NATIONAL SCHOOLS MOOT - PowerPoint Presentation

Slide1

NATIONAL SCHOOLS MOOT

Introduction to the lawSlide2

Hierarchy of authority

Constitutional Democracy

All sources must comply to the principles within the Constitution

Legislation, Case law

Legislation is enacted by Parliament (binding)

Case law refers to judgment. Because SA follows a system of precedent usually a courts decision is binding (hierarchy of the courts)

Academic

opinion/ other writing

Refers to the writings of authors and is usually found in textbooks and journal articles (persuasive, mainly used to interpret the above sources

)

See resource packSlide3

NATIONAL SCHOOLS MOOT

Essay formulation Slide4

Formal structure of the essay

Introduction

Introduce the questions/ issues, which you’ll be addressing in the essay

Outline your arguments in relation to your questions

Regarding the first prayer, the question before the court is whether the Applicant’s right to Freedom of Expression and equality has been violated.

We submit that the Applicant’s right to equality has been violated because s34 of the Schools Code of Conduct unfairly discriminates against black female students. Slide5

Body

Develop your arguments

Each

para

should be devoted to a single legal argument that is founded on some source of law and applied to the facts

Use the ILAC components to structure your content

Issue

: outline the issue of the question for each

para

. Identify the problem that will be addressed

Law:

Discuss the law that you plan on applying. You can refer to a variety of sources (Continued…) Slide6

The Constitution of South Africa

Legislation (Acts)

Case Law

Writings of legal authors (persuasive and interpretive value)

Analysis:

Involves taking the law that you relied on and applying it to the facts of the case.

Conclusion:

highlights the consequence of the application of the law to the facts

Eg

. The Applicant has the right to non-discrimination. The schools Code of Conduct unfairly discriminates on black female students. Therefore, the respondent violated the applicant’s constitutional rights Slide7

Conclusion

The conclusion contains the overall result that you want to achieve based on your arguments in the essay

Briefly summarise the team’s position/ arguments

In conclusion, counsel for the applicant has shown that…Slide8

Prayer for relief (what you’re asking from the court)

Counsel for the Applicant respectfully requests this Honourable Court:

To declare that the High Court was incorrect in finding that because

Zanele

was a Christian and not a Rastafarian, she is not entitled to wear dreadlocks to school in contravention of s34 of the Code of Conduct

To rule that the High Court was incorrect in ruling that the renaming of the school to

Shaka

Zulu High School would constitute an

infringment

of the white learners’ right to enjoy their culture, as envisioned by s31 of the Constitution Slide9

NATIONAL SCHOOLS MOOT

Argument formulation Slide10

Prayer 1: Constitutionality of s34 Code of Conduct

Freedom of expression & equality v s36 limitation

Legislation

S9: Equality

Everyone is equal before the law and has the right to equality protection and benefit of the law

…

The state may not unfairly discriminate (in)directly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status,

ethnic or social origin

, colour, sexual orientation, age disability, religion, conscience, belief, culture, language and birth

S16

: Everyone has the right to freedom of expression, which includes-

freedom

of the press and other media;

freedom to receive or impart information or ideas;

freedom of artistic creativity; and

academic freedom and freedom of scientific researchSlide11

Section 36: Limitation of rights

the rights in the

BoR

may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –

the nature of the right;

the importance of the purpose of the limitation;

the nature and extent of the limitation;

the relation between the limitation and its purpose; and

less restrictive means to achieve the purposeSlide12

Case law

Islamic Unity Convention

The right

to freedom of expression is accordingly not absolute

; it is like other rights, subject to limitation under s26(1) of the Constitution…

MEC for Education, KZN v

Pillay

Rules are important to education

…Schools belong to the communities they serve and that ownership implies a responsibility not only to

make rules that fit the community

, but also to abide by those rules…

South African National Defence Union

Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society…Slide13

Possible arguments: prayer 1

Applicant

Code of conduct violates her freedom of expression (in what way) & violates her right to equality (on which grounds)

While these rights may be subject to limitation they do not comply with s36… thus they are not a justifiable limitation

Respondent

The applicants freedom of expression was not violated because she is Christian

In the alternative, even if her freedom of expression was limited, it complied with s36 of the ConstitutionSlide14

Prayer 2: the renaming of Jan S

muts High School

Freedom of language and culture

Premable:

We the people of South Africa…Honour those who suffered for justice and freedom in our land… South Africa belongs to all who live in it, united in our diversity…

S10: Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected

S30: Language and culture

Everyone has the right to use the language and to

participate in the cultural life of their choice

, but no one exercising these rights may do so in a manner inconsistent with any provision of the BoRSlide15

S31: Culture, religious and linguistic communities

Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community –

To

enjoy their culture

, practice their religion and use their language; and

To form, join and maintain cultural, religious and linguistic associations and other organs of society Slide16

Case law

City of Tshwane Metro Municipality v

Afriforum

South Africa looks very much like Europe… A very insignificant nr of names of our cities… gives recognition to the indigenous people…This does not reflect a commitment by all to the spirit of genuine, transformation and reconciliation (par 7)

Almost all cities, towns and street names continue to reverberate with great sounds of veneration for the architects of apartheid, heroes and heroines of our colonial past. Virtually no progressive change to names goes unchallenged… this highlights the crucial role of the preamble to our constitution (

para

9)Slide17

Just as important is the need to respect white and black South African who played a crucial role in building South Africa…Diversity thus ought to highlight the need for unity… (

para

7 & 8)

The old street names are a historical treasure and heritage so intimate to the very being of the Afrikaner people that their removal would constitute an infringement of their right to enjoy their culture as envisioned by s38 of the Constitution (

para

27)

It must be said though that this must be counter-balanced against another reality of great historical and constitutional consequence… Pretoria is the capital city of South Africa. Pretoria does not belong only to the Afrikaner or white South Africans… All racial groups in this country deserve to have their cultures, heritage, history… respected and honored…Slide18

… [The change of street names] is necessary because it also give some sense of belonging to the previously disadvantaged South Africans who are the overwhelming majority of the citizens in Pretoria

The preamble to our Constitution cannot therefore be legitimately relied on to perpetuate the exclusion of others from respect and honor. And it is thus ironic that

Afriforum

seeks reliance on this preamble in the furtherance of the interests of essentially one racial group to the exclusion of other, even freedom fighters

(

para

63-64)Slide19

Does it entail that… white Afrikaner people have no cultural rights that pre-date 1994, unless they can be shown not to be rooted in oppression? …This will be of concern not only to white South Africans, or to Afrikaners. It may also be on concern to those who take pride in the achievements of King

Shaka

Zulu, despite the controversy about his reign, and those who nurture the memory of Gandhi despite some repugnant statements about black African. The complexities of history cannot be wiped away… (

para

131-132)

But recognition and tolerance of difference, even radical difference, is what the Constitution demands.