FACULTY OF LAW

POSTGRADUATE STUDIES:

THE PRELIMINARY RESEARCH AND

PROPOSAL PHASE

We would like to acknowledge the support and assistance of Professor E M Stack, of the Department of
Accounting, in the preparation of this document.

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 1. INTRODUCTION

It is fundamental to understand that engaging in legal research is a process. Some of

the things you are going to have to do, both initially and throughout, are:

 Identify a suitable research topic

 Identify a suitable supervisor
 Conduct a literature survey
 Using the literature survey, refine the broad research topic into a research
question, hypothesis or problem that is relevant and achievable
 Be able to explain the context in which you intend to conduct research
 Be able to articulate the goals of your research
 Decide on a suitable research methodology
 Set out actions plans and time frames for the work
 Engage in a disciplined writing process
 Work closely with your supervisor as mentor and guide

The first formal part of the process is the preparation and writing of the research
proposal, where you will have to show, in micro-format, your potential and ability to
do the work required of a full thesis, and that you can demonstrate the following skills:

 Mastering the art of academic writing

 Structuring a logical argument
 Learning how to use, acknowledge and reference the work of others

The process of research can be described as consisting of three phases:

 Discovery – identifying the problem and defining it;

 Planning – how the research will be conducted; and
 Implementing – doing the research, interpreting the results, writing the
thesis.

Informing these three phases are three further research imperatives:

 the research must be relevant;

 the research must be achievable; and
 the research must be disseminated.

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 2. RELEVANT RESEARCH

To decide whether the research is relevant you need to understand what is meant
by research. P D Leedy & J E Ormrod Practical Research: Planning and Design
(2001) 3–4 describe research as follows:

“[Research is] the systematic process of collecting and analyzing

information (data) in order to increase our understanding of the phenomenon
about which we are concerned or interested. Also, we expect to
communicate what we discover to the larger scientific community.”

and:

“The ultimate goal of research itself: to derive conclusions from a body of

data and discover what was hitherto unknown.”

The authors also discuss what research is not (ibid). It is:

 not mere information-gathering

 not transporting facts from one location to another (without
interpretation) – thus not simply looking up facts and transferring them
to a written paper;
 not merely random “rummaging” for information (either from texts or
random interviews with people);
 not a catchword to get attention (as in advertising).

Research has also been described as a process involving discovery,

interpretation and communication, stressing the need for researchers to publish
their work in theses and journal articles. As has been indicated above, the
essential attributes of mind that you must bring to research are curiosity, and
analytical and critical thinking.

The defining attributes of research are therefore:

 it starts with a problem;

 there is a clear articulation of a goal;
 it is carried out according to a plan or procedure;
 it involves the collection and interpretation of data in an attempt to
resolve the problem; and
 it requires the communication of our findings in an appropriate manner to
a wider audience.
The following is an illustration of what is and is not research:

Stage 1: I am interested in the law on female genital mutilation. I have identified a

potential research interest.

Stage 2: Is there South African law dealing with female genital mutilation? I have not
yet identified a topic, but I am narrowing down the area of interest. If I proceeded to

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carry out the research at this stage, I would simply be gathering information (data).

Stage 3: Why does South African law not have any specific law relating to female
genital mutilation? Now I have a research topic, but not yet a research question. If I
were to carry out the research at this stage, it will yield no new insights or
knowledge.

Stage 4: What legal changes are required to develop South African law to allow for
the recognition of a crime of female genital mutilation? This is a research question
and is a combination of stages 1, 2 and 3, but takes it further:

I could identify how another country (or countries) has articulated a crime of female
genital mutilation;
and
adapt the model to suit the South African criminal-law system;
and
draft proposed legislation to deal with the issue.

This is research: it involves interpretation, and creates new knowledge.

The defining attributes of research are therefore:

 it starts with a problem;

 there is a clear articulation of a goal;
 it is carried out according to a plan or procedure;
 it involves the collection and interpretation of data in an attempt to resolve
the problem; and
 it requires the communication of our findings in an appropriate manner to a
wider audience.

3. ACHIEVABLE RESEARCH

The question whether your proposed research is achievable must be carefully

considered right at the start of the research process. One of the requirements of
theses at master’s and doctoral degree level is that the student selects a research
project that falls within the prescribed scope (number of words or pages). Other
aspects are also important. There are many recorded instances of research
disasters where the achievability of the research project has not been considered
– candidates have been known to work on their theses for ten years and students
have frequently planned their research without taking into account potential
problems such as the accessibility of resources, the lack of funds, factors of time
and distance (eg whether you are full-time or part-time in attendance or not), and
failure to be granted permission by some authority to carry out the research.

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Aspects which relate to the achievability of your research, and which you need to
consider very carefully, include the following:

 the time needed to complete and write up the research – universities

prescribe a maximum time for the completion of your thesis;
 the funds needed to do the research – this includes the availability of
outside funding, scholarships or grants;
 logistical problems involved – living and other expenses, travelling for
research etc;
 the accessibility or otherwise of information;
 whether permission is needed to conduct the research;
 ability to carry out the research – certain types of research require
particular skills;
 are you a full-time student, or a professional working in practice –
experience shows that it is very difficult for a full-time professional lawyer
to do a research degree;
 ethical considerations – permission may be refused to carry out
research involving children or other vulnerable participants, the use of
research methods that could cause harm to the participants or the
communication of sensitive or damaging results. Therefore, careful
planning is required to prevent problems that may undermine your
planned research;
 duties or obligations to publish the research.

4. IDENTIFYING A TOPIC FOR RESEARCH

Some research students are in the lucky position that they come to the research
process with a clear idea of the topic that they want to research. For some, this is
not so easy.

How do you find a topic to research? There are various ways in which this can be
done:

 you may identify a problem from your engagement with your LLB
courses which has piqued your interest;
 you may identify a problem from practical experience in the workplace;
 you may have a specific area of research that you are interested in
because of some personal experience – for example, one student whose
parents had been through a traumatic divorce wrote a thesis on the
problems with unbundling trusts of which his parents were members; or
 by reading research carried out by others – this is a common way in
which research ideas are generated, as research reported in journal
articles and theses generally identifies areas for potential future research
or you may identify gaps in the existing research that you can focus on for
your research.

At the end of the day, especially in legal research, a very real passion for and
excitement for the topic is essential. Those who enroll for legal research degrees

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for reasons other than a passion for the topic (eg “I want another year at university
before I face the real world” or “I want to represent the province at sport” or “My
girlfriend has a year left of her degree, and I can’t be without her” and suchlike)
tend to be doomed to failure.

5. NARROWING THE RESEARCH TOPIC DOWN TO A SPECIFIC RESEARCH

PROBLEM

As you would have realised by now, you need to narrow the broad research topic
down to a more focused research problem. The way that this is done is by
reading the literature around the topic. This is referred to as a literature survey.

6. THE LITERATURE SURVEY

Every article, paper or thesis must be positioned within the body of knowledge
relating to the research topic. In order to do this, the existing literature must be
surveyed.

A literature survey is simply what the name infers: a survey of what has been
written on your particular topic. It will be essential that you develop a clear idea
of the “body of knowledge” on your research topic. By reading primary sources
(eg legislation, case law, government policy documents and regulations),
secondary texts, journal articles and theses, you identify the gap in existing
knowledge or the niche into which you can position your research.

We carry out a literature survey for a number of reasons in addition to narrowing

the research topic down into a specific research problem. The functions of a
literature survey are as follows:

 to identify a research topic;

 to find out what other research has been done in the field;
 to refine our research topic into a specific problem that can be expressed
in the form of a working hypothesis or question;
 to identify a possible theoretical framework or model on which to base our
research; and
 to justify the importance of our research in the research proposal.

Using published literature to identify a research topic has been discussed above,
as has using the literature to narrow down the research topic to a specific research
problem. We also need to find out what research has been done in the field for
another reason: we must make sure that we are not duplicating the work of
others, as an important requirement of research is that we add (however
modestly) to the existing body of knowledge. Another important reason why we
carry out a literature survey is to identify a possible theoretical framework or model

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 on which to base our research. Finally, when we write our research proposal, we
need to justify the importance of our research – WHY we are doing the research –
and the literature survey will assist us to do this.

Carrying out a literature survey

How do we perform a literature survey? Where do we start? There are two basic
approaches to performing a literature survey:

The first method involves searching all the relevant data bases at your university
library and through them, other libraries. Nowadays these data bases are usually
searchable as electronic data bases, but of course textual searching of physical
sources is also possible. By using key words relating to your topic (either through
engines or indices), you would be able to identify relevant literature. The problem is
that you often find so many possible data items, that it becomes extremely time
consuming to weed them out. This is particularly the case if you use popular search
engines, such as “Google Scholar”. The academic value of some of this material is
also questionable, so you have to be cautious. However, after about 5 years of
engagement with searching law databases, by now you should have developed
decent skills in this area.

The second method entails scanning recent editions of relevant texts or journals to
find further reading (primary or secondary sources) relating to your research topic,
either in the text or the references. One source leads to others. Continuing in this
fashion, you will soon find that authors are citing the same important sources and
you will start to get a good grip on the relevant (and important) literature. The
advantage of this method is that you are able to identify the most authoritative
sources/writers in your field of interest, as they will be the most frequently cited.
The process is completed by carrying out the last two steps:

IMPORTANT TIP

During the literature survey phase, be systematic, and develop a method of recording
both the information relating to the material (bibliographical details, citations etc), and
keep records of the literature itself. This will be enormously valuable with the
research going forward – all-too-often students bewail that they just jumped around in
their reading, and weeks or months later can’t find or remember where they found
something they thought at the time was significant. Start drawing up your bibliography
on day one!

7. THE RESEARCH PROPOSAL

Introduction
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All LLM and PhD candidates must submit a detailed research proposal, which will
initially be scrutinised and approved by their supervisors. Supervisors may require
candidates to redraft their proposals until the requisite detail and depth have been
achieved. Candidates are then required to submit their research proposals for
consideration by the Law Faculty Higher Degrees Committee, which will recommend
acceptance or otherwise of the proposal to the relevant Faculty Board.

Candidates who intend to conduct surveys as part of their research must familiarise
themselves with the University’s Ethical Standards Policy and obtain the necessary
clearance from the Law Faculty’s Ethical Standards Committee. See
http://www.ru.ac.za/research/research/ethics for the policy and the application form.
Details regarding the survey should be provided in the research proposal.
The four core purposes of a research proposal

Simply put, the exercise of doing a research proposal has four core purposes:

 The proposal gives your work an articulated sense of purpose.

 It enables the Higher Degrees Committee to assess the validity of your
proposed research question.
 It enables the student, the supervisor and the Higher Degrees Committee to
determine, from a mini-exercise in 12 pages) whether you have
demonstrated the potential and capability to manage the substantive and
formal demands of a full thesis.
 It gives you the opportunity to develop a relationship with your
supervisor/mentor, and for you to see if the supervisor allocated to you is the
right fit for you.

In so far as the first two requirements are concerned, you should be aiming to do
the following to be successful:

 demonstrate your familiarity with the most important research in the field;
 indicate the gap or niche in existing research that your research aims to fill,
and how; and
 justify your research by demonstrating the importance/value of your
research.

Please understand that the Higher Degrees Committee scrutinises proposals very,
very rigorously and carefully, in terms of structure, content and form, so it is in your
interests to pay careful attention to what is required. The first submission will also be
subjected to pre-screening to assess its readiness for submission to the Committee
at all.

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Submission date

The due date for submission of proposals for consideration at the first Higher
Degrees Committee meeting of the year is around 25 March of each year. Where a
candidate does not submit his or her proposal timeously, the Higher Degrees
Committee will require the candidate and supervisor to give reasons for the failure to
meet the deadline and thereafter it may recommend to Faculty either that the
deadline be extended or that the candidate’s registration be terminated. Where the
deadline is extended, or a student registers later in the year, the proposal must be
submitted 4 weeks before the date of subsequent Higher Degrees Committee
meetings. This is to allow time for the pre-screening process (and any need for
amendments that may come from that). Meeting dates are contained in each year’s
University Calendar, which is accessible from the University’s website home page.
Style

A research proposal should be typed in one-and-a-half spacing on A4 paper, in 12

point font. It should be no longer than twelve pages in length, excluding supporting
references and the table of contents. It should be set out and referenced accurately
and consistently, ideally according to the Faculty style as set out in this guide.

Some general/preliminary notes on style:

Do:

 produce a professional looking proposal

 write in a way that is easy to read
 use clear headings and sub-headings
 be concise and precise
 use simple language wherever possible
 construct clear arguments
 check your spelling and grammar
 reference your work fully using an acceptable format.

Do not:

 use words when you are not absolutely certain of their meaning
 use difficult words to impress your reader
 use overly simplistic language
 repeat yourself
 digress.

Structure and content

All proposals should be presented with a front page that indicates:

1. Name of the candidate, student number, e-mail address, telephone number

and other contact details.
2. The degree for which the proposal is being submitted.
3. The Faculty in which the candidate will be carrying out the research and the

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 subject or specific field in which research is to be carried out. Where there
are co-supervisors from two Faculties, the name of the other Department or
Faculty involved must be stated.
4. The title of the thesis or the field of research.
5. The type of thesis (whether a full thesis or thesis in partial fulfilment of the
requirements for the degree).
6. Full-time or part-time.
7. The name(s) of the supervisor(s), if known.
8. Estimated date of completion.

The proposal that follows must be structured in the manner indicated below.

Section 1: The provisional title of the research project, with a brief description of
the field of research, which should be stated fairly broadly.

A description, in one sentence, of a crisp research question which the

study intends to explore (sometimes described as a hypothesis). This
is an important aspect of the proposal: it is helpful for a candidate not
only to propose a title, but also to be able to formulate a research
question succinctly, so that the focus and precision of the candidate’s
overall idea for research can be assessed.

Section 2: Description and context of the research. This section provides the
general information regarding the research that will be undertaken and
should make it clear why there is a problem/topic is worth addressing. It
sketches the background and, where appropriate, should provide a
brief theoretical framework within which the problem is to be
addressed. This section demonstrates that you are familiar with the key
literature in the field that traverses the problem, and should contain an
integrated, critical assessment of the background to the legal problem
you have identified. The Key Question in this section is: WHY?
(Why is there a legal problem worth investigating?) Note that the
goals of the research (what you intend to do in your thesis) should not
appear in this section.

Section 3: Goal(s) of the research. This section should outline the

subject/area/field to be critically investigated and, where appropriate,
set out the specific question(s) to which the candidate hopes to find
answers. It should indicate clearly what the research intends to
achieve, and its scope. It is important that the goals correspond to the
nature of the research task and to the envisaged time frames. The
goals section should be brief, and you are welcome to identify your
goals in a numbered list or in bullet points. The goals should not be too
extensive, or it is likely that the reach of the thesis will become too

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 extensive, unmanageable, or may suggest there is insufficient focus to
the work. Generally, the goals should be limited to 4 to 5 at the most.
The Key Question in this section is: WHAT? (What am I intending
to achieve with my research?)

Section 4: Methodology. This section describes the manner in which the

research will be undertaken. The Key Question in this section is:
HOW? (How are you intending to go about doing your research
and compiling your thesis?) There is a separate section below on
legal research methodology.

Section 5: Bibliography and references. Important and relevant sources which

support the proposed research and which provide a background to the
research should be cited. Such source material referred to in the
proposal should be cited in an appropriate and consistent style. The
referencing style of the Faculty as set out in the Survival Guide is
suggested.

Section 6: Provisional table of contents, chapter lengths and time frames.

This section details a provisional table of contents for the thesis and is
a useful route map to guide the research. It also indicates the extent to
which you have researched and thought about the issues. You will not
be bound by what you have written down, but it does provide some
initial structure for your research. The proposed length of each chapter
should be indicated as well as the time frame for its completion.

8. RESEARCH METHODOLOGY

Section 4 of the research proposal requires you to consider the research

methodology you intend to adopt in undertaking your research.

Methodology: Methodology relates to the question: how will the enquirer go

about finding out whatever he or she believes can be known?

It will be important for you to consider what methodology you intend to adopt in
engaging your research question.

Particularly in the sciences and social sciences, the theory that underpins research
methodology is extensive and complex, and a student in those disciplines must show
a deep engagement with methodology. In law, the expectations are traditionally not
as great; the various methodological approaches to legal research are not generally
as highly theorised or as fundamentally important for fine engagement as in other
disciplines. But there must, from a scientific perspective, be at least some
engagement by a law student with methodology, since it is required in section 4 of

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the proposal.

A word of caution …

Like any theoretical framework, there are many ways of describing or classifying the
various methodologies of legal research. What appears below is one classificatory
version. Please note that like all classifications, it is one of convenience, and a
researcher does not have to be constrained to one particular model. There is room
for flexibility – provided that the researcher understands what he or she is doing, and
can explain his or her approach coherently.

DISCIPLINARY LEGAL RESEARCH

NON-EMPIRICAL EMPIRICAL

Interpretive literature analysis Qualitative survey

Doctrinal Critical Postmodern

Positivist/Constructivist Legal Realism Some CLS

Some CLS (Critical Legal Studies)

Legal-historical

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Comparative

MULTIDISCIPLINARY, INTERDISCIPLINARY AND TRANSDISCIPLINARY

RESEARCH

NON-EMPIRICAL EMPIRICAL

Law and literature Socio-legal studies (quantitative)

Socio-legal studies (qualitative) Law and economics

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 A. DISCIPLINARY LEGAL RESEARCH

Disciplinary legal research can be done either from an empirical or a non-empirical

methodological perspective. These are discussed separately below for the sake of
classificatory convenience, but it should be remembered that a combination of both
methods may be adopted.

1. Empirical research is very rare in law. It involves research by observation of

collected data or experimentation. In the context of law, this would usually
involve a statistical approach, where the object of study is subjected to data-
based investigation and quantitative statistical analysis. So, for example, it
might be possible to investigate the nature of the law of divorce by doing a
national empirical study of marriage rates, divorce rates, and making
extrapolations from these statistics.

Such research is subject to stringent scientific design and implementation

requirements, and cannot be done haphazardly or randomly. If a law student
wishes to engage in such research, that student would be encouraged to
attend an empirical research methods course offered in various faculties
which specialise in such research methods, and to motivate thoroughly how
this empirical work would be carried out, in the proposal. There are usually
ethics-based implications of doing such research for which permission must
be sought (see further on this below). Note that an empirical methodology
usually involves both a quantitative AND a qualitative component; but it cannot
be an empirical study if there is no quantitative study.

2. Non-empirical research involves subjecting the subject of study to analysis

through qualitative or theoretical/analytical methods, rather than by adopting
purely empirical or data-driven observational approaches. It is by far and away
the most common methodology in law research . In a discipline like law, which
focuses on textual sources, the most common method of doing such work is
through a process of an interpretive analysis of the sources of law (loosely,
the available “literature” on the issue being investigated. this is often
described, in colloquial terms, as “desk-top” research, where the focus is on
the literature (both primary and secondary sources) rather than observation
and experimentation. However, it may be possible to supplement this with
qualitative research involving case-studies or qualitative questionnaires and
similar such investigative studies.

In law, most research tends to be of a non-empirical, qualitative nature: researchers

tend mostly investigate and evaluate from a theoretical perspective the conceptual
bases of a legal instrument, rule or principle; and occasionally, add to this some
qualitative survey-based or case-study research. (Note that qualitative case-study or
survey-based research does require ethical approval.)

The thrust of most qualitative legal research is that is (i) based in a close
analysis of textual or documentary sources; and (ii) it is reform-orientated, in
that the purpose of the research is to evaluate the adequacy of the existing
position, and to recommend methods of change, improvement or development.

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In so far as the method of interpretive analysis is concerned (leaving aside qualitative
case studies or surveys), there are three primary paradigms for doing this sort of
research in law. The terminology that has been used to unpack these is quite
uniquely jurisprudential in origin – other disciplines in science and social science
would classify paradigms differently, would use different terminology, or would use
some of terminology we use in law, but with a different meaning altogether. Hence
law, like any discipline, has a discipline-specific way of understanding and describing
paradigms of qualitative research methodology

(a) Doctrinal

A doctrinal methodology is a research methodology which provides a systematic

exposition and investigation of a particular “doctrine” of the law (ie legal instrument,
area, rule or principle) with a view to better understanding or explaining it, identifying
areas of difficulty with it, motivating for improvement to it, and predicting future
developments. This is sometimes referred to as “black letter” legal investigation, as it
is based purely on documentary analysis. Doctrinal research is sometimes known in
other fields a “pure” interpretative methodology.

Doctrinal research has two common (sometimes interrelated) themes:

First, it is often positivist in nature. The positivist approach is most closely

associated with “black letter” legal investigation. The focus is exclusively on an
analysis of the legal doctrine posited (or “having a place”) in the legal system, with a
view understanding why it exists, and explaining more scientifically and accurately
what the doctrine is and does. Pure positivists do not investigate whether the
doctrine is deficient from a moral or policy-based perspective, leaving this enquiry
out of the equation. From a jurisprudential perspective this tradition is commonly
associated with theorists like Austin, Bentham, Kelsen, Hart, Raz and Coleman.

Secondly, it is often constructivist: in other words, the purpose of the research is to

construct an even better, more coherent, understanding of the doctrine than that
which currently exists, or to explain how it could be developed and improved.

While pure positivists do not generally engage with issues of morality or public policy
and the role of such ethical concepts on legal doctrine, as indicated above, other
constructivist philosophers (who are doctrinal but not narrowly positivist) will engage
in such investigations, believing that a legal doctrine cannot be fully understood or
improved without an engagement with morality, public policy, or other legal features
such as human-rights conventions, constitutions, and other relevant values. From a
jurisprudential perspective a constructivist approach is commonly associated with
theorists like Ronald Dworkin, Fuller and Finnis.

Those engaging in doctrinal research tend to adopt one of, or a combination of, two
classic approaches:

(i) The legal historical method

In order to investigate, criticise or re-conceptualise a legal doctrine, it is necessary to

know where it comes from – its historical origins. This is important to be able to place

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the doctrine in its proper context, and to understand why it may or may not be
necessary for it to be developed in modern times. This type of research involves
tracing the origin of a legal doctrine from its original source; identifying how it
changed and developed, and why; all with a view to making recommendations for its
future.

This sort of research tended in the past to be the standard method for conducting
research into private-law doctrines. Many of these, especially in the South African
context, have ancient histories stemming back to Roman, Roman-Dutch or colonial
English origins, and where these have developed and changed for various reasons
over thousands of years. Those researchers who intend to focus their energies on
this sort of research need to be fully conversant with the sources of our law.
However, unlike in the past, it is not necessary that the researcher has an ability to
engage with sources in original Latin or Dutch – most of the sources are now
translated into English.

Of course, other, more recent legal doctrines may be the subject of legal historical
analysis too. So, for example, it is possible to trace legislation through its white and
green papers, parliamentary debates, various amendments and so forth.

Nowadays it is rare to find a thesis totally dedicated to a legal historical investigation.

But inevitably, almost all theses in law must engage to a greater or lesser extent with
an investigation of the historical development of whatever it is in the law that is being
studied.

(ii) The comparative method

The comparative method involves investigating and critiquing a particular country’s

legal doctrine by evaluating it against the developments that have occurred in
another country, or other countries. This methodology has become increasingly
popular in modern times. However, it must be done sensibly and scientifically, not
wildly and randomly. First of all both the South African legal system and the foreign
system must be properly understood in its context. South Africa is part of the third
legal family, it being a mixed system of law. It is also a constitutional democracy with
a home-grown justiciable bill of rights. Other countries have very different
backgrounds and contexts. So, reading up on comparative law would be important
for anyone who wishes to engage in this approach, so that you can understand the
importance of context and “fit” in legal borrowing. (By “fit’ is meant whether a
comparative source would fit into the SA reality: so, it might be well and good that
Saudi Arabia chops off hands for theft; but would that sort of legal development “fit”
in South Africa’s legal context?) There is a science to comparative law and
borrowing! Some important works available in our library on this issue are:

 K Zweigert & H Kötz Introduction to Comparative Law 3 ed (tr T Weir) (1998),

Clarendon Press.
 M Reimann & R Zimmermann The Oxford Handbook of Comparative Law
(2008), OUP.
 A Watson Legal Transplants: An Approach to Comparative Law (1974),
Scottish Academic Press
 B Markesinis Comparative law in the courtroom and classroom: The story of
the last thirty-five years (2003), Hart.
 P de Cruz A Modern Approach to Comparative Law (1993), Kluwer
 B Grossfeld (tr T Weir) The Strengths and Weaknesses of Comparative Law

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 (1990), Clarendon Press.
 V Palmer (ed) Mixed Jurisdictions Worldwide: The Third Legal Family (2012),
Cambridge UP.
 J Smits (ed) The contribution of mixed legal systems to European private law
(2001), Intersentia.

NOTE:

A great deal of modern doctrinal legal research engages both the legal historical
and the legal comparative methods.

(b) Critical

An alternative to the common doctrinal methodology of legal research is “critical”

research. This is a convenient term for this methodological paradigm in law – it does
not mean other forms of legal research (such as a doctrinal approach) do not engage
critically with the topic of study!

Those who adopt a critical approach are “critical” of what they consider to be socially
constructed realities which they believe should not be accepted as “truths” and
merely described or polished (as the doctrinal researcher does), but should be
exposed for what they truly are. Such researchers generally argue that law is not
merely a science, but is heavily influenced by political considerations of a personal
and a public kind, or “inarticulate premises”. Such researchers aim to debunk or
expose “false consciousness” by a process of deconstruction, and to give an
alternative explanation for law in its various guises: one that is less orthodox or
academic, and more in tune with law as it applies in human reality. From a
jurisprudential perspective the critical approach is commonly associated in law
research with the work of the American realists from the 1930s to the 1960s. We
might indeed describe it in law specifically as a “critical realist” approach, although
scholars in the pure social sciences might not recognise this description, so it must
be used with caution! Additionally, it includes the work of revisionist Marxist scholars
like the original members of the Critical Legal Studies movement in the 1970s and
1980s, and those who do qualitative work in the socio-legal studies movement.

(c) Postmodern

In line with developments in other disciplines, especially in the broader humanities, it

is also to engage in legal research from a postmodern perspective, sometimes
known as a post-structuralist perspective. Such researchers argue that worlds are
created through language, and through discourses, and that there are no observable,
universal truths – only relationships of power and dominance which form the
backdrop to how law is described, created and imposed.

17
These sorts of researchers certainly adopt a “critical” approach, but one which goes
beyond the more benign version of the critical scholarship described in (b) above,
and is generally more radical and confrontational of the status quo. Those who
engage in postmodern legal research identify and analyse discourses through which
power relationships are established, and seek to challenge and subvert the “law” as
a social construct. Since research in this area requires knowledge of discourse
analysis, it should not be engaged in unless the student is trained and qualified in
such disciplinary enquiry. Broadly speaking, the modern postmodern tradition is
influenced by scholars like Jacques Derrida, Hannah Arendt and, more recently, non-
Western writers like Frantz Fanon. In legal research, postmodern analysis focuses
on important modern themes like gender, class, race and ethnicity. Prominent
postmodern scholars are those who write from feminist perspectives, LGBTI
perspectives, and who write from the perspective of critical race theory.

B. MULTIDISCIPLINARY, INTERDISCIPLINARY AND TRANSDISCIPLINARY

RESEARCH

As in all fields of academic study, there is an increasing call for scientists and
researchers not simply to study law in a specific disciplinary silo, but to draw from
and to engage with various academic disciplines in an endeavour to discover a more
dimensioned and richer understanding of scientific phenomena. Like “pure” or
discipline-specific legal research, MIT research (as it is often described) can be done
both non-empirically (by desk-top analysis and/or qualitative survey or case study),
or empirically. However, most of this sort of research involves going beyond a pure
interpretive literature analysis. The three forms of this type of research are the
following:

Multidisciplinary research means that scientists from a variety or multiplicity of

disciplines investigate the same phenomenon/problem from their respective expert
perspective, and make connections by pooling the information. It is always a
collaborative, or group, effort. This is the easiest kind of MIT research: every scientist
works within and from his or her own discipline, and the different perspectives come
together in the end product.

Interdisciplinary research is where a single researcher is a disciplinary expert in more

than one discipline, and uses the expertise and methodology of both disciplines to
investigate a problem. True interdisciplinary research therefore requires a thorough
grounding in more than one discipline: indeed, one would expect a high level of
proficiency (usually a postgraduate qualification) in both disciplines – eg music and
mathematics. True interdisciplinary research is rare, and is difficult to accomplish.
The most common forms of interdisciplinary research are the work of the law-and-
literature movement (expertise in law and literary studies: non-empirical) and the
work of the socio-legal studies movement (expertise in law and politics/sociology:
mostly with an empirical component) and the law and economics movement
(expertise in law and economics: mostly with an empirical component).

Transdisciplinary research is where interdisciplinary research results in the

establishment of a new discipline. For example, scientists like Banks and Malinowski
established anthropology by using the disciplines of zoology, sociology and botany
and applying it to human beings and culture.

18
For more on this form of research in the legal context in South Africa, see I J Kroeze
“Legal research methodology and the dream of interdisciplinarity” (2013) 16
Potchefstroom Electronic LJ available at http://law.nwu.ac.za/per/2013-16-3

9. ETHICS IN RESEARCH

In any form of research, no matter the methodology, the essential ethical attributes of
any researcher are academic honesty, integrity and modesty. The research must be
done by paying scrupulous attention to these values at each phase of the research
process. It is particularly important that you are fully conversant with the academic
requirements of citing authority in law, and the nature of plagiarism. The University’s
policy on plagiarism can be found at

https://www.ru.ac.za/media/rhodesuniversity/content/institutionalplanning/doc
uments/Plagiarism.pdf

It is in the interests of ALL postgraduate students to read this policy, and especially
the section on plagiarism in postgraduate programmes, carefully.

Extracts from the university policy on plagiarism

Definition

Plagiarism, in an academic, university context, may be defined as taking and using

the ideas, writings, works or inventions of another, from any textual or internet-based
source, as if they were one’s own. This definition covers a wide range of
misdemeanours such as: using the direct words of another without using quotation
marks (even if the passage is referenced); the unacknowledged copying of a
sentence or two of text; copying more extensive blocks of text; the syndication of a
single piece of work by more than one student (unless the assignment task is a
legitimate group assignment); the borrowing and using of another person’s
assignment (with or without their knowledge and permission); stealing an entire
essay from another student or from the Internet; or infringing copyright. For the
purposes of this policy, the intention, negligence or innocence of the student is not
relevant to the finding as to whether plagiarism, as a fact, has occurred. However,
the state of mind of the student will be highly significant in determining how to deal
with the case as far as taking remedial action or imposing a penalty is concerned.

Departmental responsibilities

An educational reality is that many of the current generation of students are not
familiar with the academic conventions that lecturers expect of the work that students
submit for assessment. This includes presentation conventions, referencing
conventions and the duty not to plagiarise the works of others.
Departments need to acknowledge the importance of their own role in students’
acquisition of academic discourse and are responsible for taking active steps to
provide students with an explanation as to why, as well as how, sources may be

19
used and cited in building academic knowledge. It must be recognised that these
standards need to be taught to students and that students from all educational
backgrounds may need time to become familiar with them. In addition, because the
nature of referencing and plagiarism may be context specific, individual Departments
are responsible for ensuring that students fully understand the nature of legitimate
academic practice, of what constitutes a illegitimate practice, and the potential
consequences of such conduct, in that particular discipline.
In this regard, departments should ensure that:

 The departmental handbook includes general information about the nature of

plagiarism, references to the University’s policy on plagiarism, and indicates
that plagiarism is considered to be a serious academic transgression.
 The departmental handbook informs students as to how material from such
sources as books, articles, the Internet and the work of other students, may
and may not be used in the preparation of assignments. Departments are
encouraged to refer students and staff to the very useful guide to information
literacy to be found on the Library website at www.ru.ac.za/library/infolit.
 Such information is referred to in the course material provided to students.
 Dedicated training is undertaken in the formal procedures to be followed in
the acknowledgement and citation of the source of material. It is not enough
to expect students simply to read and to understand a lengthy and
complicated handout or handbook. Such training could occur either in
lectures or during the regular tutorial programme or in specialised sessions
designed for this purpose.
 Such training should not simply occur at the first year level, but must be
reinforced at second and third year level, and also at the postgraduate level.
Since students enter Rhodes at all academic levels, it cannot be taken for
granted that such students will have received equivalent training, or will have
experienced the usual first-year training that most departments offer.
 Students are alerted to the nature of plagiarism, are informed that it
constitutes a serious offence, and are informed about the disciplinary
procedures that are in place for dealing with suspected cases.
 Where it is appropriate (usually where a student is new to the university, or
does not understand plagiarism), cases of plagiarism are dealt with
sensitively and by means of counselling and education, rather than simply by
imposing sanctions.
 Guidelines as to the extent of the loss of marks and other penalties for
plagiarism (where such are appropriate) are published by departments and
are made available to the students in the departmental handbook. Such
guidelines should be in accordance with the grid in Annexure D of the Senate
Policy.
 Students include an appropriate declaration in work that they submit
indicating that it is their own work. (For a generic template that may be
adapted by departments to suit their specific needs, see Annexure B of the
Senate Policy.)

Disciplinary procedures

The various procedures applicable to dealing with suspected cases of plagiarism are

20
as follows:
There are three graded categories of plagiarism – categories A, B and C. Where a
member of staff is unsure (a) whether plagiarism has been committed at all, or (b)
into which category a case of suspected plagiarism might fall, that staff member
should consult the Head of Department (or his nominee) for assistance. It must be
remembered that many assessors of student work are students themselves, and/or
may be inexperienced and unsure of what plagiarism is, and how it should be dealt
with.

Category A offences

Category A offences constitute first time, minor infringements, and are usually
handled by the staff member who detects the offence. However, in circumstances
where the assessor is a student tutor or demonstrator, it may be appropriate for the
matter to be dealt with by the lecturer in charge of the course, or the course co-
ordinator, to provide the necessary authority. In cases where the student is new to
the University, and/or if it is apparent that the student has committed such plagiarism
because of a lack of understanding of what is required, the student should usually be
counselled by the staff member concerned: the problem should be explained, the
correct practice should be encouraged, and the student should be warned of the
serious consequences of committing plagiarism again. This practice would reflect the
importance of our educative role as far as plagiarism is concerned. In some cases it
might be appropriate to ask the student to re-do the work to demonstrate that he or
she has learnt from the experience. Additionally, if it is appropriate, a mark penalty
could be imposed. If a penalty is imposed, the relevant staff member should indicate
the amount of the penalty and the reasons for this penalty on the assignment or
assessment form.
If a student wishes to challenge the finding and the penalty for a category A offence,
the student is entitled to appeal to the Head of Department, who must refer the
matter to the Departmental Plagiarism Committee for a hearing. (For the procedures
to be followed at the hearing, see below.) The student should be informed that the
Departmental Plagiarism Committee will hear the matter afresh, and is entitled, in the
event of finding that plagiarism has been committed, to impose its own penalty,
which may be more onerous than that imposed by the lecturer.

Category B offences

Category B offences relate to repeated offences of a minor nature, or to relatively

minor offences at a more senior academic level than first year, or to first time, more
serious offences, where the offence would not attract a penalty of more than the loss
of a DP certificate. Where a member of staff is uncertain as to whether an alleged
case of plagiarism constitutes a category A or B offence, this matter should be
discussed with the Head of Department, and a decision should be taken that is
consistent with previous practice in the department. In large departments, Heads of
Department may delegate this role to a senior member of staff.
If a category B offence is detected, the matter must be referred to the Head of
Department or nominee, who must refer the matter to a Departmental Plagiarism
Committee for a hearing.

Category C offences

21
These refer to extremely serious offences. Plagiarism in LLM and PhD work will
usually fall squarely into this category, although may depend on whether the
plagiarism is occurring in an early draft, or in the final draft, or is identified when the
thesis has been submitted for examination. All these possibilities are covered in the
Senate Policy. See the Senate Policy for details.

Examples of Plagiarism

The University’s Policy on Plagiarism provides some general examples of forms of

plagiarism, which any student may consult for guidance. By the time a law student is
registered for a postgraduate degree, the student should be familiar with academic
conventions regarding referencing and the avoidance of plagiarism. If a student is
still uncertain, however, further examples of what would constitute plagiarism may be
found in each year’s Law Faculty Survival Guide, copies of which are available from
the Administrative Office in the Law Faculty.

Copying and Pasting: A reminder

Copying and pasting is NOT acceptable. Copying and pasting can occur in one of
three ways:

 The student copies the words of others, without any referencing, to suggest
the work is his or her own. This is classic plagiarism, and will be firmly dealt
with.
 The second form of copy and paste occurs where the student (to a greater or
lesser degree) has simply cobbled together a whole lot of referenced, but
copied passages of others as the content of their work, but has not used
quotation marks to indicate what has been copied from another source. This
does amount to plagiarism. This sort of conduct is unacceptable because this
is (in significant parts, or entirely) not the student’s own work, but suggests in
a misleading way that it is. A mere reference next to the copied words of
others does not entitle a student to copy another person’s words. Quotation
marks must be used where the direct words of others are used in an essay.
 The third type of copy and paste is where the work is simply comprised of an
excessive number of passages that have been correctly quoted and
referenced. This would not amount to plagiarism, but would still not be
acceptable, particularly at the postgraduate level.

 The work must reflect the student’s own understanding of the issue, in the
student’s own words. Please use direct quotes sparingly.

Ethics and empirical research

Additionally, however, if you intend engaging in empirical research (which in law will
inevitably require engaging with human subjects), you need to be fully conversant
with the ethical obligations this imposes upon you. The University has a very full and
comprehensive Ethics Policy, which you would need to engage with. In addition, the
Faculty has its own ethics committee, and a dedicated staff member who is

22
knowledgeable about such work.

You are required to speak to Ms Helen Kruuse before starting your proposal, if you
intend to engage in empirical research.

10. PROBLEMS EXPERIENCED BY STUDENTS IN WRITING THE PROPOSAL

In getting to the point where they are able to submit an acceptable research
proposal, students often experience a number of problems. Some of the common
problems are discussed below.

Confusing the context section with the goals section

Remember that the context section (section 2) is concerned with painting the
background to the problem you intend to research. It largely looks to the past and
present of the problem, and shows you have done a full and proper literature survey.
The goals section (section 3) then looks forward, to what you hope to achieve in your
research. Don’t mix the two up! The purpose of a proposal is NOT to write a mini-
version of the final thesis! It serves a very different purpose.

Setting out the research question and the goals and sub-goals

Because students have not surveyed and studied the literature in sufficient detail,
identified the particular research niche that their research will fill or carefully thought
through exactly what they want to achieve, the section of their research proposals
which deals with the goals of the research is often set out in vague and incoherent
terms. Typically this is exposed right at the start, if the research question is
incoherent.

Confusing an idea with a well worked-out research plan in the research

methodology section

Students often present only a vague idea of how they will carry out their research,
not a well thought-out and detailed plan, showing how they intend to carry out their
work. Please see the section on research methodology in this document for
guidance.

Not considering the scope of the proposed research

One of the most common errors that students make is to underestimate the scope
of the research that they propose to undertake.
When to stop surveying the literature

Students find difficulty in judging when they have done enough reading in order to
write the research proposal. The research proposal does not require an exhaustive
survey of the literature; that is required for the thesis itself. For the proposal you
need to do sufficient reading to be able to explain the context of the research, the

23
nature of the research problem, the niche that your research occupies in the body
of knowledge and to demonstrate the contribution it will make to this body of
knowledge.

Not appreciating the time it takes to write a research proposal

To write a research proposal that is likely to be accepted takes up a considerable

portion of the total time taken to complete the thesis. After all, you need to do a
fairly comprehensive literature survey, design the research (that requires a lot of
hard thinking and some reading on research methods), get ethical clearance, where
relevant, and write the proposal in the required format. This will take several drafts –
you will not be able just to write it in one go! Your supervisor also has to have time to
read and engage with it, to debate it with you, and to demand corrections and
changes if necessary.

Writing skills

You are reminded that the proposal must be written in clear, accurate and coherent
English. This takes care and attention, and cannot be avoided.

Logical reasoning skills

Students often find difficulty in constructing a logical argument. This starts from the
internal logic of each sentence, each paragraph, etc. This often manifests as a
problem with writing, but has a deeper underlying cause – problems with logical
reasoning. It is also reflected in the inability to structure the chapters, headings and
sub-headings in a logical way to reflect the development of the research argument.
Remember that your proposal (and your thesis) is an extended argument, supported
by evidence. You must be constantly aware of possible illogicality in all aspects of
your research and make sure that every aspect of your proposal is logical. You must
be your own biggest critic to be a successful researcher and academic writer.

11. ASSESSING THE QUALITY OF THE RESEARCH PROPOSAL

If a proposal does not meet the standards required by the Higher Degrees Committee,
it will be referred back, costing you time, effort and creating anxiety. A number of
common weaknesses the Higher Degrees Committee frequently identifies (and which
link to the problems mentioned above) are:

Weaknesses related to the research problem

The description of the project is so nebulous and unfocused that the purpose of the
research is unclear. The problem is unimportant or unlikely to yield new
information. The research question is ill-defined, doubtful or unsound, or it rests on
insufficient evidence. The problem is more complex than the investigator realises.
The problem has limited relevance to the field as a whole.

Weaknesses related to the research design and methodology

The description of the design and/or method is so vague and unfocused as to

24
prevent adequate evaluation of its worth. The resources/data the investigator wishes
to use are either difficult to obtain or inappropriate for the research problem.

Weaknesses relating to the researcher

The researcher does not have sufficient training or experience for the proposed
research. The researcher appears to be unfamiliar with the literature relevant to the
research problem. The researcher has insufficient time to devote to the project.

Some other common failings include the following:

 The title usually has to be changed as it does not reflect the tenor of the
research, including the main key words.

 The introductory or context paragraph(s) do not set out the logical

development of the research problem or question. Research identified in the
literature survey is simply documented, with no attempt to use the literature
to present an argument, by comparing and contrasting earlier findings in order
to demonstrate where the student’s research fits in – the gap that it fills – and
therefore the research problem.

 Instead of allowing the reader to judge the relevance and importance of the
proposed research from the presentation of the argument leading up to the
formulation of their research problem, students often make ambitious
claims about the importance of their particular research and its contribution
to the body of knowledge.

 Many students fail to recognise that they are writing the proposal to be read
by a person who is an informed reader, but not an expert in the topic. The
discussion is not sufficiently explanatory. Terms and concepts are often not
fully explained or defined.

 The literature survey in the contextual discussion and the reference list
appended to the proposal often reflects the use of mainly references from the
popular press instead of reputable sources.

 The section in which the goals of the research are set out is usually one of
the weakest sections of the proposal. Ideally, an overall goal or research
question should be presented, followed by the sub-goals or aims that need to
be achieved in order to achieve the main goal. If too many goals and sub-
goals are expressed, this suggests the topic is either too big or unwieldy, or
has not been sufficiently refined.

 Students frequently mix the goals with the contextual discussion (particularly
the contribution to be made to the field of study) and, even more frequently,
include research methods with the goals. Often the poor articulation of goals
reflects the fact that the student has a broad idea of what he or she wants
to achieve, but has not done enough reading or thinking in order to present
clear goals for the research.

25
  The description of the research methodology and design is often the most
poorly written section of the research proposal. The proposal does not set out
clearly what data will be used, how the data will be obtained, how it will be
analysed and how interpreted. Frequently the student does not have any
clear plan for how he or she is going to set about doing the research, and
puts down some vague ideas.

 There is often a lack of alignment between the title of the research, the goals
and the research method and design. The question arises whether in
carrying out the research in the way the student proposes, he or she will be in
a position to achieve the goals.

You may feel at this stage that you have done so much work and all that you have
to show for it is a single document. Don’t despair. The work required to write a
proposal usually involves a substantial proportion of the total time required to write
a thesis. It also usually forms the basis for chapter 1 of your thesis and is therefore
time well spent. Once you have written your research proposal, you will know
exactly what you plan to do and how you are going to set about doing it.

12. HINTS ON WRITING

While we are discussing the writing of your research proposal, you may benefit from
the following hints on academic writing.

Technical aspects

Language use must be clear and correct and no slang terms or jargon should be
used. The proposal (and the thesis) should be written in “academic register”. Avoid
the use of emotive words, such as “huge”, “terrifying”, “shocking”, etc. Academic
writing appeals to the logic of the reader and not the reader’s emotions.

Pay particular attention to language, punctuation and grammar.

 Use the “spell check” option, but set it on UK or South African English.

 Make sure that you write full sentences. Many students start sentences with
words like “while”, “if”, “although”, “since” or “because”. These are
conjunctions which join sections of a sentence. Students often write a
sentence such as: “As research is a skill which few have mastered and there
are few textbooks relevant to lawyers.” This is not a sentence.

 Students often mix singular and plural, for example: “One class of life
partnerships are . . .”

 Students often use a semi-colon “;” instead of a comma “,”. If you feel tempted
to use a semi-colon, you probably need to break the sentence into two
sentences.

 Many students us the apostrophe “…’s” incorrectly. If you write “taxpayer’s

26
 returns”, you are saying “the returns of the (single) taxpayer”. In the plural
that would be: “taxpayers’ ”. “Taxpayer’s” is not the plural of “taxpayer”.

 Avoid using capital letters, unless absolutely necessary.

 Don’t use the expression “per” – “per section 1” should simply be written as “in
terms of section 1”. The same applies to “in casu” which is meaningless.

 Use the simplest possible language. Some students believe that academic
writing must use “big” words. Unfortunately they then use them incorrectly.
One student, who had a real problem, used words that sound the same, but
have a different meaning, like “confer” when he meant “infer”. Use a
dictionary.

 Abbreviations and acronyms should be used very sparingly, unless it is an

area where these are conventional.

 Make your document look professional.

 Proofread very carefully. Placing a ruler under the line of type that you are
proofreading helps to slow the eye down. Reading your work out loud enables
you to identify the lack of clarity in logical reasoning.

 If you include a “bulleted” list of items following a colon (:), each bulleted item
should begin with a lower case letter and end with a semi-colon. If the
bulleted items are complete sentences, you should start with a capital letter
and end with a full stop.

Referencing

Every statement that you make, that is not your own must have a reference, whether
it is a quotation or simply a paraphrase of something someone else has stated.
Statements such as “it is a well-known fact” or “most writers agree” must be backed
up by references as authority for these statements.

Long quotations are indented and a smaller font is used, without inverted commas.
Shorter quotations within a sentence of text should be within inverted commas.

Primary sources are of course preferred to secondary sources. References to the

peer-reviewed writings of acknowledged experts on a topic are preferable to
reference to writings in the popular media.

On the technical issues relating to referencing, see the section below.

Logical argument

Research is, in essence, an extended argument in which a hypothesis or question

is subjected to testing and interpretation, using sound logic. Each paragraph should
consist of a single unit of logic – not each sentence as a paragraph or long
paragraphs consisting of different units of logic.

27
It is important to include a sufficiently detailed explanation of the background and
important concepts. You are not writing for your lecturer or supervisor, but for other
readers (including outside examiners). You should assume that the person reading
your work is a reasonably informed, but not an expert reader. Never lose sight of the
fact that, in your research proposal, you must answer the questions: What? Why?
How?

The most important aspect of reporting on your research is maintaining the “golden
thread” of your argument. On a macro level, the goals, methodology and the
methods used in your research must be logically aligned. On a more detailed level,
each chapter must start with an introduction briefly setting out what the chapter will
cover and what it contributes to attaining the goals of the research. It must also
be linked with what was covered in the previous chapter. Each chapter must also
end with a brief summary of the findings of the chapter and must be linked with the
following chapter. The headings of sections within the chapter must also present a
logical development of the argument presented in the chapter. Each paragraph must
represent a unit of logic (not every sentence a new paragraph). Where a section
or a paragraph of the chapter has presented a lengthy and involved argument, this
should briefly be summarised and linked with the new section or paragraph. You
must lead the reader through your argument, using “sign posts” and linkages.

13. REFERENCING

(The following section is drawn from the “Law Faculty Referencing Guide”
which may be found in each year’s Law Faculty Survival Guide.)

Please note that the approach to academic referencing in the Law Faculty is different
from what one finds in other academic disciplines, and may be different to that used
by other universities. We request that you do what is necessary to familiarise
yourself with what the Rhodes Law Faculty expects. If you are uncertain about what
to do, please look at the examples given in this guide, or speak to your supervisor.

NB: The guidelines below should be adopted in drawing up both the proposal and
the thesis. Proposals in particular will be carefully scrutinised by the Higher Degrees
Committee to ensure that a candidate is on the right track with referencing
requirements. However, for the purposes of the thesis itself, candidates are entitled
to deviate from some of the standard requirements described below, provided that
the method used is: (a) recognised in legal publications, and would not be
anomalous; (b) is consistently used throughout the thesis; and (c) is approved by the
supervisor. For example, some may prefer single to double quotation marks, or may
prefer not to bracket case volume numbers, or may prefer to give case citations at all
times, rather than to abbreviate or cross-reference. The key factor is consistency of
referencing style. Candidates are encouraged to consult recently-completed LLM
and PhD theses, which are contained in the Library, to see what is expected, and to
provide guidance.

As far as layout is concerned, please follow the style that is used in this referencing
guide. Please note that the margins are justified, both in the text and the

28
footnotes.1

REFERENCING IN THE TEXT

Structural approaches to referencing within an essay

Footnotes

Footnotes are made by placing a number in superscript next to the relevant word in
the body of the text, and where applicable, after a full stop or comma, eg , 10 or.10 not
10
, or10. A corresponding number appears at the bottom of the page and the reference
is inserted after the number, at the bottom of the page. Remember: a full stop must
appear at the end of each footnote and the footnote must be justified. This is
the Faculty’s preferred referencing method. Postgraduate proposals and theses
must comply with this method.

Basic issues of style and punctuation

Quotations

Quotation marks are used where you quote the direct words of other authors, and
indicate that the passage you have quoted is not your own words. Double quotation
marks should be used (“ ”). Single quotation marks should only be used inside a
quotation, where the original author has in turn quoted a passage. Quotations should
correspond exactly with the original. Any changes or insertions should be indicated
by using square brackets [ ]. Quotations that are three lines or longer in length
should be separated from the text by being indented, and placed in a separate
paragraph. Footnote numbers should come at the end of the quotation, after the
quotation marks. For example:

Fagan said the following:

“[I]f a parliamentarian acts without wrongfulness, it cannot therefore be because

he acts reasonably, but must be because there is a reason for the courts to
refrain from imposing liability upon him, notwithstanding the unreasonableness
of his conduct. The reason, as others say, is ‘one of policy’.” 1

Note that the quotation marks in this instance come after the full stop (.”). The
quotation marks should be placed before the full stop (”.) only when the quotation
forms part of the sentence, eg: The reason, as others say, is “one of policy”.

If some text in a quotation is left out then three dots must be inserted in lieu of the
missing text, eg “… because there is a reason … to refrain from imposing liability….”
Note the spacing on either side of the dots, and note also that a full stop is added to
1
The only time that a footnote need not be justified is when a long Internet reference is used. Note
further that the font size of the footnotes differs from that of the main text.

29
the dots at the end. So don’t do this: “…because there is a reason…to refrain from
imposing liability…”

The following extract from Lynne Truss Eats, Shoots & Leaves (2005) 153-155
provides a useful guide to the use of quotation marks and inverted commas:

‘Since where and when to put other punctuation in direct speech is a real bother to some
people, here are some basic rules:

When a piece of dialogue is attributed at its end, conclude it with a comma inside the
inverted commas:

“You are out of your senses, Lord Fellamar,” gasped Sophia.

When the dialogue is attributed at the start, conclude with a full stop inside the inverted
commas:

Lord Fellamar replied, “Love has so totally deprived me of reason that I am scarce
accountable for my actions.”

When the dialogue stands on its own, the full stop comes inside the inverted commas:

“Upon my word, my Lord, I neither understand your words nor your behaviour.”

When only a fragment of speech is being quoted, put punctuation outside the inverted
commas:

Sophia recognised in Lord Fellamar the “effects of frenzy”, and tried to break away.

When the quotation is a question or exclamation, the terminal marks come inside the
inverted commas:

“Am I really to conceive your Lordship to be out of his senses?” cried Sophia. “Unhand
me, sir!” she demanded.

But when the question is posed by the sentence rather than by the speaker, logic
demands that the question mark goes outside the inverted commas:

Why didn’t Sophia see at once that his lordship doted on her “to the highest degree of
distraction”?

Where the quoted speech is a full sentence requiring a full stop (or other terminal mark)
of its own, and coincidentally comes at the end of the containing sentence, the mark
inside the inverted commas serves for both:

“Then fetching a deep sigh […] he ran on for some minutes in a strain which would be
little more pleasing to the reader than its was to the lady; and at last concluded with a
declaration, “That if he was master of the world, he would lay it at her fee.”

The basic rule is straightforward and logical: when the punctuation relates to the quoted

30
 words it goes inside the inverted commas; when it relates to the sentence, it goes
outside.’

“Foreign” words and expressions

Words and expressions in Latin, or in any language other than English, should be
italicised, eg: culpa, bona fides, Grundnorm, ikhazi.

Capitalisation

Proper nouns and titles of books or journals must be correctly capitalised, eg: The
Law of Contract in South Africa; Die Onregmatige Daad in die Suid-Afrikaanse Reg;
Judge President; Chief Justice. Headings may either be capitalised (eg: “Basic
Issues of Style and Punctuation”) or set out, as in this referencing guide, without
capitalisation. Choose a method and apply it consistently throughout the work.

Abbreviations

Standard abbreviations should be used, eg: section (s); sections (ss); subsection
(subsec); regulation (reg); regulations (regs); paragraph (para); paragraphs (paras);
second edition (2 ed); Judge (J); Acting Judge (AJ); Chief Justice (CJ); chapter (ch);
compare (cf); following (ff). Note that full stops are not used, ie not para. or A.J.

Page numbers

“Page” “p” or “pp” should not precede page references. In references to cases, Acts,
textbooks and journals, consecutive page numbers should be referenced fully, eg:
165-169, not 165-9 or 165-69 or pp165-169.

1What to include in a reference

Textbooks

When an author’s work is cited for the first time, the following information must be
supplied in full: Author’s initials and surname Title of Book edition (date of
publication) page where the information was found. No “at” or “p” or “pp” or “page” is
required. For example: AJ Kerr General Principles of the Law of Contract 6 ed (2002)
456.2

Note:

 If a book is in its first edition, one not need to say so – it will be implied.

 Where there are two authors cite both, eg: JC van der Walt and JR Midgley
Principles of Delict 3 ed (2005) para 46. Do not use “et al” (which means “and
others”) in such instances, ie do not cite this work as “Van der Walt et al”.

2
Note that there are no full stops after the initials, ie AJ Kerr, not A.J. Kerr.

31
  Where a work has several co-authors list the main author (usually the first
author named on the spine) and write et al after his/her name.3

 Some works are compiled by a general editor, but comprise chapters or

volumes written by different authors. The classic example would be the
LAWSA collection. In such an instance, use the following format: Author’s
initials Surname of the particular author consulted “Title of the chapter or
volume of the book” in editor’s initials editor’s surname (ed) Title of
book/series Volume of series [if applicable] (year of publication) and the
paragraph containing the information. For example: RH Christie “Contract” in
WA Joubert (ed) LAWSA Vol 5(1) (1994) para 123.

 When one refers to a textbook for the second, or a subsequent time, one
need to rewrite all the information contained in the first reference. In such
instances, write the author’s surname, an abbreviated title of the work
(remember, it must be italicised!), and the precise page or paragraph at which
the information was obtained. For example: Kerr Contract 471; Van der
Merwe et al Contract 345; Christie LAWSA Vol 5(1) para 23. Try to avoid
using cross referencing styles like op cit, ibid, or loc cit, but for those who feel
comfortable with this technique, see the SALJ for a template.

Journal articles

When a journal article is referred to for the first time, provide the following
information: Author’s initials and surname “title of the article” year Title of journal
page where article starts, followed by the exact page from where the information was
obtained. No “p” or “pp” or “page” is required. For example: E Fagan “The Longest
Erratum Note in History” (1996) 12 SAJHR 79 at 81-83.

Note:

 Journal titles always appear in italics.

 Article titles always appear in quotation marks (“ ”); they are NOT underlined
or italicised.

 Where there is a volume and a year number, the year is placed in brackets,
followed by the journal number, eg: (2002) 119 SALJ 79. In cases where there
is no volume listed on the spine, cite only the year, eg: 1995 Acta Juridica 66.

 It is standard practice to abbreviate the names of well-known journals. For

example:
 SALJ – South African Law Journal
 THRHR – Tydskrif vir Hedendaagse Romeins-Hollandse Reg
 SAJHR – South African Journal on Human Rights
 TSAR – Tydskrif vir die Suid-Afrikaanse Reg
 CILSA – Comparative and International Law Journal of Southern Africa

3
The full list of names must be cited in the bibliography.

32
 o A more detailed list of abbreviations is reproduced below. 4

 Some journals are never abbreviated, eg the Acta Juridica journal, or

Speculum Juris.

 The word “at” should be inserted between the reference to the initial page of
the article and the actual page where the information is found, eg, as in the
above example: 79 at 81-83.5

An abbreviated reference is used when an article is referred to for a second or

subsequent time. Cite the surname of the author, the date and abbreviated name of
the publication (in italics), and the precise page from whence the information was
obtained. For example: Fagan 1996 SAJHR 84. Again, avoid using ibid, op cit and
loc cit unless you feel entirely comfortable with doing so.

Note:

 In this instance there is no need to cite the initial page, nor to use the word
“at”.

 Do not use the words “op cit” or loc cit”, or similar terms. The word “ibid” is
used only when reference is made to the exact page in the footnote
immediately above.

Citation of cases

The Faculty’s preferred option is the SALJ version 1967 (2) SA 456 (N); 1996 (3) All
SA 345 (T); [1999] 11 BCLR 777 (D) 6  but whichever style is adopted, be consistent
throughout the thesis.

The names of the reports are not italicised, ie BCLR not BCLR.

Specific page references should not be preceded by an “at”: 1978 (3) SA 234 (A)
237D-G.

If paragraphs are referred to, simply say “para 34”: 1999 (2) SA 199 (CC) para 34.

When a case is referred to for the first time in the text, give it its full title in italics (eg
James v John). The words “and Another”, or “and Others” in the title of the case
4
See para 4.
5
This is the only instance in which the word “at” is inserted, the reason being to avoid confusion by
separating the numbers.
6
As a general rule of thumb, Butterworths reports (except for the Constitutional Law Reports) have
square brackets around the year [1995] and Juta reports have round brackets around the volume.
For example: Butterworths Constitutional Law Reports = 2004 (2) BCLR 102 (CC); The All South
Africa Law Reports = [2004] 2 All SA 155 (W); Butterworths Labour Law Reports = [2004] 2 BLLR
155 (LAC); Butterworths Arbitration Awards = [2004] 2 BALR 155 (CCMA); Judgments On-line =
[2004] JOL 3437 (D); Butterworths Human Rights Cases = [2004] 2 BHRC 155 (Ch); South
African Law Reports = 2004 (2) SA 155 (C); South African Constitutional Law Reports = 2004 (2)
SACLR 155 (C); South African Labour Law Reports = 2004 (2) SALLR 155 (C); South African Tax
Cases = 68 SATC 155.

33
should be omitted. The full citation, excluding the title, should then appear in a
footnote. For example: The leading case is Anglo Carpets (Pty) Ltd v Snyman.7

When a case is referred to for a second or subsequent time, simply give the title or
abbreviated title of the case, and the precise place from whence the information was
obtained. There is no need to use the words “supra” or “op cit” in such instances. For
example: In Anglo Carpets v Snyman8 Coleman J also said…

Where a case is not mentioned in the main text, include all the relevant information
(case title and case citation) in the footnote. Again, there is no need to use the words
“supra” or “op cit”. For example: A number of authorities support this proposition. 9

Citation of statutes, bills, law reform commission reports, regulations and Rules of
Court

Acts of Parliament are referred to by their name, number and year. The title of the
Act10 must not be italicised, eg: Magistrates’ Courts Act 32 of 1944 or Criminal
Procedure Act 51 of 1977.

When an Act is mentioned for the first time, give it its full title, and cite the number
and year in the footnote. For example: According to s 23(b) of the Magistrates’
Courts Act,11 applications must be in writing.... Note that the Constitution is cited as
“The Constitution of the Republic of South Africa, 1996”.

For every subsequent reference, simply give the name of the Act, without any further
detail. There is no need to refer to the number and year again. References can be
confined to the relevant section (s) or sub-section (subsec) under discussion. For
example: Later, the Magistrates’ Courts Act 12 also provides that...

Bills before Parliament which have not yet been passed into law as Acts are referred
to in a similar fashion to Acts; ie by name, number and year. The convention is to
refer to the Bill in the format of the following example: The Rhodes University
(Private) Bill B-09 of 2008.

Reports of the Law Reform Commission should be cited by number of project, title of
project; page. For example: South African Law Reform Commission Project 190:
Report on Gun Control in Rural Areas 45. If the document is not the final Report, but
is a Working Paper or a Discussion Paper, replace “Report” with either “Working
Paper” or “Discussion Paper” in the title. No author needs to be named or identified.

A set of regulations is cited as follows: name of set of regulations, notice type, notice
number, Government Gazette number and date of the notice’s publication. For
example: Labour Relations Regulations, GN R1442, Government Gazette 25515, 10
October 2003.
7
1978 (3) SA 582 (T) 589J.
8
590B. Note that although the case name is italicised in the main text, the footnote number in the
main text is not italicised.
9
See Jones v Sithole 2000 (4) SA 234 (SCA) para 25; Anglo Carpets v Snyman 590B.
10
Note that the word is capitalised: “Act” not “act”.
11
Act 32 of 1944.
12
s 31(1).

34
Where Rules of Court are referred to, state the set of rules, the Act under which they
were published and the rule number. For example: Rule 7 of the Uniform Rules of
Court, Supreme Court Act 59 of 1959.

Referencing information from the Internet

The Internet13 is a research tool just like a textbook or a journal and one is expected
to reference Internet material:14 Author’s initials and surname15 “Title of the article
or page” the web-site where the information was found [accessed on a certain date].
For example JY Mokgoro “Ubuntu and the Law in South Africa” (1998) 1
Potchefstroom Electronic Law Journal
http://www.puk.ac.za/fakulteite/regte/per/issue98v1.html (accessed 20 November 2006)
or P Frankel and R Rose “Is Trade Good or Bad for the Environment?”
http://papers.nber.org/papers/w9201.pdf (accessed 23 November 2006). Subsequent
references need simply refer to Mokgoro “Ubuntu” or Frankel and Rose “Is Trade
Good or Bad for the Environment?” and the page.
Please note that it is not acceptable to simply refer to the database from which you
got your information; eg “MyLexisNexis” or “Hein-on-line”. A proper reference to the
appropriate source (whether it was a book, journal article, case, statute or regulation)
that you found IN that database must be given.

Theses

Provide the author’s surname, the Title of the thesis (in italics), and then, in brackets,
the type of thesis, the institution, and the date. Thereafter give the page from whence
the information came. For example: WH Jansen The Undisclosed Principal (LLD
thesis, RAU, 1997) 34. In subsequent references, simply say: Jansen The
Undisclosed Principal 35.

Old authorities (Roman and Roman-Dutch law)

Consult 1985 THRHR 125 for the correct citations when old authorities such as Voet,
Grotius, Van Leeuwen, Van der Linden are used. The Digest is generally referred to
by its abbreviated title, plus the specific reference, eg: D 4.2.2.

Newspaper articles

Newspaper articles are generally referred to by the title of article, title of newspaper
(in italics), date and page number (if available). For example: “Death Penalty Given
the Boot” Sunday Times 12 April 1995. If the newspaper was sourced from the
Internet, this should be reflected. For example: “Death Penalty Given the Boot”
Sunday Times 12 April 1995 http://www.suntimes.co.za/articles/1241995.html (accessed
16 July 2005).

THE BIBLIOGRAPHY

13
The word is capitalised: “Internet”, not “internet”.
14
Most contraventions of the University’s plagiarism policy involve Internet sources, so please
ensure that both the Faculty Reference Guide and the Faculty Plagiarism Policy are adhered to.
15
Where the author is not mentioned, refer to the author as “Anonymous”.

35
Introduction

Both the proposal and 1the final thesis must contain a bibliography. A bibliography is
a list of all the works consulted for the preparation of the proposal or thesis. Every
work consulted must appear in the bibliography – those referred to in the main body
of the essay and also any other books consulted, even if not cited in the essay.

General requirements
The bibliography should contain all the textual sources to which referred in compiling
the work. This means textbooks, treatises and monographs, journal articles, Internet
sources and newspaper articles. A separate Table of Cases and a Table of
Statutes should be included in the bibliography in the case of a thesis. All works
must be listed in alphabetical order according to authors’ surnames.16 There is no
need to differentiate books, journals, and other references, unless the candidate
feels like doing so. One alphabetical list is perfectly acceptable. However, each
particular source must be referenced correctly according to the following
requirements.

Books

1Author’s name or initials (depending what is reflected in the book) 17 Author’s

surname Full Title (in italics) edition (year of publication) publisher: place of
publication. For example: RW Lee The Elements of Roman Law 4 ed (1956) Sweet
and Maxwell: London; RH Christie “Contract” in WA Joubert (ed) LAWSA Vol 5(1)
(1994) Butterworths: Durban.

Multiple authors are cited as they appear in the book, not alphabetically. For
example: S van der Merwe, LF van Huyssteen, MFB Reineke, GF Lubbe and JG
Lotz Contract General Principles 2 ed (2003) Juta: Cape Town.18 Note that the
bibliography style differs from the citation method in the text. 19 In the bibliography, all
the authors are cited, with their initials, and the publisher and the place of publication
are added.

Journal articles

Author’s initials Author’s surname “Full title of the article” year of publication of the
journal (in brackets) volume of the journal Title of the journal [in italics] starting page
number of the article. For example: JR Harker “The Mandement van Spolie in Private
and Public Law” (1988) 105 SALJ 186. Note that the bibliography style differs from
the citation method in the text.20 In the bibliography, all the authors are cited, with
their initials.

Internet sources, theses, old authorities and newspaper articles

16
See fn 4.
17
This differs from the way in which an author is cited in the main text and footnotes.
18
Note that full stops are not used after initials. One may, however, separate the initials with a
space, if one prefers.
19
See para 2.3.1.
20
See para 2.3.2.

36
The same referencing style as that used in the text should be adopted. 21 If available,
the initials of the author should be inserted in the bibliographical entry, for the sake of
consistency with other entries.

ABBREVIATIONS

AD Appellate Division Reports

AN Administrator’s Notice
All SA The All South African Law Reports
BALR Butterworths Arbitration Law Reports
BCLR Butterworths Constitutional Law Reports
BIP Burrell’s Intellectual Property Law Reports
BLLR Butterworths Labour Law Reports
BN Board Notice
BP Burrell’s Patent Law Reports
CC Constitutional Court
CCC Canadian Criminal Cases
CCMA Commission for Conciliation, Mediation and Arbitration
CTR Cape Times Reports (SA)
CILSA Comparative and International Law Journal of Southern Africa
CL,SA Current Law
CP Court of the Commissioner of Patents
CPD Cape of Good Hope Provincial Division Reports
De Jure De Jure
DR De Rebus
E Decision of the Eastern Cape Provincial Division
EA East African Reports
EDC Eastern Districts Court Reports
EDL Eastern Districts Local Division Reports (SA)
FC Decision of the Rhodesian Federal Court
GW Decision of the Griqualand West Local Division
GenN General Notice
HC High Court
HSRC Human Sciences Research Council
HRCLJ Human Rights and Constitutional Law Journal of Southern Africa
ILJ The Industrial Law Journal
IMSSA Independent Mediation and Arbitration Society of Southern
Africa
ITC Income Tax Cases The South Tax Cases
ITR Income Tax Reporter
JBL Juta’s Business Law
JJS Journal for Judicial Science
LAWSA The Law of South Africa
LAC Labour Appeal Court
LC Labour Court
LCC Land Claims Court
LHR Lawyers for Human Rights
LRA Labour Relations Act 28 of 1956/ Labour Relations Act 66 of
21
See paras 2.3.5, 2.3.6, 2.3.7 and 2.3.8.

37
1995
MB Modern Business Law
MN Municipal Notice
ON Official Notice
P Private arbitration
PAB Publications Appeal Board Reports
PH Prentice Hall
PN Provincial Notice
PrN Premier’s Notice
Proc Proclamation
SA South Africa Law Reports
SACC/SASK South African Journal of Criminal Law and Criminology
SACJ South Africa Journal of Criminal Justice
SACR South African Criminal Law Reports
SAJHR South African Journal of Human Rights
SALJ South African Law Journal
SAPL South African Public Law
SATC South African Tax Cases
SC Decision of the Supreme Court or Cape Supreme Court Reports
(SA)
SCA Supreme Court of Appeal
SECLD Decision of the South Eastern Cape Local Division
Stell LR Stellenbosch Law Review
South West Africa Reports or decision of the South West Africa Supreme Court
TH Transvaal High Court Reports
TPD Transvaal Provincial Division Reports
TS Transvaal Supreme Court Reports
THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg
TJO The Judicial Officer
TM The Magistrates
TSAR Tydskrif vir die Suid-Afrikaanse Reg (Journal of South African
Law)
Decision of the Witwatersrand Local Division or Weekblad van het Recht (The
Netherlands)
WLD Witwatersrand Local Division Reports
ZHC Zimbabwe High Court
ZSC Zimbabwe Supreme Court

14. CONCLUSION

You have now covered all the material that you need to write a successful research
proposal. You have done more than that, however, you have mastered all of the
skills that you need to carry out your research – collecting and measuring the data,
analysing and interpreting it and writing your research thesis.

Before we end the discussion, however, a few remarks are necessary on a problem
that most researchers encounter at some stage in their research – either the
inability to start writing, or writer’s block during the course of writing. There are a
couple of techniques that may assist with this. Don’t imagine that you need to see
the “end of the road” before you start writing. Write paragraphs or even sentences

38
that may be useful in your proposal (or your thesis). Don’t be concerned about
putting them into logical order or under certain headings. Simply write. You can
always delete them or restructure what you have written so that they fit into a certain
section or under a certain heading. If you experience writer’s block, set your
research aside for a little while and forget about it. When you come back to it and
read what you have written, you will be surprised to see how good it is. Taking a
break also helps you to see things in perspective. Often, while you have stopped
consciously thinking about your research, your brain seems to have been carrying
on and when you return to the research, the words will simply flow out in logical
sequence. If all else fails, start editing or even formatting the text, just to get
started. Soon you will be adding sentences and paragraphs and you will have
broken the log jam.

All that is left for us to do is to wish you good luck!

39