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The answer to legal issues

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Each of the following questions presents one or more legal issues. In your answers, state each legal issue succinctly, state the pertinent rule of law and explain how the rule applies. Please provide citing information that's used.

1. The Chan family stops by Speedy Automatic Car Wash on their way through Arizona to Texas. Over the entrance to the washer is a large sign, "MAKE SURE YOUR WINDOWS ARE CLOSED BEFORE ENTERING". Mrs. Chan either doesn't notice the sign or can't read English and leaves her window open. As the car passes through the washer, Mrs. Chan is doused with a high-pressure spray of car washing detergent. By the time the family reaches Texas, Mrs. Chan is suffering a severe allergic reaction to the detergent and must be hospitalized. She later files suit in Texas Superior Court, claiming Speedy was negligent. What defenses should Speedy's lawyer present to the Texas court and at what points in the proceedings should she present them?

2. Harry Hapless purchased a PowerMax rotary saw equipped with a blade guard from DIY Warehouse to use in his remodeling business. Harry found that the blade guard slowed him down, so he removed it. While he was cutting a two-by-four, the saw slipped, and Harry was severely injured. Harry sued PowerMax and DIY Warehouse to recover for his injuries, citing the Uniform Commercial Code. What are Harry's best arguments? What are the best defenses for PowerMax and DIY Warehouse? What is the likely outcome of Harry's suit?

3. Zenith Construction is the general contractor for the Plaza Center project. Nadir Builders is the masonry sub-contractor. Nadir's agreement with Zenith provides for monthly progress payments of $100,000. Nadir signs a supply contract with Southwest Building Supply. Southwest delivers $200,000 worth of bricks, with payment due in sixty days. Zenith makes one of the progress payments but withholds subsequent payments when it learns that Nadir's contractor license has been suspended. After laying all the bricks Southwest delivered but before paying for any of them, Nadir halts work. Southwest sues Zenith for the price of the bricks. Zenith submits an affidavit declaring it has no contract with Southwest and moves for summary judgment. What will the outcome be?

4. Bob's Book and Burger Bar sells paperback books, sandwiches and beverages near the campus of a large college. "Every one of my people who deals with customers is smart. Every one is a high school graduate. Every one can discuss our selection of paperbacks intelligently," Bob said. "And I believe in promoting from within. So I won't hire anyone who isn't a high school graduate or who can't pass a GED test in English, not even as a dishwasher." In fact, Bob's business philosophy is so successful that he sets new records every year for paperback sales. Several Hispanics and Southeast Asians who applied for kitchen work failed Bob's GED test and hired a lawyer. What are the issues and what will the outcome be?

5. Using forms he downloaded from the Internet, Fred Fescue incorporates his lawn care business. He and his wife are the sole directors. He capitalizes Fredcorp with his lawn care equipment and his '83 Ford pickup, all of which he values at $50,000. He takes a salary from Fredcorp and charges most of his personal living expenses to the corporation. On the advice of one of his lodge brothers, Fred signs an IOU to Fredcorp whenever he charges personal expenses. On the way home after a long, wet evening at the lodge hall, Fred drives the pickup through the display window of Hank's Haberdashery, causing $20,000 in damages. Hank files suit against Fredcorp, but his attorney learns the corporation's assets - a wrecked pickup, an old riding mower, a leaf blower and $30,000 in IOU's - are virtually worthless, and Fredcorp has no insurance. "I'm afraid suing Fredcorp is a waste of time," the lawyer says. "But Fred's wife drives a brand new Mercedes!" Hank protests. How can Hank recover his losses?

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Solution Summary

Referring to the five questions that present one or more legal issues, this solution states each legal issue, the pertinent rule of law and explains how the rule applies.

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Lindiwe Mazibuko

Consider the case of Lindiwe Mazibuko and others v City of Johannesburg and others, at www.saflii.org/za/cases/ZACC/2009/28.ht

Facts:

1- Operation Gcin'amanzi is a project the city of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and non-payment for water services in Soweto. It involves re-laying water pipes to improve the water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the 6 kilolitre per household monthly free basic water allowance.

2- Mrs. Mazibuko and four other residents of Phiri, Soweto( the applicant) challenged, firstly, the city of Johannesburg's free basic water policy in terms of which 6 kilolitres of water are provided monthly for free to all households in Johannesburg and , secondly, the lawfulness of the installation of pre-paid water meters in Forestry.

3- The three respondents are the city of Johannesburg (the city); Johannesburg Water (the company wholly owned by the city which provides water services to the residents of the city); and the National Minister for Water Affairs and Forestry.

4- After the City had opted for operation Gcin'amazi, extensive conclusion ensured with communities about what the project would entail and how it would be implemented. The initial implementation in early 2004 caused unhappiness amongst residents. By the time the applicants brought their challenge in the High Court eighteen months later, the vast majority of residents had accepted pre-paid water meters. According to a survey the City undertook, they were satisfied with the new system. Moreover, the new system successfully curtailed the amount of unaccounted-for water in Soweto.

5- The city provided a detailed account of Operation Gcin'amazi including how it came to be adopted and implemented. It also made plain that its free basic water policy under constant review since it was adopted. In particular, the city sought to ensure that persons with the lowest incomes receive not only an additional free water allowance, but also assistance regarding the charges levied for other services provided by the city, such as
Electricity, refuse removal and sanitation. The city accepts that it's under a continuing obligation to take measures progressively to achieve the right of access to sufficient water.

6- All the parties, including the applicants, accept that the old system of water supply to Soweto was unsustainable and had to be changed. The applicants however assert that the city's policy and the manner in which it was implemented is unlawful, unreasonable, unfair and in breach of their constitutional right to sufficient water.

Please answer the two sets of questions based on the case above and be very limited in answering the questions based on direct, and precise with the words as instructed.

1- A) what hard right, if any, is violated here under the covenant on economic, social and cultural rights( ESC-Covenant)?
b) does the ESC-Covenant protect the right to " SUFFICIENT WATER"

2- What conduct on the part of the government infringes upon that right? Is it an act or an omission? ( Maastricht guidelines paras 14, 15)
3- What hard obligation on the part of the government is violated here?
4- What is the injury suffered by the applicants?
5- Is there a direct casual effect between the injury to the particular individuals and the state's conduct?

Answer the questions in a 6 pages maximum:

6- Should the standard of review of the state's obligation vis-à-vis ESCR- right be
A) "Whether the legislative and other measures taken by the state are reasonable" within the context of the "state's available means" (Grootboom at para 41) (Mazibuko at paras 59-60, 63-66)

OR
B) Wether a minimum core content component or the progressive realization of the particular right has been violated? ( applicants in Mazibuko at para 51 but cp.para 56)( General comment 3 para 10 UN Comm'ee on ESCR-Rights)( Maastricht Guidelines para 9)( Commentary Dankwa, Flinterman and leckie at 22-23) (Rejected: Mazibuko at paras 56-58; Grootboom para 32; Treatment Action Campaign No 2 at paras 34, 38)
C) Why?

7- Is it approprtiate for a court to give a quantified content to what constitutes "sufficient water" as argued in Mazibuko?
Or, is that matter best addressed by government as the court holds in Masibuko at paras 59-67 because of the need for "institutional respect for the policy-making function of the two other arms of government" (Mazibuko para 65)?

8- Is it appropriate to describe the justicibility of ESC-Rights, i.e., Litigation on social, economic and cultural rights, in terms of its " democratic value" as the court does in Mazibuko at 159-165?

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