Master of Laws in Private Law and Human Rights

Purpose

The primary aim of the qualification is to provide learners with a rigorous, sophisticated, and comprehensive understanding of one of the most important innovations of the South African Constitution, namely its imposition of certain rights-serving and value-promoting duties on the courts in respect of the development of private law, and the way this innovation has already played itself out in the various areas of private law in practice. This is an important aspect of the on-going transformation of South African law. This practical understanding will be of benefit to (1) any recent Bachelor of Law (LLB) learner as no LLB qualification has time to deal with this more than superficially. It also will be of benefit to (2) established practitioners whose LLBs preceded the new constitutional order. And it will be of interest to (3) law graduates from other parts of the Africa and the world, whose own legal systems impose less ambitious, or even no, rights-and value-oriented duties on the courts in respect of the development of their private law.

A secondary aim of the qualification is to make an on-going and lasting contribution to the culture of human rights among legal practitioners in South Africa and further afield, as something applicable not only (vertically) to the law regulating the behaviour of the state and its organs, but also (horizontally) to the law regulating the behaviour of private persons inter section.

Rationale

South African private law is unique. First, it is an organic and continuously-evolving body of rules and principles, consisting mainly of common (i.e. judge-made) law and custom rather than legislation. Secondly, it is a mix of three legal traditions: Roman, English and African. Thirdly, its development, has since 1996 been subject to two constitutional provisions, each imposing a novel legal duty on the courts: Section 39 (2) obliges courts to promote the spirit, purport and objects of the South African Bill of Rights whenever they are developing common law or customary laws 8 obliges courts to develop the common law if that is necessary to give effect to a right in the Bill of Rights which is binding on natural (or juristic) persons.

These two constitutional provisions have dramatically altered the landscape of South African private law. Section 39(2), which continued the 'indirect horizontality' introduced by Section 35(3) in the interim South African constitution, has its analogues elsewhere (notable examples are Canada and Germany). But no other major legal system has an exact equivalent to Section 8, which for the first time introduced 'direct horizontality' into South African law. Both sections require practising South African private lawyers to reconceptualise the ultimate justifications of much of South African private law. New practical questions have to be asked and answered, such as: which rights in the Bill of Rights are binding on private parties; what are the values underlying the Bill of Rights as a whole; to what extent does existing South African private law give effect to the former and promote the latter; in so far as South African private law falls short in either respect, how should it be changed.

In order to address these and related questions, one requires a good understanding of the human rights in the Bill of Rights and the values which they serve. But one also requires a good understanding of the actual rules, principles and doctrines constituting each of the various areas of private law: for example, the law of property, succession, the family, contract, delict, unjustified enrichment, and civil procedure. And one needs this understanding not only in respect of the rules, principles and doctrines with a common law source but also in respect of the laws sourced in African custom. Moreover, since some of these questions have been addressed, at least in part, in foreign legal systems, a good understanding of comparative law is particularly useful.

In several areas of private law, the new constitutional duties imposed by Section 39(2) and Section 8 have already had an impact. In the context of the law of delict - to take one branch of private law as an example - one thinks of cases like National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA), Carmichele Minister of Safety and Another (Centre of Applied Legal Studies Intervening) 2001 (4) SA 938 (CC), Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA), and K v Minister of Safety and Security 2005 (6) SA 419 (CC). One also thinks of the many statutes enacted by Parliament to give effect to human rights in private interaction, including the Rental Housing Act 50 of 1999 (regulating leases), the National Credit Act 34 of 2005 (regulating loans), and the Consumer Protection Act 68 of 2008 (regulating the consumer marketplace). Many further examples could be given, and in truth the impact thus far is only the beginning of a process of re-alignment and transformation that is bound to continue for many years to come. Many difficult practical questions to do with the interface of the Bill of Rights and private law have yet to be addressed (and, occasionally, even to be recognised) by the courts and practising lawyers. For example, which constitutional rights lie at the heart of the law of unjustified enrichment, could it be the right to property, the right to freedom, or the interest in autonomy which seems to underlie both these and many other rights? Does the law, in order to give effect to the right to security of the person, have to achieve corrective justice between the perpetrator and victim of a deliberate or negligent injury, and does that require the law to impose delictual liability on the former towards the latter To what extent should the sanctity of contrary be restricted by judicial development of novel contractual terms implied by law in order to promote the Bill of Rights.

The Master of Laws in Private Law and Human Rights will examine all these matters. It is an entirely new and original qualification. To our knowledge, there is no comparable qualification examining the use of private law to give effect to human rights at any other South African university or abroad. Nonetheless, for the reasons given above, this topic is becoming increasingly important in practice in South Africa and in comparable foreign jurisdictions including, for example, India, Canada, Spain, Italy, Ireland, Germany, France, Denmark, England and Wales, Scotland, and Israel. As a result, judges, legislators, and practising lawyers in all these jurisdictions are having to examine how human-rights provisions and instruments influence private law, looking at all branches of the subject. For this reason, it is envisaged for a strong and growing demand for professional expertise and education in this area. Furthermore, there is a growing, global body of legal literature on the subject.

Recognition of Prior Learning (RPL)

Where a person does not have a LLB Degree, their experience in law-related professions and careers will be taken into account. Candidates who attained a level of competence, which, in the opinion of Senate, on the recommendation of the Faculty of Law, is adequate for the purposes of admission, will be considered for the Degree.

In the case of an applicant with a qualification from a foreign institution, he or she has submitted evidence of proficiency in English of a sufficiently high standard to undertake postgraduate studies in Law. Evidence of proficiency may include an applicant's English language results at school and university level, and/or an applicant's TOEFL test results. An applicant may be required to pass a law-specific English proficiency test before being permitted to register in the Faculty.

Entry Requirements

A person may be considered for admission to the Master of Laws in Private Law and Human Rights if in a possession of

• Law Degree.

This qualification consists of compulsory and elective modules at NQF Level 9 totalling 180 Credits.

• Human Rights and Private Law, 30 Credits.
• Research Project (comprising four Research Tasks), 60 Credits.

Electives (Select three)

• Human Rights and African Customary Law, 30 Credits.
• Property Law in a Constitutional Order, 30 Credits.
• Human Rights, Gender, and Family, 30 Credits.
• Advanced Contract Law, 30 Credits.
• Delict, Unjustified Enrichment, and Human Rights, 30 Credits.
• Any other Master's law course already accredited as part of a Professional Master's degree taught by the UCT Law Faculty, 30 Credits.

1. Analyse the problems and issues raised, and reflect on a purposeful and critical application of advanced theory, current knowledge and expertise with consideration of human rights.
2. Evaluate critically the degree to which the law succeeds in achieving its policy objectives and identify shortcomings in the policies or the law that may suggest a need for reform.
3. Research independently, to evaluate critically, and to write accurately to articulate and communicate professional solutions arising out of practical issues.
4. Demonstrate high-level problem-solving abilities involving, analysis of facts, identification of legal issues raised by such fact complexes is demonstrated.

Associated Assessment Criteria for Exit Level Outcomes 1

• Sensitivity to non-legal, contextual considerations that ought to be considered when deciding on appropriate resolution of disputes or law reform is applied.
• Legal issues arising in practical disputes regulated by private law are identified and areas for law reform in this field are analysed in the light of applicable human rights.
• Competence in the field of private law and human rights is applied.
• Private law rules and principles to practical situations are researched and applied in order to give adequate effect to human rights.
• Disputes which arise in private law contexts and trigger human-rights considerations are resolved.

Associated Assessment Criteria for Exit Level Outcomes 2

• The requisite high level of advanced knowledge of the relevant areas of law is achieved.
• Understanding of theoretical and policy underpinnings of law and its context - political, economic and social are demonstrated.
• Knowledge about historical origins and development of law is demonstrated.
• Knowledge of domestic and foreign developments in practice and policy in the area of law is applied.
• Policy underpinnings of the law are identified and critically engaged with.
• Reform proposals designed to achieve identified policy objectives are generated.

Associated Assessment Criteria for Exit Level Outcomes 3

• Clear evidence of unsupervised, effective application of sound research practices in private law is produced in the light of human rights.
• Research issues or themes are appropriately identified and demarcated.
• A comprehensive range of current literature and research in the field is accessed.
• Literature and research are analysed and accorded appropriate weight.
• Research is planned and conducted using a range of research methods and techniques appropriate for a professionally relevant research task.
• Selected research methods and techniques are applied to show evidence of a clear understanding of relevant research theory and professional practice.
• Results of such research that critically and coherently describe theoretical arguments are presented.
• Research process, methodology, results, conclusions and recommendations relevant to a professionally relevant research task is produced.
• The ability to communicate both orally and particularly in writing, clearly, accurately and succinctly, in language and a form of written communication appropriate to target audience is demonstrated.

Associated Assessment Criteria for Exit Level Outcomes 4

• Identification and advanced application of appropriate skills, strategies and techniques in accordance with corresponding theoretical assumptions in the area of law in question is applied.
• Research and/or intervention which include the appropriate and creative use of tools and/or data relevant to private law and human rights are applied.
• Interventions and/or recommendations that reflect purposeful and creative plans to seek solutions based on theory and proven methods in private law contexts is proposed and tabled.
• Skills in extrapolating justifiable conclusions, and where applicable, making feasible recommendations as part of intervention is applied.
• An ability to construct logical and persuasive legal arguments, based on fully articulated reasoning and reference to appropriate authorities and sources, for proposed solutions to practical problems is demonstrated.

Integrated Assessment

The assessment criteria apply to all assessments whether formative or summative and whether written or oral.

The assessment policy for the Professional Master's in this specialist area of Private Law and Human Rights has been developed in light of the Assessment Policy of the University and is consistent with the policy for assessment applied to the current coursework and minor-dissertation LLM. The policy incorporates integrated assessment utilising the following criteria: validity, reliability, academic integrity, transparency, fairness, achievability and timely feedback. Each module within the specialist programme includes more than one assessment opportunity and the use of more than one type of assessment opportunity (prepared and unprepared written tests, oral examinations, oral presentations, written assignments, online assessments) is provided for. Each module includes elements of formative and summative assessment and a final grade of 50% or higher is required to complete each module.

Forms of assessment are practically oriented to assess a learner's ability to understand and apply the law in a professional manner and are evaluated against the assessment criteria.