NATIONAL SCHOOLS
MOOT
Introduction to the law
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 pack
NATIONAL SCHOOLS MOOT
Essay formulation
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.
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…)

a.
b.
c.
d.
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
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…
PRAYER FOR RELIEF (WHAT YOU’RE
ASKING FROM THE COURT)
Counsel for the Applicant respectfully requests this
Honourable Court:
1.
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
2.
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
NATIONAL SCHOOLS MOOT
Argument
formulation
PRAYER 1: CONSTITUTIONALITY OF S34
CODE OF CONDUCT
Freedom of expression & equality v s36 limitation
Legislation

S9: Equality
1.
2.
3.

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
includesa.
b.
c.
d.
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 research

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 –
1.
1.
2.
3.
4.
5.
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 purpose
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…
POSSIBLE ARGUMENTS: PRAYER 1

Applicant
a.
b.

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
a.
b.
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
Constitution
PRAYER 2: THE RENAMING OF JAN SMUTS
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 BoR

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 –
1.
a.
b.
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
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)




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 counterbalanced 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…
… [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)


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.