ENGLISH COMMUNICATION

FOR LAW

CODE OF COURSE: ENN106J

SEMESTER CODE: 02

ASSIGNMENT NUMBER: 01

STUDENT NUMBER: 7844654

ASSIGNMENT DUE DATE: 13 August 2010

NAME: C. H. Olivier

ADDRESS: P.O. Box 1694

RIVONIA

POSTAL CODE: 2128

 ASSIGNMENT 01
SECOND SEMESTER

TASK 1: READING

1. What does the “v” stand for in the name of the case?

Versus

2. Where was the case heard?

Supreme Court of Appeal (Bloemfontein)

3. What was the name of the judge who gave the

judgement?

Vivier JA (Judge of Appeal)

4. What were the names of the legal representatives for

each side?

D F Irish SC (Senior Council) (with him A C Webster) for the

appellant.
J J Gauntlett SC (Senior Council) (with him J C Butler) for
the respondent (Heads of argument drawn by M J Fitzgerald
SC).

5. Give the date(s) of the hearing?

The case was heard on 11 March 1997. The Court reserved

judgement (curia advisari vult), and judgement was given on
26 March 1997.

6. What authorities does the Judge refer to and analyse?

6.1 Case law – The following cases were cited in the

judgement by Vivier JA:

• Du Plessis and Others v De Klerk and Another 1996

(3) SA 850 (CC) (1996 (5) BCLR 658)

• The Firs Investments (Pty) Ltd v Johannesburg City

Council 1967 (3) SA 549 (W)

• Key v Attorney-General, Cape Provincial Division, and

Another 1996 (4) SA 187 (CC) (1996 (2) SACR 113;
1996 (6) BCLR 788)

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 • Rennie NO v Gordon and Another NNO 1988 (1) SA
1 (A)

• S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995

(2) SACR 277; 1995 (7) BCLR 793)

• Secretary for Inland Revenue v Charkay Properties

(Pty) Ltd 1976 (4) SA 872 (A)

• Tillmanns & Co v SS Knutsford Ltd (1908) 2 KB 385

(CA)

6.2 Statute considered by Court :

• The Legal Deposit of Publications Act 17 of 1982, ss

1(1), 2(1), 2(2), 3(1), 4(1).

7. What are the judge’s grounds for stating that the work is
a printed book?

“In conception, structure, production, and presentation the

work is clearly a printed book.” Vivier JA, Skotness v South
African Library 1997 (2) SA 770 SCA, at 774C.

a) That the idea of producing a book was conceived by

the appellant and describing what the contents of the
work consisted of,
b) The structure of the work, comprising of a foreword,
table of contents, essays and poems, as well as a
bibliography,
c) The presentation and production (printing process) of
the work.

8. Why does the judge contend that the work can be

identified as copies?

The word “copy” did not imply the existence of an original,

and that the meaning of the word “copies”, as used in
section 2 (1)(b) of the Legal Deposit of Publications Act 17 of
1982, should bear it’s original meaning.

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 9. Read Unit 5 and then reread the case. Write clear and
concise notes on the original case as the facts are given
by the judge at the start of his judgement. Use a linear
note-making style.

-Appellant (appl.) – artist and lecturer in fine arts -

publisher of fine prints and hand-made books – printing press
-Respondent (resp.) – legal deposit library i.t.o. Legal
Deposit of Publications Act 17 of 1982 (the Act)
-Appl. produced work – “Sound from the Thinking Strings”
(the work) 65 specimens produced
-Appl. refused to comply with resp. demand – supply free
copy
-Resp. institute action – order appl. - sect 2(1) of the Act –
magistrate’s court
-Action defended – dismissed with cost
-Resp. appealed – Cape Provincial Division – succeeded
with cost – magistrate’s order substituted – supply free copy,
pay cost of action
- Leave to appeal granted – court a quo – appl. appeals to
SCA

TASK 2: READING

1. Does the Act have a preamble?

No.

2. On which date was it signed by the State President?

16 February 1982

3. What is/are the introductory phrase(s), if any?

“BE IT ENACTED by the State President and the House of

Assembly of the Republic of South Africa, as follows:-“

4. What is the purpose of the Act? Give one reason why

this is valuable?

“To provide that copies of certain publications be supplied

free of charge to certain libraries; for the compilation of a
South African National Bibliography; and for incidental
matters”. (Long title of the Act).

The long title of an Act gives you the purpose of the Act, as
well as information on what the Act is all about.

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 5. What is the purpose of an Act having definitions?

The definition section explains the meaning of certain key

words and phrases in the Act.

6. What labels would you give to Sections 2, 3 and 4

respectively?

Section 2: Deposit of copies of Publication

Section 3: Exemptions
Section 4: Exclusions

7. Section 2 is subdivided into four subsections numbered

(1), (2), (3) and (4) respectively. Give a content label for
each of these subsections.

Section 2 (1): Supply of copies of Publication

Section 2 (2): Period in terms of supply of copies
Section 2 (3): The physical condition of the copies supplied.

8. Section 6 has three subsections. Give a content label for

the whole section and one for each of the sub sections.

Section 6: Code of good practice: Legal Deposit Libraries

Section 6 (1): Duties of Legal Deposit Libraries
Section 6 (2): Disposition of copies no longer required
Section 6 (3): Legal Deposit Library’s failure to comply

9. Section 9 has two subsections. Give a content label for

the whole section and for one of the sub sections.

Section 9: Recovery of costs

Section 9 (1): Affidavit as prima facie proof in proceedings

TASK 3: WRITING

Read through Unit 6 carefully. Write an argumentative or

expository essay of about 350 – 400 words in response
to the problem type question in the box on page 121.
Use the plan provided. Use relevant references from the
information provided in the unit.
“Mrs. M is pregnant with her first child. She is taking ‘flu
medicine which should not be prescribed to pregnant women
as it may cause serious defects in the unborn child. She
warns her doctor that she is pregnant, but he answers:
‘Anyone can take these tablets. It’s not a problem.’ Her child
is born seriously deformed. Outline the legal position, and
say whether Mrs. M and/or the baby have a claim.” Van der
Walt & Nienaber; English for Law Students, 2nd Edition;
p121.

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Delict and Duty of Care Negligence

1. Introduction

In the set of facts given in the box on page 1211 in “English

for Law Students” 2nd edition there are a couple of issues
coming to the fore. If the chronological sequence of events
are accepted as they appear, the following legal issues
come to mind:

• What legal rules and/or principles are applied in this

claim,
• The reasonable man test,
• Medical negligence and a medical practitioner’s duty
of care, and
• Who has a claim against whom.

The facts are as follows: Mrs. M. was pregnant with her first
child. She contracted influenza and used medicine contra-
indicated for pregnant women, as it may cause serious
defects in the unborn child. She warned her doctor that she
is pregnant, but he answered that it should not be a problem.
The child was born with serious defects2.

2. Legal points and disputes.

These facts must be analyzed by looking at the principles

underlined by the law of delict. If we look at the definition of
delict, which is described as “an unlawful culpable act which
causes damage and creates an obligation”3, and comparing
it to the facts supra4, it can be clearly seen that all elements
that constitutes a delict are present.

The liability of the medical practitioner, as well as the mother

needs to be examined by means of the possible negligence
of both the doctor and the mother, by applying the
“reasonable man test”5 to the doctor and the mother, the
duty and standard of care practiced by the doctor, and
possibly the application of the nasciturus fiction6.

1
Van der Walt, C, and Nienaber, AG, 2nd Ed. P. 121.
2 nd
Van der Walt, C, and Nienaber, AG, 2 Ed. P. 121.
3
Van den Bergh et al, Foundations of the South African Law, Unisa, p. 162 at 1.1
4
Van den Bergh et al, Foundations of the South African Law, Unisa, p. 164-165 at 2.1 –
2.5 the five elements of a delict, which is an act, wrongfulness, fault, causality and damage
5
The reasonable man test (diligens paterfamilias) as defined in Negligence in Delict, by
Macintosh and Scoble, Juta 1970 page 22 9(a), “It has been observed that where a man
should reasonably anticipate the risk of harm to others, he is under a duty to exercise due
care”, is differently applied to the mother as to the doctor.
6
Heaton, J., The South African Law of Persons, 3rd Ed p11 at 2.3.1 “… that he/she is
regarded as having been born at the time of his or her conception…”

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In the sequence of events the mother was negligent7 in
taking the medicine without first consulting the
doctor/pharmacist first, and by not consulting the instructions
included with the medicine box, which, in terms of the
Medicines and Related Substances Control Act8 regulations
must be supplied by the manufacturer.

The doctor was negligent in not applying the duty and

standard of care9. He should have, by applying the
reasonable man test,10 and after Mrs. M. informed him of her
condition, have taken reasonable care, by, for instance, if he
lacked knowledge of the medicine, to refer her to a colleague
for a second opinion.11

3. Conclusion

It is clear from the facts above that the mother might have a
claim against the doctor. It must be said that the child will
have a delictual claim of negligence against both the doctor
and the mother, by applying the law of delict, without having
to rely on the nasciturus fiction12 to win the case.

7
Claassen & Verschoor, Medical negligence in South Africa, p6 at 1.2 “Would the
reasonable man, in the same circumstances as the accused, have foreseen the possibility
that a particular circumstance existed or that a particular result could ensue? Would the
reasonable man have taken precautions against such a possibility? Did the accused’s
conduct fall short when compared with that of a reasonable man in the same
circumstances?”
8
No. 101 of 1965 s 35
9
Claassen & Verschoor, Medical negligence in South Africa, p13 at 2.2.1 “When
someone enters a profession or vocation which requires special knowledge or skill, the
law demands such degree of capability as can reasonably be expected from a practitioner
of such profession or vocation.”
10
Claassen & Verschoor, Medical negligence in South Africa, p7 at 1.2 “Did the accused’s
conduct fall short when compared with that of a reasonable man in the same
circumstances?”
11
Whitehouse v Jordan and Another [1981] 1 All ER 267 Lord Justice Denning: “… we
must say, and say firmly, that, in a professional man, an error of judgment is not negligent” .
The doctor may, on the grounds of this landmark case in England, not be deemed
negligent. However, that will be for the court to decide.
12
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA). Farlam AJ decided that the ordinary
rules of delict should be followed in this case.. Also see Pinchin and Another, NO v
SANTAM Insurance CO LTD 1963 (2) SA 254 (W),

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TASK 4: READING

1. Reread the case SKOTNESS v SOUTH AFRICAN

LIBRARY and then write brief definitions of four of the
following terms:

Act: A law made/passed by a law making body, e.g. an act

of Parliament.

Appellant: A person who appeals to a higher court to review

the decision of a lower court.

Respondent: A person (natural/juristic) whom against a

petition is brought.

Pursuant: The carrying out of an action or plan by a person.

2. What is the force of 'shall' in the sentence 'One copy of

every publication published in the republic shall within
the period referred to in subsection (2) be supplied by
the publisher ...'?

The publisher has to, in terms of the period referred to in

subsection (2), supply a copy of the work to a legal deposit
library. This deposit must be made in the prescribed time
period.

3. The sentence extract quoted above in question 2 is also

an example of a passive construction. The Plain
language campaign would prefer sentences to be
structured in the more direct active voice. Rewrite the
sentence extract in the active voice.

The publisher shall, within the period referred to in

subsection 2, supply one copy of every publication published
in the Republic of South Africa.

4. What is the meaning of 'may' in the sentence — 'An

exemption granted under subsection(1) or (2) in respect
of any particular publication, or a publication belonging
to any particular category of publications, may be
withdrawn by the Minister or the legal deposit library in
question ...'?

The onus rests on the Minister to withdraw an exemption

granted under the subsections quoted.

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5. The sentence extract quoted in question 4 above is also
an example of a passive construction. Rewrite the
sentence extract in the active voice.

The Minister or the legal deposit library in question may

withdraw an exemption granted under subsection (1) or (2)
in respect of any particular publication or a publication that
belongs to any particular publication category.

6. 'Legalese' is language use that is found more often in

legal texts than in everyday reading material such as
novels and magazines.

6.1 List as many examples as you can of 'legalese' from the

Act.

Enacted, particular, impression, representation, depiction,

addendum, construed, therewith, in accordance,
accompanied, microreproduction, provision, exempt,
obligation, expiration, adjoining, accessioned, purporting,
incurred, conferred, proclamation.

6.2 Select two words or phrases from your list and explain
why each could be considered 'legalese'. Choose words
or phrases that represent different types of legalese.

Accessioned: The word has been derived from the word

“accession”, which means to follow up. Accessioned does
not appear in the Collins English Dictionary.

Purporting: to claim to be or to do something. Synonyms

that could have been used include allege, claim, maintain

7. Break TWO of the following sections into shorter units

so that their parts and ideas show more clearly. Do not
omit or simplify any part of the sentence. Revise pages
127-129 in the textbook before you start so you can see
what is required.

4 (f) a microreproduction of a publication

(according to paragraph (a) or (b) of the definition of

"publication")

shall be deemed to be a separate publication:

Provided that a microreproduction of a publication

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 (other than of a publication which is an old work)

shall,

in the case of any legal deposit library

which previously received a copy of that publication

under a provision by this Act,

not be deemed to be a separate publication.

3 (4) An exemption

granted under subsection (1) or (2)

in respect of any particular publication,

or a publication belonging to any particular category of

publications,

may be withdrawn by the Minister

or the legal deposit library in question,

as the case may be,

at any time before the expiration of the period

within which a copy of that publication

would otherwise have been required

to be supplied to a legal deposit library

had it not been for such exemption.

8. Rewrite ONE of the sections in question 7 above in Plain

English. Before you start please read Lesson 9 in the
Study Guide again so that you are aware of the types of
changes you need to make when you rewrite the
sentence.

The Minister or the legal deposit library may withdraw an

exemption granted under subsections (1) or (2) in respect of
any publication at anytime before the expiring date of such
exemption.

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