably infringed on their rights to
dignity and freedom. ✔
The following Learning Outcomes are assessed in this question:
• Apply the FIRAC/IRAC method to solve legal problems and analyse
hypothetical legal scenarios.
• Analyse case studies to identify key legal issues and evaluate the
effectiveness of legal strategies used.
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Question 2 (8 marks)
Read each of the excerpts below and identify the following:
a) the most appropriate audience to whom the excerpt may be directed;
b) the purpose of each excerpt;
c) the structure of the excerpt; and
d) the language used in the excerpt.
2.1. (4 marks)
Dear X,
We refer you to your query regarding the termination of your fixed-term employment
contract.
Based on the facts you provided, it appears that your employer’s early termination
of the contract may constitute an unfair dismissal under section 186(1)(b) of the
Labour Relations Act 66 of 1995. Unless your contract contains a valid clause
permitting early termination or the employer can justify their actions based on
misconduct, incapacity, or operational requirements, the termination is likely
unlawful.
To address this, you may refer the dispute to the CCMA within 30 days of the
dismissal. If successful, you could be entitled to compensation, reinstatement, or
enforcement of the contract’s terms.
We recommend:
• Providing us with a copy of your employment contract for review.
• Compiling all correspondence or evidence related to the dismissal.
• Preparing to initiate proceedings at the CCMA to protect your rights.
Please let us know how you would like to proceed.
Yours sincerely,
Bart Simpson Attorneys Inc.
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Answer: Unit 1 (Handout, Page 7).
a) Audience: a legal practitioner’s client; ✔
b) Purpose: to provide legal advice on a specific matter; ✔
c) Structure: a legal letter/opinion; ✔
d) Language: legally precise and simple enough for the client to understand. ✔
The following Learning Outcome is assessed in this question:
• Explain the fundamental concepts and principles of legal writing and its
importance in legal practice.
2.2. (4 marks)
Critical Analysis of Section 186(1)(b) of the Labour Relations Act:
Section 186(1)(b) of the Labour Relations Act (“LRA”) defines a “dismissal” to
include instances where an employee reasonably expected the renewal of a fixed-
term contract on the same or similar terms, and the employer fails to renew it. This
provision reflects the LRA’s aim to protect employees from unfair labour practices
arising from precarious employment arrangements.
However, it raises critical interpretative challenges. For instance, the phrase
"reasonable expectation" introduces subjectivity, requiring courts to assess both the
employee’s belief and the employer’s conduct. This creates potential uncertainty for
employers, particularly in industries reliant on temporary contracts. Moreover, the
provision balances precariously between safeguarding employees and respecting
employers’ operational prerogatives.
Answer: Unit 1 (Handout 13, Page 7).
a) Audience: legal academics/law students; ✔
b) Purpose: to demonstrate an understanding of section 186(1)(b) of the LRA and
the challenges accompanied therewith.; ✔
c) Structure: a legal academic essay / a legal article; ✔
d) Language: academic language is used to communicate and critique the law. ✔
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The following Learning Outcome is assessed in this question:
• Explain the fundamental concepts and principles of legal writing and its
importance in legal practice.
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Question 3 (20 marks)
Read the fictitious scenario and answer the questions that follow:
As a newly graduated student, you have been appointed as a legal researcher at
the South African Legal Writer’s Association (“SALWA”). As your first task, you must
conduct online research on studies conducted on gender-based violence in the
Eastern Cape area. The purpose of the research is to write an academic report on
your findings on how the legal system aids and assists victims of gender-based
violence. However, due to budget constraints, SALWA cannot subscribe to
commercial databases, requiring you to conduct your research online.
Required:
3.1. Discuss why the Internet can be used as a research tool and outline the limitations
of using the Internet. (8 marks)
Notes to grader:
• Grader’s discretion is advised.
• Award a maximum of eight (8) marks for this question.
Answer Unit 2 (Handout, Pages 66 - 68.)
• The Internet cannot be ignored as a search tool and source of legal information;
✔ however, one must be aware of its limitations.
• It is very important to first evaluate the authority and reliability of information
found on the internet. ✔ The reason for this is that anyone has the ability to
publish information on the internet. ✔
• A further limitation is that the search features on the web are not as
sophisticated as those of commercial databases. ✔ However, the internet can
still be helpful to retrieve these sources, ✔ and can sometimes have
authoritative sources. ✔
• Furthermore, the internet is not static, and the articles you may have retrieved
may have less permanence than those from trusted commercial databases. ✔
• Nevertheless, the internet does offer current information that sometimes cannot
be found elsewhere. ✔
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• Therefore, the internet can be used as a research tool. ✔ However, one must
be cautious in using it considering its limitations discussed above. ✔
The following Learning Outcome is assessed in this question:
• Assess the relevance and credibility of internet sources and apply best
practices in legal research.
3.2. As the newly appointed legal researcher at SALWA, advise which internet search
engine you would use to conduct your online research and justify your answer.
(4 marks)
Answer Unit 2 (Handout, Page 67)
As a legal researcher, I would possibly conduct online research using Google Scholar
OR SAFLII ✔ because the information, unlike Google, is generally more authoritative
than information from the general web. ✔ It is a web search engine that indexes the
full text of scholarly literature across various disciplines, including journal articles,
theses and books. ✔ Furthermore, access to Google Scholar is free of charge. ✔
The following Learning Outcome is assessed in this question:
• Assess the relevance and credibility of internet sources and apply best
practices in legal research.
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3.3. Identify the criteria for evaluating information found on the internet and advise how
you would meet the criteria. (8 marks)
Notes to grader:
• The list of questions in the memorandum is not exhaustive. Students may
consider other questions to ask to evaluate the information online. In this
regard, marks should be awarded for relevant questions/information.
• Award a maximum of eight (8) marks for this question.
Answer: Unit 2 (Handout, Page 68)
Before using any article or report found on the internet, one must evaluate the
authority, ✔ credibility ✔ and reliability ✔ of the document.
You can do this by asking the following questions:
• Who is the author of this document, and what is their affiliation? ✔
• Who is the provider or publisher of this document? ✔
• What is the quality of information given in the document? ✔
• Is there a reference list or bibliography? ✔
• What is the date of the site or document? ✔
• Is there a copyright statement? ✔
The following Learning Outcome is assessed in this question:
• Assess the relevance and credibility of internet sources and apply best
practices in legal research.
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Question 4 (15 marks)
Read the excerpt below and answer the questions that follow:
Whereas the Employer and the Employee have entered into this agreement, it is
hereby agreed and covenanted that the Employee shall perform and discharge all
duties in a fit and proper manner, in accordance with the terms and conditions as
prescribed, amended, or modified by the Employer at its sole discretion.
Failure, neglect, or refusal by the Employee to comply with these terms shall render
this agreement null and void ab initio, without prejudice to the Employer’s rights and
remedies at law or in equity.
Any waiver or indulgence granted by the Employer shall not constitute a waiver of
any other breach or a variation of this agreement.
Required:
4.1. Discuss and explain the form of language that this excerpt represents. Justify your
answer with an example from the excerpt. (10 marks)
Answer: Unit 3 (Chapter 1, Page 9).
• The form of language used is referred to as “legalese”. ✔
• “Legalese” refers to the perplexing and specialised language (or social dialect)
✔ used by lawyers in legal documents, ✔ incomprehensible to the non-lawyer.
✔
• It is characterised by wordiness, ✔ Latin expressions, ✔ passive verbs, ✔
lengthy sentences ✔ and legal doublets ✔such as null and void ab initio, or
without prejudice, or waiver or indulgence (or any other example provided by
the student from the excerpt). ✔
The following Learning Outcome are assessed in this assessment:
• Identify and describe challenges associated with legal language and drafting
practices.
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4.2. In your own words, rewrite the excerpt in plain language which aims to improve
the clarity and comprehension of the excerpt. (5 marks)
Notes to grader:
• The grader must exercise discretion. Students must write the answer in their
own words. Below is a guide/template for the student's interpretation of the
excerpt.
• Award a maximum of five (5) marks for this question.
Answer: Unit 3 (Chapter 1, Page 9).
This agreement is between the Employer and the Employee. ✔ The Employee agrees
to perform their duties responsibly and according to the rules and policies set by the
Employer, which the Employer may update or change when needed. ✔
If the Employee fails to follow these rules or meet their responsibilities, this agreement
will end immediately, ✔and the Employer can take any legal action necessary to
protect their rights. ✔
If the Employer allows any rule to be broken or chooses not to enforce part of this
agreement, ✔it does not mean they are giving up their right to enforce the rules in the
future or to hold the Employee accountable for other breaches of the agreement. ✔
The following Learning Outcomes are assessed in this assessment:
• Apply legislative interpretation techniques to analyse and interpret complex
legal texts.
• Draft legislative provisions using plain language principles to improve clarity
and comprehension.
• Analyse examples of poorly drafted legislation and their impact on legal
interpretation.
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Question 5 (25 marks)
Read the fictitious scenario and answer the questions that follow:
A legal researcher, Sipho, is employed by a law firm in Durban and has been
assigned to conduct legal research for a client who is a property developer. The
client is planning to construct a new residential estate in KwaZulu-Natal. The
construction project has raised several legal issues related to land use,
environmental compliance, and local municipal regulations. Sipho must organise the
applicable laws into their vertical hierarchical authority to provide a comprehensive
legal opinion.
The following legal sources are relevant to Sipho's research:
• Proclamation R29 of 2016 declares certain wetlands in the province as
protected areas under the National Environmental Management: Protected
Areas Act 57 of 2003 (“NEMPAA”).
• eThekwini Municipality: Waste Management By-Law, 2016. This by-law sets
out waste disposal requirements for construction projects.
• The Constitution of the Republic of South Africa, 1996. Relevant provisions
include section 24 (environmental rights) and section 156 (municipal powers).
• KwaZulu-Natal Planning and Development Act 6 of 2008, which regulates
spatial planning and land use management within the province.
• The National Environmental Management Act 107 of 1998 (“NEMA”), which,
amongst other things, governs environmental authorisations and compliance.
• Environmental Impact Assessment (“EIA”) Regulations, 2014 (as amended),
which was published under NEMA. These regulations set out the procedures
for obtaining environmental authorisation for construction projects.
• The Housing Act 107 of 1997, which, amongst other things, facilitates
housing development.
• eThekwini Municipality: Spatial Planning and Land Use Management By-
Law, 2017 provides zoning and land-use control within the eThekwini
Municipal area.
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5.1. Define an ‘enacted law-text’. (6 marks)
Answer: Unit 4 (Chapter 2, Page 15).
• Enacted means that the legislation was adopted ✔ / issued ✔ / promulgated ✔
in terms of the prescribed legal requirements. ✔
• Law means that the legislation has the force of law. ✔
• Text means that it is written law. ✔
The following Learning Outcome is assessed in this assessment:
• Understand the fundamental structure and components of South African
legislation.
5.2. With reference to the set of facts, organise the listed legislation in accordance with
their vertical hierarchical authority. Thereafter, sort the list into appropriate
categories (e.g., national legislation etc.). (13 marks)
Notes to student:
• The first source you list is considered the source at the top of the hierarchy.
• The last source you list is considered the source at the bottom of the hierarchy.
Answer: Unit 4 (Chapter 2; Page 17).
1. National Legislation: ✔
• The Constitution of the Republic of South Africa, 1996. ✔
• The National Environmental Management Act 107 of 1998; ✔ and
• The Housing Act 107 of 1997; ✔ (do not deduct marks if this Act is listed before
NEMA).
2. Provincial Legislation: ✔
• KwaZulu-Natal Planning and Development Act 6 of 2008. ✔
3. Proclamations: ✔
• Proclamation R29 of 2016. ✔
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4. Regulations: ✔
• Environmental Impact Assessment (EIA) Regulations, 2014 (as amended).
✔
5. Municipal by-laws: ✔
• eThekwini Municipality: Spatial Planning and Land Use Management By-
Law, 2017. ✔
• eThekwini Municipality: Waste Management By-Law, 2016. ✔
The following Learning Outcome is assessed in this assessment:
• Understand the fundamental structure and components of South African
legislation.
5.3. Assume that Sipho also wants to refer to common law, specifically related to
servitudes, to address complications he has identified in the zoning by-laws.
Explain to Sipho whether legislation can repeal common law. (6 marks)
Note to grader:
• Award a maximum of six (6) marks for this question.
Answer: Unit 4 (Chapter 2, Page 15).
• South Africa still subscribes to Roman-Dutch common law. ✔ However, since
1994, the Constitution has trumped legislation and common law. ✔ Section
39(2) states that any law (including common law) inconsistent with the
Constitution is invalid. ✔
• Although it is presumed that the legislature does not intend to alter the common
law more than is necessary, ✔ common law may expressly be trumped by
legislation. ✔
• It is important to note that common law is not repealed by legislation ✔ but
trumped or overruled. ✔ This means that if legislation trumps a rule of common
law and that legislation itself is later repealed, the common-law rule will revive
again. ✔
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The following Learning Outcomes are assessed in this assessment:
• Understand the fundamental structure and components of South African
legislation.
• Explain the process of how legislation overrides common law, using specific
examples and statutory provisions such as Section 2(10) of the Consumer
Protection Act.
• Analyse the role of common-law presumptions in interpreting legislation and
how these principles have evolved with the introduction of the Constitution.
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Question 6 (15 marks)
Discuss how the introduction of the 1996 South African Constitution changed the
interpretation of legislation.
Notes to grader:
• Grader must exercise discretion as students are encouraged to answer
questions in their own words. ‘
• Award a maximum of fifteen (15) marks for this question.
Answer: Unit 3 (Chapter 1, Pages 12-14)
The Constitution was introduced to be the supreme law which refers to the idea that
the Constitution is the highest law of the land, ✔ and any legislation inconsistent with
it is invalid. ✔ This principle has significantly changed statutory interpretation in South
Africa, especially with the advent of the 1996 Constitution. ✔ The interpretation of
statutes is now guided by the Constitution’s values, particularly the Bill of Rights. ✔
Before 1994, statutory interpretation followed the principle of parliamentary
sovereignty, ✔ meaning Parliament’s legislation could not be tested against
constitutional principles. ✔
However, the introduction of constitutional supremacy ✔ allowed courts to review
statutes for compatibility with the Constitution. ✔ Courts now have the power to strike
down ✔ or interpret legislation ✔ in ways that align with constitutional values, ✔such
as equality, fairness, and human dignity. ✔
Under the 1996 Constitution, the Interpretation Clause (section 39) ✔ explicitly states
that when interpreting statutes, courts must consider the Constitution’s values and the
spirit of the Bill of Rights. ✔ This ensures that all legislation is read consistently with
the fundamental rights it seeks to protect, ✔ and courts are empowered to read down
or invalidate laws that are unconstitutional. ✔
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The following Learning Outcome is assessed in this question:
• Explain the influence of constitutional supremacy on the interpretation of
statutes.
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Question 7 (7 marks)
Discuss how the Consumer Protection Act 68 of 2008 impacts the common law
relating to contracts, specifically focusing on the provisions of section 2(10) and how
it overrides common-law principles in consumer protection.
Answer: Unit 4 (Chapter 2, Pages 45-46)
• Section 2(10) of the Consumer Protection Act stipulates that the Act does not
replace the common law ✔ but prevails in cases of conflict. ✔
• Where the common law provides less protection to consumers than the Act, ✔
the Act will take precedence. ✔
• For example, the Act regulates unfair contract terms and ensures that
consumers cannot waive their rights to legal remedies. ✔
• This is a departure from the common law, where parties could freely contract
away their rights. ✔
• Therefore, the Consumer Protection Act overrides common-law principles
regarding consumer rights, providing stronger protections against unfair terms.
✔
The following Learning Outcome is assessed in this question:
• Explain the process of how legislation overrides common law, using specific
examples and statutory provisions such as section 2(10) of the Consumer
Protection.
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