ELS 120L English for Law Students: Mthembu and Mandela Bay Tech Solutions Essay Questions

University of Fort Hare: English for Law Students (ELS 120L)

Instructions

1. Read these instructions carefully!
2. The assignment is due on Thursday, 03 September 2026 during lecture time.
3. Your essay should be between 1700-2000 words maximum excluding Bibliography, Table of contents and cover page. Essays exceeding this limit will be penalised. Thus, students whose essays are longer than the prescribed number of words may be disregarded.
4. Your work MUST USE (a) 1.5 line spacing; (b) Arial font size 12. Furthermore, your pages (text and footnotes) MUST BE justified. References MUST BE in footnotes. The footnoting style to be followed is the one for Articles in SPECULUM JURIS. See www.speculumjuris.co.za
5. This assignment carries 50% towards your final mark. The task must be done in a group of 3 Students. NB: No individual submission will be accepted, neither will a task of 2 people be accepted nor 4 people and above thus adhere to the instructions of ONLY 3 people per group.
6. DO NOT PLAGIARISE. You should refrain from engaging in plagiarism when writing up your assignment as plagiarism is a form of deception. Essentially, it is deliberately or carelessly passing off another’s written or oral work as yours. Plagiarism includes copying the words (spoken or written), ideas or research results of another without acknowledging the author/source. Acknowledging (crediting) a source requires proper footnoting and applies to both electronic and paper sources.
7. Only choose one question from the two questions below and answer it. At the end, there are marking rubrics that are attached for each question.

TASK

QUESTION ONE

In the early hours of 15 March 2025, a violent protest erupted outside the Magistrate’s Court in East London, Eastern Cape. The protest was organized by the “Justice for Victims Movement” (JVM), a grassroots organization advocating for harsher sentences for perpetrators of gender-based violence (GBV). The demonstration was sparked by the bail hearing of Sipho Mthembu, a 34-year-old businessman charged with the murder of his former partner, Nomvula Dlamini, and the attempted murder of her mother, Thandiwe Dlamini.

According to the State’s case, on 8 March 2025, Mthembu allegedly broke into Nomvula’s home in Mdantsane after she had obtained a protection order against him under the Domestic Violence Act 116 of 1998. Eyewitness testimony from neighbours indicated that Mthembu forced entry through a back window at approximately 2:00 AM. Nomvula’s mother, who was staying with her daughter for protection, heard screaming and rushed to Nomvula’s bedroom. She found Mthembu strangling Nomvula. When Thandiwe attempted to intervene, Mthembu allegedly stabbed her multiple times with a kitchen knife, causing life-threatening injuries. Nomvula died at the scene from asphyxiation. Thandiwe survived after emergency surgery but remains in critical condition.

Mthembu was arrested at the scene by members of the South African Police Service (SAPS) who responded to a panic alarm triggered by Nomvula’s neighbour. During his arrest, Mthembu allegedly resisted violently, injuring two police officers. He was charged with murder, attempted murder, assault with intent to cause grievous bodily harm, violation of a protection order, housebreaking with intent to commit murder, and resisting arrest.

At the bail hearing held on 12 March 2025, Mthembu’s defense attorney, Advocate Nkosi, argued that his client should be granted bail under Section 60 of the Criminal Procedure Act 51 of 1977, as amended. Advocate Nkosi submitted that Mthembu is a respected businessman with strong ties to the community, owns property in East London, has no prior criminal convictions, and poses no flight risk. The defense further argued that Mthembu has a constitutional right to be presumed innocent until proven guilty under Section 35(3)(h) of the Constitution of the Republic of South Africa, 1996, and that his continued detention violates his right to freedom and security of the person under Section 12.

The defense also presented a psychiatric evaluation conducted by Dr. Lindiwe Khumalo, a clinical psychologist, who diagnosed Mthembu with Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD) stemming from childhood abuse. Dr. Khumalo testified that Mthembu’s mental state was significantly impaired at the time of the alleged offense and recommended that he receive psychiatric treatment rather than remain in custody. Advocate Nkosi argued that Mthembu’s mental illness constitutes substantial and compelling circumstances justifying his release on bail, and that he could be placed under house arrest with electronic monitoring.

The State, represented by Senior State Advocate Mbali Zondi, vehemently opposed bail. Advocate Zondi argued that this case falls under Schedule 6 of the Criminal Procedure Act, which creates a presumption against bail for murder charges. She submitted that Mthembu has failed to discharge the onus of proving, on a balance of probabilities, that exceptional circumstances exist to justify his release. The State emphasized the following factors:

1. Severity of the Offense: The murder was premeditated, brutal, and committed in the victim’s home, a space where she should have felt safest. The violation of the protection order demonstrates a blatant disregard for court orders and the rule of law.
2. Risk to Public Safety: Thandiwe Dlamini, the surviving witness and complainant in the attempted murder charge, remains in hospital. The State argued that if released, Mthembu poses a direct threat to her life, as he may attempt to silence her testimony. Additionally, the State cited concerns about potential intimidation of other State witnesses, including the neighbours who provided eyewitness accounts.
3. Public Interest and Confidence in the Justice System: Advocate Zondi submitted that releasing Mthembu on bail would send a dangerous message to society that perpetrators of GBV can evade accountability, particularly in a country grappling with what has been termed a “femicide crisis.” She referenced statistics from the South African Police Service indicating that a woman is killed by an intimate partner every three hours in South Africa. Granting bail, she argued, would undermine public confidence in the criminal justice system’s ability to protect vulnerable victims.
4. Risk of Reoffending: The State presented evidence that Mthembu had previously been arrested in 2022 for common assault against Nomvula, although the charges were withdrawn after Nomvula declined to testify. This, the State argued, demonstrates a pattern of violent behavior and a likelihood of reoffending if released.
5. Mental Health as an Aggravating Factor: Contrary to the defense’s argument, the State contended that Mthembu’s diagnosed mental illness, coupled with his refusal to adhere to previous treatment plans, increases rather than decreases the danger he poses to society. Advocate Zondi argued that there is no guarantee Mthembu would comply with bail conditions requiring psychiatric treatment.

On 14 March 2025, Magistrate Thabo Molefe reserved judgment and indicated he would deliver his decision on 18 March 2025. However, before the judgment could be handed down, the violent protest erupted outside the court. Members of the JVM, along with approximately 300 community members, barricaded the entrance to the Magistrate’s Court, demanding that Mthembu be denied bail. Protest leaders addressed the crowd using megaphones, chanting slogans such as “No Bail for Killers!” and “Justice for Nomvula!”

During the protest, a group of approximately 50 individuals broke away from the main demonstration and attempted to storm the court building. They overpowered security personnel, smashed windows, and set fire to a police vehicle parked outside the court. Three court officials sustained injuries, and the Magistrate’s chambers were vandalized. Police deployed rubber bullets and tear gas to disperse the crowd, resulting in 12 arrests for public violence, malicious damage to property, and assault on police officers.

Among those arrested was Zanele Mkhize, the founder and spokesperson of the JVM. Mkhize, a 29-year-old social worker and survivor of domestic violence, has been a vocal advocate for victims’ rights and has organized numerous peaceful protests calling for legislative reform to address GBV. During her arrest, Mkhize stated: “We are not criminals, we are freedom fighters demanding justice for women who have been failed by a system that protects perpetrators instead of victims. If the courts won’t deliver justice, the people will.”

Mkhize was charged with incitement to commit public violence under the Riotous Assemblies Act 17 of 1956 and malicious damage to property. At her bail hearing, her defense attorney, Advocate Ntombizodwa Radebe, argued that Mkhize’s actions were motivated by a legitimate exercise of her constitutional rights to freedom of expression (Section 16), freedom of assembly (Section 17), and the right to petition and protest (Section 18). Advocate Radebe further argued that the charges against Mkhize constitute a violation of her right to dignity (Section 10) and are an attempt by the State to silence activists who challenge systemic failures in the criminal justice system.

The State, however, argued that while the Constitution protects the right to peaceful protest, it does not shield individuals who incite violence, destroy property, or endanger public safety. Senior State Advocate Zondi, also prosecuting Mkhize’s case, submitted that the protest crossed the line from lawful demonstration to criminal conduct when it resulted in violence, property damage, and injuries to court officials and police officers. The State further argued that Mkhize, as the leader of the protest, bears criminal responsibility for the actions of the crowd under the common purpose doctrine, as established in S v Thebus 2003 (6) SA 505 (CC).

The case has ignited a national debate about the balance between constitutional rights and public order, the role of activism in a constitutional democracy, and the criminal justice system’s response to GBV. Legal scholars, civil society organizations, and political commentators have weighed in on both sides of the argument.

TASK (Question One)

As a group of 3 law students, you have been asked to write an argumentative essay addressing the following question:

“In light of the facts presented in State v Mthembu and State v Mkhize, critically analyse whether the South African criminal justice system adequately balances the constitutional rights of the accused (including the right to bail, the presumption of innocence, and mental health considerations) against the State’s duty to protect victims, ensure public safety, and maintain public confidence in the administration of justice. In your answer, consider the application of the common purpose doctrine to protest-related violence and evaluate whether the current legal framework sufficiently addresses the tension between the right to protest and the prevention of public violence in cases involving gender-based violence.” [50 MARKS]

QUESTION TWO

Mandela Bay Tech Solutions (Pty) Ltd (“MBTS”) is a Black-owned, Level 2 B-BBEE technology company based in Gqeberha (Port Elizabeth), Eastern Cape. The company specializes in the supply and installation of hospital management software systems designed to streamline patient records, billing, and inventory management in public healthcare facilities. MBTS was founded in 2018 by Thabo Ngcongo, a computer science graduate from Nelson Mandela University, with the mission of leveraging technology to improve healthcare delivery in underserved communities.

In January 2024, the Eastern Cape Department of Health (“the Department”) issued a Request for Proposals (RFP) for the supply, installation, and maintenance of a comprehensive Hospital Management Information System (HMIS) for five regional hospitals in the province: Livingstone Hospital (Gqeberha), Frere Hospital (East London), Cecilia Makiwane Hospital (Mdantsane), Nelson Mandela Academic Hospital (Mthatha), and St. Elizabeth Hospital (Lusikisiki). The RFP specified that the contract would be awarded to a qualified bidder with a valid B-BBEE certificate, proven experience in healthcare IT systems, and the technical capacity to complete the project within 18 months.

The total contract value was estimated at R45 million, with payment structured in three phases: 30% upon signing the contract, 40% upon successful installation and testing of the system in all five hospitals, and the remaining 30% upon completion of a six-month maintenance and training period. The RFP further stipulated that the successful bidder would be required to provide a performance guarantee in the form of a bank guarantee equivalent to 10% of the contract value, as security for the proper and timely performance of the contract.

MBTS submitted a comprehensive proposal in response to the RFP, highlighting its Level 2 B-BBEE status, previous successful installations of hospital management systems in two private hospitals in the Western Cape, and a competitive pricing structure. MBTS’s proposal emphasized its commitment to employing local IT professionals and providing skills transfer to Department staff. On 15 March 2024, MBTS was notified that it had been awarded the contract. The formal contract was signed on 2 April 2024 by Thabo Ngcongo on behalf of MBTS and by Dr. Nomsa Dube, the Head of Department, on behalf of the Eastern Cape Department of Health.

The contract contained the following key clauses

Clause 5: Scope of Work

“The Contractor shall supply, install, configure, and test a fully functional Hospital Management Information System (HMIS) at the five hospitals specified in Schedule A. The system must be operational and meet all technical specifications outlined in Annexure B within 18 months of the contract commencement date (2 April 2024). The Contractor shall also provide six months of post-installation support, including staff training, system maintenance, and troubleshooting.”

Clause 8: Payment Terms

“Payment shall be made in three installments as follows:
(a) 30% (R13.5 million) within 30 days of contract signature;
(b) 40% (R18 million) upon successful installation and acceptance testing of the HMIS at all five hospitals;
(c) 30% (R13.5 million) upon completion of the six-month maintenance and training period, subject to the submission of a Final Completion Certificate signed by the Department’s Project Manager.”

Clause 12: Performance Guarantee

“The Contractor shall, within 14 days of contract signature, provide an unconditional and irrevocable bank guarantee in the amount of R4.5 million (10% of the contract value) in favor of the Department. This guarantee shall remain in force until Final Completion and may be called upon by the Department in the event of the Contractor’s breach of contract, including failure to meet project milestones.”

Clause 15: Termination for Convenience

“The Department reserves the right to terminate this contract at any time, for any reason, upon giving the Contractor 60 days’ written notice. In the event of such termination, the Department shall pay the Contractor for work completed up to the date of termination, as certified by the Department’s Project Manager, but shall not be liable for any loss of anticipated profits or consequential damages.”

Clause 18: Dispute Resolution

“Any dispute arising out of or in connection with this contract shall be referred to mediation in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA). If mediation fails, the dispute shall be referred to arbitration, and the decision of the arbitrator shall be final and binding on both parties.”

Clause 21: Entire Agreement

“This contract constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral. No amendment or variation of this contract shall be valid unless reduced to writing and signed by both parties.”

Following the signing of the contract, MBTS immediately began mobilizing resources for the project. The company secured a loan of R8 million from a commercial bank to finance the purchase of hardware, software licenses, and the hiring of additional IT specialists. MBTS also subcontracted a Johannesburg-based software development firm, CodeCraft Solutions (Pty) Ltd, to customize the HMIS to meet the specific needs of the Department’s hospitals. The subcontract with CodeCraft was valued at R12 million.

On 20 April 2024, MBTS submitted the required bank guarantee to the Department. On 15 May 2024, the Department made the first payment of R13.5 million to MBTS. The project commenced in June 2024, with MBTS’s technical team conducting site assessments at all five hospitals and beginning the installation of hardware infrastructure.

However, by September 2024, the project began experiencing significant delays. The primary issues were:

1. Delays in Site Access: Several hospitals were undergoing concurrent infrastructure upgrades (electrical rewiring and network cabling), which were managed by a separate contractor appointed by the Department. These upgrades were not completed on schedule, preventing MBTS from installing its systems in key areas such as the emergency departments and outpatient clinics.
2. Scope Creep: During the installation phase, the Department’s Project Manager, Mr. Andile Mthethwa, issued several written requests for additional functionalities not specified in the original contract, including integration with the National Health Laboratory Service (NHLS) database and the development of a mobile app for doctors to access patient records remotely. MBTS verbally agreed to explore these additions but requested a formal variation order and additional payment. The Department did not issue a written variation order.
3. Staff Resistance: At three of the five hospitals, nursing and administrative staff resisted the new system, citing inadequate training and concerns that the technology would lead to job losses. This resistance resulted in delays in user acceptance testing.

By December 2024, MBTS had successfully installed the HMIS at only two of the five hospitals (Livingstone Hospital and Frere Hospital). The remaining three hospitals were still awaiting the completion of infrastructure upgrades by the Department’s other contractor. MBTS submitted a progress report to the Department, requesting an extension of the 18-month deadline by six months and additional payment of R6 million to cover the costs of the requested additional functionalities and the delays caused by factors beyond its control.

On 10 January 2025, MBTS received a letter from Dr. Nomsa Dube, invoking Clause 15 of the contract and terminating the agreement with immediate effect (despite the clause requiring 60 days’ notice). The letter stated:

“Due to your company’s failure to meet the agreed project milestones and deliver a fully functional HMIS within the stipulated timeframe, the Department has lost confidence in your ability to complete this project. Accordingly, the contract is hereby terminated with immediate effect. The Department will not make any further payments under this contract. Furthermore, the Department intends to call on the R4.5 million bank guarantee, to recover costs incurred as a result of your breach.”

MBTS was shocked by the termination. Thabo Ngcongo immediately instructed his attorneys, Ncube & Associates, to respond. In a letter dated 20 January 2025, MBTS’s attorneys argued:

1. Breach of Contract by the Department: The Department failed to provide timely site access and failed to ensure that the infrastructure upgrades by its other contractor were completed on schedule. These delays were not caused by MBTS and constituted a breach of the Department’s implied duty to cooperate and not hinder performance.
2. Failure to Issue Variation Orders: The Department’s Project Manager requested additional work outside the scope of the original contract but failed to issue formal variation orders or agree to additional payment. MBTS performed some of this additional work in good faith, expecting fair compensation.
3. Improper Termination: The Department’s termination was unlawful because (a) it did not provide the required 60 days’ notice as stipulated in Clause 15, and (b) the termination was not based on MBTS’s breach but rather on delays caused by the Department’s own failures.
4. Unlawful Call on Bank Guarantee: The bank guarantee was intended to secure performance in the event of MBTS’s breach. Since MBTS did not breach the contract, calling on the guarantee would constitute unjust enrichment.

MBTS’s attorneys demanded that the Department (a) reinstate the contract, (b) grant a six-month extension, (c) pay R6 million for additional work performed, and (d) refrain from calling on the bank guarantee. The Department refused, and on 1 February 2025, it instructed the bank to pay out the R4.5 million guarantee.

MBTS has now launched urgent High Court proceedings seeking:

1. An interdict restraining the Department from calling on the bank guarantee.
2. A declaratory order that the termination was unlawful and invalid.
3. An order for specific performance, compelling the Department to reinstate the contract and allow MBTS to complete the project.
4. Alternatively, damages in the amount of R15 million, representing MBTS’s loss of anticipated profits, wasted expenses, and reputational harm.

The Department, in its opposing papers, argues:

1. Strict Compliance with Contract Terms: The contract clearly stipulated an 18-month deadline. MBTS failed to meet this deadline, and the Department was entitled to terminate under Clause 15.
2. No Duty to Grant Extensions: The contract does not impose any obligation on the Department to grant extensions, even if delays were caused by third parties.
3. No Variation Agreement: The Department denies that any binding agreement was reached regarding additional work. Any discussions were exploratory only, and without a written variation order (as required by Clause 21), no obligation to pay arose.
4. Lawful Exercise of Contractual Rights: The Department exercised its right to terminate for convenience under Clause 15 and its right to call on the performance guarantee under Clause 12.

The case has attracted significant attention from the business community, particularly small and medium-sized enterprises (SMEs) that contract with government departments. Business organizations have expressed concern that the Department’s conduct undermines the principles of good faith, fair dealing, and ubuntu in public procurement, and that it exposes SMEs to significant financial risk when contracting with the State.

TASK (Question Two)

As a group of 3 law students, you have been asked to write an argumentative essay addressing the following question:

“In light of the facts presented in the dispute between Mandela Bay Tech Solutions (Pty) Ltd and the Eastern Cape Department of Health, critically analyse whether South African contract law, as informed by the Constitution and the principles of good faith and ubuntu, adequately protects SMEs in public procurement contracts against the unilateral exercise of contractual power by government departments. In your answer, consider the enforceability of ‘termination for convenience’ clauses, the doctrine of unjust enrichment in relation to performance guarantees, the implied duty of cooperation, and the role of public policy in regulating unfair contract terms in government contracts.” [50 MARKS]

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