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Examinations
Semester 2 -- 2003
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Emalus Campus
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COURSE NAME: Legal Drafting
COURSE NUMBER: LA 304
TIME ALLOWED: 3
hours
READING TIME: 15
minutes
NUMBER OF PAGES: Five (5) (including this one)
NUMBER OF QUESTIONS
ON PAPER: Five (5)
NUMBER OF QUESTIONS
TO BE ANSWERED: All
(Question 5 involves a choice)
MARK
ALLOCATED
FOR
EACH QUESTION: Ten (10)
TOTAL MARKS: Fifty
(50)
MATERIALS PERMITTED IN EXAMINATION ROOM:
None,
apart from pens & watch
Question 1 Answer
A. AND B.
Jack and Angela Talo
separated over a year ago on
Unfortunately Jack and
Angela have been unable to resolve the issues of custody, maintenance for the
children, and visitation rights. Angela
made an application to court for custody and maintenance for the children and
Jack made an application for visitation rights. The matter proceeded to court
before a Magistrate who had jurisdiction to determine all three issues.
After a long and bitter
court hearing, the Magistrate made an order “resolving” the outstanding issues
on
The father shall pay the sum of 9,000
vatu per month for the children.
The father shall have visitation rights
every 2 weeks.
The visitation rights shall increase as
the children grow older.
- Identify and discuss sources of ambiguity
and vagueness that could be a source of dispute between the parties when
they attempt to carry out the terms of the order.
(5 marks)
B. Redraft
the material terms of the order to eliminate possible sources of dispute
about what the order means.
You may supply any particulars that are required to do
this.
(5 marks)
Question 2 (10 marks)
Redraft, in the form
suggested by Coode, the following provisions (p. 2).
Place square brackets
around any cases and round brackets around any conditions that your redrafted
provision contains.
In
your redrafted section, make any other changes which you think appropriate to
make the rule more intelligible without changing the meaning.
62.
- (1) Any person who, except with the permission of the minister, imports,
publishes, sells, offers for sale, distributes or reproduces any publication,
the importation of which has been prohibited under section 61, or any extract therefrom, is guilty of a misdemeanour, and is
liable for a first offence to imprisonment for two years or to a fine of two
hundred dollars or to both such imprisonment and fine, and for a subsequent
offence to imprisonment for three years; and such publication or extract
therefrom shall be forfeited to Her Majesty.
(2) Any person who
without lawful excuse has in his possession any publication the importation of
which has been prohibited under section 61,
or any extract therefrom, is guilty of a misdemeanour, and is liable for a
first offence to imprisonment for one year or to a fine of one hundred dollars
or to both such imprisonment and fine, and for a subsequent offence to
imprisonment for two years; and such publication or extract therefrom shall be
forfeited to Her Majesty.
Question 3 (10 marks)
Subsection 6(1) of an
Act, known as the Limitations and
Disclosure of Finance Charges Act, reads as follows:
6. Reduction
of instalments in the event of advance payment, refinancing or consolidation of
debt. - (1) Where the principal debt and finance charges
owing by a borrower or a credit receiver in connection with a money lending
transaction or credit transaction concluded before the date of commencement of
the Limitation and Disclosure Finance Charges Amendment Act, 1980, have, in
terms of an agreement between himself and the moneylender or credit grantor
concerned, to be paid in instalments over a period in the future and the
finance charges form part of the said instalments, the borrower or credit
receiver shall at all times be entitled to pay any instalment before it is due,
and shall, if he pays all instalments still unpaid (not being the final
instalment) in one amount, be entitled to a reduction of every instalment not
due on the date upon which payment is thus affected, by an amount calculated at
the rate of 7.5% per annum on such instalment in respect of the period by which
the payment of the said instalment is advanced.
(The commencement date
of above-mentioned Amendment Act was
1 August, 1980.)
Redraft the above
provision into a more intelligible form, without changing the meaning.
Question 4 (value: 10 marks)
The
Minister responsible for criminal justice of your jurisdiction has set you up
as a one-person Commission for the Reform of Criminal Law. Your mandate is
general – the improvement of the criminal law – but the Minister wants you to
decide one issue first.
Should
the criminal law of your jurisdiction be codified,
in the sense that one enactment will contain all the law of offences and
defences, replacing the common law, so that no-one need refer to
pre-codification case-law?
Question 5 Answer either A. OR B. (value 10
marks)
A. Comment on the following
dicta, focussing on your opinion of their relevance to judicial rule-making in
your jurisdiction.
Statements in judicial opinions are tools, not rules.
-- Woolf MR
(for the Court) in
Results in personal-injury negligence cases are
very fact-sensitive. Counsel wanted us
to compare the facts of the instant case to the facts in precedents -- that is
a sterile exercise. The proper use of precedent in this branch of the law is
only to identify the relevant rule.
-- Lord Steyn
(for the majority) in Jolley v Sutton LBC [2000]1 WLR 1082 (HL)
OR
B.
Is ambiguity in legal drafting ever a good thing?